Wesleyan Company, Inc. v. Francis J. Harvey, Secretary of the Army

NEWMAN, Circuit Judge,

dissenting.

I respectfully dissent. The Board of Contract Appeals has jurisdiction and authority to decide all of the asserted breaches of the confidentiality provisions related to the contracts between Wesleyan and the Army with respect to this drinking mask. The court’s decision, separating the various steps in this relatively simple procurement, can have large consequences for dispute resolution.

The Contract Disputes Act does not withhold from the boards of contract appeals the authority to consider the entirety of the claim. There is no basis in the Contract Disputes Act for segregating the contract-based confidentiality obligations that were incurred at the beginning and at the end of this procurement, from that in the middle. Many procurements start with an offer and then a prototype and then a larger-scale evaluation, all accompanied by standard written confidentiality provisions. My concern with the panel majority’s ruling is that it parses the various stages at which the offeror provided confidential information, when all of these stages are part of one overall supply proposition, and are part of one overall claim.

The government required a confidentiality agreement when Wesleyan submitted the prototypes, and Wesleyan then resubmitted the prototypes with the appropriate confidentiality notices in the form of Defense Acquisition Regulation legend 3-507.1(a) and a Memorandum of Understanding. We need not decide the effect of these confidentiality agreements in isolation, for the evaluation of Wesleyan’s drinking system resulted in a procurement contract. The steps of the evaluation of Wesleyan’s technology were part of the normal negotiation process, which in this ease resulted in a contract for sale; each of the stages of the procurement were part of one overall contracting process.

The purpose of the Contract Disputes Act is to facilitate the fair and efficient resolution of contract disputes. As explained in testimony during consideration of the Act:

It is in the Government’s selfish interest to be fair in its dealings with its contractor citizens. Unfair procedures drive the most essential and efficient contractors out of competition for Government contracts, and cause those who remain, to submit consistently higher prices which neither the taxpayer nor the Nation can any longer afford. The cost of diminished competition is not readily measurable, but it is unquestionably huge.

*1382Testimony of Judge L. Spector, Contract Disputes: Hearings Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary 95th Cong. First Session on H.R. 66J and Related Bills at 107 (1978). Fairness requires not only protection of the proprietary information of contractors, but also the right to litigate the issues of proprietary information if the ensuing contract is litigated. The confidentiality provisions herein are part of an integrated procurement, and the Contract Disputes Act gives the Board jurisdiction over disputes arising anywhere in the process. From the court’s failure to recognize and authorize the Board to resolve all of the disputes associated with the contract I must, respectfully, dissent.