What is a Force Majeure clause?

This type of clause typically excuses the contractor for any failure to perform if the failure arises from causes beyond the control and without the fault or negligence of the contractor. Industry normally refers to it as “Force Majeure.” The federal government clause is “Excuseable Delays” (FAR 52.249-14) for cost reimbursement and time and material contracts, while the provision is included as a paragraph in the Default (FAR 52.249-8) clause in fixed price contracts. 

What are examples of causes that would excuse failure to perform?

The clauses will vary on listing what qualify for excusable delay. The government lists the following examples: acts of God or of the public enemy; acts of the Government; fires; floods, epidemics; quarantine restrictions; strikes; freight embargoes; and unusually severe weather. Virginia Tech’s clause in the standard research agreement lists additional examples and includes “any other conditions of whatsoever nature or description beyond their reasonable control.” The key is that the cause must be “beyond the control” of the contractor and without the contractor’s fault or negligence.

Do Virginia Tech research agreements contain a Force Majeure clause?

Yes. You should make sure some form of a force majeure provision is in every contract/subcontract. Make sure that the provision excuses failure to perform for causes “beyond the control” of the contractor.

What is Virginia Tech’s clause?

FORCE MAJEUR. Neither party shall be responsible to the other for the failure to perform any of the obligations imposed by this agreement, provided such failure shall be occasioned by fire, flood, explosion, lightning, windstorm, earthquake, subsidence of soil, failure or destruction, in whole or in part, of machinery or equipment or failure of supply of materials, discontinuity in the supply of power, governmental interference, civil commotion, riot, war, strikes, labor disturbance, transportation difficulties, labor shortage or any other conditions of whatsoever nature or description beyond their reasonable control.