Does Christian Doctrine apply to micro-purchase? How T4D a micro-purchase?

govt2310 said:

What if a situation arises under which the agency needs to terminate?

What would be the nature of the termination, e.g., default, convenience, etc.?  Does the documentation for the "contract" contain any language regarding termination?  Finally, do you actually have a contract in place?

What are the seller’ conditions of the sales transaction?  What does the UCC say about  cancelling a transaction?

What is the real circumstance?

1. Supplies.

2. Services.

3. Something else?

4. Government made an order, vendor has not delivered/performed, vendor has not charged card.

5. Government made an order, vendor has not delivered/performed, vendor has already charged card.

6. Government made an order, vendor has delivered/performed, vendor has not charged card.

7. Government made an order, vendor has delivered/performed, vendor has already charged card.

8. Something else?

With facts, you might get better answers.

I would hazard a guess that, at the micro-purchase threshold, it's simply cheaper not to terminate the contract. I might be wrong (because that would be a common sense position) but that's my guess.

govt2310 said:

For a micro-purchase, the FAR clauses on Termination for Default/Cause/Convenience are not required to be put into the Contract.

What does "the" contract consist of? Documents, clauses, Statement of work, etc. Was there a meeting of the minds, describe what was sold and bought in "the" contract, what went wrong and what is the factual basis for default or termination, or is this just an intellectual exercise?

FAR 13.201 (d) says this

Quote

(d)  Micro-purchases do not require provisions or clauses, except as provided at  13.202 and  32.1110. This paragraph takes precedence over any other FAR requirement to the contrary, but does not prohibit the use of any clause.

So if your purchase is silent on clauses the Christian Doctrine wouldn’t apply

Let's say the agency wants to do a Termination for Convenience.  Assume the vendor's boilerplate agreement is silent as to termination.  Assume the vendor has partially performed the service, and has already been paid in full.  Say the vendor provides training sessions for federal employees, and there are to be 10 sessions, and the vendor has already done 2 of the 10 sessions.

I see that Christian Doctrine doesn't work here.  Well, it sounds like the agency would have to negotiate the termination clauses into the Micro-Purchase Contract then.  Thoughts?

Please clarify:

Has the company been paid for 10 training sessions but only provided two sessions?

Certainly, it should only be paid for the training it provided, right?

Or are you saying that it’s been paid for the two training classes it provided and now the government doesn’t want any more? 

If so, is it a performance issue or a change of requirements?

So, it is 2 and 2 from my lists above?

Please don't try to negotiate additional clauses into the contract.  Oh, is there a contract?

Maybe you should excuse the contractor from further performance, and close the matter?

govt2310 said:

Let's say

My thoughts and research-------

I agree do not attempt a modification to the micro-purchase order.  Otherwise consider -

With regard to the Christian Doctrine remember it is a legal doctrine applied by courts.  Now one might use it as an element to consider in solving a conflict prior to reaching the courts with such conflict but its reference to solving your matter escapes me to some extent unless you are saying you currently have a conflict at hand with regard to the micro-purchase.   This said I did find reference to a Nash Cibinic article that discusses the potential of application of Christian to purchase card buying.   I do not have access to Nash Cibinic but if you do go here it might help - MANDATORY CONTRACT CLAUSES: Can They Be Incorporated By Regulation? Nash & Cibinic Report February 2014 28 No. 2 Nash & Cibinic Rep. NL ¶ 10

My research also suggests that If you have no good cause for the termination (breach of some sort, quality that does not meet even the vendors agreement, etc.) then you would depend on reasonable notice to terminate.   While it depends on what is reasonable notice is it would usually include it being in advance of the intended delivery of the services and acceptable to the circumstances.   

I would add that sometimes commercial entities have what I will call hidden terms and conditions that require you to dig deeper than just the "boilerplate agreement".  For example the  agreement might provide or otherwise references terms and conditions found elsewhere like on a website or the like.  In a close read of the boilerplate make sure there is no such reference and then head down the track of reasonable based on the particular facts of the micro-purchase.

ji20874 said:

So, it is 2 and 2 from my lists above?

Please don't try to negotiate additional clauses into the contract.  Oh, is there a contract?

Maybe you should excuse the contractor from further performance, and close the matter?

I’ve seen this a couple times before with training vendors.  They offer a bundle of courses packaged with a single commercial package price.   It’s often for training on a suite of office software.  The vendor is paid with a purchase card.  Later the agency decides they don’t need all the courses at that time.  The vendor offers a voucher for the remaining courses at no additional cost to be taken over the following year.  The other choice is just excusing the contractor as you said.

Contractor has already charged the card.  Contractor has already performed 2 of the 10 training sessions.

Yes it is "2 and 2" that ji20874 asked.

C Culham, thanks for the N&C cite, I will try to find it. 

We don't want a voucher, we want our money back.  I'm surprised that there isn't a standard training practice out there, by any agency, that trains purchase card holders to put termination clauses that favor the Government into micro-purchases, just in case things go wrong.  Or is there?

The topic title asks "how to T4D a micropurchase." Not T4C. Terminate for Default. That was the premise.

In what way did the vendor fail to perform -- especially if 20% of the acquired services have been delivered?

We're talking about $10,000 here, right?

Let it go, man -- unless you feel the Government has been defrauded in some way. In which case, refer it to the appropriate authorities for action.

here_2_help said:

Let it go, man

I  appreciate the reference to T4D which I overlooked but I am not so sure Let It Go is appropriate counsel.  

@govt2310 The GPC program does have a dispute process which I would suggest you look into.  Some agencies have a policy document that addresses.   If you can not find readily try an internet search "how to dispute a GPC charge" and you might find you agency's policy.   Here are some samples for you (below), some might be dated.  Also based on further research the Nash Cibinic article probably deals with this FAR reference - 32.1108 - which you might want to read but provides little help on process.

https://smartpay.gsa.gov/sites/default/files/downloads/14-00138_508LR FINAL .pdf

https://www.acq.osd.mil/asda/dpc/ce/pc/faq.html

https://www.dcma.mil/Portals/31/Documents/Policy/MAN_4301-03V2_20210419.pdf

https://www.acquisition.gov/afars/chapter-3-gpc-electronic-systems

govt2310 said:

Contractor has already charged the card.  Contractor has already performed 2 of the 10 training sessions.

Yes it is "2 and 2" that ji20874 asked.

C Culham, thanks for the N&C cite, I will try to find it. 

We don't want a voucher, we want our money back.  I'm surprised that there isn't a standard training practice out there, by any agency, that trains purchase card holders to put termination clauses that favor the Government into micro-purchases, just in case things go wrong.  Or is there?

The Government is typically accepting the seller's terms in a GCPC purchase. What are the seller's terms for partial cancellation?

Sorry: I mean T4D not T4C.

C Culham, thanks, I will look into the GPC program dispute process.

Don Mansfield, the seller's terms are silent on partial cancellation.  It is very sparse.

How about a credit card chargeback?

@govt2310 Good advice here.    

Quote

Maybe you should excuse the contractor from further performance, and close the matter?

Quote

but I am not so sure Let It Go is appropriate counsel.

You did a micro purchase with no clauses.  The vendors terms are silent on cancellation and sparse as you said.

So the options are talk with the vendor and negotiate something mutually satisfactory or spend hours on research and likely involve senior people in your office as well as legal counsel spending a large amount of administrative time and expense.

FAR 13.301 Governmentwide commercial purchase card states that agencies are supposed to establish procedures for the use and control of the card.  FAR 13.302-4 Termination or cancellation of purchase orders explains what to do regarding termination.  It states, “If a purchase order that has been accepted in writing by the contractor is to be terminated, the CO shall process the termination in accordance with FAR 12.403 and FAR 52.212-4(l) or (m) for commercial products and commercial services,” or “FAR 49 or FAR 52.213-4 for other than commercial products or commercial services.” 

It seems that FAR 13.302-4 applies to all GPC purchases, including those below the MPT.  What it sounds like is, if the services purchased are commercial, then, even if the amount is below the MPT, if the vendor has accepted in writing "the purchase order," and the CO needs to terminate, then the FAR 52.212-4 applies.  Isn't this saying that FAR 52.212-4 is a "required" clause that, even if it is somehow left out, it will be read into the Contract pursuant to the Christian Doctrine.

govt2310 said:

It seems

I necessarily do not disagree.  Others will.   In the end I suggest one on one with the vendor.   If they are silent dispute the GPC charges and be comfortable that you have done the best you can!

govt2310 said:

It seems

Really? Are you dealing with (1) a purchase using the GPC, or (2) a purchase order?  You assert that FAR 13.302-4 applies to both purchases using the GPC and purchase orders, but I don't understand the basis for your assertion.  According to my understanding,

• FAR 13.301 applies to purchase card purchases, and
• FAR 13.302-1, -2, -3, -4, and -5 apply to purchase orders.

govt2310 said:

it will be read into the Contract pursuant to the Christian Doctrine

Isn't the Christian Doctrine is a judicial doctrine or remedy?  Are contracting officers allowed to cite the Christian Doctrine as authority for imposing their will on contractors?  

I think maybe you are pushing too hard.  I agree with Carl for one-on-one with the vendor, and then maybe a credit card chargeback if appropriate.

ji20874, I see what you are saying.  My scenario is dealing with a micro-purchase using the GPC, not a "purchase order."  

But still, while FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3." 

So for next time, if we are doing a purchase that is below the MPT, but we do it using a Purchase Order instead of using the GPC, then FAR 13.302-4 applies (it brings in FAR 52.212-4 termination clauses), right?

Note, FAR 2.101 Definitions defines "Purchase order" as Purchase order, when issued by the Government, means an offer by the Government to buy supplies or services, including construction and research and development, upon specified terms and conditions, using simplified acquisition procedures.

I'm trying to find Form SF 44.  The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher.  But the form is not there.  What happened to SF 44?

govt2310 said:

I'm trying to find Form SF 44.  The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher.  But the form is not there.  What happened to SF 44?

Try this.  https://www.acquisition.gov/far/13.306

The form shows up at the beginning in a pdf link

formerfed said:

Try this.  https://www.acquisition.gov/far/13.306

The form shows up at the beginning in a pdf link

When I click your link, it brings me to the GSA link that I posted, and there is no SF 44 form to click on there.

govt2310 said:

When I click your link, it brings me to the GSA link that I posted, and there is no SF 44 form to click on there.

Hmmm.  Do you have Adobe installed?  Strange.  When I click, the form pops up.  If you are using a government computer, maybe it’s blocking things

Edit:  I see what you mean.  When I use Google, the link doesn’t work.  Odd that GSA doesn’t fix that.

govt2310 said:

FAR 13.201(b) says the GPC "shall be the preferred method to purchase and to pay for micro-purchases," it also says at FAR 13.201(c) says purchases below the MPT "may be conducted using any of the methods described in subpart 13.3."

Do what the FAR says -- for a micropurchase, take your pick among FAR 13.301 (preferred, and your selection for the case in this thread), 302, 303, 305, or 306.

If you choose 13.302 for a micropurchase, then YES, you will use appropriate clauses for a purchase order because you're in 13.302, and 13.302 prescribes clauses for purchase orders. 

But for the case in this thread, are you ready to drop the idea of imposing T4D clauses?  And maybe use GPC dispute procedures instead?

Looks like GPC dispute procedures is what needs to be done in the case I presented for this thread.  Thanks everyone!  Much appreciated!

Hey, just curious.  Did they flub the two course sessions presented?

Wishing Good luck for you.

govt2310 said:

When I click your link, it brings me to the GSA link that I posted, and there is no SF 44 form to click on there.

I asked a friend what’s going on.  He replied a decision was made several years ago to phase out the SF 44 because the Debt Collection Improvement Act requires maximum use of EFT.  But he couldn’t remember how that decision was communicated.  He thinks it was something saying let’s not continue any longer but the FAR hasn’t been changed.  I searched FAR 53 forms and the SF 44 isn’t listed.  Really odd.

On 9/30/2023 at 10:47 AM, govt2310 said:

I'm trying to find Form SF 44.  The only link I found is https://www.gsa.gov/reference/forms/us-government-purchase-order-invoice-voucher.  But the form is not there.  What happened to SF 44?

Aside from the other discussion concerning the SF44, the form is or was only usable for situations with a single delivery and a single payment. It isn’t  intended for up front payment for future services.

The GPC shouldn’t be used for upfront payment of future services, either in my opinion.

I wouldnt make a single payment up front for ten classroom courses….

https://www.acquisition.gov/node/29498/printable/pdf

joel hoffman said:

Hey, just curious.  Did they flub the two course sessions presented?

Wishing Good luck for you.

Sort of.

govt2310 said:

Looks like GPC dispute procedures is what needs to be done in the case I presented for this thread.  Thanks everyone!  Much appreciated!

Just for everyone’s information, I found this about the Disputes process for services not provided, when using the Citibank GPC:  

https://www.citigroup.com/tts/solutions/commercial-cards/assets/docs/govt/Transaction-Dispute-Office-Guide.pdf

govt2310 said:

Sort of.

As I continue to read this discussion thread I get the feeling there is the here and now with a specific situation and how you might address for the future.  I say this per the mention of the SF-44.  Here is a thought moving forward, the government purchase card by some references is called the Government Commercial Purchase Card (GCPC), reference FAR 13.301.  Implication is therefore it is used to purchase commercial products and services.   Usually, at least based on my understanding, purchase of the needs just in time or now.  As a previous commenter provided purchasing future services might be questionable yet I could see the need sometimes.   So if there is a need, along with the need, as demonstrated in this thread, for some clauses to protect the delivery of future services, why not, as allowed by FAR 13.301(c)(3) have a simple order using say a SF-1449 or something like it (reference FAR 12.204), include a clause or two and provide that payment will be made by GCPC.  There might be argument about inclusion of FAR clause 52.212-4 in total yet consider both FAR 12.102 and tailoring of 52.212-4 as allowed by FAR 12.302.

Of course you would have to have a willing vendor to do so, therefore just a thought on my part for consideration.

Sample of extending this thought -

This order provides for both the purchase of and payment of the following services via the Government Commercial Purchase Card.

Well, even under a TFD situation where there was partial performance, a contractor would be paid for what it did accomplish, unless the partial performance was unacceptable.

However, there would have to be a mutually understood (meeting of the minds) as to what constitutes an “acceptable” performance standard.

If the government decided that it is disappointed with the training provided and wants to cancel the remaining sessions, my guess is that any credit card refund would be limited to the cost of the 8 unperformed training sessions.

I recently heard a presentation from a senior acquisition official from the Army Contracting Command.  The gist, and I think the title was contracting is not rocket science.  Her key point is we all too often make things more complicated than necessary.

This thread is a good example.  A prudent first step is talking with the training provider explaining that the first two courses weren’t good and the government doesn’t want anymore.  Then ask what is a fair settlement.  Instead we got into the Cristian Doctrine, looking at possible clauses that might or should have been used, the SF 44, and the P-Card and associated dispute of the charge.  All this for something under the micro purchase threshold.

I’m not being critical of gov2310 because I know he’s relatively new to our field, I know the office he works in and their working atmosphere, and his steps aren’t that much different than many others would do.  We tend to look for legal answers, clauses, and court decisions to back up every action we plan to take.  But in this case, the solution is just plain common sense.  Now maybe that was tried and we aren’t aware of it.  Even so, it doesn’t make sense to incur a large amount of time and administrative expense attempting to remedy a minor problem.  I’ve seen many similar situations where an agency simply got the vendor to extend the performance period and made the offerings available to the entire agency.

Reminds me of another current thread about “what authority to direct” a supplier not to try to deliver some products/items in the event that there would have been a govt shutdown (for a few days).

Common sense would have led me to call the supplier and ask if they could delay shipment for a few days in the event of a shutdown. I’ll bet that they would have been willing to do that. I’ve successfully done that with personal orders when we were going to be gone for a few days to avoid leaving it outside on the front steps.

Of course, calling and actually speaking to a human contractor rep may be terrifying to some (many?)  government employees.

joel hoffman said:

Of course, calling and actually speaking to a human contractor rep may be terrifying to some (many?)  government employees.

True.  The 1102 workforce negatively suffers from two forces.  One is they are risk adverse and afraid to take actions on their own.  Everything must be in writing and concurred in by superiors and legal counsel.  The second is they are afraid of oral communications.  That’s why there are very few negotiated procurements any longer.  In the rare instances where it happens, negotiations are written.  Companies will also say government contracting people rarely call to discuss items.  Communications are more likely to be via email and days late.

formerfed said:

True.  The 1102 workforce negatively suffers from two forces.  One is they are risk adverse and afraid to take actions on their own.  Everything must be in writing and concurred in by superiors and legal counsel.  The second is they are afraid of oral communications.  That’s why there are very few negotiated procurements any longer.  In the rare instances where it happens, negotiations are written.  Companies will also say government contracting people rarely call to discuss items.  Communications are more likely to be via email and days late.

 A very sad state of affairs. Such a waste of opportunity!!

It isn’t limited to the 1102 workforce but they sometimes stood out in my experiences.

As a long time negotiator for contracts, mods and claims, I noted much of that reluctance across the Army Corps of Engineers when teaching various contract admin classes, such as mods and claims and teaching design-build and construction source selection processes up until 2016.  This wasn’t limited to COE. Our classes included students from many other agencies and career fields. 

It was evident when making project and program review team visits to different Districts while on the MILCON Transformation Program Leadership Team (PLT) in the 2005-2013 period.

It has recently been extremely difficult to get many people to answer a live call!  They seem to prefer text messages…

joel hoffman said:

It has recently been extremely difficult to get many people to answer a live call!  They seem to prefer text messages…

This may be a symptom of a change in society as a whole.  Texting seems to be the preferred method of communication among younger people today.

Retreadfed said:

This may be a symptom of a change in society as a whole.  Texting seems to be the preferred method of communication among younger people today.

Text first to see if the person is available. Then call. That is proper etiquette.

here_2_help said:

Text first to see if the person is available. Then call. That is proper etiquette.

Ah, the new etiquette.  How does one text first on a land line?

joel hoffman said:

How does one text first on a land line?

Many people do not have landlines at home.  With so many people working from home, landlines are frequently not available.

joel hoffman said:

Ah, the new etiquette.  How does one text first on a land line?

Nobody has land lines anymore. If you work in an office that has land lines, move on. It's a sign of regression

On 9/29/2023 at 9:50 AM, C Culham said:

With regard to the Christian Doctrine remember it is a legal doctrine applied by courts.

Exactly. Has nothing really to do with the FAR per se.  A good CO would certainly consider it as part of a risk assessment associated with a decision, but it's not something the CO can invoke as an authority to direct a contractor.  Unless the application of Christian is crystal clear with some relevant precedent, as a CO I wouldn't even go there at all unless there was a sound legal opinion to back it up (because it's a legal issue as CC points out).  The Christian Doctrine is very narrowly applied for good reason.

How about down-scoping the contract to match what has been delivered, de-obligate excess funds, and Bob's Your Uncle?

REA'n Maker said:

How about down-scoping the contract to match what has been delivered, de-obligate excess funds, and Bob's Your Uncle?

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase.

REA'n Maker said:

How about down-scoping the contract to match what has been delivered, de-obligate excess funds, and Bob's Your Uncle?

ji20874 said:

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase.

Plus it may not be simple to down-scope or submit a dispute for a defined amount.  The OP hasn’t provided details but many training companies sell training in a packaged bundle.  That may be the situation here.  The government makes a GPC purchase, the credit card company provides a consolidated invoice for all the agency purchases over the month, and they get paid.

Most of this is speculation. We don’t know enough facts about the whole situation, e.g.,

•whether or not the partial performance met a defined requirement (“sort of”), if any was defined?

•if performance of the first session met requirements(?) or expectations(?)

• if no, was there feedback to provider before the second session?, etc.

•WHY they want all(?) or part(?) of their money back?

…in order to  provide appropriate advice.

I find it hard to believe that the OP can’t get appropriate legal advice from his/her agency or lower level legal office.

ji20874 said:

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase

So the issue is how to claw back funds?  

Based on my recent experience obtaining my FAC-C Level III (after obtaining my DAWIA Level III in the late 90's) I'm shocked anyone could do a bad enough job providing training to get themselves effectively terminated.  The FAC-C training providers weren't even presenting the correct subject matter and could have cared less when informed of that fact (e.g., teaching and testing DFARS/DoD PGI and the proper use of WPN funding to an audience of DHS employees, among other patent absurdities).

REA'n Maker said:

The FAC-C training providers weren't even presenting the correct subject matter and could have cared less when informed of that fact (e.g., teaching and testing DFARS/DoD PGI and the proper use of WPN funding to an audience of DHS employees, among other patent absurdities).

A friend of mine told me that the training contracts awarded by FAI use LPTA.