Excusable Delays

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Third Party Procurement

Frequently Asked Questions

Q = Question; A = Answer

Q. What is the definition of an “Act of God” as it relates to contracts? A vendor contracted to service the HVAC system is claiming that storms are an act of God when the power goes out.

A. The following web site contains various definitions of the term "Acts of God," including one from the sphere of contract law: www.answers.com/topic/act-of-god. Usually the term means an event that directly and exclusively results from the occurrence of natural causes that could not have been prevented by the exercise of foresight or caution. (Revised: June 2010)

Q. Per the project manager (PM) the planting could not be done until the fall because the agreement for the landscaping was not executed until March 2011, which the PM stated was past the planting season. The PM made a mistake and issued a notice to proceed and the landscaping was done in November; the original contract expired in June 15, 2011. Per my conversation with her she thought the agreement didn't expire until December 2011; we have not paid the invoice with federal assistance pending your guidance. The fund source is ARRA. The vendor held the same scope and price that was in the original agreement. Please advise how we should handle this situation. Is it a new sole source contract award? Or perhaps a ratification of an unauthorized act by the PM?

A. This case is not "new work" requiring a sole source nor is it a cardinal change. The contractor is doing the very work contracted for and at the same price but at a later date due to conditions that made it impossible to perform the contract prior to the completion date of the contract. We would say it is an extension in the delivery schedule done for the benefit of the agency and it is required by "working conditions" (i.e., climate) beyond the control of the contractor (a "force majeure" type of excusable delay) that made it impossible to meet the original delivery schedule. We would not treat this as a term - type contract for landscaping services during a certain period of time, ending in June, but rather as a completion/delivery type of contract calling for the planting of certain landscaping plants or trees by a certain date (June), which in turn requires an extension of the delivery schedule due to an excusable delay because of forces beyond the contractor's control. (Posted: June, 2012)

Q. The Best Practices Procurement Manual talks about three elements that are critical in determining whether an excusable delay has occurred. The three elements are: (1) The delay must arise from unforeseeable causes, (2) The event must be beyond the control of the contractor, and (3) The delay must be without the fault or negligence of the contractor. In the case of Super Storm Sandy it would appear that any delay arising from Super Storm Sandy was foreseeable and therefore the contractor cannot claim that the delay is excusable. However, they could claim that the delay was beyond the control of the contractor due to the severity of the storm. Question: is the contractor required to meet all three elements in order to determine if an excusable delay occurred or can they used any one of the three criteria to show cause?

A. This is covered exclusively by state procurement law. We do not see a federal role in this question. The contract itself is constructed exclusively under state and local laws. Federal law is concerned more about factors such as full and open competition, Buy America, etc. There would be a body of state case law governing this legal issue. (Posted: August, 2013)

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