Practical Impossibility

It has been held that performance may be so difficult, so expensive, or so time-consuming, that performance is practically impossible or commercially senseless within the original reasonable anticipation of the contracting parties. Appeal of Cotrell Eng’g Corp., ENGBCA No. 6064, 97-1 BCA ¶ 28852; Guy F. Atkinson, ENGBCA No. 4771, 88-2 BCA ¶ 20,714. Legal impossibility, moreover, may be established without showing actual or literal impossibility. Thus, a finding of legal impossibility may be based on “commercial impracticability.” Appeal of Cotrell Eng’g Corp., ENGBCA No. 6064, 97-1 BCA ¶ 28852; Hol-Gar Mfg. Cor. v. United States, 175 Ct. Cl. 518 (1966); United States v. Wegematic Corp., 360 F.2d 674 (2d Cir. 1966). As recited in the Guy F. Atkinson case, supra:

The principle of practical impossibility consists of the theory that the object of the contract could not be accomplished without commercially unacceptable costs and time input far beyond that contemplated in the contract. Foster Wheeler Corporation vs. United States, 206 Ct. Cl. 533 (1976). Absolute impossibility is not required if the specifications are so time-consuming as to be outside the basic objectives contemplated by the parties. Tombigbee Constructors, et al. v. United States, 190 Ct. Cl. 615 (1970); Johnson Electronics, Inc., ASBCA No. 9366, 65-1 BCA ¶ 4628; Natus Corp. v. United States, 178 Ct. Cl. 1, 371 F.2d 450 (1967); Clark Grave Vault Co. v. United States, 178 Ct. Cl. 52, 371 F.2d 459 (1967). The principle that practical impossibility may exist when the work cannot be completed until much later than the time set forth in the contract is well established. Appeal of Shurr and Finlay, Inc., IBCA No. 644-5-67, 68-2 BCA ¶ 7200; Appeal of Ace Electronics, Inc., ASBCA No. 10711, 66-2 BCA ¶ 5750; Tombigbee Constructors v. United States, supra.

Updated: August 3, 2018