Government Interference

Government Interference

Excessive government interference with a contractor’s performance may amount to a breach of its implied duty not to hinder such performance. H & S Mfg., Inc. v. United States, 66 Fed. Cl. 301, 311 (2005); Joseph H. Roberts v. United States, 357 F.2d 938 (Ct.Cl.1966). The critical factor in establishing a violation of these implied duties is evidence demonstrating the contracting agency’s action was improper. To establish a violation of the duty not to hinder, a contractor must prove both that there was governmental interference and that the governmental interference was wrongful. See Appeal of Am. Combustion, Inc., ASBCA No. 43712, 94 – 3 B.C.A. (CCH) ¶ 26961 (May 27, 1994); Piasecki Aircraft Corp. v. United States, 229 Ct.Cl. 208, 224 (1981); J.A. Ross & Co. v. United States, 126 Ct.Cl. 323, 332 (1953).

That this is a valid cause of action and has been recognized as such in countless number of cases. See, e.g. Malone v. United States, 849 F.2d 1441, 1445 (Fed.Cir.1988) (government’s interference with or failure to cooperate in the other party’s performance is a material breach excusing contractor’s failure to perform) (citing Lewis – Nicholson, Inc. v. United States, 550 F.2d 26, 32 (Ct.Cl.1977); Restatement (Second) of Contracts Sec. 241(e) (1981)); Kahaluu Construction Co., Inc., ASBCA No. 31187, 89 – 1 BCA ¶ 21,52 5 (government’s breach of its implied duty to cooperate with contractor excused contractor’s failure to perform); and cases in which the VABCA addressed merits of “failure to cooperate” claims, Dawson Construction Company, Inc., VABCA No. 1967, 88 – 1 BCA ¶ 20,335; J.B.L. Construction Co., VABCA No. 1799, 86 – 1 BCA ¶ 18,529.

Updated: August 2, 2018