Quote from: joek on 06/14/2015 04:43 amUnder the current contracts, if there are funding limitations, NASA could choose to stretch both contracts, or possibly terminate one. However, in the latter case, you can bet there will be a challenge unless termination is due to a failure to perform by the loser.What would failure to perform be? Missing a single milestone date by a month?
Under the current contracts, if there are funding limitations, NASA could choose to stretch both contracts, or possibly terminate one. However, in the latter case, you can bet there will be a challenge unless termination is due to a failure to perform by the loser.
Quote from: guckyfan on 06/14/2015 05:50 amQuote from: joek on 06/14/2015 04:43 amUnder the current contracts, if there are funding limitations, NASA could choose to stretch both contracts, or possibly terminate one. However, in the latter case, you can bet there will be a challenge unless termination is due to a failure to perform by the loser.What would failure to perform be? Missing a single milestone date by a month?Failure to perform would be inability to provide the end product/service. NASA would have to prove that the contractor is technically of fiscally unable to reach the end point they were contracted for.
Quote from: rogo2303 on 06/12/2015 02:28 amIt seems to me that the House and Senate are arranging to slow down the Commercial Crew program with less funding and speeding up the SLS by increasing that programs budget with the aim of SLS and Orion launching crew before either Boeing or SpaceX. I agree and it was totally predictable that they would do that.
It seems to me that the House and Senate are arranging to slow down the Commercial Crew program with less funding and speeding up the SLS by increasing that programs budget with the aim of SLS and Orion launching crew before either Boeing or SpaceX.
Quote from: rayleighscatter on 06/14/2015 01:38 pmQuote from: guckyfan on 06/14/2015 05:50 amQuote from: joek on 06/14/2015 04:43 amUnder the current contracts, if there are funding limitations, NASA could choose to stretch both contracts, or possibly terminate one. However, in the latter case, you can bet there will be a challenge unless termination is due to a failure to perform by the loser.What would failure to perform be? Missing a single milestone date by a month?Failure to perform would be inability to provide the end product/service. NASA would have to prove that the contractor is technically of fiscally unable to reach the end point they were contracted for.Would that also be under NASA is unable to pay for the milestone? Ergo contractor is fiscally unable to reach the end point they were contracted for.
You might want to review those "dissolve clauses"; they are standard FAR boilerplate (included by reference in the RFP/contracts). There is nothing in those clauses which allows re-compete unless there is a failure to perform.*Under the current contracts, if there are funding limitations, NASA could choose to stretch both contracts, or possibly terminate one. However, in the latter case, you can bet there will be a challenge unless termination is due to a failure to perform by the loser.In short, NASA is contractually committed to two CCtCap providers. The only thing likely to change that is Congressional legislation which overrides those commitments.* edit: Or obviously Congressional action.
As somebody who has voted for the pubs, in the past, I find this troubling on another level of debate. The question I posed to my congress critter is: "SLS is an extremely expensive government designed rocket with no real mission. Commercial Crew is made up of rockets designed by corporations and entrepreneurs to a government purpose with the added benefit of possibly creating a new arena for capitalism to thrive. As members of The Grand Old Party why are you supporting the socialist rocket and a make work path for NASA and the USA in space?"
If CCtCap had been a Space Act Agreement (SAA) NASA would probably have got out of it but being an ordinary FAR contract NASA is stuck with it for 2 years. The US Government can cancel the contract but still has to pay.
ARTICLE 16. TERMINATIONA. Termination by Mutual Consent...B. Termination for Failure to Perform...C. Termination for Unacceptable Risk to Human Life...D. Unilateral Termination by NASA(1) NASA may unilaterally terminate this Agreement upon written notice in the following circumstances: (a) upon a declaration of war by the Congress of the United States; or (b) upon a declaration of a national emergency by the President of the United States; or (c) upon a NASA determination, in writing, that NASA is required to terminate for reasons beyond its control. For purposes of this Article, reasons beyond NASA's control include, but are not limited to, acts of God or of the public enemy, acts of the U.S. Government other than NASA, in either its sovereign or contractual capacity (to include failure of Congress to appropriate sufficient funding), fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or unusually severe weather.
What would failure to perform be? Missing a single milestone date by a month?
(a) (1) The Government may, subject to paragraphs (c) and (d) of this clause, by written Notice of Default to the Contractor, terminate this contract in whole or in part if the Contractor fails to --(i) Perform the work under the contract within the time specified in this contract or any extension;(ii) Prosecute the work so as to endanger performance of this contract (but see subparagraph (a)(2) of this clause); or(iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) of this clause).(2) The Government’s right to terminate this contract under subdivisions (a)(1)(ii) and (iii) of this clause may be exercised if the Contractor does not cure such failure within 10 days (or more, if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure
Would that also be under NASA is unable to pay for the milestone? Ergo contractor is fiscally unable to reach the end point they were contracted for.
Quote from: Tomness on 06/14/2015 01:42 pmWould that also be under NASA is unable to pay for the milestone? Ergo contractor is fiscally unable to reach the end point they were contracted for.No. Milestone payments are essentially pay-as-you-go. If NASA does not have the required funds to cover the work, they do not authorize the work. If that results in schedule stretch, increased costs, and missed dates, the contractor is not liable and cannot be held at fault; that would fall under "acts of the Government in either its sovereign or contractual capacity" exclusion clauses.
So NASA is likely to reschedule the work.
It may even add in an optional milestone as a face saving excuse, although the total expenditure will increase.
Quote from: A_M_Swallow on 06/14/2015 11:23 pmSo NASA is likely to reschedule the work.Yes, if funds are not available to proceed with the previously agreed-upon schedule.QuoteIt may even add in an optional milestone as a face saving excuse, although the total expenditure will increase.CCtCap has no provision for optional milestones. Additional milestones or interim progress payments might be added.Again, however, I caution that CCtCap contains two very different types of contract line items, with very different provisions.CLIN-001 -- DDTE/certification. This is fixed-price *not* IDIQ.CLIN-002 -- Post-certification mssions (PCMs). This is fixed-price IDIQ services.CLIN-003 -- Special Studies. This is fixed-price IDIQ services.The two primary items of interest are CLIN-001 (DDTE/certification)and CLIN-002 (PCMs), as those represent the bulk of the funds. However, CLIN-002 (and CLIN-003) notably have specific provisions for funding limitations, whereas CLIN-001 does not (at least to the best of my reading).That means NASA's only basis for terminating CLIN-001 (DDTE/certification) work by a contractor would be FAR 52.249-2, Termination for Convenience of the Government.*Such a termination would be an egregious act on NASA's part, especially if both contractors were performing nominally, and likely result in a legal fur-ball. I seriously doubt NASA would take that step unless forced. And by "forced", I mean more than Congress simply underfunding CCtCap--but passing legislation stating that NASA must down-select to a single provider.* Other than a default or failure to perform by the contractor.
I've heard people mentioning that the contracts might be re-negotiated. What exactly does this mean? Smaller payments? Certain milestones get shuffled around?
From safety point of view the boarding before fueling seems better, if any goes wrong the crew have LAS.