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Good Afternoon:

My question relates to the issuance of a Cure Notice, in accordance FAR 49.607(a). The Cure Notice would be relevant to a signed Purchase Order (by both parties), regarding a late delivery. The Awardee is not the manufacturer, and expressed that the commercial item is delinquent due to supply chain shortages (at the manufacturer level) and COVID-19. 

If I issue a Cure Notice, to correct performance (delivery)-------->15 days later No Delivery------>Show Cause Issued--->10 days later no delivery---->Termination By Default issued. 

Isn't a Pandemic an excusable delay? So this would not apply?

Also, the Awardee must take ownership. That said, the Purchase Order executed with Vendor X, not the manufacturer, therefore, in that scenario, the above delinquency notice would be applicable, with no pandemic?

Thank you!!

 

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10 minutes ago, GABE said:

Isn't a Pandemic an excusable delay?

Does this help answer your questions.  Contract clause (as applicable)

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23 minutes ago, Don Mansfield said:

That's for the contractor to argue when they get the show cause. 

I agree with Don's comment above if the contracting officer doesn't have knowledge of the excusable delay.  If the contractor has requested a time extension, I worry that a cure notice or show cause notice without a resolution of (or acknowlegment of) the time extension request would be interpreted as a denial of the request.  See generally, Nash & Cibinic, Administration of Government Contracts (3d Ed. 1995), at 452 (or, if you have a more recent edition, look under Changes chapter, Constructive Changes, Types of Constructive Changes, Acceleration).  If there's a pending request for a time extension and you don't think the contractor has demonstrated excusable delay, I encourage you to include in any notice that the Government needs additional facts to make a decision on the request for a time extension. 

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Cure notice?  No, if the contractor's delivery is already late.  Show cause notice is appropriate in such a case.

The contracting officer almost certainly does not have knowledge of an excusable delay.  The pandemic does not excuse EVERY late delivery.  So it seems like a show cause notice (not a cure notice) is appropriate, and if the contractor makes an argument for escusable delay, the contracting officer can then consider that argument n its merits.

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