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(b) The action shall not obligate the Government in an amount in excess of $50,000.

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(c) The action shall not release a contractor from performance of obligation

(1) Priced in excess of $50.000; or (2) Where reprocurement is contemplated, unless the approving authority finds that the estimated actual or potential increase in cost to the Government will not exceed $50,000.

(d) The action shall not involve the disposal of Government surplus property.

(e) Mistakes shall not be corrected by action obligating the Government in an amount in excess of $500 unless notice of the mistake was given to the contracting officer before completion of the contractor's work or the effective date of contract termination.

(f) The correction of a contract because of a mistake in its making shall not result in increasing the original contract price above the next lowest responsive bid of a responsible bidder in the case of a formally advertised procurement, or the amount of the next lowest responsive proposal (at the time of award) of a responsible offeror considered in the case of a negotiated procurement.

§ 1-17.206 Contractual requirements.

Every contract entered into or amended or modified pursuant to this Part 1-17 shall contain:

(a) A citation of the Act and the Executive Order:

(b) A brief statement of the circumstances justifying the action;

(c) A recital of the finding that the action will facilitate the national defense;

(d) The contract clause entitled "Covenant Against Contingent Fees," as set forth in § 1-1.503;

(e) A contract clause in accordance with the examination of records requirements of section 3(b) of the Act (see § 1-3.814-2(e)), unless (1) the contract is for purchases authorized to be made outside the United States under the Foreign Assistance Act of 1961, and (2) pursuant to Executive Order No. 10784 of October 1, 1958 (3 CFR, 1954-1958 Comp., p. 422), as amended by Executive Order No. 10845 of October 12, 1959 (3 CFR, 1959-1963 Comp., p. 377), it is determined by the agency that inclusion of such

clause or compliance therewith (if included) would be impracticable;

(f) The Equal Opportunity clause prescribed in § 1-7.102-16;

(g) The Assignment of Claims clause prescribed in § 1-7.102-8;

(h) If otherwise applicable, the contract clause entitled Walsh-Healey Public Contracts Act as set forth in § 112.605; the contract clauses entitled Davis-Bacon Act and Compliance with Copeland Regulations as set forth in Standard Form 19-A (see § 1-16.901-19A); and the contract clause entitled Contract Work Hours and Safety Standards Act-Overtime Compensation as prescribed in § 1-7.102-15.

(1) Where an indemnification agreement is authorized under the Act, a contract clause providing that the Government's obligation under the agreement is expressly conditioned upon and subject to the availability of appropriated funds from which payment can be made: and

(j) Any other clauses which are appropriate to the particular procurement or required by law or regulation.

[29 FR 10348, July 24, 1964, as amended at 38 FR 6675, Mar. 12, 1973]

§ 1-17.207

§ 1-17.207-1

Requests by contractors.
Filing requests.

Any person seeking an adjustment under the standards set forth in § 1-17.204 (hereinafter referred to in this subpart as the "contractor") may file a request in duplicate with the cognizant contracting officer or his duly authorized representative. If such filing is impracticable, requests will be deemed to be properly filed if filed with the agency head.

§ 1-17.207-2 Form of requests.

The contractor's request shall normally consist of a letter to the contracting officer stating:

(a) The precise adjustment requested; (b) The essential facts summarized in chronological narrative form;

(c) The contractor's conclusions based on such facts and showing, in terms of the standards set forth in § 1-17.204, why the contractor considers himself entitled to the adjustment requested;

(d) Whether all obligations have been discharged under the contracts involved;

(e) Whether final payment has been made under the contracts involved;

(f) Whether any proceeds from the request will be subject to any assignment or other transfer, and to whom; and

(g) Whether the contractor has sought the same, or a similar or related, adjustment from the General Accounting Office or any other part of the Government, or anticipates doing so.

§ 1-17.207-3 Preliminary record of requests.

At the time the contractor's requests is filed, a preliminary record thereof, as described in Subpart 1-17.4, shall be prepared.

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(1) If

written contracts are involved, a brief description of the contracts, indicating the dates of execution and amendments thereto, the items being procured, the price or prices and delivery schedules and revisions thereof, and such other special contractual provisions &S may be relevant to the request;

(2) 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;

(3) 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;

(4) 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;

(5) If a written contract is involved, a statement of the contractor's understanding of why the subject matter of the request cannot now, and could not at the time it arose, be disposed of under the terms of the contract itself;

(6) 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;

(7) Relevant financial statements. cost analyses, or other such data, preferably certified by a certificd public accountant, including such additional flnancial data as are necessary to explain fully and to support the monetary elements of the request for adjustment;

(8) A list of persons (within the agency, 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; ..

(9) A statement and evidence of steps taken to mitigate loss and reduce claims to a minimum; and

(10) Such other statements or evidence as may be requested by the contracting officer.

(b) Amendments without consideration under § 1-17.204-2(a). In addition to the facts and evidence listed in § 117.207-4(a), where a request involves possible amendment without consideration and essentiality to the national defense is a factor, 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 contractor's original breakdown of estlmated costs, including contingency allowances 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 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

(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 § 1-17.204-2(b). 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.

20-126 0-74- 40

(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 officer, 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 official 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 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;

(4) A cost breakdown supporting the amount claimed as a fair compensation for the work performed; and

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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.

§ 1-17.208-2 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 authority (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

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The following shall be retained in the agency files with respect to each request processed:

(a) The Memorandum of Decision required in § 1-17.208-3;

(b) The contractor's request;

(c) Memoranda, correspondence, affidavits, statements, and all other documents containing information acquired in connection with the request;

(d) A copy of the contractual document implementing any approved contractual action; and

(e) The final record prepared in accordance with § 1-17.402.

Subpart 1-17.3-Residual Powers $1-17.300

Scope of subpart.

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powers shall comply with the provisions of § 1-17.206.

§ 1-17.304 Records.

A copy of each memorandum required by 1-17.303(a) shall be retained in the agency files.

Subpart 1-17.4-Records of Requests and Dispositions

§ 1-17.400 Scope of subpart.

In order that adequate records of actions taken pursuant to the Act may be maintained, § 1-17.207-3 requires the preparation of a preliminary record when each request is filed for any adjustment under the standards set forth in § 1-17.204, and § 1-17.208-4 requires the preparation of a final record indicating the disposition of the request. This subpart describes in detail the information which should be included in these records. A suggested format for the records is shown in § 1-17.403. It is designed so that the information required for the preliminary and final record with respect to each request may be combined on the same form.

§ 1-17.401 Preliminary records.

Each preliminary record prepared pursuant to § 1-17.207-3 should contain the following information:

(a) Type of record. The fact that the record is a preliminary record should be indicated.

(b) Date of contractor's request. The date on the face of the contractor's request for adjustment should be inserted (c) Date received by Government

The date the request for adjustment is received in any Government office to which the contractor may properly submit his request should be inserted.

(d) Name and address of contractor The full and correct name and address of the contractor filing the request should be inserted. If the contractor is a small business, this fact should be in. dicated.

(e) Name and address of contractor's representative, if any. If a particular named person (employee, attorney, etc.) is the point of contact with the contractor, his full name and address should be inserted.

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