FAR Termination for Default Government Contracts Lawyers
Federal Contractor Termination for Default Appeals & Government Contracts FAR Termination For Cause
HELP FOR FEDERAL CONTRACTORS IN ALL STATES. GET A FREE INITIAL CONSULTATION. CALL TOLL-FREE 1866-601-5518.
When the government issues you a cure notice or show cause letter for contractor failure to perform, you can be sure that a FAR termination for default letter ( or for cause letter) is already on the way or in the cards. Most government contractors mistakenly believe that the default process can be handled through being diplomatic. Unless you craft a compelling response to a default letter, the government will terminate your contract for cause without hesitation. You must be prepared to aggressively handle the situation.
- Avoid common tactics used by the government to terminate contractors
- Protect your company’s ability to generate revenues from federal contracts
- Carefully protect your legal rights when you have one case that can impact another pending case
- Increase your chances of getting a termination by default converted to convenience
When the agency makes a final determination to terminate you for default, we offer:
- Over two decades of litigation experience
- Default appeals to the Armed Services Board of Contract Appeals, Civilian Board of Contract Appeals
- Litigation and appeals at the Court of Federal Claims
- Competitive rates when compared to large law firms
- Aggressive legal representation
- Over 20 years of federal procurement experience
- Get a Detailed Assessment of the Merits Before Appealing a Contract Termination for Cause FAR Case
- Get Nationwide Help From Government Contracts Lawyers That Have Been on the Other Side and Understand The Rules.
GET LEGAL REPRESENTATION FOR COMPETITIVE RATES WHEN COMPARED TO LARGE LAW FIRMS
TERMINATION FOR DEFAULT ATTORNEY 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 appeal to the respective players and aggressively protect your rights.
As contract termination for cause lawyers, we provide:
- Assessment of notice to cure and show cause decisions
- FAR Cure notices and related documents for construction contracts or contracts acquiring supplies and services
- Construction contract 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 – failure in acquiring supplies on time
- Substantial completion defenses if applicable
- Corps of Engineers construction 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 your appeal to the Boards of Contract Appeals and COFC
- A thorough assessment of the relevant facts leading to the notice of default
- Potential for negotiations in contract disputes.
- 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 Attorney About Appealing a T4D Default 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.
- Be aware that the process for challenging a FAR termination for cause vs convenience is substantially different
Preparation for termination of government contracts should begin when a cure notice is issued by the agency. 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 contract 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.
- Waiting until an actual 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 letter (also referred to as FAR Part 49 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 terminating 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 a contract default appeal
- Look at the possibility of getting a contract termination by default converted to one for convenience of the government
- Invest in proactive legal evaluation before actually getting into costly litigation on appeal
- Nationwide legal representation for federal contractors at competitive rates.
FAR CURE NOTICE & T4D HELP FOR FEDERAL CONTRACTORS IN ALL STATES AND OVERSEAS
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 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 decision. See Case Where Contractors’ Mistake in Bid Pricing Causes Government to Terminate for Default and Court Gives no Mercy.
What is Default Termination 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 contract default in part but it does happen from time to time.
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. The 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 DEFAULT CLAUSE TIPS – PROTECTING 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 contract termination attorneys also keep track of preservation of rights for a potential appeal.
- You want to make sure that all of the critical issues are addressed at the contracting officer level – or least brought up. This is especially true when the CO issues a show cause notice for non performance.Waiting for the appeal process is simply too late.
- FAR 33.211(a)(4)(v) and 41 USC 605(a) require that contracting officers’ decisions advise contractors of the specifics of their appeal rights. If the contracting officer’s decision does not do so and you demonstrate that you were actually prejudiced by the missing or erroneous information, the
90-day appeal period to the Board does not begin to run. Decker & Company v. West, 76 F.3d 1573, 1579-80 (Fed. Cir. 1996); Ra-Nav Laboratories, Inc., ASBCA No. 49211, 96-2 BCA ¶ 28,514 at 142,396, recons. denied, 97-1 BCA ¶ 28,650, aff’d, 137 F.3d 1344 Cir. 1998).
The goals of effectively handling a termination for default 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.
COMMON REASONS WHY YOU MAY NOT WIN A TERMINATION FOR DEFAULT APPEAL
- As a federal contractor you fail to complete project by completion date specified in contract. The Court of Federal Claims on appeal found that Government did not waive the default termination because it consistently informed contractor after completion date had passed that the contractor was in default, that the Government was considering terminating for default, and that the Government intended to assess liquidated damages. State Corps v. United States, No. 14-1121 C (Feb. 15, 2019)
- The Court of Federal Claims decided that a partial termination for convenience was improper because agency Contracting Officer testified she did not exercise her own independent judgment in ordering it, but contractor did not establish that the invalid termination for convenience or any other alleged government actions or breaches excused its subsequent failure to perform or invalidated the subsequent default termination). Securiforce International America, LLC v. United States, No. 12-759 C (Apr. 12, 2016)
WHEN CAN A TERMINATION FOR DEFAULT BE CONVERTED TO A TERMINATION FOR CONVENIENCE?
The following are some of the situations where the court may rule in your favor as the appellant seeking to convert a termination for default into a termination for convenience.
- If you refuse to perform further on a government contract due to multiple instances of abuse suffered from government employees, culminating in a false allegation that you had assaulted your government supervisor. Court of Federal Claims found that subsequent termination by default was made in bad faith and is converted to termination for convenience. Brian Bowles v. United States, No. 14-198 (Aug. 8, 2019)( Bad faith and breach of contract).
- Contract agency failed to consider several required factors in FAR 49.402-3(f)(1)-(7) prior to terminating the contract for default and relied instead on analysis of government official who had history of hostility toward contractor and whose own analysis was deficient. On appeal the Court of Federal Claims converted the default termination to termination for convenience. Alutiiq Manufacturing Contractors, LLC v. United States, No. 15-881 C (June 27, 2019)
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 for default 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: When the agency acts due to an allegation, there has to be a very rare situation to even support such an action. Generally, the FAR clauses allows 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 and avoid damages on the amount due for reprocurement of services similar to those terminated
APPEALING A TERMINATION FOR DEFAULT CASE?
Under the Contract 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 under the FAR contract default clause are 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 DEFAULT APPEAL DEADLINE
Generally, when you receive the contracting officer’s final decision asserting a 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 an agency default decision. There are exceptions to this general rule. However, courts very seldom rule in favor of the exception.
- The situation in contract default cases 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 must handle effectively. The Contract Disputes Act and FAR contract clauses 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 Contractor Default 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 decision. You should have already addressed this either at the cure notice or show cause phase. This is a critical part of know how to terminate a government contract that agencies tend to miss.
- Note that parties not in privity usually do not have rights to a legal challenge
Where Can You Appeal the Contracting Officer’s Default Termination ?
Appealing a FAR termination by 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 contract defaults and appeal cases 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.
NATIONWIDE AND OVERSEAS HELP FOR FEDERAL CONTRACTORS
Our government contracts termination for default lawyers provide legal counsel to defense contractors throughout the United States and overseas including Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington DC, West Virginia, Wisconsin, Wyoming, and Virgin Islands. Call our federal contract appeal lawyers today for immediate help. 1-866-601-5518. We help with default contract cases in Dubai, Afghanistan, Iraq contractors and Saudi Arabia when
Cities in which our Washington DC contract termination for default consulting firm and appeal attorneys offer legal counsel and government contract litigation include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; Houston, San Antonio, Wichita Falls, Dallas, TX; Denver, Colorado; Indianapolis, IN; Las Vegas, NV; Los Angeles, CA; Miami, FL; Philadelphia, PA; San Antonio, TX; San Diego, CA; San Francisco, CA; San Jose, CA; Santa Clara, CA; and Tampa, FL.
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CALL OUR TERMINATION FOR DEFAULT GOVERNMENT CONTRACTS APPEAL LAWYERS
If you have been issued a service contract termination letter allegedly because the CO thinks that there may be case when a contractor fails to perform the services for commercial item contracts, a for construction or need immediate help a pending case, call our termination for default government contracts 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