[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: 48CFR50]

[Page 951-953]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 50_EXTRAORDINARY CONTRACTUAL ACTIONS--Table of Contents
 
                    Subpart 50.3_Contract Adjustments
 
Sec.  50.304  Facts and evidence.

    (a) General. When it is appropriate, the contracting officer or 
other agency official shall request the contractor to support any 
request made under 50.303-1 with any of the following information:
    (1) A brief description of the contracts involved, the dates of 
execution and amendments, the items being acquired, the price or prices, 
the delivery schedules, and any special contract provisions relevant to 
the request.
    (2) A history of performance indicating when work under the 
contracts or commitments began, the progress made to date, an exact 
statement of the contractor's remaining obligations, and the 
contractor's expectations regarding completion.
    (3) A statement of payments received, due, and yet to be received or 
to become due, including advance and progress payments; amounts withheld 
by the Government; and information as to any obligations of the 
Government yet to be performed under the contracts.
    (4) A detailed analysis of the request's monetary elements, 
including precisely how the actual or estimated dollar amount was 
determined and the effect of approval or denial on the contractor's 
profits before Federal income taxes.
    (5) A statement of the contractor's understanding of why the 
request's subject matter cannot now, and could not at the time it arose, 
be disposed of under the contract terms.
    (6) The best supporting evidence available to the contractor, 
including contemporaneous memorandums, correspondence, and affidavits.
    (7) Relevant financial statements, cost analyses, or other such 
data, preferably certified by a certified public accountant, as 
necessary to support the request's monetary elements.
    (8) A list of persons connected with the contracts who have factual 
knowledge of the subject matter, including, when possible, their names, 
offices or titles, addresses, and telephone numbers.
    (9) A statement and evidence of steps taken to reduce losses and 
claims to a minimum.
    (10) Any other relevant statements or evidence that may be required.
    (b) Amendments without consideration--essentiality a factor. When a 
request involves possible amendment without consideration, and 
essentiality to the national defense is a factor (50.302-1(a)), the 
contractor may be asked to furnish, in addition to the facts and 
evidence listed in paragraph (a) of this section, any of the following 
information:
    (1) A statement and evidence of the contractor's original breakdown 
of estimated 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 it is enabled to complete 
them, broken down between costs accrued to date and completion costs, 
and between costs paid and those owed.
    (3) A statement and evidence of the contractor's estimate of the 
final price of the contracts, taking into account all known or 
contemplated escalation, changes, extras, and the like.
    (4) A statement of any claims known or contemplated by the 
contractor against the Government involving the

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contracts, other than those stated in response to subparagraph (3) 
above.
    (5) An estimate of the contractor's total profit or loss under the 
contracts if it is enabled to complete them at the estimated final 
contract price, broken down between profit or loss to date and 
completion profit or loss.
    (6) An estimate of the contractor's total profit or loss from other 
Government business and all other sources, from the date of the first 
contract involved to the estimated completion date of the last contract 
involved.
    (7) A statement of the amount of any tax refunds to date, and an 
estimate of those anticipated, for the period from the date of the first 
contract involved to the estimated completion date of the last contract 
involved.
    (8) A detailed statement of efforts the contractor has made to 
obtain funds from commercial sources to enable contract completion.
    (9) A statement of the minimum amount the contractor needs as an 
amendment without consideration to enable contract completion, 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 causing the loss under the contracts 
involved.
    (12) A statement of the course of events anticipated if the request 
is denied.
    (13) Balance sheets, preferably certified by a certified public 
accountant, (i) for the contractor's fiscal year immediately preceding 
the date of the first contract, (ii) for each subsequent fiscal year, 
(iii) as of the request date, and (iv) projected as of the completion 
date of all the contracts involved (assuming the contractor is enabled 
to complete them at the estimated final prices), 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 broken down by affiliates. They should show all 
transactions between the contractor and its affiliates, stockholders, 
and partners, including loans to the contractor guaranteed by any 
stockholder or partner.
    (14) A list of all salaries, bonuses, and other compensation paid or 
furnished to the principal officers or partners, and of all dividends 
and other withdrawals, and of all payments to stockholders in any form 
since the date of the first contract involved.
    (c) Amendments without consideration--essentiality not a factor. 
When a request involves possible amendment without consideration because 
of Government action, and essentiality to the national defense is not a 
factor (50.302-1(b)), the contractor may be asked to furnish, in 
addition to the facts and evidence listed in paragraph (a) of this 
section, any of the following information:
    (1) A clear statement of the precise Government action that the 
contractor considers to have 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 under the contract, with detailed 
supporting analysis.
    (4) The estimated loss resulting specifically from the Government 
action, with detailed supporting analysis.
    (d) Correcting mistakes. When a request involves possible correction 
of a mistake (50.302-2), the contractor may be asked to furnish, in 
addition to the facts and evidence listed in paragraph (a) of this 
section, any of the following information:
    (1) A statement and evidence of the precise error made, ambiguity 
existing, or misunderstanding arising, showing what it consists of, how 
it occurred, and the intention of the parties.
    (2) A statement explaining when the mistake was discovered, when the 
contracting officer was given notice of it, and whether this notice was 
given before completion of work under, or the effective termination date 
of, the contract.
    (3) An estimate of profit or loss under the contract, with detailed 
supporting analysis.
    (4) An estimate of the increase in cost to the Government resulting 
from the adjustment requested, with detailed supporting analysis.

[[Page 953]]

    (e) Formalizing informal commitments. When a request involves 
possible formalizing of an informal commitment (50.302-3), the 
contractor may be asked to furnish, in addition to the facts and 
evidence listed in paragraph (a) of this section, any of the following 
information:
    (1) Copies of any written instructions or assurances (or a sworn 
statement of any oral instructions or assurances) given the contractor, 
and identification of the Government official who gave them.
    (2) A statement as to when the contractor furnished or arranged to 
furnish the supplies or services involved, and to whom.
    (3) Evidence that the contractor relied upon the instructions or 
assurances, with a full description of the circumstances that led to 
this reliance.
    (4) Evidence that, when performing the work, the contractor expected 
to be compensated directly for it by the Government and did not 
anticipate recovering the costs in some other way.
    (5) A cost breakdown supporting the amount claimed as fair 
compensation for the work performed.
    (6) A statement and evidence of the impracticability of providing, 
in an appropriate contractual instrument, for the work performed.

[48 FR 42471, Sept. 19, 1983, as amended at 60 FR 48230, Sept. 18, 1995]