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entitled 'Procedures and Practices for Legal Decisions and Opinions' 
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United States Government Accountability Office: 

Office of the General Counsel: 

September 2006: 

Procedures and Practices for Legal Decisions and Opinions: 


September 2006: 

This document contains procedures and practices for legal decisions and 
legal opinions of the Comptroller General of the Government 
Accountability Office. The Office of General Counsel (OGC) is the 
component of GAO responsible for providing opinions to Congress, its 
committees, and Members, and for providing decisions to accountable 
officers and heads of executive agencies. 

The decisions of the Comptroller General concerning the use and 
obligation of appropriated funds are grounded in statute and have a 
well-established and recognized heritage dating back to the mid-
nineteenth century. OGC strives to produce thorough, well-researched, 
and well-reasoned decisions and opinions, informed by agency 
explanation of pertinent facts and its views on the law. This document 
explains our approach to rendering decisions and opinions, how to 
request a decision or opinion, and our normal practice after we have 
agreed to issue a decision or opinion. These procedures and practices, 
in large part, reflect long-standing practices of the Office of General 
Counsel, across the tenures of the various Comptrollers General. 

Along with the attorneys in OGC, I look forward to using these 
procedures and practices to continue to serve the Congress and the 
American people. Questions or comments about OGC’s procedures and 
practices may be directed to Susan A. Poling, Managing Associate 
General Counsel, at 202-512-2667 or via e-mail at 

Signed by: 

Gary L. Kepplinger: 
General Counsel: 

Office of General Counsel: 

Procedures and Practices for Legal Decisions and Opinions: 

The Office of General Counsel (OGC) is the component of the United 
States Government Accountability Office (GAO) responsible for providing 
legal opinions to Congress, its committees, and Members, and legal 
decisions to accountable officers and heads of executive agencies. See 
GAO Order No. 013 0.1.10, Apr. 5, 2004. Congress has charged the 
Comptroller General to settle the accounts of the United States,
31 U.S.C. § 3 526. Since the turn of the nineteenth century, [Footnote 
1] Congress has provided disbursing and certifying officers 
(accountable officers) and heads of agencies the right to request 
decisions from the Comptroller General in advance of an audit and 
settlement of an account. 31 U.S.C. §529. 

In recognition of the Comptroller General’s account settlement 
function, Congress has designated the Comptroller General as the 
administrative officer authorized to relieve accountable officers from 
liability for physical loss or losses from illegal, improper, or 
erroneous certifications and payments. 31 U.S.C. §§ 527, 528. It is 
these (and related) [Footnote 2] statutes that represent the statutory 
foundation for Comptroller General decisions on the obligation, 
expenditure, and accounting of appropriated funds. 

Congress also has directed the Comptroller General to investigate all 
matters related to the receipt, disbursement, and use of public money, 
31 U.S.C. § 712(1), and to evaluate the results of programs and 
activities carried out by the government under existing law, 31 U.S.C. 
§ 717(b). The Comptroller General evaluates and reports on compliance 
with laws and regulations in GAO audits and investigations. [Footnote 
3] In addition, and independently of an audit or investigation, OGC 
will analyze and opine on the proper use of federal funds and 
properties or on the scope and exercise of authority by federal 
officers and employees at the request of Congress, its committees, and 
Members. See 31 U.S.C. § 717. 

The decisions of the Comptroller General concerning the use and 
obligation of appropriated funds have a well-established and recognized 
heritage dating back to the mid-nineteenth century. The decisions of 
the Comptroller General are binding on GAO when auditing and 
investigating federal programs and activities and settling government 
accounts. 31 U.S.C. § 526(b). Although the decisions of the Comptroller 
General are conclusive on the executive branch, 31 U.S.C. § 526(d), it 
is for the executive agencies to implement and enforce the decisions of 
the Comptroller General. 

Scope of Procedures and Practices: 

These procedures and practices cover requests for legal decisions from 
accountable officers and heads of agencies pursuant to 31 U.S.C. § 529; 
requests for legal opinions from the Congress, its committees, and 
Members; and requests for informal technical assistance. GAO’s 
protocols for audit, evaluative, and investigative work are covered in 
GAO’s Agency Protocols, GAO-05-3 5G (Washington, D.C.: Oct. 2004) and 
GAO’s Congressional Protocols, GAO-04-10G (Washington, D.C.: July 
2004). The procedures governing bid protests of a solicitation
for offers by a government agency or of the award of a contract are not 
found in this document, but in 4  C.F.R. part 21. 

Approach to Rendering Legal Decisions and Opinions: 

When rendering legal decisions and opinions, OGC has a proud tradition 
of providing independent analyses and applications of the law. 
Importantly, through OGC decisions and opinions on the use of 
appropriated funds, the GAO provides the standards necessary to help 
ensure that taxpayers’ funds are lawfully obligated and expended and 
faithfully accounted for according to the law. To achieve these 
objectives, OGC bases its decisions on its best judgment of what the 
law requires, not on an advocate’s crafting of plausible arguments in 
support of a particular point of view. OGC strives to produce thorough, 
well-researched, and well-reasoned decisions and opinions, informed by 
agency explanation of pertinent facts and its views on the law, which 
respect the difficult judgments Congress must make concerning the use 
of the nation’s resources, the rights and obligations of the 
accountable officers of the government, and the roles and 
responsibilities of coordinate branches of our government. 

Requesting a Legal Decision or Opinion: 

By statute, accountable officers and heads of agencies and agency 
components are entitled to an advance decision of the Comptroller 
General concerning the obligation, expenditure, and accounting of 
appropriated funds. 31 U.S.C. § 529. In addition, as a matter of law 
and long-standing practice, the Comptroller General renders opinions to 
committees of Congress on matters within their jurisdiction and to 
individual Members of Congress. 31 U.S.C. § 717(b). Requests for a 
legal decision or opinion should be made in writing, signed by the 
requestor(s), and addressed to the Comptroller General or the General 
Counsel. While there is no specific format for a request, the request 
letter should identify the issue(s); the applicable facts and 
circumstances giving rise to the issue(s), including any relevant 
documentation; the requestor’s views, if any, on the legal issue(s); 
and, to the extent pertinent, the potential consequences of any 
proposed resolution or remedial action that the requestor may propose. 

Acknowledgment of Receipt and Acceptance of Requests for a Decision
or Opinion: 

Typically within 10 business days of receipt of a request for a 
decision or opinion, OGC will acknowledge the request in writing, will 
indicate whether GAO has accepted the request, and if not, the reasons 
therefor. If the request is accepted, the letter will explain any 
procedures or steps OGC will take unique to the request, identify the 
point of contact for the decision or opinion within OGC, and provide an 
anticipated completion date. In addition, the acknowledgment letter may 
explain and clarify, as necessary, the issues that OGC will address. 

Withdrawal of a Request for a Legal Decision or Opinion: 

Once OGC acknowledges a request for a decision or opinion, GAO will 
issue its decision or opinion unless the matter is rendered moot by 
subsequent events, the request is timely withdrawn, or, for reasons 
discussed below, the matter is determined not susceptible to a legal 
review. Where the matter presented raises issues that OGC deems to be 
in the public interest or which implicate GAO’s statutory 
responsibilities, even if the requestor withdraws the request for a 
decision or opinion, GAO may still issue a decision or opinion on the 
matter on its own initiative. 

Development Letters: 

In developing its decision or opinion, OGC typically solicits agency 
views of the facts and the law through development letters. [Footnote 
4] The development letter will specify a response date, typically from 
2 to 4 weeks, depending on a variety of factors such as the urgency of 
the matter or the complexity of the issues. On request, and for good 
cause, OGC may extend the response date; however, failure to respond to 
a development letter will not preclude issuance of a decision or 
opinion. Where OGC is unable to solicit the agency’s views because of 
unavoidable time constraints or where an agency declines or fails to 
respond to GAO’s request for information and its views in a timely 
fashion, OGC will so note in the decision or opinion. 

Informal Meetings and Conferences: 

Either on its own initiative or at the request of the requestor(s) or 
other interested person(s) or entity(ies), whether governmental or not, 
OGC may hold informal meetings or conferences to discuss and clarify 
the facts and issues presented by a request. Informal meetings are ex 
parte and typically neither informal meetings nor conferences are 
transcribed. Unlike GAO audit products, OGC does not provide draft 
copies of its decisions or opinions for agency comment, nor does it 
provide preliminary conclusions or draft copies to the requesting 
accountable officers or agency heads or requesting committee or Member 

Matters Which OGC Will Not Address: 

There are several types of issues which OGC will not decide or opine 
on. For example, unless required by law or requested by a court or 
administrative forum, OGC will decline to decide or opine on an issue 
when it becomes aware that the issue is pending before a federal court 
or administrative entity. [Footnote 5] Similarly, OGC will not decide 
or opine on matters subject to ongoing criminal investigations. Nor 
will OGC decide or opine on the application of criminal statutes but 
instead will refer, as appropriate, such requests to appropriate law 
enforcement authorities. 

Although relatively rare, OGC will decline to decide or opine on a 
matter where the issue presented is committed by law to a discretionary 
administrative determination typically involving political, military, 
international, or economic choices that are not readily susceptible to 
a legal review. And finally, when the validity of an act of Congress is 
drawn into question, OGC will indulge a heavy presumption in favor of 
constitutionality or, as appropriate, will adopt a construction to 
avoid the issue. Only in those cases where the Supreme Court has 
directly addressed the precise issue raised by the act of Congress at 
issue, and avoidance of the issue is not possible, will OGC question 
the constitutionality of an act of Congress. 

Issuance of Legal Decisions and Opinions: 

As a general proposition, OGC issues its decisions and opinions upon 
completion of its internal quality review process. Unlike audit reports 
and products covered by GAO’s Congressional Protocols, [Footnote 6] OGC 
does not place holds on the release of a decision or opinion. However, 
OGC does not issue an opinion during a congressional recess unless the 
affected congressional committees and Members request otherwise. Once a 
decision or opinion is issued to the requestor, GAO will publicly 
release the decision or opinion and post a copy on our Web site. Before 
public dissemination of a decision or opinion, OGC will redact any 
proprietary data, classified information, or other information the 
public release of which is restricted by statute. OGC decisions and 
opinions can be accessed by going to the GAO Web site, [hyperlink,], and clicking on Legal Products. 

Request for Reconsideration: 

GAO gives precedential weight to its prior decisions and opinions; 
however, GAO may modify or reverse a prior decision or opinion where it 
believes a mistake of law has been made in the past. Where a requestor 
or entity with a stake in a recent decision or opinion believes that 
GAO has made a mistake of fact or law or that GAO would have resolved 
the matter differently if it had had the benefit of relevant and 
material information not reasonably available at the time of the 
original decision or opinion, GAO will entertain and respond to 
requests for reconsideration if timely made. 

(Although timeliness for this purpose is a function of the applicable 
facts and circumstances, GAO will not entertain requests for 
reconsideration made more than a year after issuance of the disputed 
decision or opinion.) GAO will reconsider and revise a prior decision 
or opinion upon a showing of a material error of fact or law. 

A request for reconsideration must be made in writing, addressed to the 
Comptroller General or the General Counsel, and contain an explanation 
of the alleged error of fact or law in the decision or opinion. If the 
alleged error of fact is premised on new information, the request must 
include the new information and the reasons why it was not previously 
available and presented for consideration during the development of the 
original decision or opinion. 

Informal Technical Assistance: 

OGC attorneys may provide informal assistance to congressional and 
agency officers and employees on issues which the attorneys have 
developed a particular competence. Although OGC attorneys may offer 
insights and observations based on prior GAO decisions and opinions and 
their individual experience and knowledge, OGC attorneys do not, and 
should not be construed to, provide Comptroller General decisions and 
opinions informally. Any views OGC attorneys may express are personal 
to the attorney and do not represent the views of the Comptroller 
General, GAO, or OGC. 

In offering technical assistance, OGC attorneys are not a substitute 
for agency or legal counsel. Typically, OGC attorneys provide quick 
turnaround, informal assistance in response to telephone or e-mail 

Their assistance may range from explaining a law, the rationale behind 
a prior Comptroller General’s decision or opinion, or a legal position 
taken in a GAO audit report; referring the officer or employee to a 
line of case law that may help them understand or address an issue; 
explaining a passage or discussion in GAO’s Principles of Federal 
Appropriations Law (the Red Book) or a GAO audit report; advising on 
available options or approaches (including submission of the matter for 
a formal decision or opinion) to resolve a matter; or providing 
assistance drafting legislation on matters where OGC has developed a 
particular competence. 

[End of section] 


[1] The Dockery Act, a part of the General Appropriations Act for 1895, 
28 Stat. 162, 205, among other things, codified the then-existing 
practice of the Comptroller of the Treasury of rendering decisions upon 
the request of agency heads and disbursing officers. 

[2] See, e.g., 2 U.S.C. §§ 142b, 142e, 142l, 1904; 28 U.S.C. § 613. 

[3] See GAO, Government Auditing Standards, GAO-03-673G (Washington, 
D.C.: June 2003 ), at ¶¶ 4.17–4.20 (financial audits), ¶¶ 7.17–7.27 
(performance audits). Where OGC becomes aware of potential issues of 
compliance with laws such as those governing the obligation, 
expenditure, or the impoundment of public funds, among others, OGC will 
make inquiries that may result in the issuance of a self-initiated 

[4] OGC also may solicit views of nonfederal entities, public and 
private, where they have a particular stake or interest in the matter 
under consideration. 

[5] To protect the integrity of GAO’s statutory bid protest 
jurisdiction, as a matter of policy, GAO will not accept requests to 
review or evaluate an agency contract action where acceptance of the 
request would have the effect of circumventing the statutory rules, for 
example, rules regarding standing or timeliness, 4  C.F.R. §§ 21.1, 
21.2, governing protests to GAO. See B-290488, May 30, 2002. 

[6] See Congressional Protocols, GAO-04-3 10G (Washington, D.C.: July 
2004) at 16. 

[End of section] 

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