Short Take: It’s All in a Day’s Work, but Remember the “Day” Is a “Calendar” Day Unless Otherwise Specified
November 30, 2017
When interpreting and performing contracts, it’s important to remember that unless the contract language specifies otherwise, the FAR provides a default definition of the word “day” to mean a “calendar day.” The contractor in Family Entertainment Services, Inc., ASBCA No. 61157, learned this lesson when the Government deducted $81,692.34 from the Contract amount in a firm-fixed price contract to provide grounds maintenance to 3,897 acres at Fort Campbell in Kentucky. The contract contained numerous references to the term “day” and required different types of maintenance on the grounds to be performed in various cycles, e.g., every 14 days, every 21 days, etc.
After the performance period of the contract began and the contractor had failed to perform any of the required work within the first 14 calendar days of a 14 calendar day cycle, the contracting officer contacted the contractor to inquire about the failure to perform. At that point, the contractor for the first time indicated that it believed the period of performance was “actually work days not calendar days.” In its appeal of the Government’s reduction of the contract amount, the contractor asked the Armed Services Board of Contract Appeals (“ASBCA”) to find an ambiguity in the contract and to read the term “day” as “work day” instead of “calendar day.”
The ASBCA found that contractor’s interpretation was unreasonable. It noted that the contract clearly incorporated FAR 52.212-4, which in turn incorporated the FAR 2.101 definitions. FAR 2.101 defines “day” as “unless otherwise specified, a calendar day.” The definition was incorporated by reference into the subject contract.
While there were other issues with the contractor’s performance under the contract, the key takeaway here is “day” equals “calendar day” “unless otherwise specified.” The fact that FAR 2.101 is buried in references from other FAR clauses will not save you from having to perform in accordance with a calendar day schedule. So, make sure you bid--and perform--accordingly.
© 2017 Jackson Kelly PLLC