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Friday, November 1, 2013

What is a Government Contract Stop Work Order?


                                                   Photo Courtesy Eyebeam dot Org

INTRODUCTION

During the Federal Government Shutdown of 2013 many enterprises received stop work orders on contracts.  This article will specify the purpose of a stop work order, actions that must be taken upon receipt of the order and the relationship of the order to resumption of effort, funding constraints, contract terminations and associated business risk.

PURPOSE

The purpose of a stop work order is to immediately bring to a halt the effort on a contract and any further performance and related cost against that contract. 

It is usually necessary when unforeseen circumstances necessitate the action, such as the government shutdown or similar exigencies. An example of a clause that appears regularly in most government contracts, reserving the government's rights to stop work, is as follows:

"Stop-Work Order (Aug 1989)
(a) The Contracting Officer may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this contract for a period of 90 days after the order is delivered to the Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the Contracting Officer shall either—
(1) Cancel the stop-work order; or
(2) Terminate the work covered by the order as provided in the Default, or the Termination for Convenience of the Government, clause of this contract.
(b) If a stop-work order issued under this clause is canceled or the period of the order or any extension thereof expires, the Contractor shall resume work. The Contracting Officer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly, if—
(1) The stop-work order results in an increase in the time required for, or in the Contractor’s cost properly allocable to, the performance of any part of this contract; and
(2) The Contractor asserts its right to the adjustment within 30 days after the end of the period of work stoppage; provided, that, if the Contracting Officer decides the facts justify the action, the Contracting Officer may receive and act upon the claim submitted at any time before final payment under this contract.
(c) If a stop-work order is not canceled and the work covered by the order is terminated for the convenience of the Government, the Contracting Officer shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.
(d) If a stop-work order is not canceled and the work covered by the order is terminated for default, the Contracting Officer shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.
(End of clause) "

ACTIONS

A stop work order is to be taken literally.  Under a stop work order the government makes no guarantees it will take any further deliveries whatsoever, regardless of the contract type. A stop work order means just that.  Stop work and stop incurring cost. 

Upon receipt of a stop work order you have no guarantee of payment for any transaction date-stamped in your accounting system after the date of the stop work order (or the commencement date of a stop work order specified in a Contracting Officer's Letter).

 I suggest clients receiving these orders close the charge numbers applicable until the stop work order is lifted with an order to resume effort and immediately notify any effected suppliers and subcontractors to do the same.

To the degree the government has made progress payments or has any other form of payment invested in the product to date it has ownership rights in the product. If that is the case treat the physical material work-in-process as government owned, store it as such without performing any more effort on it and await further disposition.

To the degree the government has not paid anything on the contract or delivery order they have no ownership rights to the product and you are free to complete it and sell it to another customer (commercial or government) that has not stopped work. If the government recommences the order, quote a new price and delivery from ground zero.

At the bottom line a stop work is blunt and to the point.  Treat it as if you will never hear from this customer again to manage the risk.  

To the degree you do hear from the CO again and he or she has the funding to recommence work, be prepared to submit a proposal for what it will take to start the effort and a realistic delivery schedule to complete the it, but do not build any retroactive costs incurred during the stop work period into your logic and expect to bill them; they may not come to payment fruition. 

CONTRACT TERMINATIONS AND FUNDING CONSTRAINTS

Note that in the above cited clause the government discusses resumption of work and contract terminations as options.

Hypothetically at some future date the government could terminate the  contract without taking delivery and the contractor will then submit a termination proposal for recovery of costs and disruption. 


When a stop work order is lifted  the contract or the delivery order is open to negotiation on both price and delivery under the equitable adjustment and changes clauses in the FAR provisions of the contract.

At that time, you should inform the government that you are pleased to resume work, but under revised price and delivery conditions as specified in a proposal for equitable adjustment

You should not resume work until a contract or work order amendment is received granting the price and delivery relief to contract requirements commensurate with negotiation results under your proposal for equitable adjustment.

In short, time is money.

If your contract was adequately funded and remains so when work commences and assuming you negotiate acceptable terms and conditions you can proceed with low risk.  If the funding on the contract is low at the time of recommencement, it is recommended you request additional funding and handle that matter in accordance with the article linked below.


SUMMARY

Stop work orders are serious matters and require special handling to comply with government direction and to manage risk.  This article has discussed the principal options and equitable adjustment terms and conditions available to you if you undergo a stop work on a government contract.

Continuing effort on a contract after receipt of a stop work is high risk.

Astutely managing your options is a far better approach. 






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