In case of contract disputes, contractors must typically carry the burden of proof to establish the excusability of delays in performance of government contracts. This burden of proof must be carried by meeting the preponderance of the evidence standard. That is, contractors must generally show that it was more likely than not that the government was responsible for the performance delays. Depending on the terms of the contract and the circumstances surrounding the delay, contractors may need to rely on various types of evidence to achieve this. While the burden of proof may be relatively low, proving excusability of delays may nevertheless be challenging in the absence of properly documented evidence. For instance, the government may be in control of some of the evidence necessary to establish excusability, or there may be concurrent events contributing to delays in performance. Such scenarios may require contractors to produce different types of evidence, which may complicate their path to recovery. Therefore, contractors attempting to prove excusable delays must document, maintain, and produce detailed records demonstrating the government’s share of responsibility for the delay in performance.
When events causing delays in performance take place, contractors should promptly notify the government to preserve their claims properly. When notifying government officials, contractors should produce official records that adequately document government actions contributing to delays. Depending on the circumstances, such evidence may include records demonstrating government delays in granting notice to proceed or other approvals. Additionally, contractors should present evidence that points to any direct government orders, changing the original scope of work, such as written directives issued by government officials that could have contributed to the delay. All contract documents establishing the timelines for expected performance, along with any records demonstrating timely completion of contractual milestones, should be meticulously maintained and presented as evidence of the contractor’s progress on the contract. Such evidence can prove particularly helpful in identifying the exact events in the project timeline where the delays occurred.
In contracts involving construction, contractors should present project records, progress reports, and performance logs detailing daily activities, obstacles encountered, and contractor solutions in response. If performance delays occur due to unanticipated labor issues, contractors should present official union certification of labor strikes and any news articles verifying the relevant events. Additionally, contractors should also present any evidence identifying shifts in workforce deployments to demonstrate the delay’s timing and impact on the contract. Delivery records that show delays in the arrival of necessary materials or equipment due to unforeseen or unexpected circumstances outside the contractor’s control should be maintained and presented to support arguments for excusability. In situations where weather conditions impact contract performance timelines, contractors should present official weather reports and photos that document the extreme weather events.
In addition to demonstrating government responsibility for excusable delays, contractors must also demonstrate that they made reasonable efforts to mitigate any damages. Therefore, contractors should carefully maintain any documents, evidence, or materials that tend to show their efforts in mitigating damages arising from performance delays. Expert testimony can prove particularly useful in matters involving complex fact patterns and elongated project timelines. For instance, testimony from scheduling experts can prove helpful in analyzing and reconstructing the project schedule. Expert testimony can also assist in identifying the critical path and quantify the extent to which certain delay causing events may have impacted overall performance. Additionally, in situations where the contract may be silent or ambiguous about whether a type of encountered delay falls within the category of excusable events, expert testimony can help establish the reasonableness of the contractor’s response in the broader context of prevailing industry standards.
To demonstrate government responsibility in proving excusable delays, contractors may need to show that the government was solely responsible for the delay and that no other events delayed performance on the contract. Factors dictating the kind of evidence needed to prove such government responsibility may include the nature of the contract, specific events causing the delay, and the terms of the contract. While contractors must present evidence to demonstrate excusability, it is ultimately the contracting officer’s responsibility to determine whether the delay was excusable. Contractors may, of course, appeal the contracting officer’s final decision at a Board of Contract Appeals or the Court of Federal Claims (COFC). Regardless of the adjudicative forum selected, challenging the contracting officer’s decision will typically require the contractor to produce different types of evidence. Therefore, contractors should carefully maintain all documents and materials from various sources that tend to prove excusability of delays as potential evidence to effectively support future claims.
This Federal Contract Claims Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
