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Contractor Entitled to Extension, Termination Unsupported

The Postal Service Board of Contract Appeals converted the default termination of a construction contract to a termination for the government's convenience, because the contractor was entitled to an extension of time to complete the work due to a late plan approval and winter weather, and the government failed to establish its termination decision was reasonable as of the adjusted completion date. The government rejected the contractor's requests for extensions of time to complete the post office construction project and terminated the contract for default two months after the contract completion date. Seeking its costs, the contractor claimed the government delayed the work by failing to provide an approved erosion and soil plan in a timely manner, which pushed the project into severe winter weather, when critical earthwork and installation of footings could not be performed. The government maintained that, under the contract's Permits and Responsibilities clause, it was the contractor's responsibility to obtain an approved E&S plan.
Excusable Delay
The board ruled the contractor's failure to complete the project by the contract completion date justified the default termination, but the delay was excused because the failure was the result of excusable causes beyond the contractor's control and the contractor was not at fault. Notwithstanding the P&R clause, the government took responsibility for obtaining an approved E&S plan by using its architect to submit the plan to the local approving body, revising the plan, obtaining final approval, and providing the final plan to the contractor. The solicitation did not advise that the plan had not been approved, so the government had no expectation the contractor would participate in the approval process. There was no support for the government's assertion the contractor could have commenced work before plan approval, and a solicitation requirement for the contractor to meet with the approving body after plan approval contributed to the delay.
Unjustified Termination
The lack of an approved plan slowed the contractor's tree removal efforts and delayed the project by 26 days, and winter weather delayed the project by another 98 days. The contractor was therefore entitled to an adjusted completion date reflecting this amount of excused delay. However, the contracting officer gave no consideration to a finish date later than the original contract completion date, and the record contained "sparse and conflicting evidence" on the time needed for the contractor to complete the project. Thus, the government failed to meet its burden of showing there was no likelihood the contractor could have completed the project by the extended completion date. (Jody Builders Corp., PSBCA, ¶92,393)

(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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