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GCN Home > August 21, 2000 issue

FEDERAL CONTRACT LAW: Joseph J. Petrillo

Time to remember a judge who cast a long shadow

I was asked recently to name some of the most influential people in the development of government contract law. The late Judge Oscar H. Davis came immediately to mind.

Davis, after a distinguished career in the Solicitor General’s Office, was appointed by President Kennedy to the U.S. Court of Claims in 1962.

He served there and in its successor, the Court of Appeals for the Federal Circuit, until his death in 1988.

His many landmark decisions shaped the legal doctrines we use today that govern contractual relations between the government and citizens.

His best-known ruling was in G.L. Christian and Associates vs. United States. According to the Christian doctrine, there were times when a court should read a mandatory, but missing, clause into a contract.

The doctrine was limited to regulations which embodied a “deeply ingrained strand of public procurement policy,” Davis wrote.

He had an uncanny knack for expressing complex ideas simply.

He described the doctrine of superior knowledge in the Helene Curtis Industries case as follows:

“In this situation the government, possessing vital information which it was aware the bidders needed but would not have, could not properly let them flounder on their own. Although it is not a fiduciary toward its contractors, the government—where the balance of knowledge is so clearly on its side—can no more betray a contractor into a ruinous course of action by silence than by the written or spoken word.”

The elegant phrasing of his opinions set Davis apart. In WPC Enterprises Inc. vs. United States, he wrote the perfect preamble for an all-too-familiar situation in government contracting:

“This is a study in the toils of ambiguity. The parties put their names to a contract which, on the point crucial to this lawsuit, could reasonably be read in two conflicting fashions. Each signatory seized in its own mind upon a different one of these contradictory versions. … The impasse became unmistakably plain when it was too late. Our task is to determine on whom should fall the risk of such mutually reinforced obscurity.”

And no one who has read Deloro Smelting & Refining Co. vs. United States can forget how he rejected a contractor’s one-sided interpretation of the contract. The government “can hardly be thought to have thrust its head into the lion’s mouth in the hope that the animal would turn out to be a vegetarian.”



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