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There is another background factor relating to this which I think should be mentioned. I find that at the hearing before the Hébert committee in 1958, I said a good deal about the need for education in the Government contract field, particularly the need for more written materials. I felt that these were especially important for the small businessman and his counsel, and said so at that time.

Since then there has been a lot of progress with the education campaign, and a very considerable increase in the written materials on the subject of Government contract law. A widespread use of board of contract appeals decisions has developed and the number of litigated cases has, I think, substantially increased. These factors have perhaps put the boards more in the spotlight; and so have focused attention on the differences between the boards, particularly where their rules of practice are concerned. These differences in the rules are hard to follow. A lawyer practicing under one set of rules has difficulty adjusting to different rules, and such differences often contain pitfalls for the unwary.

It would be much simpler for the contractor and his counsel-and particularly for a small businessman, and for a lawyer not too familiar with this field-if there were a single set of rules of practice for all boards, supplemented by any special provisions needed for practice before any particular board.

This appears to me to be clearly desirable. But I think we should face the practicable obstacles which lie in the way, and try to overcome them. Our Government has an enormous proliferation of monolithic departments and independent agencies. As a result, it appears to be fragmented into large compartments which communicate with each other only some of the time. In addition, communication between subordinate agencies of great departments is very difficult. I think there is a natural feeling on the part of subordinate agencies, such as boards of contract appeals, that they lack the authority to collaborate with a subordinate agency of another department on any specific project. But I think there is a way out, so far as getting up uniform rules of practice is concerned, and that this committee can provide it. Perhaps this is a heretical suggestion, Mr. Chairman, but it is a bright, sunny day and I guess I am as bold and brave as I ever will be, so this is my suggestion.

I would like to respectfully suggest that the chairman of this committee write a letter to the Secretary of Defense requesting him to instruct the Chairman of the oldest and largest Board, the Armed Services Board of Contract Appeals, to take the initiative to ask the chairmen of the other boards to join with him in forming an informal Council of Board Chairmen. The letter should also ask that such a Council consider the development of a uniform set of rules of practice, to the extent practicable. I also suggest that similar letters go to the heads of other departments and agencies having boards of contract appeals, asking that their board chairmen be requested to cooperate in the venture. And the letter, I submit, should also ask that the Council to be formed should be charged, in addition, with the mission of a continuing search for improvement in board procedure and the right to make recommendations to agency and department heads. And I would also like to suggest that such a Council have, as associate members, a representative from each of the Ameri

can, Federal and District of Columbia Bar Associations, so that outside views may also be heard.

You may notice, Mr. Chairman, I suggest them as associate members rather than, perhaps, full members so that the board chairmen could meet with or without them as they wish.

Finally, such a letter would get this problem off dead center, Mr. Chairman, and should have every prospect of success.

I might add to that that I think the boards themselves, or the board chairmen, are the best sources for writing or getting up a uniform set of rules. For, after all, they are the people with the problems and with the workload. What is basically needed is a mechanical device to start the process of collaboration or cooperation between them, and this is the reason I suggest a letter from the chairman of this committee.

That concludes my affirmative testimony this afternoon. I will, of course, be happy to try to answer any questions with respect to what I just testified to; and I shall be happy to run through your questions if you wish me to.

Senator MONTOYA. Do you think that a general or a uniform set of rules could be easily made adaptable to all the departments of Government dealing in contract appeals?

Mr. vom Baur. Yes, sir; Î do. May I extend my answer a little bit?

First of all, there are certain principal mechanics of litigation which naturally run through every lawsuit, whether a judicial proceeding, or proceedings of administrative agencies, including those of boards of contract appeals. These include pleadings, motions, depositions, discovery, interrogatories, trial briefs, and so forth. These are staple subjects which I think could be covered probably by a single set of rules.

In addition, I think there may be a few special wrinkles because of statutory provisions, special regulations, or historical conditions affecting a particular department or agency, which might require special treatment for a particular agency.

What I envisage, Mr. Chairman, is a uniform set of rules covering all the staple mechanics of litigation and then, if necessary-and I would hope it would not be necessary, but I would leave the door open-a few additional rules for particular activities before particular agencies.

Senator MONTOYA. Thank you very much, sir.

Prof. John W. Whelan, Georgetown University.

You are certainly welcome before this committee, Professor Whelan. STATEMENT OF PROF. JOHN W. WHELAN, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C.

Professor WHELAN. Thank you, sir. With your leave, I would like to summarize my statement rather than read it in full.

Senator MONTOYA. Fine. Your entire statement as submitted to the committee will be made a part of the record in full and you may proceed to add to it or subtract from it, as you wish.

Professor WHELAN. Perhaps the last would be most advisable.

Thank you very much. I would like to say that this statement is probably the sort of thing a professor is usually accused of making. It is intended to be speculative and intended to be rather wide ranging. It seems to me the committee is really considering the subject of remedies under Government contracts.

Senator MONTOYA. May I ask you this question before you proceed any further? Will you give your specific background for the record? Professor WHELAN. I have been in the field of Government contract law on the academic side since about 1951, beginning with teaching at the Army JAG School for a period of 5 years. I followed that with teaching at the University of Virginia Law School, and at the University of Wisconsin Law School, and, since 1959, at Georgetown Law School. I was graduated from Georgetown in 1948.

Senator MONTOYA. Thank you. I graduated in 1939 from Georgetown Law School.

Professor WHELAN. The remedial aspects of the Government contract is, I think, one of the most intriguing aspects of the subject. What you have taken on here is, I think, a part of the large picture, and it would be only fair briefly to state the whole picture.

What we are actually concerned with is the impact of the jurisdiction of boards of contract appeals upon a very complicated relationship. I think it is fair to say that most disputes in Government contracts are probably resolved by agreements and that our "Disputes" clause points that out. But, aside from such agreements, there are, of course, disagreements, and the contractor has a fairly wide range of remedial armory on which to rely. He may go to the Court of Claims or to the Comptroller General without detail on what he will do in either place. Certainly he has those remedies available to him. He may also go to the board of contract appeals, and I think the interrelationship among these agencies is one of the most important things that can be dealt with here.

It seems to me in this connection we have to focus on the fact that the biggest problem, putting it in the most basic statement I can, is this: What should be the finality of decisions among these competing Government instrumentalities? We have the Court of Claims. We have the boards of contract appeals. And we have the General Accounting Office. Should there not be some place, as the ordinary citizen can find a place for his rent claim, automobile negligence claim, for him to get an initial decision which is a final one subject to what we tend to think of as the normal review procedure before the appellate body?

In this case he is entitled to only one trial. He is entitled to review perhaps on two levels, depending upon the State's judicial system or upon his access to the Federal judicial system. One trial with initial legal finality. And I think perhaps this is a framework which we as yet lack in Government contracts. If we had this framework, there would be less talk and less need to talk about fragmentation of remedies, which is one of the current and quite reasonable complaints of many people dealing with the field.

Now, assuming that there should be such a finality of initial judgment on this level, what would be the appropriate forum? I think this committee is perhaps the body best situated to state an answer to

that question, but I can suggest, I believe, some other things that might well be considered in reaching that conclusion.

Senator MONTOYA. May I interpose this question at this time? Then, do I understand you to say, Professor, that you would not be in favor of the Comptroller General's continuing his reviewing power over Government contracts?

Professor WHELAN. No, sir. I don't mean anything so broad as that.

Senator MONTOYA. Well, then, you would still concede to the Comptroller General his continuing jurisdiction over any expenditures, even those that might involve the servicing of contract awards.

Professor WHELAN. Yes, sir. As I conceive of his jurisdiction, it falls in several important areas. One is the general subject of legality of expenditures on contracts, and that would include making of awards, negotiation of contracts, the allowability or nonallowability of cost items under those contracts, examination of records, and the many other phases of his activity which relate to the contractual activity of the executive branch. But I think one area in which he could perhaps be spared, if I may use that phrase, is in the remedial


Once we have an adversary proceeding, as I will point out should be had so that there can be an initial final judgment, I think that judgment should be final upon his office and upon all other offices of the Government just as the decision of the trial court is, in the negligence case, final upon all except the parties who make an appeal.

Senator MONTOYA. Well, which is it now, Professor? Should the Comptroller General be barred from reviewing a final decision by a Board of Contract Appeals?

Professor WHELAN. I think I would have to come to that conclusion if I follow the other lines of argument I have developed in this paper. Yes, I think he should.

Senator MONTOYA. That would require modification of the law which vests jurisdiction in the Comptroller General to do these very things.

Professor WHELAN. Well, the law speaks of the Comptroller General as having the power to settle and adjust finally all claims and demands in which the United States is involved as debtor or creditor. This, however, has never precluded some claim settlement functions from being taken from him.

For example, under the Federal Tort Claims Act, without particular amendment to 31 U.S.C. 71, which is his claims power, the settlement of the claim can be finally done administratively in the executive departments or can be done judicially.

Senator MONTOYA. Isn't that a statutory power that is given to the particular departments?

Professor WHELAN. Yes, sir, under the Federal Tort Claims Act. Senator MONTOYA. Whereas this is administrative power that has been assumed by the administrative departments without any statutory genesis.

Professor WHELAN. No statutory genesis, none at all, unless we regard the Wunderlich Act as being somewhat jurisdictional. If that provides for jurisdictional finality of board decisions on matters of fact, as it may well do, I think, perhaps this is a modification of

GAO's power. But I think this is not beyond contest and certainly the language is not so clear as to say that without any challenge.

Senator MONTOYA. Well, you would have great difficulty in convincing the Congress of the need for stripping the Comptroller General of review here

Professor WHELAN. I am sure

Senator MONTOYA (continuing). Because Congress, generally speaking, is very well satisfied with the function and role of the Comptroller General.

But I

Professor WHELAN. Yes, I am sure, Senator, that is true. think what I bespeak is not necessarily a stripping of the Comptroller General's proper functions as chief accounting officer of the Government. I think I speak more or less in line with the terms spoken by the second Hoover Commission in the same area.

Senator MONTOYA. You may proceed. I fully appreciate your argument and your advocacy of this viewpoint has a lot of merit, but in actual practice I can't fix in my mind as to whether or not it would be at all possible.

Professor WHELAN. It might well not be, and part of the reason I advocate it is I felt no one else was going to.

I do think that the subject needs a fresh viewpoint and the fresh viewpoint might commend itself to providing a single jurisdictional power to settle these claims. I think, assuming that there should be some finality of judgment, some place along the line the question becomes what is the appropriate forum for that, and in my opinion, pretty clearly the boards of contract appeals should be that initial forum for finality rather than the Court of Claims.

I think also that whether or not we reach this area of finality of judgment, we have to concern ourselves with the procedures and precise scope of jurisdiction of the boards of contract appeals. I think this is a subject which can be dealt with freely and completely only by statute in view of the fact that there are these competing claims by Government institutions for jurisdictional status.

I say that the ideal way of dealing with it would be a statute. I think that a contract clause can hardly do so. The Court of Claims quite rightly, I believe, lays clear claim to jurisdiction over questions of law, and this is generally confirmed by the Wunderlich Act. I think our problem is sharpened by the fact that the Court of Claims lays a firm claim to questions of law, because now we are faced with the unfortunate necessity of identifying them.

Professor PETROWITZ. Don't you also have the problem of the original jurisdiction that the Court of Claims asserts over Tucker Act issues? That is just

Professor WHELAN. Of course.

Professor PETROWITZ. That is just plain original jurisdiction.

Professor WHELAN. Of course. As a matter of fact, we have, as I see it now, room for two trials and one administrative claims settlement apparatus by statute. That is, before the GAO we have an administrative claim possibility. Then we have a trial before the board of contract appeals. And a trial possible, at least, before the Court of Claims.

Senator MONTOYA. Well, the so-called trial before the Comptroller General in his exercise of reviewing authority is certainly not an adversary proceeding.

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