An excusable delay in federal contracting relates to an unforeseeable delay and those that go beyond the contractor’s control. On the other hand a contract delay that is considered non-excusable is in fact foreseeable.
The difference drives whether the contractor or the government must bear the risk. Other issues about excusable contract delays or those that are non-excusable include whether the agency will grant an extension to the contract or not.
In situations where there is unusually severe weather, a contractor could make a case for compensable contract delay but would want to support this is sound data. This could be weather reports that show a pattern of weather conditions that would be out of the norm.
For example, in government construction contracts, companies performing the work may want to also show that the unusually severe weather actual impacted / delayed the critical path of work. Reading the fine print in the contract itself could resolve disputes about what are excusable delays versus non-excusable delays.
Tips can be present when the agency defines certain aspects of the performance conditions.
Severe Weather – Excusable Delay
Typically, neither the government nor the contractor can anticipate severe weather conditions. Therefore, claiming that severe weather conditions should result in an excusable delay will not get to the result. The federal contracting agency will generally consider extending the performance period.
Although a contractor may not be entitled to payment in a non-compensable delay, it may have room to negotiate an extended performance period.
- Having no control over the weather does not automatically get you compensation.
- The government and the contractor both absorb the risk of severe weather conditions.
Compensable and Excusable Delays
When performing federal projects, the key to determining whether a compensable contract delay is present is to make a showing that the government actually caused the delay.
- Compensable contract delays are unforeseeable and not within a contractor’s control.
- Contractors are entitled to additional payment for compensable and excusable delays.
- Always be prepared to show that the government was at fault or substantially contributed to the delay.
Always be aware of the difference between an excusable delay and non-excusable delay. Understanding the difference up front can save your considerable time and money.
For help protecting your rights when your project is delayed call our government contracts attorneys at 1-866-601-5518 for a FREE INITIAL CONSULTATION.