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I'm in a situation where I need to either do a T4C or do it the cheap way and just do a regular mod and call it a deductive change, I'm leaning towards a T4C but can a T4C be bad for a contractor's record? Can an agency somehow find out that a T4C occurred and somehow use that against the contractor? I know a T4C is not the contractor's fault but can evaluators in the back of their mind think that something bad happend? Is there some database which shows if a contractor had a T4C happen to them? Or if an RFP asks "have you ever had a contract terminated?"

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23 minutes ago, Sam101 said:

Or if an RFP asks "have you ever had a contract terminated?"

What are you specifically asking here? If an RFP requires a response to such a question, then the proposer is supposed to answer it.

23 minutes ago, Sam101 said:

I'm leaning towards a T4C but can a T4C be bad for a contractor's record?

A TFC could affect their “record”, depending upon what was terminated and the reason for the termination.

 

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36 minutes ago, Vern Edwards said:

I cannot see how it could be bad for the contractor's record.

If a contract is terminated for convenience or partially terminated for convenience for performance issues, before or after substantial completion (if applicable), it could affect their performance evaluation.

If a contract is partially terminated for convenience without any reason attributable to the contractor, then I agree with Vern.

Since the OP mentioned the option of a deductive mod, I sense that there may be relatively small amount of remaining work, services, etc. involved here.  Maybe not. It was a general question. 

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For an interesting prospective on T  for C vs. deductive change, see "Deletion of Work—Change or Partial Termination?: Gotta Be This or That," The Nash & Cibinic Report (August, 1988), which begins:

Quote

When work is to be deleted, should a deductive change order be issued, or should the contract be partially terminated for the convenience of the Government? Either method will accomplish the deletion, however, the mechanism chosen can have a significant effect on the amount of the price adjustment. Although it is the Contracting Officer (CO) who makes the initial decision, the contractor is not required to acquiesce if an improper selection is made. Thus, both parties should understand the different pricing rules applicable to each technique and the circumstances which determine the technique to be used.

If poor performance is an issue, that should show up in CPARS, regardless of the method used to delete work.

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Regarding CPARS there is the below standard.   

"...Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency...."  Ref FAR 42.1503 and CPARS itself

If evaluation was not carried out through CPARS or the agency does not allow the contractor rebutting statements then remember the contractor has this opportunity - (emphasis added)

 "...At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond..."  Ref. FAR 13.306(d)(3)

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CPARS ratings are mostly a joke.  Even though it’s four years old, a study showed 97% of companies received satisfactory or better.  The concept of using past performance as a factor in source selection is good, agencies implementation is poor and often meaningless. That’s because it’s typically based on CPARS reports and surveys sent to offeror references. 

A TfC can reflect a performance problem.  All too often agencies contemplate a TfD but when the contractor rebuts and legal counsel gets involved, a lot turn into termination for convenience - government lacks data, government didn’t timely act, government actions/lack of actions contributed, etc.

If I were a CO and saw a TfC, I would find out the reasons why just like I would do any past performance examination.  Call up and talk with responsible government officials, ask questions, gather facts, and make a decision.  Certainly not just rely on a CPARS report.

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On 6/10/2022 at 5:32 AM, Sam101 said:

can evaluators in the back of their mind think that something bad happened?

I don't think that an evaluator acting in good faith should look at a Termination for Convenience on a vendor's record and conclude that the vendor did anything inappropriate. 

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On 6/11/2022 at 4:50 PM, formerfed said:

If I were a CO and saw a TfC, I would find out the reasons why just like I would do any past performance examination.  Call up and talk with responsible government officials, ask questions, gather facts, and make a decision.  Certainly not just rely on a CPARS report.

I agree.

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  • 2 weeks later...

Considering that T4C is not indicative of a breach, I would question the usefulness of investigating it further in regard to past performance.  I think you're asking for trouble by turning a non-prejudicial occurrence into a discriminator.

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It is sometimes used for construction contracts when the project is substantially complete and there are punch list items that the contractor failed to complete or correct…

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