Eyes on the Prize, Head in the Sand: Filling the Due Process Vacuum in Federally Administered Contests

44 Pages Posted: 26 Mar 2015

See all articles by Steven L. Schooner

Steven L. Schooner

George Washington University - Law School

Nathaniel Castellano

Arnold & Porter; George Washington University - Law School

Date Written: 2015

Abstract

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at worst, cheated by their government. Disgruntled contestants do not always walk away quietly. Although the government is zealously promoting prize contests, it is failing to provide any obvious means of obtaining due process - or any meaningful review - of agency administration of those contests. The article suggests that the government’s aggressive promotion of prize contests without anticipating and facilitating dispute resolution represents an exercise of head-in-the-sand denial. Accordingly, the article considers potential jurisdictional arguments that disappointed contestants may deploy to litigate prize disputes against the federal government. It also calls upon Congress to intervene to eliminate - or at least truncate - costly and inefficient jurisdictional litigation over prize contest disputes by mandating where and how prize contest disputes will be resolved.

Keywords: contracts, grants, prizes, contests, challenges, innovation, dispute resolution, bid protests, implied contracts, research and development, unilateral contracts

JEL Classification: H57, K23, L33, O31

Suggested Citation

Schooner, Steven L. and Castellano, Nathaniel, Eyes on the Prize, Head in the Sand: Filling the Due Process Vacuum in Federally Administered Contests (2015). 24 Federal Circuit Bar Journal 391 (2015); GWU Legal Studies Research Paper No. 2015-5; GWU Law School Public Law Research Paper No. 2015-5. Available at SSRN: https://ssrn.com/abstract=2584926

Steven L. Schooner (Contact Author)

George Washington University - Law School ( email )

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HOME PAGE: http://www.law.gwu.edu/steven-l-schooner

Nathaniel Castellano

Arnold & Porter ( email )

601 Massachusetts Ave, NW
Washington, DC 20001
United States

George Washington University - Law School ( email )

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

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