THE GOVERNMENT'S DUTY TO COOPERATE

It's time we reminded ourselves of the government's duty to cooperate.  The government bears a specific duty to cooperate with the contractor when some action by the government is necessary for contract performance.  This duty is implied in every government contract.  We addressed this duty briefly in our post recently on the costs of delay in construction contracts.  The government's obligation, however, applies to all government contracts.

Perhaps the duty is articulated best in a old case from the Armed Services Board of Contract Appeals (ASBCA).  In G.W. Galloway, ASBCA Nos. 16656, 16975, 73-2 BCA paragraph 10,207, the Board said:

This requirement is an integral segment of the broadly recognized rule applicable to all government contracts which imposes an implied obligation on the government that it must do nothing that will interfere with the contractor in the performance of the contract.  [citation omitted]  In addition to the negative obligation of noninterference, this board has recognized an implied affirmative obligation on the part of the government that it will do whatever is reasonably necessary on its part to enable the contractor to perform.

73-2 BCA at 48,499,

The duty to cooperate includes the duty to communicate and disclose information vital to contract performance.

Good contract management requires the contractor to importune the government, if necessary, to obtain clear directions when problems arise such as government caused delays and constructive changes.  The duty works both ways.  The contractor has the duty to notify the government of the performance restricting occurrence and the government has the duty to "do whatever is reasonably necessary on its part to enable the contractor to perform."

bill@spriggsconsultingservices.com   bill@spriggslawgroup.com