Posted on 8/6/2011 9:21 PM

THE GOVERNMENT'S DUTY TO COOPERATE

As I stated in writing about the "Big Five" government duties, there is an implied obligation in every government contract that the government cooperate with the contractor and not interfere in its performance.  This all started in 1876 with a pronoucement from the U.S. Supreme Court.  In the 20th Century, the doctrine evolved to require the government to do whatever was reasonably necessary to assist the contractor to perform and included the duty to communicate with the contractor and disclose information vital to the contractor's performance.

The government can violate the duty to cooperate and not interfere without acting in bad faith or with the intention of harming the contractor.  In fact, to sustain a claim for breach of these duties, the contractor need not prove bad faith.

These duties are read into the contract as a matter of law.  They are just as binding as if they were stated expressly in the contract terms and conditions.

Unhappily, contracting officers often seem unaware of these legally required duties.  Although, in my opinion, the relationship is not a partnership and the system of procurement laws and regulations creates an adversarial atomosphere, there is no excuse for foot dragging, stonewalling, failure to be responsive, ignoring pleas for assistance, turning down ADR and insourcing through bait and switch to name but a few breaches of these duties.  When the government enters the marketplace, it is required to follow the rules.  After all, it made the rules in the first place.

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