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ject to the availability of appropriated considered appropriate, request the con-
129 PR 10348, July 24, 1964, as amended sch requests, the contractor may also
(hereinafter referred to in this subpart and amendments thereto, the items be- of te
as the “contractor") may Alle & request bg procured, the price or prices and
In duplicate with the cognizant contract fallvery schedules and revisions thereof,
ing officer or his duly authorized repre und such other special contractual pro-
sentative. Il such Aling is imprache long as may be relevant to the

The contractor's request shall not made to the present, an exact statement tract mally consist of a letter to the contract the contractor's remaining oblig&

(a) The precise adjustment requested warding completion thereof;

(c) The contractor's conclusions based seved or to become due, including adthe standards set forth in $ 1-17.204 Suunto withheld by the Government, asked (d) Whether all obligations have been be performed under the contract;

talysis of the monetary elements of lowas

the re (b) The action shall not obligate the

le) Whether final payment has been clause or compliance therewith (If in

actual Government in an amount in excess of

mode under the contracts involved;

cluded) would be impracticable; $50,000. (f) The Equal Opportunity clause pre

reques

(0) Whether any proceeds from the (c) The action shall not release & scribed in § 1-7.102-16;

request will be subject to any assign prova contractor from performance of

(g) The Assignment of Claims clause ment or other transfer, and to whom; profita obligation

prescribed in § 1-7.102–8;

and

wheth (1) Priced in excess of $50.000; or (h) If otherwise applicable, the con (8) Whether the contractor has sought ment (2) Where reprocurement is contem tract clause entitled Walsh-Healey Pub the same, or a similar or related, adjust

a par plated, unless the approving authority lic Contracts Act as set forth in $l ment from the General Accounting Oi negot finds that the estimated actual or po 12.605; the contract clauses entitled fice or any other part of the Government, tential increase in cost to the Govern Davis-Bacon Act and Compliance with or anticipates dolng 50. ment will not exceed $50.000. Copeland Regulations as set forth in

(5) (d) The action shall not involve the Standard Form 19-A (see $ 1-16.901-18 11-17.207-3 Preliminary record of re

quests.

a sta disposal of Government surplus property. A); and the contract clause entitled Con

stand (e) Mistakes shall not be corrected by

tract Work Hours and Safety Standards

At the time the contractor's requests is Action obligating the Government in an Act-Overtime Compensation as preled, a preliminary record thereof, as at the amount in excess of $500 unless notice of

scribed in 8 1-7.102-15.

described in Subpart 1-17.4, shall be the to the mistake was given to the contracting (1) Where an indemnification agret prepared.

(6) oficer before completion of the contrac ment is authorized under the Act. a con

conti tor's work or the effective date of con tract clause providing that the Govern 11-17207-4 Facts and evidence.

by tr tract termination.

ment's obligation under the agreement

(8) General. The contracting officer ranec (1) The correction of a contract be

is expressly conditioned upon and sub

Ar an approving authority shall, where fidav cause of a mistake in Its making shall not result in increasing the original contract price above the next lowest responsive and bid of a responsible bidder in the case of (j) Any other clauses which are ment and in addition, where applicable

,

cost & formally advertised procurement, or propriate to the particular procurement

erab. the amount of the next lowest responsive or required by law or regulation.

coun proposal (at the time of award) of a

nand responsible offeror considered in the case

38 FR 6676, Mar. 12, 1973) of a negotiated procurement.

§ 1-17.207 Requests by contractors. 81–17.206 Contractual requirements. $ 1-17.207-1 Filing requests.

(8 Every contract entered into or amend

agen ed or modified pursuant to this part 1-17 der the standards set forth in $ 1-17.204

or o shall contain:

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

possi (b) A brief statement of the circumstances Justifying the action;

pers (c) A recital of the finding that

(9 the action will facilitate the national

take defense;

head. (d) The contract clause entitled

(1 8 1-17.207-2 Form of requests. "Covenant Against Contingent Fees." As set forth in $ 1-1.503;

(e) A contract clause in accordance with the examination of records require ing officer stating:

(b ments of section 3(b) of the Act (see § 1-3.814-2(e)), unless (1) the contract Is for purchases authorized to be made

chronological narrative form; 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

as is No. 10845 of October 12. 1959 (3 CFR,

(1) 1959–1963 Comp., p. 377), it is determined by the agency that inclusion of such volved:

the co the ro

ther

to es

u described in (b), (c), (d), or (e) of lalu 1-17.207-4. (In complying with submit other statements and evidence fully vilch he may consider helpful to the men

(1) written contracts are innived, 8 brief description of the conzaeta, Indicating the dates of execution

and

request;

3) A history of performance IndiSelling when work under the contracts te commitments was begun, the progress

to al

denc

tors, and the contractor's expectations tion

3) A statement of payments received, Varments due, and payments yet to be possi

to it 17.20

ton fense

d Information as to other obligations il the Government, 1f any, which are yet

A statement giving a detailed mate

conto

760

(e) Whether final payment has been the request including precisely how the made under the contracts Involved; actual or estimated dollar amount of the

(1) 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 Or. 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;

(5) If a written contract is involved. 81-17.207-3 Preliminary record of re

a statement of the contractor's underquests.

standing of why the subject matter of At the time the contractor's requests is the request cannot now, and could not fled. a 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 itsell; prepared.

(6) The best evidence available to the § 1-17.2074 Facts and evidence.

contractor in support of any facts alleged

by the contractor, including contempo(a) General. The contracting oficer raneous memoranda, correspondence, at. or an approving authority shall, where

fidavits, and any other material tending considered appropriate, request the con

to establish matters of fact; tractor to furnish additional facts and

(7) Relevant financial statements. evidence, as described in this paragraph (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 fi. such 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) I 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, ofice or title, address, delivery schedules and revisions thereof, and telephone number of each sucb 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 g 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 considerasecelved 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, 11 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 detalled mated costs, including contingency alanalysis of the monetary elements of lowances and pront;

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all other forms of compensation of the hustment requested, with detailed sup

(14) A list of all salaries, bonuses, and the Government resulting from the all payments to stockholders in any form flaents under $1-17.204-4. In addisince the date of the first contract in to the facts and evidence listed in §

(c) Amendments without considerable formalization of an informal tion under $ 1-17.204–200). In addition ommitment, the contractor shall be to the facts and evidence listed in sted to furnish such of the following de 8 1-17.207-4(a), where a request involves a deemed appropriate to the request: tion because of Government action, and Regurances, or a statement under oath a factor, the contractor shall be asked sade to the contractor, with identificaessentiality to the national defense is not to any oral Instructions or assurances to furnish such of the following as so of the Government official making

(1) A clear statement of the precise A statement as to when the propGovernment action which the contractor or services were furnished or arconsiders caused a loss under the come toged to be furnished, and to whom;

(2) A statement and evidence of the full description of the circumstances contractor's original breakdown of esti teh led blm 80 to rely, and that the mated costs, including contingency el sentractor intended, at the time of per(3) The estimated total loss suffered bedly for it by the Government and did

anticipate recovery of the costs in

(2) A statement and evidence of the (12) A statement as to the course o! (d) Correction of mistakes under contractor's present estimate of total

It events anticipated if the request i 11-17 204-3. In addition to the facts costs under the contracts involved if en denied:

and evidence listed in $ 1-17.207-4(a), abled to complete them, broken down as (13) Balance sheets, preferably cer there a request involves possible correc tre between costs accrued to date of request tified by a certified public accountant tion of a mistake, the contractor shall

$ and run-out costs, and as between costs (1) as of the end of the contractor's be asked to furnish such of the following for which the contractor has made pay fiscal year first preceding the date of the

u is deemed appropriate to the request: ment and those for which he is indebted first contract, (ii) as of the end of each

(1) A statement and evidence of the

in at the time of the request;

subsequent fiscal year, (ill) as of the date

precise mistake or error that was made, (3) A statement and evidence of the of the request, and (iv) projected as of

the ambiguity that exists, or the miscontractor's estimate of the final con the date of completion of all the con

understanding that arose, showing of tract price of the contracts involved tracts involved assuming the contractor

that it consisted and how it occurred, of giving effect to all escalation, changes, is enabled to complete the contracts at

and the intention of the parties; extras, and the like, known or contem the final prices estimated pursuant to plated by the contractor;

$ 1-17.207-4(b)(3), together with income

(2) A statement explaining when the

ta (4) A statement of any claims known statements for annual perlods subsesstake was discovered, when notice of pe

quent to the date of the first balance mistake was given to the contracting ofor contemplated by the contractor

sta against the Government involving the

sheet. Balance sheets and income state ter, and whether given before comple kr contracts in question, other than those ments should be both consolidated and tem of work under, or the effective date stated in response to $ 1–17.207-4(b) (3); by affiliates, and should show all trans

. termination of, the contract; w (5) An estimate of the contractor's actions between the contractor and his

fir total profit or loss under the contracts affiliates, stockholders, and partners, as the contract with detailed supports Involved if enabled to complete at the

cluding loans to the contractor guaran analysis; and estimated final contract price (see

teed by any stockholder or partner; and $ 1-17.207-4(b) (3)), broken down be

te tween profit or loss to date and run-out

G profit or loss; principal officers or partners and of al krting analysis.

ta (6) An estimate of the contractor's dividends and other withdrawals, and

PC 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 involved. date of completion of all the contracts

th Involved:

th (7) A statement of the amount of any tax refunds and an estimate of those

ra anticipated during or for the period from the date of the first contract involved through the estimated completion date

tr of all the contracts involved;

th (8) A statement in detail as to efforts the contractor has made to obtain funds

tu from commercial sources to enable him

if to complete performance of the contracts Involved; (9) A statement of the minimum

tract, with evidence to support each es. amount necessary 88 an amendment sential fact;

ju without consideration to enable the contractor to complete performance of the

pi contracts involved, and the detalled basis for that amount; lowances, and profit;

a (10) An estimate of the time required

ti to complete each contract it the request is granted;

(11) A statement of the factors which have caused the loss under the contracts Involved;

M

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ca

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1) Copies of any written Instructions

Evidence that the contractor relled tin the instructions or assurances, with

er

Samling the work, to be compensated

fc

A cost breakdown supporting the sunt clalmed as a falr compensation in

762

(d) Correction of mistakes under $ 1-17.204-3. In addition to the facts and evidence listed in 31-17.207-4(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 pront un. der the contract with detalled supporto ing 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 11-17.207-4(2), 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 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 15 by the Government and did not anticipate recovery of the costs 10 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.

Al cases shall be processed in accord. ance 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. 8 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 (il 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;

(3) 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) I some adjustment action is approved, a statement in substantially the following form: “I find that the action authorized herein will facilitate the dational defense."

(b) Where the Memorandum of Decision contains information which 15 classified “Confidential" or higher, such information shall be identified in the Memorandum. In lieu of including

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that the information required for the watracts for which an adjustment is
suant to g 1-17.207-3 should contain the the contract was entered into pursuant

(a) Type of record. The fact that the adicated. If negotiated, the specific au-
(b) Date of contractor's request. ID and Administrative Services Act of

(c) Date received by Government atract involved (see Subpart 1-3.4)
The date the request for adjustment is tould be inserted, e.g., "FFP” (firm
which the contractor may properly sub-14), or "T&M" (time and materials).
(d) Name and address of contractor est Involves an amendment without

D Amount or description of request. § 1-10
I the request is expressed in dollars, as
leserved as follows: "$5,250 increase the p

* $250 decrease." If the request scribec

seeks classified information in the Memoran powers shall comply with the provisions (0) Cognizant contracting officer of dum, such information may be set forth of $ 1-17.206.

ofice

. The contracting officer adminis. express in a separate classified document which

tering the contract for which an adjust brief d

§ 1-17.304 Recoris. Is referenced in the Memorandum.

Bent was requested or, 1 none, the con such a

A copy of each memorandum required tracting officer or office cognizant of the of Terr 81-17.2084 Records. by § 1-17.303(a) shall be retained in the request should be inserted.

is not The following shall be retained in the

should agency files.

(g) Procuring activity. The name of agency files with respect to each request

the procuring activity with jurisdiction

estima Subpart 1–17.4—Records of Requests and processed:

over the contracting officer or office re reques Dispositions ferred to in (f) above should be inserted.

(0) (a) The Memorandum of Decision re

81-17.400 Scope of subpart.

(1) Property or service involved. A quired in § 1-17.208–3;

on whi brief description of the item being pro

inserte (b) The contractor's request;

In order that adequate records of ac

cured or services being rendered should (p) (c) Memoranda, correspondence, afi tions taken pursuant to the Act may be

be inserted.

signed davits, statements, and all other docu maintained, § 1-17.207–3 requires the

() Ertent of performance as of date

of the ments containing information acquired preparation of a preliminary record wher

of request. A brief indication, as of the In connection with the request:

8 1-17 each request is filed for any adjustment

date of the request, of the degree of (d) A copy of the contractual docu under the standards set forth in $ 1-11.

ompletion of the contract should be in.

Each ment Implementing any approved con

204, and $ 1–17.208-4 requires the premiested; for example, 50 percent com. to $ 1tractual action; and

aration of a final record indicating the seed, or performance not yet begun. matior (e) The final record prepared in ac disposition of the request

. This subpar i pork is completed, indicate date of $ 1-17. cordance with $ 1-17.402. describes in detall the information which supletion and whether final payment tain tr

(a) Subpart 1-17.3—Residual Powers

should be included in these records. A

(1) Contract number and date. The

record suggested format for the records is 81–17.300 Scope of subpart

Indica shown in § 1-17.403. It is designed 80

(b) This subpart prescribes the standards

aquested should be inserted. If there The d and procedures for the exericse of residpreliminary and final record with re

which ual powers under the Act. The term

spect to each request may be combined

dould be inserted. If the question should "residual powers" as used in this subpart on the same form.

should includes all the authority under the Act § 1-17.401 Preliminary records.

"denie except that which is covered by Subpart

If the 1-17.2 and the authority to make ad

Each preliminary record prepared pur. vance payments. following information:

ner sin 8 1-17.301 Statutory limitation on dela gation of authority.

approl Authority to approve actions obligating be indicated. the United States in an amount in excess of $50,000 under the residual powers of the Act shall not be delegated below the

$ 1-17. secretarial level.

(c)

dispos 1-17.302 Standards for using residual

powers. Subject to the limitations contained in $ 1-17.205-1, the residual powers may be

(d) used in accordance with the policies set forth in § 1-17.102 where such use is deemed necessary and appropriate. 81-17.303 Procedures. (a) With respect to each proposal for dicated.

ment, the exercise of residual powers, the ap

denial proving authority shall sign a memorandum contalning information substan

ir tially as set forth in § 1-17.208–3.

(b) Every contract entered into or amended or modified under the residua)

inserted.

has been made.

dentifying numbers and dates of the

1 no contract, then the word “None"

rises under a letter of intent, then that
last and the date of such letter should
be inserted.
) Advertised or negotiated. Whether

in par the ac

a advertising or negotiation should be

(n).

record is a preliminary record should

barity should be indicated, e.g., "Neg.
12 c) (14) of FPAS Act" (Federal Prop-

the da cision

date on the face of the contractor's Te Mb).
quest for adjustment should be inserted

0 Type of contract. The type of

), "CPFF” (cost-plus-a

and th

received in any Government office to

(m) Category of case. Whether the

in a in $ 1

mit his request should be inserted.

The full and correct name and address
of the contractor Aling the request
should be inserted. If the contractor 1
a small business, this fact should be in.

wederation, a mistake, or an informal
somitment should be indicated. If

te case involves two or more categories,
sh should be indicated; however, the
1st significant category involved should

nature corres decisic should

a listed Airst.

(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

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