The prime contract has asked for a no cost time extension under the FAR Clause 52.249-10, Default (Fixed Price Construction). Is this the correct clause? And can the contracting officer award the time extension or would we need further legal review?
The following answer is based solely on the background information provided as we do not have all the facts pertaining to your contract. As we do not have access to the contract folder or program particulars that apply to this situation, we highly recommend you consult the Contracting Officer as well as the Legal Office.
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FAR 52.249-10 Default (Fixed-Price Construction).
(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. Examples of such causes include--
(i) Acts of God or of the public enemy,
(ii) Acts of the Government in either its sovereign or contractual capacity,
(iii) Acts of another Contractor in the performance of a contract with the Government,
(vii) Quarantine restrictions,
(ix) Freight embargoes,
(x) Unusually severe weather, or
(xi) Delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and
(2) The Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended. The findings of the Contracting Officer shall be final and conclusive on the parties, but subject to appeal under the Disputes clause.
The clause in itself does not grant permission for a no cost time extension.
There are some questions that you need to ask before you can proceed. Was the delay in accordance with FAR 52.249-10 (b)(1)? From your background information this does not appear to the case. Was the delay caused by the government's action? You have to make that determination. Depending on yes or no to the questions, you can then make a decision on the best course of action forward. In addition, you described that the contractor is going to run 70 days over the approved contract time. Why wait so long and was the notification time in accordance with FAR 52.249-10 (b)(2)?