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Two days of intense instruction in the rules, the ramifications and the remedies involved in termination of contracts for default and for the Government’s convenience.

 

A course specially designed for both Government and contractor representatives in which you will learn:

 

• Grounds for default termination

• Valid excuses for default

• Damages which may result from termination

• The structured procedure which may be followed

 

“Terminations need not necessarily be the end”

 

An unpleasant feeling. That (and we may be understating it) is what Government contractors customarily get when you raise the subject of contract terminations. And it is probably the reason for the absence of programs devoted exclusively to what is one of the “trauma-topics” in Government procurement. We suspect, in other words, a reaction by some that teaching terminations is like teaching trouble...and nobody wants to learn about trouble.

 

But we offer a different view. We believe that if you learn about trouble, you can learn to avoid it. Trouble for contractors-who may suffer from having their contracts terminated for default or for the Government’s convenience. Trouble for the Government-which, if it improperly initiates or pursues termination actions, can end up paying more (and getting less) than if it let things stand or resorted to other alternatives.

 

Knowing the rules of terminations, (a) contractors may (in given circumstances) be able to convince Government representatives that contemplated default terminations are inappropriate, or may be able to lessen the impact of a termination and (b) the Government will be better able to determine whether (and, if so, how) termination actions should be pressed. Similarly, both parties will be armed with the knowledge necessary to correctly proceed with, and realize maximum reasonable returns from terminations for the Government’s convenience. All this will be provided to you in two concentrated days of lectures-supplemented by a special Course Manual that is yours for future reference.

 

The time you spend with us will be a trying one-but trying only in terms of the sincerity of purpose necessary to profit from the intense pace of instruction. Keep in mind that (to put it rather whimsically) it is not the intent of this course to instruct you in how to behave at your own funeral. Rather, we seek to guide you in how to prevent such an unhappy consequence or-should it occur-in how to salvage some measure of benefit.

 


 

Dates and Locations
November 7-8, 2017
Waterview Conference Center at CEB
Arlington, VA
$1275
REGISTER
DAILY SCHEDULE
9:00 AM - 4:00 PM

Terminations of Government Contracts Course Curriculum

 

INTRODUCTION

  1. Types of Terminations
    1. Default By Contractor
    2. Convenience of The Govt
    3. No-Cost

     
  2. Govt vs. Commercial Contracts
    1. Distinctions in the Settings
    2. Comparison of Rights
    3. Comparison of Remedies
    4. Ethics Issues

DEFAULT TERMINATION

  1. Standard Contract Clauses
    1. What They Say-A Briefing
    2. Similarities & Differences

     
  2. Default vs. Contract Breach
    1. Substantive & Procedural Comparisons
    2. Contractor & Govt Pros-&-Cons

     
  3. Govt Right To Terminate
    1. Can It Terminate
    2. Should It Terminate-The Factors
    3. Alternatives To Default Termination
    4. Govt Internal Procedures

     
  4. Grounds for Default
    1. Failure To Deliver On Time
      1. Time deemed of the “essence”
      2. Determining the delivery date-first articles, prepods and end items
      3. Partial deliveries
    2. Failure To Meet Specifications
      1. “Strict Compliance” doctrine
      2. Contract interpretation factors
      3. Non-conforming work
      4. Govt waiver of specifications
      5. Preproduction models
      6. “Substantial performance” doctrine
    3. Failure To Make Progress
      1. Types of progress failures
      2. Govt “cure notice” requirements
      3. Adequacy of contractor’s cure
    4. Anticipatory Breach of Contract
      1. Inability to perform
      2. Repudiation & abandonment
      3. Govt demand for assurances
      4. Contractor’s insolvency
    5. Failure To Perform Other Provisions
      1. Material contract provisions
      2. Non-material contract provisions
    6. Incorrect Grounds for Default
      1. Wrong reason
      2. Existence of other proper reasons
      3. Consequences

     
  5. Default Excuses
    1. General Concepts
      1. Causes “beyond the control & without fault of negligence” of contractor
      2. forseeability of causes
      3. Effect of excusable delay
    2. Changes in the Work
    3. Defective Specifications
    4. Impossibility of Performance
      1. Subjective vs. objective
      2. Actual
      3. Practical or commercial
      4. Contractor assumption of risk
    5. Delays
      1. Govt granting of approvals
      2. Govt inspection
      3. Payments by Govt
      4. Labor shortages
      5. Contractor lack of capability
      6. Contractor lack of financing
      7. Inadequate contractor staff & equipment
    6. Govt Interference With Performance
    7. Govt Failure To Disclose Information
    8. Govt-Furnished Property
    9. Work Suspensions & Stoppages
    10. Differing Site Conditions
    11. Govt Sovereign Acts
    12. Subcontractor Delays
      1. Lower tier subcontractors
      2. Designated subcontractors
      3. Sole source subcontractor
    13. Acceleration of Performance
    14. Other Default Excuses
      1. Acts of God or public enemy
      2. Strikes
      3. Unusually severe weather
      4. Unanticipated economic conditions
      5. Embargoes

     
  6. Proving Excusable Delay
    1. Extent of Delay
    2. Notice Requirements
    3. Concurrent Delay
    4. Mitigation of Delay

     
  7. Govt Waiver of Delivery Date
    1. Waiver vs. forbearance
      1. Waiver-elements & consequences
      2. Forbearance-elements & consequences
      3. Govt waiver actions
      4. Contractor reliance
      5. Forbearance becoming waiver
    2. Termination After Waiver
      1. Setting a new delivery schedule
      2. Contractor inability to perform
      3. Govt right to terminate

     
  8. Excess Reprocurement Costs
    1. Contractor’s General Liability
    2. Measurement of Costs
    3. Timeliness of Govt Reprocurement
    4. Govt Methods of Reprocurement
    5. Similarity of Reprocured Work
    6. Govt Completion of Work

     
  9. Recovery of Progress Payments
    1. Govt Right To Recover
    2. Value of Govt-Accepted Inventory
    3. Cost Reimbursement Contract Situations
    4. Deferred Payment Agreements

     
  10. Liquidated Damages
    1. Definition
    2. Validity of Damages Amount
    3. Substitute for Actual Damages
    4. Negotiation of Limitations
    5. Apportionment of Concurrent Delay
    6. Assessment & Collection
    7. Contractor Relief From Liability

     
  11. Cost-Type Contract Damages
    1. The Contract Provisions
    2. Measurement of Damagess

     
  12. Other Damages
    1. Govt Administrative Costs
    2. Incidental Damages
    3. Consequential Damages

     
  13. Contesting The Default
    1. Challenging Validity of Termination
    2. Challenging Reprocurement Cost Assessment
    3. Methods & Techniques of Proof
    4. Contracting officers, Appeal Boards & Courts
    5. Reinstatement of Contract

CONVENIENCE TERMINATION

  1. General Considerations
    1. Nature of Convenience Termination
    2. The Standard Clauses-A Briefing
    3. Total vs. Partial Terminations
    4. How Convenience Terminations Occur
      1. Contracting officer’s written notice
      2. Erroneous default termination
      3. Erroneous contract cancellation
      4. Constructive terminations
    5. Limitations On Govt Right To Terminate
    6. Reinstatement of Terminated Contract

     
  2. Termination Procedures
    1. Notice of Termination
    2. Work Stoppage
    3. Notice To Subcontractors
    4. Conferences
    5. Disposition of Inventory
    6. Settlement of Subcontractors’ Claims
      1. Prime’s negotiations with subs
      2. Settlement authority
      3. Govt approval & Assistance

     
  3. Contractor’s Dollar Recovery
    1. General Rights To Costs & Profit
    2. Applicable Cost Principles
      1. Federal Acquisition Regulation
      2. Agency Implementation
      3. Equitable considerations
      4. Reallocation of costs
    3. Performance Costs
      1. Pre-contract costs
      2. Initial & preparatory costs
      3. Complete work
      4. Incomplete work
      5. Materials
      6. Non-specification work
    4. Post-Termination Costs
      1. Continuing costs
      2. Unabsorbed overhead
      3. Idle facilities
      4. Loss of useful value
      5. Unexpired leases
      6. Disruption & inefficiency
    5. Profit
      1. Factors in determining amount
      2. Profit on subcontracted work
      3. Anticipated profit
    6. Loss Contracts
      1. “Adjustment for loss” formula
      2. Avoiding the loss formula
    7. Contractor's Settlement Expenses
      1. Types of recoverable costs
      2. Documentation required

     
  4. Partial Terminations
    1. Partial Termination vs. Deductive Change
    2. Cost of Performing Terminated Work
    3. Price Adjustment for Remaining Work
      1. Purpose
      2. Loss of “learning curve” benefits
      3. Reduced material quantities
      4. Other recoverable costs
    4. Special Procedures

     
  5. The Settlement Proposal
    1. Purpose
    2. Inventory Basis vs. Total Cost Basis
    3. No-Cost Settlements
    4. Submitting The Settlement Proposal
    5. Review Procedures
    6. Settlement Negotiations
      1. Negotiation standards
      2. Partial settlement
      3. Settlement Review Board
      4. Contracting officer’s negotiation memorandum
      5. Payment
      6. Retention of records
    7. The Results

     
  6. Disputes
    1. Contract Disputes Act of 1978
    2. Appeals To Boards & Courts
    3. Methods of Presentation & Proof
    4. Subcontracting Litigation
Aaron P. Silberman, Rogers Joseph & O'Donnell
Aaron P. Silberman is a Partner in the San Francisco office of Rogers Joseph O’Donnell where he concentrates on government contracts and construction matters. Mr. Silberman counsels contractors, subcontractors, and suppliers in the construction, defense, technology, and service industries on contracts for federal, state and local public entities; helps clients evaluate, negotiate and draft solicitations, proposals and bids; negotiates and evaluates proposed contract terms, litigates bid protests of public contract awards; investigates and litigates claims for delay, disruption, payment, defects, and fraud or false claims; and advises and represents clients in disabled access issues. He is a frequent lecturer on government contracts and construction law subjects, including false claims, terminations, prime subcontractor payment issues, Building Information Modeling (BIM), green building, IT procurements abandonment/cardinal change claims, disabled access, and licensing. Currently, he is the Chair Elect of the ABA Public Contract Law Section and will serve as Chair in 2017-2018. He has previously chaired committees devoted to subcontracting, procurement fraud, construction and state and local government procurement. Mr. Silberman received his B.B.A., University of Michigan, with honors; J.D., University of California Los Angeles Law School, 1992, with honors; Editor, Environmental Law Review. 
Greg Bingham, The Kenrich Group LLC
Greg Bingham is a Vice President of The Kenrich Group LLC and leads the Firm’s Government Contracts Group. He has approximately 30 years of experience in the field of business consulting, primarily for Government and Construction Contractors.  Mr. Bingham has assisted clients on numerous issues including: (1) review or preparation of hundreds of termination settlement proposals on contracts terminated for convenience as well as assistance relating to contracts terminated for default; (2) regulatory consulting on compliance issues arising from the Cost Principles found in FAR Part 31, the Cost Accounting Standards and OMB circulars; (3) various system reviews including accounting, billing and purchasing systems; (4) consulting on forensic accounting and funds tracing matters involving allegations of defective pricing, false claims, mischarges, improper labor charging and improper billings; (5) review and preparation of claims for changed work, delay and disruption; and (6) analysis of cost realism and other cost and price issues on bid protests.  

Greg is an Adjunct Professor in the George Washington University Graduate School of Business.  He teaches Pricing and Cost Issues in Government Contracts (MKTG 6290.20), which is required in the Masters of Government Contracts program.  Course topics include the development or evaluation of proposals relating to contract awards, requests for equitable adjustment or claims, and termination settlement proposals.  Audit and evaluation of cost or pricing data as well as other information is also addressed. 
Neil H. O'Donnell, Rogers Joseph & O'Donnell
Neil H. O’Donnell is a Partner in the San Francisco office of Rogers Joseph O’Donnell where he serves as Co-Chair of the Firm’s Government Contracts Practice Group. He has been consistently recognized as one of the nation’s leading Government Contracts lawyers in the prestigious Chambers ranking and has represented major clients in important matters in Courts and Boards and at the Government Accountability Office. Mr. O’Donnell is a longtime member of the American Bar Association’s Public Contract Law Section and served on the Governing Committee of the Public Law Section of the California State Bar.  He lectures on a variety of procurement issues for business and professional associations, including speaking on Terminations for Default at West’s Annual Developments in Government Contracts Conference. Mr. O’Donnell received his undergraduate degree, magna cum laude, from Williams College; and a Juris Doctor degree from Yale Law School, where he served as an Editor of the Yale Law Journal.

Patricia A. Meagher, Rogers Joseph & O'Donnell
Ms. Meagher is a member of the firm’s Government Contracts and Construction Law Practice Groups. She has more than twenty-five years of experience in litigation and public contracting at the federal, state and local levels.

Education
J.D., Catholic University of America
Columbus School of Law School ,
1982
Member, Catholic University Law Review
B.A., University of Virginia, 1979
With honors
Rick Ostiller, CPA, CFF, Navigant Consulting
Mr. Ostiller is a Managing Director and leads Navigant’s accounting investigations practice area as well as its Palo Alto office.  He joined the company in 2004.  Rick has provided forensic accounting and litigation consulting services to attorneys and corporate clients in numerous industries for over 30 years.  He has extensive experience with high profile investigative projects, lost profits and other damages analyses, cost analysis studies, and has provided expert witness testimony in several venues.  Rick is a Certified Public Accountant in California, and is Certified in Financial Forensics.  His government contracts consulting experience includes termination claims, indirect cost studies, contract claims, compliance reviews, and pricing analyses.  

Before joining Navigant Consulting, Rick was a Vice-President at TUCKER ALAN, INC. from 2002 to 2004. Prior to that, he was a partner in Andersen’s financial consulting services practice.  Rick started his professional career with a high technology manufacturing company, serving in multiple finance positions.  

Rick received a Master in Business Administration from the University of Chicago, and a Bachelor of Arts in Economics from Stanford University.  He is Treasurer and past President of the Law Foundation of Silicon Valley, an associate member of the American Bar Association, and is a frequent speaker and CLE provider to both professional groups and law firms.  

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Waterview Conference Center at CEB
1919 North Lynn Street
24th Floor
Arlington, VA 22209
571-303-4041
TRAVEL INFORMATION

Coffee, tea and water will be served throughout the day with an afternoon cookie break.  Breakfast and lunch are on your own. 

METRO RAIL LINE:

Yellow & Silver Line – METRO Stop – Rossyln
From the METRO - 1 Block East and 2 Blocks North on Lynn Street (Deloitte & CEB Offices)

There is not a room block for this location.  Suggested nearby hotels are:

Hyatt Arlington (0.2 mi SW)
1325 Wilson Blvd, Rosslyn, VA
703-525-1234

Le Meridien Arlington (156 ft. SE)
1121 19th St. N., Arlingotn, VA
703-351-9170 

Holiday Inn (0.1 mi W)
1900 North Fort Myer Drive, Arlington, VA
703-807-2000

Marriott Key Bridge (0.2 mi NW)
1401 Lee Highway, Arlington, VA
703-243-1093

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Specific topics or issues within a topic area are covered. Students should be familiar with terms of art and general concepts concerning the course topic.
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Courses build upon students' knowledge and experience, and cover complex issues within the subject matter. Should have 4-5 years' mastery of subject for in-depth analysis.
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Terminations of Government Contracts
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Date Location
November 7-8, 2017 Arlington, VA
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