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6 Contract Administration

6 Contract Administration 209

6.1 General 209

6.1.1 Responsibilities 209

6.1.1.a Contracting Officers and Purchase Teams. 209

6.1.1.b Contracting Officer's Representatives 209

6.1.1.c Relationship Between the Postal Service and Supplier Representatives 209

6.1.2 Contract Administration Functions 210

6.1.2.a Contracting Officer Responsibilities. 210

6.1.2.b Other Responsibilities. 210

6.2 Contract Performance 210

6.2.1 Postaward Orientation 210

6.2.1.a Policy. 210

6.2.1.b Use. 211

6.2.1.c Scheduling. 211

6.2.1.d Changes to the Contract. 211

6.2.2 Record Keeping 211

6.2.2.a Policy. 211

6.2.2.b Organization. 211

6.2.2.c Records in the Possession of Other Postal Employees. 211

6.2.3 Contract Monitoring 212

6.2.3.a Personnel 212

6.2.3.b Using Suppliers to Monitor Performance 212

6.2.3.c Review of Supplier Submittals 212

6.2.4 Delivery 212

6.2.4.a Transportation. 212

6.2.4.b Variation in Quantity. 213

6.2.5 Right to Adequate Assurance of Performance 213

6.2.5.a General. 213

6.2.5.b Failure to Provide Adequate Assurance. 213

6.2.6 Bankruptcy 214

6.2.6.a General. 214

6.2.6.b Procedures. 214

6.2.6.c Clause. 214

6.3 Quality Assurance 214

6.3.1 Inspection and Testing 214

6.3.1.a General 214

6.3.1.b Nonconforming Supplies or Services 214

6.3.2 Acceptance 216

6.3.2.a General 216

6.3.2.b Responsibility. 216

6.3.2.c Place of Acceptance. 216

6.3.2.d Supplier Certification. 217

6.3.2.e Revocation of Acceptance in Whole or in Part 217

6.3.2.f Transfer of Title and Risk of Loss 217

6.3.3 Receiving Reports 218

6.3.3.a General 218

6.3.3.b Responsibility 218

6.4 Payments and Financing 218

6.4.1 General 218

6.4.1.a Disputes. 218

6.4.1.b Partial Payments. 218

6.4.1.c Cost Reimbursement. 219

6.4.2 Invoices 219

6.4.2.a General. 219

6.4.2.b Submitting Invoices. 219

6.4.3 Payment 219

6.4.3.a Methods. 219

6.4.3.b Time of Payment. 219

6.4.3.c Interest Payments 219

6.4.3.d Calculating Interest 220

6.4.3.e Alternate Provisions. 221

6.4.3.f Final Payment. 221

6.4.4 Withholding Payments 221

6.4.4.a General. 221

6.4.4.b Actions by the Contracting Officer 221

6.4.4.c Disallowing Costs 222

6.4.4.d Setoffs and Recoupments 222

6.4.4.e Third-Party Claims. 222

6.4.4.f Withholding Payment Under Contract Clauses. 223

6.4.5 Progress Payments 223

6.4.5.a General. 223

6.4.5.b Computing Progress Payments 223

6.4.5.c Supervision. 223

6.4.5.d Administration 223

6.4.6 Limitation of Cost or Funds 224

6.4.6.a Administration 224

6.4.6.b Effect of a Modification. 224

6.4.7 Assignment of Claims 225

6.4.7.a Policy. 225

6.4.7.b Approval. 225

6.4.7.c Assignments by Law. 225

6.5 Contract Modifications 225

6.5.1 General 225

6.5.1.a Effective Dates 225

6.5.1.b Policy 225

6.5.1.c Types of Modifications. 226

6.5.1.d Notification of Contract Changes. 226

6.5.1.e Availability of Funds 226

6.5.1.f Exercise of Options 227

6.5.1.g Correcting Mistakes 227

6.5.2 Change Orders 228

6.5.2.a General 228

6.5.2.b Accounting 228

6.5.2.c Administration 228

6.5.3 Equitable Adjustments for Delays 229

6.5.3.a General. 229

6.5.3.b Excusable Delays 229

6.5.3.c Compensable Delays 229

6.5.3.d Concurrent Causes. 230

6.5.3.e Acceleration 230

6.5.4 Novation and Change-of-Name Agreements 230

6.5.4.a Definitions 230

6.5.4.b Responsibility 231

6.5.4.c Novation Policy 231

6.5.4.d Change of Name. 231

6.6 Postal Service Property 232

6.6.1 Supplier's Property Control Systems 232

6.6.1.a Review. 232

6.6.1.b Noncompliance. 232

6.6.2 Records 232

6.6.2.a Record Keeping. 232

6.6.2.b Maintenance by the Postal Service. 232

6.7 Subcontracting Policies and Procedures 233

6.7.1 General 233

6.7.1.a Requirements 233

6.7.1.b Considerations 233

6.7.2 Limitations 234

6.7.2.a Lack of Disapproval. 234

6.7.2.b Disapproval to Avoid Disputes. 234

6.8 Claims and Disputes 234

6.8.1 General 234

6.8.1.a Contract Disputes Act. 234

6.8.1.b Policy. 234

6.8.2 Claim Initiation 234

6.8.2.a Receipt. 234

6.8.2.b Decision. 235

6.8.2.c Certified Claims. 235

6.8.2.d Misrepresentation or Fraud. 235

6.8.3 Decision and Appeal 235

6.8.3.a Contracting Officer's Authority. 235

6.8.3.b Contracting Officer's Decision. 235

6.8.3.c Insufficient Information. 235

6.8.3.d Furnishing Decisions. 235

6.8.3.e Decisions on Claims for $100,000 or Less. 235

6.8.3.f Decisions on Certified Claims. 236

6.8.3.g Wording of Decisions. 236

6.8.3.h Additional Wording for Decisions of $50,000 or Less. 236

6.8.3.i Additional Wording for Decisions Over $50,000 Up to $100,000. 236

6.8.3.j Appeals 236

6.8.3.k Payment. 237

6.8.3.l Interest. 237

6.8.3.m Review of Adverse Actions. 237

6.9 Contract Termination 237

6.9.1 General 237

6.9.1.a Applicability 237

6.9.1.b Review and Approval. 238

6.9.1.c General Principles 238

6.9.1.d Termination Notice 238

6.9.2 Termination for Convenience 239

6.9.2.a General 239

6.9.2.b Supplier's Duties. 239

6.9.2.c Settlement of Subcontractor Claims 240

6.9.3 Termination for Default 241

6.9.3.a General 241

6.9.3.b Fixed-Price Contracts 241

6.9.3.c Contracts Other than Fixed-Price 246

6.9.4 Termination on Notice 246

6.9.4.a General. 246

6.9.4.b Written Notice. 246

6.9.4.c Default. 246

6.10 Remedies and Damages 247

6.10.1 Remedies 247

6.10.1.a Postal Service's Security Interest. 247

6.10.1.b Repurchase Against Supplier's Account 247

6.10.2 Damages 247

6.10.2.a Default. 247

6.10.2.b Breach Damages for Accepted Supplies 247

6.10.2.c Deduction of Damages from the Price. 248

6.10.2.d Damages for Nondelivery or Repudiation 248


6 Contract Administration

6.1 General

6.1.1 Responsibilities

6.1.1.a Contracting Officers and Purchase Teams. The make-up of a purchase team may change as the contracting process moves into the administration phase, but the contracting officer remains the business leader of the purchase team throughout the life of the contract and continues to represent the purchase team in all dealings with the supplier. Beyond contract close out, other members of the purchase team may continue in their roles as part of a more comprehensive life-cycle management team of which the purchase team was a part.

6.1.1.b Contracting Officer's Representatives

1. The contracting officer may appoint in writing one or more representatives to perform any administrative function that does not involve a change in the scope of work, specifications, or cost or duration of contract performance.

2. Representatives of the contracting officer may not appoint other representatives without prior written approval of the contracting officer.

3. Representatives of the contracting officer may not perform any function or exercise any authority not specifically delegated by the contracting officer.

4. The contracting officer must notify the supplier in writing of the appointment of any representative or representatives, specifying the authority delegated and cautioning the supplier to notify the contracting officer any time the supplier believes the representative is exceeding the authority granted by the delegation.

5. All contracts requiring a contracting officer's representative must include Clause 6-2, Contracting Officer's Representative.

6.1.1.c Relationship Between the Postal Service and Supplier Representatives

1. The objective of any purchasing action is to meet contract objectives, not control the supplier's business. Postal Service personnel involved in contract administration should direct their efforts to that objective (such as quality assurance, cost monitoring, and other activities intended to ensure compliance with contract terms). Except when required by the terms of the contract, they may not direct the supplier's management activities or intervene to supervise, train, or discipline supplier personnel.

2. Disputes with suppliers are an obstacle to performance. Purchase teams in general and contracting officers in particular should seek to resolve contract disputes in a businesslike manner that promotes efficiency and cost-effectiveness while protecting the Postal Service's interests.

6.1.2 Contract Administration Functions

6.1.2.a Contracting Officer Responsibilities. The contracting officer, as the business leader of and representing the purchase team, is responsible for:

1. Ensuring timely contract performance in accordance with the contract specifications and clauses, with due regard to the need for quality and the legal rights of the parties;

2. Ensuring that the supplier is compensated promptly in the proper amount consistent with protecting the Postal Service's interests;

3. Making changes, carrying out terminations, and taking other necessary actions outside the normal course of contract performance;

4. Making decisions and determinations that affect contract performance fairly, impartially, and in accordance with Postal Service policy and applicable law; and

5. Maintaining complete documentation on performance or nonperformance to protect the Postal Service's rights and to provide a basis for past performance assessments for use in future purchases; and

6. Managing supplier relations and fairly and constructively resolving disputes.

6.1.2.b Other Responsibilities. The specific functions required to be performed under any contract are determined by the contract's terms and conditions, clauses and the particular contract situation, as well as the policies in this PM. The purchase team and each contracting officer's representative should carefully review the contract together immediately after award to determine the functions to be performed and the people responsible for performance.

6.2 Contract Performance

6.2.1 Postaward Orientation

6.2.1.a Policy. It is Postal Service policy that effective relationships between the Postal Service and its suppliers are central to the success of any purchase. The relationship should be a partnership, with each party working together to achieve a mutual goal. A key element in establishing the relationship is postaward orientation. This orientation brings all parties together and provides for a clear, mutual understanding of the purchase requirements and objectives. It also provides a means whereby each party may identify and resolve potential problems at the beginning, rather than later in the process when misunderstandings can have a greater impact on successful performance. Therefore, the contracting officer and the purchase team should hold postaward orientations whenever feasible.

6.2.1.b Use. In deciding whether to hold a postaward orientation, the purchase team should consider:

1. The nature and extent of any preaward survey or other discussions with the supplier;

2. The contract type, value, and complexity;

3. The purchasing history of the supplies or services;

4. Requirements for spare parts and related equipment;

5. Urgency of the delivery schedule and relationship of the supplies or services to critical programs; 6.

7. Length of the planned production cycle;

8. Extent of subcontracting;

9. Supplier's past performance and experience with the supplies or services;

10. Safety precautions required for hazardous materials or operations;

11. Financing arrangements, such as progress payments; and

12. Whether changes are anticipated that will require special accounting for change orders (see 6.5.2.b).

6.2.1.c Scheduling. Postaward orientations should be held promptly after award. The purchase team must prepare an agenda, and afterwards summarize the topics actually covered in a memorandum. Whenever possible, all representatives (for example, inspectors) must attend any orientation session.

6.2.1.d Changes to the Contract. A postaward orientation may not be used to change the contract. Any change resulting from a postaward orientation must be made by contract modification.

6.2.2 Record Keeping

6.2.2.a Policy. Contract performance records are kept in the purchasing organization. Maintaining complete records on performance is essential for (1) proper contract administration; and (2) creating and maintaining records of past performance. All actions taken must be documented.

6.2.2.b Organization. Records must be maintained in an official contract file.

6.2.2.c Records in the Possession of Other Postal Employees. Records relating to contract performance may be kept by offices outside the purchasing organization (for example, records on repair and maintenance of equipment under warranty). The contracting officer should alert each such office of the significance of the records to contract administration and request they retain or transfer any records necessary to comply with a and b above.

6.2.3 Contract Monitoring

6.2.3.a Personnel

1. In addition to appointing representatives (see 6.1.1.b) to monitor contract performance, the contracting officer may name one or more representatives with authority to coordinate the activities of other representatives, such as inspectors or reviewers.

2. The contracting officer may authorize one or more representatives to provide technical direction, but the authorization must specifically alert them to the prohibition on ordering changes in the work affecting schedule, price, or quality.

3. Personnel from federal government agencies may be delegated audit, inspection, and testing responsibilities.

6.2.3.b Using Suppliers to Monitor Performance

1. Facilities Contracts. For contracts covered in 4.5, contracting officers may contract with architects, engineers, construction or real estate management professionals to perform any contract administration task that could be delegated to a Postal Service contracting officer's representative.

2. Other Contracts. Contracting officers may contract with third parties to perform only those contract administration responsibilities related to testing for conformance (but not acceptance), reviewing supplier submittals, shop drawings, and requests for design approval.

6.2.3.c Review of Supplier Submittals

1. Reviewing supplier submittals such as material lists, shop drawings, catalog cuts, or samples is an important method of enforcing contract requirements, and contract terms requiring submission and approval should be strictly enforced. The purchase team must ensure that supplier submittals are disapproved only for failure to meet a material requirement of the contract. If a supplier submittal indicates that the specifications are inadequate, the contracting officer should use the applicable changes clause to achieve necessary quality. For submittals affecting purchases for Technical Data Packages (TDPs), see 2.3.2.

2. Contracting officers and their representatives must approve, conditionally approve, or disapprove supplier submittals promptly within any time limits set in the contract. Disapprovals and conditional approvals must clearly indicate what the supplier must do to comply with contract requirements.

6.2.4 Delivery

6.2.4.a Transportation. The purchase team must ensure that supplies purchased by the Postal Service are transported according to:

1. The solicitation provisions prescribed in Appendix A;

2. Chapters 2 and 3 of Handbook AS-701, Materiel Management; and

3. All policies, procedures, and technical guidance issued by the manager, Materials Distribution.

6.2.4.b Variation in Quantity. Suppliers are responsible for delivering the quantity specified in the contract within the tolerances allowed (see Clause B-4, Variation in Quantity). Excess quantities totaling no more than $100 in value may be kept without compensating the supplier. Excess quantities worth more than $100 may be returned at the supplier's expense, or kept and paid for at the contract price.

6.2.5 Right to Adequate Assurance of Performance

6.2.5.a General. A contract obligates each party not to impair the other's expectation of receiving the performance due under the contract. When performance concerns arise, the contracting officer may, in writing, demand adequate assurance of due performance. The concerns need not arise from or be directly related to the contract.

6.2.5.b Failure to Provide Adequate Assurance. The contracting officer may treat the contract as defaulted if the purchase team's concerns are not resolved within 30 days of the demand for adequate assurance. Failure to provide adequate assurance is a breach of contract by repudiation. The supplier may retract the repudiation under 2 below unless the contracting officer has already acted on the default.

1. Postal Service Rights. If the supplier repudiates the contract, the contracting officer may:

(a) Await performance for a reasonable time; or

(b) Resort to any remedy provided in this manual or the contract, even though the supplier has been notified that the Postal Service will await performance and the contracting officer has urged retraction; and

(c) In either case, suspend the Postal Service's own performance or proceed in accordance with the provisions of the contract's Default clause.

2. Supplier's Retraction of Repudiation

(a) The supplier can retract a repudiation up until the next performance is due, unless the Postal Service has, since the repudiation, changed its position or otherwise indicated that the repudiation is final.

(b) Retraction may be by any method that clearly indicates the supplier intends to perform, but must include any assurance demanded by the contracting officer.

(c) Retraction reinstates the supplier's rights under the contract if the failure to provide assurance is excusable and consideration is made to the Postal Service for any delay caused by the repudiation.

6.2.6 Bankruptcy

6.2.6.a General. When a supplier declares bankruptcy, the right of the Postal Service to take unilateral action is limited. Contracting officers should monitor the supplier's financial strength to anticipate problems which could arise and act promptly to protect Postal Service interests when notified of a supplier's bankruptcy.

6.2.6.b Procedures. When notified that a supplier is in bankruptcy proceedings, the contracting officer must:

1. Consult with assigned counsel before taking any action regarding the supplier's bankruptcy proceedings.

2. Determine the amount of any claims which the Postal Service may have against the supplier on any contracts which have not been closed out.

3. Take actions necessary to protect the Postal Service's financial interests and safeguard Postal Service property.

6.2.6.c Clause. The contracting officer must insert Clause 6-1, Bankruptcy, in all solicitations and contracts that are not for commercial items.

6.3 Quality Assurance

6.3.1 Inspection and Testing

6.3.1.a General

1. Quality assurance requirements, including inspection and testing, acceptance, and first article approval, are treated in 2.2.1 through 2.2.3. This section focuses on administering those requirements during contract performance.

2. Unless there are special requirements (see 2.2.1.d), the Postal Service inspects commercial items (see 4.3) at destination and only for type and kind; quantity; damage; operability (if readily determinable); and preservation, packaging, packing, and marking, if applicable.

6.3.1.b Nonconforming Supplies or Services

1. General

(a) Purchase teams may reject supplies or services not conforming to contract requirements.

(b) The repeated delivery of nonconforming property or services must not be allowed. In such cases, purchase teams should take appropriate action, such as rejecting delivery and having the purchasing organization document the rejection in the supplier's performance record.

2. Correction or Replacement

(a) Suppliers must be given an opportunity to correct or replace nonconforming supplies or services when it can be accomplished within the delivery schedule.

(b) Correction or replacement must be at no additional cost to the Postal Service.

(c) The Postal Service reserves the right to charge the supplier the cost of reinspection and retesting needed because of a previous rejection.

3. Rejection

(a) Determination. When correction within the delivery schedule is not possible, the purchase team must ordinarily reject supplies or services where nonconformance adversely affects safety, health, reliability, durability, performance, interchangeability of parts or assemblies, weight, appearance, or any other basic objective of the contract (but see 6.3.1.b.4).

(b) Notice. Suppliers must be given a notice of rejection promptly, including the reasons for rejection. If prompt notice is not given, acceptance may be implied as a matter of law. Notice must be in writing when:

(1) The supplier persists in offering nonconforming supplies or services for acceptance; or(2)

(3) Delivery or performance was late without an excusable cause.

4. Substitute Performance

(a) When replacement or correction is not possible within the performance period, and the purchase team has rejected performance, the contracting officer may provide the supplier an opportunity to provide acceptable substitute performance if the purchase team decides:

(1) Performance is still desired, and

(2) Substitute performance will best mitigate the damage suffered by the Postal Service.

(b) When substitute performance is accepted, the contracting officer must modify the contract to provide for appropriate consideration.

5. Accepting Defective Performance

(a) Minor Defects. The purchase team may waive minor noncomformities.

(b) Other Defects. The purchase team may not accept supplies or services where nonconformance adversely affects a basic contract objective unless acceptance is clearly in the Postal Service's interest. The purchase team's decision to accept the supplies or services must be put in writing by the contracting officer and be based on:

(1) Information on the nature and extent of the nonconformance;

(2) Advice of technical specialists that the material is safe to use and will perform its intended purpose;

(3) The supplier's request for acceptance of the supplies or service;

(4) A recommendation for acceptance by the intended user, with supporting rationale; and

(5) Appropriate monetary or other consideration.

(c) Consideration for Acceptance of Defective Performance

(1) When nonconforming supplies or services are accepted under 6.3.1.b.5.(a), the contracting officer need not modify the contract to provide for appropriate consideration, unless:

(i) It appears that the savings to the supplier in fabricating the nonconforming supplies or performing the nonconforming services exceed the cost to the Postal Service of processing and enforcing a modification.

(ii) The Postal Service's interests otherwise require a contract modification.

(2) When nonconforming supplies or services are accepted under (b) above, the contracting officer must modify the contract to provide for consideration.

6.3.2 Acceptance

6.3.2.a General

1. Acceptance constitutes acknowledgment that supplies or services conform with quality, quantity, and packaging requirements set forth in the contract.

2. Acceptance may take place before delivery, at delivery, or after delivery, depending on the contract's provisions.

6.3.2.b Responsibility. Acceptance is the responsibility of the contracting officer or his or her representative. When this responsibility is assigned to a contracting officer's representative or another postal employee, acceptance by that person is binding on the Postal Service.

6.3.2.c Place of Acceptance. Usually, contracts must specify the place of acceptance. Contracts providing for Postal Service inspection at source ordinarily provide for acceptance at source; those providing for inspection at destination ordinarily provide for acceptance at destination. Supplies accepted at a place other than destination may not be reinspected for acceptance at destination, but should be examined for quantity, damage in transit, and possible substitution or fraud.

6.3.2.d Supplier Certification. When purchasing commercial items, acceptance based on supplier certification may be in the Postal Service's interest when:

1. Only small losses will be incurred by a defect; or

2. The supplier's reputation or past performance suggests that the supplies or services will be acceptable, and defective work will be replaced, corrected, or repaired without contest.

6.3.2.e Revocation of Acceptance in Whole or in Part

1. If the value of performance has been substantially impaired, the purchase team represented by the contracting officer may revoke acceptance of nonconforming performance if acceptance has:

(a) Resulted from the reasonable assumption that the nonconformance would be cured and it is not cured; or

(b) Taken place because the nonconformance has not been discovered before acceptance, as a result of the difficulty of discovery, or because of the supplier's assurances.

2. Revocation of acceptance must occur within a reasonable time after the purchase team discovers or should have discovered the grounds for it and before any substantial change not caused by their own defects takes place in the condition of supplies. It is not effective until the contracting officer notifies the supplier.

3. The Postal Service has the same rights and duties upon revocation as upon rejection.

6.3.2.f Transfer of Title and Risk of Loss

1. Title to supplies passes to the Postal Service upon formal acceptance, regardless of when or where the Postal Service takes physical possession, unless the contract specifically provides for earlier transfer of title.

2. Unless the contract specifically provides otherwise, risk of loss or damage remains with the supplier until:

(a) Delivery of the supplies to a carrier if transportation is f.o.b. origin; or

(b) Acceptance by the Postal Service or delivery to the Postal Service at the destination specified in the contract, whichever is later, if transportation is f.o.b. destination.

3. The provisions of f.2 do not apply to supplies that are rejected. The risk of loss of or damage to rejected supplies remains with the supplier until cure or acceptance. After cure or acceptance, f.2 applies.

6.3.3 Receiving Reports

6.3.3.a General

1. Completed receiving reports should be submitted to the Accounting Service Center (ASC) within 5 days of receiving supplies or services.

2. If a receiving activities' reports are regularly received at the ASC more than 10 days after receiving supplies or services, this will be reported by the ASC to the appropriate purchasing organization for remedial action.

6.3.3.b Responsibility

1. The contracting officer must ensure that receiving activities get proper notification of contract awards, including the receiving reports generated by the contract writing system, with instructions for prompt completion and submission.

2. The contracting officer must provide the proper shipping and payment information to the supplier.

3. Day-to-day responsibility for monitoring the completion and submission of receiving reports may be delegated to purchasing personnel or, as necessary, to managers within the receiving installation.

4. Each installation head must:

(a) Designate in writing an individual (or individuals) responsible for receiving and accepting all delivered supplies and services.

(b) Provide the appropriate purchasing organizations with a copy of the designation.

(c) See that procedures are established to ensure that the individual responsible for receiving and accepting supplies is notified when a shipment arrives.

5. When partial shipments are certified for payment, a copy of the certified receiving report must be kept for use in receiving the balance of the shipment.

6.4 Payments and Financing

6.4.1 General

6.4.1.a Disputes. Contracting officers and financial personnel must ensure that payments legitimately due are made promptly. If a dispute arises regarding the supplier's entitlement to payment, the contracting officer must pay the supplier any amount not in dispute, except for withholding as allowed under 6.4.4.f.

6.4.1.b Partial Payments. The contracting officer should generally approve requests for partial payment upon delivery of supplies or services that partially fill contract requirements. When the contract does not provide unit prices, the contracting officer may determine an appropriate formula for payment.

6.4.1.c Cost Reimbursement. Requests for payment under contracts that are not fixed-price must be reviewed by the contracting officer, with the assistance of technical specialists, to determine whether they comply with the requirements for allowability, allocability, and reasonableness (see 5.2.3).

6.4.2 Invoices

6.4.2.a General. Payment will be made only after receiving an invoice (see Clause B-20, Invoices), except for:

1. Regularly scheduled payment under real estate leases and contracts for cleaning services, vehicle hire, and contract postal units;

2. Payments under mail transportation contracts;

3. Over-the-counter transactions for commercial items; or

4. Advance payments, when authorized.

6.4.2.b Submitting Invoices. Invoices must be sent to the office specified in the contract or order, with a copy to the contracting officer if necessary. Invoices sent to any other person or office are not considered properly submitted. Invoices submitted before performance or delivery violate the certification provision of the Invoices clause. Invoices may be submitted electronically.

6.4.3 Payment

6.4.3.a Methods. Payments may be made by check or electronic funds transfer, as requested by the supplier and approved by the contracting officer.

6.4.3.b Time of Payment. Payment must be made as close as possible to, but not later than, the 30th day after receiving an invoice or acceptance, whichever occurs later, except:

1. In those limited circumstances when a specified payment date is provided for in the contract, payment will be made as close as possible to, but not later than, that date.

2. When a time discount is taken, payment must be made as close as possible to, but not later than, the discount date. Discounts must be taken from the date on which the invoice is received by the office specified in the contract, or the date on which supplies or services are delivered or performed, whichever is later, to the discount date. Discounts should be taken whenever economically justified, but only after acceptance.

6.4.3.c Interest Payments

1. Interest will be paid automatically, whether or not a supplier has requested it, when all of the following conditions have been met:

(a) Acceptance has occurred and there is no disagreement over quantity, quality, or other contract provisions;

(b) A proper invoice has been received, except when no invoice is required for payment (see 6.4.2.a) or the contracting officer fails to give notice within 7 days after receipt of an improper invoice.

2. When a prompt payment discount is taken after the discount period has expired, the Postal Service has 10 days after expiration of the discount period to correct the underpayment. Failure to do so will result in the automatic payment of interest, whether or not the supplier has requested payment.

6.4.3.d Calculating Interest

1. Except when interest is required by a government authority (e.g., tariffs), it will be calculated using the rate set by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) in effect on the day after the due date. The rate will be published semiannually in the Postal Bulletin, in January and July. The rate will remain fixed during the period for which interest is calculated. Interest will accrue daily on the invoice amount approved by the Postal Service. It will be compounded in 30-day increments, starting with and including the first day after the due date through the payment date. Interest accrued at the end of any 30-day period will be added to the approved invoice payment amount and be subject to interest if not paid in the succeeding 30-day period.

2. For the sole purpose of computing interest under this policy, acceptance will have occurred on the 7th day after the supplier has delivered the supplies or services under the contract, unless there is a disagreement over quantity, quality, or supplier compliance. If actual acceptance occurs within 7 days of delivery, interest will be calculated based on the actual date of acceptance. When necessary to inspect and test the supplies or evaluate services, the contracting officer may specify a longer period for constructive acceptance in the solicitation and contract. The justification for extending the period beyond 7 days must be documented in the contract file.

3. If the office specified in the contract for receiving invoices fails to date stamp the invoice, the invoice due date will be the 30th day after the date of the invoice, provided that a proper invoice was received and there is no disagreement over the quantity, quality, or supplier compliance with the contract.

4. The interest amount, interest rate, and the period for which the interest was computed, will be stated separately on the check or accompanying remittance advice. If requested by the supplier, adjustments must be made for errors in calculating interest.

5. For contracts awarded on or after October 1, 1989, a penalty amount (calculated according to Office of Management and Budget regulations) will be paid, in addition to the interest, if the supplier:

(a) Is owed interest;

(b) Is not paid the interest within 10 days after the date the invoice amount is paid; and

(c) Makes a written demand that the Postal Service pay such a penalty not later than 40 days after the date the invoice amount is paid.

6. When a prompt payment discount is taken after the discount period has expired, interest must be calculated on the amount of discount taken improperly. The interest must be calculated for the period beginning with the first day after the end of the discount period through the date when the supplier is paid.

7. If the office specified in the contract for receiving invoices fails to notify the supplier of a defective invoice within 7 days after its receipt, the due date on the corrected invoice must be adjusted. The number of days taken beyond the 7-day period must be subtracted from payment due date. Any interest owed the supplier must be based on this adjusted due date.

6.4.3.e Alternate Provisions. The provisions on time of payment may be changed by agreement of the parties, but no interest may be paid by the Postal Service except as provided in 6.4.3.c.

6.4.3.f Final Payment. Final payment under any contract involving progress payments, retainage, payment or performance guarantees, or construction may not be made until the contracting officer receives a release from the supplier.

6.4.4 Withholding Payments

6.4.4.a General. The contracting officer may refuse to pay a supplier or may withhold payments, in whole or in part, when:

1. The contract provides for withholding (for instance, when retainage is authorized to withhold money to ensure debts are paid);

2. Elements of the amount invoiced by the supplier are not allowable (see 5.2.3);

3. The supplier has been overpaid or otherwise owes the Postal Service money as a result of the supplier's actions or inactions under the contract;

4. The supplier owes the Postal Service money for reasons unrelated to the contract; or

5. As a result of judicial action or law, parties other than the supplier have made claims against the Postal Service, or have not waived rights that may be exercised against the Postal Service.

6.4.4.b Actions by the Contracting Officer

1. Nonpayment may be damaging to a supplier's business and may jeopardize performance. Therefore, the contracting officer must carefully consider the reasons for withholding or refusing payment, and must process disputes regarding payment quickly.

2. The contracting officer must notify the supplier of any intended withholding and must provide the supplier an opportunity to object. If time permits, the notice should be in writing.

6.4.4.c Disallowing Costs

1. At any time during the performance of a contract that is not fixed price, the contracting officer may issue the supplier a written notice of intent to disallow specified incurred or planned costs (see Clause B-17, Disallowance of Costs). However, before issuing the notice, the contracting officer should make a reasonable effort to reach a satisfactory settlement.

2. If the supplier disagrees with the deduction from current payments, the supplier may:

(a) Request in writing that the contracting officer consider whether the unreimbursed costs should be paid and discuss the matter with the supplier;

(b) File a claim under Clause B-9, Claims and Disputes, which the contracting officer must process according to the procedures in 6.8; or

(c) Do both of the above.

3. Supplier discounts, rebates, and refunds offered voluntarily or provided for by contract clauses are not subject to this part and may be taken by adjustments to invoices or other procedures acceptable to the information service center.

6.4.4.d Setoffs and Recoupments

1. At any time during performance of a contract, the contracting officer may issue the supplier a written notice of intent to set off or recoup amounts due the Postal Service from payments otherwise due the supplier. However, before issuing the notice, the contracting officer should make a reasonable effort to reach a satisfactory settlement through negotiation.

2. If no settlement is reached, the contracting officer may withhold the amounts due the Postal Service by setoff or recoupment. A "setoff" is a deduction from payments due to the supplier under one contract for amounts due the Postal Service under one or more other contracts. "Recoupment" is a deduction of amounts due the Postal Service (for example, for damages for delay or defective performance, warranty costs, or repair costs) from the payment due the supplier under a single contract.

3. If the supplier disagrees with the intended setoff or recoupment, the provisions of 6.4.4.c.2 apply.

4. When contract payments have been assigned (see 6.4.7), the contracting officer must have the concurrence of counsel to use setoffs or recoupments.

6.4.4.e Third-Party Claims. The Postal Service may be subject to claims by third parties for money due a supplier. When a claim is filed with the contracting officer, counsel must be notified immediately. Counsel will provide instructions for handling the claim, disposing of the fund, and notifying the supplier.

6.4.4.f Withholding Payment Under Contract Clauses. Some contract clauses, such as Clause 2-10, Liquidated Damages, and Clause 2-8, Warranty, provide for withholding payment in certain circumstances. In addition, some contract clauses provide for withholding a percentage or portion of payments to induce continued acceptable performance. The contracting officer must strictly enforce such clauses and keep a complete record of the amounts withheld under any clause, the basis for withholding them, and the disposition of funds withheld.

6.4.5 Progress Payments

6.4.5.a General. The Postal Service only makes progress payments, when provided for by the contract, in return for demonstrated progress toward completion of performance.

6.4.5.b Computing Progress Payments

1. Progress payments, for nonconstruction contracts, must be based on costs incurred in performance. However, as provided in Clause 1-3, Progress Payments, the contracting officer may reduce or suspend payments where incurred costs vary substantially from actual progress under the contract. In such cases, the contracting officer should obtain the advice of technical personnel and counsel before computing the amount justified.

2. Progress payments for construction contracts are made according to Clause B-48, Payment (Construction).

6.4.5.c Supervision. The extent to which progress payments need to be supervised depends on the supplier's accounting system and controls and the supplier's experience, performance record, reliability, management, and financial strength.

6.4.5.d Administration

1. The contracting officer must obtain monthly progress reports from the supplier, showing progress on the work in relation to progress payments made.

2. The contracting officer may, in approving progress payment requests, rely on the supplier's accounting system and certification without prepayment reviews. However, post-payment reviews (including audits, when necessary) must be made periodically, or when necessary to determine the validity of progress payments already made or expected to be made.

3. Clause 1-3, Progress Payments, gives the Postal Service the right to reduce or suspend progress payments, or to increase the liquidation rate, under specified conditions. The contracting officer may take such actions only in accordance with the contract terms and only after:

(a) Notifying the supplier and providing an opportunity for discussion;

(b) Evaluating the effect of the action on the supplier's operations, on the basis of the supplier's financial condition, projected cash requirements, and existing or available credit arrangements; and

(c) Considering what is equitable in the particular situation.

4. The contracting officer may take immediate unilateral action only if warranted by circumstances such as overpayments or unsatisfactory contract performance. The contracting officer must always:

(a) Act fairly and reasonably;

(b) Base decisions on substantial evidence; and

(c) Document the contract file.

5. Progress payments are recouped by deducting liquidations from payments that would otherwise be due the supplier for completed performance. Usually, the liquidation rate is the same as the progress payment rate; and at the beginning of a contract, only this method may be used. Any liquidation method other than the usual method must be approved by the manager of Materials, Headquarters Purchasing, Field Customer Support, National Mail Transportation Purchasing, or Major Facilities Purchasing.

6.4.6 Limitation of Cost or Funds

6.4.6.a Administration

1. When a contract contains Clause 2-31, Limitation of Cost, or Clause 2-32, Limitation of Funds, and the supplier has notified the contracting officer that incurred costs are approaching the estimated cost of the contract or the funding limit, the purchase team must promptly obtain funding and information regarding the contract's continuation. The contracting officer must notify the supplier in writing that:

(a) Additional funds have been allotted, or the estimated cost has been increased, in a specified amount;

(b) The contract is not being funded further, and the supplier should submit a proposal for a fee adjustment, if any, based on the percentage of work completed in relation to the total work called for under the contract; or

(c) The contract is to be terminated.

2. The supplier is entitled by the contract terms to stop work when the funding or cost limit is reached, and any work beyond the funding or cost limit is at the supplier's risk.

6.4.6.b Effect of a Modification. The contracting officer may issue a change order, a direction to replace or repair defective items or work, or a termination notice without immediately increasing the funds available. Since a supplier is not obligated to incur costs above the estimated cost in the contract, the contracting officer must ensure that funds are available for directed actions. The contracting officer may direct that any increase in the estimated cost or amount allotted to a contract be used for the sole purpose of funding termination or other specified expenses.

6.4.7 Assignment of Claims

6.4.7.a Policy. A supplier may assign money that will be due under a Postal Service contract to a single bank or other financial institution, with the approval of the contracting officer (see Clause B-8, Assignment of Claims). Any other attempted assignment may be treated as a breach of contract.

6.4.7.b Approval. Contracting officers may approve any authorized assignment that does not jeopardize contract performance. See also the discussion of novation agreements in 6.5.4.

6.4.7.c Assignments by Law. This part does not pertain to assignments ordered by a court or law. Contracting officers should consult with counsel in such cases.

6.5 Contract Modifications

6.5.1 General

6.5.1.a Effective Dates

1. The effective date of an administrative change, change order, or other unilateral modification issued by the Postal Service is any effective date established in the contract or, if none, the date of the modification.

2. The effective date of a bilateral modification (such as a supplemental agreement; see 6.5.1.c.1) is any effective date established in the contract or, if none, the date agreement is reached (usually the date signed by the last agreeing party).

3. Modifications issued in connection with previous directions or agreements, such as settlements of the cost of changes, confirmations of terminations, or conversions of terminations for default to terminations for convenience, ordinarily take the effective date of the underlying action.

4. For modifications converting a termination for default to a termination for convenience, the effective date will be the same as the effective date of the termination for default.

6.5.1.b Policy

1. Except for certain mail transportation contracts (see 4.5.3), only contracting officers are authorized to sign contract modifications for the Postal Service. Other Postal Service personnel may not:

(a) Act in a manner that causes the supplier to believe they have authority to bind the Postal Service; or

(b) Direct or encourage the supplier to perform work that should be covered under a contract modification.

2. Contract modifications, including changes that can be issued unilaterally, must be priced before they are signed if it can be done without adversely affecting the interest of the Postal Service. If a significant cost increase could result from a contract modification and time does not permit negotiating a price, at least a maximum price must be negotiated whenever practicable. See 2.3.2 for modifications affecting Technical Data Packages.

6.5.1.c Types of Modifications. There are two types of contract modifications:

1. Bilateral modifications (supplemental agreements) that are signed by both the supplier and the contracting officer. Examples of bilateral modifications are modifications to:

(a) Make equitable adjustments under Clause B-2, Changes; Clause B-37, Changes (Construction); or other clauses providing for equitable adjustment; or

(b) Reflect other agreements of the parties modifying contract terms.

2. Unilateral modifications are signed only by the contracting officer in accordance with a contract clause. Examples of unilateral modifications would be modifications to:

(a) Make administrative changes (unilateral changes, in writing, that do not affect the substantive rights of the parties, such as a change in the paying office);

(b) Issue change orders;

(c) Make changes authorized by specific clauses or contract provisions (such as exercising an option or suspending work); and

(d) Issue termination notices.

6.5.1.d Notification of Contract Changes. Under the Changes clause, when a supplier considers that any written or oral order (including a direction, an interpretation, an instruction, or a determination) from the contracting officer causes a change in the contract, the supplier must notify the contracting officer in writing that the supplier regards the order as a change order. The contracting officer must then evaluate the order, notify the purchase team of the findings, and:

1. Confirm that it is a change, direct further performance, and plan for its funding;

2. Countermand the alleged change; or

3. Notify the supplier that no change is considered to have been ordered.

6.5.1.e Availability of Funds

1. The contracting officer may not execute a contract modification that causes or will cause an increase in funds without having first met with the purchase team and obtained a certification of funds availability, except for modifications to contracts that:

(a) Are conditioned on availability of funds; or

(b) Contain a limitation of cost or funds clause.

2. The certification of funds availability should be based on the negotiated price. Modifications signed before there is price agreement may be based on the best available estimate.

6.5.1.f Exercise of Options

1. Before exercising an option, the purchase team must determine that:

(a) Funds are available,

(b) The Postal Service still needs the supplies or services covered by the option, and

(c) Exercising the option is the most advantageous alternative, price and other factors considered ("other factors" includes any need for continuity of operations and the cost of disrupting operations).

2. The contracting officer must determine that the option price is the most advantageous to the Postal Service, based on one of the following:

(a) Market research clearly indicates that a better price than that offered by the option cannot be obtained;

(b) The time between the award of the contract containing the option and the exercise of the option is so short that the option price is probably the lowest obtainable, considering such factors as market stability and usual duration of supply or service contracts; or

(c) A new solicitation fails to produce a better price than that offered by the option. (This method of testing the market should be used only if neither of the other methods is satisfactory.)

3. If the contract provides for economic price adjustment, the effect of such adjustment on prices under the option must be ascertained in determining whether to exercise the option.

4. When an option is to be exercised, the contracting officer must, in writing:

(a) Determine that the option may properly be exercised under f.1 above;

(b) Notify the supplier within the time specified in the contract that the option is being exercised; and

(c) Modify the contract as needed, citing the option clause as authority.

6.5.1.g Correcting Mistakes

1. A contract may be modified to correct or mitigate the effect of a mistake. Examples are:

(a) A mistake or ambiguity consisting of the failure to express, or express clearly, in a written contract, the agreement as both parties understood it.

(b) A supplier's mistake so obvious that it was or should have been apparent to the contracting officer.

(c) A mutual mistake concerning a material fact (particularly, mistakes concerning the promises the parties made to one another under the contract).

2. A claim of mistake that is asserted after award, and a decision to deny a claim of mistake asserted after award, in whole or in part, is handled under the procedures of Clause B-9, Claims and Disputes (see 6.8.3).

6.5.2 Change Orders

6.5.2.a General

1. The Changes clause allows the contracting officer to make unilateral changes, as specified in the clause, within the general scope of the contract. These changes are accomplished by issuing written change orders.

2. The supplier must continue performing under the contract as changed, except under contracts that are not fixed-price or incrementally funded where the supplier is not obligated to continue or incur costs beyond the limits established in Clause 2-31, Limitation of Cost, or Clause 2-32, Limitation of Funds.

6.5.2.b Accounting

1. Suppliers' accounting systems are seldom designed to segregate the costs of performing changed work. Clause B-21, Change-Order Accounting, requires them to do so.

2. The following categories of direct costs are usually segregable and accountable under Clause B-21:

(a) Nonrecurring costs (for example, engineering costs and costs of reperformed work).

(b) Costs of distinct tasks added by the change order (for example, new subcontract work, new prototypes, or new retrofit kits).

(c) Costs of recurring work (for example, labor and material costs).

6.5.2.c Administration

1. When change orders are not priced before performance, they usually require two documents: the change order and a supplemental agreement reflecting an equitable adjustment for the change order. If an equitable adjustment in the contract price or delivery terms, or both, can be agreed upon in advance, only a supplemental agreement need be issued. If the change order has no effect on price or delivery, no equitable adjustment or supplemental agreement is needed. Administrative changes and changes issued under a clause giving the Postal Service a unilateral right to make a change (such as an option clause) require only one document.

2. Contracting officers must promptly negotiate equitable adjustments resulting from change orders, and must follow up when claims for equitable adjustment are not received within 30 days after the order.

3. Before negotiating an equitable adjustment, the contracting officer must ensure that price and cost analyses, as appropriate, are made and must consider the supplier's segregable costs of the change, if available. If additional funds are required as a result of the change, the funds must be available before the supplemental agreement is signed.

4. To avoid controversies that may result from a supplemental agreement making an equitable adjustment, the contracting officer should:

(a) Ensure that all elements of the equitable adjustment have been presented and resolved; and

(b) Include a release of claims in the supplemental agreement.

6.5.3 Equitable Adjustments for Delays

6.5.3.a General. In determining the consequences of events that delay performance, the United States Court of Federal Claims and the Postal Service Board of Contract Appeals have applied general risk-allocation principles. These have been supplemented by standard contract clauses under which the time and cost effect of delays are dealt with separately. Clause B-19, Excusable Delays, deals with the types of events that protect the supplier from sanctions for late performance. Other clauses, such as Clause B-16, Suspensions and Delays, cover the recovery of costs associated with delays. The supplier bears the risk of schedule and cost effects for delays it causes or for delays within its control. Generally, the supplier is excused from nonperformance due to delays caused by factors for which neither the supplier nor the Postal Service is responsible. However, the supplier must bear the cost impact of such delays. The Postal Service is responsible for the schedule and cost effects of delays it causes, delays that are under its control, or delays for which it has agreed to compensate the supplier. Clause B-15, Notice of Delay, requires the supplier to notify the contracting officer of problems that might delay performance.

6.5.3.b Excusable Delays

1. A supplier may be granted an extension of the delivery or performance schedule for an excusable delay.

2. A supplier's failure to perform may be considered an excusable delay when it arises out of either:

(a) Causes beyond the control and without the negligence of the supplier - including acts of God or the public enemy; acts of the government in its sovereign capacity or the Postal Service in its contractual capacity; and fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, or

(b) A subcontractor default due to causes beyond the control and without the fault or negligence of both the supplier and the subcontractor, unless the supplies or services were obtainable from another source in time to permit the supplier to meet the delivery schedule.

6.5.3.c Compensable Delays

1. A supplier may be granted an extension of the contract delivery or performance schedule, a price adjustment, or both, as the purchase team, represented by the contracting officer, deems appropriate, when an unreasonable delay in performance is caused by the Postal Service or is under its control, or when it has agreed to pay the supplier for the delay. Situations that may entitle the supplier to an equitable adjustment (schedule, cost, or both) include:

(a) Delay in issuing the notice to proceed;

(b) Delay in availability of the site;

(c) Differing site conditions;

(d) Actual or constructive changes or delays;

(e) Delay in providing funding;

(f) Delay in inspections;

(g) Delay in issuing changes;

(h) Delay in providing Postal Service furnished equipment; and

(i) Failure to perform by other Postal Service suppliers.

2. The supplier has the burden of proof in establishing the basis for the equitable adjustment required to overcome the delay.

6.5.3.d Concurrent Causes. When a delay is attributable to both the Postal Service and the supplier, a contract delivery or performance schedule adjustment should not normally be granted for a period of delay caused at least in part by actions or failures on the part of the supplier. (But damages may not be assessed against the supplier in these situations.)

6.5.3.e Acceleration

1. The Postal Service has the right to require accelerated performance under Clause B-2, Changes. This right should be exercised only when required to maintain the operational capability of the Postal Service.

2. Contracting officers must document the specific facts that require acceleration of performance and the estimated impact on contract price. Whenever possible, the contracting officer must negotiate acceleration actions in advance.

3. Contracting officers should be alert to constructive acceleration situations. Constructive acceleration occurs when the Postal Service does not agree to a delivery or performance schedule extension to which the supplier is entitled (or is later determined to be entitled), causing the supplier to accelerate performance. Constructive acceleration may result in a claim for a price increase.

6.5.4 Novation and Change-of-Name Agreements

6.5.4.a Definitions

1. "Change-of-name agreements" are agreements signed by the supplier and the Postal Service that recognize a legal change of the supplier's name without otherwise altering the original contract.

2. "Novation agreements" are agreements signed by the supplier (the transferor), the successor in interest (transferee), and the Postal Service, by which, among other things, the transferor guarantees performance of the contract, the transferee assumes all obligations under the contract, and the Postal Service recognizes the transfer of the contract and related assets.

6.5.4.b Responsibility

1. The contracting officer is responsible for:

(a) Determining, in consultation with counsel, whether to permit contract novation; and

(b) Processing and signing novation and change-of-name agreements.

2. When multiple contracts of one supplier or transfers from several transferors to one transferee are involved, the contracting officer responsible for the largest unsettled (unbilled plus billed-but-unpaid) contract dollar balance is responsible for executing the novation or change-of-name agreement.

6.5.4.c Novation Policy

1. The Postal Service generally prohibits contract novation (see Clause B-8, Assignment of Claims). However, the Postal Service may recognize a third party as the successor in interest when that party's interest arises out of the transfer of:

(a) All the supplier's assets; or

(b) The entire portion of the assets involved in performing the contract.

2. Situations in which novation may be permitted include but are not limited to:

(a) Sale of the supplier's assets with a provision for assuming liabilities;

(b) Transfer of assets as part of a merger or corporate consolidation; and

(c) Incorporation of a proprietorship or partnership, or formation of a partnership.

3. Before concurring in a contract novation, the contracting officer must determine the capability (see 2.1.7.3) of the successor in interest.

4. When it is not in the Postal Service's interest to concur in a contract novation, the original supplier remains responsible for performance, and the contract may be terminated for default for failure to perform.

6.5.4.d Change of Name. A change-of-name agreement is appropriate when only a change of the supplier's name is involved, and the rights and obligations of the parties remain unaffected. The agreement must be signed by the contracting officer and the supplier modifying all existing contracts between the parties to reflect the name change.

6.6 Postal Service Property

6.6.1 Supplier's Property Control Systems

6.6.1.a Review. The contracting officer or the representative assigned to act as property administrator should review suppliers' property control systems to ensure compliance with the contract's property clauses.

6.6.1.b Noncompliance. The property administrator should notify the supplier in writing when its property control system does not comply with the contract requirements, requesting prompt correction of deficiencies. If the supplier does not correct the deficiencies within a reasonable period, the property administrator should request action by the contracting officer. The contracting officer may:

1. Notify the supplier in writing of any required corrections and establish a schedule for completion;

2. Caution the supplier that failure to take the required corrective action within the time specified will result in withholding or withdrawing system approval; and

3. Advise the supplier that its liability for loss of or damage to Postal Service property may increase if approval is withheld or withdrawn.

6.6.2 Records

6.6.2.a Record Keeping. Supplier records of Postal Service property, established and maintained under the terms of the contract, are the Postal Service's official records. Duplicate official records should be furnished to or maintained by Postal Service personnel, except as provided in 6.6.2.b.2.

6.6.2.b Maintenance by the Postal Service. Contracts may provide for the official records to be maintained by the Postal Service when Postal Service property is furnished:

1. For repair or servicing and return to the shipping organization;

2. For use at a Postal Service installation;

3. Under a local support service contract;

4. Under a contract with a short performance period or involving Postal Service property with an acquisition cost of $50,000 or less; or

5. When otherwise determined by the contracting officer to be in the Postal Service's interest.

6.7 Subcontracting Policies and Procedures

6.7.1 General

6.7.1.a Requirements

1. When a contract contains Clause B-18, Subcontracts, the supplier must notify the contracting officer in advance of its intent to subcontract. The supplier may enter into a subcontract unless notice of disapproval is received from the contracting officer within 15 days from the date the contracting officer was notified.

2. The purchase team, represented by the contracting officer, must:

(a) Promptly evaluate supplier notices of intent to subcontract;

(b) Obtain assistance in this evaluation, as necessary, from subcontracting, audit, pricing, technical, or other specialists; and

(c) Have the contracting officer notify the supplier in writing if the subcontract is disapproved.

6.7.1.b Considerations

1. The purchase team must review the notice of intent to subcontract and any supporting data and should consider the following:

(a) Is the subcontractor to acquire special test equipment or facilities that are available from Postal Service sources?

(b) Is the selection of the particular supplies, equipment, or services technically justified?

(c) Was adequate price competition obtained or its absence justified?

(d) Did the supplier adequately assess its subcontractor's alternate proposals?

(e) Does the supplier have a sound basis for selecting and determining the capability of the subcontractor?

(f) Has the supplier performed adequate price or cost analysis?

(g) Is the proposed subcontract type appropriate for the risks involved and consistent with current policy?

(h) Will subcontractors be working in Postal Service-furnished facilities?

(i) Has the supplier adequately and reasonably translated prime contract technical requirements into subcontract requirements?

(j) Is the proposed subcontractor on the Postal Service's consolidated list of debarred, suspended, and ineligible suppliers?

2. Particularly careful and thorough consideration is necessary when:

(a) The prime supplier's purchasing system or performance is inadequate;

(b) Close working relationships or ownership affiliation between the prime and subcontractor may preclude free competition or result in higher prices;

(c) Noncompetitive subcontracts are proposed at prices that appear unreasonable, or higher than those offered the Postal Service in comparable circumstances; or

(d) Subcontracts are proposed that are not fixed-price.

6.7.2 Limitations

6.7.2.a Lack of Disapproval. Lack of disapproval of a subcontract does not constitute a determination of the acceptability of the subcontract terms or price, or of the allowability of costs.

6.7.2.b Disapproval to Avoid Disputes. Subcontracts should not be disapproved merely because they give the subcontractor the right to appeal a dispute to the Board of Contract Appeals in the name of the prime supplier.

6.8 Claims and Disputes

6.8.1 General

6.8.1.a Contract Disputes Act. This section and Clause B-9, Claims and Disputes, implement the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).

6.8.1.b Policy. It is Postal Service policy to resolve contractual issues by mutual agreement at the level of the contracting officer. In addition, the Postal Service supports and encourages the use of alternative dispute resolution (ADR) as an effective way to understand, address and resolve conflicts with suppliers. The contracting officer, working with the purchase team, should consider an ADR method to resolve a dispute, if agreed to by the supplier. ADR methods may include informal negotiation, mediation by a neutral third party, facilitation by an ombudsman, or other approved methods. These efforts to resolve differences should be made before the issuance of a final decision on a claim. Even when the supplier does not agree to use ADR, the contracting officer, working with the purchase team, should consider holding informal discussions between the parties in order to resolve the conflict before the issuance of a final decision.

6.8.2 Claim Initiation

6.8.2.a Receipt. Supplier claims must be submitted in writing to the contracting officer for final decision. The contracting officer must document the contract file with evidence of the date of receipt of any submission that the contracting officer determines is a claim. Supplier claims must be submitted within 6 years after accrual of a claim unless the parties agreed to a shorter time period. The 6 year time period does not apply to contracts awarded prior to October 1, 1995.

6.8.2.b Decision. The contracting officer must issue a written decision on any Postal Service claim against a supplier, within 6 years after accrual of a claim unless the parties agreed to a shorter time period. The 6 year time period does not apply to contracts awarded prior to October 1, 1995, or to a prior Postal Service claim based on a supplier claim involving fraud.

6.8.2.c Certified Claims. Each supplier claim exceeding $100,000 must be accompanied by the certification required in Clause B-9, Claims and Disputes. That certification must also be provided for any claim, regardless of dollar amount, before ADR is used.

6.8.2.d Misrepresentation or Fraud. When the contracting officer determines that the supplier is unable to support any part of the claim and there is evidence that the inability is attributable to either misrepresentation of fact or fraud on the supplier's part, the contracting officer must deny the claim and refer the matter to the Inspection Service.

6.8.3 Decision and Appeal

6.8.3.a Contracting Officer's Authority. Contracting officers are authorized to decide or settle all claims arising under or relating to a contract subject to the Contract Disputes Act, except for:

1. Claims or disputes for penalties or forfeitures prescribed by statutes or regulation that a federal agency administers; or

2. Claims involving fraud.

6.8.3.b Contracting Officer's Decision. When a claim by or against a supplier cannot be resolved by agreement, and a decision under Clause B-9, Claims and Disputes is necessary, the contracting officer, working with the purchase team, may use an approved ADR method to assist in resolving the claim. If the purchase team determines that ADR is not appropriate, or if the supplier refuses to participate, the contracting officer must review the facts pertinent to the claim, obtain assistance from assigned counsel and other advisors, and issue a final decision in writing. The decision must include a description of the claim or dispute with references to the pertinent contract provisions, a statement of the factual areas of agreement and disagreement, and a statement of the contracting officer's decision with supporting rationale.

6.8.3.c Insufficient Information. When the contracting officer cannot issue a decision because the supplier has not provided sufficient information, the contracting officer must promptly request the required information. Further failure to provide the requested information is an adequate reason to deny the claim.

6.8.3.d Furnishing Decisions. The contracting officer must furnish a copy of the decision to the supplier by certified mail, return receipt requested, or by any other method that provides evidence of receipt.

6.8.3.e Decisions on Claims for $100,000 or Less. If the supplier has asked for a decision within 60 days, the contracting officer must issue a final decision on a claim of $100,000 or less within 60 calendar days of its receipt. The supplier may consider the contracting officer's failure to issue a decision within the applicable time period as a denial of its claim, and may file a suit or appeal on the claim.

6.8.3.f Decisions on Certified Claims. For certified claims over $100,000, contracting officers must either issue a final decision within 60 calendar days of their receipt or notify the supplier within the 60-day period of the time when a decision will be issued. The time period established must be reasonable, taking into account the size and complexity of the claim, the adequacy of the supplier's supporting data, and any other relevant factors.

6.8.3.g Wording of Decisions. The contracting officer's final decision must contain the following paragraph:

"This is the final decision of the contracting officer pursuant to the Contract Disputes Act of 1978 and the clause of your contract entitled Claims and Disputes. You may appeal this decision to the Postal Service Board of Contract Appeals by mailing or otherwise furnishing written notice (preferably in triplicate) to the contracting officer within 90 days from the date you receive this decision. The notice should identify the contract by number, reference this decision, and indicate that an appeal is intended. Alternatively, you may bring an action directly in the United States Court of Federal Claims within 12 months from the date you receive this decision."

6.8.3.h Additional Wording for Decisions of $50,000 or Less. When the claim or claims denied total $50,000 or less, the contracting officer must add the following to the paragraph in g:

"In taking an appeal to the Board of Contract Appeals, you may include in your notice of appeal an election to proceed under the Board's Small Claims (expedited) procedure, which provides for a decision within approximately 120 days, or an election to proceed under the Board's accelerated procedure, which provides for a decision within approximately 180 days. If you do not make an election in the notice of appeal, you may do so by written notice anytime thereafter."

6.8.3.i Additional Wording for Decisions Over $50,000 Up to $100,000. When the claim or claims denied total $100,000 or less, but more than $50,000, the contracting officer must add the following to the paragraph g:

"In taking an appeal to the Board of Contract Appeals, you may include in your notice of appeal an election to proceed under the Board's accelerated procedure, which provides for a decision within approximately 180 days. If you do not make an election in the notice of appeal, you may do so by written notice anytime thereafter."

6.8.3.j Appeals

1. Contracting officers must have sufficient information available at the time a final decision is issued on a claim so as not to delay the resolution of appeals within the period set for an expedited or accelerated disposition. Once an appeal is docketed and expedited or accelerated disposition is elected, contracting officers must devote sufficient resources to the appeal to ensure that the schedule for resolution is met.

2. Purchasing offices may seek to settle the controversy after an appeal has been filed. However, processing of the appeal must not be suspended during the efforts to settle the controversy, unless the Board of Contract Appeals directs a suspension.

6.8.3.kPayment. Any amount determined in a final decision to be payable, less any portion previously paid, usually should be promptly paid to the supplier without prejudice to either party in the event of appeal or action on the claim. In the absence of appeal by the Postal Service, a board or court decision favorable in whole or in part to the supplier must be implemented promptly by payment by the appropriate information service center. In cases when only the question of entitlement has been decided and the matter of amount has been remanded to the parties for negotiation, a final decision of the contracting officer must be issued if agreement is not reached promptly.

6.8.3.l Interest. Interest on the amount found due on the supplier's claim must be paid from the date the contracting officer received the claim (properly certified, if required, in accordance with Clause B-9, Claims and Disputes), or from the date payment would otherwise be due, if that date is later, until the date of payment. Simple interest will be paid at the rate established by the Secretary of the Treasury for each 6-month period in which the claim is pending. Information on the rate at which interest is payable is announced periodically in the Postal Bulletin.

6.8.3.m Review of Adverse Actions. The Postal Service will seek review of an adverse decision of the Board of Contract Appeals in the Court of Appeals for the Federal Circuit, if the Vice President (VP), Purchasing and Materials (P&M), with the concurrence of the General Counsel or the General Counsel's designee, decides to pursue an appeal.

6.9 Contract Termination

6.9.1 General

6.9.1.a Applicability

1. This section applies to contracts that contain clauses permitting termination for the convenience of the Postal Service or for supplier default, and to those contracts with clauses that provide for termination on notice. It establishes uniform policies for the complete or partial termination of such contracts.

2. The provisions of this section must be used by the contracting officer as a guide in evaluating settlement of a subcontract terminated for the convenience of a supplier whenever the settlement could be the basis of a claim for reimbursement.

3. The contracting officer may follow the provisions of this section in determining any equitable adjustment resulting from a modification to a fixed-price contract under the Changes clause.

6.9.1.b Review and Approval. No contract priced at or with a potential termination liability exceeding $1 million may be terminated for convenience or default unless the VP, P&M, has approved termination. In addition, no contract, regardless of price, which is considered sensitive or highly visible may be terminated for convenience or default unless the VP, P&M, has approved termination.

6.9.1.c General Principles

1. Contracts may be terminated, whether for default, convenience, or upon notice, only when it is in the interest of the Postal Service.

2. The contracting officer may terminate a contract on notice or use a no-cost settlement agreement instead of other forms of termination when:

(a) The supplier will accept a no-cost settlement or the contract allows termination on notice;

(b) Postal Service property was not furnished or will be returned; and

(c) All outstanding payments, claims, and supplier obligations are or will be resolved.

6.9.1.d Termination Notice

1. General

(a) The contracting officer may terminate contracts only by written notice to the supplier. (In terminating a fixed-price contract for default for a cause other than failure to make timely delivery, the termination notice discussed here must be preceded by the notice or notices discussed in 6.9.3.b.5 and 6.9.3.b.6.)

(b) Notice must be by:

(1) Certified mail, return receipt requested;

(2) Telegraphic notice; or

(3) Hand delivery with written acknowledgment by the supplier.

(c) The notice must state:

(1) The type of termination and the contract clause authorizing the termination;

(2) The date the supplier is required to stop performance;

(3) The extent of the termination and, if a partial termination, the portion of the contract to be continued; and

(4) Any special instructions.

2. Distribution. When the termination notice is sent to the supplier, the contracting officer must simultaneously send a copy to the information service center and to any known assignee, guarantor, or surety of the supplier.

3. Amendment. The contracting officer may amend a termination notice to:

(a) Correct nonsubstantive mistakes in the notice;

(b) Add supplemental data or instructions;

(c) Rescind the notice if the work terminated has been completed or shipped before the supplier receives the notice; and

(d) Reinstate the terminated portion of a contract.

4. Reinstatement. The contracting officer may, with the consent of the supplier, reinstate the terminated portion of a contract in whole or in part by amending the notice of termination when:

(a) Circumstances clearly indicate a requirement for the terminated portion; or

(b) Reinstatement is otherwise advantageous to the Postal Service.

6.9.2 Termination for Convenience

6.9.2.a General

1. Applicability. The provisions of 6.9.2 apply to all fixed-price contracts containing Clause B-11, Termination for Convenience, and all contracts that are not fixed-price containing Clause B-12, Termination for Convenience or Default.

2. Type of Settlement

(a) The contracting officer may settle contracts terminated for convenience by:

(1) Negotiated agreement;

(2) Contracting officer determination;

(3) Costing out under vouchers, if the contract is a cost-reimbursement contract; or

(4) A combination of these methods.

(b) When possible, the contracting officer should negotiate a fair and prompt settlement with the supplier.

6.9.2.b Supplier's Duties. After receiving a termination notice and unless directed otherwise by the contracting officer, the supplier must comply with the contract clause and the termination notice, which generally require that the supplier:

1. Stop work immediately on the terminated portion of the contract and stop placing subcontracts under that portion;

2. Terminate all subcontracts related to the terminated portion of the contract;

3. Immediately advise the contracting officer of any special circumstances precluding stoppage of work;

4. Perform the continued portion of the contract and promptly submit any request for an equitable adjustment of price with respect to the continued portion, supported by evidence of any increase in the cost;

5. Take necessary action to protect and preserve property in which the Postal Service has or may acquire an interest, and deliver the property to the Postal Service or otherwise dispose of it as directed by the contracting officer;

6. Promptly notify the contracting officer in writing of any legal proceedings growing out of a subcontract or other commitment related to the terminated portion of the contract;

7. Settle outstanding liabilities and claims arising out of subcontract terminations, with prior approval or ratification as required by the contracting officer;

8. Promptly submit a settlement proposal, supported by appropriate schedules; and

9. Dispose of any termination inventory, as directed by the contracting officer.

6.9.2.c Settlement of Subcontractor Claims

1. Subcontractor Rights. A subcontractor has no contractual rights against the Postal Service but may have rights against the Postal Service supplier or the immediate subcontractor with which it has contracted. Upon termination of a Postal Service contract, or a change that necessitates subcontract termination, the supplier and each subcontractor are responsible for prompt settlement of the termination claims of their immediate subcontractors.

2. Prime Supplier's Rights and Obligations

(a) The termination clauses provide that, upon termination, the supplier must, unless directed otherwise by the contracting officer, terminate all subcontracts to the extent that they relate to performance of the work terminated.

(b) The reasonableness of the supplier's settlement with a subcontractor should be measured by the aggregate amount that would be due under an equivalent Postal Service termination clause. The contracting officer may allow reimbursement in excess of that amount only in unusual cases, and then only when satisfied that the subcontract terms were negotiated in good faith and did not unreasonably increase the subcontractor's rights.

3. Delay in Settling Subcontractor Claims. When a supplier's inability to reach settlement with a subcontractor delays the settlement of the Postal Service contract, the contracting officer may settle with the supplier for all amounts except the subcontractor's settlement proposal, and reserve Postal Service and supplier rights as to the proposal.

4. Assistance in Subcontract Settlements. In unusual cases, the contracting officer may determine that it is in the interest of the Postal Service to offer to assist the supplier in settling a particular subcontract. The Postal Service, the supplier, and the subcontractor may then enter into an agreement covering settlement of the subcontract. In these cases, the subcontractor must be paid through the supplier as part of the overall settlement.

5. Direct Settlement by the Postal Service. The Termination for Convenience clause gives the Postal Service the right, but not the obligation, to settle and pay any claims arising out of subcontract terminations. Direct settlements with subcontractors are not encouraged, because the Postal Service supplier is obligated to settle and pay a subcontractor's termination claims. However, when the contracting officer determines that it is in the interest of the Postal Service to settle a subcontractor's claim directly, the contracting officer may, after consultation with assigned counsel and after notifying the supplier, direct the assignment of all supplier rights to the Postal Service, and settle the subcontractor's claim using the procedures for settling Postal Service contracts. An example in which the interest of the Postal Service would be served is when a subcontractor is the sole source of a product and it appears that a delay by the supplier in settling the subcontractor's claim will jeopardize the subcontractor's financial position.

6.9.3 Termination for Default

6.9.3.a General

1. Termination for default is the exercise of the Postal Service's right to completely or partially terminate a contract by reason of the supplier's actual or anticipated failure to perform. When the contracting officer has the right to terminate a contract for default, the total undelivered contract quantity, whether delinquent or not, may be terminated for default.

2. If the supplier can establish that its failure to perform arose out of causes beyond its control and without its fault or negligence, the default termination clause provides that a termination for default will be deemed a termination for the convenience of the Postal Service, and the rights and obligations of the parties will be governed accordingly.

3. When a contract provides for liquidated damages, the contracting officer must mitigate damages when grounds for termination for default exist by having the supplier perform or terminating the contract for default. Liquidated damages, once incurred, may be remitted in whole or in part as may be just and equitable, upon the recommendation of the Vice President, Purchasing & Materials, and after consultation with assigned counsel.

4. When the contracting officer determines in writing that the supplies or services are still required and that reinstatement is advantageous to the Postal Service, the contracting officer may reinstate the terminated portion of a contract, but only with the supplier's written consent.

5. For termination for default of orders placed under Federal Supply Schedule (FSS) contracts, consult the General Services Administration.

6.9.3.b Fixed-Price Contracts

1. Postal Service Rights and Obligations

(a) Under the Termination for Default clause, the Postal Service has the right, subject to the notification requirements of the clause, to terminate all or any part of a contract without regard to severability of contract obligations when the supplier:

(1) Fails to complete any material requirement of the contract within the time specified in the contract (including any extensions);

(2) Fails to make progress to a degree that it endangers performance of the contract;

(3) Fails to perform any other contract provision; or

(4) Fails to give adequate assurances as required by 6.2.5.

(b) The Postal Service is not liable for the supplier's costs on undelivered work and is entitled to repayment of any progress payments for undelivered work.

(c) The contracting officer may have the supplier transfer title and deliver completed supplies and manufacturing materials to the Postal Service. The completed supplies and manufacturing materials may be acquired for use in continuing the terminated contract work or use under another contract.

(d) Subject to the provisions of (e)(4), the Postal Service must pay the supplier the contract price for any supplies completed and delivered, and the amount agreed upon by the contracting officer and the supplier for any manufacturing materials acquired by the Postal Service.

(e) The Postal Service must be protected from failure to make provision for the Postal Service's potential liability to laborers and material suppliers for lien rights. The contracting officer must take one or more of the following measures before making the payment referred to in (d):

(1) Ascertain whether any payment bonds furnished by the supplier are adequate to satisfy all claims, or whether it is feasible to obtain similar bonds to cover outstanding liens.

(2) Require the supplier to furnish statements from laborers and material suppliers disclaiming any lien rights they may have in the supplies and materials.

(3) Obtain agreement between the Postal Service, the supplier, and any claimants to release the Postal Service from any potential liability to the supplier or claimants.

(4) Withhold from the amount otherwise due for the supplies or materials an amount the contracting officer determines necessary to protect the Postal Service's interest, in accordance with 6.4.4.

(5) Take any other action that is appropriate in view of the supplier's degree of solvency and other circumstances.

(f) The supplier is liable to the Postal Service for any excess costs the Postal Service incurs in acquiring supplies and services similar to those terminated for default, and any other damages, whether or not repurchase is made.

2. Determination of Appropriateness. When a default termination is being considered, the contracting officer should ensure that termination for default, rather than convenience, is appropriate. The contracting officer should consult with the purchase team, other purchasing personnel, technical specialists, and counsel, and consider:

(a) The provisions of the contract, and applicable laws and regulations.

(b) The specific failure of the supplier and, unless time does not permit, the excuses for failure.

(c) The availability of the supplies or services from other sources.

(d) The urgency of the need for the supplies or services, and whether or not they can be obtained sooner from sources other than the delinquent supplier.

(e) The degree to which the supplier is essential to the Postal Service, and the effect of a termination for default on the supplier's capability as a supplier under other contracts.

(f) The effect of a termination for default on the ability of the supplier to liquidate progress payments.

(g) Any other pertinent facts and circumstances.

3. Surety Notification and Arrangements

(a) When a termination for default appears imminent, the contracting officer must send a written notification of that fact (not an actual notice of default) to any surety, at both its main and local offices.

(b) If requested by the surety, and agreed to by the supplier and any assignees, arrangements may be made to have future checks mailed to the supplier in care of the surety. In this case, the supplier must forward a written request to the designated disbursing officer, specifically directing a change in address for mailing of checks.

4. Initiating Termination - Failure to Make Timely Delivery

(a) When a supplier fails to make timely delivery, the contracting officer has a reasonable time after the delivery date to determine whether the contract should be terminated for default. When the supplier is continuing performance of the contract, a reasonable time for the contracting officer to make a decision is 30 working days. Delay beyond that period may result in a waiver of the right of the Postal Service to terminate for default.

(b) When the contracting officer determines that termination for default is proper, the contracting officer should issue a termination notice at once, following the procedures in b.7. No demand for adequate assurances should be issued. However, the contracting officer may allow the supplier to assert any alleged excusable delay.

(c) If a contracting officer's delay in issuing a notice of termination for default results in a waiver of that right, a new delivery date must be established by bilateral or unilateral modification of the contract. The new delivery date must be reasonable considering all the circumstances of contract performance. When the new date is established, the right to terminate for default is reinstated.

5. Notice of Impending Termination - Causes Other Than Failure to Make Timely Delivery. When the contracting officer makes a preliminary determination that termination for default is appropriate in cases other than failure to make timely delivery, the contracting officer should, if practicable, notify the supplier in writing of the possibility of termination. This notice may:

(a) Call the supplier's attention to its liabilities in the event that the contract is terminated for default;

(b) Request that the supplier show cause why the contract should not be terminated for default;

(c) State that failure of the supplier to explain why the contract should not be terminated may be taken as an admission that no valid explanation exists;

(d) When appropriate, invite the supplier to discuss the matter at a conference.

6. Demand for Adequate Assurance - Causes Other Than Failure to Make Timely Delivery

(a) A written notice must be issued when the contracting officer determines that the supplier is failing to make satisfactory progress to a degree it endangers contract performance, or determines that some other failure, under the contract or otherwise (other than failure to make timely delivery), is cause for concern. However, no demand is required when there is anticipatory repudiation of the contract, that is, when the supplier positively states, by work or action, that it will not or cannot perform its contractual obligations (see 6.2.6).

(b) The demand must specify the failure and give the supplier 10 days (or longer, if necessary) to assure the Postal Service of steps that will be taken to cure the failure.

(c) When the time remaining in the contract delivery schedule does not permit a response period of 10 days or longer, a demand may be made part of the notice described in b.5.

7. Termination Notice

(a) Immediately upon determining that termination is proper under b.4, or upon expiration of the 10-day or longer period allowed by a notice under b.6, the contracting officer may issue a notice of termination for default, unless it is determined that nonperformance will be cured.

(b) When a demand for adequate assurance has been issued, the notice of termination must be coordinated with counsel before issuance.

(c) The notice of termination for default must meet all the general requirements set forth in 6.9.1.d, as well as:

(1) Set forth the contract number and date;

(2) Describe the acts or omissions constituting the default;

(3) State that the supplier's right to proceed with performance of the contract (or a specified portion of the contract) is terminated;

(4) State that the supplies or services terminated may be procured against the supplier's account, and that the supplier will be held liable for any excess repurchase costs;

(5) State that the Postal Service reserves all rights and remedies provided by law or under contract, in addition to charging excess costs; and

(6) Inform the supplier that the termination is subject to Clause B-9, Claims and Disputes.

(d) When the contracting officer has determined that the failure to perform is not excusable, the termination notice must also state that it reflects that decision, and that the supplier has the right to appeal as specified in Clause B-9, Claims and Disputes.

(e) The contracting officer must make the same distribution of the termination notice as was made of the contract, and any surety must be furnished a copy and asked to advise whether it desires to arrange for completion of the work.

(f) The contracting officer must notify the information service center to withhold further payments under the terminated contract.

8. Procedure in Lieu of Termination. When the contracting officer determines that the supplier's failure to perform arose from causes beyond its control and without its fault or negligence, the contracting officer may not terminate the contract for default. When it is in the interest of the Postal Service, the contracting officer may, instead of terminating the contract for default:

(a) Terminate the contract for convenience;

(b) Permit the supplier, its surety, or its guarantor to continue performance under a revised delivery schedule;

(c) Permit the supplier to continue performance by means of a subcontract or other arrangement with an acceptable third party, if the rights of the Postal Service are adequately preserved; or

(d) Execute a no-cost termination settlement agreement (or terminate on notice if allowed under the contract) if the requirement for the supplies and services specified in the contract no longer exists and the supplier is not liable to the Postal Service for damages, as provided below.

9. Determination Following Termination Notice. When the contracting officer is unable to determine, before issuing the notice of termination, whether the supplier's failure to perform arose from causes beyond its control and without its fault or negligence, the contracting officer must make a written decision on that point as soon as practicable after issuing the notice. This decision must be delivered promptly to the supplier, with a notification of the right to appeal as specified in Clause B-9, Claims and Disputes.

10. Contracting Officer Memorandum. When a contract is terminated for default, or when a procedure authorized by b.8 is followed, the contracting officer must prepare a memorandum for the contract file that fully explains the action taken.

6.9.3.c Contracts Other than Fixed-Price

1. Postal Service Rights and Obligations. The right to terminate a contract that is not fixed-price for default is provided under Clause B-12, Termination for Convenience or Default. In the event of termination, the supplier must be reimbursed costs allowed under the clause (the costs of preparing the supplier's settlement proposal are not allowable). Any fee payable under the contract must be reduced as directed by the clause. The clause does not give the Postal Service the right to recover excess repurchase costs, but it does give the Postal Service continuing rights when the supplier fails to replace or correct defective supplies.

2. Determination and Notice. The contracting officer must consider the factors in b.2 in determining whether termination for default is appropriate. Under Clause B-12, Termination for Convenience or Default, the supplier must be given the notice or notices required by b.5 and b.6, before terminating for default.

6.9.4 Termination on Notice

6.9.4.a General. Termination on notice is the exercise of a right to terminate a contract without further obligation. Such a right is frequently provided in certain structured contracts (see 4.6.8), particularly those requiring the performance of services or those of indefinite length. If appropriate to the particular purchase, contracting officers, with the assistance of assigned counsel, may draft and include contract clauses which provide only the Postal Service or both parties the right to terminate on notice. The clause should provide that the notice to terminate will be provided to the other party a certain number of days before the termination will occur.

6.9.4.b Written Notice. If the contract contains a termination on notice clause, the Postal Service may terminate the contract by sending the supplier a written notice consistent with the clause. Compliance with the clause is required; a supplier need not honor a notice inconsistent with the contract terms.

6.9.4.c Default. If a contract containing a termination for notice clause also contains a clause allowing for termination for default or for cause which calls for less notice than that required by the termination on notice clause, and it is subsequently established that the termination for default or cause was improper, the supplier's damages entitled will be limited to the additional amount to which the supplier would have been entitled had the termination for default or cause been a termination on notice.

6.10 Remedies and Damages

6.10.1 Remedies

6.10.1.a Postal Service's Security Interest. On rightful rejection or justifiable revocation of acceptance, the Postal Service has a security interest in supplies delivered under the contract for any payments and expenses reasonably incurred in inspection, receipt, transportation, care, and custody (in other words, they can be used to secure payment to cover those incurred costs).

6.10.1.b Repurchase Against Supplier's Account

1. When supplies or services are still required after termination for default, the contracting officer may repurchase the same or similar supplies or services against the supplier's account as soon as practicable. The repurchase price must be reasonable considering the quality and time requirements. Whenever practicable, the contracting officer should make the decision to repurchase before issuing a termination notice.

2. The contracting officer may repurchase a larger quantity than the quantity terminated for default when needed, but the defaulting supplier may be charged for no more than the terminated quantity (including any variations in quantity permitted by the terminated contract).

3. If the repurchase is for a quantity no larger than the terminated quantity, the contracting officer may use any terms and purchase methods appropriate for the repurchase, following normal approval or deviation procedures. If the repurchase is for a larger quantity than the terminated quantity, the entire quantity must be treated as a new purchase.

4. If the repurchase price is higher than the price of the terminated supplies or services, the contracting officer must, after final payment on the repurchase contract, demand the excess amount from the supplier, in writing, taking into account any increases or decreases in cost due to transportation charges, discounts, and other factors.

6.10.2 Damages

6.10.2.a Default. If a contract is terminated for default, or if a procedure is used in lieu of termination for default, the contracting officer must ascertain and demand any damages to which the Postal Service may be entitled. These damages are in addition to any excess repurchase cost.

6.10.2.b Breach Damages for Accepted Supplies

1. When the contracting officer has accepted defective supplies under 6.3.1.b.5, the Postal Service may recover, as damages for any nonconformity, the loss under usual circumstances resulting from the supplier's breach. This may be determined in any reasonable manner.

2. Damages for breach of warranty are the difference, at the time and place of acceptance, between the value of the supplies or services accepted and the value they would have had if they had been as warranted, unless special circumstances show there are proximate damages (damages resulting directly from the breach of warranty) of a different amount.

3. Normally, incidental and consequential damages may also be recovered.

(a) Incidental damages include expenses reasonably incurred in the inspection, receipt, transportation, and care and custody of supplies rightfully rejected; any commercially reasonable charges; expenses in connection with repurchase; and any other reasonable expense incidental to the delay or other breach.

(b) Consequential damages include:

(1) Any loss resulting from contract requirements and needs which the supplier should have been aware of when the contract was signed and which could not be reasonably prevented; and

(2) Injury to people or property resulting directly from a breach of warranty.

6.10.2.c Deduction of Damages from the Price. The contracting officer, on notifying the supplier, may deduct all or any part of the damages resulting from any breach of the contract, or from late delivery or delay not subject to liquidated damages (see 2.2.6), from any part of the price still due.

6.10.2.d Damages for Nondelivery or Repudiation

1. Damages for nondelivery or repudiation by the supplier when repurchase is not possible are the difference between the market price at the time when the contracting officer learned of the breach and the contract price, together with any incidental and consequential damages, but less expenses saved as a consequence of the supplier's breach.

2. Market price is determined at the place of acceptance or, in cases of rejection after arrival or revocation of acceptance, at the place of arrival.