UNIQUE ASPECTS OF GOVERNMENT CONTRACTS
Many of the rules that apply to contracts in general—contracts that businesspeople make all the time—apply to government contracts. But carrying out a government contract can be very different from carrying out the typical commercial contract. This chapter explores several of the unique aspects of administering government contracts.
With the government, a deal is a deal as described in the contract—
1. Unless the government intentionally and unilaterally changes it using the "Changes" clause
2. Unless the government inadvertently changes it through a constructive change
3. Although the deadlines in the contract are not really deadlines, just suggestions
4. Although clauses left out are in there anyway
5. Although the government can end the deal prematurely without paying breach of contract damages.
THE GOVERNMENT INTENTIONALLY AND UNILATERALLY CHANGES THE CONTRACT USING THE CHANGES CLAUSE
The Changes clause in government contracts is unique. In the business world, a deal is a deal. If you want to change the deal, you can—but only if the other party agrees. In government contracting, however, a deal is a deal unless it is changed by the government using the Changes clause, with or without the contractor's consent.
The heart of the Changes clause, FAR 52.243-1, is section (a):
Changes—Fixed Price (Aug 1987)
(a) The Contracting officer may, at any time, without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:
(1) Drawings, designs, or specifications …;
(2) Method of shipment or packing;
(3) Place of delivery.
The Changes clause is a very important clause. It allows the government to respond quickly to changing needs, such as changes in congressional or agency priorities. If the contractor doesn't want to make the change, the government can force the contractor to make it.
But everything has its limits, and that includes the Changes clause. The government cannot use it to change everything in the contract. The clause itself has two self-imposed limits: the change must be "within the scope of the contract," and only those parts of the contract listed in the clause (like drawings, designs, or specifications) may be changed.
Manager Alert
With limited exceptions, if the contractor doesn't want to make the change, the government can force the contractor to make it.
Within the Scope of the Contract
With such a handy clause like the Changes clause, there's sure to be mischief. One example is what is called a "cardinal change." The dictionary defines cardinal as "principal," "fundamental," and "chief." Courts and the Government Accountability Office (GAO) don't look on cardinal changes very kindly. They see the Changes clause as a device that could be used to make an end run around full and open competition by adding work that should be competed to an existing contract. So the test of when a change is an improper cardinal change—and "beyond the scope" of the contract—focuses on the change's effect on competition. The government may not modify a contract to the extent that it is materially different from the original contract. In other words, does the original contract as modified require essentially the same performance? If so, the additional work need not be competed.
One court used this definition:
A cardinal change … occurs when the government effects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for.[1]
Here's how GAO describes its test:
In assessing whether the modified work is essentially the same as the effort for which the competition was held and for which the parties contracted, we consider factors such as the magnitude of the change in relation to the overall effort, including the extent of any changes in the type of work, performance period, and costs between the modification and the underlying contract.[2]
A broader scope of work to start with (in the original contract) allows a broader change in that scope. If an agency uses the Changes clause to get "more" under a procurement, vendors might see its use of the clause as an end run around full and open competition. The vendors might believe that the "more" should have been competed among all vendors instead of obtained from the incumbent vendor. But if an agency has given vendors the chance to bid on a contract that has a broad scope, the losing vendors can't fairly complain when the broad scope is used to get—through a modification to the contract—something the losing offerors think should be a separate procurement.
One case provides a good example. For years, H.G. Properties (HGP) housed the National Park Service's Western Archeological and Conservation Center (WACC). WACC has about five million museum objects and gives advice on archeology to parks in the western United States. As the contract with HGP was about to end, the Park Service issued a solicitation for, in its terms, a "Cadillac" or state-of-the-art facility for WACC. When the awarded contract was modified, a competitor protested the change as beyond scope. The CAFC disagreed. The broad scope of the original solicitation let the Park Service make a broad modification. The original solicitation "encouraged bidders to submit suggested modifications to the solicitation so as to create a state of the art facility. Accordingly, the 'scope' of the contract would be understood to embrace changes or modifications to these requirements."[3]
Indicators of Beyond-Scope Work
One indicator of a beyond-scope change is a change in the type of work. But, as one GAO decision shows, garbage collection is still garbage collection, even if it is changed to be done with contractor-owned rather than government-owned equipment.
Mark Dunning Industries had a contract to collect and dispose of garbage at Fort Rucker, Alabama. The contract was comprehensive, covering the waterfront of garbage collection. Dunning was to pick up residential, commercial, industrial, and community area garbage. One of the contract tasks let Dunning use front-loading government vehicles to collect the garbage. But the front-loading government vehicles weren't very reliable, so the Army changed the contract to have Dunning provide these trucks as part of the contract. The price of the contract was increased about 20 percent. GAO found the change to be within scope.
GAO emphasized that "[t]he Army's modification did not make any changes to the original nature and purpose of the contract. First, the front-loading refuse collection service is but one of the multiple refuse collection services [that were] to be performed under the contract, the bulk of which were to be performed using the contractor's trucks. Moreover, the contract specifically included as one of the multiple line items the requirement that the contractor would perform the very front loading refuse collection services that were the subject of this modification, albeit with government-furnished vehicles." In addition, GAO noted that the change was made because the government's equipment was broken. "Since the essence of the requirement was for the contractor to provide front loading refuse collection, the Army's modification, merely shifting the responsibility for the vehicles and the containers needed to carry out the services to the contractor, did not substantially change the contract, nor make it essentially different."[4]
Large cost increases are also a factor to be considered, but costs, curiously, are not a surefire indicator of a beyond-scope change.
Manager Alert
Costs are not a surefire indicator of a beyond-scope change.
In one case, increasing the contract amount by 80 percent was considered a beyond-scope change.
The government wanted to have a "flexible" contract for custodial services. The winning offeror would give the government an "Add/delete of Service Cost Sheet" right after winning the contract. The sheet would list the winning contractor's prices to be used in negotiating with the Air Force for adding or deleting services after award. The government expected the additions or deletions to be minimal. Once the contract was awarded, however, the winning contractor's cost sheet itself was deleted, making service changes negotiable one-by-one and at much higher costs.
The court acknowledged that whether the contract is "materially different" could be measured by the difference in costs between the contract as awarded and as modified. But the amount of increase alone isn't the only factor. The change in costs must be put in the context of what the original bidders thought they were getting into if they won the contract. A 100 percent increase in funding, under the circumstances, was not considered a cardinal change in one precedent. In that case, the government had estimated the number of hours the eventual winner of a security services contract would have to provide. Because the number of hours in the contract that all the bidders had fought for was simply an estimate, there had been no "beyond scope" change when the actual number of hours under that contract was increased to double the original amount due to an emergency. But here, there had been no such change in circumstances and the contract price had increased by 80 percent. The change therefore was beyond scope.[5]
Modifications of a contract that reduce the scope of the contract might also be beyond scope and have to be competed.
A contract called for providing and recycling but not disposing of something. The government modified the contract to require providing and recycling or disposing of something. The "disposing" was not only a much cheaper task, but "disposing" also had more competitors waiting in the wings to do the work if the agency would compete the work as modified. GAO held that the reduction was beyond the scope of the original contract, so the modification should have been competed. "Here, the RFP did not anticipate that the contractor could be relieved of the recycling requirement or that a disposal effort could be ordered in lieu of recycling. Furthermore … the costs of leasing plastic media with no recycling requirements is as much as 50 percent less…." Also, there were at least four competitors who could do the work.[6]
One significant change in the government's one-sided ability to change the deal is in FAR 52.212-4, Commercial Items Contract Terms and Conditions. According to clause (c), Changes, any change in the terms and conditions of the commercial items contract must be mutually agreed upon.
THE GOVERNMENT INADVERTENTLY CHANGES THE DEAL THROUGH A CONSTRUCTIVE CHANGE
The money a contractor gets under a government contract may usually be increased only if the government voluntarily issues a modification of the contract, usually under the contract's Changes clause.
One classic exception to this rule is a constructive change. When there is a constructive change, judges in effect become government contracting officers. As contracting officers, the judges find that although the government did not expressly change the contract, something the government made the contractor do changed the contract, and therefore the contractor should get paid for the change. Judges, of course, do not have warrants, so a judge cannot order a formal change. But judges can construe things any way they want to. In these instances, what the government did is construed by the judge as a change to the contract, hence the phrase constructive change.
Because constructive changes are so important and so common, we need a good definition:
A constructive change occurs where a contractor performs work beyond the contract requirements, without a formal order under the Changes clause, either due to an informal order from, or through the fault of, the government. Before the contractor can recover, it must show that the government ordered it to perform the additional work. The contractor cannot merely show that the government disapproved a mode of performance. Rather, the contractor must show that the government actually compelled the additional work. The government order need not be formal or in writing. The additional work must be beyond the requirements of the pertinent specifications or drawings. At the same time, the additional work performed by the contractor cannot be beyond the general scope of the contract. Drastic modifications or fundamental alterations ordered by the government beyond the scope of the contract will constitute a breach of contract. The additional work must therefore be beyond the requirements of the contract, albeit still within the general scope of the contract.[7]
When a constructive change happens, the government typically does not think the contract is changed. For example, when asked by a contractor to interpret words in a contract, the government tries to interpret the contract correctly; the government thinks it is simply interpreting the contract. But if a contractor disagrees, files a claim, and convinces the judge that the contractor's interpretation is the correct one, the government will learn—years later—that its interpretation was wrong and had changed the contract. So in a sense, the government does not issue a constructive change; only a judge issues a constructive change.
There should be no stigma attached to a constructive change to a contract. The government was administering the contract as it believed to be fair, but a judge disagreed and the judge had the last word.
A constructive change can sneak up on the government and can appear in all sorts of disguises. The most common types are extras.
Generally, "extras" are candidates for a constructive change. Judges don't like the government getting something for nothing. So when the government makes the contractor do more expensive work but refuses to pay for it, a judge can bring out the constructive change theory to make the government pay for the extras.
Manager Alert
Not only a contracting officer can make a constructive change; so can other government employees, like government managers.
For example the U.S. Postal Service (USPS) issued a solicitation calling for trucks to carry mail long distances. But the solicitation seemed to conflict with federal regulations by saying that drivers could work 12 straight hours; federal regulations said that drivers could work only 10 straight hours. One company, L.P. Fleming, Jr., Inc., noticed the difference but thought nothing of it since all USPS solicitations it had seen included that same language. Moreover, when the head of the company described how he intended to do the work—using only one driver—to a USPS contract specialist, that contract specialist never voiced any opposition to Fleming's plan and, in fact, recommended that Fleming get the contract.
During the course of the contract, federal regulations changed. As applied to Fleming's work, they clearly made him use two drivers. After ignoring the earlier federal regulations, USPS now enforced the changed regulations, making Fleming spend money for two drivers. When USPS refused to increase Fleming's contract to pay for two drivers, Fleming went to the Postal Service Board of Contract Appeals. The board found that Fleming's interpretation of the contract—that one driver was okay—was reasonable and in fact "was shared by the government at the time of award and thereafter. Under these circumstances, that interpretation of the contract language governs. Therefore, when the contracting officer directed Fleming to perform the contract in accordance with the revised federal regulations, that direction had the effect of changing the contract provisions governing the allowable driving time…." The board concluded by making USPS pay for the extra work.[8]
The board came to this conclusion after addressing two important points in contract interpretation—reasonableness and reliance. Fleming's contract interpretation was reasonable: "Its drivers were regularly able to complete the trips" under the solicitation's time limits. And Fleming's interpretation was also the one he had relied on in bidding the contract.
No discussion of a constructive change is complete without stressing that government employees other than the contracting officer can end up making a constructive change to a contract. This is true regardless of what the contract's clauses say. Government managers must therefore be careful to not make these constructive changes.
Any government employee can make a constructive change. For example, a government inspector looked at a newly installed roof that would let ponding water evaporate in 48 hours, the industry standard. But that was not good enough for him. He made the contractor change the roof to make water evaporate in 24 hours. A board of contract appeals made the government pay for the contractor's extra work. "Inspectors with authority to accept or reject work have been held to bind the government when they improperly reject the work. An extremely rigid, unreasonable, and arbitrary course of conduct by a government quality assurance representative constitutes an improper disruption of a contractor's performance that can work a constructive change entitling the contractor to an equitable adjustment under the changes clause." The contract contemplated that there would be some ponding. "Where there are no contract provisions establishing acceptance criteria, the standard used to pass on contract work is a standard customary within the industry. The rejection of the contractor's work … was unjustified."[9]
In this case, the inspector cost the government money even though the contract clauses seemed to prohibit that result. The contract said that "no understanding or agreement between the contractor and any Government employee other than the contracting officer would be effective or binding upon the Government." The board fit its decision into the terms of the standard clause. The inspector "was acting with the authority of the contracting officer in performing his inspection duties to obtain compliance with his interpretation of contract requirements."[10]
DEADLINES ARE NOT REALLY DEADLINES
Rule Number One: Read the contract. Rule Number Two: Don't believe everything you read in the contract. These rules pretty well sum up the way courts and boards see deadlines in FAR clauses—as merely suggestions.
For example, several clauses, including the heavily used Changes clause, say that a contractor "must" do something in 30 days. For example, the changes clause for fixed-price contracts, FAR 52.243-1, has a 30-day "deadline":
The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order. However, if the Contracting officer decides that the facts justify it, the Contracting officer may receive and act upon a proposal submitted before final payment of the contract.
The Changes clause at FAR 52.243-4 has two deadlines: a 20-day deadline and a 30-day deadline:
(d) … no [equitable] adjustment … shall be made for any costs incurred more than 20 days before the Contractor gives written notice as required.
(e) The Contractor must assert its right to an adjustment under this clause within 30 days….
But the deadlines in these clauses are not faithfully and literally applied by courts and boards.
One reason is that these deadlines are not like a statute of limitations designed to end a contractor's right to do something. They are more like a warning, forcing the contractor to tell the government something—for example, that the contractor thinks the government has made a constructive change to its contract. If a contractor intends to get an equitable adjustment for the constructive change, the government has to know why the contractor thinks the government made a constructive change. So a deadline in a FAR clause helps force the contractor to give the government notice.
But if the government already knows about it, why demand that the deadline in the clause be slavishly observed? If the clause is designed to make sure the government knows something, and the government in fact already knows it (even without the contractor's giving the government notice), why allow lack of formal notice to defeat any right the contractor might have to an equitable adjustment?
In the classic decision that used this relaxed approach, the court gave this "wholesome" explanation:
To adopt [a] severe and narrow application of the notice requirements … would be out of tune with the language and purpose of the notice provisions, as well as with this court's wholesome concern that notice provisions in contract-adjustment clauses not be applied too technically and illiberally where the government is quite aware of the operative facts.[11]
What, then, are the rules on deadlines?
First, the rules shift the focus from "strictly following the deadlines" to "what harm has the government suffered because the contractor did not follow the deadlines"? In legalese, the issue is "prejudice." It's a "so what?" It's a contractor saying, in effect, "I was late, but so what? What was the harm to the government because I was late?"
Second, if the government wants to make a deadline a requirement and not a suggestion, it must tell the contractor what happens if the deadline is not met. Warning a contractor of the consequences of not following a deadline makes the time limit a real deadline.
Manager Alert
Warning a contractor of the consequences of not following a deadline makes the time limit a real deadline.
In one case, the court required strict compliance with the termination for convenience settlement proposal deadline. The clause said that if the proposal was not submitted within one year from the effective date of termination, the contracting officer could unilaterally determine the amount due and the contractor would lose the right to appeal the determination.[12]
In addition, a General Services Administration (GSA) clause requires a government lessor to apply for reimbursement of a tax increase within 60 days after paying the tax. The clause warns lessors that if the 60-day limit is not met, the lessor loses its right to reimbursement. The General Services Board of Contract Appeals has ruled that the 60-day deadline must be strictly observed.[13]
CLAUSES LEFT OUT ARE IN A GOVERNMENT CONTRACT ANYWAY
The Christian Doctrine, named after a 1963 decision of the Court of Federal Claims, holds that a mandatory clause inadvertently omitted from a government contract is in the contract nonetheless. Not all courts use the doctrine. The U.S. Court of Appeals for the District of Columbia Circuit has said, "Our court has never adopted the Federal Circuit's Christian doctrine."[14]
The CAFC gave a nice summary of what the Christian Doctrine covers and what it does not.
… the Christian Doctrine applies to mandatory contract clauses which express a significant or deeply ingrained strand of public procurement policy: a clause requiring plaintiff to exhaust administrative remedies before bringing suit for breach of lease; a clause promoting uniform treatment of "major issues" such as cost and pricing data when more than one military department is purchasing an item; a clause outlining proper pre-award negotiation procedures; and a clause implementing requirements of the Buy American Act…. However, the Christian Doctrine has also been employed to incorporate less fundamental or significant mandatory procurement contract clauses if not written to benefit or protect the party seeking incorporation … [like] a missing "Mistake in Bids" clause required under [the regulations to] be incorporated into the contract as requested by the government because the clause was written for the protection of contract bidders." [Internal citations and punctuation omitted.][15]
Examples of clauses incorporated into a contract under the Christian Doctrine include the following:
? Disputes concerning labor standards clause[16]
? Disputes clause[17]
? Assignment of claims clause[18]
? Default clause[19]
? Fair Labor Standards Act and Service Contract Act price adjustment clause[20]
? Changes clause[21]
? A small business set-aside clause making the small business contractor do at least 50 percent of the work[22]
? Service Contract Act provisions clause[23]
? Payments clause[24]
? Government-furnished property clause[25]
? Protest after award clause.[26]
THE GOVERNMENT PREMATURELY ENDS THE AGREEMENT
A deal is a deal—unless you are the government and have a "termination for convenience" clause as part of the deal. When you and I sign a contract, we don't have the luxury of deciding, unilaterally and on the cheap, that we don't want to carry out the contract any longer. If one of us wants to get out of the deal, we become liable for breach of contract damages. These damages include all the profit the other party would have made if we had stuck to our deal, so-called "anticipatory profits."
The government is different. It has the clout to set new rules for the deal—rules more favorable to itself.
This is not unfair. If somebody wants to contract with the federal government, the contractor knows going into the deal that the government might end the contract before the contractor has had the chance to make all the profit the contractor expected. Moreover, it's not as if the government's termination for convenience will do any real harm to the contractor. The government will pay the contractor all costs to date and the profit on that work. In addition, the government will pay the contractor's lawyers and accountants as they determine what those costs are. But, unlike we would, the government will not have to pay anticipatory profits as damages.
The heart of the clause is FAR 52.249-2(a):
Termination for Convenience of the Government (Fixed-Price) (APR2012)
(a) The Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting officer determines that a termination is in the Government's interest. The Contracting officer shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date.
The critical issue here is, what is "the convenience of the government"? How far can the government push convenience? The answer is that the government can push convenience really far. An improper termination for convenience is rare.
That seems surprising. What is the convenience of the government? Although the courts and boards have been vigilant to guard against gross abuses, "[i]t is not the province of the courts to decide de novo whether termination was the best course. In the absence of bad faith or clear abuse of discretion the contracting officer's election to terminate is conclusive."[27]
Contractors will have a really hard time trying to prove the government's bad faith in a termination for convenience:
The contractor's burden to prove the Government acted in bad faith, however, is very weighty…. Any analysis of a question of Governmental bad faith must begin with the presumption that public officials act conscientiously in the discharge of their duties…. Due to this heavy burden of proof, contractors have rarely succeeded in demonstrating the Government's bad faith.[28]
It's in only a rare case that the government terminates a contract for convenience in bad faith.
Here's one:
Although wartime situations no longer limit use of the practice, the Government's authority to invoke a termination for convenience has, nonetheless, retained limits. The contracting officer may not terminate for convenience in bad faith, for example, simply to acquire a better bargain from another source…."[29]
Manager Alert
The contracting officer may not terminate a contract for convenience simply to get a better deal from another source.
It is also hard to prove that the government abused its discretion in terminating for convenience. Decisions show two common situations that are not an abuse of discretion: a termination for convenience after discovery of a cardinal change and a termination for convenience to further full and open competition.
A cardinal change is a significant change to the work under a contract. It's so significant that if the changed work were to be competitively bid, more or different bidders would try to get the contract. If the government discovers after the contract has been awarded that the work is significantly different from what it expected—a cardinal change—the government can terminate the contract for convenience and resolicit the work with a solicitation that accurately reflects the government's new understanding of the work.
In one case, a government contract anticipated that approximately 10 percent of the work would be asbestos removal. It turned out, however, that the asbestos removal work would be about 50 percent of the contract. Believing that this large increase in work constituted a cardinal change, the contracting officer terminated the contract for convenience and resolicited the work. The terminated contractor argued that the termination for convenience was an abuse of discretion, but the court disagreed: Under the circumstances, the contracting officer had ample justification for conducting a reprocurement competitively under the Competition in Contracting Act. "With this change in the scope of contract work, different bidders, like asbestos removal firms, may have entered the competition on the contract."[30]
NOTES
[1]AT&T Comunications Inc. v. Wiltel, 1 F.3d 1201, 1205 (Fed. Cir. 1993) (quoting Allied Materials & Equip. Co. v. United States, 215 Ct. Cl. 406, 409, 569 F.2d 562, 563-64 (1978)).
[2]Poly-Pacific Technologies, Inc., B-296029, June 1, 2005, 2005 CPD ? 105.
[3]HG Properties A, L.P. v. The United States & Quality Leasing & Development, 68 Fed. Appx. 192 (Fed. Cir. 2003).
[4]Atlantic Coast Contracting Inc., B-288969.4, June 21, 2002, 2002 CPD ? 104.
[5]Cardinal Maintenance Services, Inc., v. The United States. 63 Fed.Cl. 98 (2004).
[6]Poly-Pacific Technologies, Inc., supra.
[7]NavCom Defense Electronics, Inc. v. England, 53 Fed. Appx. 897 (Fed. Cir. 2002).
[8]J.P. Fleming, Inc., PSBCA No. 5197, February 3, 2006.
[9]A & D Fire Protection, Inc., ASBCA No. 53,103, 02-2 BCA ? 32053.
[10]Id.
[11]Hoel-Steffen Construction Co., v. United States, 456 F. 2d 760 (Ct. Cl. 1972).
[12]Do-Well Machine Shop, Inc. v. United States, 870 F.2d 637 (Fed. Cir. 1989).
[13]4J2R1C LP v. General Services Administration, GSBCA No. 15584, 02-1 BCA ? 31742.
[14]Amfac Resorts, L.L.C. v. U.S. Dept. of the Interior, 282 F.3d 818, 824, 350 U.S.App.D.C. ? 191, 197 (D.C. Cir. 2002) reversed on other grounds, National Park Hospitality Ass'n v. Department of Interior, 538 U.S. 803, 123 S.Ct. 2026, (2003).
[15]General Engineering & Mach. Works v. O'Keefe, 991 F.2d 775, 779-780 (Fed. Cir. 1993).
[16]M.E. McGeary Co., ASBCA No. 36788, 90-1 BCA ? 22512.
[17]Fireman's Fund Insurance Co., ASBCA No. 38284, 91-1 BCA ? 23439.
[18]Rodgers Construction, Inc., IBCA No. 2777, 92-1 BCA ? 24503.
[19]OFEGRO, HUDBCA No. 88-3410-C7, 91-3 BCA ? 24206; and H&R Machinists Co., ASBCA No. 38440, 91-1 BCA ? 23373.
[20]Telesec Library Services, ASBCA No. 42968, 92-1 BCA ? 24650; and Ace Services, Inc. v. General Services Administration, GSBCA No. 11331, 92-2 BCA ? 24943.
[21]GAI Consultants, Inc., ENGBCA No. 6030, 95-2 BCA ? 27620.
[22]Unit Data Service Corp. v. Department of Veterans Affairs, GSBCA No. 10775-P-R, 93-3 ? BCA ? 25964.
[23]Miller's Moving Co., ASBCA No. 43114, 92-1 BCA ? 24707.
[24]General Engineering & Machine Works, ASBCA No. 38788, 92-3 BCA ? 25055.
[25]Rehabilitation Services of Northern California, ASBCA No. 47085, 96-2 BCA ? 28324.
[26]Labat-Anderson, Inc. v. U.S., 42 Fed.Cl. 806, 857 (1999).
[27]John Reiner & Co. v. United States, 163 Ct.Cl. 381, 325 F.2d 438, 442 (1963).
[28]Krygoski Const. Co., Inc. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996).
[29]Id.
[30]T & M Distributors, Inc. v. United States, 185 F.3d 1279 (Fed. Cir. 1999).