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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, February 27, 2012

Best Contracts Scholarship of 2011: Honorable Mentions, Part I

Two weeks ago, we announced the top vote getters in our search for the best contracts scholarship of 2011.  We, the editors of the blog then voted for our favorites among those five, which are:

Omri Ben-Shahar, Fixing Unfair Contracts, 63 Stan. L. Rev. 869 (2011)

Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

Victor Goldberg, Traynor (Drennan) Versus Hand (Baird):Much Ado About (Almost) Nothing, J. Legal Analysis Advance Access (Oct. 7, 2011)

Juliet P.Kostritsky, Interpretive Risk and Contract Interpretation: A Suggested Approach for Maximizing Value2 Elon L. Rev. 109 (2011)

Kemit A. Mawakana, In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic, 11 U. Md. L.J. Race, Religion, Gender & Class 39 (2011)

The voting confirmed the quality of the competition, as each of the finalists had its supporters, with three different articles receiving at least one vote for #1 among the five of us who voted.

In order to draw out the suspense as long as possible, we will count down to #1 Casey Kasem style, except that our honorable mentions are in no particular order.  

Honorable mention #1 goes to Robert A. Caplen, Turning Esch to Dust? The State of Supplementation of the Administrative Record in Bid Protests before the Court of Federal Claims, 12 Whittier L. Rev. 197 (2011)

CaplenRobert Caplen, shown here in the author photo of his book, Shaken & Stirred: The Feminism of James Bond, was the Articles Editor of the Florida Law Review, a Research Editor of the University of Florida Journal of Law & Public Policy, and a board member of the Florida Journal of International Law. He was a litigation associate at Greenberg Traurig, LLP in Washington until 2007 when he assumed his current responsibilities as clerk for Judge Sweeney at the Court of Federal Claims,  In August 2012, he will begin a one-year clerkship on the Ninth Circuit. 

Those engaged in the lively sub-field of government contracting law may already be familiar with Robert Caplen's article, which addresses the standard for supplementing the administrative record in bid protests heard by the Court of Federal Claims.   His title refers to Esch v. Yuetter, 876 F.2d 976 (D.C. Cir. 1989), which encouraged a flexible approach towards supplementating the administrative record.  The Court of Federal claims addressed the Esch standard recently in Axiom Resource Mgt., Inc. v. U.S., 564 F.3d 1374 (Fed. Cir. 2009) and now calls for a more individuated treatment of motions to supplement the administrative record.

After the introduction, Part II of Mr. Caplen's article addresses legal standards applicable to bid protests in the Court of Federal Claims.  The primary focus of that court's proceedings in bid protests is the administrative record reviewed by the agency whose decision is challenged in the court.  This presents some difficulty, Caplen points out, since the agency whose discretion the court is supposed to review is also the agency that, in its discretion, assembles the administrative record.  The flexible approach set forth in Esch allows parties to supplement the administrative record for various reasons.  

Grounds for permissible supplementation pursuant to Esch include allegations of bias or bad faith and the eight Esch exceptions, which Caplen describes as follows:

(1) when the record before the court does not adequately explain agency action; (2) when the agency does not consider factors relevant to its final decision; (3) when evidence not included in the record was considered by the agency; (4) when a case or issue is so complex that moreevidence is needed to enable a court to understand everything clearly; (5) when evidence arising after the agency action proves one way or another whether the decision was correct; (6) when an agency is sued for its failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief, particularly apreliminary injunction, is at issue.

As Caplen explains, there was some inconsistency in the treatment of the Esch exceptions, with some courts describing them as "factors," while in some cases any one of the exceptions is treated as grounds for supplementing the record.  Almost immediately, other courts criticized Esch.  

According to Caplen, the Federal Circuit had never directly addressed the standard for review of decisions by the Court of Federal Claims to supplement the administrative record prior to Axiom.  He summarizes the Axiom approach as follows:

[T]he Federal Circuit mandated that the court evaluate the agency-assembled record before resorting to supplementation, a process that could potentially allow courts to supplement the record more frequently and survive appellate scrutiny by justifying their decisions upon the use of generic and nebulous language.

 In Axiom, the Federal Circuit disapproved of the Court of Federal Claims' reliance on Esch.  The Federal Circuit found such reliance inappropriate to the extent that it was inconsistent with the general standard, reaffirmed in the Supreme Court's decision in Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).  Caplen then explores the uncertainties in that standard.  

He notes that the main effect of Axiom is that the Court of Federal Claims has learned not to cite to Esch but to insulate its decisions from review through circumlocutions that achieve the same results as would have been achieved by following Esch.  Caplen notes the significant danger that courts will now allow supplementation more frequently, or more erratically, because the standards announced in Axiom are so vague as to permit a great deal of variation in their implementation.


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