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Revisiting the Duty of Good Faith and Fair Dealing in Construction Contracts by William E

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Revisiting the Duty of Good Faith and Fair Dealing in Construction Contracts by William E CONTRACTS Revisiting the Duty of Good Faith and Fair Dealing in Construction Contracts By William E. Dorris and Reginald A. Williamson The genesis of the trial court’s misunderstanding in Met- calf of the doctrine arose from an earlier Federal Circuit decision, Precision Pine & Timber, Inc. v. United States.4 In Precision Pine, a government contractor alleged the U.S. Forest Service breached both express and implied duties in its contract by suspending a forestry contract to undertake an environmental consultation with the U.S. Fish and Wildlife Service. After five years of discovery, a twenty-four day bench trial, and extensive supplemen- tal briefing, the trial court determined the government breached both an express contractual warranty and the implied duty of good faith and fair dealing.5 The trial William E. Dorris Reginald A. Williamson court then issued a series of decisions, culminating in the award of $3,343,712 in damages to the contractor.6 The The Federal Circuit’s decision in Metcalf Constr. Co., Federal Circuit reversed.7 Inc. v. United States,1 heralded an unexpected revival of On the issue of the government’s liability for the breach the implied duty of good faith and fair dealing in fed- of the implied duty of good faith and fair dealing, the eral government contracts, including federal construction Federal Circuit began its analysis with the general prem- contracts.2 While the Federal Circuit certainly returned ise that “[n]ot all misbehavior . breaches the implied the principle to its doctrinal roots, the practical impact duty of good faith and fair dealing owed to other par- of Metcalf on government contractors pursuing a claim ties to a contract.”8 Instead, the court reasoned that cases for the government’s breach of the duty of good faith and in which the government has been found to violate the fair dealing, while significant, has been somewhat more implied duty of good faith and fair dealing “typically limited than initially anticipated. The third anniversary involve some variation on the old bait-and-switch.”9 The of the Metcalf decision provides an excellent opportu- Federal Circuit analyzed prior cases and found that a nity to assess the impact of Metcalf in federal contracts, breach of the duty typically involves a “double cross [ ],” as well as the doctrine of good faith and fair dealing a “bait-and-switch,” or some other action “specifically more generally in private construction contracting. Such designed to reappropriate the benefits the other party an assessment shows, on balance, while Metcalf indeed expected to obtain from the transaction.”10 The court breathed new life into the implied duty for federal con- reasoned that the “prototypical examples of this modus tracts, parties continue to find it challenging to actually operandi” showed actions “specifically targeted at the prove a breach of that duty whether in government or plaintiffs’ contract rights.”11 private construction projects. Although Precision Pine received some early criticism,12 courts regularly relied on the “specifically targeted” standard Metcalf: Returning the Covenant of Good Faith and Fair to deny contractors relief.13 One court that adhered closely to Dealing to Its Roots the standard developed in Precision Pine was the Court of Assessing the jurisprudential impact of Metcalf requires Federal Claims in Metcalf Construction Company v. United understanding the context for the Federal Circuit’s land- States.14 The trial court concluded that a breach of the duty mark decision. In Metcalf,3 the Federal Circuit clarified of good faith and fair dealing claim against the government the contractor’s burden of proof on claims for breach of can “only be established by a showing that it was ‘specifically the implied duty of good faith and fair dealing. Before designed to reappropriate the benefits [that] the other party Metcalf, trial courts had developed a requirement that expected to obtain from the transaction, thereby abrogating the contractor must prove the government “specifically the government’s obligations under the contract.’”15 More- targeted” the contractor to trigger a breach of the duty. over, the trial court further stated that “incompetence and/ or the failure to cooperate or accommodate a contractor’s William E. Dorris is a partner and Reginald A. Williamson request do not trigger the duty of good faith and fair deal- an associate in the Atlanta, Georgia, firm of Kilpatrick ing, unless the Government ‘specifically targeted’ action to Townsend & Stockton LLP. obtain the ‘benefit of the contract.’”16 Published in Construction Lawyer Volume 37, Number 2, Spring 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 1 On appeal, the Federal Circuit rejected this “unduly In contrast, in ASI Constructors, Inc. v. United States,25 narrow view of the duty of good faith and fair deal- the government moved to dismiss a contractors’ claim for ing.”17 The Federal Circuit determined the discussion in breach of contract, differing site conditions, construc- Precision Pine regarding the “typical” cases involving a tive acceleration, superior knowledge and breach of the “variation on the old bait-and-switch,” including its use duty of good faith and fair dealing. The trial court found of the “specifically targeted” language, was limited to all claims were adequately alleged, denying the govern- the facts discussed in those prior cases.18 Going forward, ment’s motion. Specific to the contractor’s claim for the the Federal Circuit emphasized in Metcalf that “general government’s alleged violation of the implied duty, the standards for the duty apply” and that the implied duty government complained that the contractor’s claim was of good faith and fair dealing will depend on the par- expressly redundant to the contractor’s other claims. But ties’ “bargain in the particular contract at issue.”19 In this the court declined to determine this claim on a motion regard, the Federal Circuit endorsed the general stan- to dismiss, even where the claims “appear to overlap dards as stated in Centex, specifically that “the covenant substantially with those that form the basis for ASI’s of good faith and fair dealing . imposes obligations DSC, superior knowledge, and constructive acceleration on both contracting parties that include the duty not to claims.”26 Despite this “substantial overlap” however, the interfere with the other party’s performance and not to act contractor also alleged additional facts, specifically “the so as to destroy the reasonable expectations of the other failure of the Corps to provide guidance and direction to party regarding the fruits of the contract.”20 The Federal [the contractor’s] performance.”27 The court determined Circuit observed that while “[i]dentifying some acts as those alleged facts were sufficient to deny the govern- breaches of the duty, like subterfuges and evasions, may ment’s motion to dismiss.28 require little reference to the particular contract,” in gen- The contract-by-contract approach has enabled fairly eral “what that duty entails depends in part on what that creative assertions of the claim for a breach of the duty contract promises (or disclaims).”21 of good faith and fair dealing. Consider the claim of the contractor in Mansoor Int’l Dev. Servs., Inc. v. United Assessing the Impact of Metcalf on Government States.29 There, the contractor alleged that the government Contract Claims for Breach of the Covenant of breached the implied duty by refusing to pay certain ship- Good Faith and Fair Dealing ping invoices. The contracting officer denied the shipping The “contract-by-contract” approach emphasized by the invoices based in part on an audit of the contractor’s claims Federal Circuit in Metcalf certainly increased the volume that relied on a statistical analysis comparing the shipping of claims for breach of the duty of good faith and fair invoices against historical shipping data to create a “pay- dealing. Indeed, in the three years since the Federal Circuit out” expectation.30 The contractor claimed this statistical “loosened” the standard for the implied duty, over fifty analysis of its invoices violated the duty of good faith and decisions have been issued in courts and administrative fair dealing because it relied on data derived from unre- boards relying on the holding to analyze a contractor’s lated contracts and it did not consider the merits of each claim for breach of the duty. Those decisions, however, shipping invoice. The contractor further contended this have not always applied the standards consistently. methodology was “neither contemplated by the parties For example, the court in Meridian Engineering Company nor consistent with the express terms of the contract.”31 v. United States22 found there could be no claim for breach The court denied the government’s motion to dis- of the implied duty where the court had previously deter- miss, relying both on Metcalf as well as an arguably mined that the government did not breach the contract’s more expansive view of the government’s duty. First, provisions regarding payments, differing site conditions, or the court cited Metcalf for the principle that the implied design specifications. Emphasizing that the implied duty duty exists “because it is rarely possible
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