Is the Bad Faith/Abuse of Discretion Test Viable?
We submit that Krygoski does not delineate meaningful limits on the government’s right to terminate for convenience. Torncello was the first case in which a contractor actually succeeded in obtaining a ruling that a termination for convenience was (or would be) improper, and that it was entitled to breach damages against the sovereign. The Krygoski opinion clearly wishes to discredit and discard the “changed circumstances” test of the Torncello plurality. If this is its outcome, we are likely to return to the days before it was decided (e.g., the bad faith or abuse of discretion standard). However, we doubt that the application of this standard will provide meaningful limits on the government’s termination power. The case law makes clear that a finding of bad faith requires “well-nigh irrefragable” evidence of a specific intent on the part of the government to injure the plaintiff.(141) This standard is simply too difficult to meet in all but the most egregious cases. As such, it does
