When does the contractor have the right to stop work?
The Court of Appeals for the Federal Circuit has held that “[u]pon material
breach of
a contract, the non-breaching party has the right to discontinue the performance
of the contract
Stone Forest, 973 F.2d at 1550; Malone v. United States, 849 F.2d
1441, 1446 (Fed.
Cir. 1988) (holding that material breach by the Government “provides Malone
with a legal right
to avoid the contract [and] discharges Malone’s duty to perform”); Kap-Sum
Properties, 13
BCA at 173,833 (citing Malone). The Court further explained, “The choice
of remedy
is generally with the non-breaching party, and only in exceptional
circumstances will equity
require the non-breaching party to continue to perform the remainder of the
contract.” Stone
Forest, 973 F.2d at 1552. “[I]f a contract is not clearly divisible, by the
intention of the parties, the breaching party can not require the
non-breaching party to
continue to perform what is left of the contract.” Id.
What is a material breach by the government?
In determining whether a failure to render or to offer performance is
material,
the following circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit
which he reasonably expected;
(b) the time to which the injured party can be adequately compensated for
the part of that benefit of which he will be deprived;
(c) the time to which the party fails to perform or to offer to perform
will suffer forfeiture;
(d) the likelihood that the party failing to perform or to contribute to perform
will cure his failure, taking account of all the circumstances, including any
reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to
offer to perform comports with standards of good faith and fair dealing.
Practical solution
If the breach goes to the essence of the contractor's expectation, the
breach most likely will be determined to be material. At that point, the
contractor is well advised to seek declaratory relief from the board or
court.
Failure to do so could be a waiver of the breach. Stopping work without
judicial relief could result in termination for default. The pendency of
litigation is not a legal defense to a T for D.
Many factors contribute to the decision to stop work before the judicial
determination of declaratory relief. Most are not strictly related to the
merits of the legal arguments.
bill@spriggslawgroup.com
We submit the crisis is that we are shedding the original constitutional democracy in favor of autocracy, perhaps even theocracy. The evidence in support of this view is the minority control of the cult leader and would be autocrat Donald Trump and his followers.
The elected politicians have demonstrated they cannot agree on the following course. Assuming the people wish to govern themselves in a democracy, we propose a course of action to right the ship before it sinks.
We need a national referendum on whether to proceed as a democracy. That takes too long and is a daunting task. A vital election looms around the corner. Action must be taken now.
We propose that military and industry leaders meet and agree democracy is the path to follow. They should then sign a declaration of support for constitutional democracy and strong opposition to any form of minority or autocratic rule. All media should publish this "open letter" to all Americans. The letter should oppose specifically the election of any "would-be dictator." To the extent the military/industry leaders deem it appropriate, they should propose additional actions to publicize the letter.