Owners, contractors and suppliers are concerned about the potential results of the COVID-19 pandemic, including project delays from lack of availability or delay obtaining materials, unusual labor shortages, manufacturing and supply chain disruption and the potential cost impact of these delays and substantial labor or material price increases. To what extent are you exposed to these dangers? How can contractors and suppliers protect themselves from liquidated or other delay damages? How can they successfully recover such cost increases?

Protect and Educate Your Workers

With hazards approaching, the most important thing to do is protect your workers. Familiarize yourself with the many resources available, particularly government guidance and mandatory orders. Construction industry trade associations also have very helpful information collected that is readily available to all. This partial list may help:

Center for Disease Control: https://www.cdc.gov/coronavirus/2019-ncov

Occupational Safety & Health Administration https://www.osha.gov/SLTC/covid-19/

Associated General Contractors https://www.agc.org/coronavirus

Associated General Contractors of DC https://www.agcofdc.org/covid19/

Associated Builders & Contractors http://abc.org/coronavirus

American Bar Association https://www.americanbar.org/groups/construction_industry/

We may be able to protect our companies from liability by finding a “safe harbor” in CDC and OSHA Guidelines. Most of these are the common sense suggestions or requirements for all public places. For example, we should add handwashing stations in toilet areas. All workers must wear gloves and masks and stay 6 feet apart from one another whenever possible. We may need screening to test for fevers or other symptoms of illness. Anybody with symptoms must stay home. Above all, hire experts to help you. You should get advice from medical doctors and other health care professionals.

Review the Insurance Policies

Existing Insurance policies may cover some or all of your damages from the pandemic. You should, of course, review your own insurance policies. However, it is also possible that the owner’s builder’s risk or business interruption polices may cover part of your losses. As discussed below in connection with other contract provisions for change orders or time extensions, it may be important to provide prompt specific notice to the insurance company under such policies.

Excusable Delays,Impossibility, Impracticability & Frustration of Purpose

The common law, created by courts over time and in order to resolve specific disputes, has created Impossibility, Impracticability & Frustration of Purpose. These are very similar concepts excusing nonperformance of a contract generally, often resulting in excusable delays. These are defenses for nonperformance and not theories to recover costs.

An act of God or act of law will excuse nonperformance of a contract, if their nonoccurrence were basic assumptions upon which the contract was based and if they are not otherwise addressed in the contract. The spread of a deadly disease could be an act of God and government response to it affecting performance could be an act of law. However, we must review any act of law and whether it renders performance illegal. It is not clear, for example, that government “advice” to stay home would support an impossibility defense. Advice from a private doctor is even weaker grounds. We must similarly review any act of God and whether it renders performance impossible.

If a party to a contract assumes an obligation that is possible to be performed, he or she must perform, unless performance is rendered impossible by the act of God, or of the law. Impossible does not mean difficult or expensive. Unforeseen difficulties and costs, however great, will not excuse the party. Impracticability is essentially the same as Impossibility. This term is most often used in connection with Uniform Commercial Code provisions.[1]

A contracting party may be discharged from its obligations under a contract because performance is rendered impossible by events occurring after formation of the contract, which the party had no reason to anticipate, and to the occurrence of which the party did not contribute.[2] The principle of impossibility of performance contemplates objective impossibility, such that the thing promised cannot be done, as opposed to subjective impossibility, in the sense that the promisor cannot do it.[3]

The act of God includes all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent. “Illness,” being beyond the power of a person to control or prevent, is the act of God.[4]

If the government imposes legal restrictions, like a government mandated quarantine, then this act of law would excuse performance. If a contract is lawful at the time it is entered into, performance is later rendered impossible by a valid legislative act over which the parties have no control, they will be excused from further performance.

If a contract party's principal purpose in the contract is substantially frustrated without his fault by the occurrence of an event, the non-occurrence of which as a basic assumption in which the contract was made, his remaining duties to render performance are discharged, unless the contract provides otherwise. This doctrine of frustration of purpose has many features in common with impossibility.

Material Supplier Deliveries and the Uniform Commercial Code

The Uniform Commercial Code (UCC) applies to agreements for the “sale of goods.” The UCC adds contract terms to your sales agreement automatically unless you “otherwise agree.” In other words, it is almost always possible to change what would have been the result under the UCC, by expressly agreeing otherwise in a contract.

Under the Uniform Commercial Code, a material supplier must deliver goods within a “reasonable time” if the parties have not contractually agreed on any other schedule.[5] This is vague, but it does mean something. In most markets, it is not reasonable for a lumberyard to deliver two months after an order.

What is reasonable will vary depending on such factors as the nature of goods to be delivered, the purpose for which they are used, the extent of seller’s knowledge of buyer’s intentions, transportation conditions, the nature of the market and so on.[6] A court would look at (1) the course of dealing between the parties; (2) trade usage in the industry; and (3) buyer’s notification to seller of time concerns.[7]

The UCC excuses a seller from timely delivery of goods, if performance has become commercially impracticable because of unforeseen supervening circumstances not within the contemplation of the parties at the time of contracting.[8] If that impracticability affects only a part of the seller's capacity to perform, the seller must allocate production and deliveries among his customers.[9] He may so allocate in any manner which is fair and reasonable.[10] The seller must also notify the buyer seasonably that there will be delay or non-delivery and provide the estimated quantity available for the buyer, if there will be allocation amongst customers. Increased cost of performance alone does not excuse performance. However, severe shortages or unavailability of materials to supply may excuse performance.

This UCC impracticability rule is an exception to the “always possible to otherwise agree” rule. The language of the contract itself is irrelevant in the application of the doctrine. The doctrine of impossibility or commercial impracticability of performance can overrule the express terms of the contract. It is "essentially an equitable defense," without any basis in the specific language of the contract in question or "any expression of intention by the parties," but resting firmly "on the unfairness and unreasonableness of giving the contract the absolute force which its words clearly state."[11]

A purchase order with a definite delivery date can make time of the essence for a material supplier.[12] Accepting a purchase order with a “conduit” or “pass through” clause can mean that a material supplier is bound by the terms in the terms in their customer’s subcontract and the general contract, including the types of scheduling clauses discussed below, such as a force majeure clause or a unilateral amendment clause.

Review your Force Majeure Contract Provisions

Your exposure to liquidated or other delay damages and your ability to recover cost increases are found largely in the terms of the contracts already in place for on-going projects. “Excusable delay” or “force majeure” terms are common in a contract. Force majeure is a Latin term meaning "superior force." How protective is the force majeure clause in your contract? Which projects should you be particularly concerned about?

Most construction contracts provide a specific delivery schedule. This will leave the contractor in default and liable for delay damages if the completion date is not met.[13] A delay in the completion date can result in a contractor claim for price increases.[14] It can also result in claims against a contractor for delay damages or liquidated damages. The liability for delay damages often depends on who caused the delay and often depends on the wording of various contract terms.

Common force majeure phraseology states that a contractor is not responsible for delays from causes beyond the contractor’s control. Many contractors make the mistake of thinking they are never responsible for delays out of their control, but this is not true. You have to make sure your contract says so.

In the absence of an excusable delay or force majeure term in the contract, a time is of the essence clause can leave a contractor liable for damages in the event of delay, even if the contractor did not cause the delay.[15] If your contract has a definite completion date and does not have a force majeure term, you can be liable for delay, even if caused by the owner or other third parties.

It may be enough to add the simple statement that “contractor is not responsible for delays from causes beyond the contractor’s control.” Of course, it is even better to add a more developed force majeure term, such as AIA Document A201-2017 (General Conditions of the Contract for Construction) stating:

8.3 Delays and Extensions of Time

8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s control; or by delay authorized by the Owner pending mediation and arbitration; or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine.

This force majeure clause probably protects a contractor from liquidated or other delay damages caused by Coronavirus 19 as a cause beyond the contractor’s control. However, some other commonly used force majeure clauses more clearly provide relief. As discussed below regarding negotiating future contracts, it may be advisable to edit the AIA A201 8.3.1 to provide explicit relief from epidemics and the possibility of recovering increased costs.

ConsensusDocs 200, Section 6.3 states:

DELAYS AND EXTENSIONS OF TIME.

(1) If Constructor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of Constructor, Constructor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of Constructor include, but are not limited to, the following: (a) acts or omissions of Owner, Design Professional, or Others; (b) changes in the Work or the sequencing of the Work ordered by Owner, or arising from decisions of Owner that impact the time of performance of the Work; (c) encountering Hazardous Materials, or concealed or unknown conditions; (d) delay authorized by Owner pending dispute resolution or suspension by Owner under §11.1; (e) transportation delays not reasonably foreseeable; (f) labor disputes not involving Constructor; (g) general labor disputes impacting the Project but not specifically related to the Worksite; (h) fire; (i) Terrorism; (j) epidemics; (k) adverse governmental actions; (l) unavoidable accidents or circumstances; (m) adverse weather conditions not reasonably anticipated. Constructor shall submit any requests for equitable extensions of Contract Time in accordance with ARTICLE 8. [emphasis added]

Similarly, the federal regulation applicable to most federal public construction, FAR 52.249-14 states: EXCUSABLE DELAYS (APR 1984) (a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. Default includes failure to make progress in the work so as to endanger performance [emphasis added].

These types of force majeure clauses entitle a contractor to a time extension only. The contractor is protected from liquidated damage or other claims for delays beyond the contractor’s control, but the contractor’s affirmative claim for compensation for the delay will be controlled by other contract provisions.[16] The ability to even get a time extension is dependent on the terms of the contract, especially timely notice requirements. The contractor must provide notice of the excusable delay within the time and in the manner required by the contract. A time extension clause in a contract does not necessarily provide an exemption from damages for delay.[17]

Unilateral Amendments to Contract Schedule

Many contracts also provide that the owner or general contractor can unilaterally modify the schedule. Such a scheduling provision may read:

Should the contractor provide the Subcontractor with progress schedules or any kind of time analysis for the performance of the work, it is understood and agreed that said schedules are offered as an aid to the Construction process only. However, it is further understood and agreed that such schedules are not guaranties that the Subcontractor’s work will be performed within the time periods or durations or in the sequence set forth therein and such schedules may accordingly be changed or revised by the Contractor, in its sole discretion, from time to time as circumstances may require. Such schedules, if any, do not relieve the Subcontractor of the obligation, as set forth herein, to follow the progress of the work and the directions of the Contractor. Nothing herein will be construed as requiring the Contractor, either expressly or impliedly, to furnish the Subcontractor with progress schedules for the Subcontractor’s work.

The Subcontractor will proceed with the work in a prompt and diligent manner, in accordance with the Contractor’s schedules as amended from time to time. The Subcontractor will be liable to the Contractor for failure to adhere to the Contractor’s schedules, including amendments, even if such schedules differ materially from schedules set forth in the Contract Documents or the time of completion called for by the Contract Documents. TIME IS OF THE ESSENCE.

These are the extreme opposite of a force majeure clause and may leave a contractor liable for Covid-19 delays. The contractor will be in default, for example, if the production time is cut in half or the length of a project doubled. A contractor may not have the manpower to complete production in less time and may not have a claim for overtime or other costs to complete the project after a delay.

Conduit or Pass Through Provisions

Many construction subcontracts state that the provisions of the general contract will bind the subcontractor or supplier. Such contracts sometimes state that the subcontractor or supplier shall be bound to the general contractor to the same extent that the general contractor is bound to the owner. Such provisions have become very common in the marketplace.

Most general contractors are willing to provide copies of their general contract. Otherwise, a subcontractor or supplier has a very compelling argument that you cannot bind yourself to something you have never seen. A subcontractor cannot comply with the general contract provisions if it does not have the general contract. A subcontractor or supplier should send a letter requesting a copy of the general contract and pointing out that it will be impossible to comply with general contract requirements if it is not received.

Even if a subcontractor or supplier will not have time to review the entire general contract, it will still be important to have it on hand in the event of future changes in work, claims or disputes. A subcontractor will have a harder time getting a copy once there is a dispute with the general contractor.

A subcontractor or supplier will want to pay special attention to time deadlines in the general contract for making claims for extra time or money to the owner. The general contract may have specific restrictions on when you can make such a claim or how you must make such a claim. The subcontract typically has “pass through” or “conduit” and “pay if paid” clauses. These clauses bind the subcontractor or supplier to the general contract terms and deny any extra time or money for the subcontractor or supplier unless the general contractor obtains relief from the owner. Accordingly, for extra time or extra money, the subcontractor or supplier must comply with both contracts. A subcontractor or supplier must put the general contractor in a position to properly pass the claim on to the owner pursuant to the general contract terms.

Termination and Suspension Clauses in a contract may become particularly important in the coming Coronavirus delays. Many contracts give the owner the right to suspend a project. Those clauses typically provide for time extensions and compensation if the project starts again. They often also give a contractor the right to terminate the agreement and receive compensation if the project suspension lasts a certain time period. It is often possible for a contractor to successfully claim that an owner has suspended work under such a clause, even if the owner did not want to call it a suspension. We may see such arguments if owners insist on extensive quarantines of work crews, for example, and the contractor does not have a replacement crew readily available.

A subcontractor or supplier should also look at the dispute resolution clauses in the general contract. You may be bound to arbitration or bound to let the architect decide on your claim before you file suit.

Provide Regular and Complete Notice in Accordance with your Contract

n order to get even a time extension for excusable delay, the contractor must provide notice of the excusable delay within the time and in the manner required by the contract. Notice within the time and in the manner required by the contract is even more important to protect the contractor’s affirmative claim for delay compensation. You should provide notice of potential problems, not just problems that have already emerged.

To properly preserve claims, it is very important to read your contract and make sure that you are following the claims procedures. A court will enforce these contractual procedures. If you fail to follow all steps described in your contract, you will not be able to get the extra money or the extra time that was lost.

Even if your contract does not have an excusable delay or force majeure term, provide notices as if it does. These notices may help a general contractor or owner and may help you preserve rights. Submit a change order for the time extension and the costs.

Give written notice promptly and whenever there is a delay or condition beyond your control that will impact your work. Provide specific information about the delay, including what materials you are unable to obtain or the number of workers who are ill and/or quarantined. It is best to have a regular policy of sending weekly or biweekly “status” or “progress” letters. Owners and general contractors generally appreciate a contractor that is organized and keeps them informed about the status of the contractor’s work, their anticipated schedule going forward. This is also an opportunity to describe all problems or events you encounter that may give rise to a claim.

Claims procedures may also require detailed delay and cost information within a certain period of time. If costs or delays are continuing or if you will need more time to document your damages, send a letter reiterating that you are incurring ongoing costs, explaining what you do know about the total costs and stating that a complete claim will be submitted when work is complete and information is available.

Claims may have to be submitted to the architect or the general contractor first. It may then be necessary to send a second notice of the claim if the architect fails to respond or gives a negative response. You must follow all of these procedures if they are required by your contract. Many loan agreements state that the construction lender must approve any change orders in advance. In a conduit, paid if paid relationship, subcontractors and suppliers may not be able to collect any claim for delay if the lender has not approved.

A critical path time impact analysis, detailed estimates and job accounting reports will help you recognize when a project is being delayed or costs are higher than expected and will help you prove the actual delay and costs. It may also be helpful or even required by the contract to have independent third party experts develop delay and cost analysis, including a time impact analysis. While these steps can be very important as evidence in any eventual litigation, they also will help you immediately provide “notice” of the problem.

Exposure to Coronavirus 19 Delay Damages

Your exposure to delay damages resulting from Coronavirus 19 causes depends to a large extent on the wording of your existing contracts. Do you have a good force majeure clause? Do you have an unconditional definite completion date or, even worse, a unilateral amendment clause? What are the notice requirements in your contract and did you provide notice of the delay, within the time and in the manner required by the contract?

Even if there is a good force majeure clause, the contractor usually must prove that the delay was truly beyond the contractor’s control and that the delay was unexpected, unusual or out of the ordinary in order to obtain even a time extension.

Unforeseeability is often a difficult element to establish.[18] A contractor must sometimes prove that it took all practicable efforts to overcome a delay to establish that the delay was beyond the contractor’s control.[19] Accordingly, a contractor today may need to show that they followed all OSHA and Center for Disease Control guidelines, and took any other reasonably foreseeable precautions.

A contractor must also take reasonable steps to mitigate any delay or the damages that result. You must take reasonable steps to overcome the force majeure. It is important to recognize a delay early, consider how to limit the length of the delay and the costs, and provide notice of this to other parties to the contract. This will certainly be important if you are never able to collect on a claim. It may also be an essential part of your case to collect.

Notice to the general contractor and owner are important mitigation tools. It is also important to inquire with suppliers and subcontractors about anticipated delays or other problems. Contractors, subcontractors, and material suppliers should promptly inquire as to the status of pending orders and ability of substitute suppliers to fill orders. Consider substitution or alternate suppliers if supply delivery delays are expected. Problems with labor availability may be even more likely. Prepare to use temporary labor sources, if necessary. Give the general contractor and owner these options. Keep careful records of all these notices and inquiries.

Negotiating Future Contracts

The essence of an excusable delay is that the cause is unforeseeable.[20] For example, it has always been important to understand that in order to get an extension of time for “adverse weather conditions,” a contractor must be ready to prove that the adverse weather conditions were extraordinary.[21] It rains a lot in the Mid-Atlantic region. You are not entitled to a time extension for rain delays unless you can show it has rained more than average.

In our current environment, it will be difficult to prove that problems and delays from Coronavirus 19 causes were unforeseeable. We have all already had and can all expect to have more problems and delays from Coronavirus 19. Accordingly, a contractor wants to make sure that future force majeure clauses in a contract are not limited to unforeseeable delays.

The most protective will be contract clauses that explicitly protect against damages for delay caused by Coronavirus 19. In order to protect against a damage claim, for example, it is advisable to add in any contract:

The parties agree that delays resulting from the effects of the Coronavirus19 pandemic or similar epidemics are beyond the control of the parties. If such delays occur, the contractor will be granted a reasonable extension of time. Contractor shall give written notice of delay it experiences due to the epidemic.

It would be even better for the contractor to leave a price increase available for the additional costs incurred as a result of the delay:

The parties agree that delays resulting from the effects of the Coronavirus 19 pandemic or similar epidemics are beyond the control of the parties, and if such delays occur, the contractor will be granted a reasonable extension of time and an equitable adjustment in the contract amount for the additional costs incurred by contractor resulting from the epidemic. Contractor shall give owner/general contractor written notice of delay it experiences due to the epidemic and documentation of any additional costs it incurs due to such delay.

Material costs may fluctuate due to scarcity, manufacturing labor difficulties, and transportation difficulties, especially if any materials or their components are imported. General and subcontractors may want to add escalation terms in any contract:

Some of the materials to be used or installed in the construction of this project may become unavailable, delayed in shipment and/or subject to price increases due to circumstances beyond the control of the contractor, including the Coronavirus 19 pandemic or similar epidemics. If a specified material is unavailable or shipment is delayed, contractor shall provide written notice and the parties will make a good faith effort to agree to additional time for performance and substitute products. If there is an increase in price of materials, equipment or products, the amount of this contract shall be increased to reflect the additional cost, provided that the contractor gives the owner/general contractor advance written notice and documentation of the increased costs.

Material suppliers may want to encourage their customers to include escalation terms in general and subcontracts.

It is advisable to add Coronavirus 19 language to what normally would be a good “force majeure” term, such as AIA Document A201-2017 (General Conditions of the Contract for Construction) stating:

8.3 Delays and Extensions of Time

8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes, fire, unusual delay in deliveries or labor availability, delays resulting from the Coronavirus 19 pandemic or similar epidemic, unavoidable casualties or other causes beyond the Contractor’s control; or by delay authorized by the Owner pending mediation and arbitration; or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine.

We hope this newsletter is helpful to you in understanding some of the recent events, concepts and issues involved in construction law. It is important to understand, however, that this law firm is not providing you legal or professional advice in supplying you this newsletter. We have generalized and simplified many legal concepts, so that the explanations are short, uncluttered and easily understandable. Many statements are only the opinion of the writer. The law changes constantly and differs from state to state. There is no guarantee that a court would agree in any particular case. Every set of facts and circumstances raises different legal issues. You should consult this firm or another attorney in dealing with any specific problem.

[1] Matter of Westinghouse Elec. Corp. Uranium Contracts Litig. , 517 F. Supp. 440, 459 (E.D. Va. 1981)

[2] Stone v. Stone, 34 Md. App. 509, 368 A.2d 496 (1977); see also Acme Moving & Storage v. Bower, 269 Md. 478, 483-484, 306 A.2d 545 (1973).

[3] Levine v. Rendler, 272 Md. 1, 320 A.2d 258 (1974).

[4] Housing Authority of the City of Bristol v. East Tennessee Light and Power Co., 183 Va. 64, 31 S.E.2d 273 (1944), 183 Va. at 72, 31 S.E.2d at 276 [It is, however, fairly well settled that where impossibility is due to domestic law, to the death or illness of one who by the terms of the contract was to do the act requiring his personal performance, or to the fortuitous destruction or change in the character of something to which the contract related, or which by the terms of the contract was made a necessary means of performance, the promisor will be excused, unless he either expressly agreed in the contract to assume the risk of performance, whether possible or not, or the impossibility was due to his fault].

[5] UCC Section 2-309(1).

[6] White and Summers Uniform Commercial Code, Vol 1. Ch. 3 at 126; Am Jur Sales § 268 and Corpus Juris Secondum Sales §170.

[7] Jamestown Terminal Elevator v. Heib, 246 NW.2d 736 (ND, 1976); Schiavi Mobile Homes v. Gagne, 510 A.2d 236 (Maine, 1986) [buyer’s failure to object to date of performance resulted in court concluding that performance had occurred within reasonable time]; Robinson v. Commercial Contractors, 274 A.2d 160 (CT, 1970) [adds intent of the parties to the “facts and circumstances” test, although this case does not address the time issue under the UCC but applies a common law contract standard]; Thornton Construction Co. v. Mackinac Aggregates Corp., 157 N.W.2d 456 (MI 1968) [Court held that time of performance was reasonable based on both parties’ understanding of timing of like projects in the industry].

[8] UCC Section 2-615.

[9] The seller may include regular customers not then under contract as well as his own requirements for further manufacture.

[10] Florida Power & Light Co. v. Westinghouse Electric Corp 826 F.2d 239, 263 (4th Cir. 1987)[Under UCC Section 2-615 non-performance of the contract is excused "if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made," thus treating impossibility as synonymous with commercial impracticability as an excuse for breach of a contract], see also Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 991 (5th Cir. 1976), and Matter of Westinghouse Elec. Corp. Uranium Contracts Litig., 517 F. Supp. 440, 459 (E.D. Va. 1981)[ This term impracticability is essentially the same as Impossibility, but is most often used in connection with this Uniform Commercial Code provision].

[11] Florida Power & Light Co. v. Westinghouse Electric Corp, 826 F.2d 239, 263 (4th Cir. 1987), quoting 18 Williston on Contracts, § 1931, p. 6, paraphrased in parts, and citing The Opera Company of Boston, Inc. v. Wolf Trap Foundation, 817 F.2d 1094, 1102 (4th Cir. 1987)[The test for establishing impracticability is (1) the unexpected occurrence of an intervening act, (2) such occurrence was of such a character that its non-occurrence was a basic assumption of the agreement of the parties, and (3) that occurrence made performance impracticable. When all those facts are established the defense is made out"].

[12] Kirn v. Champion Iron Fence Co., 86 Va 608, 10 S.E. 885 (1890).

[13] McDevitt & St. Co. v. Marriott Corp., 713 F. Supp 906 (E.D. Va 1989), aff’d in part and rev’d in part 911 F.2d 723 (4th Cir. 1990), on remand 754 F. Supp 513 (E.D. Va. 1991).

[14] R.G. Pope Constr. Co. v. Guard Rail of Roanoke, Inc., 219 Va. 111, 118-19, 244 S.E.2d 774 (1978).

[15] Sands v. Quigg, 111 Va. 476, 69 S.E. 440 (1910).

[16] § AIA 201 8.3.3 states: This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents.

ConsensusDocs 200, Section 6.3 (2) states: In addition, if Constructor incurs additional costs as a result of a delay that is caused by items (a) through (d) immediately above [not including (j) epidemics], Constructor shall be entitled to an equitable adjustment in the Contract Price subject to §6.6.

FAR 52.249-14 (c) states: Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.

[17] Howard P. Foley Co. v. J.L. Williams & Co. Inc., 622 F.2d 402,407 (8th Cir. 1980).

[18] See e.g., Electrical Enters., Inc., IBCA 972-9-72, 74-1 BCA #10,400; but see J.D. Hedin Constr. Co. v. U.S., 408 F.2d 424 (Ct. Cl. 1969) [unforeseeability of cement shortage was proven].

[19] McDevitt & Street Co. v. Marriott Corp., 713 F. Supp 906, 915 (E.D. Va 1989), aff’d in part and rev’d in part 911 F.2d 723 (4th Cir. 1990), on remand 754 F. Supp 513 (E.D. Va. 1991). See e.g., Int’l Elecs. Corp. v. U.S., 646 F.2d 496 (Ct. Cl. 1981).

[20] R.G.Pope Construction Company v. Guardrail of Roanoke, 219 Va. 111, 244 S.E.2d 774 (1978).

[21] McDevitt & Street Co. v. Marriott Corp., 713 F. Supp 906, 915 (E.D. Va 1989), aff’d in part and rev’d in part 911 F.2d 723 (4th Cir. 1990), on remand 754 F. Supp 513 (E.D. Va. 1991) [The delays resulting from the adverse weather conditions were not excused where the precipitation levels were reasonably anticipatable by the contractor; the weather data provided by the contractor did not demonstrate that the higher levels of precipitation for the relevant time period could not have been reasonably anticipated; it should have come as no surprise to the contractor that it rains and snows a good deal during the winter in Northern Virginia; the rain and snowfall in that winter was far from the highest recorded and not so unusual as to have been beyond reasonable anticipation].