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Hello All,

KTR failed to disclose subcontractor use when it submitted its proposal. KTR received BPA award for services based on its own organic capabilities. KO intends to terminate BPA. What processes/procedures are required to terminate a BPA? Since a BPA is not a contract, there is no established jurisdiction

under the Contract Disputes Act (CDA). Zhengxing v. U.S., 71 Fed. Cl. 732, 739 (2006); Julian Freeman, ASBCA No. 46675, 94-3 BCA at 135,906. So you can just terminate correct? If NO then what procedures have you used (i.e. cure, show cause, etc. ) Also, are there any cases/regulations on point highlighting this bait and switch scenario?

Regards

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I assume the government either has not made any purchases under the BPA or has received full performance under those purchases. If so, from a contractual perspective, what would be the point in "terminating"? This sounds analogous to an ID/IQ contract where the government has already ordered the minimum and has no intention of placing any additional orders.

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Dear Jacques and Other Readers,

Gov has placed BPA orders w/ KTR. Gov received notice KTR will use subcontractor a few months after KTR received BPA award. Gov has an ongoing need to use BPA. Gov may have awarded BPA to different KTR had it known KTR was using subs. Gov intends to resolicit BPA. Since Gov has a continuous need for services offered in BPA is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?

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Dear Jacques and Other Readers,

Gov has placed BPA orders w/ KTR. Gov received notice KTR will use subcontractor a few months after KTR received BPA award. Gov has an ongoing need to use BPA. Gov may have awarded BPA to different KTR had it known KTR was using subs. Gov intends to resolicit BPA. Since Gov has a continuous need for services offered in BPA is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?

Why do you have to provide notice of anything to the company? This isn't a requirements contract, right? Why can't you just not use the BPA anymore and go acquire another vehicle...?

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Guest Vern Edwards
Is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?

How can any of us answer that question? None of us has seen the BPA. How can we be sure that there is not some term in the BPA requiring the Government to give notice that no further orders will be placed, or that there is not some term saying that the Government does not have to give notice?

And what kind of BPA is it? A BPA under FAR Subpart 8.4 or a BPA under FAR Subpart 13.5? What if anything does it say about termination "or whatever"? What if anything does it say about notice? If the BPA was issued under a GSA MAS contract, what if anything does the contract say? If the both the BPA and the contract are silent, what if anything does the FAR or the agency FAR supplement say? If all are silent, then what makes sense and is fair to both parties?

It is clear that many people who post questions here, and some who give answers, do not understand that what shall and shall not be done, must and must not be done, should and should not be done, and may and may not be done under a contract or agreement DEPENDS ON THE LANGUAGE OF THE CONTRACT OR AGREEMENT!

THINK, THINK!! THINK!!! WHAT DOES THE CONTRACT OR AGREEMENT SAY?.

Doesn't anybody out there know even the most basic contracting fundamentals any more? It's maddening!

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How can any of us answer that question? None of us has seen the BPA. How can we be sure that there is not some term in the BPA requiring the Government to give notice that no further orders will be placed, or that there is not some term saying that the Government does not have to give notice?

And what kind of BPA is it? A BPA under FAR Subpart 8.4 or a BPA under FAR Subpart 13.5? What if anything does it say about termination "or whatever"? What if anything does it say about notice? If the BPA was issued under a GSA MAS contract, what if anything does the contract say? If the both the BPA and the contract are silent, what if anything does the FAR or the agency FAR supplement say? If all are silent, then what makes sense and is fair to both parties?

It is clear that many people who post questions here, and some who give answers, do not understand that what shall and shall not be done, must and must not be done, should and should not be done, and may and may not be done under a contract or agreement DEPENDS ON THE LANGUAGE OF THE CONTRACT OR AGREEMENT!

THINK, THINK!! THINK!!! WHAT DOES THE CONTRACT OR AGREEMENT SAY?.

Doesn't anybody out there know even the most basic contracting fundamentals any more? It's maddening!

If you are referring to my post, I didn't answer anything. I asked two questions, which OBVIOUSLY require that Charles READ the contract and explain why or if the Government has to notify the contractor that it doesn't intend to use the BPA any more.

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How can any of us answer that question? None of us has seen the BPA. How can we be sure that there is not some term in the BPA requiring the Government to give notice that no further orders will be placed, or that there is not some term saying that the Government does not have to give notice?

And what kind of BPA is it? A BPA under FAR Subpart 8.4 or a BPA under FAR Subpart 13.5? What if anything does it say about termination "or whatever"? What if anything does it say about notice? If the BPA was issued under a GSA MAS contract, what if anything does the contract say? If the both the BPA and the contract are silent, what if anything does the FAR or the agency FAR supplement say? If all are silent, then what makes sense and is fair to both parties?

It is clear that many people who post questions here, and some who give answers, do not understand that what shall and shall not be done, must and must not be done, should and should not be done, and may and may not be done under a contract or agreement DEPENDS ON THE LANGUAGE OF THE CONTRACT OR AGREEMENT!

THINK, THINK!! THINK!!! WHAT DOES THE CONTRACT OR AGREEMENT SAY?.

Doesn't anybody out there know even the most basic contracting fundamentals any more? It's maddening!

If you are referring to my post, I didn't answer anything. I asked two questions, which OBVIOUSLY require that Charles READ the contract and explain why or if the Government has to notify the contractor that it doesn't intend to use the BPA any more.

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Guest Vern Edwards

I was not referring to what you wrote. I hadn't read what you wrote when I posted. I still have not. And I don't care what you said or think you said.

You're so agitated that you needlessly quoted my entire post and then posted the same thing twice. Relax and enjoy your weekend.

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  • 4 months later...

Vern it is readily apparent your neurotic need to make a ?whatever point? highlights how full of yourself you really are. My intent for this post was too illicit some responses to help me better understand what is a BPA and whether there were some concepts applicable to the BPA whether or not it was included in the agreement?s terms (i.e. Christian Doctrine). I can read the contract or agreement and I am familiar with contract law, agreements, and understandings. However, federal procurement law is different from contract law. For example, federal contracts do not contain two way indemnification agreements, state choice of law provisions, recitals, severability clauses, and so on. I admire your subject matter knowledge, but some of your responses have not been always been perfect, some wrong, so get over yourself. It?s not all about you.

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Hello All,

KTR failed to disclose subcontractor use when it submitted its proposal. KTR received BPA award for services based on its own organic capabilities. KO intends to terminate BPA. Regards

I'm curious as to whether or not the KTR was REQUIRED to disclose its intent to use subcontractos(s) in its proposal. I mean, that's a pretty common and accepted practice and sometimes even encouraged.

Did the solicitation require it to do so? If so, and the KTR misled the government in its proposal, then there may be some legal implications under the False Statements Act with respect to the KTR's proposal and under the False Claims Act with respect to work already paid for.

If not, then I'm curious as to why this would now be such a critical issue as to require no more work be given to the awardee. If this was not an issue at the time of solicitation and evaluation, and now it has become one, then the contractor may have a legitimate concern if work it reasonably expected to receive IAW the terms of the solicitation are now given to another KTR. I'd be a little angry, myself, in those circumstances.

Hope you can clarify.

Thanks

H2H

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Guest Vern Edwards

Charles:

Dude! :lol: Where have you been since last August, for goodness sake? Anyway, wow, neurotic. I had to look that up. :D

Here's your question: "Since Gov has a continuous need for services offered in BPA is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?"

Here's your answer: No statute requires any such notice (or whatever) for a BPA. FAR does not require any such notice. I found no FAR supplement that requires any such notice. A check of the GSA FSS website did not reveal any requirement for any such notice. I found no board or court decision that required any such notice. So unless the BPA itself requires such a notice, I'd say no notice is required. However, laws, regulations, and BPA terms notwithstanding, a well-developed sense of common decency might suggest to some people that you give the contractor a heads up.

Easy question.

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