Practice Notes: Love in the Time of COVID

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Hannah Zeigler

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2024-06-11

(Credit: Mr Doomits – stock.adobe.com)

Practice Notes

Love in the Time of COVID

Rethinking the DoD’s Position on Excusable Delays in Contingency Contracting

By Captain Jason M. Floyd

Always remember that the most important thing in a good marriage is not happiness, but stability.1

The Novel Coronavirus Disease of 2019 (COVID-19) frustrated certain performance aspects of Department of Defense (DoD) contracts across the world. Among other things, contractors had problems getting their employees into and out of the Combined Joint Operations Area–Afghanistan (CJOA–A). Non-contracting activities2 were desperate to understand the associated rules, demanding contractors “figure out” a way to solve such entry and exit requirements. Contracts’ terms often frustrated the commanders who were to benefit therefrom. The DoD should revise its position on excusable delays—or lack thereof.

An Overview of the FAR’s Current Excusable Delay Clauses

Generally, DoD contracts awarded under the Federal Acquisition Regulation (FAR) contain provisions that excuse performance due to circumstances beyond a contractor’s control. When applicable, the clause can prevent terminations and the assessment of actual or liquidated damages. In the face of what should be excused-performance, if the Government accelerates these tasks, the contractor can refuse to accelerate their performance, or seek recovery of additional compensation for the accelerated part of their performance. Moreover, it is unclear whether the Government can terminate a contract for its convenience based on a contractor’s invocation of the excusable delay clause without a resultant breach.

Variety Is the Spice of Contracts

Not all contracts are created equal.3 That is certainly true with respect to provisions concerning defenses involving excusable delays. The type of excusable delay clause contained in a contract will depend largely on whether the contract is 1) commercial and 2) fixed-price.4 In non-commercial fixed-priced supply and service contracts,

[e]xcept for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the public enemy, (2) acts of Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance the failure to perform must be beyond the control and without the fault or negligence of the Contractor.

If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule.5

The clause used in fixed-price construction contracts adds to the enumerated list of causes for delay, above, “[d]elays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers . . . .”6 However, in those contracts, a contractor must also “within [ten] days from the beginning of any delay (unless extended by the Contracting Officer), [notify] the Contracting Officer in writing of the causes of delay.”7

“Not every fire or quarantine or strike, or freight embargo” excuses delayed performance. The contractor has the burden of proof, first with respect to the existence of the enumerated basis for delay.

The clauses for commercial items,8 and simplified acquisitions for other than commercial items,9 are similar to the clause for non-commercial fixed-price service and supply contracts. The former two clauses add an additional basis for “delays of common carriers” and create a requirement for two separate notices—one “as soon as it is reasonably possible” after the excusable delay begins, and another when such delay ends.10

Cost-reimbursement type contracts contain similar requirements to fixed-priced supply and service contracts, but go a bit further. In order to terminate the contract, the contracting officer (KO) must have ordered the contractor, in writing, to purchase the supplies or services from other sources (if that was the cause), and the contractor failed to reasonably comply with such order.11 Otherwise, the delay is excusable.12

This may come as a surprise to some, but the DoD’s supplement to the FAR (the DFARS) does very little to add to13 or modify14 these clauses—even in contingency environments.

Diagnosing the Symptoms of Excusable Delay

“Not every fire or quarantine or strike, or freight embargo” excuses delayed performance.15 The contractor has the burden of proof, first with respect to the existence of the enumerated basis for delay.16 The contractor must then establish a causal connection between the basis and its delayed performance.17 Moreover, only those delays that affect the overall completion of work (referred to as delays affecting the “critical path”) are excusable.18 Finally, the events giving rise to the delay must have been “beyond the control” of, and “without the fault or negligence” of the contractor.19 For high-dollar non-commercial contracts, the supplies or services must not have been “obtainable from other sources” (i.e., alternate subcontractors).20

“Beyond a contractor’s control” takes on three explanations. An event is not beyond the contractor’s control if 1) the event is considered foreseeable at the time of contracting, and the contractor enters into the contract without making provisions to protect itself—here, the contractor will have been deemed to have assumed the risk;21 2) the contractor could prevent it from occurring;22 and 3) it could have overcome the effects of the event. The first and third applications are relevant to COVID-19.23 If the contract was awarded before the COVID-19 pandemic disrupted entry and exit pathways,24 then these circumstances should generally warrant an excusable delay. However, if the contract was awarded after COVID-19 disrupted entry and exit pathways, and if the contractor failed to make proper provisions to ensure it is able to perform in accordance with the delivery dates and/or periods of performance under the contract, then the contractor can be said to have assumed the risk of delayed entry/exit of its personnel. Further facts are necessary, on a case-by-case basis, to determine whether the contractor “could have overcome the effects” of such closures. The facts will vary depending on the KO’s direction in the contract regarding mode of transportation,25 the availability of commercial air, travel restrictions per country, and the contractor’s attempts at negotiating with sovereign nations regarding such restrictions.

“Fault or negligence” refers to acts or omissions of the contractor that cause delay. Courts have held that U.S. Government-caused delay is without the contractor’s fault or negligence. In Sterling Millwrights, Inc. v. United States, the “United States Department of the Army [contracted for] the first step in a two-step bidding process for the construction of a chrome-plating facility for the inner surfaces of 120-millimeter M256 cannon barrels mounted on the M1A1 tank.”26 When the contractor failed to deliver the chrome-plating facility, the court held that this was due to the Army’s delays.27 For its part, the Army was unable “to review the large volume of highly complex technical shop drawings associated with this project” due to a lack of expert staff.28 As such, the contractor could not have been “at fault.”29 In the context of COVID-19 and overseas operations, it is important to ensure that commanders are aware that onerous and last-minute public health measures may act to solidify a contractor’s non-performance or delayed performance if it sufficiently interferes with the contractor’s ability to gain access to the place of performance. For example, a sudden requirement to conduct polymerase chain reaction testing for COVID-19 before arriving in theater, a change from a requirement to do so before or after arrival, would perhaps result in a delay properly attributable to the Government.30

An additional requirement in non-commercial contracts valued at more than the simplified acquisition threshold, is that the supplies or services subject to delay were not available through alternate sources or subcontractors.31 The term “subcontractors” has been extended to common carriers.32 Status as a subcontractor is determined by whether “the prime contractor” and its supplier were dealing with each other on a regular and continuous basis in order to fill requirements under contract.33 Here, if the contractor typically uses a particular carrier to transport its personnel or equipment, such entity may be deemed a subcontractor—even if no enforceable contractual relationship between the two exists. Ergo, all those supplies typically delivered to contingency contractors from FedEx may be subject to an excusable delay.

Government Action in the Face of Excusable Delays

When told by a contractor of its prospective inability to perform, the Government is faced with a choice. By the terms of the contract, the bargained-for exchange of the legal detriment requires that the Government sit on its hands while the contractor deals with the delay. However, if the Government desires delivery or completion in advance of the excusable delay, then the Government can assert its need for an acceleration of performance. Still, because such a demand is akin to a change order, the contractor may be entitled to additional compensation. Less obvious though, is when a contractor decides that they will not comply with the demand for acceleration.34 What, then, is the Government’s remedy (if any)? Can it terminate the contract? That is the hard question.

Acceleration

We’ll grow old waiting.35

Compensable acceleration occurs when, in the face of an excusable delay, the Government orders the contractor to perform before the legal basis for the delay has concluded.36 Recently, the Court of Federal Claims reaffirmed the following elements of a constructive acceleration claim:

that the contractor encountered a delay that was excusable;
that the contractor requested from the government an extension of time due to the delay;
that the government denied the contractor’s request for an extension of time;
that the government demanded completion of the contract in a shorter amount of time than the contractor was entitled to, given the excusable delay; and
that the contractor was required to expend additional resources to adhere to the schedule on which the government insisted.37

Doubtless, various delays in a contingency environment would be intolerable. For example, delays would not be tolerable for the mobilization of a private security contractor to a place where there are insufficient U.S. and coalition forces to cover camp security. An example of a similarly intolerable delay is where the closing of international air travel has kept a dining facility’s contractor employees without leave, without backfill, and working more than the 8-hour shifts without a day off—as required according to their employment agreements—which causes them to go on strike. As such, the Government will typically demand performance where it believes it necessary. And contractors will almost always happily comply.

Terminations for Convenience During Excusable Delays

It is when contractors cannotcomply, regardless of the amount of added compensation, that the Government has to grapple with what happens next. The Government generally has an inherent, statutory, and contractual right to terminate its contracts with private businesses.38 In light of these rights, “a proper termination for convenience does not constitute a breach of contract[;] it limits the monetary recovery a contract awardee can collect.”39 However,

[t]he United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a State or a municipality or a citizen.40

Therefore, terminations for convenience are within the decision-making authority of KOs, but can be deemed breaches based on judicial determinations of bad faith or abuse of discretion.41 That is to say, the possibility of a convenience termination “is not an open license to dishonor contractual obligations.”42

Historically, courts allowed terminations for convenience as a manner of “risk allocation.” Convenience terminations were a mechanism for “relieving the government of the risk of receiving obsolete or useless goods. The risk was shifted to the contractor, that it could lose the full benefit of its expectations if circumstances changed too radically.”43

However, what happens when the Government and its contractors have anticipated the occurrence or risk, and allocated it in writing with sufficient clarity? Can the Government terminate that contract for convenience merely because the contractor responds to a demand to accelerate with, “I’d love to, but can’t. And I am excused from doing so?” When the Government terminates a contract for its convenience because the contractor invokes a governmental obligation, “it risks violating one of contract law’s most fundamental principles, that all contracts must be supported by consideration.”44 The bargained-for terms of the contract require the Government to excuse performance during the pendency of its cause. It would seem a convenience termination for such a reason, standing alone, would be “like the mirage of the desert with its vision of flowing water which yet lets the traveler die of thirst”—in other words, an illusory promise.45

At least, that was the case before the Court of Appeals for the Federal Circuit limited the Torncello holding to “the unremarkable proposition that when the Government contracts with a party knowing full well that it will not honor the contract, it cannot avoid a breach claim by adverting to the convenience termination clause.”46 Meanwhile, in his dissent, Judge Duff noted, “[i]f all that the [Torncello] court had to say was that the government should not enter into a contract in bad faith, then the majority of judges in that case expended too great an effort.”47 And so, in 2013, the Court of Federal Claims seems to have swung the pendulum back toward Torncello. In TigerSwan, the court explained that bad faith and abuse of discretion were two grounds on which to find a termination for convenience improper.48 But it also named the reasoning in Salsbury as a third.49 Instead of enlarging the Government’s authority for convenience terminations as The Sinking-Fund Cases and Lynch would fear, the court in TigerSwan seems to have revived the principles in Torncello when it held that TigerSwan survived a motion for judgment on the pleadings. The court stated a convenience termination is improper “where the government has engaged in some form of improper self-dealing for its own benefit.”50 That is all to say, that the law with respect to the propriety of convenience terminations in response to contractors invoking their contractual rights is as clear as mud.51

To say that the DoD is dependent upon contractors is an understatement. In areas of armed hostilities where a minimum force posture exists, the DoD’s reliance on contractors for private security; intelligence, surveillance, and reconnaissance capabilities; base life support activities; construction; general maintenance and repair; improvised explosive device detection; and information technology support is a threat to the success of the mission where contractors can forego performance due to an excused delay.

Excusable Delays Are Sometimes Insufferable

The effect of delays in contracting could be devastating. As of the fiscal year (FY) 2020 4th quarter U.S. Central Command census, there were 22,562 contractor employees in Afghanistan.52 That’s a slight reduction from the same time in 2016 (25,197),53 2017 (23,659),54 2018 (25,239),55 and 2019 (24,202).56 However, the number of contractor employees have consistently dwarfed troop levels over the same period: there were 9,800 troops in 2016,57 11,100 in 2017,58 14,000 in 2018,59 approximately 13,000 in 2019,60 and approximately 2,500 as of 15 January 2021.61 And, during the drawdown, contractors were spread thin.62 There are few, if any, redundancies.

The Government Accountability Office found that, during FY10 to FY12, the “DoD awarded 16 [non-competitive] contracts, valued at $1.2 billion,” because of urgent operational needs.64 That signals that the DoD was unwilling, or unable, to take action to fill the gaps using U.S. troops, coalition forces, or DoD civilians. Instead, the DoD relied on contractors to quickly mobilize and begin performance. And that was long before COVID-19.

Inexcusable, Merely Compensable, and Stable Performance

Life . . . was nothing more than a system of atavistic contracts,

banal ceremonies, preordained words, with which people entertained each other . . .

The dominant sign in that paradise of provincial frivolity

was the fear of the unknown.65

The DoD should deviate from the generally applicable clauses in the FAR: these excusable delay clauses have no place in a war zone. These “atavistic contract” terms only obscure the desires of the parties. Commanders do not want to deal with delays, and their wartime contractors want to perform (for additional compensation). Other mechanisms can sufficiently address any issues stemming from subjects enumerated in these clauses. If performance becomes more expensive, the contractor should request an equitable adjustment for increased costs. If performance becomes more difficult, the contractor can engage in discussions with the KO to determine the best course of action. Finally, if performance is commercially impracticable, convenience terminations should be clearly available to the Government.

Self-Executing Accelerations with Provision for Payment

In place of delays, the default position should be an increase in compensation. As discussed above, when a contractor asserts a valid basis for an excusable delay, the Government’s bargained-for exchange leaves it with allowing for a delay in performance as a default position. The KO can then choose either to accept that delay or accelerate performance. Still, the Government has to take an affirmative act to accelerate such performance. However, if the Government always chooses to accelerate performance—as is currently the case across the contracting enterprise overseas—why not make that its default position?

Suppose a contractor is confronted with a valid excusable delay. First, the contractor’s logistics coordinator determines that they are unable to confirm transportation for employees and equipment in sufficient time to meet the start of performance. That logistics coordinator immediately phones the logistics manager. The logistics manager digests the information immediately and asks others within the company to verify alternate arrangements. There are alternate arrangements, but at a much higher cost because of extra-contractual requirements and the airline’s booking policies requiring a decision within twenty-four hours. After preparing a sufficient summary of the facts, the logistics manager reaches out to the contracting officer’s representative (COR), informing them that the contractor is unable to meet the deadline due to the excusable delay, but that there are alternate travel arrangements if the KO would agree to modify the contract to allow for the alternate. The COR emails the contract specialist, who is in a different country because of the withdrawal of U.S. forces. After the specialist arrives to work and reads the email, they send it to the KO to determine a course of action. The KO, having no previous experience with excusable delays, sends it to the contract law attorney. The attorney immediately responds that the contractor is entitled to the delay, but the KO can modify the contract with additional funding after it has been certified by the resource manager. All of this communication takes three days. The modification would take another three days. So the contractor is unable to meet the deadline and unwilling to make alternate arrangements because it fears it would not be repaid its increased costs.

In a universe where the excusable delay clause is modified to allow for additional compensation in lieu of additional time, this back-and-forth could be avoided. Instead of gathering data sufficient to justify a delay (recall the notice requirement of certain provisions), the contractor could be gathering data sufficient to justify an increase in its compensation—and all the while continuing performance. “Equitable adjustments in this context are simply corrective measures utilized to keep a contractor whole when the Government modifies a contract.”66 The DFARS could modify the FAR clauses to only allow for equitable adjustments when performance becomes more expensive due to what would be an excusable delay. Instead of allowing delay, this approach allows contractors to recover the costs of these alternate travel arrangements through the submission of a request for equitable adjustment. Increased compensation, not excused delay in performance, would be the “corrective measure utilized to keep a contractor whole.”67

The current equitable adjustment principles generally require government action. “An equitable adjustment is the difference between the cost of the work required by the contract and the cost of the changed work . . . .”68 Work can be changed either through Government action (such as a change order or a constructive change) or changed conditions (including failure by the Government to accurately describe work).69 In the context of excusable delays, the Government action needed is an order to accelerate. As described above, requiring an affirmative act by the Government is often time-consuming and can interfere with diligent performance. Therefore, it is necessary to modify the clauses concerning excusable delays to allow for equitable adjustments. For example, the following modification to the non-commercial fixed-priced supply and service contracts70 would be beneficial:

Except for defaults of subcontractors at any tier, the Contractor may submit a request for equitable adjustment under DFARS 252.243-7002 if it can establish that it would have failed to perform the contract, and such failure would have arisen from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include . . . 71

This modification would direct a contractor, faced with what would be an excusable delay, to continue performance and submit a request for equitable adjustment under existing contract provisions. It would not serve to modify existing case law regarding excusable delays. Rather, it would work to weave the applicable prerequisites for the existence of an excusable delay into whether compensation is available under this DFARS deviation.

Clarifying the Availability of Convenience Terminations

As described above, when faced with a contractor who cannot accelerate performance when ordered to by a KO, the Government’s right to terminate for its convenience is unclear. Telling a contractor to “go pound sand,”72 when the parties agreed to allow (properly) excusable delays at the time of award, seems to violate something that the contract presupposes should be done. If the Government and the contractor did not agree—i.e., if the clause was lacking from the contract—then there would be no dispute that the Government could terminate its contract for convenience. There would be nothing on which the contractor could rely to say that the Government agreed to wait whenever it experienced delay. Removing these excusable delay clauses would clarify that the Government can terminate its contracts for convenience.

Conclusion

The war is in the mountains . . .

For as long as I can remember,

they have killed us in the cities with decrees,

not with bullets.73

In government contracting, common law doctrines should give way when detrimental to the public interest.74 The roots of the doctrine of excusable delays are sensible in normal times. However, in a contingency environment, where the DoD relies on its contractors as a part of the total force, COVID-19 has taught us that excusable delays are misunderstood, unwanted, and often unbearable. When informed of a contractor’s notice of delay, commanders are generally disappointed that the Government cannot demand action without incurring additional cost; and, even if willing to bear the cost, demanding action will take some time. They are incensed when told that contractors do not have to comply with demands for acceleration. A more accurate depiction of what occurs in contingency environments should be given to defense contractors at the time of contract formation. The DoD should deviate from the allowance of a delay and, instead, default to the allowance of additional compensation in the face of what would otherwise be an excusable delay.

Gabriel Garcia Marquez once remarked “[i]n reality the duty of a writer—the revolutionary duty, if you like—is that of writing well.”75 The DoD’s duty to its contractors is to give them realistic expectations of its actions when faced with excusable delays. Department of Defense policy—or rather the absence of a DoD exception from the FAR—currently expresses a willingness to excuse certain delays in performance. These “decrees” are fine in the cities, but the “war in the mountains” leaves room for neither excuse nor delay in contingency contracting. TAL

CPT Floyd is a battalion judge advocate with the 10th Special Forces Group (Airborne), and was recently deployed as the Command Judge Advocate for the Army Contracting Command in Afghanistan.

Notes

1. Gabriel Garcia Marquez, Love in the Time of Cholera 415 (Edith Grossman, trans., First Vintage Int’l ed. 2003) (1988).

2. In addition to some acquisition professionals.

3. Compare Krell v. Henry, [1903] 2 K.B. 740, with Blakely v. Muller, [1903] 2 K.B. 760 (collectively, the Coronation Cases).

4. Some contracts may have specific exceptions or additions to their force majeure clauses. However, those are beyond the scope of this article.

5. FAR 52.249-8(c)–(d) (2021).

6. FAR 52.249-10(b)(1)(xi) (2021).

7. FAR 52.249(b)(2) (2021).

8. FAR 52.212-4(f) (2021).

9. FAR 52.213-4(e) (2021).

10. FAR 52.212-4(f), 52.213-4(e) (2021).

11. FAR 52.249-14 (2021).

12. See id.

13. The Defense Federal Acquisition Regulation Supplement (DFARS) does add an excusable delay provision for job order contracts, consistent with the other types of contracts. DFARS 252.217-7009(b) (July 2021). It also adds one for the replacement of counterfeit electronic parts. DFARS 252.246-7008 (July 2021).

14. There are very few provisions which, if read consistently with the FAR’s excusable delay clauses, would seem to act on them. See DFARS 252.217-7004 (July 2021) (allowing a contracting officer to order contractors to perform work on “vessels” within their ability, regardless of an excused delay, but only in a job order contract); DFARS 252.229-7004 (July 2021) (disallowing excusable delay in cases where contractors face delays in obtaining appropriate licensure as a U.S. contractor when importing articles into Spain, as delays are “common”); DFARS 252.247-7023 (July 2021) (disallowing as “compensable” delay, the failure of a contracting officer to approve the use of a foreign-flag vessel for transportation of supplies by sea, in time for a sailing date. However, there is an open question as to whether it’s “excusable”); DFARS 252.251-7000 (July 2021) (disallowing as “excusable delay” the time granted in response to a contracting officer’s decision to terminate for a failure of a contractor to pay a U.S. Government source of supply in a timely manner).

15. United States v. Brooks-Callaway Co., 318 U.S. 120, 122 (1943) (averring “[a] quarantine, or freight embargo, may have been in effect for many years as a permanent policy of the controlling government. A strike may be an old and chronic one whose settlement within an early period is not expected. In any of these situations there would be no possible reason why the contractor, who of course anticipated these obstacles in his estimate of time and cost, should have his time extended because of them.”).

16. Non-enumerated bases for delay are sometimes analyzed under general contract principles, including whether the contract was written to exclude any other causes of delay, and whether and to what extent a defense of impossibility or commercial impracticability apply. See generally 6 Government Contracts: Law, Administration & Procedure ch. 36A (Walter Wilson ed., 2021). Non-enumerated bases are beyond the scope of this article. Notwithstanding excusable delay language, certain contracts may allocate the risk of performance to the U.S. Government via an express warranty. In such cases, even if the cause of the delay is not enumerated, the contractor’s non-performance may still be excused. See Swinerton & Belvoir, ASBCA No. 24022, 81-1 BCA ¶ 15 (wherein the U.S. Government advised bidders that “aliens may require up to [ninety] days before issuance of” entry documents, and the board held the government liable for damages resulted from actual clearance times exceeding ninety days).

17. Morganti Nat’l v. United States, 49 Fed. Cl. 110, 132 (2001).

18. Id.

19. John Cibinic Jr. et al., Administration of Government Contracts 489 (4th ed. 2015).

20. Id.

21. Fraser Constr. Co. v. United States, 384 F.3d 1354, 1361 (Fed. Cir. 2004); R.P. Wallace, Inc. v. United States, 63 Fed. Cl. 402, 409 (2004).

22. Fox Constr., Inc. v. General Servs. Admin., 93-3 BCA ¶ 26,193 (“Had [the contractor] properly discharged its responsibility . . . [the contractor] could have [taken steps] to avoid the freeze damage that ultimately occurred.”).

23. At the time of this writing, the Centers for Disease Control and Prevention only recently acknowledged that the virus “can be spread through airborne particles that can linger in the air ‘for minutes or even hours’—even among people who are more than 6 feet apart.” Maria Godoy, CDC Acknowledges Coronavirus Can Spread Via Airborne Transmission, NPR (Oct. 5, 2020, 5:44 PM), https://www.npr.org/sections/health-shots/2020/10/05/920446534/cdc-acknowledges-coronavirus-can-spread-via-airborne-transmission. Therefore, it is difficult—at least now—to say that a contractor could prevent the effects of COVID-19 from impacting their performance.

24. Although the clauses refer to “epidemics” as bases for excusable delays, in Afghanistan, it was usually a series of governments’ responses to the COVID-19 pandemic that resulted in the delays. For example, Kuwait closed its airport to commercial travel for five months, along with limiting visa processing, resulting in an inability to get many contractor employees transported from the United States to Afghanistan without delay. Kuwait International Airport to Resume Commercial Flights, Arab News (July 31, 2020, 8:54 AM), https://www.arabnews.com/node/1712546/middle-east. All contracts awarded by DoD activities, with performance in Afghanistan, should contain the disrupted entry clause at DFARS 252.225-7995 (Deviation 2017-O0004), which states that contractors accompanying the force shall “process through the deployment center designated in the contract, or as otherwise directed by the Contracting Officer, prior to Deploying . . . [and] use the point of departure and transportation mode directed by the Contracting Officer.” All contracts awarded by DoD activities, with performance in Afghanistan, should contain the exit clause at DFARS 252.225-7997 Contractor Demobilization (Deviation 2013-O0017). This clause states “[g]enerally, the Contractor is responsible for demobilizing all of its personnel and equipment from the Afghanistan Combined Joint Operations Area . . . . The Contractor shall demobilize and return its personnel to their point of origin or home country . . . . [Finally,] the Contractor is not authorized to use Government-furnished transportation unless specifically authorized in this contract.” Id. For more information on the deviations listed above, see DPC Defense Pricing and Contracting, Dep’t of Def., https://www.acq.osd.mil/dpap/dars/class_deviations.html.

25. See DFARS 252.225-7995 (Deviation 2017-O0004), supra note 24; DFARS 252.225-7997 Contractor Demobilization (Deviation 2013-O0017), supra note 24.

26. Sterling Millwrights, Inc. v. United States, 26 Cl. Ct. 49, 51 (1992).

27. Id. at 112.

28. Id. at 68.

29. Id. at 112.

30. That is not to say that it might be a worthwhile delay, especially in the face of mandatory quarantine restrictions on the remainder of the aircrafts’ passengers upon the discovery of a positive testing of one passenger.

31. Culligan Water Conditioning, ASBCA No. 29624, 85-3 BCA ¶ 18,405.

32. See, e.g., Owen & Son, IBCA No. 590, 67-1 BCA ¶ 6105 (holding that a trucking company decision to await an adequate load was not excusable); Jamsar, Inc., GSBCA No. 3472, 72-2 BCA ¶ 9555 (holding that a ten-day delay caused by slow common carrier was not an excusable delay).

33. Emerson-Sack-Warner Corp., FAA–CAP No. 66-2, 65-2 BCA ¶ 5003.

34. An issue that is beyond the scope of this article, but is interesting nonetheless, is whether the period of performance of a contract for services affected by an excusable delay can be extended.

35. Marquez, supra note 1, at 73.

36. That is to say, not just when the enumerated cause has ceased to exist, but rather when one of the elements required for a court to deem the time period excused, can no longer proven. See supra “Diagnosing the Symptoms of Excusable Delay.”

37. Armour of Am. v. United States, 96 Fed. Cl. 726, 757 (2010).

38. See United States v. Corliss Steam-Engine Co., 91 U.S. 321 (1875) (holding that the Secretary of the Navy’s “suspension” of work that had become “unnecessary from the termination of the war” was in his “general authority”); De Laval Steam Turbine Co. v. United States, 284 U.S. 61, 73 (1931). See also e.g., FAR 52.249-2 (2021).

39. TigerSwan, Inc. v. United States, 110 Fed. Cl. 336, 344 (2013).

40. Sinking-Fund Cases, 99 U.S. 700, 719 (1878). See also Lynch v. United States, 292 U.S. 571, 580 (1934) (“Punctilious fulfillment of contractual obligations is essential to the maintenance of the credit of public as well as private debtors.”).

41. TigerSwan, 110 Fed. Cl. at 344.

42. Maxima Corp. v. United States, 847 F.2d 1549, 1553 (Fed. Cir. 1988).

43. Torncello v. United States, 681 F.2d 756, 765 (Ct. Cl. 1982).

44. Id. at 768.

45. See id. at 769 (quoting I Corbin on Contracts § 145 (1963)).

46. Salsbury Industries v. United States, 905 F.2d 1518, 1521 (Fed. Cir. 1990).

47. Id. at 1523 (Duff, J., dissenting).

48. TigerSwan, Inc. v. United States, 110 Fed. Cl. 336, 345 (2013).

49. Id. (“[I]n addition to the foregoing grounds for breach, the Federal Circuit has recognized that the government may be liable for breach of contract for an improper termination for convenience when the government ‘contracts with a party knowing full well that it will not honor the contract.’”) (quoting Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1543–44 (Fed. Cir. 1996)).

50. Id. at 347.

51. Some may point to some of the default-provisions that have language enabling the Government to convert improperly executed terminations for default into convenience terminations, as support for the idea that terminations for convenience are certainly proper in these circumstances. However, there are two problems with this assertion. First, this does not implicate a scenario where the Government proposes a convenience termination from the outset. The default provisions are broadly applicable. They cover any kind of default, and then explain that if the Government decision to execute a default termination was improper, then such termination will be deemed a convenience termination. This allows the contractor to be made whole, since they were not at fault for whatever caused the Government’s ire. Second, as far as the author can tell, no court has reconciled the case law regarding bad-faith convenience terminations with these termination conversion provisions. Again, the plain language of these provisions only allows a conversion after a default termination is executed; it does not stand for the proposition that a contractor waives all rights to errors in convenience terminations.

52. Off. of Deputy Assistant Sec’y of Def. for Logistics, Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (2020), https://www.acq.osd.mil/log/PS/.CENTCOM_reports.html/FY20_4Q_5A_Oct2020.pdf.

53. Deputy Assistant Sec’y of Def. (Program Support), Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (2016), https://www.acq.osd.mil/log/PS/.CENTCOM_reports.html/FY16_4Q_5A_Oct2016.pdf.

54. Deputy Assistant Sec’y of Def. (Program Support), Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (2017), https://www.acq.osd.mil/log/PS/.CENTCOM_reports.html/FY17_4Q_5A_Oct2017.pdf.

55. Off. of Deputy Assistant Sec’y of Def. for Logistics, Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (2018), https://www.acq.osd.mil/log/PS/.CENTCOM_reports.html/FY18_4Q_5A_Oct2018.pdf.

56. Off. of Deputy Assistant Sec’y of Def. for Logistics, Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility (2019), https://www.acq.osd.mil/log/PS/.CENTCOM_reports.html/FY19_4Q_5A_Oct2019.pdf.

57. Heidi M. Peters, Cong. Rsch. Serv., R44116, Department of Defense Contractor and Troop Levels in Afghanistan and Iraq: 2007–2020, tbl.1 (2021).

58. Id.

59. Ellen Mitchell, Mattis: US to Send 3,000 More Troops to Afghanistan, Hill (Sept. 18, 2017, 4:09 PM), https://thehill.com/policy/defense/351222-mattis-us-to-send-3000-more-troops-to-afghanistan.

60. Susannah George, U.S. Has Begun Reducing Troops in Afghanistan, Commander Says, Wash. Post (Oct. 21, 2019), https://www.washingtonpost.com/world/us-has-begun-reducing-troops-in-afghanistan-commander-says/2019/10/21/d17a9e30-f3f1-11e9-8cf0-4cc99f74d127_story.html.

61. Jim Garamone, U.S. Completes Troop-Level Drawdown in Afghanistan, Iraq, U.S. Dep’t of Def.: News (Jan. 15, 2021), https://www.defense.gov/Explore/News/Article/Article/2473884/us-completes-troop-level-drawdown-in-afghanistan-iraq/.

62. Employees of Fluor International went on strike for a few hours at Bagram Airfield, “after some workers assumed the duties of higher-paid colleagues who returned to their home countries because of the coronavirus pandemic.” Phillip Walter Wellman, African, Asian Bagram Workers Protest US Contractor over Allegations of Pay Discrimination, Stars & Stripes (July 28, 2020), https://www.stripes.com/news/middle-east/african-asian-bagram-workers-protest-us-contractor-over-allegations-of-pay-discrimination-1.639068.

63. See Comm’n on Wartime Contracting in Iraq & Afg., Transforming Wartime Contracting: Controlling Costs, Reducing Risks (2011).

64. U.S. Gov’t Accountability Off., GAO-14-304, Noncompetitive Contracts Based on Urgency Need Additional Oversight 16 (2014).

65. Marquez, supra note 1, at 293.

66. 4 Government Contracts: Law, Administration & Procedure § 28.280[1][a] (Walter Wilson ed., MB 2021) (quoting Tibetts Mech. Constr., EBCA 433-11-90, 90-3 BCA 23055 (1990)).

67. Id.

68. Id. (emphasis added).

69. 2 Henry L. Goldberg, Federal Contract Management § 9.01 (2020).

70. FAR 52-249-8.

71. This is a deviation from FAR 52-249-8. See id.

72. Meaning to go somewhere else, “buzz off” or “get lost”; condensed from “[h]e wouldn’t know enough to pound sand in a rat hole.” See William Safire, The Way We Live Now: 3-31-02: On Language; Pound Sand, N.Y. Times (Mar. 31, 2002), https://www.nytimes.com/2002/03/31/magazine/the-way-we-live-now-3-31-02-on-language-pound-sand.html.

73. Marquez, supra note 1, at 107.

74. See, e.g., FAR 52.214-7 (2021) (modifying the common law rule that an offeror may withdraw her bid any time before acceptance, to any time before the deadline for receipt of bids); FAR 15.208 (2021) (modifying the common law mailbox rule regarding the timing of acceptance).

75. Thomas Pynchon, The Heart’s Eternal Vow, N.Y. Times (Apr. 10, 1988), https://archive.nytimes.com/www.nytimes.com/books/97/05/18/reviews/pynchon-cholera.html.

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