Government Liability for Third-Party Delays

Has your work on a government contract ever been delayed by another contractor?  Did you (the prime contractor) have no control over the other contractor or entity?  Did the Government promise you the other contractor would not inhibit your work?  If yes to all three, consider the following success story of a Contractor’s recovery for delays against the Government caused by a third-party:

The successful Contractor under an IDIQ contract to perform canal excavation and sediment removal for the Department of Agriculture in St. Bernard Parish, Louisiana.  Contractor encountered delays due to the continued presence of another contractor under a separate government contract at the same project site.

Key to the recovery was that during pre-bid site visit, the Contractor asked if the third-party’s work would be complete prior to the Contractor starting work.  The Government replied, “Yes!”  Fortunately for the Contractor, the pre-bid Q&A’s were made a part of the Contract by the Government’s own express direction.

Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.

The Civilian Board of Contract Appeals found the pre-bid Q&A’s were sufficient to establish a warranty by the Government that the site would be available.  The Contractor recovered from the Government for the delays caused by the third-party contractor.

Regency Construction, Inc. v. Department of Agriculture, Civilian Board of Contract Appeals Nos. 3246 and 4356 (August 17, 2016).

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