2013 Government Contract Law Decisions of the Federal Circuit

INTRODUCTIONIn The Path of the Law, Oliver Wendell Holmes, Jr. described the legal profession as a study in prediction: people pay lawyers to argue and advise as to the circumstances under which courts will command the power of the state for or against the clients' interests.1 For government contract lawyers, the U.S. Court of Appeals for the Federal Circuit has the final word (in cases prosecuted that far) in all but a vanishing number of the thousands of bid protests and claims presented each year to procuring agencies, the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims, and other administrative and adjudicative bodies.2Perhaps the most striking aspect of the thirteen precedential Federal Circuit decisions discussed in this Article concerns the unpredictability, at the time of initial filing, of the journeys upon which these cases were embarking. A significant number of the tortuous and splintered histories of the cases discussed in this Article-as to forum, jurisdiction, and the merits-likely reflect the selection bias which predicts that the closest cases with the most uncertain outcomes are the ones most likely to be litigated to the fullest extent possible.3 Drawing from Holmes, through the application of the Federal Circuit's most recent prophecies of the past,4 we may become more accurate handicappers and better advocates of our clients' disputes, and thereby better advise when to say Enough! or More! in negotiations or as to contemplated additional legal process.I. JURISDICTIONIf it is true that we long for clarity but find fascinating,5 the lawyers litigating the four precedential jurisdictional cases in the 2013 Federal Circuit government contracts corpus enjoyed an enthralling trip to these decisions.6 Consider the following.U.S. Marine, Inc. (USM) thought it had properly asserted a tort claim against the U.S. Navy for sharing, without permission, its proprietary boat design with another contractor.7 Tort claims against the government must be filed in federal district court, and the Federal Circuit left little doubt that it agreed with the contractor.8 But because a split U.S. Court of Appeals for the Fifth Circuit previously had ruled that USM essentially had a breach of contract claim that belonged exclusively in the Court of Federal Claims (a decision the Federal Circuit had no power to overrule), rather than leave a legitimate claimant without a forum, the Federal Circuit demurred, and held that USM could proceed on a contract theory in the Court of Federal Claims.9Sharp Electronics (Sharp) and its government adversary agreed that Sharp properly submitted its claim regarding a delivery order from a General Services Administration (GSA) schedule contract to the ordering agency contracting officer.10 Imagine the lawyers' surprise when the contract appeals board sua sponte found that it lacked jurisdiction because, under the Contract Disputes Act,11 Sharp Electronics should have instead brought the claim to the GSA schedule contracting officer.12 After the parties' jurisdictional assumption was upended, they certainly faced fascinating uncertainty on the question before the Federal Circuit.13When Marvin Brandt and the government filed cross suits to determine who held the reversionary interest in an abandoned railroad right-of-way, and, if the government owned the property interest, whether and how much compensation the government owed Brandt, little could the parties have known how much new law their case, eventually fractured, would produce. After eight years of litigation, Brandt's case gave rise to new procedural law when, after Brandt lost the reversionary interest issue in the trial court, the Federal Circuit allowed Brandt to refile the compensation question in the Court of Federal Claims before he appealed the property interest issue to the U.S. Court of Appeals for the Tenth Circuit.14 In March 2014, however, the Supreme Court rendered the compensation question moot when it held that the reversionary interest vested in Brandt, not the government. …