As most federal contractors know, the standard FAR clauses grant the government the right to default a contractor for delay. These same clauses, however, protect contractors where the delay is “excusable” and involve “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” Examples listed in the clauses include, among other things, fires, floods, epidemics, and unusually severe weather.
While the excusable delay for epidemics has taken the spotlight recently due to COVID-19, the ASBCA recently issued a decision offering insight about what unusually severe weather actually entails. In Goodloe Marine, Inc., the ASBCA asserted that unusually severe weather had to be just that—unusually severe. Bad weather alone is not an excusable delay.
The case involved appellant Goodloe’s contract with the United States Corps of Army Engineering to dredge pipeline around the Gulf Intracoastal Waterway near Galveston, Texas. Under the terms of the contract, Goodloe was required to maintain a production rate of 360,000 cubic yards per month (or 12,000 cubic yards per day). Goodloe had 130 calendar days from the notice to proceed to complete performance.
Despite receiving a notice to proceed on October 17, 2018, Goodloe did not begin dredging until December 17, 2018. Goodloe cited poor weather as the cause for the three-week delay and kept internal Quality Control Reports that purported to show weather delays for 30 different days between the notice to proceed and December 29, 2018. The Corps sent Goodloe a show cause notice on February 11, 2019, prompting Goodloe to send more weather information from the same period and commenting that anyone that lived or worked in the area knew the amount of rainfall received was unusual. Goodloe also cited other Corps projects in the region that had been delayed on account of the weather and provided a series of online articles implying these delays were caused by bad weather. Goodloe continued to dredge past the original February 24, 2019 completion date until the Corps terminated Goodloe on March 28, 2019. At the time of Goodloe’s termination, Goodloe had only completed 43% of the work.
Goodloe later submitted a claim to the Corps asserting that it had experienced weather delays and was entitled to a 41.5-day time extension. Following a denial of Goodloe’s claim, Goodloe filed an appeal with the ASBCA alleging it was entitled to additional time. The ASBCA disagreed and determined Goodloe’s delay was unexcused for several reasons.
First, the Board found it significant that Goodloe failed to use its other two dredges to complete the job. Although Goodloe argued that one of its dredges was damaged from a hurricane a year earlier, the Board found it was hardly unforeseeable that this dredge—which was inoperable at the time the work was solicited and commenced—could not be used to complete the work.
Second, even if the additional dredges had been used by Goodloe, the Board determined that Goodloe had not shown that the weather was unusually severe. Without addressing the accuracy or reliability of the weather data Goodloe presented, the ASBCA found that Goodloe failed to present any evidence that the weather was more severe than the norm for that area. As the Board commented, “[m]erely offering evidence of number of rainy, windy, foggy, or low tide days proves nothing if it is not shown to exceed a historical norm.” The Board thus concluded that Goodloe failed to show an excusable delay had occurred.
The lesson from the Goodloe decision is that bad weather is not enough by itself to justify an excusable delay. Delays from previous bad weather may be considered foreseeable in new contracts. And bad weather must be unusual for the region and proven by the contractor that it is unusual before it is considered an excusable delay. Contractors experiencing poor weather on a federal project are wise to check what is considered “normal” weather conditions for the area and figure out how to show the weather during contract performance departed from these conditions.