A decision just issued by the Civilian Board of Contract Appeals (CBCA) offers guidance on how the federal government may respond to COVID-19 claims. In this case, there was an outbreak of Ebola at the project site, and the federal government did not provide any guidance to the contractor on how to respond to such an outbreak.

The contractor chose to demobilize and sought recovery of its increased costs under theories of constructive and cardinal change. The CBCA ruled as a matter of law that the Ebola outbreak constituted an excusable delay, but was not a compensable change under cardinal or constructive change theories. Notably, the Board did not address a constructive suspension theory of recovery, saying it was not before the Board.

We attach a copy of the decision for your review. If you have any questions concerning the decision, please do not hesitate to contact us.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.