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Evidentiary Considerations in Proving Excusable Delays

Depending on the specific terms of the contract at issue, contractors may rely on various types of evidence to prove an excusable delay in performance. Contractors must generally carry the burden of proof in establishing their performance delays were excusable. However, carrying this burden may prove challenging and complicate the path to recovery. For instance, the government may be in possession of some of the necessary evidence, or there may be concurrent events contributing to the delay in performance. Contractors must show the excusability of their delays through a preponderance of the evidence standard. That is, it must generally show that it was more likely than not that the government was ultimately responsible for the delays. While the standard of proof may be relatively low, contractors can still find proving the excusability of delays without different types of evidentiary proof quite challenging. Therefore, contractors attempting to prove the excusability of their delays must maintain detailed records showing that the government was responsible for the delay in performance.

When events causing a delay in performance take place, contractors should promptly notify the government to preserve their claims properly. Contractors should produce official records documenting government actions that contributed to delays in providing such notifications to government officials. 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 pointing to government-ordered changes to the original scope of work, along with any written directives issued by government officials that could have contributed to the delay. All contractual 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 project. Such evidence can prove particularly helpful in identifying the exact points 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. Additionally, contractors should also present any evidence identifying shifts in workforce deployments to document and 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 presented to support the contractor’s arguments for recovery. In situations where weather impacts performance timelines, contractors should present official weather reports and photos documenting the extreme weather events. Similarly, 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.

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 meticulously maintain any documents, evidence, and materials that tend to show the contractor’s efforts in mitigating damages arising from performance delays. Expert testimony can prove particularly useful in matters involving complex fact patterns with elongated project timelines. For instance, testimony from scheduling experts can prove helpful in analyzing and reconstructing the project schedule. Expert testimony can identify the critical path and quantify the extent to which particular events and delays may have impacted overall performance. Additionally, in situations where the contract may be silent or ambiguous regarding whether the encountered delay falls within the category of excusable events, expert testimony can help establish the reasonableness of the contractor’s response in the context of prevailing industry standards.

To demonstrate government responsibility in proving excusable delays, the contractor must not only show that the government caused the delay but also that no other events delayed the performance of the contract. However, while contractors must present favorable evidence to demonstrate excusable delays, it is ultimately the contracting officer’s responsibility to determine the facts surrounding the delay. Contractors may, of course, challenge the contracting officer’s decision to their claim. Depending on the circumstances, challenging the contracting officer’s decision requires the contractor to maintain and produce different types of evidence. Factors dictating the kind of evidence needed include but are not limited to the nature of the contract, specific events causing the delay, and the contract terms at issue. While the particular types of evidence required to prove excusable delay will ultimately depend on several factors, contractors should gather comprehensive and well-organized evidence from various sources to support their claims effectively.

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.