Jump to content
The Wifcon Forums and Blogs

rios0311

Members
  • Posts

    174
  • Joined

  • Last visited

Profile Information

  • Gender
    Male
  • Location
    Washington, D.C.

Recent Profile Visitors

8,278 profile views
  1. Vern - I’m sure you are right. I probably don’t fully understand the procedure. I will read the references you provided. Thanks. Joel - I’m at a new organization. I suggested that and it was met (internally) with a lot of concern about adding anything to the agreement that might make the contractor withdraw its offer to cure the issue. So, part of what I wanted to learn from a case was whether the statement needs to be in the agreement in order to preserve our rights. Vern is right. We’ll just continue to go in circles here. Enjoy the rest of your Sunday. I appreciate everyone’s input!
  2. Vern - by wanting to preserve our rights, I was not referring to preserving our right to terminate later. I am interested in preserving our right to file a claim for additional costs that we may experience down the road that are attributable to losing the building - costs that aren’t currently known or captured in their offer to make us whole. I was concerned that accepting the contractor’s offer could be construed as us accepting it as final and in full satisfaction of any and all outstanding issues. Too many unknowns at this point to do that
  3. Formfed - tough to explain without being too specific, but legal has been involved. I’ve raised some issues, so others in that office are weighing in. The matter has the appropriate level of internal attention. We are not considering termination. I attempted a big one once and ended up having to withdraw it after losing agency support and a long battle with the contractor. I learned some important lessons from that one and posted about it some years ago on some other threads here and in the What Happened section of wifcon. Number 4 of those lessons was: 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. C Culham - I didn’t understand your angle on GFP. I will follow up here or in What Happened once this is all settled.
  4. Yes. I was hoping to understand whether their inclusion in a settlement agreement is essential - whether it is essential to put the contractor on notice that their offer may not be enough. I believe they are, otherwise it may appear that we are fully satisfied with what they offered us. Our challenge is to not come off as threatening out of concern that the contractor may rescind its offer/settlement and leave us in a vulnerable and precarious situation. This position may be difficult to understand by others who are used to seeing the government have all the leverage. In this case, we do not. Thank you.
  5. Culham - it is a contract for services. In order to provide the services, the contractor needs a building to hold our property and provide the service, so they leased the building from a third party. We do not hold the lease. We are an agency of the government. Joel - I am not seeking legal advice. See my original post. I only requested to be pointed to a case. I wanted to read it for myself. Yes, we have attorneys and a general counsel. I still want to read it for myself. Vern - thank you. We are clear that they repudiated their obligation, but only because the third party sold the building from under them, so they did offer a solution - a sort of settlement as you have suggested. No one has wanted to use that language or threaten termination. Doing that might put us in a very bad position. What you describe is exactly what I suggested we do, but wanted to see it applied in a case: “If I chose to accept their proposed course of action and settlement, I would do so on the condition that the government reserves its right to pursue any additional damages caused by the default that later occur or are discovered.” This is what I meant by accepting their terms under protest - to reserve our right to pursue any additional damages caused by their actions that we discover later. I was hoping to see a case or legal reference to confirm for myself that those words need to be put in writing in the agreement in order to preserve a party’s rights. I believe they do, but wanted to confirm. It has been a while since I posted here. I have since moved from my last agency and recently started at a different one. Very different here. Pardon the change in font size. Typing from my phone this morning. Thanks, everyone.
  6. Culham, I meant “under protest” as the term is defined in Black Laws. The uniform commercial code refers to it as “performance or acceptance under reservation of rights”. See https://www.law.cornell.edu/ucc/1/1-308 ji20874, neither the Contacts Disputes Act nor the FAR apply to us, so the Disputes clause is not in our contract. At least not the FAR version of it. Vern, I thought my question was sufficiently direct. I cannot provide the exact scenario, but I will attempt to describe a very similar one. We have a contract with a company that provides us a building to house and maintain some of our property. The company does not own the building. The landlord informed the company that it sold the building and needs us out earlier than the contract end date. The company knows it is responsible for providing us with a building, so it offered to move our property to another location and cover the cost of the move. This isn’t just any property, there are many moving parts to the move, and a great amount of planning and coordination must take place to pull it off successfully. We don’t know if there will be other costs involved down the road and there will be significant repercussions for us if the contractor does not complete the move on time. We cannot terminate the contract because we can’t vacate the building without significant lead time. In addition, we have no idea how the company will react to an adversarial response from us, and any attempt to negotiate additional concessions from the company will likely lead to untenable delays or an undesirable reaction from the company. They basically have us over a barrel. We have no choice but to accept their terms. Can we accept their terms under protest to preserve our rights to pursue legal remedies later if we experience more costs than what their “make-us-whole” proposal offers? I am concerned about unintentionally waiving or relinquishing our rights by accepting their terms. I would like to know if including a statement to the effect of “we accept your terms, but do so under protest” or “we accept your terms without prejudice” will serve to preserve our rights. Joel - thank you for the information. No question that the contractor can’t do what it did. Even the contractor is aware, so it has acted in good faith to make us whole. But we have no way of knowing for sure that there won’t be additional costs, so we can’t yet know whether the contractor’s proposal fully protects us.
  7. The term protest, as used in this thread, does not regard bid protests or protests received after award. This regards the term that means to retain the rights to make an objection later on. I have also seen the term defined as "Performing unwillingly where the person makes their dissatisfaction known in advance, sometimes to reserve a later right to take action for being made to perform under duress." Question: Can a government agency accept a contractor's changed terms under protest? I am familiar with cases in which the government has changed the terms of a contract unilaterally, and in resposnse, the contractor has stated that it will perform under protest in order to preserve its right to file a claim later or to pursue some other legal remedy later. Does anyone know of any cases where the government has done this as well (successfully or unsuccessfully)? Such as in a case where a contractor put an agency in such a bad position that it had no choice but to go along with the contractor's new terms (termination is not an option)? I am wondering if an agency has the same right to accept a contractor's changed terms, but do so under protest. I'd like to see a case where this happened. My sense is that any party to a contract has the right to do this. But I would like to see it applied somewhere. Thank you.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. Thank you, Joel. I was hoping to also elicit some feedback about the appropriateness of posting the termination notice or the memo to file.
×
×
  • Create New...