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3 hours ago, FAR-flung 1102 said:

Where did the term "no cost termination" come from?

Try a very close read of FAR part 49 concentrating on no cost settlement and no cost termination.  Hint the later with regard to a close read of the subpart regarding T4D.

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21 hours ago, #1 Fan of Guest Vern Edwards said:

The contractor refuses to perform the work at the agreed upon price. 

Do you have this in writing?  You haven’t T4D’d yet?  Anticipatory repudiation is a perfect reason for a T4D.  You don’t even need a cure notice if the anticipatory repudiation was clearly communicated — if it was wishy-washy, you could do a cure notice based on what you thought might have been an anticipatory repudiation and let the contractor unequivocally confirm or deny.

FAR 49.402-4(c) allows for a no-cost settlement agreement as a procedure in lieu of termination for default in some situations.

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10 hours ago, C Culham said:

 

Try a very close read of FAR part 49 concentrating on no cost settlement and no cost termination.  Hint the later with regard to a close read of the subpart regarding T4D.

Thank you, C Culham!

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19 hours ago, joel hoffman said:

In this case,  it wouldn’t be worth the effort and time to TFD and try to hold the contractor responsible for excess reprocurement costs. You do have some leverage to get the firm to agree to a cancellation or no cost TFC. 

Too small a contract to fool with TFD plus there is no performance bond. 

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I wouldn't make a no-T4D decision until after the contractor to accepted a rescinding of the contract or a no-cost settlement agreement (or simultaneously as part of the agreement of the parties).  If I did make a no-T4D decision too soon, I would be forfeiting my leverage.

If the contracting officer forswears T4D, and the contractor refuses to accept a rescinding of the contract or a no-cost settlement agreement, then what?  T4C and pay the contractor settlement expenses?  Or increase the contract price to make the contractor whole and happy?  I don't like either one of those, based on the facts shared by the original poster.

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3 hours ago, ji20874 said:

Do you have this in writing?  You haven’t T4D’d yet?  Anticipatory repudiation is a perfect reason for a T4D.  You don’t even need a cure notice if the anticipatory repudiation was clearly communicated — if it was wishy-washy, you could do a cure notice based on what you thought might have been an anticipatory repudiation and let the contractor unequivocally confirm or deny.

FAR 49.402-4(c) allows for a no-cost settlement agreement as a procedure in lieu of termination for default in some situations.

The contractor stated over email that they would like to be relieved from the contract or allowed to resubmit a revised quote and provided more money. @ji20874 I agree and believe my contracting officer is on the same page with you about not wanting to forfeit the leverage and first consider our case for T4D in this situation.

19 hours ago, joel hoffman said:

EDITED:  If your office thinks that  obtaining guotes for small construction acquisitions is a simpler process, then  tailor your solicitation so that both industry and the government know what the legal effect is and what to do with a quote. I think that there needs to be a simple process available to clarify or to bargain with industry if necessary to get it right (mutual understanding) before entering into a contract for a small project. 

@joel hoffman I am eager to take lessons learned from this situation as most of my work now is small dollar construction.  Is there an alternative to obtaining quotes for construction projects under the SAT?  Also, I recently read the thread at FAR 13.106-2 - Discussions and am curious if this is what you mean by "simple process available to clarify or to bargain" with industry to come to a mutual understanding before entering into a small project.

...

Thank you all for the references, lessons learned, and possible solutions; it has really helped my research.  I do appreciate your time and thoughts.  As suggested, the discussion will be continued further with legal and the Contracting Officer to develop the best solution for the government.

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23 minutes ago, ji20874 said:

I wouldn't make a no-T4D decision until after the contractor to accepted a rescinding of the contract or a no-cost settlement agreement (or simultaneously as part of the agreement of the parties).  If I did make a no-T4D decision too soon, I would be forfeiting my leverage.

If the contracting officer forswears T4D, and the contractor refuses to accept a rescinding of the contract or a no-cost settlement agreement, then what?  T4C and pay the contractor settlement expenses?  Or increase the contract price to make the contractor whole and happy?  I don't like either one of those, based on the facts shared by the original poster.

Correct, I said that you have leverage...  the contractor signed a contract but can’t perform for that price.  

We don’t know how much extra it would cost to make the contractor whole... but I wouldn’t rule that out if it is in the government’s best interest (e.g., small amount, well under what it would cost to hire another “quoter” and within the IGE or to reprocure. 

No to settlement costs!  Your position should be that the contractor was negligent and didn’t ask questions when his sub was way below his other quotes and after the government supposedly asked him to verify that he could do the project for the amount of his quote. It’s due to the contractor’s negligence.

Unless - you agree that the specs were truly patently ambiguous. 

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14 minutes ago, #1 Fan of Guest Vern Edwards said:

The contractor stated over email that they would like to be relieved from the contract or allowed to resubmit a revised quote and provided more money. @ji20874 I agree and believe my contracting officer is on the same page with you about not wanting to forfeit the leverage and first consider our case for T4D in this situation.

@joel hoffman I am eager to take lessons learned from this situation as most of my work now is small dollar construction.  Is there an alternative to obtaining quotes for construction projects under the SAT?  Also, I recently read the thread at FAR 13.106-2 - Discussions and am curious if this is what you mean by "simple process available to clarify or to bargain" with industry to come to a mutual understanding before entering into a small project.

...

Thank you all for the references, lessons learned, and possible solutions; it has really helped my research.  I do appreciate your time and thoughts.  As suggested, the discussion will be continued further with legal and the Contracting Officer to develop the best solution for the government.

I think that the earlier thread explains pretty well what todo and what not to do.

 

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Friend, you asked if there is an alternative to obtaining quotes for construction contracts under the SAT. I was unaware that “quotes” must be used for construction or other non-commercial acquisitions under the SAT. 

“13.003 (h) In addition to other considerations, contracting officers shall—

(1) Promote competition to the maximum extent practicable (see 13.104);

(2) Establish deadlines for the submission of responses to solicitations that afford suppliers a reasonable opportunity to respond (see 5.203);

(3) Consider all quotations or offers that are timely received. For evaluation of quotations or offers received electronically, see 13.106-2(b)(3); and

(4) Use innovative approaches, to the maximum extent practicable, in awarding contracts using simplified acquisition procedures.“

Also - you mentioned that the SF1442 was used for award.  Apparently your office  used the SF 1442 for the solicitation... it doesn’t mention “quotes”. It refers to offers or bids.

 

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In my view @joel hoffman should have included this paragraph from 13.003 as well...

"(g) Authorized individuals shall make purchases in the simplified manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. For acquisitions not expected to exceed --

(1) The simplified acquisition threshold for other than commercial items, use any appropriate combination of the procedures in Parts 13, 14, 15, 35, or 36, including the use of Standard Form 1442, Solicitation, Offer, and Award (Construction, Alteration, or Repair), for construction contracts (see 36.701(a)); or"

And read 36.701.

If you want firm offers the 1442 is ok but if you really want quotes then use a SF 18 or similar format and submit your offer to award on a 347 and ask the contractor to affirm acceptance.

And a thought of performance bond for construction needs under $150k.  Yes FAR part 28 doesnot encourage but it is unclear whether discreation would allow.  I once worked for an agency that did federal construction on private property.  The agency put in place a class deviation where work over $2000 would be bonded by both performance payment bonds to help ensure the private interests got the work anticipated and helped with potential liens by unpaid suppliers, subs, etc.  against the private property.  Sharing as I for one would consider individual deviations  for performance and payment bonds if the critical nature of the work so dictated.  A decision that is in the best interest of the government from the view that doing so may limit competition as not all mom and pops can get surety bonds and asking for them will generate a higher price for the work.

 

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Thanks, Carl. Great amplification. 

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