The presumption of good faith presumes that government officials carry out their obligations during the performance of a government contract in good faith. The presumption is at its strongest when contractors allege quasi-criminal wrongdoing by government personnel acting in the course of their official duties. To overcome the presumption of good faith in this context, contractors must present “well-nigh irrefragable” proof. In other words, contractors must present evidence that cannot be refuted or disproved. Compared to the three standards of proof generally recognized by courts, the “well-nigh irrefragable” proof standard is the closest to the clear and convincing standard. This standard imposes a heavier burden on the contractor than imposed by the preponderance of the evidence standard but a somewhat lighter burden than requiring proof beyond a reasonable doubt, reserved for criminal cases. Clear and convincing evidence has also been described as evidence that produces an abiding conviction in the mind of the judge that the truth of the factual contention is highly probable.

The presumption of good faith can be difficult to overcome when applied in the context of allegations of quasi-criminal wrongdoing by government officials. Nevertheless, contractors may meet the “well-nigh irrefragable” proof standard if they present evidence of the government’s specific intent to injure the contractor. Such evidence may include government actions that amount to bad faith. Bad faith actions are motivated by malice, animus, conspiracy, or otherwise part of a course of governmental conduct designed to be oppressive. In the absence of evidence of the government officials’ specific intent to injure it, the contractor will find it challenging to overcome the strong presumption that the government’s administrative actions are correct and taken in good faith. Overcoming the presumption of good faith may be particularly difficult when a significant amount of time has passed between the occurrence of the underlying events and the contractor’s subsequent allegations of bad faith.

Unsuccessful contractors may challenge contract award decisions on the grounds that the agency misevaluated proposals, which prejudiced the protestor. Experienced contractors understand that in post-award protest cases, the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) do not replace their opinions or the protester's viewpoints with the agency's evaluation. Instead of reevaluating offerors’ proposals, the agency record is examined to determine whether the source selection decision was reasonable and whether the agency’s evaluation was consistent with the solicitation’s evaluation criteria. That is because the evaluation of proposals is considered squarely within the agency’s discretion. Thus, even if there are two or more reasonable subjective interpretations or positions on technical evaluation details, the agency’s evaluation position will prevail as long as it is reasonable and consistent with the stated criteria.

It should be noted, however, that the agency’s evaluation is only afforded discretion so long as the award is reasonable and consistent with the terms of the solicitation. In B-421567; B-421567.2, a 2023 protest decision, the GAO sustained a protest challenging the agency evaluation of the awardee’s proposal after finding that the agency failed to evaluate technical proposals consistent with the solicitation’s evaluation criteria. In that post-award protest involving the award of a task order under the Army’s ITES-3S IDIQ contract on a best-value basis, GAO found that it was unreasonable for the agency to evaluate the awardee’s technical proposal as meeting the requirements when the awardee’s IDIQ level labor categories did not fully meet the task order solicitation’s position requirements. In its decision, the GAO additionally found that the protestor was prejudiced by the Agency’s failure to enforce the solicitation requirements when evaluating the awardee’s proposal because had the protestor known that the agency would accept labor categories that did not fully meet the requirements of the task order, the protestor could have proposed less qualified labor categories, thus achieving cost-savings and lowering its total evaluated price in the process.

Acquisition planning on U.S. federal contracts requires the contracting activity to coordinate and integrate the efforts of all personnel responsible for the acquisition via a comprehensive plan that fulfills the government’s requirements in a timely manner and at reasonable cost. The Competition in Contracting Act (CICA) of 1984, implemented by Federal Acquisition Regulation (FAR) Part 6, mandates full and open competition in federal procurement. Consequently, while there are limited exceptions enumerated in FAR § 6.3, federal agencies must generally use competitive procedures in procuring products and services. Furthermore, federal agencies are expressly prohibited from entering contracts for property or services by utilizing non-competitive procedures when they have failed to properly plan the procurement in advance.

Contractors looking to challenge the Government’s use of non-competitive procedures in such improperly planned procurements must be prepared to demonstrate that the agency’s decision was unreasonable under the particular circumstances of that procurement. In 2014, the Bureau of Indian Affairs (BIA), an agency under the Department of Interior (DOI), was involved in a procurement contract for technology services. The procurement at issue was a Buy Indian Set-Aside conducted under the Buy Indian Act of 1910, and the eventual contract was awarded to an eligible non-incumbent contractor. However, a week before the conclusion of the predecessor contract, the incumbent contractor timely protested the award at the Government Accountability Office (GAO). In response, the BIA informed the GAO that it intended to take corrective action and requested that the GAO dismiss the incumbent’s protest.

It is common for individuals to switch roles between the public and private sectors in the federal contracts industry. Also known as the "revolving door" in industry parlance, this practice often leads to government officials leaving their positions to work for federal contractors or contractor employees obtaining roles in government agencies that regulate or award contracts to their former employers. As one can imagine, this practice can and often does lead to actual or perceived conflicts of interest at various stages of the procurement process. The Federal Acquisition Regulation (FAR) subpart 9.5 describes three types of organizational conflicts of interest (OCI) that may arise during the procurement lifecycle. These include biased ground rules, unequal access to non-public information, and impaired objectivity. Moreover, FAR § 3.1101 defines personal conflict of interest as a situation in which a covered employee has a financial interest, personal activity, or relationship that could impair the employee's ability to act impartially and in the government's best interest when performing under the contract.