The government often invokes the presumptions of good faith and regularity in federal procurement litigation. With the invocation of these presumptions, the government asserts that its officials make timely, effective, and efficient administrative decisions throughout the different stages of the procurement lifecycle. While these terms are often used interchangeably and have a similar goal of promoting public confidence in the procurement system, experienced contractors understand that they are distinct concepts with differing applications. Consequently, understanding the differences in the application of these presumptions and the varying levels of proof required to overcome them can make or break a bid protest or claims litigation.
o The Presumption of Good Faith
The presumption of good faith essentially means that government officials are presumed to act in good faith when carrying out their official functions and obligations. In other words, as long as government personnel are acting within the scope of their official duties, they are presumed to act in good faith. While this presumption may be applicable in a variety of contexts throughout the procurement lifecycle, it is at its strongest when contractors allege that prejudicial agency actions were motivated by bad faith or bias of government officials.
Meanwhile, bad faith actions can be defined as government actions taken with the intent to harm the contractor. Similarly, biased government actions can be described as actions that suggest a lack of integrity, accountability, transparency, or general fairness. Notably, when a protestor accuses agency officials of bad faith or bias during a bid protest, adjudicative forums will generally presume that the agency officials were acting in good faith as long as they were performing their official duties.
Therefore, the presumption of good faith can be very difficult to overcome when applied in the context of allegations of bad faith or bias by government officials. To overcome the presumption of good faith in this context, contractors must support their allegations of bad faith and bias with clear and convincing evidence. This evidentiary standard is surpassed only by the “beyond a reasonable doubt” standard reserved only for criminal cases in our justice system.
Thus, it is crucial for contractors to understand that in the absence of allegations of bad faith or bias, considerably lower evidentiary standards apply. For instance, when not challenged by accusations of bad faith or bias, the presumption of good faith may be overcome with inferences as opposed to requiring clear and convincing evidence. In such situations, adjudicative forums may draw inferences from lack of substantial evidence, gross negligence, or government error. Therefore, depending on specific facts, it may be advisable for contractors in many situations to avoid making allegations of bad faith or bias altogether unless they have nearly indisputable proof supporting such allegations. By not making such allegations, contractors may benefit from lower evidentiary standards in proving specific facts or the occurrence or non-occurrence of certain events at various stages of the acquisition.
o The Presumption of Regularity
The presumption of regularity is a related but distinct concept from the presumption of good faith. This presumption is generally applicable when adjudicative forums are required to presume the occurrence of certain predicate actions based on the proof of their final results. Under the presumption of regularity, public officials are presumed to carry out their official duties properly as long as the usual results expected as a natural consequence of such duties occur. Contractors may rebut the presumption of regularity by meeting the preponderance of the evidence standard, which is much lower than the clear and convincing evidence standard that must be met to rebut the presumption of good faith amidst allegations of bad faith or bias by agency officials.
In the context of rebutting the presumption of regularity, a preponderance of the evidence only requires contractors to provide sufficient evidence to demonstrate that it was more likely than not that the predicate actions did not occur despite their usual results. However, even the presumption of regularity may be challenging to overcome in certain situations, such as to compel government discovery in bid protest matters. Depending on the facts, contractors may need to present evidence demonstrating that government actions were arbitrary and capricious to overcome the presumption of regularity under such circumstances.
At various stages of the procurement lifecycle, the presumptions of good faith and regularity provide legal protection to government officials acting within the scope of their official duties and in their official capacities. Although somewhat similar, these presumptions are different legal concepts with nuanced applications. Importantly, since they are related concepts, the government may not always invoke the appropriate presumption in different litigation scenarios. Therefore, understanding these presumptions and the differences in their specific applications can help contractors obtain successful litigation outcomes.
This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
