During a self inspection, the inspector stated that the task order is expired and that a modification to lift the suspension of work is invalid due to the original completion date stated in the task order being past.
The CO contends that the Effective Date and the language in Block 14 of the SF30 clearly stated that all work is suspended effective 22 Dec 2012 with 7 days of work remaining. The CO contends that the effective date of the suspension trumps the contractual task order completion date thus allowing the CO to lift the suspension and to revise the task order completion date to account for the differing site condition even after the original task order period of performance has passed.
Is the CO position correct that the task order is not expired or is the inspector correct?
Thank you for any information and references you can provide.
It is not DAU’s position to adjudicate office disagreements based on opinion and it might be best to refer this matter to leadership. However, the scenario - as written - identifies the problem as a construction task order with a period of performance, 7 Oct 2012-29 Dec 2012 during which time a differing site condition is discovered. The contractor identifies this to the CO, who investigates and issues a formal modification for the additional work and time required to complete.
Differing site conditions are a common enough problem encountered in construction that the differing site condition clause FAR 52.236-2
is always required. The clause specifically states that
(a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of -- (1) Subsurface or latent physical conditions at the site which differ materially from those indicated in this contract; or (2) Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract.
And that (b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly.
To solve a Differing Site Conditions problem there are a series of yes/no questions:
- Was a material condition encountered on the site which differed from what would be normal expected or different from what the government specifically indicated would be there? Yes/no "no", then what is the problem? if "yes", then;
- Did this differing condition interfere with completing the work? Yes/no "no" then what is the problem?, if "yes", then;
- Did the contractor inform the government as required by FAR 52.236-2? Yes/no "no", then KTR will have a very difficult proving damage, if "yes", then;
- Did the government promptly investigate the allegation of DSC? Yes/no "No" potentially results in a government caused delay, if "yes", then;
- Could the differing site condition be completed by another contract or method (i.e. not as a modification to this contract)? Yes/no
"yes", then the agency should consider awarding new contract for the new work using appropriate contracting vehicle, "no" then the agency should consider modify the existing contract as an in-scope change and cite DSC as the authority.
Going only on the scenario as presented, during the performance of the work an alleged changed condition was encountered. It would appear that there are no other conditions which would counter the use of the Differing Site Conditions clause for the problem encountered while the Task Order was active and valid.
Under the Differing Site Conditions clause, the contractor would be due a reasonable price adjustment for new work to cover the differing site conditions and a new contract completion date to include the reasonable portion of the days consumed accomplishing the differing site condition work. Note: this does not in any way suggest that prices presented by this contractor and 20 days actually consumed are reasonable: FAR 52.236-2
allows both time and a price adjustment, the amount and reasonableness are for the CO and government team to determine.
Since the government properly invoked the Suspension of Work clause so as to minimize costs, the contractor is due the unreasonable portion of 8 days as government caused delay. The portion of that period which was unreasonable (i.e. did it completely suspend or only partially suspend the work) remains a matter for reasoned judgment and negotiation.