Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
board work suffers. Finally, <strong>the</strong> lack <strong>of</strong> uniformity
in rules and procedures among agency
boards and <strong>the</strong> use <strong>of</strong> non-lawyer board members
who are not sufficiently familiar with <strong>the</strong>
adjudication process have been frequent subjects
<strong>of</strong> criticism.
These criticisms are all aimed at <strong>the</strong> general
standards <strong>of</strong> individual agency boards, ra<strong>the</strong>r
than <strong>the</strong> institutional criticism <strong>of</strong> <strong>the</strong> sort discussed
in <strong>the</strong> previous two paragraphs. The
fact that <strong>the</strong>re are numerous boards presently
in operation invites comparison, and although
some degree <strong>of</strong> individuality between boards
quite likely is valuable, many believe that some
minimum standards for <strong>the</strong> general operation
<strong>of</strong> boards should be adopted.
Fundamental Approaches to <strong>the</strong> Boards
After considering a wide range <strong>of</strong> proposals,
we concentrated our study and analysis on
what appeared to be <strong>the</strong> two best alternative
approaches to meeting <strong>the</strong> problems concerning
<strong>the</strong> present agency boards <strong>of</strong> contract appeals.
Both approaches recognize <strong>the</strong> fact that
<strong>the</strong> agency boards are presently <strong>the</strong> centerpieces
<strong>of</strong> <strong>the</strong> disputes-resolving system. Thus,
<strong>the</strong> ultimate organization <strong>of</strong> those boards<strong>the</strong>ir
method <strong>of</strong> operation, jurisdiction, independence,
and degree <strong>of</strong> formality and due
process-has a decisive impact on <strong>the</strong> remaining
elements <strong>of</strong> <strong>the</strong> system.
The first approach essentially would treat
<strong>the</strong> agency boards <strong>of</strong> contract appeals as tools
<strong>of</strong> management designed more to produce negotiated
settlements <strong>of</strong> disputes ra<strong>the</strong>r than to
adjudicate <strong>the</strong> disputes in a court-like proceeding.
The boards would act truly as an alter ego
<strong>of</strong> <strong>the</strong> head <strong>of</strong> <strong>the</strong> procuring agency, and would
provide a forum where contracting <strong>of</strong>ficer decisions
could be reviewed objectively. The
boards would issue a recommended decision
that would be adopted, modified, or rejected by
<strong>the</strong> agency head. A contractor receiving an
adverse decision would have a right to a de
novo trial in court, but <strong>the</strong> Government would
be bound by a decision adverse to it, as an
accord and satisfaction. Both parties before
<strong>the</strong> board would be permitted to submit evi-
dence, examine and cross-examine witnesses,
and submit written arguments, but <strong>the</strong> proceedings
would be characterized by informality,
speed, and low cost. No elaborate opinion
would be issued by <strong>the</strong> board, just a statement
<strong>of</strong> <strong>the</strong> decision. The boards, in effect, would be
restored to something close to <strong>the</strong> role envisioned
for <strong>the</strong>m when <strong>the</strong> present boards
were first established after World War II.
The second approach would treat <strong>the</strong> agency
boards as essentially independent, quasi-judicial
tribunals and would streng<strong>the</strong>n <strong>the</strong>ir operation
by adding procedural safeguards to
ensure <strong>the</strong> independence and objectivity <strong>of</strong> <strong>the</strong>
board members and improve <strong>the</strong> quality
<strong>of</strong> <strong>the</strong> board record.
The Need for a Flexible System
The boards <strong>of</strong> contract appeals originally
were designed to provide a swift, inexpensive
method <strong>of</strong> resolving contract disputes. Their
operations and procedures have, however, been
changed over <strong>the</strong> years by <strong>the</strong> demand and requirement
for due process. Because <strong>of</strong> Supreme
Court decisions and <strong>the</strong> Wunderlich Act, contractors
and <strong>the</strong>ir counsel have become increasingly
aware that a hearing before an agency
board was <strong>of</strong>ten <strong>the</strong>ir only opportunity fully
to develop and present <strong>the</strong>ir case. As a consequence,
<strong>the</strong> parties pressed for adoption and
implementation at <strong>the</strong> board level <strong>of</strong> all procedures
associated with due process: full discovery,
filing <strong>of</strong> responsive pleadings and
briefs, and thorough adversary hearings with
witness cross-examination. The dictates <strong>of</strong> justice
in <strong>the</strong>se disputes have emphasized thoroughness
and due process at <strong>the</strong> expense <strong>of</strong>
both speed and cost, and <strong>the</strong> procedures <strong>of</strong> <strong>the</strong>
boards have thus become increasingly formalized
through demands by contractors and <strong>the</strong>ir
counsel that fur<strong>the</strong>r safeguards be afforded
<strong>the</strong>m.
But <strong>the</strong> present procedures nei<strong>the</strong>r provide
full due process for <strong>the</strong> large, important
claims, nor a speedy, economical ,administrative
remedy for resolution <strong>of</strong> small claims. By
compromising <strong>the</strong>se inherent contradictions in
<strong>the</strong> agency board system, nei<strong>the</strong>r has been met
adequately.
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