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FAR
12.403: Termination |
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Comptroller
General - Key Excerpts |
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The present solicitation was issued to Maher on August 7, and
Maher was awarded the production contract on September 5. An
award synopsis was posted on FedBizOpps the same day and Essan
filed this protest on September 17. Essan asserts that it was
improperly excluded from the competition for the reprocurement,
that the reprocurement was for a different item than the
terminated contract, and that Maher’s proposed price in the
reprocurement was unreasonable. Generally, the statutes and
regulations governing federal procurements are not strictly
applicable to reprocurements of defaulted requirements. Bluff
Springs Paper Co., Ltd./R.D. Thompson Paper Prod. Co., Joint
Venture, B-286797.3, Aug. 13, 2001, 2001 CPD para. 160 at 2.
Under the standard provisions applicable to fixed-price
contracts, FAR sections 49.402-6(b) and 52.249-8, an agency may
use any terms and acquisition method deemed appropriate for
repurchase of not more than the undelivered quantity for which
the contract was terminated, but must obtain competition to the
maximum extent practicable. In this case, because the terminated
contract was for the acquisition of commercial items, FAR sect.
49.402-6 is only applicable as guidance, and only to the extent
that it does not conflict with the specific procedures
applicable to commercial item acquisitions. FAR sect. 12.403(a).
As applicable here, for commercial item acquisitions, FAR sect.
12.403(c)(2) provides that the government’s rights after a
termination for default include all the remedies available to
any buyer in the marketplace, and that the government’s
preferred remedy will be to acquire similar items from another
contractor and to charge the defaulted contractor with any
excess reprocurement costs. These FAR provisions allow the
agency to purchase the needed supplies as expeditiously as
possible while preserving the government’s right to seek excess
reprocurement costs from the defaulted contractor. (Essan
Metallix Corporation, B-310357, December 7, 2007) (pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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Essan Metallix Corporation,
B-310357, December 7, 2007 (pdf) |
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