In contractor’s action to review discrete board findings regarding computation method, Government could not attack other administrative findings by counterclaim
How later courts described this case
- In contractor’s action to review discrete board findings regarding computation method, Government could not attack other administrative findings by counterclaim
- restrictions on the right of the Government to make claims in Government contract cases
Written by the judges who cited it.
The opinion
Bennett, Judge,
concurring:
I concur in the opinion of the court hut with great respect for the separate views of Judge Nichols who points to many potholes in the road laid out by the majority opinion. I am concerned that the standard of what is a “dispute,” as announced by Judge Davis, be strictly delineated and applied to the extent the guidelines permit. This court has not today, as I understand its intention, given the Government an open door through which to file an appeal, by counterclaim, to the administrative decision in every case docketed in this court. There must be a clear and overriding nexus between the claim brought by plaintiff and the administrative finding which the Government challenges before any Government counterclaim can be accepted for consideration. This case, and our decision today in Northland Camps, Inc. v. United States, post at 761, surely show the difficulty inherent in deciding cases under Wunderlich Act standards which continue to evolve as courts try to interpret and apply this act. Too often, as here, this court finds itself required to be more concerned with the methods of our analysis and procedures rather than with the merits of the case before us. This judicial anomalism seriously invites legislative action, perhaps along the lines of some of the recommendations suggested by the Commission on Government Procurement. Report of the Commission on Government Procurement, Vols. 1-4 (1972), GPO Stock Nos. 5255-00002, -00008, -00004, and -00006, established by Pub. L. No. 91-129, 83 Stat. 269, as amended by Pub. L. No. 92-47, 85 Stat. 102. * Judicial time can surely be more profitably spent than in the hair-splitting and exercise of legal intuition necessitated by efforts now required to make any sense out of the Wunderlich Act. The games that lawyers like to play do not entertain the clients who must pay the price of admission and who are confused by the rules which are made up as each game progresses. There has to be a better way, although the umpires in the present contest perhaps are entitled to some applause for great effort to assure fair play.
Spector, Disputes Arising in Connection with Contract Performance — A Comment on the Report of the Commission on Government Procurement, 33 FED. B. J. 160 (1974).