The Suspension of Work clause says you do not use the Suspension of Work clause for redress if another clause provides for an equitable adjustment. That is precisely what is provided for in the Changes clause and all the cases interpreting the recovery of an equitable adjustment for the costs and schedule adjustment occasioned by the delay.
None of the aforementioned cases involves a pandemic. And, the limits of the Sovereign Act Defense
have not been fully tested in procurement law. The Supreme Court in Winstar did not apply the
defense because the government acted in its self interest rather than on behalf
of the general public. The Court of Federal Claims recognizes a no fault
suspension. If the government acts for its convenience, it
has acted in its self interest even if also on behalf of the public.
In our opinion, Section 3610 of the CARES Act waives any application of the sovereign act defense.
Winstar was not a procurement case. Congress changed the
law adversely affecting savings and loan companies. An act of Congress is
by nature for the public good but the court said it was also an act in the
government's self interest. We think the balance also tips that direction
in the case of constructive suspensions for pandemics especially in the case of
procurement contracts governed by long standing precedent compensating
contractors who in all fairness and equity should not bear the cost of the
delay.
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