Government Contracting Database
The standard to be applied in determining whether a contractor is entitled to compensation for its delays was set forth in Wilner Construction Co., ASBCA No. 26621, 84-2 BCA 17,411:
It is well established that in order to recover for alleged compensable delay a contractor must demonstrate that delay was caused by the Government, and with a reasonable degree of accuracy, the extent of such compensable delay.
Celesco Industries, Inc., ASBCA No. 21928, 81-2 BCA 15,260.
The government is generally responsible for both the time and cost effect of delays which it causes and are under its control, or for which it has agreed to compensate the contractor. Southland Enterprises. Inc. v. United States, 24 C1. Ct. 596, 599 (1991).
See also Appeals of Fbs Generalbau Gmbh, ASBCA No. 44743, 95-1 B.C.A. (CCH) ¶ 27504; H.W. Detwiler Company, Inc., ASBCA No. 35327, 89-2 BCA 21,612.
Where time is an element in the contract, the government owes a duty to the contractor to perform its contractual obligations in a manner so as not to delay, or otherwise deleteriously impact, the contractor’s ability to perform its obligations Appeals of Fbs Generalbau Gmbh, ASBCA No. 44743, 95-1 B.C.A. ¶ 27504. While the Boards’ decisions do not establish the length of time the government should have to review contractor submittals, the consensus appears to be that the government must act in a reasonable period of time. Whether or not the government’s action is reasonable is measured under the particular circumstances affecting the submittal. Appeal of Fanning, Phillips & Molnar, VABCA No. 3586, 96-1 B.C.A. ¶ 28214 (citing Kelley Control Systems, Inc., VABCA No. 2337, 87–3 BCA ¶ 20,064; AB–Tech Construction, Inc., VABCA No. 1531, 82–2 BCA ¶ 15,997; Commercial Gas Boiler and Heating Company, VACAB No. 1128, 75–1 BCA ¶ 11,275
The Board has held that two days would have been sufficient for the government to approve previously submitted shop drawings. In another case, one day was deemed enough for the government to furnish a decision relating to a disputed interpretation of the specifications. Royal Painting Company, Inc., ASBCA No. 20034, 75-1 BCA 11311. Concerning minor changes, one week was considered sufficient. Fidelity Construction Company, ASBCA No. 24882, 81-1 BCA 15022.
Updated: June 20, 2018