Reference: Penner v. United States
116 Ct. Cl. 550, 89 F. Supp. 545, aff'd, 340 U.S. 898 (1950)

At 563-64: "the contracting officer must act impartially in settling disputes. He must not act as a representative of one of the contracting parties, but as an impartial, unbiased judge. If the evidence shows he has failed so to act, there can be no doubt that we have jurisdiction to set aside his decision. Northern Pacific Railway Co. v. Twohy Bros. Co., 86 F.2d 220, 225; Anderson v. Imhoff, et. al., 34 Neb. 335, 51 N.W. 854, 856. The duty to act impartially was imposed upon him by contract. If we are convinced he has failed to discharge this contractual obligation, then his decision cannot have that finality provided for in the contract, and we are free to decide the case as we see it."

Reference: Fairfield Scientific Corp. v. United States
217 Ct. Cl. -,611 F.2d 854 (1979)

"The default clause does not say the Government "shall" or "must" terminate the contract in the event of default, only that the Government "may" terminate it. Not only is the contracting officer to consider whether or not the default is excusable, but the regulations require him to consider at least seven factors in addition to the default in deciding whether or not to teminate the contract. "The existence of discretion is undeniable." Schlesinger v. United States, 182 Ct. Cl. 571, 581, 390 F.2d 702, 707 (1968). If the contracting officer was improperly influenced by plaintiff's competitor or by anyone else to terminate the contract for default rather than to exercise his own independent judgment in the light of the factors set out in the regulations, it would represent an abdication rather than an exercise of his discretion."

Reference: Johnson Contracting Corp. v. United States
132 Ct. Cl. 645, 132 F.Supp. 698 (1955)

"the Court of Claims denied legal effect to a decision of a contracting officer denying contractor's claims for time extensions and terminating the contract for default. The court found that the contracting officer had initially intended to grant the time extensions but instead abdicated his contractual responsibility to the commanding officer of the base where the work was being performed by complying with the commander's demand that the contract be terminated and the work redesigned. The court also cited as basis for overturning the contracting officer's decision it's conclusion that the contracting officer's decision had been shaped by undue reliance upon advice from Government lawyers..."*

Reference: CJS Contracts Influence
17 C.J.S. (1939), 43 C.J.S. (1945)

The line between due and undue influence, when drawn, must be with full recognition of the liberty due every true owner to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of kindred, and when not hindered by personal incapacity or particular regulations, to dispose of his own property according to his own free choice.

Reference: Northrop Carolina, Inc. v. United States
213 Ct. Cl. 670, 553 F.2d 105 (1977)

"On this record, there is no question but that the contracting officer exercised his own independent discretion in terminating plaintiff's contract for default."
"As a result, his unavailability at this meeting was of no importance."

Reference: United States v. Moorman
338 U.S. 457 (1950)

Contractual provisions such as these have long been used by the Government. No congressional enactment condemns their creation or enforcement. As early as 1878 this Court emphatically authorized enforcement of contractual provisions vesting final power in a District Quartermaster to fix distances, not clearly defined in the contract, on which payment for transportation was based. Kihlberg v. United States, 97 U.S. 398. Five years later Sweeney v. United States, 109 U.S. 618, upheld a government contract providing that payment for construction of a wall should not be made until an Army officer or other agent designated by the United States had certified after inspection that "it was in all respects as contracted for." And in Martinsburg & Potomac R. Co. v. March, 114 U.S. 549, this Court enforced a contract for railroad grading which broadly provided that the railroad's chief engineer should in all cases "determine the quantity of the several kinds of work to be paid for under the contract, . . . decide every question which can or may arise relative to the execution of the contract, and 'his estimate shall be final and conclusive.' " In upholding the conclusions of the engineer the Court emphasized the duty of trial courts to recognize the right of parties to make and rely on such mutual agreements. Findings of such a contractually designated agent, even where employed by one of the parties, were held "conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith."
"In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand."

Reference: Cyclopedia of Law and Procedure Vol. XXXIX (1912)

"Where a contract for a government work provides that payment shall not be made therefor until a designated public agent has certified it, and the agent so appointed expressly refuses the certificate, the contractor cannot recover therefor, in the absence of fraud or such gross mistake as would imply bad faith, or a failure to exercise honest judgment..."

Reference: 27 Corpus Juris Secundum (1959)

When applied to public functionaries, the term refers to the power or right, conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others, but the power is to be exercised under the terms and procedure prescribed by the law granting the power, for the lawful exercise of discretion by such officials and fiduciaries involves a fair consideration of all peculiar features of the particular question to the disposition of which it is to be applied, and also the exercise of independent judgment.