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.
Non-Excusable & Excusable Delay – Meaning
An excusable delay in construction federal contracts mean those types of project delays that are unforeseeable at the time of contract award and that are also beyond the control of you the contractor. On the other hand, non-excusable delays in construction are those delays that are foreseeable or within the contractor’s control.
In situations where there is unusually severe weather, a government 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 actually 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.
FAR 52.249-14 — Excusable Delays.
(a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are
(1) acts of God or of the public enemy,
(2) acts of the Government in either its sovereign or contractual capacity,
(6) quarantine restrictions,
(8) freight embargoes, and
(9) unusually severe weather.
In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. “Default” includes failure to make progress in the work so as to endanger performance.
(b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless —
(1) The subcontracted supplies or services were obtainable from other sources;
(2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and
(3) The Contractor failed to comply reasonably with this order.
(c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.
Severe Weather – Excusable Delays in Construction
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 in Construction
Excusable delays can either be compensable or non-compensable. 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 delays in construction. Understanding the difference upfront can save you considerable time and money.
For help protecting your rights when your project is excusably delayed under FAR 52.249 14 call our government contracts attorneys at 1-866-601-5518 for a FREE INITIAL CONSULTATION.