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    Must the contract be extended to reflect a new completion date after beneficial occupancy is taken in order for the contract to be valid for the contractor to complete the remaining work? Previous direction indicated that since BO was taken that the contract did not have to be modified to extend performance period as items remaining were considered to be punch list items. New direction is that if the progress is not at 100% and the ECD has passed then there is no valid contract for the contractor to perform. Please clarify as to whether the contract needs to have a modification.


    Answer

    1. The FAR references quoted below in pertinent part are applicable to this response.

    FAR 43.103 -- Types of Contract Modifications
    (a) Bilateral. A bilateral modification (supplemental agreement) is a contract modification that is signed by the contractor and the contracting officer. Bilateral modifications are used to --
      (3) Reflect other agreements of the parties modifying the terms of contracts

    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 -- (iii) Acts of another Contractor in the performance of a contract with the Government

    2. Based on the information provided in the Background statement, we assume that the contract in question is a fixed-price construction contract. Therefore, because the delay in completing the work for the rubberized running track was caused by the acts of another contractor under a separate Navy contract, then the contractor is entitled to an excusable delay in completing contract performance pursuant to the terms of contract clause FAR 52.249-10(b)(1)(iii).  Therefore, the Contracting Officer must issue a bilateral contract modification in accordance with FAR 43.103(b)(3) to extend the contract completion date by a reasonable time that will allow the contractor to complete its obligations under the contract once the electrical system work under the separate Navy contract has been finished.

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