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.
For example, the Court of Appeals for the Federal Circuit has previously held that an uncorroborated affidavit submitted by the contractor that alleges duress is alone insufficient to withstand the government’s motion for summary judgment when that affidavit is presented years after the alleged bad faith conduct underlying the dispute. While an affidavit from the contractor may be generally sufficient to meet the evidentiary standard needed to avoid summary judgment in ordinary circumstances, this is not the case when allegations of quasi-criminal wrongdoing by government officials are involved. Therefore, in a case where the contractor alleges that it was under duress because the government official acted in bad faith, an uncorroborated affidavit by the contractor, without more, would be insufficient to create a genuine issue of material fact. In such a case, the strong presumption of good faith in favor of the government requires that the contractor present clear and convincing evidence that the official acted in bad faith.
To survive the government’s motion for summary judgment in the above example, the affidavit would have to demonstrate that the government had a specific intent to injure the contractor. The contractor could demonstrate the government’s specific intent to injure by alleging in the affidavit that the government official’s actions were motivated by malice, driven by animus, or part of a proven conspiracy against the contractor. The contractor could also allege that the government official’s actions were part of a course of government conduct that was designedly oppressive. Additionally, the affidavit would need to be corroborated, plausible, and prepared contemporaneously or within a reasonable period after the occurrence of the underlying events. Finally, specific to the contractor’s allegations of duress in this example, if the record demonstrates that the contractor had the support of counsel during the alleged period of duress, the adjudicative forum would be inclined to find the involvement of counsel as compelling evidence that the contractor did not suffer duress.
The presumption of good faith afforded to official government actions during the performance of a government contract poses a heavy evidentiary burden of “well-nigh irrefragable” proof on the contractor. Contractors may overcome this presumption by presenting evidence that the government had specific intent to injure them. Such a showing can be made through proof that government officials engaged in bad faith conduct against the contractor. While there is no exhaustive list of bad faith actions, conduct motivated by malice, animus, conspiracy, or part of a course of conduct that is designed to be oppressive may be most relevant to demonstrating the government’s specific intent to injure the contractor. Therefore, contractors alleging bad faith on the part of government officials should assess, as a preliminary matter, whether the government conduct at issue in their dispute falls under these broad categories of actions. By understanding this framework within which the presumption of good faith applies to official government actions during the performance of government contracts, contractors can be better prepared to identify and challenge bad faith conduct.
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.
