Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity

41 Pages Posted: 12 Jun 2012 Last revised: 14 Jun 2012

Steven L. Schooner

George Washington University - Law School

Pamela Kovacs

George Washington University - Law School

Date Written: 2012

Abstract

In M. Maropakis Carpentry v. United States, the U.S. Court of Appeals for the Federal Circuit upset the commonly understood rules of practice and procedure for government contracts dispute litigation. In what the Supreme Court might view as a drive-by jurisdictional ruling, the court held that a contractor must file its own claim for time extensions before it can defend against a government claim for liquidated damages. Two Court of Federal Claims cases then confirmed fears that the decision would create a significant, disruptive, and disadvantageous change in procedural posture for a large number of contractors defending against government claims. If unchecked, Maropakis may reflect one of the most significant changes in government-contracts litigation posture since the flurry of jurisdictional litigation following the late-1970s enactment of the Contract Disputes Act.

Courts make mistakes, but such errors need not indefinitely lead to inefficient, ineffective, or unfair results. The Federal Circuit should revisit the substance of Maropakis, en banc, at the first opportunity. Until then, contractor counsel should seek en banc review in any related cases or, where appropriate, consider amicus briefing. The Justice Department’s attorneys should exercise their discretion and refrain from exploiting Maropakis. Contractor counsel should craft arguments that persuade individual COFC judges to avoid the harsh and inefficient application of Maropakis. Administrative judges on the agency boards of contract appeals should stay the course and, if necessary, distinguish Maropakis. And, if the Federal Circuit fails to remedy the situation, Congress should craft and enact a legislative solution.

Keywords: Government contracts, Federal Circuit, affirmative defense, government claim, Contract Disputes Act, contract administration, fairness to contractors

JEL Classification: H57, K12, K41

Suggested Citation

Schooner, Steven L. and Kovacs, Pamela, Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity (2012). 21 Federal Circuit Bar Journal 686 (2012); GWU Legal Studies Research Paper No. 2012-51; GWU Law School Public Law Research Paper No. 2012-51. Available at SSRN: https://ssrn.com/abstract=2083157

Steven L. Schooner (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-3037 (Phone)
202-994-5614 (Fax)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=1740%20

Pamela Kovacs

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Paper statistics

Downloads
167
Rank
147,996
Abstract Views
939