What Next? A Heuristic Approach to Revitalizing the Contract Disputes Act of 1978

Abstract:     
This essay, included in a 1999 special issue examining the Contract Disputes Act (CDA) of 1978 at its twentieth anniversary, begins from the premise that the statute's critics have valid reason to perceive that the CDA fails to provide a "fair and balanced system of administrative and judicial procedures for the settlement of claims and disputes." The essay suggests a framework for a meaningful debate over what an improved and invigorated CDA should look like but, in the end, raises more questions than it answers. Its purpose is heuristic; to frame a debate (which many feel is long overdue) as to what the CDA should do and how it should do so. It introduces a then-recent effort to articulate core principles for government procurement dispute resolution, then deems the effort an unsatisfactory platform for heuristic analysis. It attempts to determine the necessity for a dispute resolution statute and suggests that the fundamental purpose for such legislation is no more than to waive the Federal Government's immunity from suit. The essay then turns to the breadth of an appropriate waiver. Finally, it examines a number of issues, such as the nature of judicial and administrative fora and the certification requirement, that permeate our present system. The essay concludes by suggesting, at very least, that we should ask the difficult questions.

Number of Pages in PDF File: 23

Keywords: Contract Disputes Act, litigation, sovereign immunity, administrative judges, boards of contract appeals, Court of Federal Claims, specialized courts

JEL Classification: H57, K23, K41

Accepted Paper Series