One of the most far-reaching effects of these problems is the resultant delay which forces a Contractor to perform in a time period later than what was originally planned.
If the Government's conduct causes delay in the performance of a contract, the Government has breached the contract, and the contractor can recover its increased costs incurred because of the delay.
J.D. Hedin Construction Co. v. U.S., 171 Ct. Cl. 70, 347 F.2d 235 (1965).
Often, the Government's breach of the contract is said to be founded on the Government's breach of its implied duty to cooperate, and to do nothing to prevent, hinder, or delay performance.
Lewis-Nicholson, Inc. v. U.S., 213 Ct. Cl. 192, 550 F.2d 26 (1977).
The Board and Courts have recognized several areas of compensable Government-caused delay. Most of these delays are in some manner related to formal or constructive changes to the contract.
Carpenter Construction Co., NASA BCA, 1964 BCA ¶4452 (1964).
Alternatively, compensable delays are related to the Government's breach of its implied duty to cooperate with the contractor, and not to impede its performance.
Luria Bros. and Co., Inc. v. U.S., 177 Ct. Cl. 676, 369 F.2d 701 (1966).
A contractor is permitted to claim various types of added costs as compensation for the impact of Government-caused delay. In general, the costs recoverable for Government-caused delay include:
1. Increase in Wages and Prices of Materials
Excavation-Construction, Inc., ENGBCA 3858, 82-1 BCA ¶15,770, mot. for reconsid. denied, 83-1 BCA ¶16,338 (1982);
Garcia Concrete, Inc., AGBCA 78-105-4, 82-2 BCA ¶16,046 (1982);
Abbett Electric Cor. v. U.S., 142 Ct Cl. 609, 162 F.Supp. 772 (1958);
Langevin v. U.S., 100 Ct. Cl. 15, 1 CCF 547 (1943);
Dravo Corp., ENGBCA No. 3800, 79-1 BCA ¶13,575 (1979);
T.C. Bateson Construction Co., ASBCA No. 6028, 1963 BCA ¶3692 (1963).
2. Allocable Home or General Office Overhead
J.D. Hedin Construction Co., Inc. v. U.S., supra;
Paccon, Inc., ASBCA No. 7890, 65-2 BCA ¶4996 (1965);
3. Acceleration Costs to Mitigate Effects of Delay
Fruehauf Corp. v. U.S., 587 F.2d 486 (Ct. Cl. 1978).
4. Loss of Efficiency due to Disruption of Work Sequence
Atlas Construction Co., Inc., GSBCA No. 7903, 8143, 8593, 8653, 90-2 BCA ¶22,812.
5. Direct Charging for certain Burden Expenses
Electronics Corp. of America, ASBCA No. 4770, 61-2 BCA ¶3134.
6. Extended/Unabsorbed Overhead
Jay P. Altmayer, Nancy Hirschler, Jane Beskin, Amsouth Bank, N.A., as Trustee under the will of Claire Pollock, and Jay P. Altmayer and Amsouth Bank, N.A., as co-trustees under the will of Marvin C. Altmayer v. Roger W. Johnson, Administrator, General Services Administration, 79 F.3d 1129 (Fed.Cir., 1996) R.G. Beer Corporation, ENGBCA No. 4885, 86-3 BCA ¶19,012;
Therm-Air Mfg. Co., Inc., supra;
Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶2688 (1960), mot. for reconsid. den. 61-1 BCA ¶2894 (1961).
7. The "Ripple Effect" on Other Work
Costs associated with the effect of the delay on other work involves cases of the Government's failure to impart superior knowledge, the Government intentionally hindering the contractor, or in other cases where the Government is found culpable.
General Dynamics Corp. v. U.S., 218 Ct. Cl. 40, 585 F.2d 457 (1978).
8. Preparation fees for preparing an Equitable Adjustment Proposal for an Ordered Change
Allied Material & Eqpt. Co., ASBCA No. 17318, 75-1 BCA ¶11,150 (1975).
Bill Strong Enterprises, Inc. v. John Shannon, Acting Secretary of the Army, 49 F.3d 1541, (Fed. Cir. Ct. App. March 2, 1995).
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