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tion of novation agreements affecting more than one activity. § 15-1.5101 Definition.

For the purposes of this subpart, the following definition applies. A novation agreement is a contractual amendment by which the Government recognizes a successor in interest to a Government contract or a change of name of a contractor. The successor in interest assumes all the obligations under the contract and the transferor, when still in existence, guarantees the performance of the contract by the transferee. Where only a change of name is made the rights and obligations of the parties remain unaffected. $ 15-1.5102 Agreement to recognize a

successor in interest. (a) The transfer of a Government contract is prohibited by law (41 U.S.C. 15). However, the Government may recognize a third party as the successor in interest to a Government contract when the third party's interest is incidental to the transfer of all the assets of the contractor, or all of that part of the contractor's assets involved in the performance of the contract. Examples include, but are not limited to:

(1) Sale of such assets;

(2) Transfer of such assets pursuant to merger or consolidation of corporations; and

(3) Incorporation of a proprietorship or partnership;

(4) The principal party or parties to a contract transfer to another institution and the Government wishes to recognize the new institution as the successor in interest.

(b) When it is consistent with the Government's interest to recognize a successor in interest to a Government contract, the designated activity shall execute an agreement with the transferor and the transferee, which shall ordinarily provide in part that:

(1) The transferee assumes all the transferor's obligations under the contract;

(2) The transferor waives all rights under the contract against the Government;

(3) The transferor guarantees performance of the contract by the transferee (a satisfactory performance bond from either the transferor or the trans

feree may be accepted in lieu of such guarantee); and

(4) Nothing in the agreement shall relieve the transferor or the transferee from compliance with any Federal law. The agreement shall have the concurrence of legal counsel, prior to execution. A format for such an agreement for use when the transferor and transferee are corporations, and all the assets of the transferor are transferred, is set forth in $ 15–1.5105. This format may be adapted to fit specific cases and may be used as a guide in preparing similar agreements for use in other situations.

(c) Prior to the execution of such agreement, one copy of each of the following, as applicable, shall be deposited by the contractor with the designated procuring activity:

(1) A properly authenticated copy of the instrument by which the transfer of assets was effected, as, for example, a bill of sale, certificate of merger, indenture of transfer, or decree of court;

(2) A list of all contracts which have not been finally settled between EPA and the transferor, showing for each contract the contract number, the name and address of the activity involved, the total dollar value of the contract as amended, the type of contract, and the balance remaining unpaid;

(3) A certified copy of the resolutions of the Boards of Directors of the corporate parties authorizing the transfer of assets;

(4) A certified copy of the minutes of any stockholders' meetings of the corporate parties necessary to approve the transfer of assets;

(5) A properly authenticated copy of the certificate and articles of incorporation of the transferee if such corporation was formed for the purpose of receiving the assets involved in the performance of the Government contracts;

(6) An opinion of counsel for the transferor and transferee that the transfer was properly effected in accordance with applicable law and the effective date of transfer;

(7) Evidence of the capability of the transferee to perform the contracts;

(8) Balance sheets of the transferor and the transferee as of dates immediately prior to and after the transfer of assets; and

(9) Consent of sureties on all contracts listed under (ii) above on which bonds were required.

as

to

$ 15-1.5103 Agreement recognize

change of name of contractor. (a) When only a change of name is involved, so that the rights and obligations of the parties remain unaffected, an agreement between the designated activity and the contractor shall be executed effecting the amendment of all existing contracts between the parties so as to reflect the contractor's change of name. A format for such an agreement, which shall be adapted for specific cases, is set forth in § 15–1.5105.

(b) Prior to the execution of such agreement, one copy of each of the following shall be deposited by the contractor with the designated procuring activity:

(1) A copy of the instrument by which the change of name was effected, authenticated by a proper official of the State having jurisdiction;

(2) An opinion of counsel for the contractor that the change of name was properly effected in accordance with applicable law; and

(3) A list of all contracts which have not been finally settled between EPA and the contractor, showing for each contract the contract number and the name and address of the activity involved.

(c) Each agreement shall have the concurrence of legal counsel, prior to execution. $ 15–1.5104 Procedures.

(a) Any EPA procuring activity upon being notified of a successor in interest to, or change in name of, one of its contractors, shall promptly report such information by letter to the Director of Contracts Management Division.

(b) To avoid duplication of effort on the part of EPA activities in preparing and executing agreements to recognize a change of name or successor in interest, only one supplemental agreement will be prepared to effect necessary changes for all contracts between EPA and the contractor involved. The Director of Contracts Management Division will, in each case, designate the activity responsible for taking all necessary and appropriate action with respect to either recognizing or not recognizing a successor in interest, or recognizing a change of name, including without limitation the following:

(1) Obtaining from the contractor a list of the affected contracts, the names and addresses of the activities respon

sible for these contracts, and the required documentary evidence; and

(2) Drafting and executing a supplemental agreement to one of the contracts affected but covering all applicable outstanding and incomplete contracts affected by the transfer of assets or change of name. A supplemental agreement number need not be obtained for contracts other than for the one under which the supplemental agreement is written. Each supplemental agreement will contain a list of the contracts affected and, for distribution purposes, the names and addresses of the activities having contracts subject to the supplemental agreement.

(c) The agreement and supporting documents shall be reviewed for legal sufficiency by legal counsel.

(d) After execution of the supplemental agreement, the designated activity shall:

(1) Forward an authenticated copy of the supplemental agreement to the Director of Contracts Management Division, and

(2) Advise each of the affected activities, by letter, of the consumation of the supplemental agreement and request that an administrative change be issued for each affected contract. (A copy of the supplemental agreement should be enclosed-see $ 15–1.5105.)

(e) For each such affected contract, the contracting officer shall prepare an administrative change acknowledging the change in name or successor in interest. The administrative change will receive the same distribution as the affected contract. The administrative change will indicate the nature of the transaction, the result attained, and will cite the number of the contract with which the original relevant documents and supplemental agreement are filed. & 15-1.5105 Novation agreement for

mats. § 15–1.5105-1 Successor in interest

agreement format. The following form may be used as appropriate to recognize a corporate successor in interest, in accordance with $ 15–1.5102. AGREEMENT (----

19.-) This agreement, entered into as of

19--, by and between the ABC Corporation, a corporation duly organized and existing under the laws of the State of

with its principal office in the

[blocks in formation]

City of

(hereinafter referred to as the "Transferor"); the XYZ Corporation (formerly known as the LMN Corporation), a corporation duly organized and existing under the laws of the State of with its principal office in the City of

(hereinafter referred to as the “Transferee"); and the United States of America (hereinafter referred to as the "Government”).

WITNESSETH: Whereas, the Government, represented by Contracting Officers of the Environmental Protection Agency, has entered into certain contracts, letter contracts, and purchase orders with the Transferor (namely:

--) or (as set forth in the attached list marked "Exhibit A” to this Agreement and herein incorporated by reference;) and the term “the contracts" as hereinafter used means the above contracts, letter contracts, and purchase orders, and all other contracts, letter contracts, and purchase orders, including amendments and change orders thereto, heretofore made between the Government, represented by Contracting Officers of the Environmental Protection Agency, and the Transferor (whether or not performance and payment have been completed and releases executed, if the Government or the Transferor has any remaining rights, duties, or obligations thereunder), and including amendments and change orders thereto hereafter made between the Government and the Transferee. Whereas, as of

19--, the Transeferor assigned, conveyed, and transferred to the Transferee all the assets of the Transferor by virtue of a (term descriptive of the legal transaction involved) between the Transferor and the Transferee;

Whereas, the Transferee, by virtue of said assignment, conveyance, and transfer, has acquired all the assets of the Transferor;

Whereas, by virtue of said assignment, conveyance, and transfer, the Transferee has assumed all the duties, obligations, and liabilities of the Transferor under the Contracts;

Whereas, the Transferee is in a position fully to perform the contracts, and such duties and obligations as may exist under the Contracts;

Whereas, it is consistent with the Government's interest to recognize the Transferee as the successor party to the Contracts;

Whereas, there has been filed with the Gov. ernment evidence of said assignment, conveyance, or transfer (add if desired, "in the form of a certified copy of the list of the documents required by 41 CFR 15–1.5102");

(Where a change of name is also involved, such as a prior or concurrent change of name of the Transferee, an appropriate recital shall be used; for example:

Whereas, there has been filed with the Government a certificate dated 19.-, signed by the secretary of state of the State of

to the effect that the

corporate name of LMN Corporation was changed to XYZ Corporation on

19.-); Now therefore, in consideration of the premises, the parties hereto agree as follows:

1. The Transferor hereby confirms said assignment, conveyance, and transfer to the Transferee, and does hereby release and discharge the Government from, and does hereby waive, any and all claims, demands, and rights against the Government which it now has or may hereafter have in connection with the Contracts.

2. The Transferee hereby assumes, agrees to be bound by, and undertakes to perform each and every one of the terms, covenants, and conditions contained in the Contracts. The Transferee further assumes all obligations and liabilities of, and all claims and demands against, the Transferor under the Contracts, in all respects as if the Transferee were the original party to the Contracts.

3. The Transferee hereby ratifies and confirms all actions heretofore taken by the Transferor with respect to the Contracts with the same force and effect as if the action had been taken by the Transferee.

4. The Government hereby recognizes the Transferee as the Transferor's successor in interest in and to the Contracts. The Transferee hereby becomes entitled to all right, title, and interest of the Transferor in and to the Contracts in all respects as If the Transferee were the original party to the Contracts. The term "Contractor" as used in the Contracts shall be deemed to refer to the Transferee rather than to the Transferor.

5. Except as expressly provided herein, nothing in this Agreement shall be construed as a waiver of any rights of the Government against the Transferor.

6. Notwithstanding the foregoing provisions, all payments and reimbursements heretofore made by the Government to the Transferor and all other action heretofore taken by the Government, pursuant to its obligations under any of the Contracts, shall be deemed to have discharged pro tanto the Government's obligations under the Contracts. All payments and reimbursements made by the Government after the date of this Agreement in the name of or to the Transferor shall have the same force and effect as if made to said Transferee and shall constitute a complete discharge of the Gorernment's obligations under the Contracts to the extent of the amounts so paid or reimbursed.

7. The Transferor and the Transferee here. by agree that the Government shall not be obligated to pay or reimburse either of them for, or otherwise give effect to, any costs, taxes, or other expenses, or any in. creases therein, directly or indirectly arising out of or resulting from (1) said assignment, conveyance, and transfer, or (ii) this Agreement other than those which the Government, in the absence of said assignment, conveyance, and transfer, or this Agreement, would have been obligated to pay or reimburse under the terms of the Contracts.

8. The Transferor hereby guarantees payment of all liabilities and the performance of all obligations which the Transferee (1) assumes under this Agreement, or (11) may hereafter undertake under the Contracts as they may hereafter be amended or modified; and the Transferor hereby waives notice of and consents to any such amendment or modification.

9. Except as herein modified, the Contracts shall remain in full force and effect.

In witness whereof, each of the parties hereto has executed this Agreement as of the day and year first above written.

UNITED STATES OF AMERICA,
By
Title

ABC CORPORATION,
Ву

Title
(Corporate Seal]

XYZ CORPORATION,
By

Title
(Corporate Seal)

CERTIFICATE I,

certify that I am the Secretary of ABC Corporation, named above, that who signed this Agreement on behalf of said corporation, was then

of said corporation; and that this Agreement was duly signed for and in behalf of said corporation by authority of its governing body and is within the scope of its corporate powers.

Witness my hand and seal of said corporation this

day

of

AGREEMENT (----

19.-) This agreement, entered into

as of 19--, by and between the ABC Corporation (formerly the XYZ Corporation and hereinafter sometimes referred to as the "Contractor"), a corporation duly organized and existing under the laws of the State of

and the United States of America, represented by the Environmental Protection Agency (hereinafter referred to as the " "Government').

WITNESSETH: Whereas, the Government represented by Contracting Officers of the Environmental Protection Agency, has entered into certain contracts, letter contracts, and purchase orders with the XYZ Corporation (namely:

--) or (as set forth in the attached list marked “Exhibit A" to this Agreement and herein incorporated by reference); and the term “the Contracts" as hereinafter used means the above contracts, letter contracts, and purchase orders, and all other contracts, letter contracts, and purchase orders, including amendments and change orders thereto, entered into between the Government, represented by Contracting Officers of the Environmental Protection Agency, and the Contractor (whether or not performance and payment have been completed and releases executed, if the Government or the Contractor has any remaining rights, duties, or obligations thereunder);

Whereas, the XYZ Corporation, by an amendment to its certificate of incorporation, dated

19.-, has changed its corporate name to the ABC Corporation;

Whereas, a change of corporate name only is accomplished by said amendment, so that rights and obligations of the Government and of the Contractor under the Contracts are unaffected by said change; and

Whereas, there has been filed with the Government documentary evidence of said change in corporate name;

Now therefore, in consideration of the premises, the parties hereto agree that the Contracts covered by this Agreement are hereby amended by deleting therefrom the name "XYZ Corporation” wherever it appears in the Contracts and substituting therefor the name "ABC Corporation."

In witness whereof, each of the parties hereto has executed this Agreement as of the day and year first above written.

UNITED STATES OF AMER

ICA,
Ву
Title

ABC CORPORATION,
By

Title
(Corporate Seal]

CERTIFICATE I,

certify that I am the Secretary of ABC Corporation, named above; that

who

19--.

Ву (Corporate Seal)

CERTIFICATE I,

certify that I am the Secretary of XYZ Corporation, named above, that

who signed this Agreement on behalf of said corporation, was then

of said corporation, and that this Agreement was duly signed for and in behalf of said corporation by authority of its governing body and within the scope of its corporate powers.

Witness my hand and the seal of said corporation this

day of

19...

Ву (Corporate Seal] 8 15–1.5105–2 Change of name agree

ment format. The following form may be used as appropriate to recognize a change in name, in accordance with § 15-1.5103:

signed this Agreement on behalf of said corporation, was then

of said corporation; and that this Agreement was duly signed for and in behalf of said corporation by authority of its governing body and is within the scope of its corporate powers.

Witness my hand and the seal of said corporation this

day of 19...

Ву (Corporate Seal) 15–1.5105_3 Administrative change

format. Standard Form 30 will be used for administrative changes resulting from novation and change of name agreements.

PART 15-2-PROCUREMENT BY

FORMAL ADVERTISING Subpart 15–2.4-Opening of Bids

and Award of Contract Sec. 15-2.406 Mistakes in bids. 15-2.406-3 Other mistakes disclosed before

award. 15-2.4064 Disclosure of mistakes after

award. 15-2.407-8 Protests against award.

AUTHORITY: The provisions of this Subpart 15-2.4 issued under sec. 205(C), 63 Stat. 377, as amended; 40 U.S.C. 486 (C). & 15–2.406 Mistakes in bids. (36 F.R. 20429, Oct. 22, 1971] & 15–2.406–3 Other mistakes disclosed

before award. (a) The Director, Contracts Management Division will make the administrative determination in connection with mistakes in bid alleged before opening of bids and before award.

(b) Where the bidder furnishes evidence in support of an alleged mistake, the case shall be marked "Immediate Action-Mistake in Bid” and submitted in duplicate, in the most expeditious manner through procurement channels and the Chief, Policy and Review Branch, to the Director, Contracts Management Division, for evaluation and administrative determination. The file shall be assembled in an orderly manner including an index of enclosures.

(c) Where the evidence submitted by the bidder is incomplete or in need of clarification, the contracting officer shall document the file to indicate his efforts to obtain clear and convincing evidence to support the alleged mistake.

(d) Doubtful mistakes in bids shall not be submitted by contracting officers directly to the Comptroller General for advance decisions, but shall be submitted as outlined in paragraph (b) of this section. The Director, Contracts Management Division will effect coordination with the General Counsel. (36 F.R. 20429, Oct. 22, 1971) $ 15-2.406–4 Disclosure of mistakes

after award. (a) Authority to make determinations under $ 1–2.406–4 of this title has been delegated to the Director, Contracts Management Division.

(b) Mistakes disclosed after award will be forwarded, in duplicate, through procurement channels and the Chief, Policy and Review Branch, to the Director, Contracts Management Division for determinations. 136 F.R. 20430, Oct. 22, 1971) & 15–2.407-8 Protests against award.

(a) Protests before award. When a protest is received by the contracting officer, he will prepare a written statement of his opinion in the matter supported by copies of all pertinent papers. He will forward them, in duplicate, through procurement channels to the Director, Contracts Management Division, by the most expeditious means and marked "Immediate Action-Protest Before Award.” The protest file will include the following:

(1) Statement of the Chief of the Contracting Operations containing recommendations (with supporting reasons) as to the merits of the protest, addressing each allegation of the protest;

(2) Contracting officer's statement of facts and circumstances including a discussion of the merits addressing each allegation of the protest;

(3) Contracting officer's conclusions and recommendations including documentary evidence on which based;

(4) Copy of the Invitation for Bids (IFB) or Request for Proposal (RFP);

(5) Copy of the abstract of bids or proposals;

(6) Copy of the bid or proposal of the successful offeror to whom the award is proposed to be made;

(7) Copy of the bid or proposal by the protester, if any;

(8) Current status of award;
(9) Copies of notice of protest given

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