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Government Confuses Date, Prevents Contractor from Finishing

An appeal from a termination for cause was sustained by the Armed Services Board of Contract Appeals because the government prevented the contractor from completing performance in a timely fashion. The dispute arose from a small business set-aside contract to clean a digester at a wastewater treatment plant. After the completion date, the government terminated the contract for cause due to the contractor's "failure to perform the job as identified within the performance work statement and within the performance period."However, the contractor could not complete the work because the contracting officer had ordered it to demobilize before the completion date, based on her incorrect belief the date had already passed.

Excusable Delay

In addition, the contractor established it was excusably delayed by the combination of the digester's unexpectedly high petroleum content --which a reasonable bidder would not have anticipated and which required it to change its method of performance --and the government's failure to cooperate by making additional drying beds available so the contractor could complete the work given the high petroleum content. If the government had made available for performance the beds it made available for demobilization, the contractor would have been able to complete the contract on time. Perhaps the government did not do so because of a msitaken belief the completion date had passed, but the CO's mistake could not serve as a basis for sustaining the termination. Accordingly, the termination for cause was converted to a termination for the government's convenience. (ALKAI Consultants, LLC, ASBCA, 92,492)

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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