Public Contract Law Journal

A Reasoned Case for a "Grant Disputes Act"

by Scott S. Sheffler

Scott Sheffler (ssheffler@ftlf.com) received his B.A. in May 2002 from The George Washington University, his J.D. in May 2005 from the University of California, Los Angeles School of Law, and his LL.M. in Government Procurement Law in January 2017 from The George Washington University Law School. Mr. Sheffler is a partner with the law firm Feldesman Tucker Leifer Fidell LLP and previously served as a federal procurement attorney with the Department of Navy’s Military Sealift Command. He wishes to thank Christopher R. Yukins and Edward T. Waters for their insight and critique throughout the drafting of this Article. Their insights into federal grant law, procurement law, and administrative law generally, have been invaluable.

Introduction

In 2016, the federal government obligated $668 billion1 in the form of federal grant and cooperative agreement awards. The majority of grant dollars are awarded to states and state agencies,2 in part because of the substantial size of the Medicaid program.3 Still, many awards are made to local governments, institutions of higher education, and nonprofit organizations.4

The magnitude of federal expenditures in the form of grants has been growing steadily since the 1930s5 — a matter acknowledged in nearly every study of the grant system.6 Despite this growth, however, the legal regime underlying grant awards has remained primitive and fragmented, in particular providing for little agency accountability and little incentive for agencies to consistently interpret and enforce grant requirements.

In 1979, in his survey of the federal grant system entitled “Rights and Remedies Under Federal Grants,” Temple University School of Law Professor Richard Cappalli presciently cautioned that the combined growing magnitude of federal grant awards and the apparent lack of due process in the associated legal system was particularly problematic.7 In fact, his book concludes with a chapter aptly entitled “No Man’s Land,” which begins with the following quote from a 1968 Harvard Law Review article:

[I]n this area of overriding significance, the traditional checks to human fallibility are strangely absent … We are confronted then with a vast no man’s land at the heart of our legal system — territory off limits to the courts and beyond the ken of the traditional [legal] process. This is more than [an] anomaly — such a no man’s land is the antithesis of democracy itself.8

Unfortunately, now nearly forty years later, the law of grants can still be described in these terms. There are two primary structural reasons for the continued existence of this “no man’s land.” First, until recently, the governmentwide administrative requirements for federal grant agreements were badly fragmented. Second, no truly effective dispute system has ever been established.

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