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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 6-7, 2018
American Management Association
Arlington, VA
9:00 AM - 4:00 PM

Terminations of Government Contracts Course Curriculum



  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


  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


  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.

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.  

Certificates of Completion are provided to all seminar participants who attend Federal Publications Seminars courses following the event, upon request.
All Federal Publications Seminars courses meet the course requirements of the National Contract Management Association’s certification programs. We are a proud Education Partner of the NCMA.
Federal Publications Seminars is part of West Professional Development, which is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have the final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website:
This Program is eligible for: 13.0 (CPE) hours of credit
Program Level: Basic
Program Prerequisite: None
Advance Preparation: None
Method: Group-Live
Defense Acquisition Workforce members must acquire 80 Continuous Learning Points (CLP) every two years from the date of entry into the acquisition workforce for as long as the member remains in an acquisition position per DoD Instruction 5000.66. We will provide you with documentation of points awarded for completing the event.
This Program is eligible for: 11.0 (CLP) hours of credit
States have widely varying regulations regarding MCLE credit. LegalEdcenter is an approved provider in AL, AK, AR, CA, GA, IL, ME, MO, MS, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, PA, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, and WV. Credit may be applied for in other jurisdictions on request and in accordance with state MCLE rules.
** Please note that because some states are changing their policy on CLE reporting, you will need to fill out the request for credit from Federal Publications Seminars within 10 business days, or we may not be able to issue credits for the program.
This Program is eligible for: 11.0 (60 minutes), 13.0 (50 minutes)
American Management Association
2345 Crystal Drive, Second Floor
Arlington, VA 22202


Metro Rail Stop – Blue & Yellow Lines – Braddock Road
The ABI runs a shuttle bus and will take you to the building. Shuttle buses are labeled Chariots for Hire and pick up right at the metro station.   


Food & Beverage

Complimentary morning snack & afternoon snacks with assorted beverages will available in facility café/break area.

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

Crowne Plaza Old Town Alexandria  (closest hotel to venue)
901 N Fairfax St, Alexandria, VA 22314  (703) 683-6000

Hotel Monaco Alexandria, A Kimpton Hotel
480 King St, Alexandria, VA 22314  (703) 549-6080 

Sheraton Suites Old Town Alexandria
801 N St Asaph St, Alexandria, VA 22314  (703) 836-4700 

Best Western Old Colony Inn
1101 N Washington St, Alexandria, VA 22314  (703) 739-2222

Embassy Suites Alexandria - Old Town
1900 Diagonal Rd, Alexandria, VA 22314  (703) 684-5900       

Basic or fundamental subject matter is covered. Courses are geared to general knowledge or can be taken as a refresher.
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.
Workshops and class discussions cover specific subject matter in-depth, and participation is strongly encouraged. Attendees should have at least 2-3 years' experience in the area of study.
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.
Masters-level programs designed for professionals with 5+ years' experience. Courses cover in-depth and technical analysis on specific subjects and updates on current issues.
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Terminations of Government Contracts
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Date Location
November 6-7, 2018 Arlington, VA
By Phone
Call (888) 494-3696