COVID-19 May Be Cause For An “Excusable Delay”
Bryan Wallace, Procurement Counselor
It’s just a matter of time before government contractors begin to experience performance delays on contracts due to COVID-19. Therefore, federal contractors should prepare now for pandemic related contract delays. Such delays can be compensable and/or excusable. This article focuses on the excusable portion.
The motivation behind a granted an “excusable” delay is that it will protect the contractor from the penalties of late performance. Whether or not a delay is deemed “excusable” depends on the language of the contract at the time it is issued. Contractors experiencing delays because of COVID-19-related events should be prepared, in a timely manner, to demonstrate that such delays were, caused by a recognized excuse.
There are several FAR provisions address excusable delays. These provisions include terms like “quarantine restrictions”, or “epidemics”. These terms may apply to COVID-19 and be justification for excusable delays. I won’t dive into the specifics of each clause here, but the following clauses will be of interest.
Excusable delays in fixed-price supply and service contracts are addressed in FAR 52.249-8.
Excusable delays in fixed-price construction contracts are addressed in FAR 52.249-10. This clause states the contractor will notify the contracting officer, in writing, within 10-days of any delay. This must be done!
Commercial contracts covered by FAR 52.212-4 contains terms like “epidemics” and “quarantine restrictions” as possible “excusable delays”.
If you are concerned that your contract will be impacted by COVID-19-related you need to be preparing now to demonstrate that these delays are excusable. For more information, reach out to your local PTAC Counselor.