Understanding the Liquidated Damages Provision in Government Construction ContractsPrime contractors on a federal construction contract can find themselves in serious jeopardy when the completion of the project is delayed. This is when the government exercises its rights under the liquidated damages provision in the contract.

In some situations, the government in return to your contract disputes claim would then decide to assess liquidated damages. You have to be ready to aggressively defend them and to decide whether it is truly liquidated vs penalty.

Under the Default Clause, the government will seek the common law recovery of putting itself in a position had the delay not occurred. The best approach for any construction contractor would be to assess the delay to see if it was excusable or not. To do so can immediately minimize your chances of paying the government liquidated damages.

Understanding the Government Delay of Work Clause and Liquidated damages calculation in construction contracts

 If the government wins at the litigation stage by showing that there is truly an enforceable liquidated damages clause, it can calculate damages by multiplying the per diem rate by the number of days that the construction project was delayed.

  • Most government construction contracts state that the government can assess liquidated damages until the scope of work is completed.
  • Liquidated damages calculation in construction contracts for the federal government can be tricky. 
  • Understand when the government’s actions constitute waiver of liquidated damages.

Federal Government Construction Contracts – Basic Contractor Legal Defenses

Waiver and Excusable Delays

 Liquidated damages in construction contracts can cripple a government contractor. Therefore, the first approach would be to assert any legal defenses to the government’s claim. An example would be to show that the government acted unreasonably when re-procuring work. If the government failed to act promptly and in a reasonable manner, this can serve as a defense at the litigation stage. When looking at liquidated damages calculation in construction, government contractors should always assert any legal defenses before the appeal or litigation stage – preferably in writing. A federal construction lawyer should be able to walk you through this phase.

Contracting officer failed to take reasonable steps to mitigate liquidated damages: the government delay of work clause can be beneficial and  is often present because the agency sometimes thinks that once there is clear evidence that a contractor has defaulted that this is the end of the analysis. This simply not so. Each contracting party, including the federal government, must take steps to mitigate any damages.

The government failed to consider waiver of liquidated damages for the constructing project: Once a company has requested a waiver, the head of the agency can consider waiver, if the Commissioner, Financial Management Service, or designee approves the request. See Treasury Order 145-10.)

The government failed to grant time for excusable delays: the basic contract termination for default clause gives the contractor some level of relief for excusable delays by giving an extension to the original completion date. However, a dispute occurs when the contracting officer denies an extension of time. In this situation, the burden is on the construction company to request an adjustment or submit a claim. Failure to do so can be problematic at the appeal stage.

In one case, the Federal Circuit Court of Appeals ruled that when facing a government counterclaim for damages, a contractor cannot assert an affirmative defense that would result in the modification of contract terms (e.g., an increase in the contract price or an extension of the time for contract performance) unless that contractor had filed a claim with the contracting officer pursuant to the Contract Disputes Act of 1978 (“CDA”). See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010).

In Maropakis, the Federal Circuit Court also ruled that a Contract Disputes Act claim alleging excusable delay was a jurisdictional prerequisite to asserting an affirmative defense of excusable delay against a government counterclaim for damages in a suit before the United States Court of Federal Claims (“Court of Federal Claims”).

Knowing construction liquidated damages clause in federal contracts first means knowing the basis for the liquidated damages provision is to compensate the government for anticipated losses. P&D Contractors, Inc. V. United States, 25 Cl. Ct.237 (1992). However, contractors must realize that by definition courts presume that liquidated damage clauses by the government are reasonable. Therefore, this level of defense can be a huge hurdle to overcome.  The court will look at the clause at the time the contract was formed and not at the time when damages occurred.

Note: Federal Supply Schedule contract, the government may lack the authority to terminate a contract for default because it did not refer contractor’s allegations of the violation of the government delay of work clause to GSA. In the same vein,  and when considering the defense of waiver of liquidated damages claim against the contractor by the government on an FSS construction contract could be held as invalid if the contracting officer fails to meet the GSA requirement to first notify.  The Appeals court would have no jurisdiction to the claim resulting from a termination for default. Accord BearingPoint, Inc. v. United States, 77 Fed. Cl. 189 (2007).

See also FAR 52.249-10(b)(1) (indicating that delay is excusable if it “arises from unforeseeable causes,” such as acts of the government or delays of subcontractors or suppliers, that are “beyond the control and without the fault or negligence of the Contractor”).

The CO should also use liquidated damages in construction contracts when: Delivery time or timely performance is so important that the agency may be reasonably expected to suffer damages as a result of untimely performance.

Whether you are at the initial claims stage or considering litigation or appeals under the construction liquidated damages clause or waiver, you should carefully assess the legal merits of your case.

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