Your first obligation as a prime contractor on a Federal government contract is to complete performance on that contract. If you do not perform at a satisfactory level on a Federal government contract, the contracting officer may have to terminate your firm for non-performance. Should your firm be terminated – for convenience or default – on a Federal government contract, it is possible you may not receive another Federal contract due to documented poor past performance.
For any potential performance interruptions, contractors should review their contracts to see what, if any, latitude or remedy for performance delays are available. While most commercial contracts have a force majeure clause that excuses performance under extreme circumstances, including pandemics, government contracts do not typically utilize this kind of commercial language. Instead, contracts usually contain Federal Acquisition Regulation (FAR) and other agency-specific regulations. Here, some cost-reimbursement, time-and-material, and labor-hour government contracts contain FAR Clause 52.249-14 – Excusable Delays. This FAR clause, if inserted into the contract, provides that the Contractor shall not be in default because of any failure to perform if the failure arises from causes beyond the contractor’s control. Such circumstances include:
If the failure arises from causes beyond the control and without the fault or negligence of the contractor.
Examples of these causes are (1) acts of God or the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes and (9) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the contractor.
Notably, the government still reserves the right to terminate the contract for convenience if there is a delay in contractual deliverables to the government subject to the clause above.
Further, all Federal government commercial contracts should contain FAR Clause 52.212-4(f), which provides that the contractor shall be liable for default unless non-performance is caused by an occurrence beyond the reasonable control of the contractor and without its fault or negligence such as acts of God or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather and delays of common carriers.
The contractor shall notify the contracting officer, or in the case of a subcontractor – the Prime’s contracting officer, in writing as soon as it is reasonably possible after the commencement of any excusable delay. Providing official notification will set forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the contracting officer of the cessation of such occurrence.
Contractors should take note that this clause requires contractors to notify the contracting officer in writing “as soon as it is reasonably possible” and mitigate any potential impact.
With or without this clause, contractors would be wise to be in frequent communication with their government counterparts to set expectations and develop a plan.
For small business concerns, find more information on planning for and responding to the Coronavirus disease: Current CDC Business Guidance.