There are often construction delays in government contracting, especially federal government in construction contracts, and it is important to understand when these delays may be actionable in court. A government contract delays claim is submitted in compliance with the Contract Disputes Act.
A dispute can occur when there is an excusable delay. In this situation, you should consider explaining to the agency why the delay is not your fault. This can include unexpected situations. If you fail to show this, expect rejection from the contracting officer.
General Rule About Federal Government Construction Contract Delays
Under FAR 52.249-10, a Contractor’s right to proceed shall not be terminated nor can the Contractor be charged with damages if—
The contract delay to complete the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor (excusable delay). Examples of such causes include:
- Weather delays or Acts of God or
- Acts of the Government in either its sovereign or contractual capacity,
- Acts of another Contractor in the performance of contract with the Government,
- Quarantine restrictions,
- Freight embargoes,
- Unusually severe weather, or
- Delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the Subcontractors or suppliers.
Are Federal Government Delays Compensable?
The facts of all federal government delays in construction claims drive whether or not an excusable delay or if they get paid. The most important point to consider is whether there are acts of God or conditions that neither party could have foreseen.
When there are unusually severe weather conditions, the government should consider given you a time extension. However, you will very seldom get payment for government weather delays unless you can show proof of costs in a situation where the government somehow created the situation.
However, you will very seldom get payment unless you can show proof of costs in a situation where the government somehow created the situation.
This level of government delay is very fact specific and complex. However, the cost of proving your case may be worth it if the cost is extremely high. You want to communicate immediately with the contracting officer and at least, get a dialogue going.
Federal Government Weather Delays
As a government contractor, you should be aware that not all weather conditions constitute an excusable delay or force the government to extra performance time. The burden is on the contractor to show that the “severe” weather condition actual caused a delay in the critical path.
On construction projects, federal government weather delays may actually be longer than the time of the weather condition. If there is an impact on soils etc., then must immediately coordinate with the contracting officer. Remember the contracting officer representatives have no legal authority to bind the government.
Critical Path Requirement For Construction Delay Claims
Normally, under the FAR Changes Clause, construction delays that affect the overall completion of the contract is a delay to work on the critical path. In order for a court to assess whether there was a contract delay on the critical path, it would normally first look to the project schedules and the dates on which the federal government delay is alleged, to determine whether the work alleged to have been delayed was planned to be under way on that date and whether the work was on the critical path.
Tip: always have your staff keep track of weather conditions because the government may raise a defense that you did not mitigate any contract damages for which you now claim.
Watch for Releases In Federal Government Contract Delays
The general rule for dealing with federal government delays is that absent an applicable exception, an unconditional release bars a government contractor from recovering another compensation based on events occurring before the release was executed. See Todd Pacific Shipyards Corp., ASBCA No. 55126.
You want to read carefully to see if your construction delays payment have been waived. Most release clauses may have such words as “upon receipt of payment.” What if you have not received payment, are your delays in government contracting claims waived? The best solution to any such problem is to have a government contract claims lawyer check the language before signing away your valuable dollars.
- Courts, although sympathetic, can issue very hard decisions
- If you have filed a claim based on delays in government contracting, make sure you do not sign a release of claims until you understand what you are signing.
For additional help preparing and filing your federal government delay claims, call a government contract claims attorney at 1-866-601-5518.