An In-Depth Look at Why Federal Circuit’s Metcalf Constr. Decision is a Win for Contractors

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  

The Government’s Duty of Good Faith and Fair Dealing

The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 … Continue reading

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