We did in fact re-procure a backup system anticipating the potential for needing to terminate the contract in order to have a seamless transition. Not having a seamless transition would subject us to significant liability from other parties. However, you are correct. No guarantee that we will recover that cost. At this point, we are just happy to be moving on. We will make as strong a case as possible.

1 hour ago, rios0311 said:

We did in fact re-procure a backup system anticipating the potential for needing to terminate the contract in order to have a seamless transition. Not having a seamless transition would subject us to significant liability from other parties. However, you are correct. No guarantee that we will recover that cost. At this point, we are just happy to be moving on. We will make as strong a case as possible.

If you made partial payments but they defaulted/breached the contract by providing no final product or usable service , I think that they may well owe the government for those payments made but not delivered.  

“all rights and remedies provided by law” refers to both statutory and common law redress.

11 minutes ago, ji20874 said:

“all rights and remedies provided by law” refers to both statutory and common law redress.

Yep

11 hours ago, ji20874 said:

all rights and remedies provided by law” refers to both statutory and common law redress.

Is there a statute that allows the government to claim reprocurement costs?  Also, what common law principle allows for the recovery of reprocurement costs?

2 hours ago, Retreadfed said:

Is there a statute that allows the government to claim reprocurement costs?  Also, what common law principle allows for the recovery of reprocurement costs?

That’s for the lawyers to work out with the KO.

KO’s shouldn’t be working in a vacuum. *

I was referring to pursuit of payments made for services or products not delivered due to failure to perform the contract. That would seem to amount to a breach of contract. 

Hope the KO isn’t teleworking...

Since my question was directed at rios, I wish he would chime in as to what theory he would use to recover reprocurement costs as he brought it up.

Joel, I'm not teleworking! Retreadfed, I will leave it at " all rights and remedies provided by law", which would include case law. Unfortunately, I did not select the most anonymous user name when I set up my account years ago, so I prefer not to go into much detail at this point, since anyone can be reading this and could use anything here to strengthen their own arguments.

We are confident in our position, but uncertain whether we will prevail in obtaining reprocurement costs. To clarify, we will only pursue reprocurement costs associated with the portion of the new contract attributable only to the implementation portion, which we would not have had to pay again if we remained with the current provider. However, the cost of the new solution will actually cost less on a yearly basis once it is in production (operational) mode, so we are aware that this will factor into any decision to award costs.

Again, I apologize if I don't stay on top of the conversation, but I am at work and constantly running to meetings. However, I am checking in every now and then. If a case gets published, I will update the thread (if the thread hasn't been locked) with a link to the decision.

54 minutes ago, Retreadfed said:

Since my question was directed at rios, I wish he would chime in as to what theory he would use to recover reprocurement costs as he brought it up.

Retreadfed, FAR 12.403(c)(2) states:

The Government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace. The Government’s preferred remedy will be to acquire similar items from another contractor and to charge the defaulted contractor with any excess reprocurement costs together with any incidental or consequential damages incurred because of the termination.

Seems too simple. Is this what you were looking for, or did I misunderstand your question?

42 minutes ago, rios0311 said:

I will update the thread (if the thread hasn't been locked) with a link to the decision.

As an alternative you can always post it here.....

http://www.wifcon.com/discussion/index.php?/forum/46-what-happened/

 

 

Great! Will do. Thanks for the link.

34 minutes ago, rios0311 said:

The Government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace

What marketplace, the marketplace of government contracting or the commercial marketplace?  52.212-4 says remedies available at law.  Thus, the question is what remedies are available at law for buyer to exercise against a contractor that is terminated for cause.  Therefore, my question is simply is what legal remedy allows a buyer to recover reprocurement costs from a seller that has been terminated for cause. 

4 minutes ago, Retreadfed said:

What marketplace, the marketplace of government contracting or the commercial marketplace?  52.212-4 says remedies available at law.  Thus, the question is what remedies are available at law for buyer to exercise against a contractor that is terminated for cause.  Therefore, my question is simply is what legal remedy allows a buyer to recover reprocurement costs from a seller that has been terminated for cause. 

Breach of contract damages.

14 minutes ago, Don Mansfield said:

Breach of contract damages.

Don, can you expand on this?  I think I know where you are going, but I want to make sure.

52 minutes ago, Retreadfed said:

What marketplace, the marketplace of government contracting or the commercial marketplace?

So, Article 2 of the Uniform Commercial Code is often looked to as representing federal common law for contracts for supplies, so the concept of "cover" under UCC 2-712 would include excess reprocurement costs.

46 minutes ago, Retreadfed said:

Don, can you expand on this?  I think I know where you are going, but I want to make sure.

As I'm sure you know, a breach of contract entitles the nonbreaching party to compensatory damages. Such damages could include excess reprocurement costs.

53 minutes ago, Don Mansfield said:

Such damages could include excess reprocurement costs.

I would add that the purpose of breach damages is to put the non-breaching party in as good a position as it would have been had the contract been completed as written.  Therefore, if the non-breaching party incurred additional costs to have the contract completed, it could recover those costs.