Report of the Commission on Government ... - Bayhdolecentral

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litigation once it has reached <strong>the</strong> review level
and to make whatever findings are required.
They believe that <strong>the</strong> delay resulting from
<strong>the</strong> requirement that <strong>the</strong> case be remanded to a
busy board is too great a price to pay for
maintaining <strong>the</strong> distinction between factfinding
and reviewing findings <strong>of</strong> law and is,
fur<strong>the</strong>rmore, a waste <strong>of</strong> <strong>the</strong> readily accessible
factfinding mechanism available in <strong>the</strong> court.
O<strong>the</strong>rs believe that <strong>the</strong> present remand
practice, since it involves primarily a referral
for determination <strong>of</strong> quantum, is appropriate,
since <strong>the</strong> boards are a forum where <strong>the</strong> agency
<strong>of</strong>ficials can deal directly with <strong>the</strong> contractor
and frequently negotiate a reasonable settlement
without requiring a full hearing. The
responsibility and authority for settlement is
primarily in <strong>the</strong> agency, and a consideration
<strong>of</strong> what is a reasonable contract adjustment
requires <strong>the</strong> first-hand knowledge <strong>of</strong> those Government
<strong>of</strong>ficials responsible for administering
<strong>the</strong> contract, especially <strong>the</strong> contracting <strong>of</strong>ficer.
Finally, <strong>the</strong>re is concern that to permit <strong>the</strong>
courts to open <strong>the</strong> board record and admit new
evidence on a particular factual question is to
risk de novo review <strong>of</strong> o<strong>the</strong>r questions as well,
since <strong>the</strong> bounds <strong>of</strong> such a hearing will be
difficult or impossible to define.
The present judicial review process does not
contribute to speedy and economical resolution
<strong>of</strong> disputes. The limitations and uncertainties
appear to have increased emphasis on procedures
that can have a resultant ping-pong effect
between <strong>the</strong> boards and <strong>the</strong> courts, while
<strong>the</strong> substance <strong>of</strong> <strong>the</strong> case is largely ignored.
This, along with <strong>the</strong> lengthy time period
needed to initiate court action in <strong>the</strong> first
place, can make a case stale since a board <strong>of</strong>
contract appeals may not be directed to reopen
a case until several years after its initial decision.
During such an interval, witnesses and
records for both sides may be lost or become
difficult to find.
Although <strong>the</strong> boards <strong>of</strong> contract appeals
should be streng<strong>the</strong>ned in ways that will contribute
to making better records and decisions,
we see no advantage in continuing <strong>the</strong> rigid
Wunderlich Act review standards and remand
practice. The system would be more responsive
to <strong>the</strong> interests <strong>of</strong> economy and fair treatment
if <strong>the</strong> courts were allowed discretion to supplement
<strong>the</strong> board record with additional
Part G
evidence where appropriate and to take appropriate
action to resolve <strong>the</strong> dispute. This should
not foreclose <strong>the</strong> discretion to remand a case
to an agency board <strong>of</strong> contract appeals. However,
<strong>the</strong> delay and added expense resulting
from a mandatory remand procedure is too
great a price to pay. Considering <strong>the</strong> factfinding
mechanism available in <strong>the</strong> judicial
forums-particularly <strong>the</strong> Court <strong>of</strong> Claims-and
<strong>the</strong> limited number <strong>of</strong> contract disputes that
are litigated in <strong>the</strong> courts, revisions in <strong>the</strong>
standards for scope <strong>of</strong> review and remand
should benefit both contractors and <strong>the</strong> Government.«
District Court Jurisdiction
Recommendation 10. Increase <strong>the</strong> monetary
jurisdictional limit <strong>of</strong> <strong>the</strong> district courts to
$100,000.*
The Tucker Act was intended to create an
integrated jurisdictional plan so that <strong>the</strong> Court
<strong>of</strong> Claims and <strong>the</strong> U.S. district courts could
<strong>of</strong>fer an equal opportunity for a fair trial <strong>of</strong>
like claims within <strong>the</strong> stated jurisdictional
amount <strong>of</strong> <strong>the</strong> district courts. The act was
intended in part to release <strong>the</strong> pressure put on
Congress by individuals for private bills to
terminate disputes. It also was intended to
allow those with small claims to bring suit in
<strong>the</strong> district in which <strong>the</strong>y and <strong>the</strong>ir witnesses
resided without incurring <strong>the</strong> expense and inconvenience
<strong>of</strong> litigation in Washington.
These remain valid reasons for giving <strong>the</strong>
district courts a role in <strong>the</strong> disputes-resolving
process, although in recent years that role has
greatly diminished, largely because inflation
has made <strong>the</strong> present jurisdictional limit <strong>of</strong>
$10,000 far too low. It is clear that this limit
must be raised if <strong>the</strong> district courts are to
play an effective role in <strong>the</strong> process.
Expanding <strong>the</strong> district court jurisdiction to
$100,000 would broaden <strong>the</strong> base <strong>of</strong> Government
contract law by involving a greater
52 Pub. L. No. 92-415, signed by <strong>the</strong> President in Sept. 1972,
grants <strong>the</strong> court <strong>the</strong> power to remand with such "directions" as it
may deem propel' and just. Our recommendation would give <strong>the</strong>
court <strong>the</strong> additional power to take additional evidence itself instead
<strong>of</strong> remanding, In addition, Rep. Caller in May 1972 introduced a bill
(H.R. 14726) that would amend <strong>the</strong> Wunderlich Act to grant <strong>the</strong>
contractor a de novo review <strong>of</strong> an adverse board decision with,
however, <strong>the</strong> board decision heat-ing' a presumption <strong>of</strong> correctness.
«gee dissenting position, infra.