Walk It Off, Keep Going

During a recent soccer game, my seven-year-old son took the ball squarely in the face.  But, he walked it off and continued playing.  Contractors must do the same with changes.

In 2006, under a contract with NAVFAC for repairs to a wastewater treatment system at Naval Station Guantanamo Bay Cuba, the Contractor encountered differing site conditions.  NAVFAC did not issue a suspension or stop work order, but the Contractor stopped working awaiting responses to RFIs.  NAVFAC did not respond to all the RFIs.  So, the Contractor submitted a certified claim, but the Contractor never resumed work.  The Contractor should have continued working.

Under the Federal Acquisition Regulations, the Contractor is obligated to “prosecute the work diligently” and continue performance pending the outcome of a claim. (FAR 52.211-10 and 52.233-1(i)).  Doing so not only mitigates potential delays and damages, but it ensures that when a claim is submitted, a “sum certain” (i.e., showing of damage) is possible.

In this case, the Contractor’s claim submission was premature and the Contractor’s refusal to perform directed or constructive changes pending the promise of payment precluded the ASBCA from having any power to resolve the dispute.  The ASBCA dismissed the Contractor’s appeal because the Contractor sought future damages for work it had not yet performed.  At worst, NAVFAC could have terminated the Contractor for default.

Appeal of Islands Mechanical Contractor, Inc., ASBCA No. 59655 (April 13, 2017)

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