Payne Hackenbracht & Sullivan
Government Duty to Cooperate
Under the duty to cooperate, the Government may not fail to cooperate reasonably with the contractor in the performance of a contract. Continental Collection & Disposal, Inc. v. United States, 29 Fed. C1. 644, 651 (1993). Breach of this duty generally implicates the unreasonableness of the Government's acts or omissions. Furthermore, the nature and scope of this duty depends upon the facts and circumstances of the case.
Under the implied duty not to hinder performance, the Government may not actively interfere in the performance of a contract by the contractor. Breach of this duty generally requires wrongful conduct by the Government. . . .
[W]hether a court (or a party) focuses on the reasonableness or fault of a Government action, and claims a breach of the duty of cooperation or of the duty not to hinder performance, a breach of the implied duty of good faith and fair dealing requires generally either breach of warranty or Government fault.
The standard for bad faith for a governmental entity is the same as that applied to individuals. It is difficult to apply terms with moral implications, such as "good faith" to impersonal legal entities such as corporations or governments, especially in situations where they act on one matter through a number of agents. . . . But the test of good faith should be the same for an entity which must act through agents as for an individual acting for himself.
As part of its warranty to issue timely and appropriate administrative decisions, the duty of good faith and fair dealing is breached where the government refuses to process change orders in a timely manner. Mutual Maintenance Co., GSBCA No. 7492, 85-2 BCA 17,944 (1985); Nash Janitorial Services, Inc., GSBCA No. 6930, 84-1 BCA '17,135 (1984). In addition, the duty of good faith and fair dealing is breached where the government fails to enter into negotiations of any kind. 6800 Corp., GSBCA No. 5880, 83-2 BCA 16,581 at 82,449 (1983). Such breaches can constitute bad faith where the contractor is forced to perform changed work without compensation.