Under the Termination for Default Clause, the government can exercise its right to completely or partially terminate a contract because of the contractor’s actual or anticipated failure to perform its contractual obligations.
If you can establish that the relevant facts show that the contractor was not in default or that the failure to perform is excusable; i.e., arose out of causes beyond the control and without the fault or negligence of the contractor, the default clauses provide guidance where the termination for default (T4D) will be considered to have been a termination for the convenience of the Government, and the rights and obligations of the parties are governed accordingly.
Companies faced with the wrath of the termination for default clause have to aggressively recap the relevant facts to support any defense to the agency’s adverse action. There are certain timelines to file an appeal and provide notice to the agency. Sometimes a creative lawyer can request the agency to consider the default action. Yet, this will toll the timelines for filing an appeal.
General Reasons for Termination for Default
Under contracts containing the Default clause at 52.249-8, the Government has the right, subject to the notice requirements of the clause, to terminate the contract completely or partially for default if you fail to:
- Make delivery of the supplies or perform the services within the time specified in the contract,
- Perform any other provision of the contract, or
- Make progress and that failure endangers performance of the contract
The Federal government will usually implement for Termination for Default Clause to either partially or completely terminate your contract. The reasons can be for either an actual or anticipate failure to complete your contract according to the terms and conditions.
Conversion to T4C: If you can prove, or the courts determine that your company was not at fault of the alleged failure to perform was legally excusable, the termination for default can be converted into a termination for convenience. The key to successfully reversing the contracting officer’s decision is to first see if the supplies or services are still required and reinstatement is advantageous to the Government.
FAR 49.402-2 Effect of termination for default: When the government issues a termination for default, it is not liable for the cost of your undelivered work. The agency is also entitled to repayment of advance and progress payments. This can be problematic for companies performing high-dollar contracts or small business that we somehow depending on progress payments. Therefore, how you handle your contract termination is critical.
FAR 49.402-4 Procedure in lieu of termination for default. There are other courses of action available to the contracting officer. Instead of taking the risk of a total termination, the contracting officer can elect to let your company, your surety, or any guarantor continue the work under a revised delivery schedule.
The government can also allow you to continue performance of the contract by through another subcontract, or other business arrangement with an acceptable third party, provided the rights of the Government are adequately preserved.
Defenses Under Termination for Default Clause
As a federal government contractor, there are certain legal defenses to the agency’s decision. For example, the agency should not issue a termination for default if:
- The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor.
- Examples of such causes include-
- Acts of God or of the public enemy,
- Acts of the Government in either its sovereign or contractual capacity,
- Acts of another Contractor in the performance of contract with the Government,
- Quarantine restrictions,
- Freight embargoes,
- Unusually severe weather, or
- Delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers
- See also accord and satisfaction
- Examples of such causes include-
The termination for default clause has various nuances. However, if your facts support a proper legal defense, a court such as ASBCA, U.S. Court of Federal Claims, or CBCA can overturn your default termination. The general remedy is to convert it into a termination for convenience. See more about Termination for Default Process and Appeals and Contract Termination Letter.
For immediate help, call our government contract termination for default clause lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.