American University Law Review
August, 1998
SURVEY OF GOVERNMENT CONTRACT CASES
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT: 1997 IN REVIEW
Lionel M. Lavenue*
INTRODUCTION
The United States Court of Appeals for the Federal Circuit decided 108 government contract cases in 1997. In comparison, the Federal Circuit issued twenty-three government contract decisions in 1996, fifty-seven in 1995, twenty-two in 1994, forty in 1993, twenty-one in 1992, thirty-one in 1991, and more than thirty decisions in 1990. Thirty of the 108 decisions in 1997 were appeals from the Court of Federal Claims; seventy-six came from the Boards of Contract Ap-peals. By a substantial margin, most (forty-nine) of the appeals from agency boards were from the Armed Services Board of Contract Appeals ("ASBCA"), while fourteen came from the General Services Board of Contract Appeals ("GSBCA"), three from the Corps of En-gineers Board of Contract Appeals ("ENGBCA"), two from the De-partment of Agriculture Board of Contract Appeals ("AGBCA"), three from the Postal Service Board of Contract Appeals ("PSBCA"), two each from the Department of Veterans Affairs Board of Contract Appeals ("VABCA") and the Department of Transportation Board of Contract Appeals ("TRANSBCA"), and one from the Department of Interior Board of Contract Appeals ("DOIBCA"). The Federal Circuit reversed, in whole or in part, twenty-two percent of the lower-court decisions. Furthermore, well over half (fifty-eight percent) of the decisions were nonprecedential.
This Article presents an analysis of the significant 1997 preceden-tial cases decided by the Federal Circuit as well as a summary of the more significant unpublished cases. A summary of the precedential cases spans Parts I-V. Part I presents the cases in which jurisdiction was the principal issue. Part II discusses the appeals dealing with the formation of contracts. Similarly, Part III examines the appeals con-cerning the administration of contracts. Part IV addresses cases in-volving cost and pricing issues. Part V analyzes the cases resolving is-sues dealing with damages. Part VI summarizes many of the significant unpublished decisions issued in 1997. In conclusion, the Article summarizes the one government contract case decided in 1997 by the United States Supreme Court. In addition, this section provides a summary overview of the most significant government contract decisions issued by the Federal Circuit in 1997. Finally, in a prospective, the Article provides some comments and recommenda-tions for government contract practitioners before the Federal Circuit.
* Associate, Finnegan, Henderson, Farabow, Garrett, & Dunner, L.L.P., Washington, DC; Fulbright Scholar (1996-97), Max Planck Institute for Foreign and International Patent, Copyright, and Competition Law, Munich, Germany; Law Clerk (1994-96), Chief Judge Glenn L. Archer, Jr., United States Court of Appeals for the Federal Circuit; Law Clerk (1992-94), Judge Robert J. Yock, United States Court of Federal Claims (formally United States Claims Court); B.A., 1988, Vanderbilt University; J.D., 1992, Washington College of Law, The American University; LL.M. (Patent and Intellectual Property Law and Government Procurement Law), 1994, The National Law Center, George Washington University; M.S. (Information Systems), 1997, School of Information Technology & Engineering, George Mason University.
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