Is it just me or does anyone else find a conflict, or at least a cause to question with these two statements?

"The formal evaluation and documentation of the contractor's performance AND the determination AND payment of award fee earned ARE to be accomplished every 6 months"

"The contractor will submit a self-assessment within 10 days AFTER the conclusion of the evaluation period"

Now if the contractor submits the assessment 10 days after the 6 month eval period and it takes the government 2-3 months after that to award fee, doesn't this look questionable?

By Anonymous on Thursday, April 11, 2002 - 01:14 pm:

One may well wonder why it takes 2-3 months after the end of an evaluation period to make the payment. But, assuming there are valid reasons, these events (i.e., self-assessment, determination, and payment) could all be part of a regular six-month cycle. It's just that the part of the cycle the contractor is most interested in (i.e., payment) is later than desired.

By Anoncon2 on Thursday, April 11, 2002 - 02:11 pm:

It's hard (from a contractor's point of view .. especially if there's no base fee and you've been working with no profit for now eight or nine months) to contemplate what could be valid reasons for the Government's unwillingness to act quicker on that which motivates the contractor to good performance. The award fee mod is easy to write (what, 2 hours?), getting money obligated .. even in a slow organization .. shouldn't take more than 2 or 3 weeks. This is a real opportunity for the Government to demonstrate its "team spirit" and "partnership" etc.

By anoncon on Thursday, April 11, 2002 - 11:10 pm:

Thanks anoncon2;

But based on the first premise or wording of the first issue, couldn't I consider it I breach?, I think so.

By Anonymous on Friday, April 12, 2002 - 08:34 am:

To the original Anon:

Your second quote says "within 10 days after the conclusion of the evaluation period," not "within 10 days after the conclusion of the evaluation." Once the evaluation period -- the period being evaluated -- ends, the govt's evaluation can begin. I see nothing inconsistent in your two statements, and see nothing in either of them requiring the govt to pay the award fee within a specific number of days after the 6-month period being evaluated ends.

You don't really expect the govt to pay the award fee on the day the evaluation period ends, do you? Or on the day you submit your self-evaluation? Given that neither of these positions make sense, there has to be a period of time between the date you submit your self-evaluation and the date the govt pays you. 2-3 months does seem too long, but I highly doubt it constitutes a breach.

By anoncon on Friday, April 12, 2002 - 09:30 am:

how about 10-11 months, does that put a different spin on it?

By Vern Edwards on Friday, April 12, 2002 - 09:34 am:

anoncon:

The clause that you cited isn't very specific about when the government must make the payment; I don't think "every six months" is specific.

In this kind of situation, the general legal rule would be that absent the stipulation of a specific time, the payment should be made within a "reasonable time" after the government completes its evaluation, including its consideration of the contractor's self-assessment. So, let's say that an evaluation period begins on January 1 and ends on June 30, and that the contractor submits its self-assessment on July 10. The question is how much time is reasonable for the government to decide how much award fee the contractor should get and to mod the contract. The answer probably depends on what is involved. Two to three months sounds like a long time to me, but who knows what a board or a court would think? I don't think that you can safely say that it's a breach of contract, but it might be.

If this has been going on for a while and you haven't objected, a board or court might interpret your silence to be acquiescence. When interpreting contracts, boards and courts will consider the parties' behavior during the course of performance as an indication of how they interpreted the contract.

By anoncon on Friday, April 12, 2002 - 10:09 am:

Vern, thanks for a well thought out response, fact is we have been beating on them for a long time but there is always an excuse. Unfortunately, we are under a CPAF completion contract that is consistently funded--so. We are considering bringing this into dispute given the Burnside-Ott decision which we believe would fit well. Thanks

By Vern Edwards on Friday, April 12, 2002 - 11:48 am:

anoncon:

You might consider filing a claim that requests a contracting officer final decision about what constitutes a timely award fee determination by the government. Claims don't have to be for money; they can be for an "adjustment or interpretation of the contract terms" or "other relief." See the definition in FAR 33.201.

In your claim, assert that the contract requires that an award fee determination and payment be made within a reasonable time after the government receives the contractor's self-assessment. Assert that X days is a reasonable time. State that the government has been taking too long (provide statistics) and that the delay is a breach of contract and is causing a hardship.

Don't ask for money; ask for a final decision about how many days the government should be permitted to take to make a timely award fee determination that will entitle you to invoice for the amount of fee earned. Ask for a specific number of days, so they can't answer with "reasonable time." (The prompt payment clause says how long they get to make payment after receipt of a proper invoice.) Since the claim would be for $0, you are entitled to demand a contracting officer's final decision within 60 days, pursuant to the Disputes clause, FAR 52.233-1, paragraph (e).

Since you're apparently dealing with flakes, send the claim via certified mail, return receipt requested. If you are a small business, send a copy to your congressional representatives. Make sure that the original indicates that you did so.

This may be a risky strategy if the agency is unprofessional and vindictive, but it will force some kind of action. If you're unwilling to take the risk, then you must live with what you're getting. If the contracting officer doesn't give you a final decision within 60 days of your request, or if the final decision is unreasonable, then you can go to the board or the Court of Federal Claims if you like.

By anoncon on Friday, April 12, 2002 - 12:13 pm:

excellent advice-thanks