A claim for constructive suspension does exist:
“Constructive suspension occurs when work is stopped absent an express order by the contracting officer and the [G]overnment is found to be responsible for the work stoppage.” “A constructive suspension will be found on the same elements and has the same effect and consequences as an actual suspension.” To recover under the Suspension of Work clause, the contractor needs to prove four elements: “(1) [the] contract performance was delayed; (2) the Government directly caused the delay; (3) the delay was for an unreasonable period of time; and (4) the delay injured the contractor in the form of additional expense or loss.” “The Government’s actions [must be] the sole proximate cause for the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period.”
Quality Trust, Inc. v. Department of the Interior, 2025 WL 1092348 (CBCA 2025) (internal citations omitted).
The four elements are a must. If you fail to prove any of them, the suspension claim FAILS, whether it’s an actual suspension claim or constructive suspension claim.
In Quality Trust, Inc., the contractor could not prove the second element – the government solely caused the delay – because the government was NOT the sole cause of the delay. This means the suspension claim was not compensable.
But, even if the suspension was the government’s fault, the contractor could not prove the third element—the delay was for an unreasonable amount of time. The word “unreasonable” does not refer to the government’s motivation or purpose in requesting the suspension. See Quality Trust, Inc., supra (citation omitted). Rather, it refers only to the period of time being unreasonable. See id. Here, the Civilian Board of Contract Appeals found the suspension to be reasonable thereby further killing the suspension claim.
If you are navigating an owner suspension, keep in mind these four elements that must be proven to substantiate the actual or constructive suspension claim.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.