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About rios0311

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  1. When reporting a termination for cause in FAPIIS, what documentation is appropriate or permissible for the contracting officer to attach to the FAPIIS record? For example, should or can the contracting officer attach the termination notice to the FAPIIS record if it explains in detail the basis for the termination? What about the CO's memorandum to the contract file; should or can it be attached to the FAPIIS record? If it is appropriate or permissible to attach these documents to the record, is it advisable to do so? Why or why not?
  2. Thank you, Joel. I was hoping to also elicit some feedback about the appropriateness of posting the termination notice or the memo to file.
  3. When reporting a termination for cause in FAPIIS, what documentation is appropriate or permissible for the contracting officer to attach to the record? For example, should or can the contracting officer attach the termination notice to the FAPIIS record if it explains in detail the basis for the termination? What about the CO's memorandum to the contract file; should or can it be attached to the FAPIIS record? If it is appropriate or permissible to attach these documents to the record, is it advisable to do so? Why or why not?
  4. So true! I'll be back with more questions or with updates once the dust settles.
  5. Jacques, this is incredibly helpful. Thank you. To both you and Retreadfed, I edited my original post in hopes of making it clearer. I deleted some details that perhaps didn't matter much, so I hope it makes better sense now. In any event, your responses provided me with what I needed. Much appreciated!
  6. Thank you, ji20874. There are no excess costs that would result from exercising the options because pricing on those services is similar on both contracts. The agency is only looking at the implementation (base period), because those were costs the agency should not have had to incur again. But you might be right in that the agency may not be able to recover them. Your possible approach seems reasonable too. The agency didn't anticipate being in that situation, so they did not plan for it.
  7. Question Has anyone come across a case where the COFC or one of the BCAs sustained or awarded reprocurement costs for a procurement that was conducted in anticipation of needing to terminate a contract; i.e., before the contract was terminated? Scenario The agency enters into contract A for a critical system. After its partial implemention and placement into operation, any lapse in the system's operation would lead to disastrous consequences for the agency. Although the system is deployed with some core functionality, the contractor is still working to complete the configuration of all of the system's features and capabilities in order to fully implement the system. During the course of the contractor's configuration and implementation of the system, the contractor begins to demonstrate deficient performance. Its lack of diligence and repeated failures indicate that the agency cannot be assured of the contractor's performance. The agency begins to consider whether it may need to terminate contract A if the contractor does not complete the system's implementation by the contract's completion date. However, the agency recognizes that it cannot terminate the contract without having a backup (replacement) system configured and ready to be placed into operation in the event that it determines that it needs to terminates the contract. The agency conducts a new procurement and enters into contract B for a backup system and successfully implements the system, but does not place it into operation. Shortly thereafter, contractor A defaults, so the agency places the backup system into operation, the CO terminates contract A and assesses reprocurement costs (against contractor A) for the cost of contract B's implementation phase. The CO assesses reprocurement costs on the principle that it would not have had to incur costs on a second procurement for a backup system if contractor A had fulfilled its obligations. The agency's risk mitigation strategy to award a second contract for a backup system seems reasonable based on the contractor's deficient performance and the contractor's eventual default seems to validate the agency's decision to procure a replacement system as a precautionary measure. But how likely is the agency to prevail in recouping reprocurement costs for contract B, which the agency awarded prior to terminating contract A? Is anyone familiar with a similar case, or with any case in which reprocurement costs were assessed for a procurement conducted prior to terminating a contract?
  8. Retreadfed, FAR 12.403(c)(2) states: The Government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace. The Government’s preferred remedy will be to acquire similar items from another contractor and to charge the defaulted contractor with any excess reprocurement costs together with any incidental or consequential damages incurred because of the termination. Seems too simple. Is this what you were looking for, or did I misunderstand your question?
  9. Joel, I'm not teleworking! Retreadfed, I will leave it at " all rights and remedies provided by law", which would include case law. Unfortunately, I did not select the most anonymous user name when I set up my account years ago, so I prefer not to go into much detail at this point, since anyone can be reading this and could use anything here to strengthen their own arguments. We are confident in our position, but uncertain whether we will prevail in obtaining reprocurement costs. To clarify, we will only pursue reprocurement costs associated with the portion of the new contract attributable only to the implementation portion, which we would not have had to pay again if we remained with the current provider. However, the cost of the new solution will actually cost less on a yearly basis once it is in production (operational) mode, so we are aware that this will factor into any decision to award costs. Again, I apologize if I don't stay on top of the conversation, but I am at work and constantly running to meetings. However, I am checking in every now and then. If a case gets published, I will update the thread (if the thread hasn't been locked) with a link to the decision.
  10. We did in fact re-procure a backup system anticipating the potential for needing to terminate the contract in order to have a seamless transition. Not having a seamless transition would subject us to significant liability from other parties. However, you are correct. No guarantee that we will recover that cost. At this point, we are just happy to be moving on. We will make as strong a case as possible.
  11. I appreciate everyone's feedback and the discussion, and I regret that I did not check back here to contribute further before going on holiday. Here's what we did shortly after my last post: 1. Cure notice is not required for late delivery, but we issued what amounts to a cure notice, which specified the deficiencies, provided a new delivery date with 30-days to correct the deficiencies, and advised of possible termination for cause. 2. Because we could not afford a gap in performance of the critical IT system, we procured a replacement system as a backup in anticipation of needing to transition to it. Because we were unsure whether the current contractor would come through and deliver, we structured the replacement contract with a base period consisting only of the configuration and implementation phase. Exercising the first option would place the system into production (full operation). 3. When we did not receive the completed IT system on the new delivery date, we issued a show-cause notice, which informed the contractor that we planned to terminate the contract for cause, unless the contractor showed cause why we should not terminate on that basis. 3. The contractor did not show adequate cause for late delivery, so we decided to terminate the contract and will exercise the option on the replacement solution to bring it online while we transition off the deficient system. We will leave corresponding past performance and will pursue re-procurement costs.
  12. ji20874, yes, the CO has conferred with legal counsel, but the attorney had not encountered this situation in the past. Despite this, the attorney agreed that we should be able to do this unilaterally. I cannot respond to the remainder of your questions without starting a new thread, since it opens up an entirely new topic. More to come! Retreadfed, the intent is to re-establish a delivery schedule that is 30-days from the date of the notice. In other words, 30 days from today. They've had their 90 days, plus another 7 months worth of delays. We have notified them that we've moved the delivery date 30 days from today and may terminate for cause if they don't deliver.
  13. Retreadfed, thank you for commending. 30 days because they have already received 7 months worth of implied or constructive extensions and each time they promise to deliever something, it is only a couple of days or weeks away.
  14. Question: Is it legally permissible for the Government to re-establish a delivery schedule unilaterally on a contract for commercial services that includes FAR 52-212-4(c), when the Government, through its inaction, previously waived timely delivery (DeVito waiver?) Scenario: Agency enters into a contract for a critical IT system. The contract specifies that the contractor must fully implement the system within 60-90 days after the contract award date. The contractor misses the required completion date. However, because the agency needs this system, the program office continues, informally; i.e., without contract modifications, to allow the contractor to continue working on the system. The contractor continues to promise delivery and continues to miss delivery. Now the parties are 10 months into the contract, the contractor is still working, and the agency still does not have a working system. The agency knows that the contractor will not sign a bilateral modification agreeing to a 30-day extension to reset the delivery schedule. Can the Government re-establish the delivery schedule by written notice to the contract; i.e., through a letter from the CO, or can the CO issue a unilateral modification to re-establish the delivery schedule; despite the language of 52.212-4(c), which requires that all changes to T&Cs be made bilaterally? The purpose of re-establishing the delivery schedule is to re-establish the government's right to terminate the contract for cause for late delivery because it waived its right when it did not terminate the contract the first time the contractor missed the delivery date. If such a unilateral action were impermissible, by forbearing termination for cause within a reasonable time after the breach (late or missed delivery), agencies later would be incapable of re-establishing a delivery schedule when a contractor does not agree to a new deadline. Is this the case? Editing to add: We can terminate for failure to make progress or provide adequate assurance of performance. But can we re-establish the delivery schedule unilaterally?
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