There are a lot of words that can be used to describe supply chain disruptions: expensive, embarrassing, and downright frustrating for suppliers and customers alike. However, we shouldn’t forget that many supply chain disruptions are often unpredictable, and they are not always preventable. Even businesses that have contingency plans in place for all kinds of situations may have to close or scale back operations for prolonged periods of time in certain situations. We’ve witnessed two in the past year: the COVID-19 pandemic and the recent “once-in-a-lifetime” winter storm in Texas.
This may leave businesses with government contracts feeling vulnerable. If people can’t make it to work and businesses can’t fulfill contractual terms in the middle of an emergency – when government customers may need them most – will there be consequences? Possibly. However, there are many instances in which a “failure to deliver” will be excused.
Is Your Business Protected?
Though hurricanes, earthquakes, winter storms and other natural disasters are notorious for wreaking havoc far beyond the communities on which they bear down, they are also considered “acts of God” per many government business regulations, including Federal Acquisition Regulation (FAR) guidelines. That means that related supply chain disruptions – and missed deadlines – are considered “excusable delays” by federal, state and local agencies that rely on the FAR to government contract execution. Strikes, quarantines and freight embargoes also fall into this “excusable delays” category among other incidents that occur beyond a contractor’s control. (See FAR 52.249-8 for the Fixed Price Supply and Service excusable delay clause and FAR 52.249-10 for the Fixed Price Construction default clause.)
Plainly put, you may be protected from government repercussions if you are unable to fulfill your contractual obligations in these “excusable” situations. This is assuming that the agency follows the FAR and there’s no evidence that “the failure to perform” was the result of negligence or fault on your part, and you notify customers immediately of any issues.
Now, that doesn’t mean that you’re shielded from any government action. Many state and local governments define their own contract terms and don’t follow the FAR. So, it’s important to understand your contract terms before you sign.
Look for a “Termination for Convenience” Clause
While agency customers most likely won’t hold you “liable for any excess costs” or do anything detrimental to your performance record in the case of a natural disaster, they are not obligated to just sit around and wait for you to deliver promised commodities or services either. They have options for handling delays if necessary. For example, they can:
Don’t forget: You must notify the customer as soon as you realize that you will not be able to meet the contract terms, regardless of the reason. If you delay notification, then you could be held accountable for a negligent default or “at fault” breach of contract. This is true even if the root cause is uncontrollable, such as a power outages or road closures due to a massive snow and ice storm.
For more guidance on how to handle emergency situations, contact your assigned procurement official or refer to the terms of your specific contract.
And, if you have the resources to support emergency recovery and relief efforts, log in daily to the Periscope Supplier to Government (S2G) dashboard to check for new solicitations. Many agencies are looking for vendors who can deliver critical goods and services to their end users and constituents in the wake of disruptive events.