Time of key personnel is diverted from income-producing work to litigation-related tasks such as responding to interrogatories and requests for production of documents, depositions, and meetings with lawyers. Even where the defense is initially applicable, the contract may later be terminated for default for the unfinished work if the contractor does not diligently complete the punch list items. See also Bailey Specialized Bldgs. In addition to setting forth applicable defenses, you should think about offering consideration in your response to a cure notice or show cause notice. Excusable delay or excuse of performance for defective specifications is based on the implied warranty of Government-furnished specifications. In her notice of appeal, Appellant argued primarily that, notwithstanding her move, the contract had been performed — either by her driver, by one of two other available substitutes, or by her — without problem and that, considering her circumstances, she considered the termination to be unfair.
Contractor is one of two domestic manufacturers of light sabers. Sometimes a picture is worth a thousand words. No such statutory requirement existed with regard to the contract at issue here. Finally, we note that the contract had less than a year remaining in its four-year term, and Respondent has not shown that termination for default was in the interest of the Postal Service or that the contracting officer adequately considered other alternatives before deciding to terminate the contract. However, this ground for default termination has been judicially limited.
As stated by the board in Monitor Plastics Co. In other words, the Government should not have issued the cure notice. Your response should present all applicable defenses. If your performance is late, think about offering the Government consideration for a time extension—especially if there are grounds for default termination of the contract and your defenses are weak. The Government requested Contractor to investigate why the first articles failed to pass performance testing.
Your failure to present any excuses within this time may be considered as an admission that none exist. Any assistance given to you on this contract or any acceptance by the Government of delinquent goods or services will be solely for the purpose of mitigating damages, and it is not the intention of the Government to condone any delinquency or to waive any rights the Government has under the contract. The failure of a contractor to satisfy contract performance requirements alone is insufficient to support a termination for default. Many contractors have several contracts with the same Government buying activity. The Federal Circuit has stated the economic waste rule as follows: 112 We recognize that the government generally has the right to insist on performance in strict compliance with the contract specifications and may require a contractor to correct nonconforming work. Problems sometimes arise during contract performance that the Government and the contractor are unable to resolve amicably through negotiation.
Government contracting personnel are more inclined to give the benefit of the doubt to contractors they like and with whom they have a good working relationship. For these reasons, termination of the contract for default is insupportable and not in the best interest of the Government. As a result, Contractor is entitled to an additional 30 days to deliver. Court of Appeals for the Federal Circuit held a default termination under such circumstances to be an abuse of discretion and therefore invalid. In this instance, Appellant's breach was not a breach of a requirement related to the accomplishment of the contract work itself, and there is no evidence in the record that Appellant's move had any effect on contract performance. As discussed above, the Government bears a heavy burden of proof if it terminates a contract for default for failure to make progress or to prosecute the work.
Where default termination is threatened concerning a contract item that is almost ready for delivery or involves facts where a visual aid would enhance your explanation, you should consider including a photograph, computer-generated representation, or other visual aid with your response. A default termination would be legally insupportable because there is no failure to make progress that endangers performance for Contractor to cure. Further, there is no evidence of any deficiencies in her performance, either before or after her move, and there is no evidence that she failed to give the contract the necessary supervision. Human relations are an important aspect of Government contracting. Your response to a show cause notice should present all applicable defenses. Solicitations often contain delivery, performance, or completion schedules a contractor knows it cannot meet.
Treat cure notices and show cause notices seriously and submit a timely responseto the Government. . The record shows that the Government is aware that Contractor has continued to incur costs and perform during the waiver period. Contractors also sometimes propose a new schedule they cannot meet on an existing contract to please the customer or to avoid a termination for default. Once a default termination is issued, Government personnel rally to justify their position and refuse to consider arguments they might have accepted at the cure notice or show cause notice stage.
The town to which she moved was not within the area in which she was required to live in order to perform the contract. Brochstein Administrative Judge Vice Chairman I concur: James A. Accordingly, the appeal is sustained, and the termination is converted to one for the convenience of the Postal Service. The doctrine is based on the principle that it would be inequitable to permit a default termination based on incomplete punch list items where the building or construction site is substantially complete. A small business contractor may also be able to recover litigation expenses and its attorney fees under the Equal Access to Justice Act. The contractor also faces the prospect of being forced to return progress payments, of being liable to the Government for any excess costs of reprocurement, and of having to resort to litigation to resolve the dispute. You should never, however, agree to or propose a contract schedule you cannot meet.
The latest revision replaces the defective component with one manufactured by Vendor X. The notice alleges there has been a failure to make progress so as to endanger performance. You should think about offering consideration to avoid a default termination, especially where the Government appears to have valid grounds for terminating the contract and you have few if any defenses. A termination of a contract for default can have disastrous consequences for the contractor. Respondent argues further that Appellant has failed to present any evidence of excusable causes for the breach, and that the termination should be upheld.