[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR49]

[Page 916]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 49_TERMINATION OF CONTRACTS--Table of Contents
 
                     Subpart 49.1_General Principles
 
Sec.  49.109-7  Settlement by determination.

    (a) General. If the contractor and TCO cannot agree on a termination 
settlement, or if a settlement proposal is not submitted within the 
period required by the termination clause, the TCO shall issue a 
determination of the amount due consistent with the termination clause, 
including any cost principles incorporated by reference. The TCO shall 
comply with 49.109-1 through 49.109-6 in making a settlement by 
determination and with 49.203 in making an adjustment for loss, if any. 
Copies of determinations shall receive the same distribution as other 
contract modifications.
    (b) Notice to contractor. Before issuing a determination of the 
amount due the contractor, the TCO shall give the contractor at least 15 
days notice by certified mail (return receipt requested) to submit 
written evidence, so as to reach the TCO on or before a stated date, 
substantiating the amount previously proposed.
    (c) Justification of settlement proposal. (1) The contractor has the 
burden of establishing, by proof satisfactory to the TCO, the amount 
proposed.
    (2) The contractor may submit vouchers, verified transcripts of 
books of account, affidavits, audit reports, and other documents as 
desired. The TCO may request the contractor to submit additional 
documents and data, and may request appropriate accountings, 
investigations, and audits.
    (3) The TCO may accept copies of documents and records without 
requiring original documents unless there is a question of authenticity.
    (4) The TCO may hold any conferences considered appropriate (i) to 
confer with the contractor, (ii) to obtain additional information from 
Government personnel or from independent experts, or (iii) to consult 
persons who have submitted affidavits or reports.
    (d) Determinations. After reviewing the information available, the 
TCO shall determine the amount due and shall transmit a copy of the 
determination to the contractor by certified mail (return receipt 
requested), or by any other method that provides evidence of receipt. 
The transmittal letter shall advise the contractor that the 
determination is a final decision from which the contractor may appeal 
under the Disputes clause, except as shown in paragraph (f) below. The 
determination shall specify the amount due the contractor and will be 
supported by detailed schedules conforming generally to the forms for 
settlement proposals prescribed in 49.602-1 and by additional 
information, schedules, and analyses as appropriate. The TCO shall 
explain each major item of disallowance. The TCO need not reconsider any 
other action relating to the terminated portion of the contract that was 
ratified or approved by the TCO or another contracting officer.
    (e) Preservation of evidence. The TCO shall retain all written 
evidence and other data relied upon in making a determination, except 
that copies of original books of account need not be made. The TCO shall 
return books of account, together with other original papers and 
documents, to the contractor within a reasonable time.
    (f) Appeals. The contractor may appeal, under the Disputes clause, 
any settlement by determination, except when the contractor has failed 
to submit the settlement proposal within the time provided in the 
contract and failed to request an extension of time. The pendency of an 
appeal shall not affect the authority of the TCO to settle the 
settlement proposal or any part by negotiation with the contractor at 
any time before the appeal is decided.
    (g) Decision on the contractor's appeal. The TCO shall give effect 
to a decision of the Claims Court or a board of contract appeals, when 
necessary, by an appropriate modification to the contract. When 
appropriate, the TCO should obtain a release from the contractor. TCO's 
are authorized to modify the formats of settlement agreements in 49.603 
to agree with this provision.

[48 FR 42447, Sept. 19, 1983, as amended at 52 FR 19805, May 27, 1987]