Mickdu Posted April 29, 2009 Report Share Posted April 29, 2009 If a contractor is telling me that the reason they failed a FAT is because the government didn't follow the contract and used more stringent testing what can I do? My team that witnessed the testing is on another assignment and I won't be able to confirm anything for two weeks or more. I was thinking of issuing a stop-order. Link to comment Share on other sites More sharing options...
formerfed Posted April 29, 2009 Report Share Posted April 29, 2009 Before doing anything like issusing a stop-work order, why not send an email to your team and arrange a conference call? You could get thier input on the contractor's assertion in a day. Then you and the team can decide next steps. Link to comment Share on other sites More sharing options...
Don Mansfield Posted April 29, 2009 Report Share Posted April 29, 2009 Amazing. That is an actual case from CON 218. Are you doing a CON 218 assignment or is this a real situation? Link to comment Share on other sites More sharing options...
Mickdu Posted April 29, 2009 Author Report Share Posted April 29, 2009 Amazing. That is an actual case from CON 218. Are you doing a CON 218 assignment or is this a real situation? This is a real situation. Only this isn't a FAT in the sense that it is taking place in the beginning of production. This FAT is taking place because the contractor had vandalism from the inside and we wanted to run another "abbreviated" FAT to make sure all the specs were correct. The contractor is stating that my team did far more then an abbreviated FAT and looked into aspects that weren't even covered during the initial FAT at the beginning of the contract. Link to comment Share on other sites More sharing options...
Don Mansfield Posted April 29, 2009 Report Share Posted April 29, 2009 Is the contractor waiting on your decision before proceeding? If so, what work is there to stop? Link to comment Share on other sites More sharing options...
Mickdu Posted April 29, 2009 Author Report Share Posted April 29, 2009 Is the contractor waiting on your decision before proceeding? If so, what work is there to stop? They are waiting for my decision. They are building canisters and without passing this test the Government cannot accept the cans. I have never been in this situation before and I don't know if it is better for me to tell them to stop work or take the chance that they could say that I am delaying the work by not responding. Link to comment Share on other sites More sharing options...
joel hoffman Posted April 30, 2009 Report Share Posted April 30, 2009 They are waiting for my decision. They are building canisters and without passing this test the Government cannot accept the cans. I have never been in this situation before and I don't know if it is better for me to tell them to stop work or take the chance that they could say that I am delaying the work by not responding. Hey, Mike. I think I understand you to say that the government team has determined that either the manufacturing specs or the product doesn't meet the contract requirements but that the contractor is asserting that the test standards applied exceed the contract QA standards , industry standards or something like that. So, you must do something to avoid having the contractor manufacture non-complying canisters. Is that correct? I remember reading in "Administration of Government Contracts" that there are cases where higher testing that exceeded the standards in the contract was considered a constructive change. However, if the government wont accept the canisters until they pass the test requirements, it might be more prudent to tell the contractor - rather than a stop order - to take corrective action and then get the canister(s) retested?? Link to comment Share on other sites More sharing options...
Don Mansfield Posted April 30, 2009 Report Share Posted April 30, 2009 They are waiting for my decision. They are building canisters and without passing this test the Government cannot accept the cans. I have never been in this situation before and I don't know if it is better for me to tell them to stop work or take the chance that they could say that I am delaying the work by not responding. Well, a stop-work order wouldn't make sense because there is no work to stop. Also, if you issue a stop-work order, then the contractor would be entitled to costs plus profit. If you do nothing, the contractor may request an equitable adjustment pursuant to the Government Delay of Work clause (assuming that clause is in the contract). However, they would only be entitled to costs (no profit). Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted May 1, 2009 Report Share Posted May 1, 2009 If a contractor is telling me that the reason they failed a FAT is because the government didn't follow the contract and used more stringent testing what can I do? You use the term "first article test." Are you talking about a first article test pursuant to FAR Subpart 9.3? Does the contract include one of the first article testing clauses, either FAR 52.209-3 or 52.209-4? If so, did the CO and other government personnel comply with FAR 9.307? Link to comment Share on other sites More sharing options...
Mickdu Posted May 4, 2009 Author Report Share Posted May 4, 2009 You use the term "first article test." Are you talking about a first article test pursuant to FAR Subpart 9.3? Does the contract include one of the first article testing clauses, either FAR 52.209-3 or 52.209-4? If so, did the CO and other government personnel comply with FAR 9.307? Yes they did comply to the best of my knowledge. I am trying to see if there is something I need to prepair for on the chance that the Government personnel did in fact use tighter restirctions then called for in the contract. Link to comment Share on other sites More sharing options...
Don Mansfield Posted May 5, 2009 Report Share Posted May 5, 2009 Yes they did comply to the best of my knowledge. I am trying to see if there is something I need to prepair for on the chance that the Government personnel did in fact use tighter restirctions then called for in the contract. If the Government used a more stringent test than what was required by the contract, then the contractor could submit a claim for any increased costs under the constructive change theory. Link to comment Share on other sites More sharing options...
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