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rios0311

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  1. Yes, I think it is a great idea to report back on What Happened after applying (or rejecting) the information learned on the threads we create. I would suggest to anyone doing so to include a link to the original discussion topic, and to include a link on the original thread to the What Happened resolution. Thanks for the forum, bob7947. It's been a great learning tool and sounding board throughout the years.
  2. For anyone that followed this thread last year, I thought I'd provide an update on how it ended. After issuing the termination notice and claim for reprocurement costs, the contractor challenged the termination at the Civilian Board of Contract Appeals. For context, the primary reason for terminating the contract for cause was because the contractor failed to deliver a working system within the 30-day extension the CO provided after having re-established the delivery schedule. The issue of re-establishing the delivery schedule was discussed separately on this Wifcon thread: Unfortunately, despite spending countless hours researching court/board decisions, legal blogs and other references, and drafting a series of notices to ensure our termination was procedurally solid, our attorneys did not believe they would prevail in court. They recommended we settle with the contractor. Part of the draft settlement agreement required the contractor to return a small portion of the amount we paid. Unfortunately, the contractor also demanded a satisfactory past performance rating in CPARS. Ultimately, we decided to walk away from the partial refund and instead converted the termination into a termination for convenience and gave the contractor a past performance rating that accurately reflected their performance. From the date of termination, settlement discussions, to the Reviewing Official finalizing the evaluation in CPARS, the entire process took a year. There were some significant lessons learned from the contracting process on this procurement that got us to the point of having to terminate the contract. But there were also some lessons learned about the termination process itself. Among them: 1. Ensure that your attorneys and leadership are onboard and ready to support a termination for cause or default before embarking on that path. 2. Maintaining a strong working relationship with your attorneys will make it more likely that they will be willing to go to bat for you when the time comes. 3. Be aware of how time consuming it can be to build a case to support a termination for cause. Drafting lengthy notices and compiling documents and correspondence for a Rule 8 file for your attorneys is not a pleasant way to spend several weekends. 4. Sometimes in contracting, it doesn't matter how right you believe you are, or how strong a case you think you have against a contractor. The interests of the agency may dictate pursuing a different course of action. As a leader, you'll need to get behind that course of action. In the end, contract B provided us the system we needed with all the required functionality and has performed beautifully to date.
  3. For anyone that followed this thread last year, I thought I'd provide an update on how it ended. After issuing the termination notice and claim for reprocurement costs, the contractor challenged the termination at the Civilian Board of Contract Appeals. For context, the primary reason for terminating the contract for cause was because the contractor failed to deliver a working system within the 30-day extension the CO provided after having re-established the delivery schedule. The issue of re-establishing the delivery schedule was discussed separately on this Wifcon thread: Unfortunately, despite spending countless hours researching court/board decisions, legal blogs and other references, and drafting a series of notices to ensure our termination was procedurally solid, our attorneys did not believe they would prevail in court. They recommended we settle with the contractor. Part of the draft settlement agreement required the contractor to return a small portion of the amount we paid. Unfortunately, the contractor also demanded a satisfactory past performance rating in CPARS. Ultimately, we decided to walk away from the partial refund and instead converted the termination into a termination for convenience and gave the contractor a past performance rating that accurately reflected their performance. From the date of termination, settlement discussions, to the Reviewing Official finalizing the evaluation in CPARS, the entire process took a year. There were some significant lessons learned from the contracting process on this procurement that got us to the point of having to terminate the contract. But there were also some lessons learned about the termination process itself. Among them: 1. Ensure that your attorneys and leadership are onboard and ready to support a termination for cause or default before embarking on that path. 2. Maintaining a strong working relationship with your attorneys will make it more likely that they will be willing to go to bat for you when the time comes. 3. Be aware of how time consuming it can be to build a case to support a termination for cause. Drafting lengthy notices and compiling documents and correspondence for a Rule 8 file for your attorneys is not a pleasant way to spend several weekends. 4. Sometimes in contracting, it doesn't matter how right you believe you are, or how strong a case you think you have against a contractor. The interests of the agency may dictate pursuing a different course of action. As a leader, you'll need to get behind that course of action. In the end, contract B provided us the system we needed with all the required functionality and has performed beautifully to date.
  4. I agree with bob7947. The contractor must first figure out the amount of the refundable tax credit to which it is entitled under the FFCRA (Division G) before it can seek relief under section 3610 of the CARES Act (Division A). That shouldn't be too difficult to do; however, because the CARES Act was enacted in March and FFCRA did not go into effect until April 1, contractors will have to look to CARES to recover reimbursement for the cost of paid leave they provided to their employees during parts of March to keep them in a ready state and to protect contractor-employees and federal employees. Of course, other conditions must be met, too to recover under CARES. The reason for the paid leave must have been because the job site (e.g., building) was closed or because other restrictions were in place, AND the contractor's work was not portable, meaning the work could not be done remotely. For example, we instructed employees and contractors not to come to our building if they were exhibiting flu-like symptoms, if they had been tested for COVID-19, tested positive for COVID-19 or if they felt ill, or if they had been in contact with anyone that had these symptoms. If their work was not portable (e.g., maintenance technicians, lighting technicians), the restriction we imposed entitles them to recover under CARES. Also noteworthy, FFCRA also provides funds to employers to allow its employees to take leave for childcare reasons if a child's school is closed. However, CARES does not appear to provide authority to reimburse contractors for leave they give their employees to stay home for childcare reasons. So, unless FFCRA is applicable retroactively, contractors who provided paid leave for childcare reasons in March may not be able to recover under CARES.
  5. Circling back to report that after reviewing several active FAPIIS records, we found that it is common for the CO to attach the termination notice and the termination modification. I didn't see an instance of a CO posting a copy of the CO's memo to file, but that does not mean it isn't permissible. The contractor has a 7-day period to review the information and assert to the CO that the posted information is covered by a disclosure exemption under FOIA. At that point, the CO must within 7 calendar days remove the posting while it determines whether the information is releasable or protected. If it isn't, the information can be re-posted. So it seems that the CO can pretty much post anything it deems appropriate for other agencies to review when making responsibility determinations, unless the contractor claims the information is exempted from release (and the CO confirms this). It is worthy to note that the information is publicly viewable 14 days after the CO posts it in FAPIIS.
  6. Thank you, Joel. I was hoping to also elicit some feedback about the appropriateness of posting the termination notice or the memo to file.
  7. 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?
  8. So true! I'll be back with more questions or with updates once the dust settles.
  9. 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!
  10. 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.
  11. 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?
  12. 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?
  13. 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.
  14. 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.
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