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    Government Contracting Database

    Government Duty to Cooperate

    Government Duty to Cooperate

    “Both the duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith and fair dealing.” Metcalf Const. Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014) (quoting Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 828 (Fed. Cir. 2010). Breach of this duty generally implicates the unreasonableness of the government’s acts or omissions. Furthermore, the nature and scope of this duty depend upon the facts and circumstances of the case. The duty to cooperate is an affirmative duty on the government to do what is reasonably necessary to enable the contractor to perform. Appeal of Am. Ordnance LLC, ASBCA No. 54718, 10 – 1 BCA ¶ 34386 (citing SEB Engineering, Inc., ASBCA 39728, 94 – 2 BCA ¶ 26,810).

    The standard for bad faith for a governmental entity is the same as that applied to individuals. It is difficult to apply terms with moral implications, such as “good faith” to impersonal legal entities such as corporations or governments, especially in situations where they act on one matter through a number of agents. . . . But the test of good faith should be the same for an entity which must act through agents as for an individual acting for himself.

    The duty to cooperate is not a duty to make work easier for the contractor and the court has stated that, “The gravamen of the . . . inquiry in cases involving a breach of the duty of cooperation is the reasonableness of the government’s action considering all of the circumstances.” Appeal of Seb Eng’g, Inc., ASBCA No. 39728, 94 – 2 BCA ¶ 26810 (citing PBI Electric Corp. v. United States, 17 Cl. Ct. 128, 135 (1989). The PBI case involved a contractor claiming that the government failed to provide them with requested necessary information. PBI Elec. Corp. v. United States, 17 Cl. Ct. 128, 135 (1989). The court disagreed holding that the information was not essential, and thus the duty to cooperate was not breached.

    Updated: August 2, 2018

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