Duty to Cooperate and Not Hinder

摘要

Long established common law precedent, the implied promise of one party not to obstruct the other, is the basis for the Government's duty to cooperate with the contractor and not to hinder it during contract performance. Breach of this obligation commonly results in recovery of an equitable adjustment by the contractor under either a constructive change or constructive suspension theory. However, determining whether there has been a breach can be difficult as each case must be decided on its facts, the magnitude of Government fault required before allowing recovery is uncertain, and the broad scope of the implied promise complicates application of other traditional recovery theories. In its working relationship with the contractor the Government must avoid a destructive breakdown while still ensuring that it obtains its contractual entitlements. Although cooperation is especially critical in large and complex contracts, the Government is not required to make the work easier and has no duty to supervise a contractor's performance. Neither is it required to assist a contractor's early completion. However, the Government may not knowingly ignore contractor deviations during contract performance, hinder a contractor's early completion, or unduly pressure a contractor to complete performance. A contractor is also responsible for its own finances, although special considerations may apply for small businesses in the above areas. (sdw)