Guestsmith83

Ji20874, Please excuse the possible errors in my response. I am typing from my phone. Your two recent posts have been quite enlightening. They coincided with my initial interpretation and gut instinct. I became somewhat hesitant as there were other perspectives that did not remain consistent with my initial train of thought. In the future I understand that I should explain my position without doubting my thought process. In terms of my contemplated decision, the approval with reservation is more to communicate I would proceed with caution when processing the PP. In reality, this recommendation will be explicitly elaborated through issuance of a MFR detailing the concerns I have noted. I do intended to quote "If the contractor has failed to comply with any material requirement of the contract [that's (c)(1)], you should recommend immediate suspension of progress payments. If contract performance is endangered by the contractor's failure to make progress [that's (c)(2)(i)], you should recommend immediate suspension ofprogress payments." I apologize if my reservation comment was confusing. It was my way to simplify developing a comprehensive memo with my recommendations. My current office is rather nervous about suspending or reducing the PP. That is a different matter which I will set aside for another day. However, I feel it is necessary to document any action as we all know the importance of recording these decisions. My reservation comment was more to briefly describe that the ACO may want to revisit reviewing FAR 52.232-16. I did have a further question. It was pointed out that FAR 52.232-16 is actionable but DFARS 252.232-7002 is not. I was also going to support my position through citing "232.503-6 Suspension or reduction of payments." This section states contractor noncompliance is sufficient to suspend or reduce PP. As the reviewer, I analyzed both the FAR and DFARS and assumed both clauses are actionable if applicable. Is that poor practice? As mentioned, these responses have been extremely helpful. Thank you all for taking time out of your day to respond.

Good afternoon, I am a contract administrator and part of my function is to provide a recommendation to the ACO. I acknowledge that the ACO is the individual who will provide the final determination as they are the warrant holder. Due to FAR 32, my responsibilities is to ensure progress payment surveillance is conducted in a manner that protects the government's best interests. To breakdown the scenario, the contractor issued a memorandum detailing their decision to stop work. The period of performance has lapsed by approximately three months. Emails have been sent out by myself and the Industrial specialist requesting as to whether conversation occurred between the PCO and the vendor. The vendor identified they did not seek out a formal/informal resolution. From what I have previously observed, the PCO is expected to review information presented by the contractor and determine whether the delinquency is excusable. The contractor has not specified a timeline as to when they will deliver. It is all approximations. The government did not issue a Stop Work Order. The contractor stated they have not requested an extended delivery date. The PCO has not acknowledged the receipt of the memorandum the contractor developed. The PCO has not stated this was deemed as an excusable delay. There are some disconnects with communication which further complicates the situation. I have no doubt everyone has experienced this type of issue. DFARS 252.232-7002 is in the contract and is applicable to this situation. The PP in question is an FMS request. However, FAR 52.232-16 is also within the contract. FAR 52.249 – 14 (Excusable Delays) states: (c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the government under the termination clause of this contract. As mentioned previously, I am not the PCO or ACO. As a result, I respect their role and support their final decision. My review is to provide a recommendation. I understand that it does not need to be considered. As a result, I want to ensure I am passing on information so the final determination can be made. I am very appreciative of the feedback I have received. Due to research, feedback, etc,., my decision is that I am recommending the PP be paid with reservation. What I mean by this is that I believe it is necessary for the contractor/PCO to come full circle to decide how the delinquency is resolved. I am not the PCO but I feel there should be some talk as to whether consideration is warranted. If this occurs this will change the value of the contract which requires a reevaluation of the PP surveillance plan. My primary concern is that the contractor has provided an aloof answer as to their attempts to rectify the delinquency. I believe it is important for this information to be passed along to ensure noncompliance does not consistently occur. Thank you all as it has been most helpful.

Good afternoon, My apologies for being overly vague in my original post. I hope this post will highlight what I am seeking. The PP is for FMS funds and as a result, DFARS 252.232-7002 is incorporated. There has been a stop work order notice submitted as well as notification of delayed delivery. I have reached out to the PCO to gain additional information as to whether they have concerns with the delinquency. Unfortunately, I have received no response. The contractor confirmed they did not obtain feedback from the PCO as to whether these delays were considered to be excusable. The contractor also stated they did not seek out a request for a Mod to push back the delivery date of the supply. My question stems from FAR 32.503-2 - Supervision of Progress Payments (Be advised I will underline the language that stands out to me) (a) The extent of progress payments supervision, by prepayment review or periodic review, should vary inversely with the contractor’s experience, performance record, reliability, quality of management, and financial strength, and with the adequacy of the contractor’s accounting system and controls. Supervision shall be of a kind and degree sufficient to provide timely knowledge of the need for, and timely opportunity for, any actions necessary to protect Government interests. The contractor has not provided a definitive timeline as to when the commodity will be delivered in accordance with the contract. In my humble opinion, this is not protecting the Government's interests. Furthermore, the contractor is displaying poor performance and lack of reliability by not seeking a solution in conjunction with the PCO. FAR 32.503-6 -- Suspension or Reduction of Payments reads as follows: (f) Fair value of undelivered work. Progress payments must be commensurate with the fair value of work accomplished in accordance with contract requirements. The contracting officer must adjust progress payments when necessary to ensure that the fair value of undelivered work equals or exceeds the amount of unliquidated progress payments. On loss contracts, the application of a loss ratio as provided at paragraph (g) of this subsection constitutes this adjustment. Furthermore, DFARs 242.7503 specifies that suspension or reduction of payments may take place as a result of: (b) Contractor noncompliance Based on these statements above, I am under the assumption I have the ability to recommend either suspension or a reduction of payment to the ACO. My question is this, is my interpretation consistent with how others are reviewing progress payments? As we all know, the FAR and DFARs can be very vague as it mentions language such as "contractor noncompliance." I believe not receiving approval for an excusable delay or a mod to extend the delivery date is considered noncompliance. Am I making a valid argument? My path forward is to not recommend processing the PP. Ultimately I understand the ACO will make the final determination. I wanted to ensure I am not missing languge in either the FAR or DFARS that specifically addresses progress payments and delinquency involving CLINs. If the ACO decides to approve the PP, should I suggest a MFR? That is my thought process but feedback I have received is that an email is sufficient. Thank you for your time with reviewing my question.

Hello, I am trying to locate a clear regulation that provides instructions as to how to proceed with progress payments when the contractor is delinquent on delivery. I reviewed FAR 32 and there is some vague language. I found an informal document that reads as follows: I googled this language but it is not pulling up the reference/regulation. Any input is greatly appreciated.