Federal News Network reported on a strange case in which a U.S. Personal Services Contractor (PSC) appealed a Termination for Convenience. The individual appealing the termination was a Senior Development Outreach and Communication Specialist with USAID’s West Africa Regional Office in Accra, Ghana.
In terminating the contract, the Executive Officer, serving as Contracting Officer for personal services contracts, sent the PSC a letter explaining, ‘This requires a commitment to working with USAID. And you’ve told us expressly that you’re going to work independently and not collaboratively. You’re not going to go to public events. You don’t want to work within our framework for approvals. So this isn’t working out.” While such language would suggest that the PSC was being terminated for default, the Executive Officer likely used the termination for convenience authority to spare the PSC from future problems in being tagged as defaulting on a federal contract.
Terminating for convenience is not common, but should be routine, based on the Government’s authority to stop contracts unilaterally – without appeal. The Executive Officer’s letter, however, mistakenly included language in the termination letter advising the PSC that he could appeal the termination to the Board of Contract Appeals.
The PSC followed the language in the letter and appealed the decision to the Board of Contract Appeals. The Board dismissed the appeal on the basis that termination decisions by the government are not subject to appeal.
The only appealable element of the termination would have been the settlement of costs associated with the termination, such as the flight back to the States.
The story highlights the importance of understanding the termination for convenience process and the limited appeal rights available to contractors. It also emphasizes the need for contracting officers to provide accurate information and guidance to contractors.
Read or listen to Haynes Boone procurement attorney Zach Prince discuss the case with Tom Temlin on Federal Drive with Tom Termin on Federal News Network here.
