finding by review panel and concurring hearing officer that there is a viable “equitable claim only upon a demonstration of ‘some unjustified governmental action that caused damage to the claimants.’ ”
How later courts described this case
- finding by review panel and concurring hearing officer that there is a viable “equitable claim only upon a demonstration of ‘some unjustified governmental action that caused damage to the claimants.’ ”
Written by the judges who cited it.
The opinion
MEROW, Judge,
concurring.
In addition to subscribing fully to the Review Panel’s opinion, I write separately to question plaintiff’s pursuit of relief by means of the congressional reference process. Throughout the course of this litigation plaintiff had available to it the opportunity to pursue relief under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1988). And, on the theories on which this case was presented to the hearing officer, that available remedy was fully adequate to provide the relief requested. For example, if duress were present, Modification No. 5 could have been ruled invalid. See Aircraft Assoc. & Mfg. Co. v. United States, 174 Ct.Cl. 886 , 357 F.2d 373 (1966).
Absent a good reason, congressional reference should not be sanctioned as an alternative to the comprehensive CDA procedure which Congress has mandated for most government contract disputes. Congress has traditionally required that available administrative and legal remedies be exhausted before congressional reference action is undertaken. Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am.U.L.Rev., 595, 613 (1976). Had Spalding promptly asserted its claim under the CDA, as contractors are expected to do, the answer regarding contract rights now reached by the Review Panel would have occurred at a much earlier date and with far less time and expense for all concerned. It is doubtful that any congressional reference would then have followed but, if so, Congress would at least have had the benefit of a ruling on Spald-ing’s claim under the CDA before making its decision whether to initiate the reference procedure.
Thus, Spalding’s failure to exhaust its CDA remedy has unduly prolonged this controversy to the detriment of all concerned and constitutes a further reason to recommend that congressional relief be denied.