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Vern Edwards

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  1. @rios0311I do not believe it is essential for the government to expressly reserve its rights. It rights are its rights. The key is for no representative of the government to say or do anything that justifies the contractor in believing that the government has waived its rights and to rely on that belief to its detriment. I have recommended some readings, including Cibinic pages 843-857, in which the authors discuss waiver in detail. The materials include case citations. I suggest that you read it.
  2. I'm not sure words need to be put in writing, but I think it's wise to do so. Are you saying you want someone to provide you with a court or board citation to a specific case in which the government used those word0?
  3. @rios0311I would not use that terminology—"under protest," but the answer is yes. Read what follows. What you have described in that scenario is your contractor telling you that it cannot or will not continue to perform and is offering a settlement. You have not asked what you should do or what I would do in such a case, but I'm going to tell you anyway. The notice to you may constitute anticipatory repudiation (anticipatory breach) of the contract. See Cibinic, et al., Administration of Government Contracts, 5th ed., pp. 835-842. Ask your legal office for confirmation. If you have not read Cibinic, Chapter 10, Default Termination, Damages, and Liquidated Damages, which I suspect you have not or you would not have asked your question, read it as soon as possible. You want to make sure that your actions and communications from this point on, including internal actions and communications, do not constitute a waiver of the government's right to terminate for default. See Cibinic, pp. 843-849. You must document all actions and communications from this point on, including internal actions and communications, as if your life depended on it. Every-single-action-and-communication. Open a special file. From this point on, be extremely cautious about email and oral communication. As CO, I would respond to the contractor in writing, USPS certified mail, return receipt requested, and instruct them to confirm in writing that they are unable or unwilling to perform. I would tell them that if they cannot or will not perform they must propose a course of action in writing and a settlement. I would demand a written response from them by a specific date. I would tell them that pending receipt of their response the government will exercise "reasonable forbearance"—see Cibinic, pp. 848-849— while I investigate the facts, consider their response, consult my superiors and lawyers, and determine what course of action to take. I would tell them that the government reserves its right to terminate the contract for default and take any other legal action required to protect its interests in accordance with the contract terms. 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. I would, of course, coordinate with my boss and legal before doing or saying anything. But I would move out promptly.
  4. @rios0311Give us a specific scenario. Give us a specific fact situation. I will not waste my time engaging in a wild goose chase and pointless quarrels over yet another vague scenario from yet another OP who dribbles out information. It's time we all stop putting up with such inquiries. The phrase "the government reserved the right" appears in hundreds of board of contract appeals decisions, all different.
  5. Countries without an extradition treaty with U.S. (according to the Internet): Afghanistan, Algeria, Andorra, Angola, Armenia, Bahrain, Bangladesh, Belarus, Bosnia and Herzegovina, Brunei, Burkina Faso, Burma, Burundi, Cambodia, Cameroon, Cape Verde, the Central African Republic, Chad, Mainland China, Comoros, Congo (Kinshasa), Congo (Brazzaville), Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Indonesia, Ivory Coast, Kazakhstan, Kosovo, Kuwait, Laos, Lebanon, Libya, Macedonia, Madagascar, Maldives, Mali, Marshall Islands, Mauritania, Micronesia, Moldova, Mongolia, Montenegro, Morocco, Mozambique, Namibia, Nepal, Niger, Oman, Qatar, Russia, Rwanda, Samoa, São Tomé & Príncipe, Saudi Arabia, Senegal, Serbia, Somalia, Sudan, Syria, Togo, Tunisia, Uganda, Ukraine, United Arab Emirates, Uzbekistan, Vanuatu, Vatican, Vietnam and Yemen. Morocco might be nice.
  6. That is not true. There is nothing "precise" in that vocabulary, as shown by hundreds of bid protest decisions. The distinction between clarification and discussion has been the issue in many bid protests, and has been addressed in the contracting literature for more than 20 years. See: "Clarifications vs. Discussions: The Obscure Distinction, by Professors Cibinic and Nash, The Nash & Cibinic Report (June 2000) and "Postscript X: Clarifications vs. Discussions," The Nash & Cibinic Report (October 2020), in which Prof. Nash wrote:
  7. Each option year should have been assigned its own CLIN at the time of solicitation. You shouldn't have to update them. Using the same CLIN for the base year and an option year is inconsistent with FAR 4.1003.
  8. If CaptJax comes back again, I hope he follows Joel's example of breaking his entries into short paragraphs rather than writing lengthy blocks of text, which can be difficult to read online.
  9. @govt2310G&A is G&A. There are no "types." G&A is a single pool of indirect costs. Allocating G&A to different cost categories does not create different "types" or kinds of G&A. "Types" is not the appropriate word. Better wording would be separate allocations of G&A. I find the notion of different "types" of G&A to be confusing. The word "type" appears in six places in the decision you cited, but it is not applied to G&A. The decision does not make reference to different "types" of G&A. But have it your way.
  10. FAR 52.219-9 defines subcontract as follows: FAR 44.101 defines subcontract as follows: The key question is whether the parties who must interpret those sentences interpret them to mean the same thing or different things, and I don't know the answer to that question. The most obvious difference is between "agreement" and "contract." Every contract is an agreement, but not every agreement is a contract. Agreement is arguably more inclusive. I don't think there is a meaningful difference between "calling for supplies or services required for performance of the contract or subcontract" and "to furnish supplies or services for performance of a prime contract or a subcontract." But I can't say how the clauses are interpreted by interested parties.
  11. The definition of subcontract in FAR Part 44 does not apply to FAR Part 19 or to any provision or clause prescribed in FAR Part 19. See FAR 2.101(a) and (b).
  12. Acquisition.gov has archives going back to 1996. There may be archives going back further on the internet. Heinonline has archives going back to the beginning in the CFR pamphlet/pdf format.
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