stating that constructive resort to a termination clause “occurs in situations in which the government has stopped or curtailed a contractor’s performance for reasons that turn out to be questionable or invalid”
How later courts described this case
- stating that constructive resort to a termination clause “occurs in situations in which the government has stopped or curtailed a contractor’s performance for reasons that turn out to be questionable or invalid”
- observing that while “parties to a contract may freely agree to various forms of risk allocation, . . . it is just as clear that parties may not agree that one or both may walk away from all obligations without rendering the contract unenforceable” as illusory
- stating that in a requirements contract, the “question is whether it is implicit in these [contract] terms ... that the [buyer] promised to gives all of its work” to plaintiff
- stating that “the government, unlike private parties, is assumed always to act in good faith, subject only to an extremely difficult showing by the plaintiff to the contrary”
Written by the judges who cited it.
Distinguished
Distinguished by Vila & Son Landscaping Corp. v. Posen Construction, Inc., 2012 Fla. App. LEXIS 15741 (2012)
Not only has the court of claims disavowed much of Torncello, the case is factually inapposite.
The opinion
FRIEDMAN, Chief Judge,
concurring:
As I understand the court’s opinion, the court holds only that when the government enters into a requirements contract, knowing that it can obtain an item the contract covers for less than the contract price and intending to do so, there cannot be a constructive termination for convenience of the government when the government follows that course. On that basis, I join in the opinion.