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 purported decision of the contracting officer denying the plaintiff an extension of time, and terminating the contract for the plaintiff's fault, was a nullity. As to one aspect, it was not his decision, and as to the other, it was a decision arrived at for an irrelevant reason. Yet his decision went, on appeal, to the Board of Contract Appeals, clothed, presumably, with some presumption of correctness, because of his competence and his intimate knowledge of the facts. The interposition of the commanding officer and the Government lawyers into the situation, which nullified the contracting officer's decision, were, so far as appears, not known to the plaintiff or to the Board. They were disclosed upon the trial of the case in this court. Whatever justification there may have been for the Board's decision upon the basis of the facts known to it, we feel certain that if it had had the evidence which we have, and which was in the possession of the Government and unknown to the plaintiff, it would have remanded the case to the contracting officer for a decision properly arrived at. That decision, presumably, would have been the one that he intended to make before he was overruled by the commanding officer and influenced by the 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.

Reference: General Electric Corporation v. United States
188 Ct.Cl 620, 412 F.2d 1215 (1969)

As we have emphasized numerous times, it is the unfettered opinion of the person delegated as decision-maker by the parties to the contract that is determinative. E.g., New York Shipbuilding Corp. v. United States, 385 F.2d 427, 180 Ct.Cl. 446 (1967) (and cases cited); John A. Johnson Contracting Corp. v. United States, 132 F. Supp. 698, 132 Ct.Cl. 645 (1955). There is no evidence in this record that Colonel McDermott was not expressing his own opinion when he concurred in Mr. Marcus’ recommendation. Cf. John A. Johnson Contracting Corp. v. United States, supra. Accordingly, the decision of a duly authorized contracting officer could not be defeated by a funding official at the Army Weapons Command. Nor, by implication, could Colonel McDermott’s finding be reversed by a successor contracting officer. See Climatic Rainwear Co. v. United States, 88 F. Supp. 415, 115 Ct.Cl. 520 (1950). Mr. Lindblad’s determination of September 1966 was therefore a nullity.

Defendant has not argued that Colonel McDermott abused his descretion in recommending the allowance of plaintiff’s additional costs.

The court holds that plaintiff is entitled to recover its overrun costs to the extent of $12,888, the amount recommended in the letter of June 30, 1965. No contracting officer has exercised his discretion in favor of a larger amount, and we cannot substitute our judgment for that of the proper decision-maker under the Limitation of Cost clause of the contract. We have no way of knowing whether a contracting officer would have approved the expenses plaintiff allegedly incurred over the above-stated amount. If the court were to independently redetermine the allowable overrun costs, we would be ignoring the contractual delegation of responsibility by the parties, the same type of encroachment we have condemned in the cited cases.