Show Cause or Cure Notice
In preparing a cure notice, care should be taken to identify the failures and to suggest the cures. The 10 days may be prolonged if the contracting officer considers it reasonably necessary. The contractor can use the failure to provide the cure notice as an absolute defense in its termination for default appeal. Failure to provide the required cure notice is disastrous.
As a final warning or if the time remaining for delivery is inadequate to permit a realistic cure period of 10 days or more, the show cause letter, set forth in FAR 49.607(b) may be used. It should be sent immediately upon termination of the delivery period. The letter informs the contractor that default is pending and invites the contractor to show why the contract should not be terminated. It refers to the missed delivery date or the failure to cure the deficiencies cited in the cure notice. The contractor is given one last chance.
Contractors should take these notices very seriously and prepare complete responses. They should fully explain any justifiable causes of delay or failure to perform. They should remember that any acts or omissions of the government giving rise to constructive changes are recognized excuses. The contractor must carefully address the issues raised in the notices.
The contracting officer must send a cure notice prior to terminating an order for a reason other than late delivery. A cure notice isn’t necessary when the reason for termination is late delivery.
If the time remaining in the order delivery schedule is not adequate to permit a realistic cure period of 10 days or more, the cure notice should not be issued and the performance period should be allowed to expire. The cure notice should:
• Specify the failures endangering performance of the order
• Allow a period of at least 10 days for the contractor to cure the failures
• Notify the contractor that unless the situation is cured, the ordering activity may terminate the order
• Identify the GSA Schedule clause permitting order termination for cause
Once the contractor receives the cure notice, he/she has the chance to correct the problem.
An ordering activity contracting officer may dismiss individual orders for cause. The ordering activity shall notify the schedule contracting officer of all instances of termination for cause of individual orders or if fraud is assumed. If the contractor declares that the failure was excusable, the ordering activity contracting officer shall follow the procedures in FAR 8.406-6, as appropriate.
The ordering activity contracting officer must report any terminations for cause to FAPIIS. See FAR 8.406-4(e) and 42.1503(f).
An order to show cause is a type of court order that requires one or more of the parties to a case to justify or prove something to the court. Courts usually use orders to show cause when the judge needs more information before deciding whether or not to issue an order requested by one of the parties. For example, if a party requests that the court find another party in disapproval of an existing court order, the judge will typically issue an order to show cause re- contempt to the party accused of being in contempt of court.
At the hearing on the order to show cause concerning contempt, the judge will take evidence from both sides concerning the apparent failure to comply with the court order. Appellate courts often issue orders to show cause to lower courts requesting that the lower court explain why the appellant shouldn’t be given the relief requested by the summons or appeal. An order to show cause is always a temporary order because it’s never the first or the final action in a legal action.
Call Malyszek & Malyszek today for a free initial consultation regarding your matters involving a cure notice or a show cause letter.
