What would be the basis to deny a contractor's request for the start-up of Progress Payments on a new FMS contract. The contractor has performed poorly on 3 other FMS contracts with Progress Payments that have all have been suspended. Other than their past performance history what other FAR clauses can I use to support my position?
The general principles for FMS contracting are contained in DFARS 225.73 (see excerpt below)
Note that in DFARS 225.7301 subpara (b) it states that DoD acquisition personnel have the authority to conduct FMS acquisitions in the same manner as DoD acquisitions.
There are no special FMS-specific FAR or DFARS provisions that apply to this situation, but there may be FAR/DFARS provisions that could apply to this situation. Such provisions, if they exist, could be used as the basis "to deny [this previously non-performing] contractor's request for the start-up of Progress Payments for [this newly awarded] FMS contract." If such FAR/DFARS provisions exist, DAU recommends you use them as a basis for denying the contractor's request for Progress Payment start-up on this new contract.
Accordingly, after you are able to conduct further FAR/DFARS research to determine DoD's "domestic" authorities such circumstances, we recommend that the DoD Program Manager and/or Contracting Officer for the FMS contract in question apply the same FAR/DFARS based policies and remedies that they would use for a DoD contractor who has repeatedly failed to perform in a similar manner in a "domestic" contracting effort.
"Acquisitions for Foreign Military Sales: DFARS 225.7301 General.
(a) The U.S. Government sells defense articles and services to foreign governments or international organizations through FMS agreements. ...
(b) Conduct FMS acquisitions under the same acquisition and contract management procedures used for other defense acquisitions.
(c) Follow the additional procedures at PGI PGI 225.7301 (c) for preparation of solicitations and contracts that include FMS requirements. ..."