Duty to Diligently Proceed with Performance

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 interpretation during the pendency of a dispute will generally be considered to constitute abandonment or an anticipatory repudiation of the contract. See Appeal of Montage Inc., GAOCAB No. 2006 – 2, 10 – 2 BCA ¶ 34490; Reddy – Buffaloes Pump, Inc., ENGBCA No. 6049, 96 – 1 BCA ¶ 28111; 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 ¶ 15,462; Tectonics, PSBCA No. 2417, 89 – 3 BCA ¶ 22,119; John’s Janitorial Services, Inc., ASBCA No. 34234, 90 – 3 BCA ¶ 22,973 (refusal to perform without price increase).

This rule is applicable regardless of the ultimate correctness of the Contracting Officer’s interpretation. See Tuff – Kote Dinol, J.D. Partridge, Inc., ASBCA No. 28961, 87 – 3 BCA ¶ 20,042; Great Northern Forestry Service, AGBCA No. 85 – 260 – 1, 90 – 2 BCA ¶ 22,668; Mega Construction Co. v. United States, 29 Fed Cl. 396,422 (1993); El Greco Painting Co., ENGBCA No. 5693, 92 – 1 BCA ¶ 24,5,22; Leming Construction Co. Inc., ASBCA No. 32425, 91 – 1 BCA ¶ 23,300; Atterton Painting & Construction, Inc., ASBCA No. 31471, 88 – 1 BCA ¶ 20,478.

Updated: July 30, 2018