The Federal shutdown that began on October 1, 2025, now stretching into its 43rd day, the longest in U.S. history, has left Federal construction contractors facing unprecedented disruption. Non-essential operations across civilian and defense agencies have grounded to a halt causing frozen solicitations, paused evaluations of bids, delayed site access and inspections, postponed change orders and modifications, and paused payments. For firms holding government contracts, this means idle job sites, stalled progress, suspended supply chains, and mounting costs. But relief looks imminent as the Senate advanced a funding bill on November 9, and the House is poised to vote on it as early as today (November 12), potentially reopening the government by week’s end. As Washington lurches toward resolution, contractors should look beyond the political theater to the legal and operational aftermath: a massive backlog of procurement activity and the complex question of who bears the cost of delay.
This post, tailored for construction contractors, explains how delays work under the FAR, identifies the key FAR provisions controlling recovery, and lays out a practical plan to protect your bottom line.
Understanding Delays in Construction: Compensable, Excusable, and Non-Excusable
For Federal construction contracts, shutdown-related delays should fall into one of three buckets, dictating recovery options:
- Compensable Delays: Government-triggered, often through written orders, inaction (e.g., delayed inspections or approvals), or failures to act, granting time extensions and cost reimbursements.
- Excusable (Non-Compensable) Delays: Beyond both parties’ control, like a lapse in appropriations or sovereign acts, offering scheduling relief but no extra funds.
- Non-Excusable Delays (Contractor Caused): Your firm’s fault or neglect, yielding no relief and placing contract performance at risk.
Unfortunately, these lines blur in shutdowns, where events like funding lapses might limit recovery to time only. However, if the Contracting Officer’s (CO) actions or inactions go beyond the general shutdown (e.g., failure to timely issue a restart order, approve submittals, or provide site access), the delay may become compensable. As a reminder, the Sovereign Acts Doctrine shields the Government from liability for genuine public and general actions not directed at specific contracts (e.g., the shutdown). See Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1366 (Fed. Cir. 2009). If after reopening, the agency or CO unreasonably withholds access, approvals, or inspections, your excusable delay may move into compensable territory.
Key Regulatory Provisions for Construction Delays Under the FAR
The FAR equips construction contractors with specific clauses addressing delays. Here’s a focused overview:
| Regulatory Provision | Key Benefit | Delay Type |
|---|---|---|
| FAR 52.249-14 Excusable Delays |
Time extension without penalty for performance failures beyond the control and without the fault or negligence of the contractor: (a) acts of God or the public enemy; (b) acts of the Government in its sovereign or contractual capacity; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) freight embargoes; and (i) unusually severe weather. | Excusable |
| FAR 52.242-14 Suspension of Work |
Cost recovery for unreasonable suspensions, delays, or interruptions in contract performance. | Compensable |
| FAR 52.242-15 Stop-Work Order |
Time and/or cost recovery if the stop-work order resulted in an increase in the time required for or in the cost of performance. | Compensable |
| FAR 52.242-17 Government Delay of Work |
Time and cost recovery for certain CO actions or inactions that delayed or interrupted the contract, provided the CO’s acts or omissions were not authorized by the contract. | Compensable |
Mitigating Risks: Actionable Steps for Contractors
While the restart is welcome after months of uncertainty, the restart is a double-edged sword. To stay ahead, contractors should:
- Confirm Status and Guidance: Promptly contact your CO for written restart instructions and to confirm funding, access, and contract priorities. Reference stop-work orders or suspensions.
- Document Everything: Maintain contemporaneous records of shutdown impacts such as idle crews, material storage, demobilization, correspondence, and critical-path effects for REAs or claims. Separate shutdown (excusable) delays from post-restart government-caused, and potentially compensable, delays.
- Coordinate with Subcontractors: Align with your subcontractors on restart plans, documentation, and notice obligations.
- Don’t Work Without Funds: If funds have not been obligated, pause and seek guidance from the CO. Confirm compliance with the Anti-Deficiency Act.
Bottom Line
Even if the House votes today and the government reopens, agencies will wade through unreviewed submittals, RFIs, and overdue mods for weeks. However, under FAR subpart 42.13, unreasonable administrative delays may become work suspensions or government-caused delay, precisely where compensable recovery lives after the sovereign act (i.e., shutdown) period.
At Centre Law, we routinely guide contractors through periods of delay, turning business uncertainty into favorable resolutions via REAs, CDA claims, and litigation at the CBCA, ASBCA, or COFC. If your firm holds Federal contracts and is feeling the pinch from this shutdown or is anticipating post-restart headaches, schedule a consultation to review your projects, safeguard your contracts and cash flow, and fortify your position.
