Type of Contract Delays By Dean Ellis

CONTRACT DELAYSCONTRACT DELAYS&&

SCOPE CREEPSCOPE CREEP



If any of the following conditions apply to If any of the following conditions apply to your government contract, you may be your government contract, you may be

experiencing lost funds and may be entitled experiencing lost funds and may be entitled to additional monies. to additional monies.



DEFECTIVE SPECIFICATIONSDEFECTIVE SPECIFICATIONS

Specifications are classified as Specifications are classified as FUNCTIONALFUNCTIONAL, , DESIGNDESIGN, or , or PERFORMANCEPERFORMANCE. . Each specification manifests the description, drawings, and requirements to Each specification manifests the description, drawings, and requirements to satisfy a contract.satisfy a contract.

When the Government issues drawings and specifications for use on a When the Government issues drawings and specifications for use on a Contract, the Government implies a warranty that the drawings and Contract, the Government implies a warranty that the drawings and specifications are suitable for their intended purpose.specifications are suitable for their intended purpose.

A Government Contractor is entitled to assert a A Government Contractor is entitled to assert a Constructive Change ClaimConstructive Change Claim for defective drawings and specifications, and therefore is also entitled to be for defective drawings and specifications, and therefore is also entitled to be compensated for the costs and delays incurred as a result of working in compensated for the costs and delays incurred as a result of working in accordance with the defective drawings and specifications, such as costs accordance with the defective drawings and specifications, such as costs incurred while resolving the defects, implementing the corrections, labor, incurred while resolving the defects, implementing the corrections, labor, materials, overhead, and profit.materials, overhead, and profit.



AMBIGUOUS SPECIFICATIONSAMBIGUOUS SPECIFICATIONS

If the Government’s specifications fail to define the task in detail, or if If the Government’s specifications fail to define the task in detail, or if additional information is needed to clarify the meaning of the specifications, or additional information is needed to clarify the meaning of the specifications, or if the Government fails to communicate the proper revisions, etc., the if the Government fails to communicate the proper revisions, etc., the Government Contractor may capture additional dollars, time, material and Government Contractor may capture additional dollars, time, material and labor used to clarify the ambiguous specifications. labor used to clarify the ambiguous specifications.

When the Government Contractor accepts a contract, the When the Government Contractor accepts a contract, the RIGHTRIGHT of of INTERPRETATION IS SOLELY THAT OF THE GOVERNMENT INTERPRETATION IS SOLELY THAT OF THE GOVERNMENT CONTRACTORCONTRACTOR. .

The Government cannot change the intent of the specifications by interpreting The Government cannot change the intent of the specifications by interpreting the specifications on behalf of the Government Contractor or by clarifying the the specifications on behalf of the Government Contractor or by clarifying the specifications after the award.specifications after the award.

If a change in the intent of the specifications occurs either orally, by unsigned If a change in the intent of the specifications occurs either orally, by unsigned modifications, changed inspection standards, or some other official or modifications, changed inspection standards, or some other official or unofficial means, than the Government Contractor would then have a claim to unofficial means, than the Government Contractor would then have a claim to be compensated monetarily. be compensated monetarily.



DIFFERING SITE CONDITIONSDIFFERING SITE CONDITIONS

Federal Acquisition Regulation (FAR) 52.236-2 Federal Acquisition Regulation (FAR) 52.236-2 shifts the risk of unknown site shifts the risk of unknown site conditions onto the Government. conditions onto the Government.

When the Government provides contract information to the Government When the Government provides contract information to the Government Contractor regarding site conditions, it assumes a liability for conditions Contractor regarding site conditions, it assumes a liability for conditions encountered that differ materially (Type I) or physically (Type II) from that encountered that differ materially (Type I) or physically (Type II) from that information.information.

If the conditions differ from what was indicated in the contract or from what If the conditions differ from what was indicated in the contract or from what would be apparent to the Government Contractor when evaluate the scope, would be apparent to the Government Contractor when evaluate the scope, and results in a change of the work or impossibility of performance, the and results in a change of the work or impossibility of performance, the Government Contractor is entitled to additional compensation to capture all of Government Contractor is entitled to additional compensation to capture all of these costs, via an these costs, via an EQUITABLE ADJUSTMENT. EQUITABLE ADJUSTMENT.



MISLEADING INFORMATIONMISLEADING INFORMATION

The Government is obligated to disclose material The Government is obligated to disclose material information relevant to solicitations that materially effect information relevant to solicitations that materially effect an offeror's intent as to the scope of work to be performed an offeror's intent as to the scope of work to be performed on the contract. on the contract.

A failure to disclose results is the Government assuming A failure to disclose results is the Government assuming the responsibility for the Government Contractor's the responsibility for the Government Contractor's increased costsincreased costs. .



The Government may not interfere with the Government Contractor's The Government may not interfere with the Government Contractor's performance to the extent that it limits or hinders the Government performance to the extent that it limits or hinders the Government Contractor from completing the contract as anticipated.Contractor from completing the contract as anticipated.

The following are instances of The following are instances of ExcusableExcusable and and Compensable DelaysCompensable Delays which will entitle the Government Contractor to additional monies. which will entitle the Government Contractor to additional monies. The items in BOLD are the most common infractions;The items in BOLD are the most common infractions;

Excessive meeting Excessive meeting Micro-managing the Government Contractor staffMicro-managing the Government Contractor staff Oral directives Oral directives Change in the process Change in the process Change in Documentation RequirementsChange in Documentation Requirements Improper rejection of work Improper rejection of work Increased inspection standards Increased inspection standards Omissions Omissions



IMPOSSIBILITY OF PERFORMANCEIMPOSSIBILITY OF PERFORMANCE

"Impossibility and/or Impracticability" is the Government Contractor's "Impossibility and/or Impracticability" is the Government Contractor's defense to a defense to a BREACH OF CONTRACT BREACH OF CONTRACT action.action.

The Government Contractor experiencing unreasonable difficulty, The Government Contractor experiencing unreasonable difficulty, expenses, injury, interference with other contracts, degradation in expenses, injury, interference with other contracts, degradation in profits, is , by rights, allowed to collect the additional costs over and profits, is , by rights, allowed to collect the additional costs over and above the contract price.above the contract price.

Examples such as: schedule changes, third party the Government Examples such as: schedule changes, third party the Government contractor performance, and other unforeseen circumstances. contractor performance, and other unforeseen circumstances.

This includes information such as, performance specifications, and This includes information such as, performance specifications, and research & development contracts that fail to yield a definitive result. research & development contracts that fail to yield a definitive result.



ACCELERATION OF WORK PERFORMANCEACCELERATION OF WORK PERFORMANCE

The Government Contractor is entitled to a The Government Contractor is entitled to a CONSTRUCTIVE CHANGE CLAIMCONSTRUCTIVE CHANGE CLAIM for for additional money when ordered by the Government to meet the current contract additional money when ordered by the Government to meet the current contract schedule despite the fact that the Government Contractor is schedule despite the fact that the Government Contractor is EXCUSEDEXCUSED or not at fault for or not at fault for the delay. Contract schedule delays that preclude Acceleration can be caused by: the delay. Contract schedule delays that preclude Acceleration can be caused by:

Over inspection Over inspection Changed specifications Changed specifications Extensive meetings & reviews Extensive meetings & reviews Clarification of specifications & Documents Clarification of specifications & Documents Oral directives Oral directives Stop work orders Stop work orders Failure to inspect in a timely manner Failure to inspect in a timely manner Excessive requirements for documentation beyond original scopeExcessive requirements for documentation beyond original scope The Government’s Subcontractor has difficulties The Government’s Subcontractor has difficulties Change of inspection methodology Change of inspection methodology Quality system changes Quality system changes



Improper Rejection/InspectionImproper Rejection/Inspection

Every contract states the specific requirements and/or methods used in Every contract states the specific requirements and/or methods used in determining whether or not the end item meets contract requirements.determining whether or not the end item meets contract requirements.

Any change in this methodology, not covered by a modification, is a Any change in this methodology, not covered by a modification, is a delay to the contract and in many cases, is considered added scope delay to the contract and in many cases, is considered added scope work entitling the Government Contractor to be monetarily work entitling the Government Contractor to be monetarily compensated.compensated.

The Government must be aware that any change to how the The Government must be aware that any change to how the Government Contractor has decided to perform the contract, not Government Contractor has decided to perform the contract, not supported by a specific contract citation is improper, and that the supported by a specific contract citation is improper, and that the Government Contractor is not obligated to perform the work until a Government Contractor is not obligated to perform the work until a citation is given or a modification is made to the contract. citation is given or a modification is made to the contract.



ECONOMIC DURESSECONOMIC DURESS

The Government has a DUTY TO ACT IN GOOD FAITH and cannot The Government has a DUTY TO ACT IN GOOD FAITH and cannot act as a sovereign and commit UNCONSCIONABLE ACTS, such as:act as a sovereign and commit UNCONSCIONABLE ACTS, such as:

Threats to coerce the Government Contractor into complying Threats to coerce the Government Contractor into complying with added scope work requirements with added scope work requirements

Changed conditions Changed conditions Relinquish proprietary rights in data Relinquish proprietary rights in data Promise to give consideration on future procurements Promise to give consideration on future procurements Failure to correct contract deficiencies Failure to correct contract deficiencies

These are all grounds for the Government Contractor to capture These are all grounds for the Government Contractor to capture additional dollars. additional dollars.