Payne Hackenbracht & Sullivan

Duty to Diligently Proceed with Performance

It is well settled that, under the contract's Disputes clause, the contractor must "proceed diligently with performance ... pending final resolution of any request for relief, claim ... or action arising under the contract and comply with directives of the Contracting Officer. Refusal to follow, such directives in accordance with the Contracting Officer's interpretating during the pendency of a dispute will generally be considered to constitute abandonment or an anticipatory repudiation of the contract. (See Reddy-Buffaloes Pump, Inc., ENGBCA No. 6049); Schmid Plumbing & Heating Co. v. United States, 173 Ct. Cl. 302, 351 F.2d 651; (1965); Brenner Metal Products Corp., ASBCA No. 25294, 82-1 BCA p 15,462; RFI Shield-Rooms, ASBCA No. 19005. 77-1 BCA p 12,237; Tectonics, PSBCA No. 2417, 89-3 BCA p 22,119; John's Janitorial Services, Inc., ASBCA No. 34234, 90-3 BCA p 22,973 (refusal to perform without price increase). This rule is applicable regardless of the ultimate correctness of the Contracting Officer's interpretation. Cf. Tuff-Kote Dinol, J.D. Partridge, Inc., ASBCA No. 28961, 87-3 BCA p 20,042, at p. 101,458; Great Northern Forestry Service, AGBCA No. 85-260-1, 90-2 BCA p 22,668, at p. 113,881; Mega Construction Co. v. United States, 29 Fed Cl. 396,422 (1993); El Greco Painting Co., ENG BCA No. 5693, 92-1 BCA p 24,5,22, at p. 122,379, Leming Construction Co. Inc., ASBCA No. 32425, 91-1 BCA p 23,300, at p. 116,839; Atterton Painting & Construction, Inc., ASBCA No. 31471, 88-1 BCA p 20,478, at p. 103,581, aff'd sub nom., Atterton Painting Construction, Inc., v. United States, 865 F.2d 268 (Fed. Cir. 1988)