The period of performance under a government contract, measured in “days,” meant calendar days–not business days, as the contractor contended.
In a recent decision, the Armed Services Board of Contract Appeals applied the FAR’s general definition of “days” in holding that a contractor had not met the contract’s performance schedule.
The ASBCA’s decision in Family Entertainment Services, Inc., ASBCA No. 61157 (2017) involved an Army contract for grounds maintenance services at Fort Campbell, Kentucky and the surrounding area. The contract was awarded to Family Entertainment Services, Inc. in May 2015.
(Side note: Family Entertainment Services apparently performed the contract under a “doing business as” name; IMC. That was probably a good call on the contractor’s part, because “Family Entertainment Services” doesn’t exactly conjure up mental images of landscaping).
The government subsequently issued a task order to FES. The task order specified that mowing services would be completed every 14 days. However, FES was unable to consistently provide the mowing services within 14 calendar days.
In August 2015, the government terminated a portion of the contract for convenience. FES then filed a claim for $81,692.34. FES argued, in part, that the government had not properly computed the performance schedule, which FES said should have been measured in business days, not calendar days. The Contracting Officer denied the claim, and FES appealed to the ASBCA.
At the ASBCA, FES argued that the contract’s use of the term “days” was ambiguous, and should be meant to refer to business days. The ASBCA disagreed.
The ASBCA noted that the contract included FAR 52.212-4 (Contract Terms and Conditions–Commercial Items). That clause incorporates FAR 52.202-1 (Definitions), which states, in relevant part: “[w]hen a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101, in effect at the time the solicitation was issued . . . .”
FAR 2.101 succinctly says: “Day means, unless otherwise specified, a calendar day.”
Applying the FAR provisions in question, the ASBCA wrote that “there is only one reasonable way to interpret the contract.” FES’s “opinion that ‘day’ should mean ‘work day’ is not a reasonable interpretation of the contract.”
The ASBCA denied the appeal.
The definition of “day” can make all the difference when it comes to various deadlines under which contractors must operate. The FAR 2.101 definition doesn’t apply in every setting. For example, FAR 33.101 includes some important nuances when it comes to protests and claims. And, of course, the contractor and government can always contractually agree to a different definition, including a definition based on business days.
That said, oftentimes there is no other relevant FAR provision, and no agreed-upon contractual definition. In those cases, as Family Entertainment Services indicates, the definition in FAR 2.101 will likely apply–and that means calendar days.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.