[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: 48CFR50]



[Page 966-968]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 50_EXTRAORDINARY CONTRACTUAL ACTIONS--Table of Contents

 

                    Subpart 50.3_Contract Adjustments

 

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



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(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 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



[[Page 968]]



(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.

    (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]