NONPERFORMANCE AND DISPUTES

1. NONPERFORMANCE AND DISPUTES

2. COR RESPONSIBLITY Review contract requirements • Confirm non-performance by: Results of monitoring and surveillance Customer complaints Invoices, timesheets, reports

3. EXCUSABLE Acts of God Severe weather Strikes Neither the Govt. nor contractor are at fault. This is the only delay that the CO can use to do a time extension to the contract without receiving consideration from the contractor. FAR 33

4. NON EXCUSABLE The contractor cannot justify non-performance as being beyond his control. May lead to penalties, possible termination, or other equitable adjustments. FAR 33

5. COMMINGLED OR CONCURRENT FAR 33 The Government and the contractor are both at fault for events causing non-performance. CO can not grant a time extension without consideration and the contractor can not assess damages unless there are measurable consequences.

6. Constructive Suspensions • Delays in Availability of Site • Delays in Issuance of Notice to Proceed • Delay because of Interference with Contractors work • Government Delays of Approvals • Delay in Providing funding • Delay in Inspection of the Work • Delay in Issuance of Changes

7. GOVERNMENT BREACH OF CONTRACT • The Government has a “duty to cooperate” with its contractors • Sometimes expressed as “duty not to hinder” • Contractor may be awarded costs and anticipatory profits in the event of a breach

8. FAR 33 EXCUSABLE DELAYS CONTRACTOR IS PROTECTED FROM: • Termination for default • Liquidated damages • Actual damages • Excess costs of • reprocurement or • contract completion

9. WARNING SIGNS PROBLEMS ORDERING SUPPLIES FROM SUBCONTRACTORS AND SUPPLIERS UNRETURNED PHONE CALLS AND EMAIL FAILURE TO SUBMIT REQUIRED REPORTS DURING CONTRACT PERFORMANCE INCONSISTENT CONTRACTOR RESOURCES BEING USED ONSITE Page 7-6/7

10. Performance schedules are not being met. Frequent turnover of personnel. Complaints from suppliers that they are not being paid. Safety violations onsite. Repeated request for Government property or support. ______________________ Complaints from suppliers not being Paid Large numbers of contractor requests for changes and modifications. Page 7-6/7

11. Notify the CO of potential problems Issue contract discrepancy report (CDR) COR ROLE Require written response Transmit as soon as possible Keep CO in the loop

12. Progressive Response to Non-Performance • Contract Discrepancy Report (CDR) • Formal Letter • Cure Notice • Show Cause Notice • Termination for Cause (commercial) or Termination for Default (non-commercial) • Termination for Convenience may be used instead of Termination for Cause if cause is co-mingled or if we have insufficient documentation • Courts can change the character of termination

13. DOCUMENT NON-PERFORMANCE FACTS AND RELEVANT INFO List individuals with knowledge. Description of problem. History of performance. Support of the delay being excusable. Contractor’s progress to date. Estimate of additional time. Potential alternatives & solutions. • Pros & cons of each alternative: Affect on price, quality, & quantity

14. DISPUTE FORMED UNDER A CONTRACT WHEN A CONTROVERSY DEVELOPS AS TO THE INTERPRETATION OF PAYMENT OR MONEY DUE TO EITHER PARTY, TIME OR CONTRACT TERMS.

15. Contract Disputes Act 1978 Contains standard procedures to be used by all executive agencies for asserting and resolving disputes and claims by or against contractors arising under, or relating to a contract subject to the Act. FAR 33.202

16. CLAIM FAR 33.206,7,9 A written demand or written assertion by one of the contracting parties seeking as a matter of right payment of money in a sum requiring adjustment or interpretation of the contract terms, or other relief arisingfrom or relating to a contract.

17. Contracting Officer’s Final Decision RESOLVING CLAIMS FAR 33.211 Once a claim has been filed with the contracting officer the Contracting officer has 60 days after receipt of the claim to issue a contracting officer’s final decision.

18. If the contractor disagrees with the Contracting Officer’s Final Decision they can appeal to: FAR 33.211 The U.S Court of Federal Claims within 12 months of the Contracting Officers Final Decision The Armed Services Board of Contract Appeals within 90 days of the Contracting Officers Final Decision

19. Contractor disagrees with either the ASBCA or the U.S. Court of Federal Claims they can then appeal to: FAR 33.211 The U.S. Court of Appeals for the Federal Circuit Or The U.S. Supreme Court

20. WARNING SIGNS FOR CLAIMS Failure to meet performance deadlines Repeated safety violations Repeated incidents of poor quality work Complaints from site workers Prolonged delays Persistent complaints regarding Govt. employees Complaints from subcontractors

21. GOVERNMENT ACTION WARNING SIGNS: Personnel exceed their authority. COR must be careful not to bring about a change that could result in a claim. Government caused the delays. Failure on the part of the Govt. to respond in a timely manner.

22. CERTIFICATION FAR 33.207 A WRITTEN DEMAND BY A CONTRACTOR SEEKING PAYMENT OF MONEY EXCEEDING $100,000 IS NOT A CLAIM UNDER THE CDA UNTIL CERTIFIED IN WRITING. THE CONTRACTOR IS RESPONSIBLE FOR GATHERING ALL SUPPORTING DOCUMENTS WITHOUT ASSISTANCE FROM THE COR.

23. Alternative Disputes Resolution Any procedure or combination of procedures voluntarily used to resolve issues in controversy without the need to resort to litigation. FAR 33.201

24. COR SUPPORT IN ADR PROVIDE SURVEILLANCE DOCUMENTATION AND REPORTS SUPPORTING THE GOVT.’S POSITION

25. ADVANTAGES OF ADR Reduced settlement time Reduced costs Privacy Expertise & independence of a neutral advisor