34.2 Monitor contract compliance

34.2.10 Process disputes, claims and resolution

The contract administrator may be responsible for processing or participating in fact-finding and resolution for any disputes and claims arising during performance of the contract. Any claims arising out of a contractual dispute must be processed in accordance with §2.2-4363 of the Code of Virginia and the contractual requirements. The significance of a well-maintained and complete contract administration file or e-storage location for accessing the supporting documentation is of critical importance.

An alternative disputes resolution (ADR) provision may be in the contract, regardless of if the agency has an established ADR process or not. If it does not and the contract was delegated to the agency by VITA, then the agency may use VITA’s ADR process. Contact scminfo@vita.virginia.gov for more information.

A supplier may be considered in default if it fails to perform in accordance with the terms of the purchase order or contract. These factors should be considered prior to taking any default action.

  • The specific reasons for the failure.
  • The period of time needed to obtain the goods or services from other sources compared to the time that delivery or performance could be accomplished by the delinquent supplier.

If a supplier fails to perform, the agency should notify the supplier and try to reach a satisfactory solution. If the matter is still not resolved a "Notice to Cure" may follow. The notice must be given in writing advising the supplier that non-delivery or non-performance is a breach of contract and, if the deficiency or non-conformance is not cured within a certain number of days (as specified in the contract’s language), the agency will terminate the contract for default and hold the supplier liable for any excess costs. Upon the expiration of the cure time period, if a satisfactory resolution has not been reached, the agency sends the supplier a Termination for Default Letter and takes repurchase action by awarding to the next lowest bidder or re-soliciting. If the repurchase results in increased costs to the agency, the agency invoices the original supplier for the excess costs, giving a specified period of time for repayment to be completed. Until the excess costs repayment has been received, the supplier may be removed from the agency's supplier list. If repayment has not been made by the end of the specified period of time, collection action may be taken under the agency's approved debt collection policy. In addition, concurrent action to debar the defaulted supplier can be initiated. Suppliers shall not be liable for any excess cost if the failure to perform arises out of any act of war, order of legal authority, strikes, act of God, or other unavoidable causes not attributed to their fault or negligence. Failure of a supplier's source to deliver is generally not considered to be an unavoidable cause.

Agency contract administrators may obtain assistance from their OAG representative in accordance with their agency’s protocol and processes. For VITA-issued or VITA-delegated agency contracts, agency administrators may also obtain VITA’s guidance by contacting: scminfo@vita.virginia.gov.