T for D procedure

[lbrob1]

Regarding Vern's questions,

1. Yes, the contractor filed a claim for many things including T4D, breach of contract and failure to use discretion in the termination and first article rejection.

2. To my knowledge a T4D is automatically a COFD on a Government claim.

3. The terminating mod did include the FAR 2.101 language.

4. The terminating mod explicitly stated it contained the CO's final decision.

5. I suppose the contractor could have submitted a claim for the value of its first article, had it made one, prior to T4D (if I understand your question correctly).

6. I suspect the Branch Chief statement could signal an impasse, constituting a final decision. More importantly the case of John A. Johnson v. US, 132 Ct. Cl. 645 (1955) suggests that when a branch chief steps in, they are doing so improperly, perhaps in bad faith.

7. In this case the Branch Chief is a supervising CO and has stepped in to issue final decisions in prior cases in the past.

8. In this case the claim is a deemed denial for Government non responsiveness

9. Th last question is similar to my original question...which I'm still unsure about...my guess is the 6 year statute of limitations allows the claim to proceed and not the 12 month appeal limit on T4D.

thx

[Guest Vern Edwards]

lbrob1:

In response:

2. A T4D is not "automatically" a CO's final decision. It is a government claim.

That being the case, there is no need for the contractor to submit a claim to the CO about the T4D. Instead, it can appeal directly to a board of contract appeals within 90 days after the T4D or to the Court of Federal Claims within a year. See Malone v. U.S., 849 F.2d 1441, June 16, 1988; U.S. Coating Specialties & Supplies, LLC, ASBCA 58245, April 9, 2015; and Connectec Co., ASBCA 57546, 11-2 BCA ¶ 37,797. You might want to read Connectec, because you said in Post #6 that the purchase order did not contain a default clause. That might be significant in your case.

If, on the other hand, the contractor does not want to contest the T4D, but only wants some relief with respect to the first article, then it must submit a claim to the CO and it has six years to do so from the date of accrual.

3. There is no language in FAR 2.101 for a terminating mod to include with respect to a final decision.

8. "The claim" (meaning the contractor's claim?) is a deemed denial? That doesn't make sense. Government inaction would be a deemed denial.

Your story in this thread has unfolded somewhat disjointedly. Even in your last post we seem to have learned some things that I don't think you mentioned before. Wifconers should be careful about responding to you.

[Weno2]

Since the acquisition was a non-commercial purchase order (PO), FAR clause 52.213-4 -- "Terms and Conditions -- Simplified Acquisitions Other Than Commercial Items" should be in the PO.

And if it is, why would FAR 52.249-8, TFD clause be in the PO, when FAR clause 52.213-4 (g), "Termination for Cause" would be applicable?

[lbrob1]

Mr. Edwards,

I was under the impression this was a forum to openly discuss relevant federal contracting issues and the nature of these issues is often confusing, debatable and unclear. While I certainly respect your lengthy experience and work history, please note the following:

1. I still believe a T4D may be ALSO be a contracting officer's final decision. See the suggested terminating language in Air Force Exhibit #3 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB8QFjAA&url=http%3A%2F%2Fwww.acq.osd.mil%2Fdpap%2Fccap%2Fcc%2Fjcchb%2FFiles%2FTopical%2FTerminations%2Fguides%2Fafmc%2520t4d%2520guide.docx&ei=ccSIVdCJDsjboAS656LoDg&usg=AFQjCNGdi7rHdSLQESXqq_LSCBKRKMwzvg&sig2=J8_uu9D9ac4E0Yu5GN9mdw

The 2014 JAG Contracting Officer's Handbook, page 22-19 Sect V (A) also seems to support this...however I'm somewhat unclear and am looking for discussion. The Connectee case you listed is interesting, but differs somewhat because it has an order withdrawal. In the case I mentioned this was a formal T4D action...probably undertaken mistakenly.

2. You mistakenly listed FAR 32.211 in post #25; it should be 33.211; I started to look into this problem, came back to it later and mistakenly put in a FAR from question 1.

3. I'm not sure what doesn't make sense. The Government terminated for default and the contractor filed a contractor claim mote than a year later. The Govt never made a final decision, creating a deemed denial of the claim.

4. Regarding Weno2's question, I'm not sure why the preaward folks didn't use your 52.213-4 method, but also note that FAR 52.249-8 was not in the contract, but was (mistakenly??) used as the terminating basis.

This is a complex case with a lot of interesting twists and turns, perhaps even a case of first review. I probably should have made several different new posts instead of a single one, for clarity.

Thanks for your interest.

[Guest Vern Edwards]

lbrob1:

1. I agree that a T4D can be a CO's final decision. What I said was that it is not "automatically" a final decision. I was disagreeing with your use of "automatically" in Post #26. I was also pointing out that a T4D is a government claim, in response to which the contractor can go to the board or the Court of Federal Claims without first submitting a claim and getting a CO's final decision.

You started out by asking if the T4D was defective. Maybe that doesn't matter if the T4D, defective or not, final decision or not, was a government claim. Maybe the T4D started the countdown to the appeal deadline. Maybe you should ask whether failing to appeal the T4D to the board or the COFC within the appeal time limits (90 days to a board; one year to the COFC) would deny the board or the court jurisdiction over the issue. If so, maybe the claim submitted 18 months later does not require a CO response. Maybe that's what the branch chief was talking about when he said the contractor couldn't file a claim after more than a year.

2. Sorry about the typo.

3. What doesn't make sense is your statement "the claim is a deemed denial for Government non responsiveness[.]" You said: "the claim" [subject] "is a deemed denial" [predicate]. "Deemed denial" refers to a CO's failure to provide a final decision within the specified time limits would be a deemed denial. A claim is not a deemed denial. A CO's failure to respond to a claim with a final decision is a deemed denial. Maybe what you meant to say was the claim is deemed to have been denied because the CO didn't respond.

I apologize if I have missed something you already said. This thread has strung out over a long series of posts, most of which sought to understand your facts, and I don't care to go over all of them carefully in order to get a coherent narrative. Sometimes confusion and lack of clarity are not inherent in the situation.

This case is not inherently or especially confusing. The key facts are:

There was a contract.

The government notified the contractor that it had terminated the contract for default.

The contractor submitted a "claim" 18 months later, challenging the termination.

The Government did not respond to the "claim."

Are those true statements? If so, then I think the question is: Can the contractor appeal the Government's deemed denial of its claim? Corollary questions might be: If not, did the Government have to respond to the contractor's "claim" filed 18 months after the T4D? Can the contractor still submit claims about other issues?

See Guardian Angels Medical Service Dogs v. U.S., 118 Fed. Cl. 87, August 29, 2014. (That decision has been appealed to the Federal Circuit.) See also Educators Associates, Inc. v. U.S., 41 Fed.Cl. 811, September 23, 1998.