Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
indemnity, for doing so would amount to a bypass of, and "render . . . superfluous," the statutes and "panoply of implementing regulations" that set forth specific procedures that contractors must follow to obtain a promise of indemnity. Ante, at 429. My problem with this argument lies in the fact that, in 1964, the relevant statute, Executive Order, and regulations read very differently. At that time, their language was nonspecific or ambiguous on the procedures required for indemnification. The statute has always been phrased in general language, making no explicit reference to indemnification. See 50 U. S. C. § 1431 (1988 ed., Supp. V); 50 U. S. C. § 1431 (1964 ed.). The portion of the Executive Order that today treats indemnification as special, and sets out procedures for indemnification, did not exist in 1964, and the relevant regulations were also either silent or much more ambiguous than they are today. Compare Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (indemnification), with Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.) (no specific reference to indemnification); compare 32 CFR § 17-301 et seq. (1975) (implementing today's indemnification procedures) with 32 CFR § 17-301 et seq. (1964) (no reference to indemnification procedures) and 32 CFR § 17.204-4 (1960) ("Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without formal contract [e. g., where a person has furnished property or services to the military in good-faith reliance on the apparent authority of a person giving an oral instruction]. Formalization of commitments under such circumstances normally will facilitate the national defense by assuring such persons that they will be treated fairly and paid expeditiously"); 32 CFR § 17.206(i) (1964) (indemnification contracts must subject Government's obligation to availability of appropriated funds).
Second, the majority points to Comptroller General opinions that say that an "open-ended" agreement to indemnify would violate the Anti-Deficiency Act, 31 U. S. C. § 1341 (1988
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