Government Contracting Database
To prevail on a claim of compensable delay, a contractor must show: (1) specific delays were attributable to Government – responsible causes; (2) these delays resulted in delay in completion of the overall project; and (3) the Government – caused delays were not concurrent with delays within the contractor’s control . George Sollitt Const. Co. v. United States, 64 Fed. Cl. 229, 238 (2005); Triax – Pacific, A Joint Venture v. Stone, 958 F.2d 351( 1992); Rivera Construction Co., Inc., ASBCA Nos. 29391, 30207, 88 – 2 BCA ¶ 20,750 ; D.E.W., Inc. , ASBCA No. 35171, 92 – 2 BCA ¶ 24974.
In order to recover damages for alleged compensable delay by the Government, a contractor must demonstrate, with a reasonable degree of accuracy, both the extent and cause of such delay. Appeals of Fbs Generalbau Gmbh, ASBCA No. 44743, 95 – 1 BCA ¶ 27504 (citing Wilner Constr. Co., ASBCA No. 26621, 84 – 2 BCA ¶ 17,411, aff’d on recon. , 84 – 3 BCA ¶ 17,669). When delays by the Government are intertwined or concurrent with delays that are not compensable, neither the Government nor the contractor may recover unless the delays can be separated or apportioned. Id .; see also Xplo Corp., DOTCAB No. 1241, 86 – 2 BCA ¶ 18,8 66.
The question of whether a contractor is entitled to compensable delays for the performance period exceeding an alleged estimate or desired performance period depends on the reasonableness of its original performance period, and whether that period was extended. A contractor is generally entitled to the “cushion” of extra time that would result from planned early completion of the work. This requires a showing by the contractor that it had a good faith intention and expectation to complete ahead of scheduled performance time. See VEC Inc., ASBCA No. 35988, 90 – 3 BCA ¶ 23,204.
Updated: July 24, 2018