Does Christian Doctrine apply to micro-purchase? How T4D a micro-purchase?

[govt2310]

 

For a micro-purchase, the FAR clauses on Termination for Default/Cause/Convenience are not required to be put into the Contract.  What if a situation arises under which the agency needs to terminate?  Is there a way to pull these clauses in using the Christian Doctrine?  I believe there isn't, as Christian Doctrine involves pulling in required FAR clauses.  Since these clauses are not required, they aren't read into the Contract.  Any ideas on how to handle this situation?

[Retreadfed]

20 minutes ago, govt2310 said:

What if a situation arises under which the agency needs to terminate? 

What would be the nature of the termination, e.g., default, convenience, etc.?  Does the documentation for the "contract" contain any language regarding termination?  Finally, do you actually have a contract in place?

[joel hoffman]

What are the seller’ conditions of the sales transaction?  What does the UCC say about  cancelling a transaction? 

[ji20874]

What is the real circumstance?

1. Supplies.
2. Services.
3. Something else?

1. Government made an order, vendor has not delivered/performed, vendor has not charged card.
2. Government made an order, vendor has not delivered/performed, vendor has already charged card.
3. Government made an order, vendor has delivered/performed, vendor has not charged card.
4. Government made an order, vendor has delivered/performed, vendor has already charged card.
5. Something else?

With facts, you might get better answers.

[here_2_help]

I would hazard a guess that, at the micro-purchase threshold, it's simply cheaper not to terminate the contract. I might be wrong (because that would be a common sense position) but that's my guess.

[Neil Roberts]

4 hours ago, govt2310 said:

For a micro-purchase, the FAR clauses on Termination for Default/Cause/Convenience are not required to be put into the Contract. 

What does "the" contract consist of? Documents, clauses, Statement of work, etc. Was there a meeting of the minds, describe what was sold and bought in "the" contract, what went wrong and what is the factual basis for default or termination, or is this just an intellectual exercise? 

[formerfed]

FAR 13.201 (d) says this

Quote

(d)  Micro-purchases do not require provisions or clauses, except as provided at  13.202 and  32.1110. This paragraph takes precedence over any other FAR requirement to the contrary, but does not prohibit the use of any clause.

So if your purchase is silent on clauses the Christian Doctrine wouldn’t apply

[govt2310]

Let's say the agency wants to do a Termination for Convenience.  Assume the vendor's boilerplate agreement is silent as to termination.  Assume the vendor has partially performed the service, and has already been paid in full.  Say the vendor provides training sessions for federal employees, and there are to be 10 sessions, and the vendor has already done 2 of the 10 sessions.

I see that Christian Doctrine doesn't work here.  Well, it sounds like the agency would have to negotiate the termination clauses into the Micro-Purchase Contract then.  Thoughts?

 

[joel hoffman]

Please clarify:

Has the company been paid for 10 training sessions but only provided two sessions?

Certainly, it should only be paid for the training it provided, right?

Or are you saying that it’s been paid for the two training classes it provided and now the government doesn’t want any more? 

If so, is it a performance issue or a change of requirements? 

 

Edited September 29, 2023 by joel hoffman

[ji20874]

So, it is 2 and 2 from my lists above?

Please don't try to negotiate additional clauses into the contract.  Oh, is there a contract?

Maybe you should excuse the contractor from further performance, and close the matter?

[C Culham]

9 hours ago, govt2310 said:

Let's say

My thoughts and research-------

I agree do not attempt a modification to the micro-purchase order.  Otherwise consider -

With regard to the Christian Doctrine remember it is a legal doctrine applied by courts.  Now one might use it as an element to consider in solving a conflict prior to reaching the courts with such conflict but its reference to solving your matter escapes me to some extent unless you are saying you currently have a conflict at hand with regard to the micro-purchase.   This said I did find reference to a Nash Cibinic article that discusses the potential of application of Christian to purchase card buying.   I do not have access to Nash Cibinic but if you do go here it might help - MANDATORY CONTRACT CLAUSES: Can They Be Incorporated By Regulation? Nash & Cibinic Report February 2014 28 No. 2 Nash & Cibinic Rep. NL ¶ 10

My research also suggests that If you have no good cause for the termination (breach of some sort, quality that does not meet even the vendors agreement, etc.) then you would depend on reasonable notice to terminate.   While it depends on what is reasonable notice is it would usually include it being in advance of the intended delivery of the services and acceptable to the circumstances.   

I would add that sometimes commercial entities have what I will call hidden terms and conditions that require you to dig deeper than just the "boilerplate agreement".  For example the  agreement might provide or otherwise references terms and conditions found elsewhere like on a website or the like.  In a close read of the boilerplate make sure there is no such reference and then head down the track of reasonable based on the particular facts of the micro-purchase. 

[formerfed]

1 hour ago, ji20874 said:

So, it is 2 and 2 from my lists above?

Please don't try to negotiate additional clauses into the contract.  Oh, is there a contract?

Maybe you should excuse the contractor from further performance, and close the matter?

I’ve seen this a couple times before with training vendors.  They offer a bundle of courses packaged with a single commercial package price.   It’s often for training on a suite of office software.  The vendor is paid with a purchase card.  Later the agency decides they don’t need all the courses at that time.  The vendor offers a voucher for the remaining courses at no additional cost to be taken over the following year.  The other choice is just excusing the contractor as you said.

[govt2310]

Contractor has already charged the card.  Contractor has already performed 2 of the 10 training sessions.

Yes it is "2 and 2" that ji20874 asked.

C Culham, thanks for the N&C cite, I will try to find it. 

We don't want a voucher, we want our money back.  I'm surprised that there isn't a standard training practice out there, by any agency, that trains purchase card holders to put termination clauses that favor the Government into micro-purchases, just in case things go wrong.  Or is there?

[here_2_help]

The topic title asks "how to T4D a micropurchase." Not T4C. Terminate for Default. That was the premise.

In what way did the vendor fail to perform -- especially if 20% of the acquired services have been delivered?

We're talking about $10,000 here, right?

Let it go, man -- unless you feel the Government has been defrauded in some way. In which case, refer it to the appropriate authorities for action.

[C Culham]

14 minutes ago, here_2_help said:

Let it go, man

I  appreciate the reference to T4D which I overlooked but I am not so sure Let It Go is appropriate counsel.  

@govt2310 The GPC program does have a dispute process which I would suggest you look into.  Some agencies have a policy document that addresses.   If you can not find readily try an internet search "how to dispute a GPC charge" and you might find you agency's policy.   Here are some samples for you (below), some might be dated.  Also based on further research the Nash Cibinic article probably deals with this FAR reference - 32.1108 - which you might want to read but provides little help on process.

 

https://smartpay.gsa.gov/sites/default/files/downloads/14-00138_508LR FINAL .pdf

https://www.acq.osd.mil/asda/dpc/ce/pc/faq.html

https://www.dcma.mil/Portals/31/Documents/Policy/MAN_4301-03V2_20210419.pdf

https://www.acquisition.gov/afars/chapter-3-gpc-electronic-systems

[Don Mansfield]

52 minutes ago, govt2310 said:

Contractor has already charged the card.  Contractor has already performed 2 of the 10 training sessions.

Yes it is "2 and 2" that ji20874 asked.

C Culham, thanks for the N&C cite, I will try to find it. 

We don't want a voucher, we want our money back.  I'm surprised that there isn't a standard training practice out there, by any agency, that trains purchase card holders to put termination clauses that favor the Government into micro-purchases, just in case things go wrong.  Or is there?

The Government is typically accepting the seller's terms in a GCPC purchase. What are the seller's terms for partial cancellation? 

[govt2310]

Sorry: I mean T4D not T4C.

 

C Culham, thanks, I will look into the GPC program dispute process.

 

Don Mansfield, the seller's terms are silent on partial cancellation.  It is very sparse.

 

[ji20874]

How about a credit card chargeback?

[formerfed]

@govt2310 Good advice here.  
 

Quote

Maybe you should excuse the contractor from further performance, and close the matter?

Quote

but I am not so sure Let It Go is appropriate counsel.

You did a micro purchase with no clauses.  The vendors terms are silent on cancellation and sparse as you said.

So the options are talk with the vendor and negotiate something mutually satisfactory or spend hours on research and likely involve senior people in your office as well as legal counsel spending a large amount of administrative time and expense.

[govt2310]

FAR 13.301 Governmentwide commercial purchase card states that agencies are supposed to establish procedures for the use and control of the card.  FAR 13.302-4 Termination or cancellation of purchase orders explains what to do regarding termination.  It states, “If a purchase order that has been accepted in writing by the contractor is to be terminated, the CO shall process the termination in accordance with FAR 12.403 and FAR 52.212-4(l) or (m) for commercial products and commercial services,” or “FAR 49 or FAR 52.213-4 for other than commercial products or commercial services.” 

It seems that FAR 13.302-4 applies to all GPC purchases, including those below the MPT.  What it sounds like is, if the services purchased are commercial, then, even if the amount is below the MPT, if the vendor has accepted in writing "the purchase order," and the CO needs to terminate, then the FAR 52.212-4 applies.  Isn't this saying that FAR 52.212-4 is a "required" clause that, even if it is somehow left out, it will be read into the Contract pursuant to the Christian Doctrine.  

[C Culham]

1 hour ago, govt2310 said:

It seems

I necessarily do not disagree.  Others will.   In the end I suggest one on one with the vendor.   If they are silent dispute the GPC charges and be comfortable that you have done the best you can!

[ji20874]

3 hours ago, govt2310 said:

It seems

Really? Are you dealing with (1) a purchase using the GPC, or (2) a purchase order?  You assert that FAR 13.302-4 applies to both purchases using the GPC and purchase orders, but I don't understand the basis for your assertion.  According to my understanding,

• FAR 13.301 applies to purchase card purchases, and
• FAR 13.302-1, -2, -3, -4, and -5 apply to purchase orders.

 

3 hours ago, govt2310 said:

it will be read into the Contract pursuant to the Christian Doctrine

Isn't the Christian Doctrine is a judicial doctrine or remedy?  Are contracting officers allowed to cite the Christian Doctrine as authority for imposing their will on contractors?  

I think maybe you are pushing too hard.  I agree with Carl for one-on-one with the vendor, and then maybe a credit card chargeback if appropriate.  

[govt2310]

ji20874, I see what you are saying.  My scenario is dealing with a micro-purchase using the GPC, not a "purchase order."  

But still, while FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3." 

So for next time, if we are doing a purchase that is below the MPT, but we do it using a Purchase Order instead of using the GPC, then FAR 13.302-4 applies (it brings in FAR 52.212-4 termination clauses), right?

Note, FAR 2.101 Definitions defines "Purchase order" as Purchase order, when issued by the Government, means an offer by the Government to buy supplies or services, including construction and research and development, upon specified terms and conditions, using simplified acquisition procedures.

 

 

[govt2310]

I'm trying to find Form SF 44.  The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher.  But the form is not there.  What happened to SF 44?

[formerfed]

1 hour ago, govt2310 said:

I'm trying to find Form SF 44.  The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher.  But the form is not there.  What happened to SF 44?

Try this.  https://www.acquisition.gov/far/13.306

The form shows up at the beginning in a pdf link