EXTRAORDINARY CONTRACTUAL ADJUSTMENT PROCEDURES ture set forth below. In complying with such requests, the contractor may also submit other statements and evidence which he may consider helpful to his case: (i) the best evidence available to the contractor in support of any facts alleged by the contractor, including contemporaneous memoranda, correspondence, affidavits, and any other material tending to establish matters of fact; (ii) a history of performance indicating when work under the contracts or commitments was begun, the progress made to the present, an exact statement of the contractor's remaining obligations, and the contractor's expectations regarding completion thereof; (iii) a statement of payments received, payments due, and payments yet to be received or to become due, including advance and progress payments and amounts withheld by the Government, and information as to other obligations of the Government, if any, which are yet to be performed under the contract; (iv) a statement giving a detailed analysis of the monetary elements of the request, including precisely how the actual or estimated dollar amount of the request was arrived at, the effect of approval or denial on the contractor's profits before Federal income taxes, and whether the costs for which reimbursement is requested have been included as a part of his gross costs in statutory renegotiation proceedings, together with the contractor's renegotiation status for the relevant years; (v) relevant financial statements, cost analyses, or other such data, preferably certified by a certified public accountant, including such additional financial data as is necessary to explain fully and to support the monetary elements of the request for adjustment; (vi) a list of persons (in the employ of the Government, in the employ of the contractor, or otherwise connected with the contract) who have some factual knowledge of the subject matter, including, where possible, the name, office or title, address, and telephone number of each such person; (vii) a statement and evidence of steps taken to mitigate loss and reduce claims to a minimum; and (viii) such other statements or evidence as may be requested. (b) Amendments Without Consideration Under 17.103-2(a). In addition to the facts and evidence enumerated in paragraph (a) above, where a request involves possible amendment without consideration, and "essentiality" is a factor, the contractor may be asked to furnish: (i) a statement and evidence of the contractor's original breakdown of estimated costs, including contingency allowances and profit; (ii) a statement and evidence of the contractor's present estimate of total costs under the contracts involved if enabled to complete, broken down between costs accrued to date of request and run-out costs, and between costs for which the contractor has made payment and those for which he is indebted at the time of the request; (iii) a statement and evidence of the contractor's estimate of the final price of the contracts involved, giving effect to all escalation, changes, extras, and the like, known or contemplated by the contractor; (iv) a statement of any claims known or contemplated by the contractor against the Government involving the contracts in question, other than those stated in response to (iii) above; 17.105-3 CFR TITLE 41 CHAPTER 18 STANDARDS AND PROCEDURES (v) an estimate of the contractor's total profit or loss under the contracts involved if enabled to complete at the final contract price (see (iii) above) broken down between profit or loss to date and run-out profit or loss; (vi) an estimate of the total profits from other Government business and all other sources during the period from the date of the first contract involved to the estimated date of completion of all the contracts involved; (vii) a statement of the amount of any tax refunds and an estimate of those anticipated during or for the period from the date of the first contract involved through the estimated completion date of all the contracts involved; (viii) a statement in detail as to efforts the contractor has made to obtain funds from commercial sources to enable him to complete performance of the contracts involved; (ix) a statement of the minimum amount necessary as an amendment without consideration to enable the contractor to complete performanc of the contracts involved, and the detailed basis for that amount; (x) an estimate of the time required to complete each contract if the request is granted; (xi) a statement of the factors which have caused the loss under the contracts involved; (xii) a statement as to the course of events anticipated if the request is denied; (xiii) balance sheets, preferably certified by a certified public accountant, as of the end of the contractor's fiscal year first preceding the date of the first contract, as of the end of each subsequent fiscal year, as of the date of the request, and projected as of the date of completion of all the contracts involved, assuming the contractor is enabled to complete the contracts at the final prices estimated pursuant to (iii) above, together with income statements for annual periods subsequent to the date of the first balance sheet. Balance sheets and income statements should be both consolidated, and by affiliates, and should show all transactions between the contractor and his affiliates, stockholders, and partners including loans to the contractor guaranteed by any stockholder or partner; and (xiv) a list of all salaries, bonuses, and all other forms of compensation of the principal officers or partners and of all dividends and other withdrawals, and all payments to stockholders in any form since the date of the first contract involved. (c) Amendments Without Consideration Under 17.103-2(b). In addition to the facts and evidence enumerated in paragraph (a) above, where a request involves possible amendment without consideration because of Government action, and "essentiality” is not a factor, the contractor may be asked to furnish: (i) a detailed statement of the precise Government action which the contractor considers caused a loss under the contract, with evidence to support each essential fact; (ii) a statement and evidence of the contractor's original breakdown of estimated costs, including contingency allowances and profit; (iii) the estimated total loss suffered under the contract, with detailed supporting analysis; and (iv) the estimated loss resulting from the Government action, with detailed supporting analysis. NASA PROCUREMENT REGULATION 17.105-3 EXTRAORDINARY CONTRACTUAL ADJUSTMENT PROCEDURES (d) Correction of Mistakes Under 17.103-3. In addition to the facts and evidence enumerated in paragraph (a) above, where a request involves possible correction of a mistake, the contractor may be asked to furnish: (i) a statement and evidence of the precise mistake or error that was made, the ambiguity that exists, or the misunderstanding that arose, showing of what it consisted and how it occurred, and the intention of the parties; (ii) a statement explaining when the mistake was discovered, when notice of mistake was given to the contracting officer, and whether given before completion of work under, or the effective date of termination of, the contract; (iii) an estimate of loss or profit under the contract with detailed supporting analysis; and (iv) an estimate of the increase in cost to the Government resulting from the adjustment requested, with detailed supporting analysis. (e) Formalization of Informal Commitments Under 17.103-4. In addition to the facts and evidence enumerated in paragraph (a) above, where a request involves possible formalization of an informal commitment, the contractor may be asked to furnish: (i) copies of any written instructions or assurances, or a statement under oath of any oral instructions or assurances made to the contractor, with identification of the Government officer or official making such statement; (ii) a statement as to when the property or services were furnished or arranged to be furnished, and to whom; (iii) evidence that the contractor relied upon the instructions or assurances, with a full description of the circumstances which led him so to rely, and that the contractor intended, at the time of performing the work, to be compensated directly for it by the Government and did not anticipate recovery of the costs in some other way; (iv) a cost breakdown supporting the amount claimed as a fair compensation for the work performed; and (v) a statement and evidence of why it was impracticable to provide for the work performed in an appropriate contractual instrument. 17.106 Processing Contractor Requests. 17.106-1 Investigation. Upon receipt of a contractor's request for an extraordinary contractual adjustment, the cognizant contracting officer shall be responsible for making a thorough investigation of all facts and issues relevant to the request. Facts and evidence shall be obtained from contractor and Government personnel, including signed statements of material facts within the knowledge of individuals where documentary evidence is lacking, and audits where considered necessary to establish financial or cost facts. The investigation shall establish the facts essential to meeting the standards required for a decision on the request. 17.106-2 Submission of Request to the Contract Adjustment Board. (a) Statements and Information to Board. (1) After completing the investigation of the facts and issues relevant to the contractor's request, the cognizant contracting officer shall forward the request to the Chairman, Contract Adjustment Board, NASA Headquarters, and shall state the following in his forwarding letter: (i) the nature of the case; and 17.106 CFR TITLE 41 CHAPTER 18 STANDARDS AND PROCEDURES (ii) the disposition recommended for the request, and, if contractual action is recommended, the opinion of the contracting officer that such action will facilitate the national defense. (2) The forwarding letter shall enclose the contractor's request, and all material submitted by the contractor in support of such request, together with such additional material as the contracting officer has obtained from Government sources or personnel in the course of his investigation of the facts and issues relevant to the request. The contracting officer's forwarding letter and all enclosures shall be submitted in duplicate. Any classified information included in the material forwarded shall be identified as such. (b) Amendments Without Consideration Under 17.103-2(a). Where an amendment without consideration under the standards of 17.103-2(a) is recommended by the cognizant contracting officer, the forwarding letter shall include, in addition to the statements and information described in subparagraphs (a)(1) and (a)(2) above, a statement of the contracting officer's findings as to: (i) the contractor's performance record, including the quality of product, rate of production, and promptness of deliveries; (ii) the importance to the Government of the performance of the contract by the contractor and the importance of the contractor to the national defense; (iii) the forecast of future contracts with the contractor; and (iv) other available sources of supply for the supplies or services covered by the contract, and the time and cost of having contract performance completed by such other sources. (c) Formalization of Informal Commitments Under 17.103-4. Where the formalization of an informal commitment under the standards of 17.103-4 is recommended by the cognizant contracting officer, the forwarding letter shall include, in addition to the statements and information described in subparagraphs (a)(1) and (a)(2) above, a statement that the contracting officer has determined that at the time the informal commitment was made, it was impracticable to use normal procurement procedures. 17.106-3 Action by Contract Adjustment Board. (a) Investigation. Upon receipt of a request which is forwarded by the cognizant contracting officer, the Board, acting through its Counsel, may make such further investigation of the facts and issues involved in the request, and obtain such additional facts and evidence relating to the request, either from the contractor or the contracting officer, or others, as is necessary to make a determination as to the contractor's entitlement to the relief requested, or to other equitable relief. (b) Decision. The Board, acting in accordance with its own procedures, will render its decision on a request as expeditiously as practicable. A Memorandum of Decision disposing of the case shall be prepared for the signature of the Chairman of the Board, and shall be dated and contain the following information: (i) the name and address of the contractor, the contract identification, and the nature of the request; (ii) the decision reached and the actual cost or estimated potential cost, if any, of the decision; (iii) a concise description of the property or services involved; NASA PROCUREMENT REGULATION 17.106-3 EXTRAORDINARY CONTRACTUAL ADJUSTMENT PROCEDURES (v) if some adjustment action is approved, a statement in substantially the following form: "The Board finds that the action authorized herein will facilitate the national defense." (c) The Memorandum of Decision shall omit any of the foregoing information classified "Confidential" or higher. 17.107 Implementation of Board's Decision. (a) Copies of the Board's decision will be transmitted to the cognizant contracting officer, who will take such action as is authorized by the decision. Where the Board's decision is to reject the contractor's request for relief, the cognizant contracting officer will advise the contractor of such decision. (b) Except as provided in subparagraph (c) below, immediately upon execution of a contract or contract amendment which implements the decision of the Board, the contracting officer shall forward two copies of the contractual document to the Chairman, Contract Adjustment Board, marked for the attention of the Counsel to the Board, for retention with the Board's permanent files. (c) Contracts or contract amendments for which approval of NASA Headquarters is otherwise required under the provisions of this Regulation shall be forwarded for such approval. After approval has been received, the provisions of subparagraph (b) of this paragraph will be complied with. 17.108 Contractual Requirements. Every contract entered into or amended or modified pursuant to this Part shall contain: (i) a citation of the Act and Executive Order; (ii) a brief statement of the circumstances justifying the action; (iii) a recital of the finding that the action will facilitate the national defense; (iv) the contract clause entitled "Covenant Against Contingent Fees” as set forth in 1.503; (v) the contract clause entitled "Examination of Records" as set forth in 7.104-15; (vi) the contract clause entitled "Equal Opportunity" as set forth in 12.804, whenever required under Part 12, Subpart 8; (vii) the contract clause entitled "Assignment of Claims" as set forth in 7.103-8; (viii) if otherwise applicable, the contract clauses entitled "WalshHealey Public Contracts Act," "Davis-Bacon Act," "Copeland ('AntiKickback') Act-Nonrebate of Wages," and "Contract Work Hours and Safety Standards Act-Overtime Compensation" as set forth respectively in 12.605 and 12.403; and (ix) any other clauses set forth in this Regulation which are appropriate to the particular procurement. 17.109 Records and Reports. (a) The following documents shall be maintained in the permanent files of the Board: (i) the original copy of the Memorandum of Decision; and (ii) copies of the contractual document implementing the Board's decision. (b) The Board shall prepare reports for submission to Congress in accordance with the Act. 17.110 Interdepartmental Coordination. 17.107 CFR TITLE 41 CHAPTER 18 |