Nonmanufacturer Rule Violation Leads To Default Termination

A procuring agency appropriately terminated a small business set-aside contract for default when the SBA determined, after contract award, that the prime contractor was not complying with the nonmanufacturer rule.

A recent decision of the Armed Service Board of Contract Appeals involved a very interesting factual situation, in which the small business in question told the SBA that it planned to perform the contract in compliance with the nonmanufacturer rule, but then failed to do so.  This failure, according to the ASBCA, justified a default termination.

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CBCA: “Appeal” Sent To Contracting Officer Didn’t Count

A contractor’s challenge to a contracting officer’s final decision was “improperly directed” when it was sent only to the contracting officer, and did not delay the 90-day period in which the final decision could be appealed to the Civilian Board of Contracting Appeals.

As demonstrated in a recent CBCA decision, when a contractor receives a contracting officer’s final decision, the appeals clock starts ticking–and an “appeal” to the contracting officer doesn’t stop the clock.

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ASBCA: Contractor’s Request For Cancellation Was Not A Default

A contractor’s request that the agency issue a “no-cost” cancellation of its contract was not a default–and did not justify the government’s default termination of the contract.

In a recent decision, the Armed Services Board of Contract Appeals held that a contractor did not repudiate its contract by requesting a cancellation because the contractor’s request was not a “positive, definite, unconditional, and unequivocal refusal to perform.”

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