In this paper I will discourse the logical thinking and methodological analysis behind authorities contract defaults and differences. I will besides give recommendation to acquisition and cost containment. The standard contract clause which gives a client the right to one-sidedly end the contractor if the contractor fails to execute harmonizing to the specified footings. The contractor is by and large non entitled to any payment for the unfinished portion of the contract and. alternatively. may be apt for ( 1 ) refund of monies advanced. ( 2 ) liquidated and other amendss. and ( 3 ) surplus cost incurred by the client in finishing the contract under a new contractor.
Two primary types of expirations can originate under authorities contracts: “termination for default” and “termination for the government’s convenience” . Besides a condemnable strong belief or debarment or suspension for default is doubtless the most terrible bureau countenance that a expiration can bechance a authorities contactor. Terminations for default are much more common in supply contracts than in building contracts.
The criterion clause used in supply and service contracts recites that the authorities has the right terminate for default if the contractor fails to ( 1 ) present the contract supplies or execute the services on clip. ( 2 ) make advancement so as to jeopardize public presentation of the contract. The “Termination for Cause” term besides names three bases for ending a commercial point contract for default: ( a ) “any default” by the contractor. ( B ) failure by the contractor “to comply with any contact footings or conditions. ” and ( degree Celsius ) failure by the contractor to supply the authorities on petition. with “adequate confidences of future public presentation. The government’s right to end is non limited by standard review clauses. because they permit the authorities to exert any other rights and redresss allowed by the contract. “Default expirations are provided for in authorities contracts under standard clauses set Forth in the FAR. 52. 249–8 Default ( Fixed-Price Supply and Service ) .
As prescribed in 49. 04 ( a ) ( 1 ) . infix the undermentioned clause: DEFAULT ( FIXED-PRICE SUPPLY AND SERVICE ) ( APR 1984 ) ( a ) ( 1 ) The Government may. subject to paragraphs ( degree Celsius ) and ( vitamin D ) below. by written notice of default to the Contractor. end this contract in whole or in portion if the Con- tractor fails to— ( I ) Deliver the supplies or to execute the services within the clip specified in this contract or any extension ; ( two ) Make advancement. so as to jeopardize public presentation of this contract ( but see subparagraph ( a ) ( 2 ) below ) ; or ( three ) Perform any of the other commissariats of this contract ( but see subparagraph ( a ) ( 2 ) below ) . 2 ) The Government’s right to end this contract under subdivisions ( 1 ) ( two ) and ( 1 ) ( three ) above. may be exercised if the Con- tractor does non bring around such failure within 10 yearss ( or more if authorized in authorship by the Contracting Officer ) after reception of the no- tice from the Contracting Officer stipulating the failure. ( B ) If the Government terminates this contract in whole or in portion. it may get. under the footings and in the mode the Contracting Officer considers appropriate. supplies or services similar to those terminated. and the Contractor will be apt to the Government for any extra costs for those sup- plies or services.
However. the Contractor shall go on the work non terminated. ( degree Celsius ) Except for defaults of subcontractors at any grade. the Contractor shall non be apt for any extra costs if the failure to execute the contract arises from causes beyond the control and without the mistake or carelessness of the Contractor. Examples of such causes include ( 1 ) Acts of the Apostless of God or of the public enemy. ( 2 ) Acts of the Apostless of the Government in either its crowned head or contractual capacity. ( 3 ) fires. ( 4 ) inundations. ( 5 ) epidemics. ( 6 ) quarantine limitations ( 7 ) work stoppages. ( 8 ) cargo trade stoppages. and ( 9 ) remarkably terrible conditions.
In each case the failure to execute must be beyond the control and without the mistake or carelessness of the Contractor. ( vitamin D ) If the failure to execute is caused by the default of a subcontractor at any grade. and if the cause of the default is beyond the control of both the Contractor and subcontractor. and without the mistake or carelessness of either. the Contractor shall non be apt for any extra costs for failure to execute. unless the subcontracted supplies or services were gettable from other beginnings in sufficient clip for the Contractor to run into the needed bringing agenda. vitamin E ) If this contract is terminated for de- mistake. the Government may necessitate the Con- tractor to reassign rubric and present to the Government. as directed by the Contracting Officer. any ( 1 ) completed supplies. and ( 2 ) partly completed supplies and stuffs. parts. tools. dies. gigues. fixtures. programs. drawings. information. and contract rights ( jointly referred to as fabrication stuffs in this clause ) that the Contractor has specifically produced or acquired for the terminated part of this contract.
Upon way of the Contracting Officer. the Con- tractor shall besides protect and continue belongings in its ownership in which the Government has an involvement. ( degree Fahrenheit ) The Government shall pay contract monetary value for completed supplies delivered and accepted. The Contractor and Contracting Officer shall hold on the sum of payment for fabrication stuffs delivered and accepted and for the protection and saving of the belongings. Failure to hold will be a difference under the Disputes clause.
The Government may keep back from these sums any sum the Contracting Officer determines to be necessary to protect the Government against loss because of outstanding liens or claims of former lien holders. ( g ) If. after expiration. it is determined that the Contractor was non in default. or that the default was excusable. the rights and duties of the parties shall be the same as if the expiration had been issued for the convenience of the Government. ( H ) The rights and redresss of the Government in this clause are in add-on to any other rights and redresss provided by jurisprudence or nder this contract. FAR 52. 249-10 “Default ( Fixed-Price Construction ) ” Clause ( a ) If the contractor refuses or fails to prosecute the work or any dissociable portion. with the diligence what will see it’s completion within the clip specified in this contract including any extension. or fails to finish the work within this clip. the authorities may. by written notice to the contractor. end the right to continue with the work ( or the dissociable portion of the work ) that has been delayed.
In this event. the authorities may take over the work and finish it by contract or otherwise. may take over the work and finish it by contract or otherwise. and may take ownership of and utilize any stuff. contraptions. and works on the work site necessary for finishing the work. Although the “Termination for Cause” term in commercial point contracts does non incorporate a “cure notice” demand. the FAR expiration processs for commercial point contracts require the Contracting Officer to direct a standard remedy notice ‘prior to ending a contract for a ground other than late bringing. Consequences And Redresss Of “Termination For Default” And “Termination For Convenience” If a board or tribunal determines that the contractor was non really in default or the default was excusable. the expiration for default will be converted into a expiration for convenience. Similarly. before the entreaty is even decided. the Contracting Officer can change over the expiration for default into one for the government’s convenience.
The Contractor’s recovery under a convenience expiration may be important. For illustration. under a convenience expiration. the contractor is eligible to retrieve its costs of public presentation. some “continuing costs. ” colony disbursals. and a sensible net income on completed work. Should the contractor be unsuccessful in contending the properness of the default expiration itself. it may still be able to dispute the extra costs appraisal and accomplish a decrease or riddance of those costs.
The Fulford philosophy permits contractors to dispute the government’s infliction of extra re-procurement costs even if the clip has expired for appealing the underlying default expiration. but does non trump the Contract Disputes Act election philosophy. Remedy of “Excess Cost of Re-procurement” and “Liquidated Damages” The standard steps of surplus costs is the difference between the contract monetary value of the terminated contract and the monetary value the authorities is required to pay to the re-procurement contractor for measure degree Fahrenheit supplies or services called for under the terminated contract or for completion of unfinished work staying under the terminated contract. To measure extra costs against the defaulted contractor. the authorities must demo that the re-procurement contract has been performed and that complete payment has been made. The authorities may non obtain re-procurement costs for work that the authorities prevented the contractor from executing.
If the default-terminated contract contains a “Liquidated Damages” clause. those amendss may be assessed against the contractor until the authorities obtains completion of the contract work. Liquidated amendss are in add-on to the extra costs of re-procurement The Liquidated Damages” clause used in fixed-price supply and service contracts provides that. in the instance of a expiration for default. the contractor shall be apt for liquidated amendss ( every bit good as extra costs ) “until the clip the authorities may moderately obtain bringing or public presentation of similar supplies or services. The “Liquidated Damages” clause requires the contractor to pay the authorities a specific sum for each calendar twenty-four hours of hold. The stipulated sum of the liquidated amendss is set at the clip the contract is entered into and is the parties’ estimation of the extent of loss that one party’s breach of the contract would do to the other.
Government policy is to utilize a “Liquidated Damages” clause in a contract when both ( 1 ) the clip of bringing or public presentation is such an of import factor that the authorities may reasonably anticipate to endure amendss if the bringing or public presentation is delinquent. and ( 2 ) the extent or sum or existent amendss would be hard or impossible to determine or turn out. Contract Disputes Act The Contract Disputes Act of 1978 ( “CDA” ) . which became effectual on March 1. 1979. establishes the processs for managing “claims” associating to United States Federal Government contracts.
All claims by the contractor against the Federal Government must be submitted in composing to the Government’s Contracting Officer for a determination. All claims by the Federal Government against the contractor must be the topic of a determination by the Contracting Officer. Apart from claims by the Federal Government avering fraud in connexion with a claim by the contractor. all claims by either the Federal Government or the contractor must be submitted within six old ages after the accumulation of the claim.
Claims by the contractor that exceed $ 100. 000 must be accompanied by a enfranchisement that ( I ) the claim is made in good religion. ( two ) the back uping informations are accurate and complete to the best of the contractor’s cognition and belief. ( three ) the sum requested represents the contract accommodation for which the contractor believes the Federal Government is apt. and ( four ) the certifier is authorized to subject the enfranchisement on behalf of the contractor.
There are processs in the legislative act for rectifying enfranchisements that do non precisely mimic the needed enfranchisement linguistic communication. For claims of $ 100. 000 or less. the Contracting Officer is required to publish a determination within 60 yearss of reception of the claim provided the contractor requests a determination within that clip period. For claims in surplus of $ 100. 000. the Contracting Officer is required. within 60 yearss. either to publish a determination or advise the contractor when a determination will be issued.
All determinations should be issued within a sensible clip. taking into history the nature of the claim. and. if they are non. the contractor may either bespeak a tribunal to direct the Contracting Officer to publish a determination within a specified clip or handle the failure to publish a determination as an appealable “deemed” denial of the claim.
If the contractor is dissatisfied with the Contracting Officer’s determination on a claim. the contractor may ( i ) entreaty that determination to the cognizant bureau board of contractor entreaties within 90 yearss of reception of the determination or ( two ) bring suit on the claim in the United States Court of Federal Claims within 12 months. Decisions non appealed within one of these clip periods become concluding and conclusive.
There are processs in the legislative act authorising the usage of reciprocally agreeable alternate difference declaration techniques for managing differences and good as for the usage of streamlined and accelerated judicial proceeding processs for smaller claims at the boards of contract entreaties. The losing party may appeal a determination by either a board of contract entreaties or the United States Court of Federal Claims to the Court of Appeals for the Federal Circuit. A contractor is entitled to involvement on the sum found due on its claim running from the day of the month the Contracting Officer received the claim until the claim is paid.
Good acquisition planning is important to the overall undertaking aim. authorities disbursement. tailored to aims and restraints. and is flexible plenty to let invention and alteration as the undertaking evolves. The scheme balances cost and effectivity through development of technological options. geographic expedition of design constructs. and planning and behavior of acquisition activities. These elements are directed toward either a planned Initial Operational Capability or keeping for possible hereafter usage. while adhering to a plan budget.
The scheme should be structured to accomplish plan stableness by minimising proficient. agenda. and cost hazards. Thus the standards of pragmatism. stableness. balance. flexibleness. and managed hazard should be used to steer the development and executing of an acquisition scheme and to measure its effectivity. The acquisition scheme must reflect the interrelatednesss and agenda of acquisition stages and events based on a logical sequence of demonstrated achievements. non on financial or calendar expedience.