What are the tasks the COR will need to perform with regard to delays?
- Identifying and Verifying a Delay in Performance Under the contract
- What steps does the COR take in identifying and verifying a delay in performance under the contract?
- Notifying the CO of the Technical Impact of the Delay
- How does the COR assist the CO after notifying him or her of the delay?
- Assisting the CO in Evaluating the Contractor's Response
- What are contractors generally asked for in their response to the delay?
- What are concurrent or commingled delays?
- What are recoverable expenses?
The COR must:
1. Identify and verify a delay in performance under the contract
2. Notify the CO of the technical impact of the delay
3. Assist the CO in evaluating the contractor's response.
Identifying and Verifying a Delay in Performance Under the contract
What steps does the COR take in identifying and verifying a delay in performance under the contract?
Every contract includes a delivery or performance schedule. CORs should assist the CO by performing two steps:
1. Identifying the existence of a delay A delay has occurred if:
The contractor fails to perform in accordance with the delivery or performance schedule in the contract
The government causes the contractor to stop performing.
The COR should review the contract for any applicable clauses and any modifications to ensure that the performance or delivery schedule was not previously extended by the CO before claiming that a delay has occurred.
2. Verifying the delay
The COR can confirm a suspected delay by:
Obtaining feedback from government individuals responsible for monitoring the performance or delivery schedule
Reviewing the contractor's notice and supporting documents regarding the delay
Reviewing the contractor's claim regarding the delay (the contractor files a claim instead of a notice for what it considers to be a government-incurred delay).
Notifying the CO of the Technical Impact of the Delay
How does the COR assist the CO after notifying him or her of the delay?
Once a delay is confirmed, the COR should prepare documentation to assist the CO in developing the government's position on the delay. The documentation should include relevant information about the delay, such as:
A list of persons with factual knowledge of the delay
A description of the delay
The history of contract performance, indicating:
- When work under the contract began
- When work deviated from the performance schedule
- When the work stopped.
Other issues that may be covered in the COR's technical analysis of the delay include:
Information that would support whether the delay was excusable
The contractor's progress to date and the obligations that remain
A reasonable estimate of the amount of additional time needed
Potential alternatives and resolution recommendations
Pros and cons of each listed alternative or resolution (i.e., the effect of each upon price, quantity, and quality of deliverables).
Assisting the CO in Evaluating the Contractor's Response
What are contractors generally asked for in their response to the delay?
CORs may be asked to assist the CO in evaluating the contractor's response (i.e., the contractor's notice or claim of a delay). In their responses, contractors may be asked to:
Substantiate the evidence of the delay
Substantiate the costs associated with the delay
Demonstrate that the delay was excusable (i.e., beyond its control and without its fault or negligence)
Demonstrate that the delay was void of any concurrent or commingled delays.
What are concurrent or commingled delays?
These types of delays fall in a "middle ground"they are neither excusable nor nonexcusable. A concurrent delay occurs when two or more different delays happen at the same time. A commingled delay occurs when both parties, the government and the contractor, are at fault for one or more events contributing to that delay.
What are recoverable expenses?
Recoverable expenses is a term used to refer to the contractor's costs associated with delays that are compensable (i.e., payable by the government). Before allowing the contractor to recover costs as a result of a delay, the contractor's response must provide verifiable documentation of the expenses incurred due to the delay. The CO, with the assistance of the COR, must consider each expense and determine if the contractor should receive compensation. Compensation may be in monetary form or in the form of time extensions. For further guidance, see Exhibit 7-2, Examples of Recoverable Expenses Following a Delay, at the end of this chapter.