We proved that the COR’s lies prevented the contracting officer from forming a reasonable belief as to whether our client could timely complete the project.
The government awarded our client a contract to demolish and replace the main apron access and alert pavements at Buckley AFB. More than a year later, the government terminated the contract for default for failure to make progress to ensure timely completion. The only acceptable solution to the client’s problem was to convert the termination into one for convenience. We appealed the termination to the Court of Federal Claims (COFC).
We recognized early in discovery that the COR had misrepresented numerous facts to the CO and that the CO relied upon those misrepresentations in reaching his decision. For that reason, we tried to persuade the government the default was improper, but the government refused to listen. Because the case could not be settled and wasn’t amendable to summary judgment, we proceeded to trial.
At trial, we called the COR as our second witness and forced him to admit that he had lied to the CO about our client’s performance. We also proved a significant number of incorrect and incomplete statements the COR made to the CO and on which the CO relied in reaching his decision to terminate.
We argued that the COR’s hostility towards our client, combined with his misrepresentations and lies, prevented the contracting officer from forming a reasonable belief regarding our client’s ability to timely complete the project. The Court agreed, holding that “[a]s a result of that dishonesty, it seems impossible that the contracting officer’s evaluation of … timely completion was based on a reasonably held belief.” Accordingly, the Court ordered the termination for default converted into one for the convenience of the government.
The court’s decision is available here.
