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Don Mansfield

Effect of Acceptance

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I'm having trouble finding a case that I'm sure I once read. Either a court or board held that acceptance acknowledged that supplies/services conformed to contract quality requirements, but not necessarily that the contractor complied with the terms and conditions of the contract. If I recall correctly, a contractor's items were deemed noncompliant with either the Buy American Act or the Trade Agreements Act after acceptance. The court or board held that the Government's acceptance of the items was not an acknowledgement that the contractor complied with the Buy American or Trade Agreements clause of the contract.

Please help me find it. You will make my day.

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Don, try the Acceptance Chapter in Administration of Government Contracts. Gotta run to pick up my grandson from school but I recall the topic being covered there.

Haven't gotten back to your Blog. However if this question is prompted by discussions there, regardless of the ramifications of not being legally bound by accepting something that the government didn't personally determine to be non-conforming, there are issues of professionalism and what is reasonably expected of contract administration officials.

Also, the requirements writers ought to have some idea of whether or not it is possible to purchase compliant materials or supplies. Just sayin...

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Administration refers to a very old NASA BCA case, but I remember something more recent.

Yes, this question was prompted by the discussions in my blog post. I was preparing for the argument that determining BAA compliance is part of inspection. We can continue our discussion there.

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Southern Pipe & Supply Co, NASABCA No 570-7, 72-2 BCA ¶ 9512, NASABCA No 570-7, 73-2 BCA ¶ 10,118

That will be a quarter please.

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I remember seeing legal decisions concerning the legal effect of government approval of construction submittals that were later determined not to meet the contract requirements. Those decisions generally placed liability upon the contractor. And the government guide specs for contractor design and construction submittals use similar exculpatory language.

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Postscript: Don, can you or your legal office Sheparardize the above cited BCA Decision to check its relevance to subsequent Decisions? I noticed in another thread where you have tagged onto your legal office's Westlaw or LexisNexis subscription. Just a suggestion.

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Don, I don't know if your search specifically relates to BAA/TAA post acceptance issues or to post acceptance issues on services and supply contracts. However, there are references to construction, supply and manufacturing contracts on pages 9-10 in the Appeal of Vertex Construction and Engineering, ASBCA no. 58988 at http://www.asbca.mil/Decisions/2014/58988%20Vertex%20Construction%20&%20Engineering%2011.7.14.pdf

The instant Appeal and referenced Decisions did not concern BAA or TAA. However, I think they all relate to some arguments of situations where the government wasn't liable even though they didn't verify contractor compliance. The Board mentioned the referenced Decisions but ruled on other grounds than the Defense raised.

Those cases concerned revocation of acceptance in instances where the government failed to inspect compliance and later discovered non-conformance with contract requirements. The Vertex Decision is dated 7 November 2014. It concerned fraudulent representations during contract formation. The terminated contractor tried to defend on the basis that the government failed to verify the license qualifications of the licensed electrician that the contractor included in its proposal prior to award. The government defense, in part referred to cases where the contractor was not excused by lack of government inspection or failure to verify compliance.

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Thanks, joel. The case I thought I read had to do with noncompliance with either the BAA or the TAA. I haven't run that to the ground yet. If I find it I'll post it here.

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There is a thread...

http://www.wifcon.com/discussion/index.php?/topic/2223-is-this-a-violation/

NASA BCA cases are non-binding for other agencies, correct?

Edit: See March 2007 BRIEFING PAPERS : "DOMESTIC SPECIALTY METALS RESTRICTIONS: A BUMPER CROP OF FRESH BERRY ISSUES" by David A. Churchill and Kathy C. Weinberg

http://jenner.com/system/assets/publications/2142/original/BP_march_07-3_box.pdf?1315576738

Edit: See March 2001 BRIEFING PAPERS: "EXCEPTIONS TO FINAL ACCEPTANCE: LATENT DEFECTS, FRAUD & GROSS MISTAKES AMOUNTING TO FRAUD" By Patricia A. Meagher and Scott M. Rennie

http://www.rjo.com/PDF/exceptionstofinalacceptance.pdf

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Thanks, joel. I must have been thinking of the recent thread you posted--not a recent case.

Good description of the issue in the Briefing Paper. Thanks for the link.

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