71 Am. U. L. Rev. 1699 (2022).
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Foreword
By The Honorable Harold D. Lester, Jr.**
It has been almost forty years since Congress created the United States Court of Appeals for the Federal Circuit1 with the goal of ensuring uniform and definitive judicial interpretations of the law applicable to Federal Government contracting. Because, like that of the Court of Claims before it, the precedent of the Federal Circuit guides how procurement laws are interpreted, it is important for practitioners and those whose livelihoods depend on government contracting to pay attention to the decisions that the Federal Circuit issues.
Sometimes, those decisions can come as a bit of a surprise, particularly when a legal issue takes so long to make it to the Federal Circuit that, based on the number of trial tribunal decisions that have addressed the issue, practitioners start to think of the issue, over time, as well-settled. Back in the 1990s, the General Services Board of Contract Appeals (GSBCA), which at that time possessed jurisdiction under the now-repealed Brooks Act to entertain bid protests in automated data processing equipment (ADP) procurements, established and then reestablished through a number of decisions issued over the course of several years that, if an agency was required but failed to obtain a delegation of procurement authority (DPA) from authorized sources before beginning a procurement, the agency could, in appropriate circumstances, remedy that failure after the fact. It was years before that issue was finally presented to the Federal Circuit, and, when it was, the court disagreed, holding in CACI, Inc. v. Stone that, if an agency is required to obtain a DPA for a particular procurement, agency actions to issue a solicitation and proceed through the procurement process without one are simply null and void. The dramatic effect that Federal Circuit guidance on legal issues like that can have on the way that agencies approach their procurement preparations shows the significance of obtaining the Federal Circuit’s guidance on issues of importance to the government contracting community.
Each year, the court issues decisions, like CACI, that challenge (or uphold) long-held understandings of the law or that resolve disagreements as to what the law is or should be. Last year was no exception. As an example, in Safeguard Base Operations, LLC v. United States,6 the Federal Circuit addressed an issue that was in the making for twenty-five years and had resulted in differing and sometimes conflicting views at the Court of Federal Claims. Prior to 1996, the Court of Federal Claims possessed jurisdiction under section 1491(a)(1) of the Tucker Act7 to entertain bid protests in pre-award situations, predicated on the theory that an implied-in-fact contract exists between the government and prospective bidders requiring the government fairly and honestly to consider bids when making an award decision. Post-award protests, however, were heard in the United States district courts. In 1996, Congress enacted the Administrative Dispute Resolution Act (ADRA), effectively transferring the district courts’ protest jurisdiction to the Court of Federal Claims and placing jurisdiction for all bid protest challenges—both pre-award and post-award—in a single court under the standard of review set forth in the Administrative Procedures Act (APA). After the ADRA was enacted, however, questions arose about whether implied-in-fact contract bid protest jurisdiction under the Tucker Act, with a standard of review that might differ from the APA standard, survived the ADRA’s enactment and remained a viable jurisdictional protest basis, as well as about whether the implied-in-fact contract bid protest theory might have been incorporated into the ADRA protest jurisdiction. Different judges of the Court of Federal Claims, over the years, came to different and conflicting conclusions about those issues, and it was only last year that the Federal Circuit stepped in conclusively to resolve those disagreements and provide precedential guidance that will direct parties’ actions in the future and decrease further litigation about them.
This Area Summary, to which the current law clerks for the Civilian Board of Contract Appeals (CBCA) have devoted significant time and energy to develop, marks the thirty-seventh year in which the American University Law Review has published an annual summary of significant Federal Circuit decisions from the prior year, which shows the Law Review’s commitment to provide a platform for practitioners and others involved in government contracting through which they can learn about the latest developments in how to interpret and understand legal issues that affect government contracts. For the fiscal year ending 2021, only four percent of the cases filed with the Federal Circuit were government contract cases, with the majority of the court’s docket having been focused on patent cases.10 Although that percentage might make it seem like government contracts have become a less important part of what the Federal Circuit hears, the percentage is not indicative of the significance of the Federal Circuit’s decisions on matters of procurement law to practitioners, contractors, and agency contracting officials. The Federal Circuit last year issued a number of decisions—both precedential and non-precedential—on a myriad of issues affecting bid protests and contract claims of which government contractors should be aware.
* Morgan Huston, Nicholas Feldstern, and Camille Chambers are Class of 2021 graduates of the George Washington University School of Law and Law Clerks at the U.S. Civilian Board of Contract Appeals (CBCA).
** Harold D. Lester, Jr., currently serves as Vice Chair of the U.S. Civilian Board of Contract Appeals (CBCA). Before joining the CBCA in 2014, Judge Lester spent more than twenty years litigating government contract claims as a trial attorney and then as an Assistant Director with the National Courts Section, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (DOJ), and, for thirteen of those years, led DOJ’s trial team defending lawsuits involving contracts for the disposal of spent nuclear fuel. He also worked for several years in private practice representing government contractors in bid protests and in developing and litigating contract claims. He received his J.D. from Washington & Lee University School of Law.