Construction projects rarely, if ever, go precisely as planned. One of the most common issues government contractors face is falling behind schedule. A schedule is developed, and then the contractor is confronted with differing site conditions, changes, or a litany of other causes of delay. The contract completion date that seemed easily achievable when performance began may now appear to be impossible to meet. What should a government contractor do to ensure they are compensated and to avoid liquidated damages?
The first step in most situations is to notify the contracting officer in writing. There are several FAR provisions that require a contractor to provide notice (e.g., FAR 52.242-17 Government Delay of Work; FAR 52.243-1 Changes – Fixed-Price; and FAR 52.236-2 Differing Site Conditions), and providing notice helps to preserve one’s rights moving forward.
The next step is determining the type of delay that has occurred. There are three types of delay: inexcusable, excusable, and compensable. Determining the type of delay requires an analysis of responsibility, impact, and the existence of other delays during the same time period.
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