Suspension of Work
The Suspension of Work clause is commonly incorporated in government contracts and is located at FAR 52.242-14. This clause provides that the contracting officer may order the suspension, delay or interruption of all or any part of the work of a contract for the period of time that the Contracting Officer determines appropriate for the convenience of the Government. If the contracting officer suspends, delays or interrupts the contract for an unreasonable period of time, an adjustment will be made for any increase in the cost of performance, excluding profit. This clause is incorporated to compensate the contractor for delays or suspensions, of which the contractor is not the cause. See Toombs & Co. v. United States, 4 Cl. Ct. 535, 548-49 (1984) (“The suspension article in this contract does not authorize an adjustment for any suspension to the extent that performance would have been so suspended ‘by any other cause, including the fault or negligence of the contractor.’”).
For contractors, you should wait for a written order to proceed before restarting the work. If you proceed after being verbally instructed, you are doing so at your own risk. See B.D. Collins Construction Co., ASBCA No. 42131, 91-2 BCA ¶ 24,021.
A constructive suspension may allow a contractor to also recover costs. In Nassar Group International, ASBCA No. 58451, 19-1 BCA ¶ 37,405, the Board determined “under FAR 52.242-14, a contractor is entitled to an equitable adjustment when the government constructively suspends work by delaying work for an unreasonable amount of time.”
For the federal contractor, it is important to review the Suspension of Work clause. This clause will layout the contractor’s rights with respect to the conditions they may recover an adjustment. Under FAR 52.242-14, when no suspension order is issued, a contractor may not seek adjustment for costs incurred more than 20 days before the contractor notifies the Contracting Officer in writing of the act or failure to act giving rise to the request. A federal contractor should therefore contact the Contracting Officer as soon as possible regarding increased costs, and the contractor should maintain open lines of communication with the Contracting Officer regarding such costs and future incurred costs.
There is no requirement to mitigate costs when there is a suspension of work. However, it is a best practice to try to mitigate costs if you can. Additionally, the contractor should ensure all costs are thoroughly documented in order to request an equitable adjustment when work resumes or if the contract is terminated. Keeping open lines of communication with the Contracting Officer regarding such costs and documentation will help facilitate this process.
In short, suspensions may occur at the convenience of the government. However, contractors may be entitled to receive an equitable adjustment for costs incurred for the delay. To qualify, contractors must show that there was an unreasonable delay caused by the government’s action or inaction without any other proximate cause by the contractor, which resulted in injury to the contractor.