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28 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.
Legal and Administrative Remedies GAO Review <strong>of</strong> Agency Award Protest Procedures and Practices Recommendation 20. Conduct periodic reviews by GAO <strong>of</strong> agency award protest procedures and practices. GAO conducts hundreds <strong>of</strong> independent audits and reviews <strong>of</strong> executive branch programs that are "intended to give <strong>the</strong> Congress, as well as <strong>the</strong> agency heads, an objective appraisal <strong>of</strong> <strong>the</strong> operations <strong>of</strong> <strong>the</strong> agency or activity covered which ... need congressional or executive branch attention."" However, GAO does 93 Statement <strong>of</strong> Hen, Elmer B. staats, Comptroller General <strong>of</strong> <strong>the</strong> United States, Hearings on <strong>the</strong> Capability <strong>of</strong> GAO to AnalYze not regularly conduct comprehensive reviews <strong>of</strong> agency award protest procedures and practices. We believe that periodic, objective appraisal <strong>of</strong> agency award protest procedures and practices is desirable as a means <strong>of</strong> calling attention to management practices that must be corrected if protests are going to be reduced. Such a regular review would assist in achieving <strong>the</strong> comprehensive and coordinated set <strong>of</strong> award protest procedures that <strong>the</strong> award protest system needs. and Audit DeffJn8e ExpendituTC6 Before <strong>the</strong> SubC01nm. on Executive Reorganization <strong>of</strong> <strong>the</strong> Senate Com?uittee or. Government OPerations, stst Cong., 1st Sese., Exhibit I, at 29 (1969). l f 49
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