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    Do I still have a valid order since the modification was never issued to terminate or does the letter terminate the order?


    Answer

    You pose two questions: First, Can a contract be terminated without issuing a modification? And second: If the same requirement is needed after terminating for cause, can the defaulted contractor still provide it? The answer to both questions is yes.
     
    First, a contractor’s receipt of a properly prepared Termination for Cause (T4Cause) letter immediately terminates the contract. Since you are terminating a commercial item, FAR Section 12.403 governs termination and FAR Part 49 does not apply (but you may use FAR 49 as guidance to the extent that it does not conflict with FAR12.403 and the termination paragraphs in FAR 52.212-4). At a minimum, a proper T4Cause is sent in writing, specifies the reason for the termination, states the remedies the government intents to seek, and includes other relevant instructions. Importantly, the T4C must also state that the “termination notice constitutes a final decision by the Contracting Officer and that the contractor has the right to appeal under the Disputes clause.” If your termination letter was proper, the contract was immediately terminated upon the contractor’s receipt of that letter.
     
    Contrary to popular misbelief, the FAR does not require the use of a modification to terminate a contract (but your local policy might). FAR Section 43.103 explains the types of contract modifications, one being the unilateral modification which is used, FOR EXAMPLE, to issue termination notices (FAR Subsection 43.103(b)(4)). Further, FAR Subpart 43.301 – Use of Forms, clearly mandates when the Standard Form 30 (SF30) for modifications SHALL be used (for issuing a change order, for example) and when its use is OPTIONAL (specifically stating “for termination notices”). Hence, a unilateral modification may be used to terminate a contract, but there is no FAR requirement to do so.
     
    But don’t confuse termination notices with settlement modifications! Terminations notices may be executed with a proper letter but settlement agreements must be executed with a SF30 contract modification.  So, if your T4Cause resulted in a price reduction or requires deobligation of funds on the contract, those settlements must be finalized with a modification to the contract. In other words, the PCO can terminate for cause by letter or SF30, but a subsequent settlement agreement, if applicable, shall use the SF30 to execute a modification to the contract.
     
    Now to your next question. Whoops, you terminated the contract, but now the contractor can perform and you still need the requirement! Not to worry. You can either amend the Termination for Cause Notice or reinstate the terminated contract.  Guidance from FAR Part 49 is helpful here.

    If you have outstanding issues with the contractor, the contracting officer may conduct a conference to facilitate the termination process. As a result of the meeting, the contract may be amended to correct minor mistakes in the notice, add supplemental data or instructions, or rescind the notice entirely if it is determined that the items terminated had been completed or shipped before the contractor's receipt of the notice. https://dap.dau.mil/ACQuipedia

     
    With the written agreement of the contractor the Contracting Officer may reinstate the terminated portion of a contract, in whole or part, by amending the notice of termination. If a reinstatement of a portion of the terminated contract is appropriate, the reinstatement must be based on a written determination that circumstances clearly indicate a requirement for the terminated items and that reinstatement is advantageous to the Government.  https://dap.dau.mil/ACQuipedia


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