Retreadfed

How do you avoid an issue becoming "more complicated and controversial/confrontational, too" by giving contractors a dumb government interpretation of what a FAR clause says? One of the biggest mistakes contractors, particularly small businesses, make is to rely on what a contracting officer/COR tells them about the FAR.

I'm confused by this statement. If materials are not acquired by purchasing them, how has the contractor incurred a cost that can be billed to the government?

This is from FAR 33.213. However, this is what 41 U.S.C. 7103(g) actually says "This chapter does not prohibit an executive agency from including a clause in a Federal Government contract requiring that, pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer’s decision." Thus, the statute does not make a distinction between claims arising under the contract and claims relating to a contract. What the statute does is give agencies discretion in how they write clauses requiring continued performance by the contractor following a contracting officer's decision. Excluding continued performance from the contractor's obligation under a contract for commercial items and services following a decision on a claim relating to the contract (e.g., a breach claim) seems consistent with standard commercial practices.

The answer to Newbie's question is found in this extract from one of the articles to which Joel provided a link: “'[u]pon material breach of a contract, the non-breaching party has the right to discontinue performance of the contract.' Stone Forest Industries, Inc. v. United States, 973 F. 2d 1548, 1550-1551(Fed. Cir. 1992), citing Restatement (Second) of Contracts § 241 cmts a & b. The choice of remedy is up to the non-breaching party." This same principle has been stated in many cases. It is frequently cited in cases where there is an assertion that the government did not properly exercise an option. However, in many situations, there are FAR clauses that provide a contractor with a remedy for government actions that might ordinarily be a breach of contract. The T4C clauses and Government Property clause are examples of this.

Just out of curiosity, is the RFP prohibiting offerors from providing information on non-Federal government projects such a projects for a state or foreign government or a commercial project?

If the manual is a matter relating to contracts so that it is exempt from the APA's rule making requirements, what impact would failure to publish under 1707 have on its validity?

A deviation to what DFARS section?

Not according to your outline of the facts. The CDRL items were not delivered. Because they were not delivered, they could not be inspected and accepted. Further, because timely delivery of the CDRL items is an element of contract performance, it seems the contractor is in default on the contract. In this regard, failure to make progress in not the only basis for a default under a cost reimbursement contract. Failure to make progress is only one example of what constitutes a default. What the contracting officer wants to do in light of this default is up to the contracting officer.

H2H, you mentioned close-out costs. Have you looked at FAR 4.804-4? In your view, is this contract physically complete so that it is a candidate for close-out? You asked about government remedies. You said this is a cost reimbursement contract. The discussion of what constitutes a default is limited in these circumstances. However, it could be possible that the contractor is in default and subject to termination for that default. Also, the government could write a derogatory CPARS on the contractor.

If the contract requires the contractor to submit the proposal, it would not be considered a B&P cost. In this case, the cost could be charged as a direct cost of the contract. On the other hand, if the contract does not require the contractor to submit the proposal, a contractor could treat the cost as a B&P cost in accordance with FAR 31.204(d) and charge the cost as an indirect cost if that is its normal accounting practice.

Have you looked at FAR 31.205-18?

Do you know that payment occurred? If it did not, is there really a credit involved in this transaction?

In addition to what Vern wrote, be sure you're not wanting unnecessary information.

anparker, when did payment occur? Was it made before the items were accepted?

We are talking about the reasonableness of compensation. The general standards for reasonableness of compensation are found in FAR 31.201-3 and 31.205-6, particularly (a) and (b).