A contractor performed a project involving the construction of stone dike extensions and other work at four sites on the Mississippi River. Nelson, Inc. ASBCA No. 57201 (December 15, 2015). One of the issues was whether the four distinct sites were separable for purposes of applying the Termination for Default clause (FAR 52.249-10). In other words, the question was whether the contractor could be terminated for failing to diligently prosecute the work on one of the
four work sites, even though the overall contract allowed 165 days for completion. The Board stated that “Where a contract is separable (sometimes also referred to as severable, or divisible) and a contractor is delinquent only as to a separable part of the contract work, it is improper for the contracting officer to terminate for default the entire contract.” The contractor would not be prohibited from continuing performance on any of the sites where work was being performed in a timely manner.
Defenses to a Termination for Default
In a post publis
hed in 2013, we addressed the use of termination for default as a weapon. Unfortunately, construction contractors who fall behind schedule are automatically on the defensive and they rarely find that contracting officers are willing to concede government responsibility. The government, of course, is in a difficult position when it must explain to its customer – the end-user – that the scheduled completion date will not be met. All too often, instead of admitting that the contractor is not responsible, the threat of a termination for default is held over the contractor’s head because it is easier to blame the contractor than to admit that the government made a mistake.
Continue Reading Defenses to a Termination for Default
Court Throws Out Government Claim for Excess Reprocurement Costs
By: Edward T. DeLisle
If a government agency terminates a construction contractor for default, it cannot then sit on its hands. The agency must re-procure and complete that project within some reasonable amount of time. Failure to do so may result in the dismissal of any subsequent claim for excess costs to reprocure and finish