Last month we profiled the Federal Circuit’s Metcalf Constr. decision about the implied duty of good faith and fair dealing. This month Beth Ferrell, Jason Workmaster, Luke Meier and I published an in-depth article (i) analyzing the recent evolution of this implied duty and (ii) discussing the standard a contractor now must demonstrate to prove the Government’s breach of the duty. Importantly, the Metalf Constr. decision solidifies the “reasonableness” standard for proving breach, and clarifies that the much tougher “specific targeting” standard (announced in the Federal Circuit’s 2010 Precision Pine decision) only will be used in limited circumstances. Although some questions remain about the application of the “specific targeting” standard,Metcalf Constr. clearly is a win for contractors.
By Justin M. Ganderson with McKenna Long & Alderidge