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Additional work after the Completion Date


Velhammer

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Background: This is a FFP design-build task order for a renovation of a BEQ. Funding was ARRA MILCON. The original scope included elevator repair and the contractor's proposed plans were accepted by the Gov't. As the building was preparing to be turned over, a new government elevator inspector imposed some additional requirements beyond the original scope and accepted specifications. The building was BOD'd, (Beneficial Occupancy Date) but the elevator was not certified and was thus not allowed to be used. The contract completion date (CCD) passed shortly after the BOD. Had this additional scope been included as part of the contract, it would have been considered punch-list, but since the Gov'ts level of inspection increased, the contractor is due the additional funds to meet the changed requirements. After hammering out a scope, obtaining funding, and negotiating; I'm ready to issue a modification for (well less than $10K) the additional work; four months after the expiration of the contract.

Questions: Is the contract expired, or is this a period of forbearance (see AKSS discussion: Forebearance vs. expired)? If the former, is it necessary to extend the CCD for four months to accomplish one additional day of work.

Yes, I'm checking with legal, but wanted some input from those with a construction background in case there are other issues that have not been considered.

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Guest Vern Edwards

If I understand you correctly, what you want to do is modify the contract to add the work that the new elevator inspector wants done. It sounds like the contractor has fulfilled its obligations, but that you have not made final payment.

I don't see a scope problem, and I would not worry about the contract being "expired," but I would not issue a change order. If the contractor is willing to do the work, get a quote, modify the contract by supplemental agreement adding the new specification and extending the contract completion date. Pay the contractor upon completion of performance. If he's not willing to do the work I would not force the issue. I would hire someone else. If the cost of the work is less than $10,000, as you say, there should not be a problem.

One thing--you are using the word "scope" improperly. You are using it as a synonym for specification. You hammered out a specification, not a scope.

Another thing--you are not in a period of "forbearance." Forbearance is not an issue. Forbearance is what you do instead of terminating for default--you take no action to see how things work out. I don't think you are saying that the contractor is in default.

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Questions: Is the contract expired, or is this a period of forbearance (see AKSS discussion: Forebearance vs. expired)? If the former, is it necessary to extend the CCD for four months to accomplish one additional day of work.

I agree with Vern that a supplemental agreement for the additional work is the appropriate course of action. I can't think of a reason that you need to extend the contract's completion date, just make clear in your modification and your documentation what you're doing and why. You explained it very well here (notwithstanding the language precision issue Vern mentions) so you'll be able to do it in your mod.

I've CO'd many construction projects where there was something to add well after the completion date for one reason or another. You're within scope so you are well within your authority to agree to the additional work and set a date for completion of that work with your contractor. The times that we did bring the issue of additional work after the completion date to counsel, they did not raise an objection to adding the work without addressing the contract's completion date, unless that work was necessary for a complete and usable facility, which the establishment of the BOD would serve to address. I believe that technically what you have is an excuse to accept work after the completion date, rather than cause to extend.

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Guest Vern Edwards

I mentioned extension because I think it's important to document the agreement that the contractor was going to perform after that date. It is certainly a legal nicety to do so, but it may not be a legal necessity.

We often get questions about the effect of "expiration" of a contract--the close of the period of performance. The end of a period of performance does not mark the end of a contractual relationship. It is often the case that contractual obligations continue beyond the period of performance, e.g., correction of latent defects, and warranties. I know of no reason why the parties to a contract cannot change the work after expiration of the period of performance, at least until final acceptance, and perhaps even after final acceptance up to final payment and release of claims. I'm not sure that there is any contractual time limit on what they can agree to do. If if weren't prohibited by regulations, e.g., CICA, or fiscal law, it might be that the parties could raise the dead.

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