By Matthew H. Solomson, L. Misha Prehein, Ellen M. Lynch, Laura J. Mitchell Baker, Christine Daya, Matthew Gravens, & Emily Patterson | 62 Am. U. L. Rev. 907 (2013)

The Supreme Court of the United States has observed that “[i]n constitutional adjudication, as in the common law, rules of law often develop incrementally as earlier decisions are applied to new factual situations.” The same comment accurately describes the Federal Circuit’s government contracts decisions from this past year; with (arguably) limited exception, the decisions discussed below reflect incremental development of the law, rather than any sea changes. Two exceptions to that generalization—Minesen Co. v. McHugh and Scott Timber Co. v. United States—both engendered significant dissenting opinions, suggesting that the issues addressed therein may well be the subject of a future en banc case. In yet a third case, VanDesande v. United States, the court specifically noted that it was addressing a matter of first impression. 

In the remaining cases, however, the Federal Circuit does not appear to have broken radical new ground, but rather relied upon
well-established precedent to resolve the new conflicts before the court. Nevertheless, such incremental development of the law as a result of new factual situations benefits not only the litigants involved in those cases, but also future, would-be litigants (and, in this context, the Government) all of whom will have a better sense of the legal landscape governing their contracts and disputes. In that sense, then, each of these cases represents a valuable contribution to the government contracts field and warrants careful, if not equal, attention.

Click here to view this Article