Jeri Kaylene Somers is Chair of the U.S. Civilian Board of Contract Appeals (CBCA). An earlier version of this paper, which was written purely in Judge Somers’ personal capacity and is not intended to reflect the views of the CBCA or the U.S. government, was delivered by Judge Somers at an annual policy forum held at George Washington University Law School with the Board of Contract Appeals Bar Association on June 7, 2018. In attendance were CBCA Judge Kyle Chadwick, who contributed substantially to the preparation of this paper, and Professor Christopher Yukins, who contributed some of the research materials in the footnotes. Judge Somers extends her thanks to both.
I am pleased and honored to be here to set the stage for the fascinating discussions we are about to hear of the Contract Disputes Act (CDA) on its fortieth birthday.1 Today’s moderators and panelists are some of my smartest friends in the government contracts bar, and I know you are all as excited to hear from them as I am.
Our theme this morning is: What are we doing right under the CDA, and what can we do better?2 I thought I would briefly frame those questions by glancing back at what the CDA drafters said they were trying to do in 1978 — and then I would try to imagine how the drafters might answer those questions, if the drafters were here today.
The CDA in 1978
I reread the key legislative history of the CDA, namely, the Senate Report prepared by the anonymous staffs of the Senate Governmental Affairs and Judiciary Committees in August 1978.3 The Senate Report makes good historical reading for Board of Contract Appeals Bar Association (BCABA) members. I know you will want to take it on your Kindle to the beach. But it also is relevant to the issues we will be thinking about this morning.
For me, as Chair of the Civilian Board of Contract Appeals (CBCA), of course, the best parts of the Senate Report address the role that Congress had in mind for the boards of contract appeals, versus what is now the Court of Federal Claims — but which back then, before the Federal Circuit was created in 1982, was the trial division of the old Court of Claims.4