Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
may seek judicial review <strong>of</strong> a board decision
adverse to <strong>the</strong> Government.
If <strong>the</strong> dispute is not administratively redressable
under <strong>the</strong> terms <strong>of</strong> <strong>the</strong> contract, <strong>the</strong>
contractor's remedy is to file suit directly in
ei<strong>the</strong>r <strong>the</strong> Court <strong>of</strong> Claims or a U.S. district
court, thus bypassing <strong>the</strong> boards <strong>of</strong> contract
appeals.
Certiorari to <strong>the</strong> Supreme Court may be requested
by ei<strong>the</strong>r party directly from decisions
<strong>of</strong> <strong>the</strong> Court <strong>of</strong> Claims or <strong>the</strong> U.S. courts <strong>of</strong> appeals.
Summary <strong>of</strong> Findings
LACK OF SPEED AND DUE PROCESS
We have concluded that <strong>the</strong> present system
for resolving contract disputes needs significant
institutional and substantive change if it
is to provide effective justice to <strong>the</strong> contractors
and <strong>the</strong> Government.
On <strong>the</strong> one side, <strong>the</strong> system is <strong>of</strong>ten too expensive
and time-consuming for efficient and
fair resolution <strong>of</strong> claims. Small businesses, or
any business with a relatively small claim,
<strong>of</strong>ten find that <strong>the</strong> money required to pursue
a claim equals or exceeds <strong>the</strong> amount <strong>of</strong> <strong>the</strong>
claim. The result is that contractors with
enough money to finance litigation under <strong>the</strong>
system may recover; contractors without
enough money cannot. Even if recovery <strong>of</strong> a
small claim is made, <strong>the</strong> relative cost <strong>of</strong> that
recovery represents a waste <strong>of</strong> resources.
On <strong>the</strong> o<strong>the</strong>r side, <strong>the</strong> present system <strong>of</strong>ten
fails to provide <strong>the</strong> procedural safeguards and
o<strong>the</strong>r elements <strong>of</strong> due process that should be
<strong>the</strong> right <strong>of</strong> litigants. Contractors are now
forced to process most disputes through a system
<strong>of</strong> agency boards <strong>of</strong> contract appeals that,
while essentially independent and objective
forums, do not possess <strong>the</strong> procedural authority
or machinery to ensure that all <strong>the</strong> relevant
facts and issues in complicated cases are
brought before <strong>the</strong> boards and given adequate
consideration. The boards lack adequate discovery
and subpoena powers. The procedural
safeguards in <strong>the</strong> boards and <strong>the</strong> quality and
independence <strong>of</strong> <strong>the</strong> board members are uneven.
Yet, because <strong>of</strong> <strong>the</strong> Wunderlich Act and
judicial interpretation <strong>of</strong> it, <strong>the</strong> findings <strong>of</strong>
fact by <strong>the</strong> boards are essentially final on subsequent
judicial review. While most if not all
boards appear to be independent <strong>of</strong> control by
<strong>the</strong>ir agencies, <strong>the</strong> board members are appointed
by <strong>the</strong> agencies and must depend on
<strong>the</strong>m for career advancement.
CONTRACTOR FRUSTRATION
The present disputes-resolving procedures
are leading to increased contractor frustration
and disillusionment. This widespread view has
been clear in every type <strong>of</strong> input received by
<strong>the</strong> <strong>Commission</strong>, including open hearings, answers
to questionnaires, and individual letters
and recommendations. Government procurement
is based primarily on open competition,
but without sufficient incentive to compete,
competition cannot be achieved. It is essential
to <strong>the</strong> competitive system that <strong>the</strong>re be a sufficient
number <strong>of</strong> prospective or actual competitors
in <strong>the</strong> procurement process. If <strong>the</strong>
concerns about inequities and inefficiencies in
disputes-resolving procedures cause potential
contractors to avoid Government work, <strong>the</strong>
procurement process will suffer.
LACK OF PLANNING
We found no evidence <strong>of</strong> an overall plan or
program to improve <strong>the</strong> method <strong>of</strong> handling
contract disputes. The present system appears
to be more evolutionary in nature following <strong>the</strong>
enactment <strong>of</strong> <strong>the</strong> Wunderlich Act and a series
<strong>of</strong> later court decisions that have tended to
judicialize <strong>the</strong> administrative procedures by
placing more emphasis on due process, independence
<strong>of</strong> boards, judicial review <strong>of</strong> board
decisions, and remand practice. This has led
<strong>the</strong> boards to adopt more judicial-like procedures,
and to demands for o<strong>the</strong>r procedures
such as discovery and subpoena powers. At <strong>the</strong>
same time most <strong>of</strong> <strong>the</strong> boards have attempted
to maintain a degree <strong>of</strong> flexibility and informality
not usually found in court procedures.
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