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(e) Whether final payment has been the request Including precisely how the made under the contracts involved; actual or estimated dollar amount of the
(f) Whether any proceeds from the request was arrived at, the effect of aprequest will be subject to any assign proval or denial on the contractor's ment or other transfer, and to whom; profits before Federal income taxes, and and
whether the costs for which reimburse(g) Whether the contractor has sought ment is requested have been included as the same, or a similar or related, adjust a part of his gross costs in statutory rement from the General Accounting of negotiation proceedings, together with fice or any other part of the Government, the contractor's renegotiation status for or anticipates doing so.
the relevant years; 64-17.207–3 Preliminary record of re
(5) If a written contract is involved, quests.
a statement of the contractor's under
standing of why the subject matter of At the time the contractor's requests is
the request cannot now, and could not filed, & preliminary record thereof, as
at the time it arose, be disposed of under described in Subpart 1-17.4, shall be
the terms of the contract itself; prepared.
(6) The best evidence available to the § 1-17.2074 Facts and evidence.
contractor in support of any facts alleged (a) General. The contracting officer
by the contractor, including contempoor an approving authority shall, where
raneous memoranda, correspondence, afconsidered appropriate, request the con
fidavits, and any other material tending tractor to furnish additional facts and
to establish matters of fact; evidence, as described in this paragraph
(7) Relevant financial statements. (a), and, in addition, where applicable,
cost analyses, or other such data, prefas described in (b), (c), (d), or (e) of
erably certified by a certificd public acthis $ 1-17.207-4. (In complying with
countant, including such additional fisuch requests, the contractor may also
nancial data as are necessary to explain submit other statements and evidence fully and to support the monetary elewhich he may consider helpful to the ments of the request for adjustment; case.):
(8) A list of persons (within the (1) II written contracts are in agency, in the employ of the contractor, volved, a brief description of the con
or otherwise connected with the contracts, indicating the dates of execution
tract) who have some factual knowledge and amendments thereto, the items be of the subject matter, including where Ing procured, the price or prices and possible the name, office or title, address, delivery schedules and revisions thereof, and telephone number of each such and such other special contractual pro person; visions as may be relevant to the (9) A statement and evidence of steps request;
taken to mitigate loss and reduce claims (2) A history of performance Indi to a minimum; and cating when work under the contracts (10) Such other statements or evior commitments was begun, the progress dence as may be requested by the conmade to the present, an exact statement tracting officer. of the contractor's remaining obliga (b) Amendments without considerations, and the contractor's expectations tion under § 1-17.204-2(a). In addition regarding completion thereof;
to the facts and evidence listed in $ 1(3) A statement of payments received, 17.207-4(a), where a request involves payments due, and payments yet to be possible amendment without considerareceived or to become due, including ad tion and essentiality to the national devance and progress payments, and fense is a factor, the contractor shall be amounts withheld by the Government, asked to furnish such of the following and Information as to other obligations as is deemed appropriate to the request: of the Government, if any, which are yet
(1) A statement and evidence of the to be performed under the contract; contractor's original breakdown of esti
(4) A statement giving a detailed mated costs, including contingency alanalysis of the monetary elements of lowances and profit;
(2) A statement and evidence of the contractor's present estimate of total costs under the contracts involved if enabled to complete them, broken down as between costs accrued to date of request and run-out costs, and as between costs for which the contractor has made payment and those for which he is indebted at the time of the request;
(3) A statement and evidence of the contractor's estimate of the final contract price of the contracts involved giving effect to all escalation, changes, extras, and the like, known or contemplated by the contractor;
(4) 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 1-17.207-4(b)(3);
(5) An estimate of the contractor's total profit or loss under the contracts Involved if enabled to complete at the estimated final contract price (see $ 1-17.207-4(b) (3)), broken down between profit or loss to date and run-out profit or loss;
(6) An estimate of the contractor's total profits or losses 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;
(7) 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;
(8) 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;
(9) A statement of the minimum amount necessary as an amendment without consideration to enable the contractor to complete performance of the contracts involved, and the detailed basis for that amount;
(10) An estimate of the time required to complete each contract if the request Is granted;
(11) A statement of the factors which have caused the loss under the contracts Involved;
(12) A statement as to the course of events anticipated if the request is denied:
(13) Balance sheets, preferably certified by a certified public accountant (1) as of the end of the contractor's fiscal year first preceding the date of the first contract, (ii) as of the end of each subsequent fiscal year, (iii) as of the date of the request, and (iv) 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 § 1-17.207-4(b) (3), together with income statements for annual periods subsequent to the date of the first bala 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
(14) 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 $ 1-17.204-206). In addition to the facts and evidence listed in § 1-17.207-4(a), where a request involves possible amendment without consideration because of Government action, and essentiality to the national defense is not a factor, the contractor shall be asked to furnish such of the following as is deemed appropriate to the request:
(1) A clear statement of the precise Government action which the contractor considers caused a loss under the contract, with evidence to support each essential fact;
(2) A statement and evidence of the contractor's original breakdown of estimated costs, including contingency allowances, and profit;
(3) The estimated total loss suffered under the contract, with detailed supporting analysis; and
(4) The estimated loss resulting from the Government action, with detailed supporting analysis.
(d) Correction of mistakes under § 1-17.204-3. In addition to the facts and evidence listed in § 1-17.207-- 4(a), where a request involves possible correction of a mistake, the contractor shall be asked to furnish such of the following as is deemed appropriate to the request:
(1) 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;
(2) A statement explaining when the mistake was discovered, when notice of mistake was given to the contracting of ficer, and whether given before completion of work under, or the effective date of termination of, the contract;
(3) An estimate of loss or profit under the contract with detailed supporting analysis; and
(4) 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 $ 1-17.204-4. In addition to the facts and evidence listed in § 1-17.207–4(a), where a request involves possible formalization of an informal commitment, the contractor shall be asked to furnish such of the following as is deemed appropriate to the request:
(1) Copies of any written instructions or assurances, or a statement under oath as to any oral instructions or assurances made to the contractor, with identification of the Government oficial making such statement;
(2) A statement as to when the property or services were furnished or arranged to be furnished, and to whom;
(3) Evidence that the contractor relled upon the instructions or assurances, with & 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;
(4) A cost breakdown supporting the amount claimed as a fair compensation for the work performed; and
(5) A statement and evidence of why it was impracticable to provide for the work performed in an appropriate contractual instrument. § 1-17.208 Processing cases.
All cases shall be processed in accordance with the general policy set forth in § 1-17.102(c). $ 1-17.208-1 Investigation.
A thorough investigation shall be made of all facts and issues relevant to each case. Facts and evidence shall be obtained from contractor and Government personnel, and shall include 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. 81-17.208–2 Interagency coordination.
Where a case involves matters of interest to more than one agency of the Government, such agencies should maintain liaison with each other for the purpose of determining whether joint action may be taken under the circumstances $ 1-17.208–3 Disposition.
(a) In each case, the approving au. thority (if a contract adjustment board, the Chairman), whether approving or denying the request, shall sign a Memorandum of Decision which shall be dated and shall contain the following:
(1) The name and address of the contractor, the contract identification, and the nature of the request;
(2) The decision reached and the actual cost or estimated potential cost. if any, of the decision;
(3) A concise description of the property or services involved;
(4) A statement of the circumstances justifying the decision; and
(5) If some adjustment action is approved, a statement in substantially the following form: “I find that the action authorized herein will facilitate the national defense.”
(b) Where the Memorandum of Decision contains information which is classified “Confidential" or higher, such information shall be identified in the Memorandum. In lieu of including
classified information in the Memoran powers shall comply with the provisions . dum, such information may be set forth of $ 1-17.206.
in a separate classified document which is referenced in the Memorandum.
§ 1-17.304 Records.
A copy of each memorandum required § 1-17.208–4 Records.
by $ 1-17.303(a) shall be retained in the The following shall be retained in the agency files. Agency Ales with respect to each request
Subpart 1–17.4—Records of Requests and processed: (a) The Memorandum of Decision re
Dispositions quired in § 1-17.208–3;
§ 1-17.400 Scope of subpart. (b) The contractor's request;
In order that adequate records of ac. (c) Memoranda, correspondence, afi
tions taken pursuant to the Act may be davits, statements, and all other docu maintained, § 1-17.207–3 requires the ments containing information acquired preparation of a preliminary record when in connection with the request;
each request is filed for any adjustment (d) A copy of the contractual docu under the standards set forth in § 1-17.ment Implementing any approved con 204, and § 1-17.208–4 requires the prep. tractual action; and
aration of a final record indicating the (e) The final record prepared in ac disposition of the request. This subpart cordance with $ 1-17.402.
describes in detail the information which
should be included in these records. A Subpart 1-17.3~ Residual Powers
suggested format for the records is § 1-17.300 Scope of subparl.
shown in $ 1-17.403. It is designed so
that the information required for the This subpart prescribes the standards
preliminary and final record with reand procedures for the exericse of resid
spect to each request may be combined ual powers under the Act. The term
on the same form. “residual powers" as used in this subpart Includes all the authority under the Act § 1-17.401 Preliminary records. except that which is covered by Subpart
Each preliminary record prepared pur. 1-17.2 and the authority to make ad
suant to $ 1-17.207-3 should contain the vance payments.
following information: $ 1-17.301 Statutory limitation on dela (a) Type of record. The fact that the gation of authority.
record is a preliminary record should Authority to approve actions obligating be indicated. the United States in an amount in excess (b) Date of contractor's request. The of $50.000 under the residual powers of date on the face of the contractor's rethe Act shall not be delegated below the quest for adjustment should be inserted secretarial level.
(c) Date received by Government § 1-17.302 Standards for using residual
The date the request for adjustment is powers.
received in any Government office to Subject to the limitations contained in
which the contractor may properly sub. $ 1-17.205-1, the residual powers may be
mit his request should be inserted. used in accordance with the policies set
(d) Name and address of contractor forth in $ 1-17.102 where such use is
The full and correct name and address deemed necessary and appropriate.
of the contractor filing the request
should be inserted. If the contractor is $ 1-17.303 Procedures.
a small business, this fact should be in. (a) with respect to each proposal for dicated. the exercise of residual powers, the ap- (e) Name and address of contractor's proving authority shall sign a memoran- representative, if any. If a particular dum containing information substan. named person (employee, attorney, etc.) tially as set forth in § 1-17.208–3.
is the point of contact with the contrac(b) Every contract entered into ortor, his full name and address should be amended or modified under the residual inserted.
(1) Cognizant contracting officer or seeks an adjustment which cannot be ofice. The contracting officer adminis. expressed in monetary terms, then son tering the contract for which an adjust brief description of it should be inserted, ment was requested or, ut none, the con such as "Cancellation" or "Modification tracting officer or office cognizant of the of Terms." The fact that an adjustment request should be inserted.
is not easily expressed in dollar terins (g) Procuring activity. The name of should not deter an estimate if such an the procuring activity with jurisdiction estimate is made by the contractor in his over the contracting officer or office re request. ferred to in (f) above should be inserted. (o) Date this record signed. The date . (h) Property or service involved. A on which the record is signed should be brief description of the item being pro inserted. cured or services being rendered should (p) Signature. The record should be be inserted.
signed by an authorized representative (1) Ertent of performance as of date of the reporting authority. of request. A brief indication, as of the
§ 1-17.402 Final records. date of the request, of the degree of
Each final record prepared pursuant completion of the contract should be inserted; for example, 50 percent com
to g 1-17.208-4 should contain the inforpleted, or performance not yet begun.
mation listed in (b) through (p) of II work is completed, indicate date of
§ 1-17.401 and, in addition, should con. completion and whether final payment
tain the following information: has been made.
(a) Type of record. The fact that the (j) Contract number and date. The
record is a final record should be Identifying numbers and dates of the
indicated. contracts for which an adjustment is
(b) Action below secretarial level. requested should be inserted. If there
The disposition of the case, the office 18 no contract, then the word “None"
which took action, and the date thereof should be inserted. If the question
should be inserted. The disposition arises under a letter of intent, then that
should be indicated as: "withdrawn," fact and the date of such letter should
"denied," "approved," or "forwarded." be inserted.
If the request was approved in whole or (k) Advertised or negotiated. Whether
in part, the dollar amount or nature of the contract was entered into pursuant
the action should be indicated in a man.
ner similar to that described in § 1-17.401 to advertising or negotiation should be indicated. If negotiated, the specific au
(n). Where the request is denied or thority should be indicated, e.g., "Neg."
• approved, the date should correspond to 302(c) (14) of FPAS Act” (Federal Prop
the date of the Memorandum of Deerty and Administrative Services Act of
cision issued in accordance with 1949).
§ 1-17.208–3. (1) Type of contract. The type of
(c) Action at secretarial level. The contract involved (see Subpart 1-3.4)
disposition of the case at secretarial level should be inserted, e.g., "FFP" (firm
and the date thereof should be indicated fixed price), “CPFF” (cost-plus-a-fixed.
in a manner similar to that described fee), or "T&M” (time and materials).
in § 1-17.402(b). (m) Category of case. Whether the
(d) Implementation and date. The request involves an amendment without nature of the contractual document or consideration, a mistake, or an informal
correspondence which implements the commitment should be indicated. If decision of the approving authority the case involves two or more categories, should be indicated as follows: "amendeach should be indicated; however, the ment,” "new contract," or "letter of most significant category involved should denial.” be listed first. (n) Amount or description of request.
Sample format for prelim. If the request is expressed in dollars, as
inary and final records. a change in price, then that fact should The following is a suggested format for be inserted as follows: "$5,250 increase the preliminary and final records de or “$5,250 decrease.” If the request scribed in $$ 1-17.401 and 1-17.402: