[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR49]



[Page 931-932]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 49_TERMINATION OF CONTRACTS--Table of Contents

 

                     Subpart 49.1_General Principles

 

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



[[Page 932]]



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]