# United States **Court of Appeals**  **for the Federal Circuit**

______________________

G4S TECHNOLOGY LLC, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2014

- 5078

______________________

Appeal from the United States Court of Federal
Claims in No. 1:12

- cv

- 00008, Judge Nancy B. Firestone.

______________________

Decided: March 6 , 2015

______________________

L EWIS S TEVEN W IENER , Sutherland Asbill & Brennan LLP, W ashington, DC, argued for plaintiff

- appellant. Also represented by G ERIN B RENDAN B ALLARD

.

D AVID A LAN L EVITT , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant -appellee. Also represented by S TUART F. D ELERY

, R OBERT E. K IRSCHMAN

, J R

., S COTT D. A USTIN

.

______________________G 4 S TECHNOLOGY LLC v. US 2

Before P ROST

, Chief Judge, N EWMAN and T ARANTO

, Circuit Judges.

Opinion for the court filed by Chief Judge P ROST

. Dissenting opinion filed by Circuit Judge N EWMAN

.
P ROST

, Chief Judge

. G4S Technology LLC (“G4S”) appeals from the United
States Court of Federal Claims’ grant of summary jud gment for the government. The Court of Federal Claims held that G4S is not a third party beneficiary of the

g overnment’s contract with Open Range Communications, Inc. (“Open Range”), and thus that the government is not

liable on G4S’s contract claims. We affirm.

B ACKGROUND

This case arises out of a $267 million loan from the Department of Agriculture’s Rural Uti lities Service (“RUS”) and Open Range to finance construction of wir eless broadband networks in 540 RUS

- approved markets. As part of the project, Open Range also planned to bring
wireless broadband service to a number of other markets outside the scope of the RUS loan. To finance this aspect of the construction, Open Range secured $97 million of venture capital financing from One Equity Partners III, L.P. (“OEP”). These agreements were announced in January 2009.

As part of the loan agreement with RUS, Open Range was required to keep a pledged deposit account, in which
RUS would advance loan funds as needed over the course of the project. To receive loan funds, Open Range was required to submit a financial require ment statement (“FRS”) outlining the purpose of the advance and inclu ding relevant invoices and purchase orders. While Open Range had some limited flexibility to shift funding from one purpose to another, Open Range was expected to useG 4 S TECHNOLOGY LLC v. US 3

the advanced funds for the purpose stated in the corr esponding FRS.

RUS anticipated that Open Range would execute the project through use of subcontractors. Accordingly, RUS and Open Range agreed that Open Range’s relationships
with subcontractors would be formalized throu gh m aster service agreements (“MSAs”). Each MSA included tec hnical specifications, pricing information, target completion dates, and other requirements. RUS edited and formally approved a generic MSA for Open Range to use in co ntracting with subcontracto rs. Open Range entered into one such MSA with G4S, which at the time was called
Adesta.

Unfortunately, the project encountered difficulties just eighteen months after the loan agreement was signed. In July 2010, the Federal Communications Co mmission (“ FCC”) suspended a spectrum permit belonging to Globalstar, Inc. Because Open Range licensed its spectrum rights from Globalstar, Open Range lost the spectrum rights necessary to operate the planned broa dband network. Under the loan agreement, loss of spe ctrum rights gave RUS the right to terminate the loan. Consequently, on July 14, 2010, RUS gave Open Range notice of its intent to terminate all remaining funds on the loan unless Open Range could obtain replacement spectrum rights.

Open Range relied on the RUS loan money to pay its subcontractors, including G4S, so the July 14, 2010 RUS notice to Open Range worried Open Range’s subcontra ctors. Soon after the notice, subcontractors’ fears were realized as Open Range began failing to meet its payment

obl igations. By mid

- September, Open Range had notified RUS by email that Open Range was behind in compensa ting its subcontractors.

Nonetheless, Open Range kept working to secure r eplacement spectrum rights. On September 22, 2010, theG 4 S TECHNOLOGY LLC v. US 4

FCC issued a temporary permit to Open Range giving Open Range spectrum access covering 264 of the origina lly planned 540 communities until January 31, 2011. The next day, Open Range emailed RUS to inquire about RUS advancing funds, given that some subcontractors were

threateni ng to leave the project. Lindsay Daschle, a Senior Advisor to the Secretary of Agriculture, responded by making loan money available and offering to reassure subcontractors that the project was moving forward. Daschle also submitted a letter to Open Range to serve as RUS’s press release.

Despite RUS’s efforts to bolster Open Range’s credibi lity, subcontractors remained concerned about the project’s ongoing viability. On October 4, 2010, a lobbyist for Open Range requested that RUS confirm in writing tha t RUS would continue to fund the project. RUS responded with two more public letters explaining that RUS would co ntinue funding the project, but that the plan would be downsized in light of Open Range’s failure to secure spectrum rights for the full scope of the original project.

With Open Range still struggling to meet payment deadlines to subcontractors, Open Range and RUS e xchanged emails on January 11 and 12, 2011 about fun ding a G4S subcontract that had been or ally approved by
RUS at the end of 2010. A meeting was quickly set up between Open Range and RUS to discuss the issue. Still, a weekly status report sent by Open Range to RUS on March 11, 2011 revealed that Open Range maintained outstanding debts to G4S.

As it became clear that Open Range wo uld be unable to regain the full spectrum rights necessary to complete the originally

- contemplated project, RUS and Open Range executed a loan amendment on April 29, 2011 to reflect the project’s decreased scope. The loan amount was reduced to $180 million, and the project was downsized to
cover 160 RUS

- approved markets. RUS also requiredG 4 S TECHNOLOGY LLC v. US 5

Open Range to secure $40 million of additional capital
from OEP. In turn, in the equity commitment letter to Open Range, OEP conditioned its obligation to make its capital payment to Open Range upon prior satisfaction of

t wo preconditions

— that Open Range and RUS had mod ified their l oan agreemen t and that RUS had advance d funds to Open Range for subcontractor work listed in two attached schedules, referred to as Schedules B

- 1 and B

- 2. Outstanding arrears to G4S were among those listed in
Schedules B

- 1 and B

- 2.

A fter the equity commitment letter w as signed, RUS and Open Range made the loan amendment and RUS advanced funds to Open Range to cov er the amounts in
Schedules B

- 1 and B

- 2, including $2.7 million that Open Range then paid to G4S. Still, Open Range was unable to pay G4S the full amount it owed.

Despite the loan amendment and new equity co mmitment letter, Open Range remained unable to s atisfy

its debts. Consequently, Open Range filed for bankruptcy on October 6, 2011.

While the bankruptcy proceedings were ongoing, G4S
filed the instant suit in the Court of Federal Claims on January 3, 2012. The government moved to dismiss, arguing th at the Court of Federal Claims lacked jurisdi ction because G4S was not in contractual privity with the
government. The Court of Federal Claims ruled that it would have jurisdiction if it found G4S to be a third party beneficiary of the RUS

- Open Range cont ract, so the Court of Federal Claims ordered discovery limited to that issue. After discovery was completed, the government renewed

its motion to dismiss. The Court of Federal Claims denied that motion, ruling that G4S had raised a non

- frivolous

claim. However, the Court of Federal Claims also co nverted the government’s motion into a motion for su mmary judgment and held that G4S is not a third party beneficiary under the RUS

- Open Range contract.G 4 S TECHNOLOGY LLC v. US 6

G4S appealed, and we have jurisdiction over this a ppeal p ursuant to 28 U.S.C. § 1295(a)(3).

D ISCUSSION

Summary judgment is appropriate when the record, examined in the light most favorable to the non

- movant, demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitle d to a judgment as a matter of law.” R. Ct. Fed. Cl . 56(c); see also Fed. R. Civ. P. 56(c) (same). We review the Court of Federal Claims’ decision granting summary judgment de

novo, drawing all justifiable factual inferences in favor of
G4S. Ammex, Inc. v. United States

, 384 F.3d 1368, 1371 (Fed. Cir. 2004). Whether G4S is a third party beneficiary under the RUS

- Open Range contract is a mixed question of law and fact. Glass v. United States

, 258 F.3d 1349, 1353 (Fed. Cir. 2001).

“A nonparty becomes legally entitled to a benefit promised in a contract .

. . only if the contracting parties
so intend.” Astra USA, Inc. v. Santa Clara Cnty., Cal.

, 131 S. Ct. 1342, 1347 (2011); see also US Ecology, Inc. v.
United States , 245 F.3d 1352, 1356 (Fed. Cir. 2001) (an alyzing whether the government “intended for the alleged contract to ‘confer a right’ on any third party”) quoting
Montana v. United States

, 124 F.3d 1269, 1273 (Fed. Cir. 1997)). This intent may be either “express or implied,”

a nd it must be “fairly attributable to the contracting
officer.” Glass , 258 F.3d at 1354; Flexfab, L.L.C. v. United
States , 424 F.3d 1254, 1263 (Fed. Cir. 2005). In addition, the benefit to the third party must be “direct.” Glass , 258 F.3d at 1354; see a lso Restatement (Second) of Contracts § 302, Illustration 3 (distinguishing between intended and incidental beneficiaries based on whether a payment is made directly to the third party). “[T]he Supreme Court has recognized the exceptional privilege that t hird

- party beneficiary status imparts,” and we have accordingly cautioned that the privilege of third party beneficiaryG 4 S TECHNOLOGY LLC v. US 7

status “should not be granted liberally.” Flexfab , 424 F.3d at 1259 (citing German Alliance Ins. Co. v. Home Water Supply Co.

, 226 U.S. 220, 230 (1912)).

The parties agree that the contract contains no e xpress declaration of intent. “In the absence of clear gui dance from the contract language, the requisite intent on the part of the government can be inferred from the
actions of the cont racting officer and circumstances providing the contracting officer with appropriate notice that the contract provision at issue was intended to benefit the third party.” Id . at 1262

– 63. G4S thus relies on circumstantial evidence to establish that the go ver nment intended to bind itself to Open Range’s subcontra ctors.

Circumstantial evidence of governmental intent to bind itself to a third party must be considered in the context of the government’s responsibilities to safeguard taxpayer funds and advance the public interest. In part to ensure that projects are executed consistent with these responsibilities, extensive regulatory schemes often
govern government contracts. Given that third party beneficiary status is an “exceptional privilege,” rarely will standard compliance with these regulatory schemes impart liability to a third party. German Alliance

, 226 U.S. at 230; see Astra , 131 S. Ct. at 1348 n.4 (“We can infer no such [third party beneficiary] authorization where a contract simply incorporates statutorily required terms and otherwise fails to demonstrate any intent to allow beneficiaries to enforce those terms.”). This propos ition holds when the government exercises substantial oversight over the project. See US Ecology , 245 F.3d at

1356

– 57 (finding that, despite the government’s inte ntions to substantially oversee a subcontractor’s work, the subcontractor was not a third party beneficiary to the
government- prime contractor contract). Indeed, the government’s duty to the public ofte n compels such ove rsight. Therefore, while circumstantial evidence mayG 4 S TECHNOLOGY LLC v. US 8

establish that the government intended to bind itself to a third party, see, e.g.
, D&H Distrib. Co. v. United States

, 102 F.3d 542, 546

– 48 (Fed. Cir. 1996), the government’s

conduct sh ould be evaluated in the context of its respons ibility to protect the public interest.

Turning to the facts of this case, G4S cites several pieces of evidence which it argues indicate the gover nment’s intent to guarantee that subcontractors were paid.

Fir st, G4S places heavy reliance on the government’s use of a pledged deposit account (“PDA”) to advance funds to Open Range so that subcontractors like G4S could be paid. The loan agreement between Open Range and RUS required Open Range to maintain a PDA as a condition for obtaining draws on loan funds. To receive funds, Open Range had to request an advance in a Financial Requir ements Statement indicating the purpose of the advance. Open Range also had to submit supporting materials such as invoices or purchase orders. Because RUS often a dvanced funds to the PDA for specific, approved work by subcontractors, G4S argues that the government intended that subcontractors benefit from the loan agreement.

There are several flaws in G4S’s position. First, the

PD A was a general fund used by RUS and Open Range to pay the costs of the project. Rather than to serve as a

mechanism to guarantee that subcontractors were paid, the purpose of the PDA was to assist the government in reviewing and approving the costs of th e project, whether or not they were related to subcontractor work. While RUS often advanced funds to Open Range that were tied to specific subcontractor work, this alone does not demo nstrate that the government intended to make itself liable

to subcontrac tors.

Second, longstanding precedent requires that the benefit to a third party beneficiary be “direct,” and here the benefit to subcontractors from the loan agreement

was not. See German Alliance , 226 U.S. at 230 (“Before aG 4 S TECHNOLOGY LLC v. US 9

stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must, at least, show that it was intended for his direct benefit.”); Glass , 258 F.3d at 1354 (“In order to prove third party beneficiary status, a party must dem o nstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.”). Here, all payments from RUS were distributed to G4S indirectly. RUS always paid Open R ange, which then paid G4S pursuant to the Open Range

- G4S contract.

In cases where we have found a subcontractor to be a third party beneficiary based on a payment mechanism, the subcontractor was always paid by the government more directly than in the circ umstances of this case. For example, in D&H Distributing Co. v. United States , the government made the prime contractor and subcontractor joint payees under the government

- prime contractor

contract. 102 F.3d at 546

– 48. And in J.G.B. Enterprises,

Inc. v. United States , the government payments to the prime contractor were held in escrow for the third party

subcontractor. 497 F.3d 1259, 1260, 1261 n.1 (Fed. Cir. 2007). These payment arrangements are not the only payment mechanisms that can make a subcontr actor a third party beneficiary, but our cases require more than a payment to a contractor’s general fund, even if the go vernment knows that subcontractors will be due certain portions of the fund.

Third, a PDA is a standard aspect of every RUS Broadband Initiatives Program contract. See Rural Utilities Service Broadband Initiatives Program Contrac ting, Work Order and Advance Procedures Guide, 9,
available at http://www.rurdev.usda.gov/supportdocuments/BIP_Contr acting_and_Advan ce_Procedures_Guide_3-4- 10.p df

. The government’s procedures for approving Open Range’s expenditures and advancing funds certainly fall withinG 4 S TECHNOLOGY LLC v. US 10

the government’s responsibilities to safeguard taxpayer funds and advance the public interest. As the PDA was a standard RUS contractual pro vision designed to effect these governmental responsibilities

— and not to guara ntee that G4S was paid

— the PDA does not weigh in favor of finding that the government intended to make itself
liable to G4S. Astra , 131 S. Ct. at 1348 n.4.

A similar analysis ap plies to the evidence regarding
the MSA and Schedules B

- 1 and B

- 2. Both are common
documents. As to the MSA, Open Range submitted a generic MSA for RUS comment and approval. RUS approved a MSA template for Open Range to use with its

subcontractors. When contracting with G4S, Open Range used a materially identical version of the generic MSA, but RUS apparently never reviewed the Open Range -G4S
MSA. The MSA template included various technical specifications and work requirements. The government

thus used MSAs to exercise oversight over Open Range
and its subcontractors. However, that oversight is entir ely consistent with the government’s general duty to protect the public interest. If anything, the fact that RUS did not individually approve Open Range’s MSAs with each subcontractor indicates that RUS kept some distance
between itself and the subcontractors. Rather than establish that RUS communicated any intent that it be bound to G4S, the MSA merely set baseline requirements
for what constitutes a cceptable work.

Schedules B

- 1 and B

- 2, which were attached to the loan amendment, outline the revised amounts for subco ntractor work to be advanced to Open Range. G4S chara cterizes the schedules as proof of direct payments from
RUS to G4S. However, Sched ules B

- 1 and B

- 2 are little
different from the financial requirements statements Open Range was required to periodically submit to RUS
over the course of the contract. Significantly, Schedules

B- 1 and B

- 2 demonstrate only that RUS was aware that

subcontra ctors like G4S were contracted by Open RangeG 4 S TECHNOLOGY LLC v. US 11

to work on the project and that the subcontractors would likely be paid out of funds RUS advanced to Open Range. This evidence is hardly sufficient to prove that the benefit to G4S was direct and that the gover nment intended to
bind itself to G4S. Schedules B

- 1 and B

- 2 are just further examples of standard documents showing that the go vernment exercised typical project oversight to be expected of a governmental body entrusted with taxpayer funds.

G4S also direc ts the court to several statements by RUS expressing concern about subcontractors not being paid by Open Range. For example, after learning that vendors were becoming seriously concerned that Open Range would not meet its payment obligations, RUS

issued a September 23, 2010 letter in which it authorized “immediate release of the present in

- house advance request for $14 million and the additional request for $5

million

. . . .” Further, Lindsay Daschle, a Senior Advisor to the Secretary of Agriculture mentioned earlier, told Open Range that her “team feels the letter will serve as the press release and we will continue to talk to anyone (vendors, press, etc.) who we need to help calm fears and rebuild credibility.”

Although G4S characterizes these stateme nts as showing that RUS wanted to guarantee that subcontra ctors were paid, G4S overreads the statements. In fact, RUS’s public letter and Daschle’s email to Open Range

express concern about Open Range ’s credibility with

subcontractors after Open Range had fail ed to timely pay
them for their work. Consequently, Daschle proposed the solution of talking to subcontractors like G4S for the purpose of rebuilding Open Range’s credibility with

subcontractors. G4S provides no evidence that it ever

communicated di rectly with RUS. The communications between RUS and Open Range thus reinforce the concl usion that Open Range , not RUS, was the party entering into obligations with subcontractors such as G4S. Because Open Range had the ultimate authority over su b-G 4 S TECHNOLOGY LLC v. US 12

contract ors, RUS

— which was primarily responsible for ensuring the project was eventually completed

— prioritized supporting Open Range so that Open Range could maintain a good relationship with its subcontra ctors. Therefore, the government did not express any

inten t that it be held liable for payments to subcontra ctors.

G4S’s remaining evidence supports the conclusion that G4S is not a third party beneficiary of the RUS

- Open Range contract. Eleven days after the September 23, 2010 letter, Open Range sent an email t o RUS in which it indicated that it was facing severe financial trouble and that several subcontractors, including G4S, were especia lly concerned. RUS Assistant Administrator David Villano responded the next day on October 5, 2010, stating that
he was willing to have a conference call with subcontra ctors. After Open Range replied that a conference call would be insufficient, RUS issued two additional public letters to Open Range. These letters give certain fina ncial details, state that the projec t is going forward, and assure Open Range that RUS will continue to pay Open Range as work is done.

These further communications are subject to the same analysis as the September 23, 2010 letter and following

emails. Even though RUS exhibits substantial concern for Open Range’s financial obligations to subcontractors, this concern is always directed toward Open Range and the project’s viability. RUS recognized that the project would not go forward if subcontractors ceased perfo rmance, so RUS committed to affirming Open Range’s credibility and solvency. Significantly, however, RUS always left Open Range to use its new credibility in separate dealings with its subcontractors.

To summarize, RUS could have provided guarantees directly to G4S. RU S could have arranged to pay G4S
itself. However, it did neither. Unlike in D&H andG 4 S TECHNOLOGY LLC v. US 13

J.G.B. , the government made no special payment a rrangements. In fact, RUS did not even directly commun icate with G4S. While RUS offered to speak to subcontractors, the purpose of t hose conversations was always to rebuild Open Range’s credibility and subco ntractors’ confidence in the project. These actions evince only that RUS intended that the project move forward and that its investment of public funds not be wasted. Therefore, the September and October 2010 communic ations do not raise a genuine issue of material fact as to the government’s intent to bind itself to G4S.

In conclusion, the government’s actions never devia ted from the scope of its sovereign responsibilities to safeg uard taxpayer funds and advance the public interest. G4S asks that the government incur liability because it talked to the individuals in charge of a failing project in an attempt to fix the problems. If anything, this sort of governmental response shoul d be encouraged. If G4S were to prevail here, almost any subcontractor over which the government exerts meaningful oversight and whose work is funded indirectly by the government would be a third party beneficiary of the government’s contract with the prime contractor. That cannot be so. As such, the evidence, viewed in the light most favorable to G4S, is insufficient to establish that RUS and Open Range i ntended that G4S be legally entitled to directly benefit
from the contract. Therefore, the Court of Federal Claims properly granted the government’s motion for summary judgment and held that G4S is not a third party beneficiary to the RUS

- Open Range contract.

C ONCLUSION

Accordingly, we affirm the Court of Federal Claims’ grant of the government’s motion for summary judgment. G4S is not a third party beneficiary of RUS’s contract with Open Range.

AFFIRMED

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

G4S TECHNOLOGY LLC, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2014

- 5078

______________________

Appeal from the United States Court of Federal
Claims in No. 1:12

- cv

- 00008

- NBF, Judge Nancy B. Fir estone.

______________________
N EWMAN

, Circuit Judge , dissenting.

I respectfully dissent. The panel majority, in sustai ning summary judgment in favor of the government, holds that the Rural Utilities Service of the Department of Agriculture (the “ government” or “ RUS ” ) cannot be liable for payment to the sub

- contractor for work performed in response to the government’s requests to continue with the project, amid government reassurances and actions “to rebuild Open Range’s credibility and subcontractors’ confidence in the project.” The government provided such reassurance repeatedly, for “RUS intended that the project move forwa rd ; ” whereupon the subcontractor continued to perform based on these government repr esentations. Maj. Op. at 13.G 4 S TECHNOLOGY LLC v. US 2

T he government ambitiously planned the construction of an electronic and digital information and communic ations system to provide broadband service to the vast
rural areas of the nation . The project was implemented by “master service agreements” between Open Range and each subcontractor; each master service agreement was reviewed, adjusted, and approved by RUS. E ach contract phase required p rior authorization and approval by RUS. The work for which G4S here seeks payment had been authorized and approved by RUS.

When G4S and other subcontractors declared their i ntention to cease work because Open Range was not paying them the approved amounts for work already done , RUS provided reassurance to the subcontractors, issued press releases, deposited additional funds with Open Range, and urged that performance continue

. My colleagues state that they “encourage” such governmental interve ntion. See id . at 13 (“G4S asks that the government incur liability because it talked to the individuals in charge of a failing project in an attempt to fix the problems. If an ything, this sort of governmental response should be e ncouraged. ”). B ut even as the court recognize s that the government persuaded the subcontractors to continue performance, the court also hold s that the government can avoid payment for the performance it solicited and

obtained.

The government moved in the Court of Federal Claims for summary judgment of no liability , and that court granted the motion on the ground that the subco ntractors are not “third party beneficiaries” of the prime contract. No other theory was discussed in the court’s
decision. T he panel majority affirms on the ground t hat
G4S , as a subcontractor, is not a third party beneficiary of the contract between RUS and Open Range. However,
third

- party

- beneficiary theory is not as rigid as my co lleagues state, and depends on the actual relationship among those concerned.G 4 S TECHNOLOGY LLC v. US 3

T he claim before us is for payment for the work G4S

did , after receiving the government’s and Open Range’s

reassurance s of payment

. G4S seeks this payment for work done at the urging of the government, work that had previously been authorized by the government in accor dance with the subcontract terms approved and in large
part drafted by the government.

The complex of these arrangements is not that of si mple prime

- and sub

- contractor obligations. T he summary judgment record is not fully developed, but the facts at this stage plausibly support an obli gation on the gover nment, in law and/or in equity , to pay for that which it requested and urged

. Such an obligation may arise on the
facts of particular relationships , not on the ge neralities of third party b eneficiary law

. I would remand for determ ination of the obligations incurred on the specific facts of

this case.

T he United States, like other parties in contractual relationships , may be liable for benefits solicited and

receiv ed, for which compensation was promised and expected. As explained in Metcalf Construction Company,

Inc. v. United States , “ [e] very contract imposes upon each party a duty of good faith and fair dealing in its perfo rmance and enforcement.” 742 F.3d 984

, 990 (Fed. Cir. 2014) (citing Restatement (Second) of Contracts § 205 (1981)). T his principle applies to contracts with the federal government. E.g.

, Mobil Oil Exploration & Pr oducing S.E., Inc. v. U nited S tates , 530 U.S. 604, 607 ( “When the United States enters into contract relations, its rights and duties therein are governed generally by

the law applicable to contracts between private individ uals.”) ( quoting United States v. Winstar Corp. , 518 U.S. 839, 895 (plurality opinion) (i nternal quotation marks omitted)) ; Precision Prime & Timber, Inc. v. U nited
S tates, 596 F.3d 817, 828 (Fed. Cir. 2010); Malone v.

U

nited S tates , 849 F.2d 1441, 1445

– 46 (Fed. Cir. 1988)

.G 4 S TECHNOLOGY LLC v. US 4

T he panel majority holds that the government cannot be held liable for paying for the work done by G4S , re asoning that it is a “sovereign responsibili [ty] to safeguard taxpayer funds.” Maj. Op. at 13. T he sovereign has many responsibilities, including that of paying for work that it
requests and receives

. See Metcalf Constr. Co. , 742 F.3d at 994 (“[A] breach of the implied duty of good faith and fair dealing does not require a violation of an express provision in the contract.”) (emphas e s in original); Eric A. Frechtel, “ The Government Must Administer its Contracts

Fai rly and Reasonably ,” 54 C ONTRACT M GMT

. 30 ( 2014 ).

In sum, in view of the undisputed premise that a uthorized work was done by G4S in reliance on the go vernment’s assurances, this case warrants exploration of the equities as well as the law. The Court of Fe deral Claims did not reach this aspect. I would remand for this

purpose

.