When the contractor’s performance requires the government to furnish a work site, failure to make the site available may result in liability for the government. Even when furnished by the government, the availability of a work site may depend on many variables. Therefore, unless the contract can be interpreted to imply an unqualified guarantee, contractors may find it challenging to prove the existence of a warranty of site availability. The extent of definitiveness of the contract language pertaining to availability of the work site is key in determining whether a warranty exists. General government representations specifying a date for making a work site available are typically insufficient to amount to a warranty absent express and unqualified contractual language. If the availability of the site is dependent on factors outside the government’s control, such as completion of performance on another contract, a finding that a warranty of site availability exists becomes highly unlikely. On the other hand, if the government alone has complete control over site availability, it makes it more likely that a claims adjudicative forum will find that a warranty exists. Additionally, certain facts may indicate the presence of a warranty of site availability, including the critical importance of the site and the limited period within which the work must be performed. Similarly, contract clauses can be important indicators, with a warranty of site availability more likely to be found in contracts that include a suspension of work clause.

The government may sometimes unilaterally direct the contractor to perform additional work outside the scope of the changes clause of a government contract. Such an order for alterations is a cardinal change and amounts to a breach. In order to establish that a cardinal change has occurred, the contractor must show that the work ordered by the government, either explicitly or impliedly, was beyond the contract requirements and materially different from what the contract specified. To determine whether a cardinal change exists, claim adjudicative forums compare the total altered work with the work included in the contract. If the alterations in the work are out of character with the work contemplated in the contract or require a level of effort reasonably unforeseeable at the time of formation, a cardinal change has occurred. In other words, a cardinal change exists when the government requests a unilateral change that so drastically alters the work that the contractor must essentially perform duties that are materially different from those it originally bargained for. While facts and figures involving the number of days of delay and performance cost increases may be helpful in understanding the extent of the additional work, establishing whether a cardinal change has occurred involves a highly fact specific inquiry that must look beyond such numbers alone, into the contractor’s entire undertaking. Once established, a cardinal change is a breach of contract and accordingly has the effect of freeing the contractor from its contractual obligations.

Government agencies have a prima facie case for default termination when a contractor fails to deliver performance in a timely manner. However, even when terminating the contractor on this basis, the government must exercise its broad discretion fairly and reasonably. In this regard, when the government elects to allow a contractor to continue performance past the contract completion date, it may waive the due date and thus its ability to terminate the contract for default for the contractor’s failure to meet it, provided two conditions are satisfied. First, the government fails to terminate within a reasonable period following the default, indicating forbearance. Second, the contractor relies on the government’s failure to terminate and continues performing under the terms of the contract with the government’s knowledge and express or implied consent. A waiver of the contract completion date under such conditions protects contractors who may be under the impression that time is no longer of the essence and, as a result, continue to expend significant effort and resources even after the performance deadline has passed. In construction contracts, the government’s imposition of liquidated damages after a performance date has passed or an express reservation of its rights in the performance deadline typically renders this waiver doctrine inapplicable. However, the completion deadline may be waived in construction contracts when the liquidated damages provision is not invoked or the government otherwise fails to adequately reserve its rights with respect to the completion deadline. Once the original completion deadline is waived, the government must establish a new deadline before it can terminate the contractor for default for failing to make progress.