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  • Question

    FAR 8.4 directs to 52.212-4, which is discussed at 12.403 -- Termination, and Part 49 does not apply. However, 12.403(c)(1) discusses the requirement for a cure notice which is discussed in Part 49. FAR part 12 does not give any additional step other than to send a termination notice if termination for cause is appropriate, whereas Part 49 requires the extra step of a show cause notice. Since Part 49 is not applicable but can be used "as guidance to the extent that Part 49 does not conflict with" Part 12, should I take that to mean a show cause notice is not required in the process of terminating for cause?


    Answer

    As stated in Federal Acquisition Regulation (FAR) 12.403 (c) (1) "The paragraph in 52.212-4 entitled "Excusable Delays" requires the contractors notify the contracting officer as soon as possible after commencement of any  excusable delay.  In most situations, this requirement should eliminate the need for a show cause notice prior to terminating a contract.  The contracting officer shall send a cure notice prior to terminating a contract for a reason other than late delivery."  Sending a show cause notice is discretionary and normally precluded in commercial contracts by the aforementioned  language. FAR 12.403 (b) also advises to only terminate when in the best interest of the Government and for the contracting officer to consult with legal counsel prior to termination.

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