The statute could also require the government to furnish to the relator and the defendant the memorandums that explain the basis for the decision not to intervene. Those alleged to have defrauded the United States, even those wrongfully accused, are not a particularly attractive constituency. It is doubtful that such legislation will ever be proposed, much less enacted. Therefore, the question now is whether contractors have any recourse when the government permits and unmeritorious qui tam action to go ahead. Although the issue has never been addressed squarely, there may be contractual remedies.
Every contracts contains an implied duty of good faith and fair dealing.
The Restatement provides significant guidance as to the scope of the duty of good faith and fair dealing. In that case, the court held that, where a contractor's performance requires the government's cooperation, the government by necessary implication promises to give its cooperation and, if it fails to do so, is immediately liable for damages. The duty of cooperation has been imposed in a wide variety of procurement settings. Measured against these standards, the government's behavior in the context of unadopted qui tam actions raises serious questions. Few would argue that if, in performing a complex contract, a contractor encounters unanticipated technical hurdles, the government may stand silently by with key information while significant time and costs are expended by the contractor attempting to overcome the problems.