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No 'bad Faith' Where Govt. Converted Default Termination To One Of Convenience

Thursday, December 01, 2011 06:04 am


Delay -- Termination

White Buffalo Construction, Inc. v. U.S., 2011 U.S. Ct. Fed. Cl. Lexis 1901 (Sept. 7, 2011) A terminated contractor couldn't make a "bad faith" claim against the government stick where its own failures gave the government reasonable concerns.

White Buffalo Construction, Inc. (White Buffalo) was delayed before it even began work on a project to repair damaged roads in Oregon's Siskiyou National Forest. The U.S. Department of Transportation, Federal Highway Administration, Western Federal Lands Division (FHWA) terminated White Buffalo's contract for default based on the contractor's failure to make timely progress. White Buffalo blamed FHWA for impeding its ability to complete the work on time. FHWA converted the termination to one of convenience, but White Buffalo continued to contend that the government engaged in bad faith conduct and caused construction delays. Unfortunately for the contractor, it could not show that the government intended to harm.

To show bad faith, White Buffalo needed to present evidence of specific intent to injure the contractor, which it did not do. Holt v. U.S., 1980 U.S. Ct. Cl. LEXIS 1151, 1980 U.S. WL 20813, *8 (Ct. C [...]

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