Is this considered an excusable delay under FAR 52.249-14(b)?
The following response is based solely on the question and background information provided. As we do not have all the facts particular to your situation, we highly recommend you consult, as applicable, your contracting officer and/or Legal Office for further guidance.
Open full Question Details
The contractor identified the appropriate clause paragraph in stating its case. However, it failed to appreciate the meaning of the words it is using.
"FAR 52.249-14, Excusable Delays (Apr 1984) ....
(b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless --
(1) The subcontracted supplies or services were obtainable from other sources;
(2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and
(3) The Contractor failed to comply reasonably with this order."
The applicable phrase is. "the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either..."
The contractor had no control over the subcontractor schedule. But the subcontractor has control over its schedule. IT knew the required delivery dates yet took on more orders causing the missed delivery. Taking on more orders than you can accomplish does not fall within the definition of "beyond the control".
This situation does not rise to the level of an excusable delay as defined in FAR 52.249-14, Excusable Delays