A Brief Note on the Government’s Duty of Good Faith and Fair Dealing: An In-House Counsel Update.

In their capacity as Jack-of-All-Trades, in-house counsel for federal government contractors (as well as government counsel and private practitioners) must be cognizant of the recent movements in the court system regarding the government’s implied duty of good faith and fair dealing. Such is necessary for in-house to properly advise contract capture teams, contract managers, and project operators on how the current standard impacts the contractual and legal risks of pending pursuits and ongoing projects, as well as how the standard impacts any requests for equitable adjustments (REA) and claims based thereon. This note will explore recent case law in this area and offer in-house counsel a few takeaways. Two of the primary responsibilities of in-house counsel of federal government contractors are to review solicitations for … Continue reading

Afterthoughts: Good Faith & Fair Dealing

What responsibilities are included in the duty of good faith and fair dealing/ what should be included? The Restatement of Contracts lists some examples but without trying to go into the specifics of that list, I always said that the duty of good faith and fair dealing was at the center a requirement that the two parties would reasonably respond to each other’s problems. If you go back to the Civil War and look at the case law, we talked about the duty of cooperation and the duty not to hinder contractor’s performance. Those were the original duties that our legal background is full of. When we started to talk about the broader duty of good faith and fair dealing, these two duties, the duty … Continue reading

The Day the Trim on the Supreme Court’s Windows Served to Trim the Doctrine of Superior Knowledge

Grunley Construction Company Inc. requested an equitable adjustment from the Architect of the Capitol (“AOC”) under a contract to retrofit or replace the Supreme Court’s first floor windows with windows that would be able to withstand an explosion. Grunley subcontracted the window and trim manufacturing to Masonry Arts, Inc. (“MAI”).   The solicitation contained a drawing of the exterior view of the windows. The drawing provided measurements depicting the windows as rectangles, although the AOC knew some were trapezoidal. Above the drawing, the solicitation stated, “NOTE: ALL WINDOW DIMENSIONS TO BE FIELD VERIFIED FOR ALL SIDES. SOME WINDOWS MAY BE TAPERED.” Grunley did not measure the windows before signing the contract or measure the trim before having its subcontractor manufacture the windows. Accordingly, the trim … Continue reading

When Jacob’s Ladder Did Not Go To Heaven: The Case of the Contractor Who Kept On Negotiating A Final Decision

Jacob Construction LLC was awarded a contract by the Department of Veterans Affairs (VA) for kitchen renovation work in a VA building. Three months later, the VA suspended the project for eight months. When the suspension was lifted, Jacob filed a claim for an equitable adjustment of $73,398.37 for overhead costs during the suspension.  Following two additional delays, Jacob filed two claims for overhead costs incurred during those delays as well.  On May 5, 2011, the CO denied Jacob’s claim for the first delay, but stated she would consider a claim for reasonable costs of remobilization.  A year later, on May 2, 2012, the CO approved part of Jacob’s second and third delay claims in the amount of $73,468.23 and reaffirmed her denial of the … Continue reading