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  1. This attorney put out two extensive publications (Parts I & II), if you have the time to read them. In my opinion, they are most comprehensive authorities on the subject: http://www.seidmanlaw.com/publications/
  2. If a judge at the Armed Services Board of Contract Appeals makes a decision with a monetary award against the Government (i.e. the Government has to pay), can the Government negotiate payment terms (such as a contractor agreement not to file any other actions regarding the dispute)? Or does the Government just have to pay or face repercussions? If the Govt must pay, what actions might the contractor take against the Government to enforce the decision and obtain payment? See https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwi47JzX7_TQAhWKjlQKHfPhDqYQFggcMAA&url=http%3A%2F%2Fwww.cafc.uscourts.gov%2Fsites%2Fdefault%2Ffiles%2Fopinions-orders%2F11-5015.pdf&usg=AFQjCNEcZaoI13NwgGCcgJTgUQ90kpcluA&sig2=Toz2Jo8K44P5ZE4uj25oJg pages 12 & 13.
  3. Mr. Edwards, I was under the impression this was a forum to openly discuss relevant federal contracting issues and the nature of these issues is often confusing, debatable and unclear. While I certainly respect your lengthy experience and work history, please note the following: 1. I still believe a T4D may be ALSO be a contracting officer's final decision. See the suggested terminating language in Air Force Exhibit #3 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB8QFjAA&url=http%3A%2F%2Fwww.acq.osd.mil%2Fdpap%2Fccap%2Fcc%2Fjcchb%2FFiles%2FTopical%2FTerminations%2Fguides%2Fafmc%2520t4d%2520guide.docx&ei=ccSIVdCJDsjboAS656LoDg&usg=AFQjCNGdi7rHdSLQESXqq_LSCBKRKMwzvg&sig2=J8_uu9D9ac4E0Yu5GN9mdw The 2014 JAG Contracting Officer's Handbook, page 22-19 Sect V (A) also seems to support this...however I'm somewhat unclear and am looking for discussion. The Connectee case you listed is interesting, but differs somewhat because it has an order withdrawal. In the case I mentioned this was a formal T4D action...probably undertaken mistakenly. 2. You mistakenly listed FAR 32.211 in post #25; it should be 33.211; I started to look into this problem, came back to it later and mistakenly put in a FAR from question 1. 3. I'm not sure what doesn't make sense. The Government terminated for default and the contractor filed a contractor claim mote than a year later. The Govt never made a final decision, creating a deemed denial of the claim. 4. Regarding Weno2's question, I'm not sure why the preaward folks didn't use your 52.213-4 method, but also note that FAR 52.249-8 was not in the contract, but was (mistakenly??) used as the terminating basis. This is a complex case with a lot of interesting twists and turns, perhaps even a case of first review. I probably should have made several different new posts instead of a single one, for clarity. Thanks for your interest.
  4. Regarding Vern's questions, 1. Yes, the contractor filed a claim for many things including T4D, breach of contract and failure to use discretion in the termination and first article rejection. 2. To my knowledge a T4D is automatically a COFD on a Government claim. 3. The terminating mod did include the FAR 2.101 language. 4. The terminating mod explicitly stated it contained the CO's final decision. 5. I suppose the contractor could have submitted a claim for the value of its first article, had it made one, prior to T4D (if I understand your question correctly). 6. I suspect the Branch Chief statement could signal an impasse, constituting a final decision. More importantly the case of John A. Johnson v. US, 132 Ct. Cl. 645 (1955) suggests that when a branch chief steps in, they are doing so improperly, perhaps in bad faith. 7. In this case the Branch Chief is a supervising CO and has stepped in to issue final decisions in prior cases in the past. 8. In this case the claim is a deemed denial for Government non responsiveness 9. Th last question is similar to my original question...which I'm still unsure about...my guess is the 6 year statute of limitations allows the claim to proceed and not the 12 month appeal limit on T4D. thx
  5. Retreadfed: Correct, FAR 33.211 was followed, however the statement of facts in agreement and disagreement 33.211 (a)(4)(iii) is poorly supported and vague...effectively saying the first article failed and the KO agrees it failed, without going into detail.
  6. The bases are Improper and delayed Government inspection of the first article, Government failure to use a proper, contractually binding authority to terminate the contract., Government failure to enter into discussion or negotiate a termination settlement in good faith. and a long standing failure to cooperate to correct known problems with the first article process.... Are any of these defensible?? What would you do?
  7. #5 No, the contractor was 18 months late to submit a first article, but the Government still evaluated it in full. #6 No: The Government's notice of disapproval was slightly untimely (56 days late). Other than this, yes to the question. #7 No: The Govt requested a new first article, but the Contractor refused, asking Engineers from the local COR (DCMA) to see the minor defects and report back to the KO. DCMA refused and the original KO took no action for a year+. #8 No: Govt found failing to provide a first article that meets contract requirements AND BY NOT MAKING DELIVERY UNDER THE CONTRACT #9 No: FAR 52.249-8 was used, but (a)(1)(i) was omitted. FYI, the Govt took one year to decide to T4D after receiving Contractor's request for reevaluation. #11 No: Govt heard nothing back regarding this contract, but had extensive contact with the KO 30+ times in that time frame regarding improper Govt first article testing results, often verified as improper by results sent over from independent laboratories. #12 No: Contractor did file a claim 18+ months later. and to Retreadfed: Yes, the proper method of termination was performed in a contract mod (good one!).
  8. Here is some more on the subject... 1. There is a thing called the Christian Doctrine, apparently including T4D in all contracts,even if not cited explicitly, to my understanding. 2. It may or may not apply to this case, because it may only permit T4D for a failure to make progress and not a failure to supply an acceptable first article....need a big brain to advise more on this one. 3. The Branch Chief stepped in and issued a statement that claims submitted by the contractor more than 12 months after the Government's T4D are untimely and will not be evaluated for a final decision. Some questions are: is the Branch Chief correct? Did she set up the agency for trouble by stepping in? Can a contractor still file am actionable claim despite the T4D against them or is the issue technically already adjudicated?
  9. No, T4D clause was missing...T4C was included, though
  10. I have a new question...is a T for D defective if the following are present on a FFP, unilateral PO for non-commercial supplies, if: 1. FAR 52.249-8 (T4D)is missing from the PO (contract??), 2. A first article is required prior to production, it is supplied, but it is (likely wrongfully) rejected for a minor/easily correctable defect, 3. A T4D is issued referencing 52.249-8 based on a failure to supply acceptable first article and failure to make delivery. 4. The Contractor fails to take action for 16 months, then wants to file a claim I have my own interpretation, but want to see what superior minds might think....
  11. You have all made very good points. The rest of the story is: 1. The contract states delivery of a partial quantity is acceptable. 2. The item functioned properly with the defective rivet. The Government QAR improperly rejected the rivet on a technicality, stating it was Government surplus, when, in fact, it was commercial excess production, sometimes referred to as surplus, but not meeting the FAR definition of surplus. The contractor screamed about the error to the deaf ears of the technical folks. 3. The Government went on to make a new award at double the price and a year and a half for delivery.
  12. Joel, To clarify, 7ea of the same item were ordered, all due on the same date. 4ea were presented two weeks after the final due date. The remaining 3 were never presented for inspection. Final paperwork review is the process a Government QAR (COR) performs to ensure the item meets contract requirements. This usually requires a check of all inspection paperwork and material certifications. When this is complete, the contractor is authorized to deliver parts to the Government. In this case the Government inspector didn't like the paperwork for a rivt on the item and the contractor said new rivets could be installed in two weeks. Vern, Do you know where Don got the info below...it looks like case law or something from a DAU textbook...I'd like to qualify this Thanks guys. Quote
  13. Don, could you answer these two questions: 1. If a FFP purchase order for (non-commercial) supplies was issued, the contractor completed substantial performance of the first half the order on the delivery date, except final paperwork review of the half-order was underway. The Government COR came in to source inspect the completed half of the order two weeks later, but rejected the half for minor paperwork issues. The contractor stated these issues were correctable within two weeks, what do you do? The purchase order (contract?) was withdrawn one week after Government rejection of the paperwork. Is the Government on the hook, in your opinion? 2.Do you have a link to the definition of substantial performance in the law of contracts? seems useful... Thx!
  14. If you terminate a contract for Default and fail to notify the SBA offices in accordance with FAR 48 CFR 49.402-3 (e)(4), is this a big deal or not? Is it worse if this occurred 10 times over the course of two years? What are they supposed to do with this info, anyway?
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