The Contractor Is Late, the Funds Are Expiring, and CPARS Is Due

Handle each event on its own merits; they are not interchangeable.

Weather. The question is not whether it rained, but whether the weather was 'unusually severe' at the site, measured against historical data for the period, and whether it actually affected the critical path. Pull the weather station records for the contract period and compare to the site's norms. Weather typically supports a time extension but not additional cost.

Government submittal review delay. Determine what the contract required - the review period stated in the submittal schedule - and whether the government exceeded it. If it did and the delay affected the critical path, this is a government-caused delay that can support both time and, depending on the clause invoked, cost. If the contractor's submittal was itself late or incomplete, the government's time runs differently.

Subcontractor walkout. Nonpayment of a subcontractor is the contractor's commercial risk, not an excusable delay. It supports neither time nor cost unless the cause traces to the government.

Concurrency. If the weather delay and the government review delay overlapped on the same critical path, the contractor does not automatically get both periods added - analyze the schedule to see whether the delays were truly concurrent.

Document each determination with the schedule analysis, not just the narrative.

No. Withholding a progress payment as a 'message' is improper: payments are made for work performed, and the payment clauses permit withholding only in defined circumstances - for example, where the contractor is failing to make prompt payment to its subcontractors, where work is defective and uncorrected, or where the contractor is in default and the government's interest needs protection. Even where a permitted ground exists, the withholding must be documented, proportionate to the risk, and communicated in writing with the specific basis.

Use the tools that fit the actual problem:

1. Cure notice. The contractor is 30% behind at month 9. Issue a written cure notice identifying the specific failures and the period to correct, and state the consequences of failure to cure. Do this now; the COR's daily reports documented the facts but documentation is not notice.
2. Show cause if you are considering termination for default, particularly given the subcontractor situation - you need to know whether the contractor can perform.
3. Subcontractor payment inquiry. Ask for evidence of payment to the subcontractor and consider whether the payment clause's protective withholding applies - that is a legitimate use of the tool, distinct from 'sending a message.'
4. Schedule recovery. Require a recovery schedule tied to the completion date, and consider a bilateral acceleration or no-cost time extension depending on the delay analysis.
5. Performance assessment. The conduct goes in the CPARS narrative, factually and contemporaneously - including the government's own submittal timeliness, which evaluators should see.

Options:

• Compress the remaining schedule through a recovery plan. Ask for a resource-loaded recovery schedule and negotiate a bilateral modification that trades something the contractor values (a milestone incentive, relief on a non-critical requirement) for a credible acceleration.
• Align the contract to the delay analysis. If the government's submittal review caused part of the slip, accept the corresponding time extension now rather than fighting it and losing later; a clean baseline with a known date is worth more than an aggressive date you cannot enforce.
• Phase occupancy. Determine whether partial beneficial occupancy is feasible and whether the agency can accept it; a phased completion may satisfy the mission even if the full renovation finishes late.
• Consider termination only on a documented default record with notice given and an opportunity to cure - and only after weighing the re-procurement timeline, which is unlikely to beat fiscal year end.

Must not happen: withholding payments as leverage; issuing a default termination without notice; raising the CPARS rating or lowering it to influence the schedule negotiation; or agreeing to a schedule the contractor has not shown it can meet. Also do not let the fiscal deadline drive the delay analysis - the entitlement question is answered on the facts, and the funding question is answered separately with the requiring activity in writing.