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Vern Edwards

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  1. The Department of Agriculture clause, 452.237-70, reads as follows: I have bolded what I think is the pertinent paragraph. What strikes me about that clause is how broad and indefinite it is. There is no clear statement of precisely what the government's liability will be in cases of loss. Undepreciated value? Replacement value? What other liabilities? I found no interpretive guidance in the agency's FAR supplement. The clause says that the government is responsible for loss, damage, and destruction "of equipment." What does that include? "Idle time"? The equipment is not idle. It's gone. "Idle time" is lost business opportunity. It seems to me that what the OP is calling "idle time" might be considered consequential damages. See Cibinic, Nash, and Nagle, Administration of Government Contracts 4th, 719-20, pointing out that contractors have found it hard to recover consequential damages based on destruction of their business or lost business opportunities. I could not find any litigation of the clause. Interesting.
  2. In extreme cases, such behavior might be considered a form of "economic duress" and evidence of a lack of good faith and fair dealing. I don't think that ji20874 was suggesting it in that way. He was merely recommending caution and due diligence. However, I agree with Joel that if claim issues are severable, and one issue can or effectively has been settled, then partial settlement and payment is just and appropriate.
  3. Specifically, the rule, which is stated at FAR 33.211(a), (c), (d), and (e), is as follows: As a matter of good practice, when a CO receives a claim he or she should prepare a decision document even if the parties agree.
  4. Okay, well, the clause brings the claim for property damage under the contract and makes it subject to the CDA. Thanks for that info. (Although I'm very surprised that the government is admitting to negligence. More power to you.) You used the word "claims" and not the term requests for adjustment. Thus I presume that the claims are certified claims submitted in accordance with the contract Disputes clause. Correct? If so, if I were the CO I'd write a final decision on the entitlement and amount of compensation for the equipment loss, but not the idle time, and get legal to look it over. The law does not excuse a CO from issuing a written decision in response to a properly certified claim just because the government decides that the contractor is entitled to what it asks for. Moreover, a written decision (other than a supplemental agreement) would explain and document who, what, when, where, why, and how and the basis for the contractor's entitlement. It will also set a time limit on the contractor's right of appeal, thereby severing that settlement from the claim for "idle time." I'd withhold a decision on the "idle time" issue pending agreement on quantum. You can reserve settlement on that issue for later. After writing the decision on equipment loss and having it reviewed, I'd cut a settlement mod. Once that mod is signed I wouldn't hesitate to authorize a payment on that basis. That would save interest on the claim, if in fact a "real" claim was submitted.
  5. Emphasis added. Under both clauses, materials includes "Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.)...." Why wouldn't the work of soliciting competitive quotes from subcontractors...drafting an RFP; reviewing quotes; selecting a vendor.... be incidental services? If the contract is commercial IDIQ, the incidental services could be itemized in the task order proposal.
  6. Two of my students, who work for a very large government contractor, told me that the contracting officers (COs) who administer their contracts unilaterally update contract clauses from time to time when they add funds to the contract or when they exercise options. They wondered if that was okay. It's not okay. More than a few people believe that the government must update contract clauses when the government changes the Federal Acquisition Regulation (FAR). Some of them think that the government may do so unilaterally. Others believe that contracts are “automatically” updated when the government changes the FAR. Those beliefs are false. Once the government and a contractor enter into a contract a deal is a deal, and the government and the contractor are bound by the clauses in the awarded contracts until the contracts are completed. Nothing in FAR and no standard FAR clause authorizes a CO to unilaterally update, add, or delete clauses in a contract after award. None of the five Changes clauses, FAR 52.243-1 through -5, empower a CO to do that. Thus, with a few exceptions, which are discussed below, changes to FAR clauses — revisions, additions, and deletions — must be accomplished through supplemental agreement [(bilateral modification). See FAR 43.103(a)(3). Any such supplemental agreement must be supported by consideration in order to be contractually enforceable. In this blog entry I will address two questions: 1. What FAR clauses must COs insert in their contracts and purchase orders? 2. What happens after contract award when a Federal Acquisition Circular (FAC) revises, adds, or deletes a clause that is applicable to a contract of the type awarded, or changes a portion of FAR that has been incorporated into the contract by a clause? FAR contract clauses The FAR and agency FAR supplements prescribe the use of standard contract clauses to implement the statutes, regulations, and policies that apply to government contracts. FAR clauses implement the statutes, regulations, and policies that are in effect on (1) the date the solicitation for the contract was issued, (2) the date of contract award, or (3) some other date, depending on the terms of the clause. See, e.g., FAR 52.202-1, “Definitions (JAN 2012),” which incorporates into contracts the FAR definitions in effect “at the time the solicitation was issued.” See also FAR 52.216-7, “Allowable Cost and Payment (JUN 2011),” subparagraph (a)(1), which incorporates the text of FAR Subpart 31.2 that is in effect “on the date of this contract.” And see FAR 52.227-11, “Patent Rights—Ownership by the Contractor (DEC 2007), which incorporates the procedures in 37 C.F.R. § 401.6 and agency supplements in effect “on the date of contract award.” The language in those clauses fixes the version of the statute, regulation, or policy for the duration of the contract, unless the contract expressly provides otherwise. What FAR clauses must COs insert in purchase orders and solicitations? A purchase order or solicitation states the government’s terms, and quoters or offerors are expected to base their quotes and proposals on those terms. A purchase order or a solicitation for a contract must include the clauses prescribed by the various parts of the FAR. See, generally: For commercial items, FAR 12.301(a): 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (a) In accordance with Section 8002 of Public Law 103-355 (41 U.S.C. 264, note), contracts for the acquisition of commercial items shall, to the maximum extent practicable, include only those clauses—(1) Required to implement provisions of law or executive orders applicable to the acquisition of commercial itemsFor purchase orders issued pursuant to simplified acquisition procedures, FAR 13.302-5: 13.302-5 Clauses. (a) Each purchase order (and each purchase order modification (see 13.302-3)) shall incorporate all clauses prescribed for the particular acquisition.For acquisitions conducted using sealed bidding, FAR 14.201-3: 14.201-3 Part II—Contract clauses. Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this regulation and any additional clauses expected to apply to any resulting contract, if these clauses are not required to be included in any other section of the uniform contract format.For acquisitions conducted by negotiation, FAR 15.204-3: 15.204-3 Part II—Contract Clauses. Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this regulation and any additional clauses expected to be included in any resulting contract, if these clauses are not required in any other section of the uniform contract format. An index may be inserted if this section’s format is particularly complex.Emphasis added. What does all of that mean? It means that a CO must include in a purchase order or solicitation all clauses that FAR prescribes for a prospective contract and that are in effect on the date the solicitation is issued. When an offeror bases its offer on the solicitation, and the government accepts that offer, the contract includes the clauses that were in the solicitation and the parties are bound by those clauses. A CO cannot change (revise, add, or delete) any clauses in a contract document after the offeror has signed it without the agreement of the offeror. Any such agreement would constitute a new offer. What happens when a Federal Acquisition Circular (FAC) containing a clause change is issued before or after a solicitation is released, but the change does not take effect until after the solicitation has been released? Suppose that a CO is preparing a solicitation for a firm-fixed-price supply contract that is expected to exceed $10 million and that the CO plans to issue the solicitation on June 1 and award the contract on December 1. Now suppose that on May 15, a Federal Acquisition Circular (FAC) comes out that adds a new clause to FAR that must be inserted in all FFP contracts that will exceed $5 million. The FAC states that the new clause will become applicable on August 15. Now suppose further that the agency office reviewing the solicitation before its release insists that since the prospective contract will be awarded after the clause becomes applicable the CO should include the new clause in the solicitation. According to FAR 1.108(d)(1), the new clause does not apply to the solicitation and need not be included, but according to FAR 1.108(d)(2) the CO may include it in the solicitation as long as the contract will be awarded after the new clause becomes applicable. Thus, purchase orders and solicitations must include the contract clauses that are applicable on the date the solicitation is issued, and they may include any clauses that become applicable after that date as long as they are expected to be applicable on or after the date of contract award. What happens when a clause change takes effect after contract award? Assuming that the CO included all applicable clauses when soliciting offers, after contract award the government and the contractor are bound by the clauses in their contract throughout the period of performance. In the absence of a contract clause that expressly authorizes the CO to revise, add, or delete a clause without the contractor’s consent, any attempt to bind a contractor to a unilateral clause change would be a breach of contract. See General Dynamics Corp. v. U.S., 47 Fed. Cl. 514, 544 - 547 (2000) and United States v. Winstar Corp., 518 U.S. 839 (1996). However, FAR 1.108(d)(3) permits COs to include FAR changes in existing contracts “with appropriate consideration.” Thus, changes to the contract clauses must be on the basis of supplemental agreement (bilateral modification), not unilateral action by the CO. The consideration would flow from the party seeking inclusion of the clause to the party agreeing to the inclusion. The amount of the consideration is negotiable.* Automatic Updating Of Clauses? There are some contract clauses that provide for automatic updating of contract terms following a change in law or regulation. For example, FAR 52.222-43, “Fair Labor Standards Act and Service Contract Act — Price Adjustment (Multiple Year and Option Contracts) (SEP 2009)” and 52.222-44, “Fair Labor Standards Act and Service Contract Act — Price Adjustment (SEP 2009) provide for automatic updating in response to a change in the minimum wage pursuant to the Fair Labor Standards Act of 1938. FAR 52.230-2, “Cost Accounting Standards (May 2012),” 52.230-5, “Cost Accounting Standards—Educational Institution (May 2012),” and 52.230-6, “Administration of Cost Accounting Standards (JUN 2010)” provide for automatic updating following a change to the Cost Accounting Standards. All such changes apply prospectively, not retroactively. See FAR 52.230-2: (a) Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR Part 9903 are incorporated herein by reference and the Contractor, in connection with this contract, shall… * * * (3) Comply with all CAS, including any modifications and interpretations indicated thereto contained in 48 CFR Part 9904, in effect on the date of award of this contract or, if the Contractor has submitted certified cost or pricing data, on the date of final agreement on price as shown on the Contractor’s signed certificate of current cost or pricing data. The Contractor shall also comply with any CAS (or modifications to CAS) which hereafter become applicable to a contract or subcontract of the Contractor. Such compliance shall be required prospectively from the date of applicability to such contract or subcontract. (4)(i) (Agree to an equitable adjustment as provided in the Changes clause of this contract if the contract cost is affected by a change which, pursuant to paragraph (a)(3) of this clause, the Contractor is required to make to the Contractor’s established cost accounting practices. (ii) Negotiate with the Contracting Officer to determine the terms and conditions under which a change may be made to a cost accounting practice, other than a change made under other provisions of paragraph (a)(4) of this clause; provided that no agreement may be made under this provision that will increase costs paid by the United States. (iii) When the parties agree to a change to a cost accounting practice, other than a change under subdivision (a)(4)(i) of this clause, negotiate an equitable adjustment as provided in the Changes clause of this contract.May COs unilaterally update contract clauses when exercising options? No. The clauses that apply to option periods are locked in at the time of contract award. FAR does not require that COs update clauses when exercising options. Moreover, the law of contracts does not permit COs to unilaterally change the terms of an option once they have been set. Absent express agreement to the contrary, the government must exercise options in strict accord with their terms. See Chemical Technology, Inc., ASBCA No. 21863, 80-2 BCA ¶ 14728: The general rule governing the exercise of an option has been clearly stated by this Board in General Dynamics Corporation, ASBCA No. 20882, 77–1 BCA ¶ 12,504 at 60,622: An option is an offer couched in specific terms, the acceptance of which must be unconditional and in exact accord with the terms offered. The general attitude of the courts is to construe strictly this legal requirement Williston on Contracts, Third Edition, Secs. 61B; 61D; United States v. T. W. Corder, Inc., 208 F.2d 411, 413 (1953); International Telephone and Telegraph, ITT Defense Communications Division v. The United States, [17 CCF ¶81,071], 197 Ct. Cl. 11 (1972). See also, McArthur et al. v. Rosenbaum Company of Pittsburg, 180 F.2d 617, 620 (3rd Cir., 1950). Even substantial compliance with the terms of an option is insufficient. See 17 CJS, Contracts, Section 42, n. 83(2) at 676.Any attempt by the government to impose new terms on a contractor when exercising an option would be breach of contract and would invalidate the option. See New England Tank Industries of New Hampshire, Inc. v. U.S., 861 F. 2d 685 (Fed. Cir. 1988): It is well-settled that to properly exercise [an] option, the government’s acceptance of the offer [must] be unconditional and in exact accord with the terms of the contract being renewed. * * * The dispositive question is whether the government's exercise of its option to renew the contract was valid or invalid. As above noted, the board recognized that an attempt to alter the contract terms would “render ineffective the purported exercise of an option,” and that insertion of an “availability of funds” clause renders the option exercise “invalid”, see 88–1 BCA at 103,166, and neither party quarrels with those statements of the law.The rule that exercise of an option must be in accordance with the terms of the option as awarded is reflected in FAR 17.207(e), which requires that before exercising an option the CO must make a written determination that the exercise “is in accordance with the terms of the option….” Thus, unless a contract contains an express term to the contrary, COs have no authority to unilaterally update contract clauses when exercising options.** What is the effect of changes to parts of the FAR that were incorporated into a contract by reference? Several FAR contract clauses incorporate parts of the FAR into contracts by reference. See e.g., FAR 52.202-1, which incorporates FAR definitions “in effect at the time the solicitation was issued,” and 52.216-7(a)(1), which incorporates the version of FAR Subpart 31.2 “in effect on the date of this contract.” In those examples, the terms of the FAR are fixed in time and cannot be altered without mutual agreement of the parties and consideration. But what if the clause does not fix the terms of the FAR? See e.g., FAR 52.211-15, “Defense Priority and Allocation Requirements (APR 2008).” It requires the contractor to comply with “15 C.F.R. 700,” without further qualification. See also the various small business clauses that require the contractor to comply with Title 19 of the C.F.R., and the labor law clauses that require the contractor to comply with Title 29. If those regulations change after contract award the contractor is always bound by the current regulation. In such cases the updating is automatic and does not require a contract modification unless the clause provides for an adjustment of some kind, equitable or otherwise. As I mentioned above, some clauses, such as the Cost Accounting Standards clause, provide for automatic updating with price adjustment. Can Congress enact a law that changes existing contracts? Yes, but they might breach the contract if they do. That was the holding of the Supreme Court in United States v. Winstar Corp., cited above, in which Congress changed a law, and the agency changed its regulations accordingly, after entering into contracts with financial institutions: When the law as to capital requirements changed in the present instance, the Government was unable to perform its promise and, therefore, became liable for breach. We accept the Federal Circuit's conclusion that the Government breached these contracts when, pursuant to the new regulatory capital requirements imposed by FIRREA [Financial Institutions Reform, Recovery, and Enforcement Act of 1989], 12 U.S.C. § 1464(t), the federal regulatory agencies limited the use of supervisory goodwill and capital credits in calculating respondents' net worth. 64 F.3d, at 1545. In the case of Winstar and Statesman, the Government exacerbated its breach when it seized and liquidated respondents' thrifts for regulatory noncompliance. Ibid.In Winstar, the court quoted its decision in Sinking Fund Cases, 99 U.S. 700 (1879): The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that terms implies, as it would be if the repudiator had been a State or a municipality or a citizen.Conclusion Getting back to my two students, absent express language in the contract to the contrary, a CO may not unilaterally change the clauses in a contract when funding the contract or exercising an option. He or she may change clauses only with the assent of the contractor and with consideration for the change. I asked my two students how they responded when their COs unilaterally updated the clauses in their contracts. They said that they went along with it, because so far none of the changes had much if any effect. That is too bad, because they are teaching the COs in question that what they are doing is okay. It is not okay. And it is not wise for one party to a contract to let the other party violate its rights by unilaterally imposing new terms. NOTES *Note that “consideration” is not the same as an “equitable adjustment.” An equitable adjustment is a fair increase or decrease in the contract price or estimated cost and fee and the time required for contract performance, as required by a contract clause, such as a Changes clause or Differing Site Conditions clause. The amount of the equitable adjustment is based on the estimated or actual effect of the change on the cost or time required for performance. When the parties to a contract agree to modify it on the basis of mutual agreement, and not in accordance with a contract clause that provides for equitable adjustment, the parties are making a new bargain and the bargain must be supported by consideration in order to be enforceable in court. Consideration is necessary whether or not there is any effect on cost or time. The amount of the consideration is not determined or limited on the basis of the effect on cost or time, but is determined through bargaining. The consideration would flow from the party that will benefit from inclusion of the clause to the party that agrees to its inclusion. **However, the parties may change the terms of a future option period pursuant to the terms of contract clauses, such as the Changes clause, or pursuant to a justification for other than full and open competition.
  7. The answer depends in part upon what you mean by "competition." If (1) you are asking about "full and open competition," (2) the purchase is being made by a government agency, and (3) FAR Part 6 applies, then see FAR 6.302-1(c)(1)(i). If the purchase is being made a private sector entity, then there is no rule that bears upon the answer to your question. However, government agencies reviewing the entity's purchases might look to FAR 6.302-1(c)(1)(i) for guidance. If you are not asking about "full and open competition," then what kind of competition are you asking about? The FAR mentions at least three kinds.
  8. Emphasis added. @D_Wess: Are the claims contract claims or independent tort claims? Contract claims are settled under the Contract Disputes Act. Tort claims are decided under the Tort Claims Act. Do you know the difference between a contract claim and a tort claim? What you described sound to me like they might be independent tort claims, because you seem to be saying that the claims are for property damage that was due to government negligence, not for a government act or omission in violation of a contract. Compensation for loss of use under other contracts definitely sounds like a tort claim. Has the CO obtained a government legal opinion in this regard? If you know the difference, and if the claims are contract claims, did the contracting officer issue final decisions? Did the CO decide entitlement, damages, causation, and quantum based on the terms of the contract and in favor of the contractor? Based on what you've said, I agree with ji20874, because if the matter involves tort claims the CO does not have authority to settle and the cognizant board of contract appeals or the Court of Federal Claims do not have jurisdiction. Moreover, if the claims are contract claims, you've said nothing about a CO final decision.
  9. Interview Guidance

    The choice might give me some insight into personality. If a woman were to say she wanted to be a construction project manager, I'd probably hire her on the spot. But librarian and forensic accountant suggest a reasoning, research-inclined, categorizing, and informative person. A would-be community organizer might be a great negotiator. Newspaper reporter suggests a persistent inquirer, maybe a good cost analyst. It might be that the most important part of the response is the Why? part of the question. Was the answer based on any kind of reasoning or was it just a spontaneous off the cuff reaction? Can the interviewee explain their choice in a way that makes me understand it? The question is supposed to be unexpected, surprising, and I want to see how they handle it. Are they completely thrown off and befuddled or intrigued and thoughtful? Do they seem to be trying to figure out what I want to hear? Do they ask if they are strictly limited to those choices? Will they say None of the above? Amateur psychology, I suppose, but the reaction and response is hopefully more interesting and revealing than the response to What's been your greatest accomplishment?
  10. Interview Guidance

    The best and only advice I can give is: Be yourself. Answer questions thoughtfully and truthfully, and let the chips fall where they may.
  11. Interview Guidance

    When I conducted interviews I never wanted to test the interviewee's knowledge. I didn't care what they knew or thought they knew, because I was going to retrain them. I wanted to know about the person and whether they were likely to fit in and live up to my expectations. Are they smart? Are they curious? My favorite questions: Name your ten favorite books. (People who read well can probably write well.) What is your favorite television show? Why? What's your favorite science (such as physics, botany, biology, chemistry, astronomy, entomology)? Why? What college class was your least favorite? Why? What's your favorite sport to watch? Why? (If they served in the military) What was the funniest thing that happened to you in the service? What was the worst job you ever had? Why was it the worst? What was the toughest intellectual challenge you've ever had? What made it tough? What is your favorite wild animal? Why? If you had to choose one of the following jobs, which would it be? Why? forensic accountant construction project manager community organizer newspaper reporter college librarian
  12. Privatization

    I'm reading a book in which the author asserts that "privatization" is a threat to our liberty. He does not clerly define what he means by privatization. Sometimes he seems to include "contracting out." How do you define "privatization"? Does it include contracting out?
  13. Interview Guidance

    "Source selection" is the title of FAR Subpart 15.3. Although that term appears in 49 places in FAR, it does not appear in FAR Parts 8, 13, 14, or 16. It appears once in Part 36.601-3, which says not to use source selection procedures when choosing architect-engineer contractors. If I were an interviewer and asked, "Walk me through a source selection," I would not expect a knowledgeable person to talk about any process other than one of the competitive processes prescribed by FAR Part 15. I would not expect a knowledgeable person to consider the question to be "wide open" to any interpretation. Anyone responding to Gordon's question who walked me though a process under FAR Part 8, 13, or 14 or FAR 16.505 would fail my interview. "Source selection" includes both LPTA and tradeoff processes, and various combinations of the two.
  14. Are Payment Logs Required?

    The FAR does not tell you how to manage an office!!!!! Not all office activity is part of acquisition, per se, and keeping records of some kinds of internal office actions and external transactions is a just matter of competent office management. Ever see a board on which people sign in and out of the office? That's not prescribed by FAR. Anyone log telephone calls about official business? That's not prescribed by FAR. Anyone keep a list of assigned action items? That's not prescribed by FAR. Anyone keep a project diary? That's not prescribed by FAR. Anyone keep a calendar of upcoming meetings? That's not prescribed by FAR. Some things are just smart to do, whether anyone tells you to do it or not.
  15. Are Payment Logs Required?

    What kind of office do you work in? What do your "peers" do? What kinds of invoices are you talking about? Invoices for what kinds of work under what kinds of contractual instruments? Tracking for what? Receipt? Review? Approval? Forwarding? Clearly, a CO or CS working in a DOD system program office is not using an excel spreadsheet to log payments to Boeing or Lockheed Martin. But someone working in a small contracting office reviewing and approving invoices for calls against blanket purchase agreements might be. In short, what the heck are you talking about? Do you think that all contracting offices are doing the same kinds of procurements? If all your "peers" are doing is reviewing and approving invoices for payment, then it makes perfect sense to me for them keep logs of what they have received, reviewed, approved, and forwarded if they don't have an automated system for that purpose.
  16. Shame

    https://www.washingtonpost.com/investigations/fat-leonard-scandal-expands-to-ensnare-more-than-60-admirals/2017/11/05/f6a12678-be5d-11e7-97d9-bdab5a0ab381_story.html?utm_term=.6efd81c9c2f6 Unfortunately, the guy to whom the letter was sent turned out to be a crook on a massive scale. Such letters ought to be unusual. They ought not be sent.
  17. Invoicing

    Mathew: Funny that you should mention the NYTimes article on collusion. I just sent the following letter to the editor of the NYTimes, with a copy to the author of the article: The article was very sloppy.
  18. Invoicing

    Point of order regarding "verbal." What Sal means is oral. While modern dictionaries say you can use verbal to mean oral, it's a matter of what Bryan Garner calls "slipshod extension." See Garner, Garner's Modern English Usage: The Authority on Grammar, Usage, and Style, 4th ed. (Oxford University Press, 2016): Bryan Garner is the editor-in-chief of Black's Law Dictionary and the author of many books about English usage and legal writing. Sal meant that the direction was not in writing, which is the heart of his problem. (Although the mention of an email being "on file" raised a question.) The proper word, especially for contracting practitioners, is oral. NOTE: "Calling a spider an insect [or bug] is slipshod extension of the word insect: a spider is an arachnid. Calling a whale a fish is slipshod extension of the word fish: a whale is a marine mammal." See http://data.grammarbook.com/blog/definitions/slipshod-extension-2/.
  19. What if ten people from ten other agencies told you that their local policy is to check SAM for every contract action, including in-scope actions? Would you then think it's the right thing to do?
  20. Do construction warranties survive termination?

    That's from my last post, added before you replied.
  21. Do construction warranties survive termination?

    It's actually quite simple. In order for the government to have any warranty rights under FAR 52.246-21, the conditions stipulated in paragraph (b) must be met. A T for D can be complete or partial. If you want warranty rights for some part of the work, accept it or take possession in accordance with FAR 52.236-11. A statement in the notice of termination "preserving" warranty rights is useless, in my opinion. Lawyerly b.s. without any legal effect. You'd just be saying that you think you still have warranty rights even though you terminated the contract for default. Maybe a board or the COFC would agree, and maybe not. You'd first have to prove that you have warranty rights. In order to have them you first must establish them. Accept any part of the work that's acceptable and do not include that part in the termination. (Why would you?) Expressly exclude it. Then you have enforceable warranty rights under FAR 52.246-21 for that part of the work. T for D of other parts of the work would have no effect on the rights you've established under the contract. If you take possession of any part and then terminate the remainder of the contract, ending the contractor's right to complete it and seek acceptance, do so in accordance with FAR 52.236-11 and work out the completion and warranty with the surety as described by Joel.
  22. Do construction warranties survive termination?

    You have to answer some questions. Did you ever have warranty rights under FAR 52.246-21 with respect to the work in question? Did you ever accept the work to which you want to apply the warranty? If you took possession of such work prior to completion, did you comply with the clause at FAR 52.236-11, Use and Possession Prior to Completion?
  23. Privatization

    It's interesting.
  24. Invoicing

    If the oral direction added work, then I presume that it increased costs. If it increased costs, then the CO must process a written mod in order to adjust the task order value and obligate additional funds with which to pay the additional cost. If you invoiced for an amount that includes the additional cost, even though the written task order still reflects the original amount, then the invoice was necessarily and properly rejected. The "authority" is that you cannot invoice the government in an amount in excess of the current value of a task order. Read your contract. You should have known all this and made sure that the CO had started the paper work before you were ready to invoice. Think about who your customer is. It's the Government! Don't freak out. I presume that you and the CO have agreed on the additional amount. If so, just call the CO and ask how long it's going to take to process the mod. It's probably going to take a while. If you haven't agreed on the cost, then it's going to take a long while.
  25. New Info after proposal submission

    I like that phrase: "normal churn and burn of participants in a market-based economy." Very nice.