C.F.R. » Title 48 » CHAPTER 1—FEDERAL ACQUISITION REGULATION › SUBCHAPTER H—CLAUSES AND FORMS › PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES › Subpart 52.2—Text of Provisions and Clauses

48 C.F.R. § 52.249-10

52.249-10 Default (Fixed-Price Construction).

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As prescribed in 49.504(c)(1), insert the following clause:

Default (Fixed-Price Construction) (APR 1984)

(a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor's refusal or failure to complete the work within the specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.

(b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause, if—

(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractual capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and

(2) The Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended. The findings of the Contracting Officer shall be final and conclusive on the parties, but subject to appeal under the Disputes clause.

(c) If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Government.

(d) The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.

(End of clause)

Alternate I (APR 1984). If the contract is for dismantling, demolition, or removal of improvements, substitute the following paragraph (a) for paragraph (a) of the basic clause:

(a)(1) If the Contractor refuses or fails to prosecute the work, or any separable part, with the diligence that will insure its completion within the time specified in this contract, including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work or the part of the work that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work.

(2) If title to property is vested in the Contractor under this contract, it shall revest in the Government regardless of any other clause of this contract, except for property that the Contractor has disposed of by bona fide sale or removed from the site.

(3) The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor's refusal or failure to complete the work within the specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.

Alternate II (APR 1984). If the contract is to be awarded during a period of national emergency, subparagraph (b)(1) below may be substituted for subparagraph (b)(1) of the basic clause:

(1) The delay in completing the work arises from causes other than normal weather beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractual capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from causes other than normal weather beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and

Alternate III (APR 1984). If the contract is for dismantling, demolition, or removal of improvements and is to be awarded during a period of national emergency, substitute the following paragraph (a) for paragraph (a) of the basic clause. The following subparagraph (b)(1) may be substituted for subparagraph (b)(1) of the basic clause:

(a)(1) If the Contractor refuses or fails to prosecute the work, or any separable part, with the diligence that will insure its completion within the time specified in this contract, including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work or the part of the work that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work.

(2) If title to property is vested in the Contractor under this contract, it shall revest in the Government regardless of any other clause of this contract, except for property that the Contractor has disposed of by bona fide sale or removed from the site.

(3) The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor's refusal or failure to complete the work within the specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.

(b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this this clause, if—

(1) The delay in completing the work arises from causes other than normal weather beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractual capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from causes other than normal weather beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and

[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34762, July 3, 1995]
Notes of Decisions
Cited in 35 cases (5 in the last 5 years), 1993–2025 · leading case: Zafer Taahhut Insaat Ve Ticaret A.S. v. United States, 833 F.3d 1356 (Fed. Cir. 2016).
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Zafer Taahhut Insaat Ve Ticaret A.S. v. United States, 833 F.3d 1356 (Fed. Cir. 2016). · cites it 2× “48 C.F.R. § 52.249-10 (b) (2007). In June 2011, Zafer received a notice to proceed with the contract, with a contract completion date in November 2012.”
Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017 NMCA 60 (N.M. Ct. App. 2017). · cites it 2× “2000) (holding that federal acquisition requirement (FAR) 48 C.F.R. Section 52.249-10 “does not require that a contractor be afforded a period in which to cure defects before a contract is terminated for default”);4 Bruner & O’Connor, supra at § 18:37 (“[T]he absence of an…”
Allen Eng'g Contractor Inc. v. United States, 123 Fed. Cl. 701 (Fed. Cir. 2015). · cites it 6× “This was a material breach of AECI’s agreement with the Navy, and the Navy appropriately terminated the contracts under 48 C.F.R. § 52.249-10 (a). A contractor on a construction project worth more than $150,000 is required to *704 post and maintain performance and payment bonds…”
Rda Constr. Corp. v. United States, 132 Fed. Cl. 732 (Fed. Cl. 2017). · cites it 3× “” DX 1 at 15 (incorporating 48 C.F.R. § 52.249-10 (e)), Therefore, if the Contractor was not in default, or the default was excusable, the Government cannot recover liquidated damages under FAR 52.”
Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063 (10th Cir. 2008). · cites it 2× “48 C.F.R. § 52.249-10 (a), (c). That clause is part of the Federal Acquisition Regulation System (“FAR”).”
Morrison Knudsen Corp. v. Fireman's Fund Ins., 175 F.3d 1221 (10th Cir. 1999). · cites it 2× “See 48 C.F.R. § 52.249-10 (1997). That clause is part of the Federal Acquisition Regulation System (FAR).”
Allen Eng'g Contractor, Inc. v. United States, 115 Fed. Cl. 457 (Fed. Cl. 2014). · cites it 4× “, ¶¶ 24 and 27; (5) the Navy improperly terminated the contract because 48 C.F.R. § 52.249-10 does not permit termination for failure to provide replacement bonds, see id.”
Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. 382 (Fed. Cl. 2008). · cites it 2× “249-8 ) also allegedly incorporated into the Contract; and (3) by operation of the FAR construction provisions, including the Default Clause ( 48 C.F.R. § 52.249-10 ), which EFSI claims must be incorporated into the Contract through invocation of the Christian doctrine.”
PCL Constr. Servs., Inc. v. United States, 47 Fed. Cl. 745 (Fed. Cl. 2000). · cites it 2× “48 C.F.R. § 52.249-10 (a) (1990) (Fixed-Price Construction).”
R.P. Wallace, Inc. v. United States, 63 Fed. Cl. 402 (Fed. Cl. 2004). · cites it 2× “” 48 C.F.R. § 52.249-10 (b)(1). These salvific provisions, however, are triggered only if “[t]he Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay.”
Transfair Int'l, Inc. v. United States, 54 Fed. Cl. 78 (Fed. Cl. 2002). · cites it 2× “” Any notion, however, that this language was intended to establish a broad general rule of attribution is foreclosed not only by its context, but also by the next sentence of the opinion, which, in language defendant did not trouble to quote, states that the subcontractor’s…”
Sauer Inc. v. Richard J. Danzig, Sec'y of the Navy, 224 F.3d 1340 (Fed. Cir. 2000). “To establish entitlement to an extension based on excusable delay, Sauer must show that the delay resulted from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.”
Show all 35 citing cases →
— 48 C.F.R. § 52.249-10(a) — 3 cases
Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017 NMCA 60 (N.M. Ct. App. 2017). “2000) (holding that federal acquisition requirement (FAR) 48 C.F.R. Section 52.249-10 “does not require that a contractor be afforded a period in which to cure defects before a contract is terminated for default”);4 Bruner & O’Connor, supra at § 18:37 (“[T]he absence of an…”
Allen Eng'g Contractor, Inc. v. United States, 115 Fed. Cl. 457 (Fed. Cl. 2014). “, ¶¶ 24 and 27; (5) the Navy improperly terminated the contract because 48 C.F.R. § 52.249-10 does not permit termination for failure to provide replacement bonds, see id.”
Cumberland Cas. & Sur. Co. v. United States, 82 Fed. Cl. 500 (Fed. Cl. 2008).
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