Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
khunron

Authority to Extend Period of Performance on A-E Task Order – Government Delay

Recommended Posts

I am looking for professional opinions on this issue which has been argued for quite a while in my office. I’ve done my research and feel that 52.243-1 -- Changes -- Fixed-Price, Alternate III is the correct authority based on the following:

1. FAR 52.249-14 – Excusable Delays is not applicable to fixed-price A-E Services per FAR 49.505( B) and the FAR Clause Matrix.

2. 52.249-8 -- Default (Fixed-Price Supply and Service) was not included in the contract, and although 49.504(a)(1) does not specifically say not to use it for A-E services, the clause matrix shows it not to be used .

3. FAR 49.503( B) states that 52.249-7, Termination (Fixed-Price Architect-Engineer) is the clause to be used for Termination for Convenience of the Government and Default for A-E services. The clause does not include the liability exception for government delays that is included in 52.249-8 and 52.249-10.

4. 52.243-1 -- Changes -- Fixed-Price, Alternate III allows the Contracting Officer to make changes within the general scope of the contract in the services to be performed, which I consider a PoP extension to be “general scope”. Paragraph (a) is not as specific as the other versions of the clause on what changes can be made.

The other side of the argument says that a Changes clause should never be used strictly for a PoP extension. They argue that 52.249-8 -- Default (Fixed-Price Supply and Service) is the correct clause, because a Changes clause should never be use strictly for a PoP extension and there is no other clause to use.

Opinions on the correct modification authority and reasoning behind the opinion would be appreciated.

Share this post


Link to post
Share on other sites

You don't explain WHY you want to change the period of performance. Without the WHY, it may be hard to cite an authority.

That said, I will share one thought about the changes clause -- that clause only provides an authority if you have otherwise changed something, and an extension in the period of performance is part of the equitable adjustment for the change. But if you haven't changed anything, then the changes clause is not the authority for an extension of the period of performance.

Do you want to extend the period of performance solely because the A-E firm will not deliver on time?

Share this post


Link to post
Share on other sites

You're right -- I wonder then why the text talks about excusable delays, default, and termination? Those concepts don't fit well with an extension necessitated by a Government delay.

It might be best for the original poster to explain. As they said on the old television show, just the facts, ma'am, just the facts...

Share this post


Link to post
Share on other sites

Government delay. The Government (Facility Manager) cancelled the initial site survey and now the contractor is requesting the PoP be extended by 2 weeks to account for the delay.

Share this post


Link to post
Share on other sites

That's simple. Use "Agreement of the Parties" in block 13.C. of the SF-30.

Or, if the date of the survey was specified in the contract, you could use the changes clause.

Share this post


Link to post
Share on other sites

Let me make sure I understand the scenario:

A&E contract;

Government delay;

Time extension (TE) needed.

52.243-1 - The only reason I can think of that this wouldn't be appropriate simply for a TE would be the argument that a better clause IAW 11.503 should be used (52.211-13).

Share this post


Link to post
Share on other sites

Government delay. The Government (Facility Manager) cancelled the initial site survey and now the contractor is requesting the PoP be extended by 2 weeks to account for the delay.

khunron:

Please don't post half-baked inquiries.

Was the site survey scheduled in the contract? If so, was the GFM's cancellation an authorized act? If so, under what the authority of what contract clause did the GFM cancel the survey? If no contract clause authorized the cancellation, or if the GFM was not authorized to cancel the site survey, why isn't the cancellation of the site survey a breach of contract, entitling the contractor to both a time extension and money damages?

You seem to have concluded that a government act has delayed the contractor's performance. How do you know that to be the case? On the basis of what evidence have you reached that conclusion, cause to effect?

Share this post


Link to post
Share on other sites

khunron,

You seem to be operating under the assumption that you need to cite a clause as your authority to extend the period of performance. Why do you think that? Do you think that if the Government delayed the contractor, the contracting officer wouldn't have the authority to extend the period of performance unless there was a contract clause that said they could?

Share this post


Link to post
Share on other sites

khunron can clarify but it's most likely because the SF30 asks for mod type and authority. Secondly, it's just good practice to know what authority you are operating under.

Share this post


Link to post
Share on other sites

Apparently, some event has delayed the contractor's performance.

1. If the event was some act or omission of the government, as khunron seems to think, then the question is whether the act or omission was something that the government was entitled to do under the terms of the contract, such as issue a change order. If the act or omission was authorized or recognized by a contract clause -- e.g., changes, suspension of work, stop-work order, or government delay of work -- then the contract clause probably provides for a remedy, in this case, a time extension. That would be the clause to cite as authority for an adjustment to the specified date of completion or delivery.

Prior to the enactment of the Contract Disputes Act of 1978, many government breaches were handled as "constructive changes" and relief was provided pursuant to the Changes clause. That approach is still used today, and it may be that the time extension could be made pursuant to the changes clause even though no formal change order was issued. See Administration of Government Contracts 4th ed., by Cibinic, Nash, and Nagle, pp. 426 - 471.

2. If, on the other hand, the government's act or omission was not authorized by the contract and cannot be treated as a constructive change, then it must have been a breach of contract. In that case, there is no clause that provides a remedy other than the Disputes clause, which would be the clause to cite as authority to grant a time extension and any other remedy sought by the contractor.

The distinction between the two situations is explained by the two parenthetical sentences in FAR 33.213(a) as the distinction between a "arising under" a contract and a matter "relating to" a contract.

The Default clause would be appropriate to cite only if the contractor is in default and the default is being excused pursuant to the excusable delays provision of the clause.

Share this post


Link to post
Share on other sites

The original post seeks answers regarding where an A-E contract would authorize a time extension for an excusable delay caused by an act of the government.

The Suspension of Work Clause, 52.242-14, might be the applicable clause that would address the government's right to suspend, delay, or interrupt the A-E's performance for the government's convenience, either by the government's act, or by a failure to act in administration of the contract. I believe that the cause law supports constructive suspensions under this clause. The clause allows for a price adjustment (excluding profit), but no time extension, if the suspension is for an unreasonable period of time and if it causes an increase in the A-E's cost. The clause doesn't directly entitle the A-E to a time extension.

If this were a construction contract, our organization would use the Default's clause at 52.249-10 under the enumerated causes of excusable delays to provide for a time extension, if warranted. A-E contracts use clause 52.249-7, Termination (Fixed-Price Architect-Engineer), which - as stated above - doesnt address government caused delays. It is interesting to me that A-E contracts wouldn't address a means to excuse late performance, when it is by no fault of the A-E or when directly attributable to a government caused suspension, delay or interuption of performance.

As stated above, Nash and Nagle discuss possible coverage of changes to the delivery schedule (a time extension) under the Changes clause, when the only "change" under that clause is to the contract terms for completion time. Nash and Cibinic also discuss at length excusable delays that are not due to any fault or negligence by the contractor but dont necessarily cite a contract clause.

Share this post


Link to post
Share on other sites

The Delay of Work clause requires a notice from the contractor.

I am hopeful that the original poster has already issued the modification.

Share this post


Link to post
Share on other sites

The Delay of Work clause requires a notice from the contractor.

I am hopeful that the original poster has already issued the modification.

ji, is that clause normally used in an A-E contract? The FAR ( at 42.1305(a) and 52.242-14) prescribes use of the Suspension of Work clause at 52.242-14 for A-E contracts. The FAR Matrix indicates applicability of the -14 clause but not the -17 clause under A-E contracts. It would seem to be somewhat duplicative to use both clauses.

Share this post


Link to post
Share on other sites

You're right, Joel -- I intended to write the Suspension of Work clause requires a timely notice from the contractor...

Share this post


Link to post
Share on other sites

For a time extension, the A-E would have to show that it is excusable and how the delay to contract completion was caused by the government in this case. Once the government agrees that it is an excusable delay, I suppose one can just write a modification , check "other" in the appropriate box in block 13 of the mod, then describe how it is an excusable delay in the body of the modification.

Share this post


Link to post
Share on other sites

You're right, Joel -- I intended to write the Suspension of Work clause requires a timely notice from the contractor...

Please note that the 20 day notice requirement only applies to claims for costs under either the -14 or -17 clause and that the -14 clause doesn't address time extensions at all.

Share this post


Link to post
Share on other sites

Yes. All the more reason to do a bilateral "Mutual Agreement of the Parties" modification in this case, since it seems both parties agree that a two-week extension in the period of performance will address the problem caused by the canceled and rescheduled site survey.

Share this post


Link to post
Share on other sites
Vern, so much for a professional opinion. I'm not sure why you feel the need to be such a pompous asshole whenever someone asks a question that you feel is beneath you to answer. This website could actually be useful if it wasn't for your self-righteousness and the clueless answers by ji20874.

Kaboom!!!

Yikes! khunron: All that because I said, "Please don't post half-baked inquiries"? :lol:You are a sensitive soul. Maybe contracting's not right for you.

But at least you didn't say my responses were "clueless," for which I'm grateful, since I put a lot of time into post #11, and just for you. :)

Anyway, if the government's act or omission was a breach or constructive change, I have my doubts about the Suspension of Work clause. The contractor might not be satisfied with a constructive suspension remedy, which excludes profit.

Share this post


Link to post
Share on other sites

khunron,

I don't have any control over your profile or this thread--this is not my Web site. Having said that, I think you have overreacted. Vern has been giving you good information and ji20874 has proposed a reasonable course of action.

Share this post


Link to post
Share on other sites

Yes. All the more reason to do a bilateral "Mutual Agreement of the Parties" modification in this case, since it seems both parties agree that a two-week extension in the period of performance will address the problem caused by the canceled and rescheduled site survey.

Agreed! My reasoning is based upon the concept that the contractor may have the right to a time extension due to an excusable delay, per the Nash and Nagle case law guidance, regardless of whether or not there is a specific, applicable clause in the contract.

Share this post


Link to post
Share on other sites

The OP asked what clause to cite when granting a time extension based on government delay of the work. As the OP explained:

Government delay. The Government (Facility Manager) cancelled the initial site survey and now the contractor is requesting the PoP be extended by 2 weeks to account for the delay.

The OP didn't provide any other explanation, so it appears that there was no change order, suspension of work order, or stop work order. (I presume that the Suspension of Work clause is in the contract, although the OP did not say so (or I missed it). I do not presume that the Stop-Work Order clause is in the contract.)

What we don't know is: (1) why the Facility Manager cancelled the site survey, (2) whether, when, and by what contractual action, if any, it was cancelled and rescheduled, (3) the connection between the site survey and the performance of the work; (4) whether the site survey was mentioned in the contract, (5) whether the date or timing of it was contractually stipulated, and (6) whether the contractor's request was a claim or a non-claim request. Those are factors that could impact the decision about what if any clause to cite. There is no mention of "site survey" in any FAR clause except one in the Nuclear Regulatory Commission supplement pertaining to sealed bid contracts.

Now what are the options for an "authority" clause?

If the act of the Facility Manager in canceling the site survey constituted a breach of contract, then the only FAR clause that could be cited in support of a time extension would be the Disputes clause, which authorizes contracting officers to settle breach claims. Presumably, however, the parties could settle the matter as something else.

If I were the contractor I would reject any assertion that the cancellation was a constructive suspension of work order, because remedies under the Suspension of Work clause are too limited. Both the contractor and the CO have to establish that the delay was unreasonable, and, in any case, the suspension of work clause makes no provision for a time extension, only for money compensation. A time extension would have to come from a different clause, maybe the Default clause excusable delay provision or the Changes clause equitable adjustment provision.

The contractor could be granted additional time due to an excusable delay under the Default clause. However, we have not been told that the contractor would default if not granted an extension. Under the default clause the contractor would not be entitled to monetary compensation for the cost impact of the delay, which the contractor might not want now, but might want by the end of performance. If I were the contractor I would not want to handle the matter as an excusable delay under the Default clause.

The last possibility is to settle the matter as a "constructive change order" under the Changes clause instead of as a breach of contract, a constructive suspension, or an excusable delay. It could be treated as a change "in the [timing of] the services to be performed." Of course, this presumes that there was something in the contract that was changed when the Facility Manager cancelled the site survey. If handled as a constructive change, then the contractor could seek an equitable adjustment in the costs and time of performance. The contractor might find the constructive change approach to be more palatable than a constructive suspension or excusable delay. Whoever told the OP that "a Changes clause should never be used strictly for a PoP extension" has no grounds for that assertion that I know about.

As a contractor, my choice would be to handle the matter as a constructive change order. As a CO, I might prefer to handle it as an excusable delay.

Share this post


Link to post
Share on other sites

A constructive suspension under the suspension of work clause only provides for a cost adjustment, if warranted - no additional performance time . In a construction contract, the associated time extension due to a construcrive suspension - if warranted, would be granted under the Defaults Clause.

As I stated above, in an A-E contract, any additional cost due to the constructive suspension would also be provided under the SoW clause at 52.242-14. But an A-E contract doesn't use the Defaults clause. The clause prescribed for use is 52.249-7, Termination (Fixed -Price Architect-Engineer), which doesn't address excusable delays due to government delays or any other cause.

If the A-E needs a performance time extension and can show that the government delayed its performance, then the parties could agree that there is an excusable delay and extend the time, accordingly. Any associated costs that can be justified would be covered under the SoW clause.

My educated guess is that the A-E is primarily concerned with maintaining its reputation and being able to show that it met the performance requirements - not finishing "late". It wants a great performance rating for competing for future work. Hence the need for an adjustment to the contract performance period, even though there is no specific clause for such a time extension. I doubt that the A-E is going to nickel and dime the Government. And the OP simply asked what authority is available to issue a time extension since A-E contracts are more vaguely written than service, supply and construction contracts. A-E's often live and die by relationships and reputation. That's how they obtain new work. I 'were' one many years ago.

And no - it probably isn't a "constructive change" but that also would depend upon the specific facts. If the A-E can establish an excusable delay, it might or might not also be a compensable delay, with justifiable costs paid per the SoW clause. As I said earlier, it depends upon the facts of the situation. That wasn't part of the question and would require much deeper analysis and discussion than that here in a forum thread without the whole story and all the documents and records.

Share this post


Link to post
Share on other sites

Default is failure to perform. See Black's Law Dictionary, 9th. It's misleading to say that A-E contracts don't include a default clause. FAR 52.249-7, Termination, is both a convenience and a default clause. Both types of termination are separately provided for in the same clause. Unlike, say, FAR 52.249-8, the A-E termination clause, FAR 52.249-7, makes no express mention of excusable delays, but excusable delay is a common law concept, also referred to as "excuse for nonperformance." It applies when the contractor fails to perform, but has a legal excuse. The concept is implicit in the A-E termination clause. See FAR 49.401 and 52.249-7(d).

A CO does not need a contract clause in order to provide relief for a government-caused delay. Don Mansfield pointed that out earlier, Joel concurs, and so do I. But the OP's question was what authority he could cite for a time extension, and he's clearly looking for a clause. So I'm addressing that question.

You can't cite the Suspension of Work clause as the basis for a time extension, because it does not provide for one. It provides only for monetary compensation for unreasonable delays.

In the absence of a clause that addresses government-caused delays, and if such a delay is treated as a breach, a time extension settlement would be authorized by the Disputes clause.

I don't like to use excusable delay as grounds for extending the time of performance unless the contractor is at risk for late performance, which is not always the case when the government has delayed a contractor's work. But if that is what the parties want to do, and if the CO needs a clause, then the CO can cite FAR 52.249-7(d). Joel may be right that the contractor is concerned only with reputation, doesn't want money, and does not care what authority to CO cites for a time extension.

I think that if I were a contractor I would prefer the Changes clause, for the reasons I gave in my last post. But I can see a CO wanting to cite excusable delay, because it would deny the contractor monetary compensation for the delay.

Was the Facility Manager's cancellation of the site survey a constructive change? Joel says, "Probably not," but he doesn't say why he thinks so. I think the Facility Manager's act meets the tests of constructive change described in Administration of Government Contracts, 4th ed., pp. 428 - 431, by requiring the contractor to change its performance plan.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this  

×