March 01, 2017 Public Contract Law Journal

The Developoment of Modern Government Contract Law: A Personal Perspective

Review by Michael W. Mutek

Michael W. Mutek (mmutek@steptoe.com) is senior counsel in the Washington, D.C., office of Steptoe & Johnson LLP and Past Chair of the Section on Public Contract Law.

C. Stanley Dees
Wolters Kluwer (2016)
225 Pages, soft cover
$95.00

Background

Only an experienced government contract law lawyer whose practice has spanned the development of government contract law since the 1960s and who has been afforded the opportunity to address major issues could attempt the ambitious task of writing this book. C. Stanley Dees fits that profile well. The Development of Modern Government Contract Law: A Personal Perspective is an important addition to the resources available to government contract lawyers and provides an understanding of the development of some key areas of government contracting.

This book is more than an interesting and enlightening read; it provides incredible insight into the cases, events, and reasons behind the development of modern government contract law — both key government contracting issues and the way that government contract law is practiced. Although Mr. Dees states that his book “is not a conventional history or a chronicle of all events during this period,” his book does give the reader a wonderful sense of the rich history of government contracting in modern times.

Stanley Dees arrived in Washington, D.C., in 1962 as a summer clerk for Cummings & Sellers and returned the following year to the same firm, which was then called Sellers, Connor & Cuneo. That was but two years prior to the creation of the Section of Public Contract Law; one important reference point is that it was a time of increasing interest in government contracting. The Section’s creation was a direct result of the American Bar Association’s recognition of the growing importance of this area of the law. That importance arose from the convergence of several factors, including the space race and growing concern over the cost of contracts, which was receiving both press and congressional attention and resulted, among other things, in the Truth in Negotiations Act and efforts such as the total package procurement concept.

Mr. Dees addresses the involvement of the Section of Public Contract Law in these developments. Chapter 9, Structural Reform: Legislative Changes 1978–84, discusses key legislation, including the Contract Disputes Act and the Competition in Contracting Act, and analyzes the role played by the Section and the organized bar in shaping the legislation. As a past chair and an active member of the Section throughout its existence, Stanley Dees has first-hand knowledge of the importance of this role.

Organization of Content & Comments

The Development of Modern Government Contract Law: A Personal Perspective is organized into fifteen chapters that cover fourteen areas of government contract law. The first chapter provides an overview of acquisition and its relationship to our nation’s history, taking the reader from the Revolutionary War to the 1960s, when we saw the beginning of a government contract bar. Chapters 2 through 8 focus on specific topics of government contract law, including the incorporation of clauses by operation of law, the fact versus judgment dichotomy, cardinal changes, and unabsorbed overhead. Each topic includes a review of the law and its development as well as information on the author’s involvement and his critical analysis. In some cases, there are recommendations for improvement. For example, Chapter 3 covers constructive acceleration; Mr. Dees offers a proposed restatement. Each chapter can stand alone as a review of its topic.

Chapter 9 focuses on legislation that had a major impact on the practice of government contract law and describes the Section’s involvement in shaping such legislation. For example, the bill that would become the Contract Disputes Act was introduced by Congressman Tom Kindness in 1977. It was, as explained in this book, “largely the work of a committee of the ABA Section of Public Contract Law.”

The next two chapters cover matters that reflect the author’s considerable personal involvement. Chapter 10 is a fascinating review of the Shuttle Challenger loss and how the practice changed during this time to address extraordinary situations that require not only government contract expertise but also the ability to address civil and criminal litigation and deal with Congress. Chapter 11, GSA Procurement of Telecommunications and the “Mother” of All Bid Protests, provides an inside view of a protest that played out in the press and brought a good deal of attention to government contract source selection issues, illustrating the need for a protest process.

Fixed-priced system contracts, recovery of interest, and the Administrative Procedure Act are addressed in Chapters 12 through 14. Chapter 12, Fixed-Price Procurements for Development of Major Systems: Lockheed, Litton, General Dynamics, et al., is an excellent review of what Mr. Dees describes as the “fatal attraction” allure of fixed-price contracting for development of major systems. This chapter provides a history of this “fatal attraction” and the pain that it has caused, starting with the total package procurement approach in the 1960s. His discussion of failed programs illustrates the weaknesses of this approach. Mr. Dees’ review of various reforms to ban fixed-price development contracts, followed by relapses and then reversion to use of the approach, appropriately ends with George Santayana’s famed statement: “Those who cannot remember the past are condemned to repeat it.”

Chapter 15, The Federal Circuit: Changing Direction?, is both a critique of and challenge to the Federal Circuit. This chapter addresses what Mr. Dees describes as “perhaps the most troubling development that I have observed in this modern era of government contract law. ” In this chapter, Mr. Dees addresses five areas where case law has been changed by the Federal Circuit without the benefit of en banc review, including the interpretation of contract terms and the language of releases, implied authority of government representatives, and the requirement for exercise of discretion prior to contract termination. Furthermore, Mr. Dees argues that the changes have resulted in the movement of the Federal Circuit away from the foundational premise of the Court of Claims.

Themes

Mr. Dees notes that “[i]f the book has a unifying theme, it is that the half century during which I practiced was the foundation period of modern government contract law.” This is true, but I believe that The Development of Modern Government Contract Law: A Personal Perspective provides additional themes.

First is the tight coupling of key events in our nation’s history to government contract issues. This is seen in the discussion in several chapters, but most notably in the discussion of the Challenger disaster, the GSA telecommunications procurement, legislative reforms, and fixed-price procurements.

Another theme is the role that has been played by the organized bar, including the Section of Public Contract Law, in addressing government con- tract issues and in the development of modern government contract law. This is seen in the chapter covering legislative developments.

The Development of Modern Government Contract Law: A Personal Perspective does more than review some key areas of government contract law. Mr. Dees has made a considerable contribution to the body of knowledge in this area. His book is a wonderful and personal review of important issues addressed during the past fifty years of government contracting, and it makes one won- der what future developments we may see.

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