Better Roads Digital Magazine
Issue link: http://read.dmtmag.com/i/358505
Better Roads August 2014 23 overhead expenses, either because the contract's perfor- mance period was extended or because the contractor would have finished prior to the unextended performance period's close; and the contractor was required to remain "on standby" for the duration of the delay. To establish standby, the contractor must further dem- onstrate that the government-caused delay was "not only substantial but was of an indefinite duration;" during the delay, it was required to return to work "at full speed and immediately;" and a suspension of most if not the entire contract work. The court addressed two distinct periods of JMR's work: Jan. 16 to Feb. 3, 2009, and Feb. 4 to Sept. 4, 2009. For the first period, the COE did not issue a stop work order. To recover under Eichleay, JMR had to establish a sus- pension of its work through indirect evidence. JMR argued that its work during this period was minor, including changed contract work and minor punch list items. Since there was a factual dispute as to the nature of the work and whether JMR suffered a suspension, the court denied summary judgment for this issue. For the second period, JMR was largely waiting for the manufacture and delivery of the permanent power con- verter and installation of permanent lighting. The court found JMR was not required to return to work immedi- ately at full speed and because the outstanding tasks were not time-sensitive. Instead, both remaining tasks were previously addressed with stopgap measures that removed the urgency for JMR to resume work, because the COE had possession of its facility with fully functional power and lighting systems. Therefore, the court granted summary judgment on this issue. The JMR matter highlights the requirements to bring a claim against the Government for delay damages, includ- ing for field office overhead and home office overhead. To prevail on a claim for delay damages, strict criteria must be met, especially when claiming home office overhead through the Eichleay formula. Here, as JMR learned, the fail- ure to meet those criteria is fatal to any such claim.