Balancing Efficiency and the Public Interest: A Comparative Analysis of Force Majeure Defaults in Government Contracting

Exemplified by the COVID-19 pandemic, contractual force majeure provisions can serve to protect contracting parties but can also place the risk of nonperformance on parties if the specific elements of the provision cannot be met. The current federal regulations governing government procurement in the United States lack the proper blend of uniformity and flexibility necessary to promote efficient contracting and risk assessment for both federal contractors and government agencies. Specifically, the current force majeure-like provision within the Federal Acquisition Regulation—the excusable delay provision—struggles to perfect this balance and puts government contractors in an unstable position of risk and decreased bargaining. This note examines the current US Federal Acquisition Regulation and its force majeure provision, compares the US provision with that of Canada’s federal regulatory framework, and suggests an adoption of the Canadian provision’s language to make for a more efficient and balanced US provision. More specifically, this note argues that a modified version of the US force majeure provision will continue to insulate the federal government from the risks that could adversely affect not only the national economy but also the public welfare and local economies, while also placing contractors in a less hostile and more efficient contracting environment