By Harley Hartley on Friday, September 06, 2002 - 07:31 am:

I would ask this question first: Is it fair to expect the contractor to remove this additional debris for no additional compensation?

Here are some other questions:
1. Was the original contract based on an estimated quantity or an actual quantity?
2. Did the contractor prepare its offer based on the quantity present at the time of offer?

All the hurricane debris removal contracts I've awarded were based on estimated quantities and most (if not all) included FAR 52.211-18 (yes, I know it's a construction clause), so we made award based on an estimated quantity but paid based on actual quantity.

By Vern Edwards on Friday, September 06, 2002 - 08:54 am:

A service contractor is entitled to a time extension if delayed by unusually severe weather. See FAR § 52.249-8, Default (Fixed-Price Supply and Service) (APR 1984), and FAR § 52.249-14, Excusable Delays (APR 1984). The mere fact that there was a severe storm is not sufficient to entitle you to more time; the storm must have been an instance of "unusually" severe weather.

However, the government does not have to compensate you for the additional cost you must incur due to the weather event, unless you have a special clause in your contract to that effect. The government did not cause the weather event, the weather event was not a breach of contract by the government, and I do not know of any standard FAR clause that requires the government to compensate you for weather-related cost increases.

By alexreb on Friday, September 06, 2002 - 09:41 am:

My response to your first question would be that it depends. If you go back to my original question concerning debris removal as part of a construction contract, the only type of relief the Government can provide is usually time (from 52.249-10 Default FP Const.). The clause at 52.236-2 Differing Site Conditions, which was included in the contract, may come into effect, but I believe weather is usually outside the scope of that clause if the event that causes a differing site condition occurs during contract performance.

To answer your other questions, it was a fixed price contract, one job lump sum; contractor to remove all debris from Point A to Point B. And yes, the contractor's offer was based on the debris present at the time of the offer.

By Anon on Friday, September 06, 2002 - 11:23 am:

Have enough storms at appropriate intervals and you'll have a Sisyphean situation. Vern's correct about the weather, was the second storm of an unusually severe nature. Did the SOW actually state removal of all debris present at the time the offer was submitted? If so, as a contractor, I would argue that I have performed the original requirement, subsequent debris accumulation is a matter for another procurement.

By Harley Hartley on Friday, September 06, 2002 - 11:36 am:

I defer to Mr. Edwards' superior knowledge but I don't think it would be fair to make the contractor remove the additional debris without additional compensation if the contractor can show additional costs associated with removing the additional debris.

By Vern Edwards on Friday, September 06, 2002 - 11:59 am:

Harley, et al.:

What's fair depends on what the parties agreed to and how they allocated risk. For instance, did the contractor agree to remove a certain amount of debris at a unit rate, did it agree to remove a certain quantity of debris for a lump sum, or did it agree to clear the channel to a certain depth for a unit rate or a lump sum? When did the storm occur -- in the middle of the operation, or after the debris had been removed or the channel had been cleared but before final acceptance?

If the parties knew what they were doing, then they should have contemplated the possibility that a new storm (even an ordinary storm) would bring new debris into the channel and allocated the risk appropriately. If they didn't reach agreement on the allocation of risk, then the thing may end up being decided by lawyers.

There is no universal rule about how such things get done. The parties have to decide how they want to do it and write it down.

By joel hoffman on Friday, September 06, 2002 - 12:15 pm:

I'm out of the office, but you are correct Alexreb, that the Differing Site Conditions clause would not provide relief. I think there is some discussion about similar situations in Nash and Cibinic's Administration of Government Contracts (weather deposited shoals, stumps, etc. are not a differing site condition, because the condition occurred after contract performance started.)

As Vern said, relief depends on how risks were allocated between the parties in the contract.
happy sails! joel

By alexreb on Friday, September 06, 2002 - 12:55 pm:

We thought the same principle applied to service contracts as it does to construction contracts, but just wanted some input to be sure. Does anyone know of any case law dealing specifically with service contracts on this issue?

By Harley Hartley on Friday, September 06, 2002 - 12:56 pm:

As always, Mr. Edwards is right on the mark. In this specific case raised by alexreb I wonder, however, what the Government's position would be if the second storm, rather than adding to the debris in the channel, had cleared some or all of the existing debris from the channel.

By Anon on Friday, September 06, 2002 - 01:00 pm:

Why was this determined to be a Services Contract? I looked at the definition of construction in FAR Part 2...

"Construction" means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms "buildings, structures, or other real property" include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property.

(my emphasis added)

By joel hoffman on Friday, September 06, 2002 - 02:54 pm:

Harley, if it were my contract, I would terminate it for convenience if "the storm had cleared all the existing debris" from the channel, but if the storm had merely reduced the debris, I'd probably not do anything.

Anon, this type of work is probably a service. Alexreb's post reads like the work simply involves cleaning the channel of debris deposited by a storm. Alexreb didn't mention any repair or alteration to the channel.

Alexreb, if the contract scope of work specifically describes the work as clearing debris deposited by a specific event, there might be grounds for a change, based on the fact that there is now debris from more than the specified event. happy sails! Joel

By Anon on Friday, September 06, 2002 - 03:09 pm:

Okay, I just thought that cleaning a channel would entail dredging. On the eastern shore of MD contractors are brought in by communities after big storms to clear away excess silt, etc to reopen boating channels. This work is done by dredging companies. I presumed this work was of a similar nature.

By joel hoffman on Friday, September 06, 2002 - 03:24 pm:

Anon, if so, you are correct that it would be a construction contract. Depends on the size of the channel and the type of equipment used. A minor operation, using using "snagging" equipment without any silt excavation, is probably a service. happy sails! joel