With three MODs already awarded that all included POP extensions, the Contractor wants another POP extension. Their reasoning is that due to the Government not approving drawings that they are delayed. The drawings were submitted later than they should've been and the Government has disapproved original and resubmissions. Now that the contractor does not have an approved drawing and the POP is only a week away, they want to extend at no cost.
Can we do a POP extension before it expires with some kind of (not sure what) verbiage about liquidated damages and one last MOD to apply liquidated damages after site acceptance?
OR can a contractor perform the work in "forbearance" after the contract has expired and then we go back and do a MOD after site acceptance to apply liquidated damages?
My research shows that the forbearance is an intentional delay in collecting a debt or demanding performance on a contract and seems to be a form that the Government uses to issue a decision on a T4C or T4D. At the same time a contractor cannot perform without a contract (even an expired construction contract).
If my CO and my COR do not want to extend the POP but want the work to be completed, do we do a MOD to extend the POP and then apply liquidated damages? (There is no way we can T4C and awarded to another contractor because of the destination.)
Yes, the contractor can perform after expiration of the contract or task order completion date.
Open full Question Details
Construction IDIQ contracts contain the clause at FAR 52.249-10, Default (Fixed-Price Construction) which states in part:
(a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed.
The key word in the paragraph is "may".
In addition, the clause states in part: (b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause, if --
(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor...
If the Government did not approve required drawings within the contractual timeframes then the contractor may have contractual right to a contract extension. If the delay is beyond the contractors control and without their fault or negligence then an extension could be authorized under FAR 52-249-14, Excusable Delays, (c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.
The contracting officers must evaluate the situation, document the facts, and make a decision. If the situation does not warrant an extension and the contracting officer does not intend to initiate termination action, then the contract completion date would not extended and the contractor would be notified the government intended to pursue action under the clause at FAR 52.211-12, Liquidated Damages. However, the following requirement at FAR 11.501(c) applies: (c) The contracting officer must take all reasonable steps to mitigate liquidated damages . What steps were taken?
The contracting officer must first ascertain the facts and determine if contractor's late performance was from "causes beyond the control and without the fault or negligence of the Contractor".