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(This is a spin off of another of my post and fact finding, but thought it better to keep this issue in separate post)

Background:

Small business contractor was awarded contract for hourly consulting services NTE xx hours

Gov't official (program manager) engaged in nepotism (hired a relative and assigned the relative as project mgr to work with contractor on the project).

Contractor began performing under the contract

The prohibited personnel practice/illegal appointment was discovered a few months later and gov't project manager was terminated from gov't employment.

The gov't project manager was not replaced and the Contractor was not able to complete the project and work the full nte hours specified in the contract.

Is this a breach of contract or a violation of any of the FAR?

Apparently the Contractor has no recourse to collect for hours not worked

Does the Contractor have any recourse under FAR or contract law? or possibly other avenues

Thanks

Jose263

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Guest carl r culham

At least one other fact would help in giving a general response to your questions. What contract type was used - FP, Cost Reimb, Incentive, Indefinite Delivery, Time & Materials, labor hour, etc? . As specific as possilbe as to the variation of one of the types would be helpful.

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At least one other fact would help in giving a general response to your questions. What contract type was used - FP, Cost Reimb, Incentive, Indefinite Delivery, Time & Materials, labor hour, etc? . As specific as possilbe as to the variation of one of the types would be helpful.

Carl - actually, the contract type is unresolved -I'm working on a claim. It was awarded as FFP with a CLIN for nte hrs -

for a full discussion of the contract see http://www.wifcon.com/discussion/index.php...pic=901&hl=

For the purposes of this message, I'll ask as if this is considered a Labor Hour; however, i welcome any response.

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If we assume that hourly consulting services NTE xx hours means a labor hour type contract, i.e. payment by the hour for consulting with/for a government employee who is the manager of a project, and that government employee leaves the government (for whatever reason), one would think that the requirement for somebody to provide consulting services to that person might no longer exist.

To look at it another way... The project manager was not replaced. Did the project that she/he was managing continue? If so, under whose management? And did that successor management person need a consultant?

Would there be an obligation on the part of the government to continue ordering consulting services after the project manager left? Not likely, but it depends on what the contract says, and depends on the paperwork exchanged by the parties. Was there a Stop Work Order? Suspension of Work? Termination for Convenience? Contracts sometimes contain such clauses even when the FAR does not prescribe them, but if they are in there and the parties agree to them, they apply.

To me, the whole thing points to no further government need for the service, no recourse, but it is necessary to carefully examine the contract and the written record. Of course there would be no way to collect for hours not worked.

Edited to add:

This was posted before Jose's clarification, so it does not reflect a contract type of FFP with a CLIN for NTE hours, whatever that is, and does not reflect the previous information in the old wifcon thread. My answer, however, would not change much, and would still stress the importance of RTFC. (Read The Full Contract)

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Guest carl r culham

Oh! Now I remember. Cajun is on the right track but I would offer that the advice that Vern provided in the other thread still applies even with the new twists you have provided.

You have chosen the claim route in part but somewhere in the scheme of things this is probably one that should be acknowledged as a learning experience on what to do better the next time and move on.

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Sorry if I miss-stated the full details of my former post - I was not trying to argue those points but more interested in how COs view such unethical/illegal behavior by gov't officials and whether it is an appropriate issue to raise in the claim, but I suppose it isn't a factor to be considered.

Yes, I am braced for disappointment, but I wouldn't be satisfied if I didn't try.

Thanks,

Jose

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IMO you should raise the issue in your claim and it will be part of the record if your claim is elevated to a board or court. Then let the board or court decide whether it?s relevant. Even if the board or court does not consider it relevant it will put the government in an unfavorable light. And yes, a procurement litigation attorney would be helpful

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