Understanding Presumptions of Good Faith and Regularity in Government Actions

The presumptions of good faith and regularity are often invoked by the government as defenses in U.S. federal procurement litigation. In addition to promoting public confidence in the procurement system, these presumptions help ensure that agencies make timely, effective, and efficient administrative decisions throughout the procurement lifecycle. While these terms are often used interchangeably, experienced contractors are aware that they are distinct concepts with differing applications. Understanding the differences in applications 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 good faith presumption means that government officials are presumed to act in good faith in carrying out their official functions and obligations. 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.

Bad faith actions can be defined as government actions taken with the intent to harm the contractor. Whereas biased government actions can be described as actions that suggest a lack of integrity, accountability, transparency, or general fairness in procurement. When a protestor accuses agency officials of bad faith and bias during a bid protest, the adjudicative forum will assume that the agency officials were acting in good faith, as long as they were performing their official duties. In the context of contract performance, the good faith presumption provides legal protection to government officials acting in their official capacities against allegations of bad faith and bias.

As contractors may anticipate, the presumption of good faith is 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 government bad faith and bias with clear and convincing evidence. An evidentiary standard surpassed only by the beyond-a-reasonable doubt standard reserved only for criminal cases.

However, contractors should also understand that considerably lower evidentiary standards apply in the absence of allegations of bad faith or bias. Instead of clear and convincing evidence, the presumption of good faith afforded to government actions not challenged by allegations of bad faith or bias may be overcome with inferences such as lack of substantial evidence, gross negligence, or government error. Depending on specific facts, it may, therefore, be advisable for contractors in most situations to avoid making allegations of bad faith or bias by government officials unless they have nearly indisputable proof supporting their allegations. By avoiding making such allegations, contractors can benefit from lower evidentiary standards in overcoming the presumption of good faith.

o The Presumption of Regularity

The presumption of regularity is related but distinct from the presumption of good faith. The presumption of regularity generally applies when adjudicative forums need to presume the occurrence of certain predicate actions based on proof of their final results. In other words, public officials are presumed to conduct their official duties properly as long as the usual results expected as the result of such duties occur. Contractors may rebut a presumption of regularity by presenting a preponderance of the evidence, otherwise known as the “more likely than not” standard. Notably, this evidentiary standard is much lower than the clear and convincing evidence needed to overcome the presumption of good faith in the context of allegations of bad faith and bias.

However, the presumption of regularity may also be difficult to overcome in certain specific situations, such as during discovery proceedings in bid protest matters. To overcome the presumption of regularity to compel government discovery in bid protest cases, contractors may need to present evidence demonstrating that government action(s) at issue were arbitrary and capricious.

Though somewhat similar, the presumptions of good faith and regularity are different legal concepts with nuanced applications. Additionally, since they are related concepts, the government may not always invoke the appropriate presumption. Having a good understanding of these presumptions and the differences in their specific applications can help contractors achieve successful litigation outcomes.

This U.S. 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 may consult their TILLIT LAW PLLC client portal or contact their attorney to determine how the law would apply in a specific situation.