What’s Your Excuse? COVID-19 and the Contractor’s Excusable Delay Claim

January 13, 2022

With the successful progress of the COVID-19 vaccine rollout, life in the U.S. is beginning to return to what many people will refer to as “the new normal.” While most of the country is preparing to return to “business as usual,” for those in the construction industry, business – for the most part – never really took a break from its usual pace. And while the regular pace of the construction industry is no stranger to delays and disputes arising from schedule disruptions, the construction industry, like many other industries, has and continues to face issues directly related to the COVID-19 pandemic. Such impacts include, for example, disruptions in the material supply chain, project site closures, and labor impacts. In the face of these unexpected new challenges directly resulting from the pandemic, those in the construction industry and particularly, construction lawyers, must consider whether such delays are excusable and, if so, whether they are entitled to compensation.

Whether a delay is excusable depends on the contract language and the circumstances surrounding the delay. For government contracts, the Excusable Delay clause (FAR 52.249-14) provides that any delay arising from “causes beyond the control and without the fault or negligence of the contractor” is excusable. The clause includes enumerated examples of circumstances that result in excusable delays like acts of God, fires, floods, epidemics, and even quarantine restrictions. Similarly, under the AIA’s Delays and Extensions of Time clause (section 8.3.1), a reasonable extension of time can be provided in circumstances where the delay was caused by something out of the contractor’s control like bad weather, labor disputes, or delivery delays. However, in order to be compensated for the delay under the FAR, the contractor must show that the Government was the sole and proximate cause of the delay. Likewise, under the standard AIA contract, the contractor must show that the owner solely caused the delay without any concurrent contractor delay. Examples of compensable delays include the Government’s failure to give timely work orders or an owner providing defective drawings; situations where the contractor can readily demonstrate that they had no fault in the delay.

In the case of the COVID-19 pandemic, it’s safe to say that such delays are beyond the reasonable control of and not reasonably anticipated by contractors. Still, that doesn’t necessarily mean that any delay in construction since the start of the pandemic in early 2020 can be deemed compensable or even excusable.

While there is no significant caselaw development specifically related to COVID-19 construction delays at this time, there’s plenty of guidance relating to government contracts from past unforeseeable events and their subsequent construction delays. In Ace Electrical Assoc’s, Inc., a contractor sought to change its termination for default into a termination for convenience by arguing that “a flu epidemic that had passed through its plant causing a 30% to 40% rate of absenteeism over a period of several weeks” had caused production delays. ASBCA No. 11781, 67-2 BCA ¶ 6,456. While accepting the notion that a flu epidemic could be cause for an excusable delay, the Board noted that the mere existence of a flu epidemic does not make a delay excusable per se. Id. Instead, the Board made clear that to establish an excused delay, the contractor must not only show the existence of the excusable cause for delay but also how the delay specifically affected the contractor, its work, and the efforts made to mitigate such delay. Id. Later, in Asa L. Shipman’s Sons, the Board faced a similar flu-related excusable delay claim and, in denying the contractor’s argument, made clear: “the essence of the ‘Ace Electronics’ test is the requirement that a defaulted contractor prove that an epidemic was the sole cause, not merely a contributing cause, of the performance delay.” GPOBCA No. 06-95, 1995 WL 818784 (Aug. 29, 1995). Similarly, in Crawford Development and Mfg. Co., a contractor maintained that its 4-week delay in production was caused by a flu epidemic that caused several key employees to become ill. ASBCA No. 17565, 74-2 BCA ¶ 10,660. The contractor’s records showed, however, that during the period the contractor was delayed, only two employees were absent and that the rest of the delay period was actually due to an industrial accident – not the flu epidemic. Id. Again, because the contractor failed to precisely establish how the flu epidemic materially affected its ability to perform, the Board denied the claim. Id.

Past flu epidemic excusable delay cases suggest that contractors claiming a delay in performance due to the COVID-19 pandemic should be prepared to establish, with specificity, how the pandemic directly caused their delays. Merely pointing to COVID-19 as a cause for delay will likely be insufficient, especially because – unlike past flu epidemics – the COVID-19 pandemic has impacted industries across the country for longer than just a few months. In other words, while certain Stay-at-Home Orders that did not identify construction workers as “essential” is likely cause for an excusable delay, lack of manpower due to employee illness may require more detail.

Legal precedent suggests, however, that contractors should not hold their breath for delay-related compensation. As mentioned earlier, the FAR and standard AIA contracts are very particular when it comes to a contractor’s right to delay-related compensation (i.e., the owner or government must be the sole cause of the delay to justify compensation). Contractors will have a difficult time arguing that delays resulting from COVID-19 were foreseeable by the government or owners in a way that would entitle them to compensation. In Pernix Serka JV c. Department of State, a contractor was unable to meet certain deadlines due to the Ebola virus outbreak in Sierra Leone. CBCA No. 5683, 20-1 BCA ¶ 37,589. The contractor was given time extensions by the government agency but was ultimately terminated due to the continued delays. Id. The contractor brought suit, seeking compensation for the costs it incurred to protect the health of its employees by arguing that the government agency’s expectation that work continue during the Ebola outbreak constituted a constructive and cardinal change. Id. The Civilian Board of Contract Appeals denied the claim, noting that the government agency never changed the scope of work expected of the contractor and that, even though the Ebola outbreak was unexpected, the government agency did not direct the contractor to make any changes as it related to the construction to justify compensation. Id. Using this example, contractors may be expected to show an actual owner or government ordered revision to the schedule or scope of work in lieu of the pandemic, which would then entitle the contractor to compensation. Additionally, contractors should note that any delay in their own project management during the pandemic may provide the government or owner with a concurrent delay counterclaim that could eliminate the ability to receive compensation.

In conclusion, contractors and their counsel should understand that COVID-19 related excusable delay claims must be equipped with detailed documentation that establish the causal link between the pandemic and the specific delays. Contractors should also be able to identify the precise ways in which they attempted to mitigate such delays in order to avert owner or government claims of concurrent delay. Moving forward, contractors should consider inserting more delay-related protective provisions and should consider expanding the definition of Force Majeure in their contracts to shield themselves from future problems associated with unforeseeable pandemics and the need for greater (and more costly) safety measures for their employees. As the country begins to reemerge from the chaos of the pandemic, we will likely see more caselaw specifically on these issues and continue to update our clients.