FAR Termination for Default Government Contracts
Nationwide Help With Contract Termination For Cause, Notice to Cure Default & Termination for Default Appeals
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When the government issues you a cure notice or show cause letter, you can bet your last dollar that a termination for default posture is already on the way. Most government contractors mistakenly believe that the default process can be handled through being diplomatic. The government will terminate your contract for cause in a blink of an eye. You must be prepared to aggressively handle the situation. This is where our contract termination lawyers can help.
- Help from the Cure to Notice Phase, Through Show Cause Letter Stage and All the Way Through Appeals
- Nationwide Help From Government Contracts Lawyers That Understand The Rules.
- Get a detailed legal assessment of the events leading up to the termination or letter of default on contract including notice to cure the default
- Get an assessment of whether the government breached the contract or contributed to the facts leading up to the termination.
- Get help if you are at the cure notice or show cause stages for allegations that the contractor fails to meet the various contract clauses.
- Minimize the chance of paying reprocurement cost of services similar to those terminated
- If you have been already issued the termination letter, we help you to assess the merits for a potential appeal.
Termination for Default Government Contracts Attorney & T4D Appellate Services
Watson & Associates’ T4D law firm provides a detailed review of the facts leading up to FAR termination for default of government contractors for both services contracts and federal construction projects, assesses whether the contracting officer has violated government procurement law or has abused his or her discretion when terminating a government contract. We then prepare the written notice of termination appeal to the respective players.
As federal contract termination cause lawyers, we provide:
- Assessment of cure notices and show cause notice decisions
- FAR Cure notices and related documents for construction terminations or contracts acquiring supplies and services
- Construction contract termination rights and minimize the changes of being liable to the government
- Service contracts dispute resolution and whether you are liable to the government for damages
- Failure to perform contractor default cases – unlawful termination
- Corps of Engineers construction termination of contract default legal representation
- Legal analysis of government fault outside of the contractor’s responsibility
- Legal review for the government’s breach vs default when issued a contract termination letter
- Review of specific facts that create legal defenses for the contractor such as constructive change matters
- Detailed legal analysis and preparation of an appeal to the Boards of Contract Appeals and COFC
- A thorough assessment of the relevant facts leading to the notice of termination of the contract
- Potential for negotiations in contract termination for default clause disputes.
- Aggressive termination of contract appeals and litigation services.
- We handle construction termination of contract and service contract T4D cases.
- We provide help with converting default decisions into a termination for convenience.
To Speak in Confidence With a Government Contract Termination Attorney About Appealing Your Case, Call 1-866-601-5518 for a FREE Initial Consultation.
Although you may have a legitimate reason for contract delays or inability to perform according to the contract terms, you still have to follow the sometimes-difficult processes following your letter of default on contract and rules involved with federal procurement.
The underlying hope for any federal government contractor does not ever have to receive a notice to cure default, a FAR show cause notice or ultimately contract defaults and terminations (also referred to as a termination for cause. If you are a federal contractor and you have even received a cure notice, you should be seeking legal counsel immediately. Why is this? Because such a notice sets the path for a default.
- Preparation for termination of government contracts should begin when a cure notice is issued by the agency
- Waiting until an actual termination letter is issued too late and makes it more difficult for an appeals attorney to prepare a solid case for the appellate court.
Compared to a termination for convenience, if the federal government issues your company a default termination letter (also referred to as FAR default or T4D under FAR 49), without sound legal representation for dispute resolution, you may end up owing the government thousands of dollars or giving up your legal rights.
Although the courts hold the government to a high standard when termination a government contract for convenience, when the evidence is looked by an experienced government contracts attorney, critical agency mistakes by the contracting officer can be uncovered.
- Get a detailed legal review of your case
- Receive an assessment of the next steps and strength of filing an appeal
- Look at the possibility of getting a contract default converted to a termination for convenience
- Invest in proactive legal evaluation before actually getting into costly litigation on appeal
- Nationwide legal representation for federal contractors at competitive rates.
T4D Help For Federal Contractors in All States
We also provide direct legal counsel to CEOs and corporate executives nationwide about the next steps. We have earned a reputation for gaining favorable results for small businesses and large DOD contractors through vigorous legal representation.
What Must the Government Show When Issuing a FAR Termination?
When the contracting officer issues a contract termination for cause under FAR 52.249-8 or FAR 49.4, and alleges that you have failed to meet your contractual obligation under the contract cancellation clause, it must defend any appeal filed by the contractor.
In a T4D case, if the contract was terminated before the actual completion date, the agency must show that use of the government contract Termination for Default Clause was proper and correct. If not, the agency could be found to have issued an unlawful termination. See Case Where Contractors’ Mistake in Bid Pricing Causes Government to Terminate for Default and Court Gives no Mercy.
What is Termination For Default of Government Contractors? Terminated Meaning
The Federal Acquisition Regulations T4D or FAR termination for default clause, which is secretly embedded into your contract, allows the government to terminate the contract for cause. This means that when you do not follow the terms of the contract, are late performing or even gives the contracting officer a reasonable belief that your company will not perform the contract as agreed (anticipatory repudiation), the agency can issue a default letter.
- Be mindful that the government can terminate the contract entirely or in part. Very seldom would you see a termination for cause in part but it does happen from time to time.
FAR Termination for Default Process
When the government contemplates terminating the contract for default, the process usually starts with a cure notice letter. This is a warning to contractors that the agency is contemplating issuing a termination.
Notice to cure default: Typically, the contracting officer will give you ten days respond. This your chance to convince the agency that you can perform the work on time. However, it is important to include your legal defenses or reasons why there were delays. You must include this information to start protecting your rights.
When responding to a cure notice, you cannot be late. This would give the contracting officer grounds to terminate for default. You will not win on appeal if this happens. Best thing to do is to request an extension. Remember that unless the extension is granted, you still have to respond in on time.
Show cause: the other document to watch out for after issuance of a cure notice letter, is the FAR show cause notice. Here, the government is essentially taking one last step to give you the chance to convince the contracting officer why he or she should not terminate the contract for cause.
Termination For Cause Clause Tips – Protect Your Rights for Appeal
Many government contractors or their attorneys simply focus on the facts at hand when handling T4D cases. However, while this is admirable, experienced termination for default clause attorneys also keep track of preservation of rights for appeal.
You want to make sure that all of the critical issues are addressed at the contracting officer level – or least brought up. Waiting for the appeal process is simply too late.
The goals of effectively handling a T4D case is to facilitate a result where the government wins and you win as a federal contractor. If your approach is to simply push back with no eye towards negotiations or give and take, then it could be an uphill battle. This is where Watson & Associates, contract default appeal attorneys can help.
Breach vs default: What must the contracting officer consider before issuing a government contract termination for default action?
FAR (49.402-3(f)) contract termination clause shows a list of things that the contracting officer must consider before terminating a contract for default. They include:
- The terms of the contract and applicable laws and regulations – FAR 52.249 8.
- The specific failure of the contractor and the excuses for the failure.
- The availability of the supplies or services from other sources.
- The urgency of the need for the supplies or services and the period of time required to obtain them from other sources, as compared with the time delivery could be obtained from the delinquent contractor.
- The effect of a termination of contract on the ability of the contractor to liquidate guaranteed loans, progress payments, or advance payments.
- Any other pertinent facts and circumstances.
Can a Contractor Terminate a Government Contract for Default?
As a practical matter, no: There has to be a very rare situation to even support such an action. Generally, the FAR termination for cause clauses allow for the government to terminate the contract. However, a contractor has sufficient evidence to show some level of constructive termination, then there could be a possibility. However, facts leading to changes in contract terms etc must still follow the requirements of the Contract Disputes Act. A contractor cannot simply abandon the contract.
Appealing Your Termination for Default Case?
Under the Disputes Clause, you can appeal the Contracting Officer’s decision to either the respective Board of Contract Appeals or the U.S. Court of Federal Claims. A common problem seen is that companies are not always aware of the deadlines for filing termination appeals. You should always engage with your legal counsel immediately after receiving a T4D letter.
- You want to always start a legal analysis of whether you have a meritorious case for appeal.
- Have you already preserved your rights to appeal at the contracting officer level (this is why the cure notice response and FAR show cause notice is so important.)
T4D Appeal Deadline
Generally, when you receive the contracting officer’s final decision asserting a government claim or FAR termination for default, you, the contractor, has ninety days to appeal to the appropriate board of contract appeals, or twelve months to file your appeal in the US Court of Federal Claims.
If you do not file your appeal in time, then the contracting officer’s decision becomes final.
- Filing an appeal at the boards of contract appeals may be less expensive to begin with but deadlines are shorter.
- If you miss the 90-day filing deadline, you can still file at the Court of Federal Claims.
Courts cannot waive the timeline to appealing a default decision. There are exceptions to this general rule. However, courts very seldom rule in favor of the exception.
- The situation is when the decision wholly fails to advise the contractor of its appeal rights. See Outback Firefighting, Inc. v. Department of Agriculture, CBCA 6078, slip op. at 3 (Nov. 21, 2018) (citing Pathman Construction Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir. 1987), and George Ledford Construction, Inc., VABCA 6630, et al., 02-1 BCA ¶ 31,662, at 156,442 (2001) (Ledford)).
- But State of Florida, Department of Insurance v. United States, 81 F.3d 1093, 1098 (Fed. Cir. 1996) (holding that “the [total] absence of notification of appeal rights in [a] termination notice was harmless error”); American Renovation & Construction Co., ASBCA 54039, 03-2 BCA ¶ 32,296, at 159,804 (same). The second arises when a notice of appeal rights is provided but is defective.
What Happens If the Government Defaults?
This is usually a question that many contractors handle effectively. The Contract Disputes Act allows for contractors to also act when if the government defaults. The problem is that the contractor cannot simply argue that the government has breached the contract or defaulted for the first time on appeal. This would be a suicide mission.
- You should bring claims for government defaults at the contracting officer level through a viable contractor claim.
- Regardless of how tempting it is to wait until the appeal to then argue government default or breach for the first time, do not do it.
What is an Effective Appeal to a Default Termination Case?
An effective appeal to a government contract termination for cause should always start with assessing whether the government contributed to the facts leading up to the default of the contract. In addition, your attorney should be assessing whether or not you have any legal defenses to the contract termination. You should have already addressed this either at the cure notice or show cause phase.
- Note that parties not in privity usually do not have rights to a contract termination challenge
Where Can You Appeal the Contracting Officer’s Termination for Cause?
Appealing a FAR termination for default in a federal government contract allows you the option to file your appeal in various forums.
- File your termination appeal of the contracting officer’s final decision at the respective Board of Contract Appeals (ASBCA or CBCA)
- Filing the case at the Court of Federal Claims
- When filing at either court, you must be sure that you establish why the court has jurisdiction to hear your appeal. Many cases are being dismissed because of this mistake.
Call our FAR Termination for Default Government Contracts T4D Appeal Lawyers
If you have been issued a service contract termination letter, construction termination for cause or need help , call our termination for default government contracts T4D attorneys at 1-866-601-5518 for a Free Initial Consultation.
Get a FREE CONSULTATION
- The difference between termination for convenience and default.
- Understanding the Termination Default Clause
- Responding to cure notices
- Costs associated with termination of contract for cause T4Ds
- Termination of contract appeals and being proactive
- Grounds for termination of contract.
- Breach of the Implied Covenant of Good Faith and Fair Dealing
- T4D Process and Appeals
- Learn how appeal courts look at government contractor termination for cause cases