2008 YEAR IN REVIEW: ANALYSIS OF SIGNIFICANT FEDERAL CIRCUIT GOVERNMENT CONTRACTS DECISIONS

In 2008 the US Court of Appeals for the Federal Circuit ("Federal Circuit") set precedent in issues as diverse as constitutional law and damages calculations. It further refined the jurisdictional constructs under which government contractors litigate bid protests and other disputes, demonstrating both the breadth and the narrowness of the US Court of Federal Claims Tucker Act jurisdiction. While 2008 maybe best known for the seminal cases of Distributed Solutions and Rothe, the Federal Circuit's recognition of claim preclusion in Phillips/May Corp. will profoundly shape how government contracts claims are filed. The Federal Circuit's decisions come amidst an increased trend towards greater accountability of contractors and the Government through clauses that subject contractors to ever greater risks of doing business with the Government, including greater risks of contract award challenges, and less freedom to contract based on commercial terms and conditions.