Part 31 - Contract Cost Principles and

Procedures

31.000 Scope of part.

31.001 Definitions.

31.002 Availability of accounting guide.

Subpart 31.1 - Applicability

31.100 Scope of subpart.

31.101 Objectives.

31.102 Fixed-price contracts.

31.103 Contracts with commercial organizations.

31.104 Contracts with educational institutions.

31.105 Construction and architect-engineer contracts.

31.106 [Reserved]

31.107 Contracts with State, local, and federally recognized Indian tribal governments.

31.108 Contracts with nonprofit organizations.

31.109 Advance agreements.

31.110 Indirect cost rate certification and penalties on unallowable costs.

Subpart 31.2 - Contracts with Commercial Organizations

31.201 General.

31.201-1 Composition of total cost.

31.201-2 Determining allowability.

31.201-3 Determining reasonableness.

31.201-4 Determining allocability.

31.201-5 Credits.

31.201-6 Accounting for unallowable costs.

31.201-7 Construction and architect-engineer contracts.

31.202 Direct costs.
31.203 Indirect costs.

31.204 Application of principles and procedures.

31.205 Selected costs.

31.205-1 Public relations and advertising costs.

31.205-2 [Reserved]

31.205-3 Bad debts.

31.205-4 Bonding costs.

31.205-5 [Reserved]

31.205-6 Compensation for personal services.

31.205-7 Contingencies.

31.205-8 Contributions or donations.

31.205-9 [Reserved]

31.205-10 Cost of money.

31.205-11 Depreciation.

31.205-12 Economic planning costs.

31.205-13 Employee morale, health, welfare, food service, and dormitory costs and credits.

31.205-14 Entertainment costs.

31.205-15 Fines, penalties, and mischarging costs.

31.205-16 Gains and losses on disposition or impairment of depreciable property or other capital

assets.

31.205-17 Idle facilities and idle capacity costs.

31.205-18 Independent research and development and bid and proposal costs.

31.205-19 Insurance and indemnification.

31.205-20 Interest and other financial costs.

31.205-21 Labor relations costs.

31.205-22 Lobbying and political activity costs.

31.205-23 Losses on other contracts.

31.205-24 [Reserved]
31.205-25 Manufacturing and production engineering costs.

31.205-26 Material costs.

31.205-27 Organization costs.

31.205-28 Other business expenses.

31.205-29 Plant protection costs.

31.205-30 Patent costs.

31.205-31 Plant reconversion costs.

31.205-32 Precontract costs.

31.205-33 Professional and consultant service costs.

31.205-34 Recruitment costs.

31.205-35 Relocation costs.

31.205-36 Rental costs.

31.205-37 Royalties and other costs for use of patents.

31.205-38 Selling costs.

31.205-39 Service and warranty costs.

31.205-40 Special tooling and special test equipment costs.

31.205-41 Taxes.

31.205-42 Termination costs.

31.205-43 Trade, business, technical and professional activity costs.

31.205-44 Training and education costs.

31.205-45 [Reserved]

31.205-46 Travel costs.

31.205-47 Costs related to legal and other proceedings.

31.205-48 Research and development costs.

31.205-49 Goodwill.

31.205-50 [Reserved]

31.205-51 Costs of alcoholic beverages.

31.205-52 Asset valuations resulting from business combinations.
Subpart 31.3 - Contracts with Educational Institutions

31.301 Purpose.

31.302 General.

31.303 Requirements.

Subpart 31.4 - [Reserved]

Subpart 31.5 - [Reserved]

Subpart 31.6 - Contracts with State, Local, and Federally Recognized Indian Tribal Governments

31.601 Purpose.

31.602 General.

31.603 Requirements.

Subpart 31.7 - Contracts with Nonprofit Organizations

31.701 Purpose.

31.702 General.

31.703 Requirements.

Parent topic: Federal Acquisition Regulation

31.000 Scope of part.

This part contains cost principles and procedures for-

(a) The pricing of contracts, subcontracts, and modifications to contracts and subcontracts whenever

cost analysis is performed (see 15.404-1(c)); and

(b) The determination, negotiation, or allowance of costs when required by a contract clause.

31.001 Definitions.

As used in this partAccrued benefit cost method means an actuarial cost method under which units of benefits are

assigned to each cost accounting period and are valued as they accrue; i.e., based on the services

performed by each employee in the period involved. The measure of normal cost under this method

for each cost accounting period is the present value of the units of benefit deemed to be credited to

employees for service in that period. The measure of the actuarial accrued liability at a plan’s

inception date is the present value of the units of benefit credited to employees for service prior to

that date. (This method is also known as the unit credit cost method without salary projection.).
Accumulating costs means collecting cost data in an organized manner, such as through a system of

accounts.

Actual cash value means the cost of replacing damaged property with other property of like kind and

quality in the physical condition of the property immediately before the damage.

Actual costs means (except for subpart 31.6) amounts determined on the basis of costs incurred, as

distinguished from forecasted costs. Actual costs include standard costs properly adjusted for

applicable variances.

Actuarial accrued liability means pension cost attributable, under the actuarial cost method in use,

to years prior to the current period considered by a particular actuarial valuation. As of such date,

the actuarial accrued liability represents the excess of the present value of future benefits and

administrative expenses over the present value of future normal costs for all plan participants and

beneficiaries. The excess of the actuarial accrued liability over the actuarial value of the assets of a

pension plan is the unfunded actuarial liability. The excess of the actuarial value of the assets of a

pension plan over the actuarial accrued liability is an actuarial surplus and is treated as a negative

unfunded actuarial liability.

Actuarial assumption means an estimate of future conditions affecting pension cost; e.g., mortality

rate, employee turnover, compensation levels, earnings on pension plan assets, and changes in

values of pension plan assets.

Actuarial cost method means a technique which uses actuarial assumptions to measure the present

value of future pension benefits and pension plan administrative expenses, and that assigns the cost

of such benefits and expenses to cost accounting periods. The actuarial cost method includes the

asset valuation method used to determine the actuarial value of the assets of a pension plan.

Actuarial gain and loss means the effect on pension cost resulting from differences between

actuarial assumptions and actual experience.

Actuarial valuation means the determination, as of a specified date, of the normal cost, actuarial

accrued liability, actuarial value of the assets of a pension plan, and other relevant values for the

pension plan.

Allocate means to assign an item of cost, or a group of items of cost, to one or more cost objectives.

This term includes both direct assignment of cost and the reassignment of a share from an indirect

cost pool.

Compensated personal absence means any absence from work for reasons such as illness, vacation,

holidays, jury duty, military training, or personal activities for which an employer pays compensation

directly to an employee in accordance with a plan or custom of the employer.

Compensation for personal services means all remuneration paid currently or accrued, in whatever

form and whether paid immediately or deferred, for services rendered by employees to the

contractor.

Cost input means the cost, except general and administrative (G&A) expenses, which for contract

costing purposes is allocable to the production of goods and services during a cost accounting

period.

Cost objective means (except for subpart 31.6) a function, organizational subdivision, contract, or

other work unit for which cost data are desired and for which provision is made to accumulate and
measure the cost of processes, products, jobs, capitalized projects, etc.

Deferred compensation means an award made by an employer to compensate an employee in a

future cost accounting period or periods for services rendered in one or more cost accounting

periods before the date of the receipt of compensation by the employee. This definition shall not

include the amount of year end accruals for salaries, wages, or bonuses that are to be paid within a

reasonable period of time after the end of a cost accounting period.

Defined-benefit pension plan means a pension plan in which the benefits to be paid, or the basis for

determining such benefits, are established in advance and the contributions are intended to provide

the stated benefits.

Defined-contribution pension plan means a pension plan in which the contributions to be made are

established in advance and the benefits are determined thereby.

Directly associated cost means any cost which is generated solely as a result of the incurrence of

another cost, and which would not have been incurred had the other cost not been incurred.

Estimating costs means the process of forecasting a future result in terms of cost, based upon

information available at the time.

Expressly unallowable cost means a particular item or type of cost which, under the express

provisions of an applicable law, regulation, or contract, is specifically named and stated to be

unallowable.

Final cost objective means (except for subparts 31.3 and 31.6) a cost objective that has allocated to

it both direct and indirect costs and, in the contractor’s accumulation system, is one of the final

accumulation points.

Fiscal year means the accounting period for which annual financial statements are regularly

prepared, generally a period of 12 months, 52 weeks, or 53 weeks.

Funded pension cost means the portion of pension cost for a current or prior cost accounting period

that has been paid to a funding agency.

Home office means an office responsible for directing or managing two or more, but not necessarily

all, segments of an organization. It typically establishes policy for, and provides guidance to, the

segments in their operations. It usually performs management, supervisory, or administrative

functions, and may also perform service functions in support of the operations of the various

segments. An organization which has intermediate levels, such as groups, may have several home

offices which report to a common home office. An intermediate organization may be both a segment

and a home office.

Immediate-gain actuarial cost method means any of the several actuarial cost methods under which

actuarial gains and losses are included as part of the unfunded actuarial liability of the pension plan,

rather than as part of the normal cost of the plan.

Independent research and development (IR&D) cost means the cost of effort which is neither

sponsored by a grant, nor required in performing a contract, and which falls within any of the

following four areas-

(a) Basic research,
(b) Applied research,

(c) Development, and

(d) Systems and other concept formulation studies.

Indirect cost pools means (except for subparts 31.3 and 31.6) groupings of incurred costs identified

with two or more cost objectives but not identified specifically with any final cost objective.

Insurance administration expenses means the contractor’s costs of administering an insurance

program; e.g., the costs of operating an insurance or risk-management department, processing

claims, actuarial fees, and service fees paid to insurance companies, trustees, or technical

consultants.

Intangible capital asset means an asset that has no physical substance, has more than minimal

value, and is expected to be held by an enterprise for continued use or possession beyond the

current accounting period for the benefits it yields.

Job means a homogeneous cluster of work tasks, the completion of which serves an enduring

purpose for the organization. Taken as a whole, the collection of tasks, duties, and responsibilities

constitutes the assignment for one or more individuals whose work is of the same nature and is

performed at the same skill/responsibility level-as opposed to a position, which is a collection of

tasks assigned to a specific individual. Within a job, there may be pay categories which are

dependent on the degree of supervision required by the employee while performing assigned tasks

which are performed by all persons with the same job.

Job class of employees means employees performing in positions within the same job.

Labor cost at standard means a preestablished measure of the labor element of cost, computed by

multiplying labor-rate standard by labor-time standard.

Labor market means a place where individuals exchange their labor for compensation. Labor

markets are identified and defined by a combination of the following factors-

(1) Geography,

(2) Education and/or technical background required,

(3) Experience required by the job,

(4) Licensing or certification requirements,

(5) Occupational membership, and

(6) Industry.

Labor-rate standard means a preestablished measure, expressed in monetary terms, of the price of

labor.

Labor-time standard means a preestablished measure, expressed in temporal terms, of the quantity

of labor.

Material cost at standard means a preestablished measure of the material elements of cost,

computed by multiplying material-price standard by material-quantity standard.
Material-price standard means a preestablished measure, expressed in monetary terms, of the price

of material.

Material-quantity standard means a preestablished measure, expressed in physical terms, of the

quantity of material.

Moving average cost means an inventory costing method under which an average unit cost is

computed after each acquisition by adding the cost of the newly acquired units to the cost of the

units of inventory on hand and dividing this figure by the new total number of units.

Nonqualified pension plan means any pension plan other than a qualified pension plan as defined in

this part.

Normal cost means the annual cost attributable, under the actuarial cost method in use, to current

and future years as of a particular valuation date excluding any payment in respect of an unfunded

actuarial liability.

Original complement of low cost equipment means a group of items acquired for the initial outfitting

of a tangible capital asset or an operational unit, or a new addition to either. The items in the group

individually cost less than the minimum amount established by the contractor for capitalization for

the classes of assets acquired but in the aggregate they represent a material investment. The group,

as a complement, is expected to be held for continued service beyond the current period. Initial

outfitting of the unit is completed when the unit is ready and available for normal operations.

Pay-as-you-go cost method means a method of recognizing pension cost only when benefits are paid

to retired employees or their beneficiaries.

Pension plan means a deferred compensation plan established and maintained by one or more

employers to provide systematically for the payment of benefits to plan participants after their

retirements, provided that the benefits are paid for life or are payable for life at the option of the

employees. Additional benefits such as permanent and total disability and death payments, and

survivorship payments to beneficiaries of deceased employees, may be an integral part of a pension

plan.

Pension plan participant means any employee or former employee of an employer or any member or

former member of an employee organization, who is or may become eligible to receive a benefit

from a pension plan which covers employees of such employer or members of such organization who

have satisfied the plan’s participation requirements, or whose beneficiaries are receiving or may be

eligible to receive any such benefit. A participant whose employment status with the employer has

not been terminated is an active participant of the employer’s pension plan.

Profit center means (except for subparts 31.3 and 31.6) the smallest organizationally independent

segment of a company charged by management with profit and loss responsibilities.

Projected benefit cost method means either-

(1) Any of the several actuarial cost methods that distribute the estimated total cost of all of the

employees’ prospective benefits over a period of years, usually their working careers; or

(2) A modification of the accrued benefit cost method that considers projected compensation levels.

Proposal means any offer or other submission used as a basis for pricing a contract, contract

modification, or termination settlement or for securing payments thereunder.
Qualified pension plan means a pension plan comprising a definite written program communicated

to and for the exclusive benefit of employees that meets the criteria deemed essential by the Internal

Revenue Service as set forth in the Internal Revenue Code for preferential tax treatment regarding

contributions, investments, and distributions. Any other plan is a nonqualified pension plan.

Self-insurance charge means a cost which represents the projected average loss under a selfinsurance plan.

Service life means the period of usefulness of a tangible capital asset (or group of assets) to its

current owner. The period may be expressed in units of time or output. The estimated service life of

a tangible capital asset (or group of assets) is a current forecast of its service life and is the period

over which depreciation cost is to be assigned.

Spread-gain actuarial cost method means any of the several projected benefit actuarial cost methods

under which actuarial gains and losses are included as part of the current and future normal costs of

the pension plan.

Standard cost means any cost computed with the use of preestablished measures.

Tangible capital asset means an asset that has physical substance, more than minimal value, and is

expected to be held by an enterprise for continued use or possession beyond the current accounting

period for the services it yields.

Termination of employment gain or loss means an actuarial gain or loss resulting from the difference

between the assumed and actual rates at which pension plan participants separate from employment

for reasons other than retirement, disability, or death.

Variance means the difference between a preestablished measure and an actual measure.

Weighted average cost means an inventory costing method under which an average unit cost is

computed periodically by dividing the sum of the cost of beginning inventory plus the cost of

acquisitions by the total number of units included in these two categories.

Welfare benefit fund means a trust or organization which receives and accumulates assets to be

used either for the payment of postretirement benefits, or for the purchase of such benefits,

provided such accumulated assets form a part of a postretirement benefit plan.

31.002 Availability of accounting guide.

Contractors needing assistance in developing or improving their accounting systems and procedures

may request a copy of the Defense Contract Audit Agency Pamphlet No.7641.90, Information for

Contractors. The pamphlet is available via the Internet at http://www.dcaa.mil.

Subpart 31.1 - Applicability

31.100 Scope of subpart.

This subpart describes the applicability of the cost principles and procedures in succeeding subparts
of this part to various types of contracts and subcontracts. It also describes the need for advance

agreements.

31.101 Objectives.

In recognition of differing organizational characteristics, the cost principles and procedures in the

succeeding subparts are grouped basically by organizational type; e.g., commercial concerns and

educational institutions. The overall objective is to provide that, to the extent practicable, all

organizations of similar types doing similar work will follow the same cost principles and

procedures. To achieve this uniformity, individual deviations concerning cost principles require

advance approval of the agency head or designee. Class deviations for the civilian agencies require

advance approval of the Civilian Agency Acquisition Council. Class deviations for the National

Aeronautics and Space Administration require advance approval of the Deputy Chief Acquisition

Officer. Class deviations for the Department of Defense require advance approval of the Principal

Director, Defense Pricing and Contracting, Office of the Under Secretary of Defense for Acquisition

and Sustainment.

31.102 Fixed-price contracts.

The applicable subparts of part 31 shall be used in the pricing of fixed-price contracts, subcontracts,

and modifications to contracts and subcontracts whenever (a) cost analysis is performed, or (b)a

fixed-price contract clause requires the determination or negotiation of costs. However, application

of cost principles to fixed-price contracts and subcontracts shall not be construed as a requirement

to negotiate agreements on individual elements of cost in arriving at agreement on the total price.

The final price accepted by the parties reflects agreement only on the total price. Further,

notwithstanding the mandatory use of cost principles, the objective will continue to be to negotiate

prices that are fair and reasonable, cost and other factors considered.

31.103 Contracts with commercial organizations.

This category includes all contracts and contract modifications for supplies, services, or

experimental, developmental, or research work negotiated with organizations other than educational

institutions (see 31.104), construction and architect-engineer contracts (see 31.105), State and local

governments (see 31.107) and nonprofit organizations (see 31.108) on the basis of cost.

(a) The cost principles and procedures in subpart 31.2 and agency supplements shall be used in

pricing negotiated supply, service, experimental, developmental, and research contracts and

contract modifications with commercial organizations whenever cost analysis is performed as

required by 15.404-1(c).

(b) In addition, the contracting officer shall incorporate the cost principles and procedures in

subpart 31.2 and agency supplements by reference in contracts with commercial organizations as

the basis for-

(1) Determining reimbursable costs under-

(i) Cost-reimbursement contracts and cost-reimbursement subcontracts under these contracts

performed by commercial organizations and
(ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced

on a basis other than at cost (see 16.601(c)(3));

(2) Negotiating indirect cost rates (see subpart 42.7);

(3) Proposing, negotiating, or determining costs under terminated contracts (see 49.103 and

49.113);

(4) Price revision of fixed-price incentive contracts (see 16.204 and 16.403);

(5) Price redetermination of price redetermination contracts (see 16.205 and 16.206); and

(6) Pricing changes and other contract modifications.

31.104 Contracts with educational institutions.

This category includes all contracts and contract modifications for research and development,

training, and other work performed by educational institutions (defined as institutions of higher

educations in the OMB Uniform Guidance at 2 CFR part 200, subpart A, and 20 U.S.C. 1001).

(a) The contracting officer shall incorporate the cost principles and procedures in subpart 31.3 by

reference in cost-reimbursement contracts with educational institutions as the basis for-

(1) Determining reimbursable costs under the contracts and cost-reimbursement subcontracts

thereunder performed by educational institutions;

(2) Negotiating indirect cost rates; and

(3) Settling costs of cost-reimbursement terminated contracts (see subpart 49.3 and 49.109-7).

(b) The cost principles in this subpart are to be used as a guide in evaluating costs in connection

with negotiating fixed-price contracts and termination settlements.

31.105 Construction and architect-engineer contracts.

(a) This category includes all contracts and contract modifications negotiated on the basis of cost

with organizations other than educational institutions (see 31.104), State and local governments (see

31.107), and nonprofit organizations except those exempted under OMB Uniform Guidance at 2 CFR

part 200, appendix VIII (see 31.108) for construction management or construction, alteration or

repair of buildings, bridges, roads, or other kinds of real property. It also includes architect-engineer

contracts related to construction projects. It does not include contracts for vessels, aircraft, or other

kinds of personal property.

(b) Except as otherwise provided in (d) of this section, the cost principles and procedures in subpart 

31.2 shall be used in the pricing of contracts and contract modifications in this category if cost

analysis is performed as required by 15.404-1(c).

(c) In addition, the contracting officer shall incorporate the cost principles and procedures in

subpart 31.2 (as modified by (d) of this section by reference in contracts in this category as the

basis for-
(1) Determining reimbursable costs under cost-reimbursement contracts, including costreimbursement subcontracts thereunder;

(2) Negotiating indirect cost rates;

(3) Proposing, negotiating, or determining costs under terminated contracts;

(4) Price revision of fixed-price incentive contracts; and

(5) Pricing changes and other contract modifications.

(d) Except as otherwise provided in this paragraph (d), the allowability of costs for construction and

architect-engineer contracts shall be determined in accordance with subpart 31.2.

(1) Because of widely varying factors such as the nature, size, duration, and location of the

construction project, advance agreements as set forth in 31.109, for such items as home office

overhead, partners’ compensation, employment of consultants, and equipment usage costs, are

particularly important in construction and architect-engineer contracts. When appropriate, they

serve to express the parties’ understanding and avoid possible subsequent disputes or

disallowances.

(2) "Construction equipment," as used in this section, means equipment (including marine

equipment) in sound workable condition, either owned or controlled by the contractor or the

subcontractor at any tier, or obtained from a commercial rental source, and furnished for use under

Government contracts.

(i) Allowable ownership and operating costs shall be determined as follows:

(A) Actual cost data shall be used when such data can be determined for both ownership and

operations costs for each piece of equipment, or groups of similar serial or series equipment, from

the contractor’s accounting records. When such costs cannot be so determined, the contracting

agency may specify the use of a particular schedule of predetermined rates or any part thereof to

determine ownership and operating costs of construction equipment (see subdivisions (d)(2)(i)(B)

and (C) of this section). However, costs otherwise unallowable under this part shall not become

allowable through the use of any schedule (see 31.109(c)). For example, schedules need to be

adjusted for Government contract costing purposes if they are based on replacement cost, include

unallowable interest costs, or use improper cost of money rates or computations. Contracting

officers should review the computations and factors included within the specified schedule and

ensure that unallowable or unacceptably computed factors are not allowed in cost submissions.

(B) Predetermined schedules of construction equipment use rates (e.g., the Construction Equipment

Ownership and Operating Expense Schedule, published by the U.S. Army Corps of Engineers,

industry sponsored construction equipment cost guides, or commercially published schedules of

construction equipment use cost) provide average ownership and operating rates for construction

equipment. The allowance for operating costs may include costs for such items as fuel, filters, oil,

and grease; servicing, repairs, and maintenance; and tire wear and repair. Costs of labor,

mobilization, demobilization, overhead, and profit are generally not reflected in schedules, and

separate consideration may be necessary.

(C) When a schedule of predetermined use rates for construction equipment is used to determine

direct costs, all costs of equipment that are included in the cost allowances provided by the schedule

shall be identified and eliminated from the contractor’s other direct and indirect costs charged to

the contract. If the contractor’s accounting system provides for site or home office overhead
allocations, all costs which are included in the equipment allowances may need to be included in any

cost input base before computing the contractor’s overhead rate. In periods of suspension of work

pursuant to a contract clause, the allowance for equipment ownership shall not exceed an amount

for standby cost as determined by the schedule or contract provision.

(ii) Reasonable costs of renting construction equipment are allowable (but see paragraph (C) of this

subsection).

(A) Costs, such as maintenance and minor or running repairs incident to operating such rented

equipment, that are not included in the rental rate are allowable.

(B) Costs incident to major repair and overhaul of rental equipment are unallowable.

(C) The allowability of charges for construction equipment rented from any division, subsidiary, or

organization under common control, will be determined in accordance with 31.205-36(b)(3).

(3) Costs incurred at the job site incident to performing the work, such as the cost of

superintendence, timekeeping and clerical work, engineering, utility costs, supplies, material

handling, restoration and cleanup, etc., are allowable as direct or indirect costs, provided the

accounting practice used is in accordance with the contractor’s established and consistently

followed cost accounting practices for all work.

(4) Rental and any other costs, less any applicable credits incurred in acquiring the temporary use of

land, structures, and facilities are allowable. Costs, less any applicable credits, incurred in

constructing or fabricating structures and facilities of a temporary nature are allowable.

31.106 [Reserved]

31.107 Contracts with State, local, and federally recognized Indian tribal

governments.

(a) subpart 31.6 provides principles and standards for determining costs applicable to contracts

with State, local, and federally recognized Indian tribal governments. They provide the basis for a

uniform approach to the problem of determining costs and to promote efficiency and better

relationships between State, local, and federally recognized Indian tribal governments, and Federal

Government entities. They apply to all programs that involve contracts with State, local, and

federally recognized Indian tribal governments, except contracts with-

(1) Publicly financed educational institutions subject to subpart 31.3; or

(2) Publicly owned hospitals and other providers of medical care subject to requirements

promulgated by the sponsoring Government agencies.

(b) The Office of Management and Budget will approve any other exceptions in particular cases

when adequate justification is presented.

31.108 Contracts with nonprofit organizations.

Subpart 31.7 provides principles and standards for determining costs applicable to contracts with
nonprofit organizations other than educational institutions (see subpart 31.3), State and local

governments (see subpart 31.6), and those nonprofit organizations exempted under the OMB

Uniform Guidance at 2 CFR part 200, appendix VIII (see subpart 31.2 for the cost principles

applicable to nonprofit organizations exempt from the cost principles in the OMB Uniform Guidance

at 2 CFR part 200).

31.109 Advance agreements.

(a) The extent of allowability of the costs covered in this part applies broadly to many accounting

systems in varying contract situations. Thus, the reasonableness, the allocability and the allowability

under the specific cost principles at subparts 31.2, 31.3, 31.6, and 31.7 of certain costs may be

difficult to determine. To avoid possible subsequent disallowance or dispute based on

unreasonableness, unallocability or unallowability under the specific cost principles at subparts 

31.2, 31.3, 31.6, and 31.7, contracting officers and contractors should seek advance agreement on

the treatment of special or unusual costs and on statistical sampling methodologies at 31.201-6(c).

However, an advance agreement is not an absolute requirement and the absence of an advance

agreement on any cost will not, in itself, affect the reasonableness, allocability or the allowability

under the specific cost principles at subparts 31.2, 31.3, 31.6, and 31.7 of that cost.

(b) Advance agreements may be negotiated either before or during a contract but should be

negotiated before incurrence of the costs involved. The agreements must be in writing, executed by

both contracting parties, and incorporated into applicable current and future contracts. An advance

agreement shall contain a statement of its applicability and duration.

(c) The contracting officer is not authorized by this 31.109 to agree to a treatment of costs

inconsistent with this part. For example, an advance agreement may not provide that,

notwithstanding 31.205-20, interest is allowable.

(d) Advance agreements may be negotiated with a particular contractor for a single contract, a

group of contracts, or all the contracts of a contracting office, an agency, or several agencies.

(e) The cognizant administrative contracting officer (ACO), or other contracting officer established

in part 42, shall negotiate advance agreements except that an advance agreement affecting only

one contract, or class of contracts from a single contracting office, shall be negotiated by a

contracting officer in the contracting office, or an ACO when delegated by the contracting officer.

When the negotiation authority is delegated, the ACO shall coordinate the proposed agreement with

the contracting officer before executing the advance agreement.

(f) Before negotiating an advance agreement, the Government negotiator shall-

(1) Determine if other contracting offices inside the agency or in other agencies have a significant

unliquidated dollar balance in contracts with the same contractor;

(2) Inform any such office or agency of the matters under consideration for negotiation; and

(3) As appropriate, invite the office or agency and the responsible audit agency to participate in

prenegotiation discussions and/or in the subsequent negotiations.

(g) Upon completion of the negotiation, the sponsor shall prepare and distribute to other interested

agencies and offices, including the audit agency, copies of the executed agreement and a

memorandum providing the information specified in 15.406-3, as applicable.
(h) Examples for which advance agreements may be particularly important are-

(1) Compensation for personal services, including but not limited to allowances for off-site pay,

incentive pay, location allowances, hardship pay, cost of living differential, and termination of

defined benefit pension plans;

(2) Use charges for fully depreciated assets;

(3) Deferred maintenance costs;

(4) Precontract costs;

(5) Independent research and development and bid and proposal costs;

(6) Royalties and other costs for use of patents;

(7) Selling and distribution costs;

(8) Travel and relocation costs, as related to special or mass personnel movements, as related to

travel via contractor-owned, -leased, or -chartered aircraft; or as related to maximum per diem rates;

(9) Costs of idle facilities and idle capacity;

(10) Severance pay to employees on support service contracts;

(11) Plant reconversion;

(12) Professional services (e.g., legal, accounting, and engineering);

(13) General and administrative costs (e.g., corporate, division, or branch allocations) attributable to

the general management, supervision, and conduct of the contractor’s business as a whole. These

costs are particularly significant in construction, job-site, architect-engineer, facilities, and

Government-owned contractor operated (GOCO) plant contracts (see 31.203(h));

(14) Costs of construction plant and equipment (see 31.105(d));

(15) Costs of public relations and advertising; and

(16) Statistical sampling methods (see 31.201-6(c)(4).

31.110 Indirect cost rate certification and penalties on unallowable costs.

(a) Certain contracts require certification of the indirect cost rates proposed for final payment

purposes. See 42.703-2 for administrative procedures regarding the certification provisions and the

related contract clause prescription.

(b) If unallowable costs are included in final indirect cost settlement proposals, penalties may be

assessed. See 42.709 for administrative procedures regarding the penalty assessment provisions and

the related contract clause prescription.
Subpart 31.2 - Contracts with Commercial Organizations

31.201 General.

31.201-1 Composition of total cost.

(a) The total cost, including standard costs properly adjusted for applicable variances, of a contract

is the sum of the direct and indirect costs allocable to the contract, incurred or to be incurred, plus

any allocable cost of money pursuant to 31.205-10, less any allocable credits. In ascertaining what

constitutes a cost, any generally accepted method of determining or estimating costs that is

equitable and is consistently applied may be used.

(b) While the total cost of a contract includes all costs properly allocable to the contract, the

allowable costs to the Government are limited to those allocable costs which are allowable pursuant

to part 31 and applicable agency supplements.

31.201-2 Determining allowability.

(a) A cost is allowable only when the cost complies with all of the following requirements:

(1) Reasonableness.

(2) Allocability.

(3) Standards promulgated by the CAS Board, if applicable, otherwise, generally accepted

accounting principles and practices appropriate to the circumstances.

(4) Terms of the contract.

(5) Any limitations set forth in this subpart.

(b) Certain cost principles in this subpart incorporate the measurement, assignment, and allocability

rules of selected CAS and limit the allowability of costs to the amounts determined using the criteria

in those selected standards. Only those CAS or portions of standards specifically made applicable by

the cost principles in this subpart are mandatory unless the contract is CAS-covered (see part 30).

Business units that are not otherwise subject to these standards under a CAS clause are subject to

the selected standards only for the purpose of determining allowability of costs on Government

contracts. Including the selected standards in the cost principles does not subject the business unit

to any other CAS rules and regulations. The applicability of the CAS rules and regulations is

determined by the CAS clause, if any, in the contract and the requirements of the standards

themselves.

(c) When contractor accounting practices are inconsistent with this subpart 31.2, costs resulting

from such inconsistent practices in excess of the amount that would have resulted from using

practices consistent with this subpart are unallowable.

(d) A contractor is responsible for accounting for costs appropriately and for maintaining records,

including supporting documentation, adequate to demonstrate that costs claimed have been
incurred, are allocable to the contract, and comply with applicable cost principles in this subpart

and agency supplements. The contracting officer may disallow all or part of a claimed cost that is

inadequately supported.

31.201-3 Determining reasonableness.

(a) A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred

by a prudent person in the conduct of competitive business. Reasonableness of specific costs must

be examined with particular care in connection with firms or their separate divisions that may not be

subject to effective competitive restraints. No presumption of reasonableness shall be attached to

the incurrence of costs by a contractor. If an initial review of the facts results in a challenge of a

specific cost by the contracting officer or the contracting officer’s representative, the burden of

proof shall be upon the contractor to establish that such cost is reasonable.

(b) What is reasonable depends upon a variety of considerations and circumstances, including-

(1) Whether it is the type of cost generally recognized as ordinary and necessary for the conduct of

the contractor’s business or the contract performance;

(2) Generally accepted sound business practices, arm’s-length bargaining, and Federal and State

laws and regulations;

(3) The contractor’s responsibilities to the Government, other customers, the owners of the business,

employees, and the public at large; and

(4) Any significant deviations from the contractor’s established practices.

31.201-4 Determining allocability.

A cost is allocable if it is assignable or chargeable to one or more cost objectives on the basis of

relative benefits received or other equitable relationship. Subject to the foregoing, a cost is allocable

to a Government contract if it-

(a) Is incurred specifically for the contract;

(b) Benefits both the contract and other work, and can be distributed to them in reasonable

proportion to the benefits received; or

(c) Is necessary to the overall operation of the business, although a direct relationship to any

particular cost objective cannot be shown.

31.201-5 Credits.

The applicable portion of any income, rebate, allowance, or other credit relating to any allowable

cost and received by or accruing to the contractor shall be credited to the Government either as a

cost reduction or by cash refund. See 31.205-6(j)(3) for rules governing refund or credit to the

Government associated with pension adjustments and asset reversions.
31.201-6 Accounting for unallowable costs.

(a) Costs that are expressly unallowable or mutually agreed to be unallowable, including mutually

agreed to be unallowable directly associated costs, shall be identified and excluded from any billing,

claim, or proposal applicable to a Government contract. A directly associated cost is any cost that is

generated solely as a result of incurring another cost, and that would not have been incurred had

the other cost not been incurred. When an unallowable cost is incurred, its directly associated costs

are also unallowable.

(b) Costs that specifically become designated as unallowable or as unallowable directly associated

costs of unallowable costs as a result of a written decision furnished by a contracting officer shall be

identified if included in or used in computing any billing, claim, or proposal applicable to a

Government contract. This identification requirement applies also to any costs incurred for the same

purpose under like circumstances as the costs specifically identified as unallowable under either this

paragraph or paragraph (a) of this subsection.

(c)

(1) The practices for accounting for and presentation of unallowable costs must be those described

in 48 CFR 9904.405, Accounting for Unallowable Costs.

(2) Statistical sampling is an acceptable practice for contractors to follow in accounting for and

presenting unallowable costs provided the criteria in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of

this subsection are met:

(i) The statistical sampling results in an unbiased sample that is a reasonable representation of the

sampling universe.

(ii) Any large dollar value or high risk transaction is separately reviewed for unallowable costs and

excluded from the sampling process.

(iii) The statistical sampling permits audit verification.

(3) For any indirect cost in the selected sample that is subject to the penalty provisions at 42.709,

the amount projected to the sampling universe from that sampled cost is also subject to the same

penalty provisions.

(4) Use of statistical sampling methods for identifying and segregating unallowable costs should be

the subject of an advance agreement under the provisions of 31.109 between the contractor and the

cognizant administrative contracting officer or Federal official. The advance agreement should

specify the basic characteristics of the sampling process. The cognizant administrative contracting

officer or Federal official shall request input from the cognizant auditor before entering into any

such agreements.

(5) In the absence of an advance agreement, if an initial review of the facts results in a challenge of

the statistical sampling methods by the contracting officer or the contracting officer’s

representative, the burden of proof shall be on the contractor to establish that such a method meets

the criteria in paragraph (c)(2) of this subsection.

(d) If a directly associated cost is included in a cost pool that is allocated over a base that includes

the unallowable cost with which it is associated, the directly associated cost shall remain in the cost
pool. Since the unallowable costs will attract their allocable share of costs from the cost pool, no

further action is required to assure disallowance of the directly associated costs. In all other cases,

the directly associated costs, if material in amount, must be purged from the cost pool as

unallowable costs.

(e)

(1) In determining the materiality of a directly associated cost, consideration should be given to the

significance of-

(i) The actual dollar amount,

(ii) The cumulative effect of all directly associated costs in a cost pool, and

(iii) The ultimate effect on the cost of Government contracts.

(2) Salary expenses of employees who participate in activities that generate unallowable costs shall

be treated as directly associated costs to the extent of the time spent on the proscribed activity,

provided the costs are material in accordance with paragraph (e)(1) of this subsection (except when

such salary expenses are, themselves, unallowable). The time spent in proscribed activities should

be compared to total time spent on company activities to determine if the costs are material. Time

spent by employees outside the normal working hours should not be considered except when it is

evident that an employee engages so frequently in company activities during periods outside normal

working hours as to indicate that such activities are a part of the employee’s regular duties.

(3) When a selected item of cost under 31.205 provides that directly associated costs be

unallowable, such directly associated costs are unallowable only if determined to be material in

amount in accordance with the criteria provided in paragraphs (e)(1) and (e)(2) of this subsection,

except in those situations where allowance of any of the directly associated costs involved would be

considered to be contrary to public policy.

31.201-7 Construction and architect-engineer contracts.

Specific principles and procedures for evaluating and determining costs in connection with contracts

and subcontracts for construction, and architect-engineer contracts related to construction projects,

are in 31.105. The applicability of these principles and procedures is set forth in 31.000 and 31.100.

31.202 Direct costs.

(a) No final cost objective shall have allocated to it as a direct cost any cost, if other costs incurred

for the same purpose in like circumstances have been included in any indirect cost pool to be

allocated to that or any other final cost objective. Direct costs of the contract shall be charged

directly to the contract. All costs specifically identified with other final cost objectives of the

contractor are direct costs of those cost objectives and are not to be charged to the contract directly

or indirectly.

(b) For reasons of practicality, the contractor may treat any direct cost of a minor dollar amount as

an indirect cost if the accounting treatment-
(1) Is consistently applied to all final cost objectives; and

(2) Produces substantially the same results as treating the cost as a direct cost.

31.203 Indirect costs.

(a) For contracts subject to full CAS coverage, allocation of indirect costs shall be based on the

applicable provisions. For all other contracts, the applicable CAS provisions in paragraphs (b)

through (h) of this section apply.

(b) After direct costs have been determined and charged directly to the contract or other work,

indirect costs are those remaining to be allocated to intermediate or two or more final cost

objectives. No final cost objective shall have allocated to it as an indirect cost any cost, if other costs

incurred for the same purpose, in like circumstances, have been included as a direct cost of that or

any other final cost objective.

(c) The contractor shall accumulate indirect costs by logical cost groupings with due consideration

of the reasons for incurring such costs. The contractor shall determine each grouping so as to permit

use of an allocation base that is common to all cost objectives to which the grouping is to be

allocated. The base selected shall allocate the grouping on the basis of the benefits accruing to

intermediate and final cost objectives. When substantially the same results can be achieved through

less precise methods, the number and composition of cost groupings should be governed by practical

considerations and should not unduly complicate the allocation.

(d) Once an appropriate base for allocating indirect costs has been accepted, the contractor shall not

fragment the base by removing individual elements. All items properly includable in an indirect cost

base shall bear a pro rata share of indirect costs irrespective of their acceptance as Government

contract costs. For example, when a cost input base is used for the allocation of G&A costs, the

contractor shall include in the base all items that would properly be part of the cost input base,

whether allowable or unallowable, and these items shall bear their pro rata share of G&A costs.

(e) The method of allocating indirect costs may require revision when there is a significant change in

the nature of the business, the extent of subcontracting, fixed-asset improvement programs,

inventories, the volume of sales and production, manufacturing processes, the contractor’s products,

or other relevant circumstances.

(f) Separate cost groupings for costs allocable to offsite locations may be necessary to permit

equitable distribution of costs on the basis of the benefits accruing to the several cost objectives.

(g) A base period for allocating indirect costs is the cost accounting period during which such costs

are incurred and accumulated for allocation to work performed in that period.

(1) For contracts subject to full or modified CAS coverage, the contractor shall follow the criteria

and guidance in 48 CFR9904.406 for selecting the cost accounting periods to be used in allocating

indirect costs.

(2) For contracts other than those subject to paragraph (g)(1) of this section, the base period for

allocating indirect costs shall be the contractor’s fiscal year used for financial reporting purposes in

accordance with generally accepted accounting principles. The fiscal year will normally be 12

months, but a different period may be appropriate (e.g., when a change in fiscal year occurs due to a

business combination or other circumstances).
(h) Special care should be exercised in applying the principles of paragraphs (c), (d), and (e) of this

section when Government-owned contractor-operated (GOCO) plants are involved. The distribution

of corporate, division or branch office G&A expenses to such plants operating with little or no

dependence on corporate administrative activities may require more precise cost groupings, detailed

accounts screening, and carefully developed distribution bases.

(i) Indirect costs that meet the definition of "excessive pass-through charge" in 52.215-23, are

unallowable.

31.204 Application of principles and procedures.

(a) Costs are allowable to the extent they are reasonable, allocable, and determined to be allowable

under 31.201, 31.202, 31.203, and 31.205. These criteria apply to all of the selected items that

follow, even if particular guidance is provided for certain items for emphasis or clarity.

(b)

(1) For the following subcontract types, costs incurred as reimbursements or payments to a

subcontractor are allowable to the extent the reimbursements or payments are for costs incurred by

the subcontractor that are consistent with this part:

(i) Cost-reimbursement.

(ii) Fixed-price incentive.

(iii) Price redeterminable (i.e., fixed-price contracts with prospective price redetermination and

fixed-ceiling-price contracts with retroactive price redetermination).

(2) The requirements of paragraph (b)(1) of this section apply to any tier above the first firm-fixedprice subcontract or fixed-price subcontract with economic price adjustment provisions.

(c) Costs incurred as payments under firm-fixed-price subcontracts or fixed-price subcontracts with

economic price adjustment provisions or modifications thereto, for which subcontract cost analysis

was performed are allowable if the price was negotiated in accordance with 31.102.

(d) Section 31.205 does not cover every element of cost. Failure to include any item of cost does not

imply that it is either allowable or unallowable. The determination of allowability shall be based on

the principles and standards in this subpart and the treatment of similar or related selected items.

When more than one subsection in 31.205 is relevant to a contractor cost, the cost shall be

apportioned among the applicable subsections, and the determination of allowability of each portion

shall be based on the guidance contained in the applicable subsection. When a cost, to which more

than one subsection in 31.205 is relevant, cannot be apportioned, the determination of allowability

shall be based on the guidance contained in the subsection that most specifically deals with, or best

captures the essential nature of, the cost at issue.

31.205 Selected costs.
31.205-1 Public relations and advertising costs.

(a) "Public relations" means all functions and activities dedicated to-

(1) Maintaining, protecting, and enhancing the image of a concern or its products; or

(2) Maintaining or promoting reciprocal understanding and favorable relations with the public at

large, or any segment of the public. The term public relations includes activities associated with

areas such as advertising, customer relations, etc.

(b) "Advertising" means the use of media to promote the sale of products or services and to

accomplish the activities referred to in paragraph (d) of this subsection, regardless of the medium

employed, when the advertiser has control over the form and content of what will appear, the media

in which it will appear, and when it will appear. Advertising media include but are not limited to

conventions, exhibits, free goods, samples, magazines, newspapers, trade papers, direct mail, dealer

cards, window displays, outdoor advertising, radio, and television.

(c) Public relations and advertising costs include the costs of media time and space, purchased

services performed by outside organizations, as well as the applicable portion of salaries, travel, and

fringe benefits of employees engaged in the functions and activities identified in paragraphs (a) and

(b) of this subsection.

(d) The only allowable advertising costs are those that are-

(1) Specifically required by contract, or that arise from requirements of Government contracts, and

that are exclusively for-

(i) Acquiring scarce items for contract performance; or

(ii) Disposing of scrap or surplus materials acquired for contract performance;

(2) Costs of activities to promote sales of products normally sold to the U.S. Government, including

trade shows, which contain a significant effort to promote exports from the United States. Such

costs are allowable, notwithstanding paragraphs (f)(1), (f)(3), (f)(4)(ii), and (f)(5) of this subsection.

However, such costs do not include the costs of memorabilia (e.g., models, gifts, and souvenirs),

alcoholic beverages, entertainment, and physical facilities that are used primarily for entertainment

rather than product promotion; or

(3) Allowable in accordance with 31.205-34.

(e) Allowable public relations costs include the following:

(1) Costs specifically required by contract.

(2) Costs of-

(i) Responding to inquiries on company policies and activities;

(ii) Communicating with the public, press, stockholders, creditors, and customers; and

(iii) Conducting general liaison with news media and Government public relations officers, to the

extent that such activities are limited to communication and liaison necessary to keep the public

informed on matters of public concern such as notice of contract awards, plant closings or openings,
employee layoffs or rehires, financial information, etc.

(3) Costs of participation in community service activities (e.g., blood bank drives, charity drives,

savings bond drives, disaster assistance, etc.) (But see paragraph (f)(8) of this section.)

(4) Costs of plant tours and open houses (but see paragraph (f)(5) of this subsection).

(5) Costs of keel laying, ship launching, commissioning, and roll-out ceremonies, to the extent

specifically provided for by contract.

(f) Unallowable public relations and advertising costs include the following:

(1) All public relations and advertising costs, other than those specified in paragraphs (d) and (e) of

this subsection, whose primary purpose is to promote the sale of products or services by stimulating

interest in a product or product line (except for those costs made allowable under 31.205-38(b)(5)),

or by disseminating messages calling favorable attention to the contractor for purposes of enhancing

the company image to sell the company’s products or services.

(2) All costs of trade shows and other special events which do not contain a significant effort to

promote the export sales of products normally sold to the U.S. Government.

(3) Costs of sponsoring meetings, conventions, symposia, seminars, and other special events when

the principal purpose of the event is other than dissemination of technical information or stimulation

of production.

(4) Costs of ceremonies such as-

(i) Corporate celebrations and

(ii) New product announcements.

(5) Costs of promotional material, motion pictures, videotapes, brochures, handouts, magazines, and

other media that are designed to call favorable attention to the contractor and its activities.

(6) Costs of souvenirs, models, imprinted clothing, buttons, and other mementos provided to

customers or the public.

(7) Costs of memberships in civic and community organizations.

(8) Costs associated with the donation of excess food to nonprofit organizations in accordance with

the Federal Food Donation Act of 2008 ( 42 U.S.C. 1792, see subpart 26.4).

31.205-2 [Reserved]

31.205-3 Bad debts.

Bad debts, including actual or estimated losses arising from uncollectible accounts receivable due

from customers and other claims, and any directly associated costs such as collection costs, and

legal costs are unallowable.
31.205-4 Bonding costs.

(a) Bonding costs arise when the Government requires assurance against financial loss to itself or

others by reason of the act or default of the contractor. They arise also in instances where the

contractor requires similar assurance. Included are such bonds as bid, performance, payment,

advance payment, infringement, and fidelity bonds.

(b) Costs of bonding required pursuant to the terms of the contract are allowable.

(c) Costs of bonding required by the contractor in the general conduct of its business are allowable

to the extent that such bonding is in accordance with sound business practice and the rates and

premiums are reasonable under the circumstances.

31.205-5 [Reserved]

31.205-6 Compensation for personal services.

(a) General. Compensation for personal services is allowable subject to the following general criteria

and additional requirements contained in other parts of this cost principle:

(1) Compensation for personal services must be for work performed by the employee in the current

year and must not represent a retroactive adjustment of prior years’ salaries or wages (but see

paragraphs (g), (h), (j), (k), (m), and (o) of this subsection).

(2) The total compensation for individual employees or job classes of employees must be reasonable

for the work performed; however, specific restrictions on individual compensation elements apply

when prescribed.

(3) The compensation must be based upon and conform to the terms and conditions of the

contractor’s established compensation plan or practice followed so consistently as to imply, in effect,

an agreement to make the payment.

(4) No presumption of allowability will exist where the contractor introduces major revisions of

existing compensation plans or new plans and the contractor has not provided the cognizant ACO,

either before implementation or within a reasonable period after it, an opportunity to review the

allowability of the changes.

(5) Costs that are unallowable under other paragraphs of this subpart 31.2 are not allowable under

this subsection 31.205-6 solely on the basis that they constitute compensation for personal services.

(6)

(i) Compensation costs for certain individuals give rise to the need for special consideration. Such

individuals include:

(A) Owners of closely held corporations, members of limited liability companies, partners, sole

proprietors, or members of their immediate families; and

(B) Persons who are contractually committed to acquire a substantial financial interest in the
contractor’s enterprise.

(ii) For these individuals, compensation must-

(A) Be reasonable for the personal services rendered; and

(B) Not be a distribution of profits (which is not an allowable contract cost).

(iii) For owners of closely held companies, compensation in excess of the costs that are deductible as

compensation under the Internal Revenue Code (26 U.S.C.) and regulations under it is unallowable.

(b) Reasonableness-

(1) Compensation pursuant to labor-management agreements. If costs of compensation established

under "arm’s length" labor-management agreements negotiated under the terms of the Federal

Labor Relations Act or similar state statutes are otherwise allowable, the costs are reasonable

unless, as applied to work in performing Government contracts, the costs are unwarranted by the

character and circumstances of the work or discriminatory against the Government. The application

of the provisions of a labor-management agreement designed to apply to a given set of

circumstances and conditions of employment (e.g., work involving extremely hazardous activities or

work not requiring recurrent use of overtime) is unwarranted when applied to a Government

contract involving significantly different circumstances and conditions of employment (e.g., work

involving less hazardous activities or work continually requiring use of overtime). It is discriminatory

against the Government if it results in employee compensation (in whatever form or name) in excess

of that being paid for similar non-Government work under comparable circumstances.

(2) Compensation not covered by labor-management agreements. Compensation for each employee

or job class of employees must be reasonable for the work performed. Compensation is reasonable if

the aggregate of each measurable and allowable element sums to a reasonable total. In determining

the reasonableness of total compensation, consider only allowable individual elements of

compensation. In addition to the provisions of 31.201-3, in testing the reasonableness of

compensation for particular employees or job classes of employees, consider factors determined to

be relevant by the contracting officer. Factors that may be relevant include, but are not limited to,

conformity with compensation practices of other firms-

(i) Of the same size;

(ii) In the same industry;

(iii) In the same geographic area; and

(iv) Engaged in similar non-Government work under comparable circumstances.

(c) [Reserved]

(d) Form of payment.

(1) Compensation for personal services includes compensation paid or to be paid in the future to

employees in the form of-

(i) Cash;
(ii) Corporate securities, such as stocks, bonds, and other financial instruments (see paragraph

(d)(2) of this subsection regarding valuation); or

(iii) Other assets, products, or services.

(2) When compensation is paid with securities of the contractor or of an affiliate, the following

additional restrictions apply:

(i) Valuation placed on the securities is the fair market value on the first date the number of shares

awarded is known, determined upon the most objective basis available.

(ii) Accruals for the cost of securities before issuing the securities to the employees are subject to

adjustment according to the possibilities that the employees will not receive the securities and that

their interest in the accruals will be forfeited.

(e) Income tax differential pay.

(1) Differential allowances for additional income taxes resulting from foreign assignments are

allowable.

(2) Differential allowances for additional income taxes resulting from domestic assignments are

unallowable. (However, payments for increased employee income or Federal Insurance

Contributions Act taxes incident to allowable reimbursed relocation costs are allowable under

31.205-35(a)(10).)

(f) Bonuses and incentive compensation.

(1) Bonuses and incentive compensation are allowable provided the-

(i) Awards are paid or accrued under an agreement entered into in good faith between the

contractor and the employees before the services are rendered or pursuant to an established plan or

policy followed by the contractor so consistently as to imply, in effect, an agreement to make such

payment; and

(ii) Basis for the award is supported.

(2) When the bonus and incentive compensation payments are deferred, the costs are subject to the

requirements of paragraphs (f)(1) and (k) of this subsection.

(g) Severance pay.

(1) Severance pay is a payment in addition to regular salaries and wages by contractors to workers

whose employment is being involuntarily terminated. Payments for early retirement incentive plans

are covered in paragraph (j)(6) of this subsection.

(2) Severance pay is allowable only to the extent that, in each case, it is required by-

(i) Law;

(ii) Employer-employee agreement;
(iii) Established policy that constitutes, in effect, an implied agreement on the contractor’s part; or

(iv) Circumstances of the particular employment.

(3) Payments made in the event of employment with a replacement contractor where continuity of

employment with credit for prior length of service is preserved under substantially equal conditions

of employment, or continued employment by the contractor at another facility, subsidiary, affiliate,

or parent company of the contractor are not severance pay and are unallowable.

(4) Actual normal turnover severance payments shall be allocated to all work performed in the

contractor’s plant. However, if the contractor uses the accrual method to account for normal

turnover severance payments, that method will be acceptable if the amount of the accrual is-

(i) Reasonable in light of payments actually made for normal severances over a representative past

period; and

(ii) Allocated to all work performed in the contractor’s plant.

(5) Abnormal or mass severance pay is of such a conjectural nature that accruals for this purpose

are not allowable. However, the Government recognizes its obligation to participate, to the extent of

its fair share, in any specific payment. Thus, the Government will consider allowability on a case-bycase basis.

(6) Under 10 U.S.C. 3744(a)(13) and 41 U.S.C.4304(a)(13), the costs of severance payments to

foreign nationals employed under a service contract performed outside the United States are

unallowable to the extent that such payments exceed amounts typically paid to employees providing

similar services in the same industry in the United States. Further, under 10 U.S.C. 3744(a)(14) and

41 U.S.C.4304(a)(14), all such costs of severance payments that are otherwise allowable are

unallowable if the termination of employment of the foreign national is the result of the closing of, or

the curtailment of activities at, a United States facility in that country at the request of the

government of that country; this does not apply if the closing of a facility or curtailment of activities

is made pursuant to a status-of-forces or other country-to-country agreement entered into with the

government of that country before November 29, 1989. 10 U.S.C. 3744(b) and 41 U.S.C.4304(b)

permit the head of the agency to waive these cost allowability limitations under certain

circumstances (see 37.113 and the solicitation provision at 52.237-8).

(h) Backpay. Backpay is a retroactive adjustment of prior years’ salaries or wages. Backpay is

unallowable except as follows:

(1) Payments to employees resulting from underpaid work actually performed are allowable, if

required by a negotiated settlement, order, or court decree.

(2) Payments to union employees for the difference in their past and current wage rates for working

without a contract or labor agreement during labor management negotiation are allowable.

(3) Payments to nonunion employees based upon results of union agreement negotiation are

allowable only if-

(i) A formal agreement or understanding exists between management and the employees concerning

these payments; or

(ii) An established policy or practice exists and is followed by the contractor so consistently as to

imply, in effect, an agreement to make such payments.
(i) Compensation based on changes in the prices of corporate securities or corporate security

ownership, such as stock options, stock appreciation rights, phantom stock plans, and junior stock

conversions.

(1) Any compensation which is calculated, or valued, based on changes in the price of corporate

securities is unallowable.

(2) Any compensation represented by dividend payments or which is calculated based on dividend

payments is unallowable.

(3) If a contractor pays an employee in lieu of the employee receiving or exercising a right, option, or

benefit which would have been unallowable under this paragraph (i), such payments are also

unallowable.

(j) Pension costs.

(1) Pension plans are normally segregated into two types of plans: defined-benefit and definedcontribution pension plans. The contractor shall measure, assign, and allocate the costs of all

defined-benefit pension plans and the costs of all defined-contribution pension plans in compliance

with 48 CFR9904.412-Cost Accounting Standard for Composition and Measurement of Pension Cost,

and 48 CFR9904.413-Adjustment and Allocation of Pension Cost. Pension costs are allowable subject

to the referenced standards and the cost limitations and exclusions set forth in paragraph (j)(1)(i)

and in paragraphs (j)(2) through (j)(6) of this subsection.

(i) Except for nonqualified pension plans using the pay-as-you-go cost method, to be allowable in the

current year, the contractor shall fund pension costs by the time set for filing of the Federal income

tax return or any extension. Pension costs assigned to the current year, but not funded by the tax

return time, are not allowable in any subsequent year. For nonqualified pension plans using the payas-you-go method, to be allowable in the current year, the contractor shall allocate pension costs in

the cost accounting period that the pension costs are assigned.

(ii) Pension payments must be paid pursuant to an agreement entered into in good faith between the

contractor and employees before the work or services are performed and to the terms and

conditions of the established plan. The cost of changes in pension plans are not allowable if the

changes are discriminatory to the Government or are not intended to be applied consistently for all

employees under similar circumstances in the future.

(iii) Except as provided for early retirement benefits in paragraph (j)(6) of this subsection, one-timeonly pension supplements not available to all participants of the basic plan are not allowable as

pension costs, unless the supplemental benefits represent a separate pension plan and the benefits

are payable for life at the option of the employee.

(iv) Increases in payments to previously retired plan participants covering cost-of-living adjustments

are allowable if paid in accordance with a policy or practice consistently followed.

(2) Defined-benefit pension plans. The cost limitations and exclusions pertaining to defined-benefit

plans are as follows:

(i)

(A) Except for nonqualified pension plans, pension costs (see 48 CFR9904.412-40(a)(1)) assigned to
the current accounting period, but not funded during it, are not allowable in subsequent years

(except that a payment made to a fund by the time set for filing the Federal income tax return or any

extension thereof is considered to have been made during such taxable year). However, any portion

of pension cost computed for a cost accounting period, that exceeds the amount required to be

funded pursuant to a waiver granted under the provisions of the Employee Retirement Income

Security Act of1974 (ERISA), will be allowable in those future accounting periods in which the

funding of such excess amounts occurs (see 48 CFR9904.412-50(c)(5)).

(B) For nonqualified pension plans, except those using the pay-as-you-go cost method, allowable

costs are limited to the amount allocable in accordance with 48 CFR9904.412-50(d)(2).

(C) For nonqualified pension plans using the pay-as-you-go cost method, allowable costs are limited

to the amounts allocable in accordance with 48 CFR9904.412-50(d)(3).

(ii) Any amount funded in excess of the pension cost assigned to a cost accounting period is not

allowable in that period and shall be accounted for as set forth at 48 CFR9904.412-50(a)(4). The

excess amount is allowable in the future period to which it is assigned, to the extent it is not

otherwise unallowable.

(iii) Increased pension costs are unallowable if the increase is caused by a delay in funding beyond

30 days after each quarter of the year to which they are assignable. If a composite rate is used for

allocating pension costs between the segments of a company and if, because of differences in the

timing of the funding by the segments, an inequity exists, allowable pension costs for each segment

will be limited to that particular segment’s calculation of pension costs as provided for in 48

CFR9904.413-50(c). The contractor shall make determinations of unallowable costs in accordance

with the actuarial method used in calculating pension costs.

(iv) The contracting officer will consider the allowability of the cost of indemnifying the Pension

Benefit Guaranty Corporation (PBGC) under ERISA Section 4062 or 4064 arising from terminating

an employee deferred compensation plan on a case-by-case basis, provided that if insurance was

required by the PBGC under ERISA Section 4023, it was so obtained and the indemnification

payment is not recoverable under the insurance. Consideration under the foregoing circumstances

will be primarily for the purpose of appraising the extent to which the indemnification payment is

allocable to Government work. If a beneficial or other equitable relationship exists, the Government

will participate, despite the requirements of 31.205-19(c)(3) and (d)(3), in the indemnification

payment to the extent of its fair share.

(v) Increased pension costs resulting from the withdrawal of assets from a pension fund and transfer

to another employee benefit plan fund, or transfer of assets to another account within the same

fund, are unallowable except to the extent authorized by an advance agreement. If the withdrawal of

assets from a pension fund is a plan termination under ERISA, the provisions of paragraph (j)(3) of

this subsection apply. The advance agreement shall-

(A) State the amount of the Government’s equitable share in the gross amount withdrawn or

transferred; and

(B) Provide that the Government receives a credit equal to the amount of the Government’s

equitable share of the gross withdrawal or transfer.

(3) Pension adjustments and asset reversions.

(i) For segment closings, pension plan terminations, or curtailment of benefits, the amount of the
adjustment shall be-

(A) For contracts and subcontracts that are subject to full coverage under the Cost Accounting

Standards (CAS) Board rules and regulations, the amount measured, assigned, and allocated in

accordance with 48 CFR9904.413-50(c)(12); and

(B) For contracts and subcontracts that are not subject to full coverage under the CAS, the amount

measured, assigned, and allocated in accordance with 48 CFR9904.413-50(c)(12), except the

numerator of the fraction at 48 CFR9904.413-50(c)(12)(vi) is the sum of the pension plan costs

allocated to all non-CAS-covered contracts and subcontracts that are subject to subpart 31.2 or for

which certified cost or pricing data were submitted.

(ii) For all other situations where assets revert to the contractor, or such assets are constructively

received by it for any reason, the contractor shall, at the Government’s option, make a refund or give

a credit to the Government for its equitable share of the gross amount withdrawn. The Government’s

equitable share shall reflect the Government’s participation in pension costs through those contracts

for which certified cost or pricing data were submitted or that are subject to subpart 31.2. Excise

taxes on pension plan asset reversions or withdrawals under this paragraph (j)(3)(ii) are unallowable

in accordance with 31.205-41(b)(6).

(4) Defined-contribution pension plans. In addition to defined-contribution pension plans, this

paragraph also covers profit sharing, savings plans, and other such plans, provided the plans fall

within the definition of a pension plan at 31.001.

(i) Allowable pension cost is limited to the net contribution required to be made for a cost accounting

period after taking into account dividends and other credits, where applicable. However, any portion

of pension cost computed for a cost accounting period that exceeds the amount required to be

funded pursuant to a waiver granted under the provisions of ERISA will be allowable in those future

accounting periods in which the funding of such excess amounts occurs (see 48

CFR9904.412-50(c)(5)).

(ii) The provisions of paragraphs (j)(2)(ii) and (iv) of this subsection apply to defined-contribution

plans.

(5) Pension plans using the pay-as-you-go cost method. When using the pay-as-you-go cost method,

the contractor shall measure, assign, and allocate the cost of pension plans in accordance with 48

CFR9904.412 and 9904.413. Pension costs for a pension plan using the pay-as-you-go cost method

are allowable to the extent they are not otherwise unallowable.

(6) Early retirement incentives. An early retirement incentive is an incentive given to an employee to

retire early. For contract costing purposes, costs of early retirement incentives are allowable subject

to the pension cost criteria contained in paragraphs (j)(2)(i) through (iv) of this subsection provided-

(i) The contractor measures, assigns, and allocates the costs in accordance with the contractor’s

accounting practices for pension costs;

(ii) The incentives are in accordance with the terms and conditions of an early retirement incentive

plan;

(iii) The contractor applies the plan only to active employees. The cost of extending the plan to

employees who retired or were terminated before the adoption of the plan is unallowable; and

(iv) The present value of the total incentives given to any employee in excess of the amount of the
employee’s annual salary for the previous fiscal year before the employee’s retirement is

unallowable. The contractor shall compute the present value in accordance with its accounting

practices for pension costs. The contractor shall account for any unallowable costs in accordance

with 48 CFR9904.412-50(a)(2).

(k) Deferred compensation other than pensions. The costs of deferred compensation awards are

allowable subject to the following limitations:

(1) The costs shall be measured, assigned, and allocated in accordance with 48 CFR 9904.415,

Accounting for the Cost of Deferred Compensation.

(2) The costs of deferred compensation awards are unallowable if the awards are made in periods

subsequent to the period when the work being remunerated was performed.

(l) Compensation incidental to business acquisitions. The following costs are unallowable:

(1) Payments to employees under agreements in which they receive special compensation, in excess

of the contractor’s normal severance pay practice, if their employment terminates following a

change in the management control over, or ownership of, the contractor or a substantial portion of

its assets.

(2) Payments to employees under plans introduced in connection with a change (whether actual or

prospective) in the management control over, or ownership of, the contractor or a substantial

portion of its assets in which those employees receive special compensation, which is contingent

upon the employee remaining with the contractor for a specified period of time.

(m) Fringe benefits.

(1) Fringe benefits are allowances and services provided by the contractor to its employees as

compensation in addition to regular wages and salaries. Fringe benefits include, but are not limited

to, the cost of vacations, sick leave, holidays, military leave, employee insurance, and supplemental

unemployment benefit plans. Except as provided otherwise in subpart 31.2, the costs of fringe

benefits are allowable to the extent that they are reasonable and are required by law, employeremployee agreement, or an established policy of the contractor.

(2) That portion of the cost of company-furnished automobiles that relates to personal use by

employees (including transportation to and from work) is unallowable regardless of whether the cost

is reported as taxable income to the employees (see 31.205-46(d)).

(n) Employee rebate and purchase discount plans. Rebates and purchase discounts, in whatever

form, granted to employees on products or services produced by the contractor or affiliates are

unallowable.

(o) Postretirement benefits other than pensions (PRB).

(1) PRB covers all benefits, other than cash benefits and life insurance benefits paid by pension

plans, provided to employees, their beneficiaries, and covered dependents during the period

following the employees’ retirement. Benefits encompassed include, but are not limited to,

postretirement health care; life insurance provided outside a pension plan; and other welfare

benefits such as tuition assistance, day care, legal services, and housing subsidies provided after
retirement.

(2) To be allowable, PRB costs shall be incurred pursuant to law, employer-employee agreement, or

an established policy of the contractor, and shall comply with paragraphs (o)(2)(i), (ii), or (iii) of this

subsection.

(i) Pay-as-you-go. PRB costs are not accrued during the working lives of employees. Costs are

assigned to the period in which-

(A) Benefits are actually provided; or

(B) The costs are paid to an insurer, provider, or other recipient for current year benefits or

premiums.

(ii) Terminal funding. PRB costs are not accrued during the working lives of the employees.

(A) Terminal funding occurs when the entire PRB liability is paid in a lump sum upon the termination

of employees (or upon conversion to such a terminal-funded plan) to an insurer or trustee to

establish and maintain a fund or reserve for the sole purpose of providing PRB to retirees.

(B) Terminal funded costs shall be amortized over a period of 15 years.

(iii) Accrual basis. PRB costs are accrued during the working lives of employees. Accrued PRB costs

shall comply with the following:

(A) Be measured and assigned in accordance with one of the following two methods described under

paragraphs (o)(2)(iii)(A)(1) or (o)(2)(iii)(A)(2) of this subsection:

(1) Generally accepted accounting principles. However, transitions from the pay-as-you-go method to

the accrual accounting method must be handled according to paragraphs (o)(2)(iii)(A)(1)(i) through

(iii) of this subsection.

(i) In the year of transition from the pay-as-you-go method to accrual accounting for purposes of

Government contract cost accounting, the transition obligation shall be the excess of the

accumulated PRB obligation over the fair value of plan assets determined in accordance with

subparagraph (E) of this section; the fair value must be reduced by the prepayment credit as

determined in accordance with subparagraph (o)(2)(iii)(F) of this subsection.

(ii) PRB cost attributable to the transition obligation assigned to the current year that is in excess of

the amount assignable to accounting periods on the basis of a straight line amortization of the

transition obligation over the average remaining working lives of active employees covered by the

PRB plan or a 20-year period, whichever period is longer, is unallowable. However, if the plan is

comprised of inactive participants only, the PRB cost attributable to the transition obligation

assigned to the current year that is in excess of the amount assignable to accounting periods on a

straight line amortization of the transition obligation over the average future life expectancy of the

participants is unallowable.

(iii) For a plan that transitioned from pay-as-you-go to accrual accounting for Government contract

cost accounting prior to July 22, 2013, the unallowable amount of PRB cost attributable to the

transition obligation amortization shall continue to be based on the cost principle in effect at the

time of the transition until the original transition obligation schedule is fully amortized.

(2) Contributions to a welfare benefit fund determined in accordance with applicable Internal
Revenue Code. Allowable PRB costs based on such contributions shall-

(i) Be measured using reasonable actuarial assumptions, which shall include a health care inflation

assumption unless prohibited by the Internal Revenue Code provisions governing welfare benefit

funds;

(ii) Be assigned to accounting periods on the basis of the average working lives of active employees

covered by the PRB plan or a 15 year period, whichever period is longer. However, if the plan is

comprised of inactive participants only, the cost shall be spread over the average future life

expectancy of the participants; and

(iii) Exclude Federal income taxes, whether incurred by the fund or the contractor (including any

increase in PRB costs associated with such taxes), unless the fund holding the plan assets is taxexempt under the provisions of 26 USC 501(c).

(B) Be paid to an insurer or trustee to establish and maintain a fund or reserve for the sole purpose

of providing PRB to retirees. The assets shall be segregated in the trust, or otherwise effectively

restricted, so that they cannot be used by the employer for other purposes.

(C) Be calculated in accordance with generally accepted actuarial principles and practices as

promulgated by the Actuarial Standards Board.

(D) Eliminate from costs of current and future periods the accumulated value of any prior period

costs that were unallowable in accordance with paragraph (o)(3) of this section, adjusted for interest

under paragraph (o)(4) of this section.

(E) Calculate the unfunded actuarial liability (unfunded accumulated postretirement benefit

obligation) using the market (fair) value of assets that have been accumulated by funding costs

assigned to prior periods for contract accounting purposes.

(F) Recognize as a prepayment credit the market (fair) value of assets that were accumulated by

deposits or contributions that were not used to fund costs assigned to previous periods for contract

accounting purposes.

(G) Comply with the following when changing from one accrual accounting method to another: the

contractor shall-

(1) Treat the change in the unfunded actuarial liability (unfunded accumulated postretirement

benefit obligation) as a gain or loss; and

(2) Present an analysis demonstrating that all costs assigned to prior periods have been accounted

for in accordance with paragraphs (o)(2)(iii)(D), (E), and (F) of this section to ensure that no

duplicate recovery of costs exists. Any duplicate recovery of costs due to the change from one

method to another is unallowable. The analysis and new accrual accounting method may be a

subject appropriate for an advance agreement in accordance with 31.109.

(3) To be allowable, PRB costs must be funded by the time set for filing the Federal income tax

return or any extension thereof, or paid to an insurer, provider, or other recipient by the time set for

filing the Federal income tax return or extension thereof. PRB costs assigned to the current year, but

not funded, paid or otherwise liquidated by the tax return due date as extended are not allowable in

any subsequent year.

(4) Increased PRB costs caused by delay in funding beyond 30 days after each quarter of the year to
which they are assignable are unallowable.

(5) The Government shall receive an equitable share of any amount of previously funded PRB costs

which revert or inure to the contractor. Such equitable share shall reflect the Government’s previous

participation in PRB costs through those contracts for which certified cost or pricing data were

required or which were subject to subpart 31.2.

(p) Limitation on allowability of compensation.

Employee Compensation Limits

Contract Award Date Applicable Agencies Covered

Employees 31.205-6

Before June 24, 2014

Executive Agencies Other

than DoD, NASA and Coast

Guard

Senior Executive (p)(2)

Before December 31,

2011

DoD, NASA and Coast

Guard Senior Executive (p)(2)

On/after December 31,

2011, and before June

24, 2014

DoD, NASA, and Coast

Guard All Employees (p)(3)

On/after June 24, 2014 All Executive Agencies All Employees (p)(4)

(1) Definitions. As used in this paragraph (p)-

(i) "Compensation" means the total amount of wages, salary, bonuses, deferred compensation (see

paragraph (k) of this subsection), and employer contributions to defined contribution pension plans

(see paragraphs (j)(4) and (q) of this subsection), for the fiscal year, whether paid, earned, or

otherwise accruing, as recorded in the contractor's cost accounting records for the fiscal year.

(ii) "Senior executive" means–

(A) Prior to January 2, 1999–

(1) The Chief Executive Officer (CEO) or any individual acting in a similar capacity at the

contractor's headquarters;

(2) The four most highly compensated employees in management positions at the contractor's

headquarters, other than the CEO; and

(3) If the contractor has intermediate home offices or segments that report directly to the

contractor's headquarters, the five most highly compensated employees in management positions at

each such intermediate home office or segment.

(B) Effective January 2, 1999, the five most highly compensated employees in management positions

at each home office and each segment of the contractor, whether or not the home office or segment

reports directly to the contractor's headquarters.
(iii) Fiscal year means the fiscal year established by the contractor for accounting purposes.

(iv) Contractor's headquarters means the highest organizational level from which executive

compensation costs are allocated to Government contracts.

(2) Senior executive compensation limit for contracts awarded before June 24, 2014.

(i) Applicability. This paragraph (p)(2) applies to the following:

(A) To all executive agencies, other than DoD, NASA and the Coast Guard, for contracts awarded

before June 24, 2014;

(B) To DoD, NASA, and the Coast Guard for contracts awarded before December 31, 2011;

(ii) Costs incurred after January 1, 1998, for the compensation of a senior executive in excess of the

benchmark compensation amount determined applicable for the contractor fiscal year by the

Administrator, Office of Federal Procurement Policy (OFPP), under 41 U.S.C. 1127 as in effect prior

to June 24, 2014, are unallowable (10 U.S.C. 3744(a)(16) and 41 U.S.C. 4304(a)(16), as in effect

prior to June 24, 2014). This limitation is the sole statutory limitation on allowable senior executive

compensation costs incurred after January 1, 1998, under contracts awarded before June 24, 2014,

and applies whether or not the affected contracts were previously subject to a statutory limitation on

such costs. (Note that pursuant to section 804 of Pub. L. 105-261, the definition of "senior executive"

in paragraph (p)(1) of this section has been changed for compensation costs incurred after January

1, 1999.) See

https://www.whitehouse.gov/wp-content/uploads/2017/11/ContractorCompensationCapContractsAwa

rdedBeforeJune24.pdf.

(3) All employee compensation limit for contracts awarded before June 24, 2014.

(i) Applicability. This paragraph (p)(3) applies to DOD, NASA, and the Coast Guard for contracts

awarded on or after December 31, 2011, and before June 24, 2014.

(ii) Costs incurred after January 1, 2012, for the compensation of any contractor employee in excess

of the benchmark compensation amount, determined applicable for the contractor fiscal year by the

Administrator, Office of Federal Procurement Policy (OFPP) under 41 U.S.C. 1127 as in effect prior

to June 24, 2014 are unallowable (10 U.S.C. 3744(a)(16) as in effect prior to June 24, 2014.) This

limitation is the sole statutory limitation on allowable employee compensation costs incurred after

January 1, 2012, under contracts awarded on or after December 31, 2011 and before June 24, 2014.

(Note that pursuant to section 803 of Pub. L. 112-81, 10 U.S.C. 3744, Allowable costs under defense

contracts, was amended by striking "senior executives" and inserting "any contractor employee",

making unallowable the excess compensation costs incurred after January 1, 2012, under affected

contracts.) See

https://www.whitehouse.gov/wp-content/uploads/2017/11/ContractorCompensationCapContractsAwa

rdedBeforeJune24.pdf.

(4) All employee compensation limit for contracts awarded on or after June 24, 2014.

(i) Applicability. This paragraph (p)(4) applies to all executive agency contracts awarded on or after

June 24, 2014, and any subcontracts thereunder.

(ii) Costs incurred on or after June 24, 2014, for the compensation of all employees in excess of the

benchmark compensation amount determined applicable for the contractor fiscal year by the

Administrator, Office of Federal Procurement Policy (OFPP) are unallowable under 10 U.S.C.
3744(a)(16) and 41 U.S.C 4304(a)(16), as in effect on or after June 24, 2014, pursuant to section 702

of Pub. L. 113-67. This limitation is the sole statutory limitation on allowable employee compensation

costs incurred on or after June 24, 2014, under contracts awarded on or after June 24, 2014. See

http://www.whitehouse.gov/omb/procurement/cecp.

(iii) Exceptions. An agency head may establish one or more narrowly targeted exceptions for

scientists, engineers, or other specialists upon a determination that such exceptions are needed to

ensure that the executive agency has continued access to needed skills and capabilities. In making

such a determination, the agency shall consider, at a minimum, for each contractor employee in a

narrowly targeted excepted position-

(A) The amount of taxpayer funded compensation to be received by each employee; and

(B) The duties and services performed by each employee.

(q) Employee stock ownership plans (ESOP).

(1) An ESOP is a stock bonus plan designed to invest primarily in the stock of the employer

corporation. The contractor’s contributions to an Employee Stock Ownership Trust (ESOT) may be in

the form of cash, stock, or property.

(2) Costs of ESOPs are allowable subject to the following conditions:

(i) The contractor measures, assigns, and allocates costs in accordance with 48 CFR 9904.415.

(ii) Contributions by the contractor in any oneyear that exceed the deductibility limits of the Internal

Revenue Code for that year are unallowable.

(iii) When the contribution is in the form of stock, the value of the stock contribution is limited to the

fair market value of the stock on the date that title is effectively transferred to the trust.

(iv) When the contribution is in the form of cash-

(A) Stock purchases by the ESOT in excess of fair market value are unallowable; and

(B) When stock purchases are in excess of fair market value, the contractor shall credit the amount

of the excess to the same indirect cost pools that were charged for the ESOP contributions in the

year in which the stock purchase occurs. However, when the trust purchases the stock with

borrowed funds which will be repaid over a period of years by cash contributions from the

contractor to the trust, the contractor shall credit the excess price over fair market value to the

indirect cost pools pro rata over the period of years during which the contractor contributes the cash

used by the trust to repay the loan.

(v) When the fair market value of unissued stock or stock of a closely held corporation is not readily

determinable, the valuation will be made on a case-by-case basis taking into consideration the

guidelines for valuation used by the IRS.

31.205-7 Contingencies.

(a) "Contingency," as used in this subpart, means a possible future event or condition arising from

presently known or unknown causes, the outcome of which is indeterminable at the present time.
(b) Costs for contingencies are generally unallowable for historical costing purposes because such

costing deals with costs incurred and recorded on the contractor’s books. However, in some cases,

as for example, terminations, a contingency factor may be recognized when it is applicable to a past

period to give recognition to minor unsettled factors in the interest of expediting settlement.

(c) In connection with estimates of future costs, contingencies fall into two categories:

(1) Those that may arise from presently known and existing conditions, the effects of which are

foreseeable within reasonable limits of accuracy; e.g., anticipated costs of rejects and defective

work. Contingencies of this category are to be included in the estimates of future costs so as to

provide the best estimate of performance cost.

(2) Those that may arise from presently known or unknown conditions, the effect of which cannot be

measured so precisely as to provide equitable results to the contractor and to the Government; e.g.,

results of pending litigation. Contingencies of this category are to be excluded from cost estimates

under the several items of cost, but should be disclosed separately (including the basis upon which

the contingency is computed) to facilitate the negotiation of appropriate contractual coverage. (See,

for example, 31.205-6(g) and 31.205-19.)

31.205-8 Contributions or donations.

Contributions or donations, including cash, property and services, regardless of recipient, are

unallowable, except as provided in 31.205-1(e)(3).

31.205-9 [Reserved]

31.205-10 Cost of money.

(a) General. Cost of money-

(1) Is an imputed cost that is not a form of interest on borrowings (see 31.205-20);

(2) Is an "incurred cost" for cost-reimbursement purposes under applicable cost-reimbursement

contracts and for progress payment purposes under fixed-price contracts; and

(3) Refers to-

(i) Facilities capital cost of money (48 CFR9904.414); and

(ii) Cost of money as an element of the cost of capital assets under construction (48 CFR9904.417).

(b) Cost of money is allowable, provided-

(1) It is measured, assigned, and allocated to contracts in accordance with 48 CFR9904.414 or

measured and added to the cost of capital assets under construction in accordance with 48

CFR9904.417, as applicable;

(2) The requirements of 31.205-52, which limit the allowability of cost of money, are followed; and
(3) The estimated facilities capital cost of money is specifically identified and proposed in cost

proposals relating to the contract under which the cost is to be claimed.

(c) Actual interest cost in lieu of the calculated imputed cost of money is unallowable.

31.205-11 Depreciation.

(a) Depreciation on a contractor’s plant, equipment, and other capital facilities is an allowable

contract cost, subject to the limitations contained in this cost principle. For tangible personal

property, only estimated residual values that exceed 10 percent of the capitalized cost of the asset

need be used in establishing depreciable costs. Where either the declining balance method of

depreciation or the class life asset depreciation range system is used, the residual value need not be

deducted from capitalized cost to determine depreciable costs. Depreciation cost that would

significantly reduce the book value of a tangible capital asset below its residual value is unallowable.

(b) Contractors having contracts subject to 48 CFR9904.409, Depreciation of Tangible Capital

Assets, shall adhere to the requirement of that standard for all fully CAS-covered contracts and may

elect to adopt the standard for all other contracts. All requirements of 48 CFR9904.409 are

applicable if the election is made, and contractors must continue to follow it until notification of final

acceptance of all deliverable items on all open negotiated Government contracts.

(c) For contracts to which 48 CFR9904.409 is not applied, except as indicated in paragraphs (g) and

(h) of this subsection, allowable depreciation shall not exceed the amount used for financial

accounting purposes, and shall be determined in a manner consistent with the depreciation policies

and procedures followed in the same segment on non-Government business.

(d) Depreciation, rental, or use charges are unallowable on property acquired from the Government

at no cost by the contractor or by any division, subsidiary, or affiliate of the contractor under

common control.

(e) The depreciation on any item which meets the criteria for allowance at price under 31.205-26(e)

may be based on that price, provided the same policies and procedures are used for costing all

business of the using division, subsidiary, or organization under common control.

(f) No depreciation or rental is allowed on property fully depreciated by the contractor or by any

division, subsidiary, or affiliate of the contractor under common control. However, a reasonable

charge for using fully depreciated property may be agreed upon and allowed (but, see 31.109(h)(2)).

In determining the charge, consideration shall be given to cost, total estimated useful life at the time

of negotiations, effect of any increased maintenance charges or decreased efficiency due to age, and

the amount of depreciation previously charged to Government contracts or subcontracts.

(g) Whether or not the contract is otherwise subject to CAS the following apply:

(1) The requirements of 31.205-52 shall be observed.

(2) In the event of a write-down from carrying value to fair value as a result of impairments caused

by events or changes in circumstances, allowable depreciation of the impaired assets is limited to

the amounts that would have been allowed had the assets not been written down (see 31.205-16(g)).

However, this does not preclude a change in depreciation resulting from other causes such as

permissible changes in estimates of service life, consumption of services, or residual value.
(3)

(i) In the event the contractor reacquires property involved in a sale and leaseback arrangement,

allowable depreciation of reacquired property shall be based on the net book value of the asset as of

the date the contractor originally became a lessee of the property in the sale and leaseback

arrangement-

(A) Adjusted for any allowable gain or loss determined in accordance with 31.205-16(b); and

(B) Less any amount of depreciation expense included in the calculation of the amount that would

have been allowed had the contractor retained title under 31.205-11(h)(1) and 31.205-36(b)(2).

(ii) As used in this paragraph (g)(3), "reacquired property" is property that generated either any

depreciation expense or any cost of money considered in the calculation of the limitations under

31.205-11(h)(1) and 31.205-36(b)(2) during the most recent accounting period prior to the date of

reacquisition.

(h) A "capital lease," as defined in Financial Accounting Standards Board’s Accounting Standards

Codification (FASB ASC) 840, Leases, is subject to the requirements of this cost principle. (See

31.205-36 for Operating Leases.) FASB ASC 840 requires that capital leases be treated as purchased

assets, i.e., be capitalized, and the capitalized value of such assets be distributed over their useful

lives as depreciation charges or over the leased life as amortization charges, as appropriate, except

that-

(1) Lease costs under a sale and leaseback arrangement are allowable only up to the amount that

would be allowed if the contractor retained title, computed based on the net book value of the asset

on the date the contractor becomes a lessee of the property adjusted for any gain or loss recognized

in accordance with 31.205-16(b); and

(2) If it is determined that the terms of the capital lease have been significantly affected by the fact

that the lessee and lessor are related, depreciation charges are not allowable in excess of those that

would have occurred if the lease contained terms consistent with those found in a lease between

unrelated parties.

31.205-12 Economic planning costs.

Economic planning costs are the costs of general long-range management planning that is

concerned with the future overall development of the contractor’s business and that may take into

account the eventual possibility of economic dislocations or fundamental alterations in those

markets in which the contractor currently does business. Economic planning costs are allowable.

Economic planning costs do not include organization or reorganization costs covered by 31.205-27.

See 31.205-38 for market planning costs other than economic planning costs.

31.205-13 Employee morale, health, welfare, food service, and dormitory costs and credits.

(a) Aggregate costs incurred on activities designed to improve working conditions, employeremployee relations, employee morale, and employee performance (less income generated by these

activities) are allowable, subject to the limitations contained in this subsection. Some examples of

allowable activities are-
(1) House publications;

(2) Health clinics;

(3) Wellness/fitness centers;

(4) Employee counseling services; and

(5) Food and dormitory services for the contractor’s employees at or near the contractor’s facilities.

These services include-

(i) Operating or furnishing facilities for cafeterias, dining rooms, canteens, lunch wagons, vending

machines, living accommodations; and

(ii) Similar types of services.

(b) Costs of gifts are unallowable. (Gifts do not include awards for performance made pursuant to

31.205-6(f) or awards made in recognition of employee achievements pursuant to an established

contractor plan or policy.)

(c) Costs of recreation are unallowable, except for the costs of employees’ participation in company

sponsored sports teams or employee organizations designed to improve company loyalty, team work,

or physical fitness.

(d)

(1) The allowability of food and dormitory losses are determined by the following factors:

(i) Losses from operating food and dormitory services are allowable only if the contractor’s objective

is to operate such services on a break-even basis.

(ii) Losses sustained because food services or lodging accommodations are furnished without charge

or at prices or rates which obviously would not be conducive to the accomplishment of the objective

in paragraph (d)(1)(i) of this subsection are not allowable, except as described in paragraph

(d)(1)(iii) of this subsection.

(iii) A loss may be allowed to the extent that the contractor can demonstrate that unusual

circumstances exist such that even with efficient management, operating the services on a breakeven basis would require charging inordinately high prices, or prices or rates higher than those

charged by commercial establishments offering the same services in the same geographical areas.

The following are examples of unusual circumstances:

(A) The contractor must provide food or dormitory services at remote locations where adequate

commercial facilities are not reasonably available.

(B) The contractor’s charged (but unproductive) labor costs would be excessive if the services were

not available.

(C) If cessation or reduction of food or dormitory operations will not otherwise yield net cost savings.

(2) Costs of food and dormitory services shall include an allocable share of indirect expenses

pertaining to these activities.
(e) When the contractor has an arrangement authorizing an employee association to provide or

operate a service, such as vending machines in the contractor’s plant, and retain the profits, such

profits shall be treated in the same manner as if the contractor were providing the service (but see

paragraph (f) of this subsection).

(f) Contributions by the contractor to an employee organization, including funds from vending

machine receipts or similar sources, are allowable only to the extent that the contractor

demonstrates that an equivalent amount of the costs incurred by the employee organization would

be allowable if directly incurred by the contractor..

31.205-14 Entertainment costs.

Costs of amusement, diversions, social activities, and any directly associated costs such as tickets to

shows or sports events, meals, lodging, rentals, transportation, and gratuities are unallowable. Costs

made specifically unallowable under this cost principle are not allowable under any other cost

principle. Costs of membership in social, dining, or country clubs or other organizations having the

same purposes are also unallowable, regardless of whether the cost is reported as taxable income to

the employees.

31.205-15 Fines, penalties, and mischarging costs.

(a) Costs of fines and penalties resulting from violations of, or failure of the contractor to comply

with, Federal, State, local, or foreign laws and regulations, are unallowable except when incurred as

a result of compliance with specific terms and conditions of the contract or written instructions from

the contracting officer.

(b) Costs incurred in connection with, or related to, the mischarging of costs on Government

contracts are unallowable when the costs are caused by, or result from, alteration or destruction of

records, or other false or improper charging or recording of costs. Such costs include those incurred

to measure or otherwise determine the magnitude of the improper charging, and costs incurred to

remedy or correct the mischarging, such as costs to rescreen and reconstruct records.

31.205-16 Gains and losses on disposition or impairment of depreciable property or other

capital assets.

(a) Gains and losses from the sale, retirement, or other disposition (but see 31.205-19) of

depreciable property shall be included in the year in which they occur as credits or charges to the

cost grouping(s) in which the depreciation or amortization applicable to those assets was included

(but see paragraph (f) of this subsection). However, no gain or loss shall be recognized as a result of

the transfer of assets in a business combination (see 31.205-52).

(b) Notwithstanding the provisions in paragraph (c) of this subsection, when costs of depreciable

property are subject to the sale and leaseback limitations in 31.205-11(h)(1) or 31.205-36(b)(2)-

(1) The gain or loss is the difference between the net amount realized and the undepreciated balance

of the asset on the date the contractor becomes a lessee; and

(2) When the application of (b)(1) of this subsection results in a loss-
(i) The allowable portion of the loss is zero if the fair market value exceeds the undepreciated

balance of the asset on the date the contractor becomes a lessee; and

(ii) The allowable portion of the loss is limited to the difference between the fair market value and

the undepreciated balance of the asset on the date the contractor becomes a lessee if the fair market

value is less than the undepreciated balance of the asset on the date the contractor becomes a

lessee.

(c) Gains and losses on disposition of tangible capital assets, including those acquired under capital

leases (see 31.205-11(h)), shall be considered as adjustments of depreciation costs previously

recognized. The gain or loss for each asset disposed of is the difference between the net amount

realized, including insurance proceeds from involuntary conversions, and its undepreciated balance.

(d) The gain recognized for contract costing purposes shall be limited to the difference between the

acquisition cost (or for assets acquired under a capital lease, the value at which the leased asset is

capitalized) of the asset and its undepreciated balance (except see paragraphs (e)(2)(i) or (ii) of this

subsection).

(e) Special considerations apply to an involuntary con-version which occurs when a contractor’s

property is destroyed by events over which the owner has no control, such as fire, windstorm, flood,

accident, theft, etc., and an insurance award is recovered. The following govern involuntary

conversions:

(1) When there is a cash award and the converted asset is not replaced, gain or loss shall be

recognized in the period of disposition. The gain recognized for contract costing purposes shall be

limited to the difference between the acquisition cost of the asset and its undepreciated balance.

(2) When the converted asset is replaced, the contractor shall either-

(i) Adjust the depreciable basis of the new asset by the amount of the total realized gain or loss; or

(ii) Recognize the gain or loss in the period of disposition, in which case the Government shall

participate to the same extent as outlined in paragraph (e)(1) of this subsection.

(f) Gains and losses on the disposition of depreciable property shall not be recognized as a separate

charge or credit when-

(1) Gains and losses are processed through the depreciation reserve account and reflected in the

depreciation allowable under 31.205-11; or

(2) The property is exchanged as part of the purchase price of a similar item, and the gain or loss is

taken into consideration in the depreciation cost basis of the new item.

(g) Gains and losses arising from mass or extraordinary sales, retirements, or other disposition other

than through business combinations shall be considered on a case-by-case basis.

(h) Gains and losses of any nature arising from the sale or exchange of capital assets other than

depreciable property shall be excluded in computing contract costs.

(i) With respect to long-lived tangible and identifiable intangible assets held for use, no loss shall be

allowed for a write-down from carrying value to fair value as a result of impairments caused by

events or changes in circumstances (e.g., environmental damage, idle facilities arising from a

declining business base, etc.). If depreciable property or other capital assets have been written down
from carrying value to fair value due to impairments, gains or losses upon disposition shall be the

amounts that would have been allowed had the assets not been written down.

31.205-17 Idle facilities and idle capacity costs.

(a) Definitions. As used in this subsectionCosts of idle facilities or idle capacity means costs such as maintenance, repair, housing, rent, and

other related costs; e.g., property taxes, insurance, and depreciation.

Facilities means plant or any portion thereof (including land integral to the operation), equipment,

individually or collectively, or any other tangible capital asset, wherever located, and whether owned

or leased by the contractor.

Idle capacity means the unused capacity of partially used facilities. It is the difference between that

which a facility could achieve under 100 percent operating time on a one-shift basis, less operating

interruptions resulting from time lost for repairs, setups, unsatisfactory materials, and other normal

delays, and the extent to which the facility was actually used to meet demands during the accounting

period. A multiple-shift basis may be used in the calculation instead of a one-shift basis if it can be

shown that this amount of usage could normally be expected for the type of facility involved.

Idle facilities means completely unused facilities that are excess to the contractor’s current needs.

(b) The costs of idle facilities are unallowable unless the facilities-

(1) Are necessary to meet fluctuations in workload; or

(2) Were necessary when acquired and are now idle because of changes in requirements, production

economies, reorganization, termination, or other causes which could not have been reasonably

foreseen. (Costs of idle facilities are allowable for a reasonable period, ordinarily not to exceed 1

year, depending upon the initiative taken to use, lease, or dispose of the idle facilities (but see

31.205-42)).

(c) Costs of idle capacity are costs of doing business and are a factor in the normal fluctuations of

usage or overhead rates from period to period. Such costs are allowable provided the capacity is

necessary or was originally reasonable and is not subject to reduction or elimination by subletting,

renting, or sale, in accordance with sound business, economics, or security practices. Widespread

idle capacity throughout an entire plant or among a group of assets having substantially the same

function may be idle facilities.

(d) Any costs to be paid directly by the Government for idle facilities or idle capacity reserved for

defense mobilization production shall be the subject of a separate agreement.

31.205-18 Independent research and development and bid and proposal costs.

(a) Definitions. As used in this subsectionApplied research means that effort which (1) normally follows basic research, but may not be

severable from the related basic research, (2) attempts to determine and exploit the potential of

scientific discoveries or improvements in technology, materials, processes, methods, devices, or
techniques, and (3) attempts to advance the state of the art. Applied research does not include

efforts whose principal aim is design, development, or test of specific items or services to be

considered for sale; these efforts are within the definition of the term "development," defined in this

subsection.

Basic research (see 2.101).

Bid and proposal (B&P) costs means the costs incurred in preparing, submitting, and supporting

bids and proposals (whether or not solicited) on potential Government or non-Government contracts.

The term does not include the costs of effort sponsored by a grant or cooperative agreement, or

required in the performance of a contract.

Company means all divisions, subsidiaries, and affiliates of the contractor under common control.

Development means the systematic use, under whatever name, of scientific and technical knowledge

in the design, development, test, or evaluation of a potential new product or service (or of an

improvement in an existing product or service) for the purpose of meeting specific performance

requirements or objectives. Development includes the functions of design engineering, prototyping,

and engineering testing. Development excludes-

(1) Subcontracted technical effort which is for the sole purpose of developing an additional source

for an existing product, or

(2) Development effort for manufacturing or production materials, systems, processes, methods,

equipment, tools, and techniques not intended for sale.

Independent research and development (IR&D) means a contractor’s IR&D cost that consists of

projects falling within the four following areas: (1) basic research, (2) applied research, (3)

development, and (4) systems and other concept formulation studies. The term does not include the

costs of effort sponsored by a grant or required in the performance of a contract. IR&D effort shall

not include technical effort expended in developing and preparing technical data specifically to

support submitting a bid or proposal.

Systems and other concept formulation studies means analyses and study efforts either related to

specific IR&D efforts or directed toward identifying desirable new systems, equipment or

components, or modifications and improvements to existing systems, equipment, or components.

(b) Composition and allocation of costs. The requirements of 48 CFR 9904.420, Accounting for

independent research and development costs and bid and proposal costs, are incorporated in their

entirety and shall apply as follows-

(1) Fully-CAS-covered contracts. Contracts that are fully-CAS-covered shall be subject to all

requirements of 48 CFR 9904.420.

(2) Modified CAS-covered and non-CAS-covered contracts. Contracts that are not CAS-covered or

that contain terms or conditions requiring modified CAS coverage shall be subject to all

requirements of 48 CFR9904.420 except 48 CFR 9904.420-50(e)(2) and 48 CFR 9904.420-50(f)(2) ,

which are not then applicable. However, non-CAS-covered or modified CAS-covered contracts

awarded at a time the contractor has CAS-covered contracts requiring compliance with 48 CFR

9904.420, shall be subject to all the requirements of 48 CFR 9904.420. When the requirements of 48

CFR 9904.420-50(e)(2) and 48 CFR 9904.420-50(f)(2) are not applicable, the following apply:

(i) IR&D and B&P costs shall be allocated to final cost objectives on the same basis of allocation used
for the G&A expense grouping of the profit center (see 31.001) in which the costs are incurred.

However, when IR&D and B&P costs clearly benefit other profit centers or benefit the entire

company, those costs shall be allocated through the G&A of the other profit centers or through the

corporate G&A, as appropriate.

(ii) If allocations of IR&D or B&P through the G&A base do not provide equitable cost allocation, the

contracting officer may approve use of a different base.

(c) Allowability. Except as provided in paragraphs (d) and (e) of this subsection, or as provided in

agency regulations, costs for IR&D and B&P are allowable as indirect expenses on contracts to the

extent that those costs are allocable and reasonable.

(d) Deferred IR&D costs.

(1) IR&D costs that were incurred in previous accounting periods are unallowable, except when a

contractor has developed a specific product at its own risk in anticipation of recovering the

development costs in the sale price of the product provided that-

(i) The total amount of IR&D costs applicable to the product can be identified;

(ii) The proration of such costs to sales of the product is reasonable;

(iii) The contractor had no Government business during the time that the costs were incurred or did

not allocate IR&D costs to Government contracts except to prorate the cost of developing a specific

product to the sales of that product; and

(iv) No costs of current IR&D programs are allocated to Government work except to prorate the

costs of developing a specific product to the sales of that product.

(2) When deferred costs are recognized, the contract (except firm-fixed-price and fixed-price with

economic price adjustment) will include a specific provision setting forth the amount of deferred

IR&D costs that are allocable to the contract. The negotiation memorandum will state the

circumstances pertaining to the case and the reason for accepting the deferred costs.

(e) Cooperative arrangements.

(1) IR&D costs may be incurred by contractors working jointly with one or more non-Federal entities

pursuant to a cooperative arrangement (for example, joint ventures, limited partnerships, teaming

arrangements, and collaboration and consortium arrangements). IR&D costs also may include costs

contributed by contractors in performing cooperative research and development agreements, or

similar arrangements, entered into under-

(i) Section 12 of the Stevenson-Wydler Technology Transfer Act of1980 (15 U.S.C.3710(a));

(ii) Sections203(c)(5) and (6) of the National Aeronautics and Space Act of1958, as amended (42

U.S.C.2473(c)(5) and (6));

(iii) 10 U.S.C. 4021 for the Defense Advanced Research Projects Agency; or

(iv) Other equivalent authority.

(2) IR&D costs incurred by a contractor pursuant to these types of cooperative arrangements should
be considered as allowable IR&D costs if the work performed would have been allowed as contractor

IR&D had there been no cooperative arrangement.

(3) Costs incurred in preparing, submitting, and supporting offers on potential cooperative

arrangements are allowable to the extent they are allocable, reasonable, and not otherwise

unallowable.

31.205-19 Insurance and indemnification.

(a) Insurance by purchase or by self-insuring includes-

(1) Coverage the contractor is required to carry or to have approved, under the terms of the

contract; and

(2) Any other coverage the contractor maintains in connection with the general conduct of its

business.

(b) For purposes of applying the provisions of this subsection, the Government considers insurance

provided by captive insurers (insurers owned by or under control of the contractor) as selfinsurance, and charges for it shall comply with the provisions applicable to self-insurance costs in

this subsection. However, if the captive insurer also sells insurance to the general public in

substantial quantities and it can be demonstrated that the charge to the contractor is based on

competitive market forces, the Government will consider the insurance as purchased insurance.

(c) Whether or not the contract is subject to CAS, self-insurance charges are allowable subject to

paragraph (e) of this subsection and the following limitations:

(1) The contractor shall measure, assign, and allocate costs in accordance with 48 CFR9904.416,

Accounting for Insurance Costs.

(2) The contractor shall comply with (48 CFR) part 28. However, approval of a contractor’s

insurance program in accordance with part 28 does not constitute a determination as to the

allowability of the program’s cost.

(3) If purchased insurance is available, any self-insurance charge plus insurance administration

expenses in excess of the cost of comparable purchased insurance plus associated insurance

administration expenses is unallowable.

(4) Self-insurance charges for risks of catastrophic losses are unallowable (see 28.308(e)).

(d) Purchased insurance costs are allowable, subject to paragraph (e) of this subsection and the

following limitations:

(1) For contracts subject to full CAS coverage, the contractor shall measure, assign, and allocate

costs in accordance with 48 CFR9904.416.

(2) For all contracts, premiums for insurance purchased from fronting insurance companies

(insurance companies not related to the contractor but who reinsure with a captive insurer of the

contractor) are unallowable to the extent they exceed the sum of-

(i) The amount that would have been allowed had the contractor insured directly with the captive

insurer; and
(ii) Reasonable fronting company charges for services rendered.

(3) Actual losses are unallowable unless expressly provided for in the contract, except-

(i) Losses incurred under the nominal deductible provisions of purchased insurance, in keeping with

sound business practice, are allowable; and

(ii) Minor losses, such as spoilage, breakage, and disappearance of small hand tools that occur in the

ordinary course of business and that are not covered by insurance, are allowable.

(e) Self-insurance and purchased insurance costs are subject to the cost limitations in the following

paragraphs:

(1) Costs of insurance required or approved pursuant to the contract are allowable.

(2) Costs of insurance maintained by the contractor in connection with the general conduct of its

business are allowable subject to the following limitations:

(i) Types and extent of coverage shall follow sound business practice, and the rates and premiums

shall be reasonable.

(ii) Costs allowed for business interruption or other similar insurance shall be limited to exclude

coverage of profit.

(iii) The cost of property insurance premiums for insurance coverage in excess of the acquisition cost

of the insured assets is allowable only when the contractor has a formal written policy assuring that

in the event the insured property is involuntarily converted, the new asset shall be valued at the

book value of the replaced asset plus or minus adjustments for differences between insurance

proceeds and actual replacement cost. If the contractor does not have such a formal written policy,

the cost of premiums for insurance coverage in excess of the acquisition cost of the insured asset is

unallowable.

(iv) Costs of insurance for the risk of loss of Government property are allowable to the extent that-

(A) The contractor is liable for such loss;

(B) The contracting officer has not revoked the Government’s assumption of risk (see 45.104(b)); and

(C) Such insurance does not cover loss of Government property that results from willful misconduct

or lack of good faith on the part of any of the contractor’s managerial personnel (as described in

FAR 52.245-1(h)(1)(ii)).

(v) Costs of insurance on the lives of officers, partners, proprietors, or employees are allowable only

to the extent that the insurance represents additional compensation (see 31.205-6).

(3) The cost of insurance to protect the contractor against the costs of correcting its own defects in

materials and workmanship is unallowable. However, insurance costs to cover fortuitous or casualty

losses resulting from defects in materials or workmanship are allowable as a normal business

expense.

(4) Premiums for retroactive or backdated insurance written to cover losses that have occurred and

are known are unallowable.

(5) The Government is obligated to indemnify the contractor only to the extent authorized by law, as
expressly provided for in the contract, except as provided in paragraph (d)(3) of this subsection.

(6) Late premium payment charges related to employee deferred compensation plan insurance

incurred pursuant to Section 4007 (29 U.S.C.1307) or Section 4023 (29 U.S.C.1323) of the Employee

Retirement Income Security Act of1974 are unallowable.

31.205-20 Interest and other financial costs.

Interest on borrowings (however represented), bond discounts, costs of financing and refinancing

capital (net worth plus long-term liabilities), legal and professional fees paid in connection with

preparing prospectuses, and costs of preparing and issuing stock rights are unallowable (but see

31.205-28). However, interest assessed by State or local taxing authorities under the conditions

specified in 31.205-41(a)(3) is allowable.

31.205-21 Labor relations costs.

(a) Costs incurred in maintaining satisfactory relations between the contractor and its employees

(other than those made unallowable in paragraph (b) of this section), including costs of shop

stewards, labor management committees, employee publications, and other related activities, are

allowable.

(b) As required by Executive Order 13494, Economy in Government Contracting, costs of any

activities undertaken to persuade employees, of any entity, to exercise or not to exercise, or

concerning the manner of exercising, the right to organize and bargain collectively through

representatives of the employees’ own choosing are unallowable. Examples of unallowable costs

under this paragraph include, but are not limited to, the costs of-

(1) Preparing and distributing materials;

(2) Hiring or consulting legal counsel or consultants;

(3) Meetings (including paying the salaries of the attendees at meetings held for this purpose); and

(4) Planning or conducting activities by managers, supervisors, or union representatives during work

hours.

31.205-22 Lobbying and political activity costs.

(a) Costs associated with the following activities are unallowable:

(1) Attempts to influence the outcomes of any Federal, State, or local election, referendum,

initiative, or similar procedure, through in kind or cash contributions, endorsements, publicity, or

similar activities;

(2) Establishing, administering, contributing to, or paying the expenses of a political party,

campaign, political action committee, or other organization established for the purpose of

influencing the outcomes of elections;
(3) Any attempt to influence-

(i) The introduction of Federal, state, or local legislation, or

(ii) The enactment or modification of any pending Federal, state, or local legislation through

communication with any member or employee of the Congress or state legislature (including efforts

to influence state or local officials to engage in similar lobbying activity), or with any government

official or employee in connection with a decision to sign or veto enrolled legislation;

(4) Any attempt to influence-

(i) The introduction of Federal, state, or local legislation, or

(ii) The enactment or modification of any pending Federal, state, or local legislation by preparing,

distributing or using publicity or propaganda, or by urging members of the general public or any

segment thereof to contribute to or participate in any mass demonstration, march, rally, fund raising

drive, lobbying campaign or letter writing or telephone campaign;

(5) Legislative liaison activities, including attendance at legislative sessions or committee hearings,

gathering information regarding legislation, and analyzing the effect of legislation, when such

activities are carried on in support of or in knowing preparation for an effort to engage in

unallowable activities; or

(6) Costs incurred in attempting to improperly influence (see 3.401), either directly or indirectly, an

employee or officer of the Executive branch of the Federal Government to give consideration to or

act regarding a regulatory or contract matter.

(b) The following activities are excepted from the coverage of (a) of this section:

(1) Providing a technical and factual presentation of information on a topic directly related to the

performance of a contract through hearing testimony, statements or letters to the Congress or a

state legislature, or subdivision, member, or cognizant staff member thereof, in response to a

documented request (including a Congressional Record notice requesting testimony or statements

for the record at a regularly scheduled hearing) made by the recipient member, legislative body or

subdivision, or a cognizant staff member thereof; provided such information is readily obtainable

and can be readily put in deliverable form; and further provided that costs under this section for

transportation, lodging or meals are unallowable unless incurred for the purpose of offering

testimony at a regularly scheduled Congressional hearing pursuant to a written request for such

presentation made by the Chairman or Ranking Minority Member of the Committee or

Subcommittee conducting such hearing.

(2) Any lobbying made unallowable by paragraph (a)(3) of this subsection to influence state or local

legislation in order to directly reduce contract cost, or to avoid material impairment of the

contractor’s authority to perform the contract.

(3) Any activity specifically authorized by statute to be undertaken with funds from the contract.

(c) When a contractor seeks reimbursement for indirect costs, total lobbying costs shall be

separately identified in the indirect cost rate proposal, and thereafter treated as other unallowable

activity costs.

(d) Contractors shall maintain adequate records to demonstrate that the certification of costs as

being allowable or unallowable (see 42.703-2) pursuant to this subsection complies with the
requirements of this subsection.

(e) Existing procedures should be utilized to resolve in advance any significant questions or

disagreements concerning the interpretation or application of this subsection.

31.205-23 Losses on other contracts.

An excess of costs over income under any other contract (including the contractor’s contributed

portion under cost-sharing contracts) is unallowable.

31.205-24 [Reserved]

31.205-25 Manufacturing and production engineering costs.

(a) The costs of manufacturing and production engineering effort as described in (1) through (4) of

this paragraph are all allowable:

(1) Developing and deploying new or improved materials, systems, processes, methods, equipment,

tools and techniques that are or are expected to be used in producing products or services;

(2) Developing and deploying pilot production lines;

(3) Improving current production functions, such as plant layout, production scheduling and control,

methods and job analysis, equipment capabilities and capacities, inspection techniques, and tooling

analysis (including tooling design and application improvements); and

(4) Material and manufacturing producibility analysis for production suitability and to optimize

manufacturing processes, methods, and techniques.

(b) This cost principle does not cover-

(1) Basic and applied research effort (as defined in 31.205-18(a)) related to new technology,

materials, systems, processes, methods, equipment, tools and techniques. Such technical effort is

governed by 31.205-18, Independent research and development and bid and proposal costs; and

(2) Development effort for manufacturing or production materials, systems, processes, methods,

equipment, tools, and techniques that are intended for sale is also governed by 31.205-18.

(c) Where manufacturing or production development costs are capitalized or required to be

capitalized under the contractor’s capitalization policies, allowable cost will be determined in

accordance with the requirements of 31.205-11, Depreciation.

31.205-26 Material costs.

(a) Material costs include the costs of such items as raw materials, parts, subassemblies,

components, and manufacturing supplies, whether purchased or manufactured by the contractor,

and may include such collateral items as inbound transportation and in-transit insurance. In

computing material costs, the contractor shall consider reasonable overruns, spoilage, or defective
work (unless otherwise provided in any contract provision relating to inspecting and correcting

defective work).

(b) The contractor shall-

(1) Adjust the costs of material for income and other credits, including available trade discounts,

refunds, rebates, allowances, and cash discounts, and credits for scrap, salvage, and material

returned to vendors; and

(2) Credit such income and other credits either directly to the cost of the material or allocate such

income and other credits as a credit to indirect costs. When the contractor can demonstrate that

failure to take cash discounts was reasonable, the contractor does not need to credit lost discounts.

(c) Reasonable adjustments arising from differences between periodic physical inventories and book

inventories may be included in arriving at costs; provided such adjustments relate to the period of

contract performance.

(d) When materials are purchased specifically for and are identifiable solely with performance under

a contract, the actual purchase cost of those materials should be charged to the contract. If material

is issued from stores, any generally recognized method of pricing such material is acceptable if that

method is consistently applied and the results are equitable.

(e) Allowance for all materials, supplies and services that are sold or transferred between any

divisions, subdivisions, subsidiaries, or affiliates of the contractor under a common control shall be

on the basis of cost incurred in accordance with this subpart. However, allowance may be at price

when-

(1) It is the established practice of the transferring organization to price interorganizational

transfers at other than cost for commercial work of the contractor or any division, subsidiary or

affiliate of the contractor under a common control; and

(2) The item being transferred qualifies for an exception under 15.403-1(b) and the contracting

officer has not determined the price to be unreasonable.

(f) When a commercial product or commercial service under paragraph (e) of this section is sold or

transferred at a price based on a catalog or market price, the contractor—

(1) Should adjust the price to reflect the quantities being acquired; and

(2) May adjust the price to reflect the actual cost of any modifications necessary because of contract

requirements.

31.205-27 Organization costs.

(a) Except as provided in paragraph (b) of this subsection, expenditures in connection with (1)

planning or executing the organization or reorganization of the corporate structure of a business,

including mergers and acquisitions, (2) resisting or planning to resist the reorganization of the

corporate structure of a business or a change in the controlling interest in the ownership of a

business, and (3) raising capital (net worth plus long-term liabilities), are unallowable. Such

expenditures include but are not limited to incorporation fees and costs of attorneys, accountants,

brokers, promoters and organizers, management consultants and investment counselors, whether or
not employees of the contractor. Unallowable "reorganization" costs include the cost of any change

in the contractor’s financial structure, excluding administrative costs of short-term borrowings for

working capital, resulting in alterations in the rights and interests of security holders, whether or

not additional capital is raised.

(b) The cost of activities primarily intended to provide compensation will not be considered

organizational costs subject to this subsection, but will be governed by 31.205-6. These activities

include acquiring stock for-

(1) Executive bonuses,

(2) Employee savings plans, and

(3) Employee stock ownership plans.

31.205-28 Other business expenses.

The following types of recurring costs are allowable:

(a) Registry and transfer charges resulting from changes in ownership of securities issued by the

contractor.

(b) Cost of shareholders’ meetings.

(c) Normal proxy solicitations.

(d) Preparing and publishing reports to shareholders.

(e) Preparing and submitting required reports and forms to taxing and other regulatory bodies.

(f) Incidental costs of directors’ and committee meetings.

(g) Other similar costs.

31.205-29 Plant protection costs.

Costs of items such as-

(a) Wages, uniforms, and equipment of personnel engaged in plant protection,

(b) Depreciation on plant protection capital assets, and

(c) Necessary expenses to comply with military requirements, are allowable.

31.205-30 Patent costs.

(a) The following patent costs are allowable to the extent that they are incurred as requirements of a

Government contract (but see 31.205-33):
(1) Costs of preparing invention disclosures, reports, and other documents.

(2) Costs for searching the art to the extent necessary to make the invention disclosures.

(3) Other costs in connection with the filing and prosecution of a United States patent application

where title or royalty-free license is to be conveyed to the Government.

(b) General counseling services relating to patent matters, such as advice on patent laws,

regulations, clauses, and employee agreements, are allowable (but see 31.205-33).

(c) Other than those for general counseling services, patent costs not required by the contract are

unallowable. (See also 31.205-37.)

31.205-31 Plant reconversion costs.

Plant reconversion costs are those incurred in restoring or rehabilitating the contractor’s facilities to

approximately the same condition existing immediately before the start of the Government contract,

fair wear and tear excepted. Reconversion costs are unallowable except for the cost of removing

Government property and the restoration or rehabilitation costs caused by such removal. However,

in special circumstances where equity so dictates, additional costs may be allowed to the extent

agreed upon before costs are incurred. Care should be exercised to avoid duplication through

allowance as contingencies, additional profit or fee, or in other contracts.

31.205-32 Precontract costs.

Precontract costs means costs incurred before the effective date of the contract directly pursuant to

the negotiation and in anticipation of the contract award when such incurrence is necessary to

comply with the proposed contract delivery schedule. These costs are allowable to the extent that

they would have been allowable if incurred after the date of the contract (see 31.109).

31.205-33 Professional and consultant service costs.

(a) Definition. "Professional and consultant services," as used in this subsection, means those

services rendered by persons who are members of a particular profession or possess a special skill

and who are not officers or employees of the contractor. Examples include those services acquired

by contractors or subcontractors in order to enhance their legal, economic, financial, or technical

positions. Professional and consultant services are generally acquired to obtain information, advice,

opinions, alternatives, conclusions, recommendations, training, or direct assistance, such as studies,

analyses, evaluations, liaison with Government officials, or other forms of representation.

(b) Costs of professional and consultant services are allowable subject to this paragraph and

paragraphs (c) through (f) of this subsection when reasonable in relation to the services rendered

and when not contingent upon recovery of the costs from the Government (but see 31.205-30 and

31.205-47).

(c) Costs of professional and consultant services performed under any of the following circumstances

are unallowable:
(1) Services to improperly obtain, distribute, or use information or data protected by law or

regulation (e.g., 52.215-1(e), Restriction on Disclosure and Use of Data).

(2) Services that are intended to improperly influence the contents of solicitations, the evaluation of

proposals or quotations, or the selection of sources for contract award, whether award is by the

Government, or by a prime contractor or subcontractor.

(3) Any other services obtained, performed, or otherwise resulting in violation of any statute or

regulation prohibiting improper business practices or conflicts of interest.

(4) Services performed which are not consistent with the purpose and scope of the services

contracted for or otherwise agreed to.

(d) In determining the allowability of costs (including retainer fees) in a particular case, no single

factor or any special combination of factors is necessarily determinative. However, the contracting

officer shall consider the following factors, among others:

(1) The nature and scope of the service rendered in relation to the service required.

(2) The necessity of contracting for the service, considering the contractor’s capability in the

particular area.

(3) The past pattern of acquiring such services and their costs, particularly in the years prior to the

award of Government contracts.

(4) The impact of Government contracts on the contractor’s business.

(5) Whether the proportion of Government work to the contractor’s total business is such as to

influence the contractor in favor of incurring the cost, particularly when the services rendered are

not of a continuing nature and have little relationship to work under Government contracts.

(6) Whether the service can be performed more economically by employment rather than by

contracting.

(7) The qualifications of the individual or concern rendering the service and the customary fee

charged, especially on non-Government contracts.

(8) Adequacy of the contractual agreement for the service (e.g., description of the service, estimate

of time required, rate of compensation, termination provisions).

(e) Retainer fees, to be allowable, must be supported by evidence that-

(1) The services covered by the retainer agreement are necessary and customary;

(2) The level of past services justifies the amount of the retainer fees (if no services were rendered,

fees are not automatically unallowable);

(3) The retainer fee is reasonable in comparison with maintaining an in-house capability to perform

the covered services, when factors such as cost and level of expertise are considered; and

(4) The actual services performed are documented in accordance with paragraph (f) of this

subsection.

(f) Fees for services rendered are allowable only when supported by evidence of the nature and
scope of the service furnished (see also 31.205-38(c)). However, retainer agreements generally are

not based on specific statements of work. Evidence necessary to determine that work performed is

proper and does not violate law or regulation shall include-

(1) Details of all agreements (e.g., work requirements, rate of compensation, and nature and amount

of other expenses, if any) with the individuals or organizations providing the services and details of

actual services performed;

(2) Invoices or billings submitted by consultants, including sufficient detail as to the time expended

and nature of the actual services provided; and

(3) Consultants’ work products and related documents, such as trip reports indicating persons

visited and subjects discussed, minutes of meetings, and collateral memoranda and reports.

31.205-34 Recruitment costs.

(a) Subject to paragraph (b) of this subsection, the following costs are allowable:

(1) Costs of help-wanted advertising.

(2) Costs of operating an employment office needed to secure and maintain an adequate labor force.

(3) Costs of operating an aptitude and educational testing program.

(4) Travel costs of employees engaged in recruiting personnel.

(5) Travel costs of applicants for interviews.

(6) Costs for employment agencies, not in excess of standard commercial rates.

(b) Help-wanted advertising costs are unallowable if the advertising-

(1) Does not describe specific positions or classes of positions; or

(2) Includes material that is not relevant for recruitment purposes, such as extensive illustrations or

descriptions of the company’s products or capabilities.

31.205-35 Relocation costs.

(a) Relocation costs are costs incident to the permanent change of assigned work location (for a

period of 12 months or more) of an existing employee or upon recruitment of a new employee. The

following types of relocation costs are allowable as noted, subject to the limitations in paragraphs (b)

and (f) of this subsection:

(1) Costs of travel of the employee and members of the employee’s immediate family (see 31.205-46)

and transportation of the household and personal effects to the new location.

(2) Costs of finding a new home, such as advance trips by the employee or the spouse, or both, to

locate living quarters, and temporary lodging during the transition period for the employee and

members of the employee’s immediate family.
(3) Closing costs incident to the disposition of the actual residence owned by the employee when

notified of the transfer (e.g., brokerage fees, legal fees, appraisal fees, points, and finance charges),

except that these costs, when added to the costs described in paragraph (a)(4) of this subsection,

shall not exceed 14 percent of the sales price of the property sold.

(4) Continuing costs of ownership of the vacant former actual residence being sold, such as

maintenance of building and grounds (exclusive of fixing up expenses), utilities, taxes, property

insurance, and mortgage interest, after the settlement date or lease date of a new permanent

residence, except that these costs, when added to the costs described in paragraph (a)(3) of this

subsection, shall not exceed 14 percent of the sales price of the property sold.

(5) Other necessary and reasonable expenses normally incident to relocation, such as disconnecting

and connecting household appliances; automobile registration; driver’s license and use taxes;

cutting and fitting rugs, draperies, and curtains; forfeited utility fees and deposits; and purchase of

insurance against damage to or loss of personal property while in transit.

(6) Costs incident to acquiring a home in the new work location, except that-

(i) These costs are not allowable for existing employees or newly recruited employees who were not

homeowners before the relocation; and

(ii) The total costs shall not exceed 5 percent of the purchase price of the new home.

(7) Mortgage interest differential payments, except that these costs are not allowable for existing or

newly recruited employees who, before the relocation, were not homeowners and the total payments

are limited to an amount determined as follows:

(i) The difference between the mortgage interest rates of the old and new residences times the

current balance of the old mortgage times 3 years.

(ii) When mortgage differential payments are made on a lump-sum basis and the employee leaves or

is transferred again in less than 3 years, the amount initially recognized shall be proportionately

adjusted to reflect payments only for the actual time of the relocation.

(8) Rental differential payments covering situations where relocated employees retain ownership of

a vacated home in the old location and rent at the new location. The rented quarters at the new

location must be comparable to those vacated, and the allowable differential payments may not

exceed the actual rental costs for the new home, less the fair market rent for the vacated home

times 3 years.

(9) Costs of canceling an unexpired lease.

(10) Payments for increased employee income or Federal Insurance Contributions Act (26

U.S.C.Chapter21) taxes incident to allowable reimbursed relocation costs.

(11) Payments for spouse employment assistance.

(b) The costs described in paragraph (a) of this subsection must also meet the following criteria to

be considered allowable:

(1) The move must be for the benefit of the employer.

(2) Reimbursement must be in accordance with an established policy or practice that is consistently
followed by the employer and is designed to motivate employees to relocate promptly and

economically.

(3) The costs must not be otherwise unallowable under subpart 31.2.

(4) Amounts to be reimbursed shall not exceed the employee’s actual expenses, except as provided

for in paragraphs (b)(5) and (b)(6) of this subsection.

(5) For miscellaneous costs of the type discussed in paragraph (a)(5) of this subsection, a lump-sum

amount, not to exceed $5,000, may be allowed in lieu of actual costs.

(6)

(i) Reimbursement on a lump-sum basis may be allowed for any of the following relocation costs

when adequately supported by data on the individual elements (e.g., transportation, lodging, and

meals) comprising the build-up of the lump-sum amount to be paid based on the circumstances of

the particular employee’s relocation:

(A) Costs of finding a new home, as discussed in paragraph (a)(2) of this subsection.

(B) Costs of travel to the new location, as discussed in paragraph (a)(1) of this subsection (but not

costs for the transportation of household goods).

(C) Costs of temporary lodging, as discussed in paragraph (a)(2) of this subsection.

(ii) When reimbursement on a lump-sum basis is used, any adjustments to reflect actual costs are

unallowable.

(c) The following types of costs are unallowable:

(1) Loss on the sale of a home.

(2) Costs incident to acquiring a home in the new location as follows:

(i) Real estate brokers’ fees and commissions.

(ii) Costs of litigation.

(iii) Real and personal property insurance against damage or loss of property.

(iv) Mortgage life insurance.

(v) Owner’s title policy insurance when such insurance was not previously carried by the employee

on the old residence. (However, the cost of a mortgage title policy is allowable.)

(vi) Property taxes and operating or maintenance costs.

(3) Continuing mortgage principal payments on a residence being sold.

(4) Costs incident to furnishing equity or nonequity loans to employees or making arrangements with

lenders for employees to obtain lower-than-market rate mortgage loans.

(d) If relocation costs for an employee have been allowed either as an allocable indirect or direct
cost, and the employee resigns within 12 months for reasons within the employee’s control, the

contractor shall refund or credit the relocation costs to the Government.

(e) Subject to the requirements of paragraphs (a) through (d) of this section, the costs of family

movements and of personnel movements of a special or mass nature are allowable. The cost,

however, should be assigned on the basis of work (contracts) or time period benefited.

(f) Relocation costs (both outgoing and return) of employees who are hired for performance on

specific contracts or long-term field projects are allowable if-

(1) The term of employment is 12 months or more;

(2) The employment agreement specifically limits the duration of employment to the time spent on

the contract or field project for which the employee is hired;

(3) The employment agreement provides for return relocation to the employee’s permanent and

principal home immediately prior to the outgoing relocation, or other location of equal or lesser cost;

and

(4) The relocation costs are determined under the rules of paragraphs (a) through (d) of this section.

However, the costs to return employees, who are released from employment upon completion of

field assignments pursuant to their employment agreements, are not subject to the refund or credit

requirement of paragraph (d).

31.205-36 Rental costs.

(a) This subsection is applicable to the cost of renting or leasing real or personal property acquired

under "operating leases" as defined in Financial Accounting Standards Board’s Accounting

Standards Codification (FASB ASC) 840, Leases. (See 31.205-11 for Capital Leases.)

(b) The following costs are allowable:

(1) Rental costs under operating leases, to the extent that the rates are reasonable at the time of the

lease decision, after consideration of-

(i) Rental costs of comparable property, if any;

(ii) Market conditions in the area;

(iii) The type, life expectancy, condition, and value of the property leased;

(iv) Alternatives available; and

(v) Other provisions of the agreement.

(2) Rental costs under a sale and leaseback arrangement only up to the amount the contractor would

be allowed if the contractor retained title, computed based on the net book value of the asset on the

date the contractor becomes a lessee of the property adjusted for any gain or loss recognized in

accordance with 31.205-16(b).

(3) Charges in the nature of rent for property between any divisions, subsidiaries, or organizations

under common control, to the extent that they do not exceed the normal costs of ownership, such as
depreciation, taxes, insurance, facilities capital cost of money, and maintenance (excluding interest

or other unallowable costs pursuant to part 31), provided that no part of such costs shall duplicate

any other allowed cost. Rental cost of personal property leased from any division, subsidiary, or

affiliate of the contractor under common control, that has an established practice of leasing the

same or similar property to unaffiliated lessees shall be allowed in accordance with paragraph (b)(1)

of this subsection.

(c) The allowability of rental costs under unexpired leases in connection with terminations is treated

in 31.205-42(e).

31.205-37 Royalties and other costs for use of patents.

(a) Royalties on a patent or amortization of the cost of purchasing a patent or patent rights

necessary for the proper performance of the contract and applicable to contract products or

processes are allowable unless-

(1) The Government has a license or the right to a free use of the patent;

(2) The patent has been adjudicated to be invalid, or has been administratively determined to be

invalid;

(3) The patent is considered to be unenforceable; or

(4) The patent is expired.

(b) Care should be exercised in determining reasonableness when the royalties may have been

arrived at as a result of less-than-arm’s-length bargaining; e.g.,royalties-

(1) Paid to persons, including corporations, affiliated with the contractor;

(2) Paid to unaffiliated parties, including corporations, under an agreement entered into in

contemplation that a Government contract would be awarded; or

(3) Paid under an agreement entered into after the contract award.

(c) In any case involving a patent formerly owned by the contractor, the royalty amount allowed

should not exceed the cost which would have been allowed had the contractor retained title.

(d) See 31.109 regarding advance agreements.

31.205-38 Selling costs.

(a) "Selling" is a generic term encompassing all efforts to market the contractor’s products or

services, some of which are covered specifically in other subsections of 31.205. The costs of any

selling efforts other than those addressed in this cost principle are unallowable.

(b) Selling activity includes the following broad categories:

(1) Advertising. Advertising is defined at 31.205-1(b), and advertising costs are subject to the

allowability provisions of 31.205-1(d) and (f).
(2) Corporate image enhancement. Corporate image enhancement activities, including broadly

targeted sales efforts, other than advertising, are included within the definition of public relations at

31.205-1(a), and the costs of such efforts are subject to the allowability provisions at 31.205-1(e) and

(f).

(3) Bid and proposal costs. Bid and proposal costs are defined at 31.205-18 and are subject to the

allowability provisions of that subsection.

(4) Market planning. Market planning involves market research and analysis and general

management planning concerned with development of the contractor’s business. Long-range market

planning costs are subject to the allowability provisions of 31.205-12. Other market planning costs

are allowable.

(5) Direct selling. Direct selling efforts are those acts or actions to induce particular customers to

purchase particular products or services of the contractor. Direct selling is characterized by personto-person contact and includes such efforts as familiarizing a potential customer with the

contractor’s products or services, conditions of sale, service capabilities, etc. It also includes

negotiation, liaison between customer and contractor personnel, technical and consulting efforts,

individual demonstrations, and any other efforts having as their purpose the application or

adaptation of the contractor’s products or services for a particular customer’s use. The cost of direct

selling efforts is allowable.

(c) Notwithstanding any other provision of this subsection, sellers’ or agents’ compensation, fees,

commissions, percentages, retainer or brokerage fees, whether or not contingent upon the award of

contracts, are allowable only when paid to bona fide employees or established commercial or selling

agencies maintained by the contractor for the purpose of securing business.

31.205-39 Service and warranty costs.

Service and warranty costs include those arising from fulfillment of any contractual obligation of a

contractor to provide services such as installation, training, correcting defects in the products,

replacing defective parts, and making refunds in the case of inadequate performance. When not

inconsistent with the terms of the contract, service and warranty costs are allowable. However, care

should be exercised to avoid duplication of the allowance as an element of both estimated product

cost and risk.

31.205-40 Special tooling and special test equipment costs.

(a) The terms "special tooling" and "special test equipment" are defined in 2.101(b).

(b) The cost of special tooling and special test equipment used in performing one or more

Government contracts is allowable and shall be allocated to the specific Government contract or

contracts for which acquired, except that the cost of-

(1) Items acquired by the contractor before the effective date of the contract (or replacement of such

items), whether or not altered or adapted for use in performing the contract, and

(2) Items which the contract schedule specifically excludes, shall be allowable only as depreciation

or amortization.
(c) When items are disqualified as special tooling or special test equipment because with relatively

minor expense they can be made suitable for general purpose use and have a value as such

commensurate with their value as special tooling or special test equipment, the cost of adapting the

items for use under the contract and the cost of returning them to their prior configuration are

allowable.

31.205-41 Taxes.

(a) The following types of costs are allowable:

(1) Federal, State, and local taxes (see part 29), except as otherwise provided in paragraph (b) of

this section that are required to be and are paid or accrued in accordance with generally accepted

accounting principles. Fines and penalties are not considered taxes.

(2) Taxes otherwise allowable under paragraph (a)(1) of this section, but upon which a claim of

illegality or erroneous assessment exists; provided the contractor, before paying such taxes-

(i) Promptly requests instructions from the contracting officer concerning such taxes; and

(ii) Takes all action directed by the contracting officer arising out of paragraph (2)(i) of this section

or an independent decision of the Government as to the existence of a claim of illegality or

erroneous assessment, to-

(A) Determine the legality of the assessment or

(B) Secure a refund of such taxes.

(3) Pursuant to paragraph (a)(2) of this section, the reasonable costs of any action taken by the

contractor at the direction or with the concurrence of the contracting officer. Interest or penalties

incurred by the contractor for non-payment of any tax at the direction of the contracting officer or

by reason of the failure of the contracting officer to ensure timely direction after a prompt request.

(4) The Environmental Tax found at section 59 A of the Internal Revenue Code, also called the

"Superfund Tax."

(b) The following types of costs are not allowable:

(1) Federal income and excess profits taxes.

(2) Taxes in connection with financing, refinancing, refunding operations, or reorganizations (see

31.205-20 and 31.205-27).

(3) Taxes from which exemptions are available to the contractor directly, or available to the

contractor based on an exemption afforded the Government, except when the contracting officer

determines that the administrative burden incident to obtaining the exemption outweighs the

corresponding benefits accruing to the Government. When partial exemption from a tax is

attributable to Government contract activity, taxes charged to such work in excess of that amount

resulting from application of the preferential treatment are unallowable. These provisions intend

that tax preference attributable to Government contract activity be realized by the Government. The

term "exemption" means freedom from taxation in whole or in part and includes a tax abatement or

reduction resulting from mode of assessment, method of calculation, or otherwise.
(4) Special assessments on land that represent capital improvements.

(5) Taxes (including excises) on real or personal property, or on the value, use, possession or sale

thereof, which is used solely in connection with work other than on Government contracts (see

paragraph (c) of this section).

(6) Any excise tax in subtitleD, Chapter 43 of the Internal Revenue Code of1986, as amended. That

chapter includes excise taxes imposed in connection with qualified pension plans, welfare plans,

deferred compensation plans, or other similar types of plans.

(7) Income tax accruals designed to account for the tax effects of differences between taxable

income and pretax income as reflected by the books of account and financial statements.

(8) Any tax imposed under 26 U.S.C. 5000 C.

(c) Taxes on property (see paragraph (b)(5) of this section) used solely in connection with either nonGovernment or Government work should be considered directly applicable to the respective

category of work unless the amounts involved are insignificant or comparable results would

otherwise be obtained; e.g., taxes on contractor-owned work-in-process which is used solely in

connection with non-Government work should be allocated to such work; taxes on contractor-owned

work-in-process inventory (and Government-owned work-in-process inventory when taxed) used

solely in connection with Government work should be charged to such work. The cost of taxes

incurred on property used in both Government and non-Government work shall be apportioned to all

such work based upon the use of such property on the respective final cost objectives.

(d) Any taxes, interest, or penalties that were allowed as contract costs and are refunded to the

contractor shall be credited or paid to the Government in the manner it directs. If a contractor or

subcontractor obtains a foreign tax credit that reduces its U.S. Federal income tax because of the

payment of any tax or duty allowed as contract costs, and if those costs were reimbursed by a

foreign government, the amount of the reduction shall be paid to the Treasurer of the United States

at the time the Federal income tax return is filed. However, any interest actually paid or credited to

a contractor incident to a refund of tax, interest, or penalty shall be paid or credited to the

Government only to the extent that such interest accrued over the period during which the

contractor had been reimbursed by the Government for the taxes, interest, or penalties.

31.205-42 Termination costs.

Contract terminations generally give rise to the incurrence of costs or the need for special treatment

of costs that would not have arisen had the contract not been terminated. The following cost

principles peculiar to termination situations are to be used in conjunction with the other cost

principles in subpart 31.2:

(a) Common items. The costs of items reasonably usable on the contractor’s other work shall not be

allowable unless the contractor submits evidence that the items could not be retained at cost

without sustaining a loss. The contracting officer should consider the contractor’s plans and orders

for current and planned production when determining if items can reasonably be used on other work

of the contractor. Contemporaneous purchases of common items by the contractor shall be regarded

as evidence that such items are reasonably usable on the contractor’s other work. Any acceptance of

common items as allocable to the terminated portion of the contract should be limited to the extent

that the quantities of such items on hand, in transit, and on order are in excess of the reasonable

quantitative requirements of other work.
(b) Costs continuing after termination. Despite all reasonable efforts by the contractor, costs which

cannot be discontinued immediately after the effective date of termination are generally allowable.

However, any costs continuing after the effective date of the termination due to the negligent or

willful failure of the contractor to discontinue the costs shall be unallowable.

(c) Initial costs. Initial costs, including starting load and preparatory costs, are allowable as follows:

(1) Starting load costs not fully absorbed because of termination are nonrecurring labor, material,

and related overhead costs incurred in the early part of production and result from factors such as-

(i) Excessive spoilage due to inexperienced labor;

(ii) Idle time and subnormal production due to testing and changing production methods;

(iii) Training; and

(iv) Lack of familiarity or experience with the product, materials, or manufacturing processes.

(2) Preparatory costs incurred in preparing to perform the terminated contract include such costs as

those incurred for initial plant rearrangement and alterations, management and personnel

organization, and production planning. They do not include special machinery and equipment and

starting load costs.

(3) When initial costs are included in the settlement proposal as a direct charge, such costs shall not

also be included in overhead. Initial costs attributable to only one contract shall not be allocated to

other contracts.

(4) If initial costs are claimed and have not been segregated on the contractor’s books, they shall be

segregated for settlement purposes from cost reports and schedules reflecting that high unit cost

incurred during the early stages of the contract.

(5) If the settlement proposal is on the inventory basis, initial costs should normally be allocated on

the basis of total end items called for by the contract immediately before termination; however, if

the contract includes end items of a diverse nature, some other equitable basis may be used, such as

machine or labor hours.

(d) Loss of useful value. Loss of useful value of special tooling, and special machinery and equipment

is generally allowable, provided-

(1) The special tooling, or special machinery and equipment is not reasonably capable of use in the

other work of the contractor;

(2) The Government’s interest is protected by transfer of title or by other means deemed appropriate

by the contracting officer; and

(3) The loss of useful value for any one terminated contract is limited to that portion of the

acquisition cost which bears the same ratio to the total acquisition cost as the terminated portion of

the contract bears to the entire terminated contract and other Government contracts for which the

special tooling, or special machinery and equipment was acquired.

(e) Rental under unexpired leases. Rental costs under unexpired leases, less the residual value of

such leases, are generally allowable when shown to have been reasonably necessary for the

performance of the terminated contract, if-
(1) The amount of rental claimed does not exceed the reasonable use value of the property leased for

the period of the contract and such further period as may be reasonable; and

(2) The contractor makes all reasonable efforts to terminate, assign, settle, or otherwise reduce the

cost of such lease.

(f) Alterations of leased property. The cost of alterations and reasonable restorations required by the

lease may be allowed when the alterations were necessary for performing the contract.

(g) Settlement expenses.

(1) Settlement expenses, including the following, are generally allowable:

(i) Accounting, legal, clerical, and similar costs reasonably necessary for-

(A) The preparation and presentation, including supporting data, of settlement claims to the

contracting officer; and

(B) The termination and settlement of subcontracts.

(ii) Reasonable costs for the storage, transportation, protection, and disposition of property acquired

or produced for the contract.

(iii) Indirect costs related to salary and wages incurred as settlement expenses in (i) and (ii);

normally, such indirect costs shall be limited to payroll taxes, fringe benefits, occupancy costs, and

immediate supervision costs.

(2) If settlement expenses are significant, a cost account or work order shall be established to

separately identify and accumulate them.

(h) Subcontractor claims. Subcontractor claims, including the allocable portion of the claims

common to the contract and to other work of the contractor, are generally allowable. An appropriate

share of the contractor’s indirect expense may be allocated to the amount of settlements with

subcontractors; provided, that the amount allocated is reasonably proportionate to the relative

benefits received and is otherwise consistent with 31.201-4 and 31.203(d). The indirect expense so

allocated shall exclude the same and similar costs claimed directly or indirectly as settlement

expenses.

31.205-43 Trade, business, technical and professional activity costs.

The following types of costs are allowable:

(a) Memberships in trade, business, technical, and professional organizations.

(b) Subscriptions to trade, business, professional, or other technical periodicals.

(c) When the principal purpose of a meeting, convention, conference, symposium, or seminar is the

dissemination of trade, business, technical or professional information or the stimulation of

production or improved productivity-

(1) Costs of organizing, setting up, and sponsoring the meetings, conventions, symposia, etc.,
including rental of meeting facilities, transportation, subsistence, and incidental costs;

(2) Costs of attendance by contractor employees, including travel costs (see 31.205-46); and

(3) Costs of attendance by individuals who are not employees of the contractor, provided-

(i) Such costs are not also reimbursed to the individual by the employing company or organization,

and

(ii) The individuals attendance is essential to achieve the purpose of the conference, meeting,

convention, symposium, etc.

31.205-44 Training and education costs.

Costs of training and education that are related to the field in which the employee is working or may

reasonably be expected to work are allowable, except as follows:

(a) Overtime compensation for training and education is unallowable.

(b) The cost of salaries for attending undergraduate level classes or part-time graduate level classes

during working hours is unallowable, except when unusual circumstances do not permit attendance

at such classes outside of regular working hours.

(c) Costs of tuition, fees, training materials and textbooks, subsistence, salary, and any other

payments in connection with full-time graduate level education are unallowable for any portion of

the program that exceeds two school years or the length of the degree program, whichever is less.

(d) Grants to educational or training institutions, including the donation of facilities or other

properties, scholarships, and fellowships are considered contributions and are unallowable.

(e) Training or education costs for other than bona fide employees are unallowable, except that the

costs incurred for educating employee dependents (primary and secondary level studies) when the

employee is working in a foreign country where suitable public education is not available may be

included in overseas differential pay.

(f) Contractor contributions to college savings plans for employee dependents are unallowable.

31.205-45 [Reserved]

31.205-46 Travel costs.

(a) Costs for transportation, lodging, meals, and incidental expenses.

(1) Costs incurred by contractor personnel on official company business are allowable, subject to the

limitations contained in this subsection. Costs for transportation may be based on mileage rates,

actual costs incurred, or on a combination thereof, provided the method used results in a reasonable

charge. Costs for lodging, meals, and incidental expenses may be based on per diem, actual

expenses, or a combination thereof, provided the method used results in a reasonable charge.
(2) Except as provided in paragraph (a)(3) of this subsection, costs incurred for lodging, meals, and

incidental expenses (as defined in the regulations cited in (a)(2)(i) through (iii) of this section) shall

be considered to be reasonable and allowable only to the extent that they do not exceed on a daily

basis the maximum per diem rates in effect at the time of travel as set forth in the-

(i) Federal Travel Regulations, prescribed by the General Services Administration, for travel in the

contiguous United States, available on a subscription basis from theSuperintendent of Documents

U.S. Government Publishing Office

Washington DC 20402

Stock No.922-002-00000-2;

(ii) Joint Travel Regulation, Volume2, DoD Civilian Personnel, AppendixA, prescribed by the

Department of Defense, for travel in Alaska, Hawaii, and outlying areas of the United States,

available on a subscription basis from theSuperintendent of Documents

U.S. Government Publishing Office

Washington DC 20402

Stock No.908-010-00000-1; or

(iii) Standardized Regulations (Government Civilians, Foreign Areas), Section 925, "Maximum Travel

Per Diem Allowances for Foreign Areas," prescribed by the Department of State, for travel in areas

not covered in (a)(2)(i) and (ii) of this paragraph, available on a subscription basis from theSuperintendent of Documents

U.S. Government Publishing Office

Washington, DC 20402

Stock No.744-008-00000-0.

(3) In special or unusual situations, actual costs in excess of the above-referenced maximum per

diem rates are allowable provided that such amounts do not exceed the higher amounts authorized

for Federal civilian employees as permitted in the regulations referenced in (a)(2)(i), (ii), or (iii) of

this section. For such higher amounts to be allowable, all of the following conditions must be met:

(i) One of the conditions warranting approval of the actual expense method, as set forth in the
regulations referenced in paragraphs (a)(2)(i), (ii), or (iii) of this section, must exist.

(ii) A written justification for use of the higher amounts must be approved by an officer of the

contractor’s organization or designee to ensure that the authority is properly administered and

controlled to prevent abuse.

(iii) If it becomes necessary to exercise the authority to use the higher actual expense method

repetitively or on a continuing basis in a particular area, the contractor must obtain advance

approval from the contracting officer.

(iv) Documentation to support actual costs incurred shall be in accordance with the contractor’s

established practices, subject to paragraph (a)(7) of this section, and provided that a receipt is

required for each expenditure of $75.00 or more. The approved justification required by paragraph

(a)(3)(ii) of this section and, if applicable, paragraph (a)(3)(iii) of this section must be retained.

(4) Paragraphs (a)(2) and (3) of this section do not incorporate the regulations cited in paragraphs

(a)(2)(i), (ii), and (iii) of this section in their entirety. Only the maximum per diem rates, the

definitions of lodging, meals, and incidental expenses, and the regulatory coverage dealing with

special or unusual situations are incorporated herein.

(5) An advance agreement (see 31.109) with respect to compliance with paragraphs (a)(2) and (3) of

this subsection may be useful and desirable.

(6) The maximum per diem rates referenced in paragraph (a)(2) of this subsection generally would

not constitute a reasonable daily charge-

(i) When no lodging costs are incurred; and/or

(ii) On partial travel days (e.g., day of departure and return).

Appropriate downward adjustments from the maximum per diem rates would normally be required

under these circumstances. While these adjustments need not be calculated in accordance with the

Federal Travel Regulation or Joint Travel Regulations, they must result in a reasonable charge.

(7) Costs shall be allowable only if the following information is documented-

(i) Date and place (city, town, or other similar designation) of the expenses;

(ii) Purpose of the trip; and

(iii) Name of person on trip and that person’s title or relationship to the contractor.

(b) Airfare costs in excess of the lowest priced airfare available to the contractor during normal

business hours are unallowable except when such accommodations require circuitous routing,

require travel during unreasonable hours, excessively prolong travel, result in increased cost that

would offset transportation savings, are not reasonably adequate for the physical or medical needs

of the traveler, or are not reasonably available to meet mission requirements. However, in order for

airfare costs in excess of the above airfare to be allowable, the applicable condition(s) set forth

above must be documented and justified.

(c)

(1) "Cost of travel by contractor-owned, -leased, or -chartered aircraft," as used in this paragraph,
includes the cost of lease, charter, operation (including personnel), maintenance, depreciation,

insurance, and other related costs.

(2) The costs of travel by contractor-owned, -leased, or -chartered aircraft are limited to the

allowable airfare described in paragraph (b) of this section for the flight destination unless travel by

such aircraft is specifically required by contract specification, term, or condition, or a higher amount

is approved by the contracting officer. A higher amount may be agreed to when one or more of the

circumstances for justifying higher than allowable airfare listed in paragraph (b) of this section are

applicable, or when an advance agreement under paragraph (c)(3) of this section has been executed.

In all cases, travel by contractor-owned, -leased, or -chartered aircraft must be fully documented and

justified. For each contractor-owned, -leased, or -chartered aircraft used for any business purpose

which is charged or allocated, directly or indirectly, to a Government contract, the contractor must

maintain and make available manifest/logs for all flights on such company aircraft. As a minimum,

the manifest/log shall indicate-

(i) Date, time, and points of departure;

(ii) Destination, date, and time of arrival;

(iii) Name of each passenger and relationship to the contractor;

(iv) Authorization for trip; and

(v) Purpose of trip.

(3) Where an advance agreement is proposed (see 31.109), consideration may be given to the

following:

(i) Whether scheduled commercial airlines or other suitable, less costly, travel facilities are available

at reasonable times, with reasonable frequency, and serve the required destinations conveniently.

(ii) Whether increased flexibility in scheduling results in time savings and more effective use of

personnel that would outweigh additional travel costs.

(d) Costs of contractor-owned or -leased automobiles, as used in this paragraph, include the costs of

lease, operation (including personnel), maintenance, depreciation, insurance, etc. These costs are

allowable, if reasonable, to the extent that the automobiles are used for company business. That

portion of the cost of company-furnished automobiles that relates to personal use by employees

(including transportation to and from work) is compensation for personal services and is unallowable

as stated in 31.205-6(m)(2).

31.205-47 Costs related to legal and other proceedings.

(a) Definitions. As used in this subsectionCosts include, but are not limited to, administrative and clerical expenses; the costs of legal services,

whether performed by in-house or private counsel; the costs of the services of accountants,

consultants, or others retained by the contractor or subcontractor to assist it; costs of employees,

officers, and directors; and any similar costs incurred before, during, and after commencement of a

judicial or administrative proceeding which bears a direct relationship to the proceeding.
Fraud means-

(1) Acts of fraud or corruption or attempts to defraud the Government or to corrupt its agents;

(2) Acts which constitute a cause for debarment or suspension under 9.406-2(a) and 9.407-2(a); and

(3) Acts which violate the False Claims Act, 31 U.S.C., sections3729-3731, or 41 U.S.C. chapter 87,

Kickbacks.

Penalty does not include restitution, reimbursement, or compensatory damages.

Proceeding includes an investigation.

(b) Costs incurred in connection with any proceeding brought by: a Federal, State, local, or foreign

government for a violation of, or failure to comply with, law or regulation by the contractor or

subcontractor (including its agents or employees) ( 41 U.S.C. 4310 and 10 U.S.C. 3750); a contractor

or subcontractor employee submitting a whistleblower complaint of reprisal in accordance with 41

U.S.C. 4712 or 10 U.S.C. 4701; or a third party in the name of the United States under the False

Claims Act, 31 U.S.C.3730, are unallowable if the result is-

(1) In a criminal proceeding, a conviction;

(2) In a civil or administrative proceeding, either a finding of contractor or subcontractor liability

where the proceeding involves an allegation of fraud or similar misconduct; or imposition of a

monetary penalty, or an order issued by the agency head to the contractor or subcontractor to take

corrective action under 41 U.S.C. 4712 or 10 U.S.C. 4701, where the proceeding does not involve an

allegation of fraud or similar misconduct;

(3) A final decision by an appropriate official of an executive agency to-

(i) Debar or suspend the contractor or subcontractor;

(ii) Rescind or void a contract; or

(iii) Terminate a contract for default by reason of a violation or failure to comply with a law or

regulation.

(4) Disposition of the matter by consent or compromise if the proceeding could have led to any of the

outcomes listed in paragraphs (b)(1) through (3) of this subsection (but see paragraphs (c) and (d) of

this subsection); or

(5) Not covered by paragraphs (b)(1) through (4) of this subsection, but where the underlying

alleged contractor misconduct was the same as that which led to a different proceeding whose costs

are unallowable by reason of paragraphs (b)(1) through (4) of this subsection.

(c)

(1) To the extent they are not otherwise unallowable, costs incurred in connection with any

proceeding under paragraph (b) of this subsection commenced by the United States that is resolved

by consent or compromise pursuant to an agreement entered into between the contractor or

subcontractor and the United States, and which are unallowable solely because of paragraph (b) of

this subsection, may be allowed to the extent specifically provided in such agreement
(2)

(i) In the event of a settlement of any proceeding brought by a third party under the False Claims

Act in which the United States did not intervene, reasonable costs incurred by the contractor or

subcontractor in connection with such a proceeding that are not otherwise unallowable by

regulation or by separate agreement with the United States may be allowed if the contracting

officer, in consultation with his or her legal advisor, determines that there was very little likelihood

that the third party would have been successful on the merits.

(ii) In the event of disposition by consent or compromise of a proceeding brought by a whistleblower

for alleged reprisal in accordance with 41 U.S.C. 4712 or 10 U.S.C. 4701, reasonable costs incurred

by a contractor or subcontractor in connection with such a proceeding that are not otherwise

unallowable by regulation or by agreement with the United States may be allowed if the contracting

officer, in consultation with his or her legal advisor, determined that there was very little likelihood

that the claimant would have been successful on the merits.

(d) To the extent that they are not otherwise unallowable, costs incurred in connection with any

proceeding under paragraph (b) of this subsection commenced by a State, local, or foreign

government may be allowable when the contracting officer (or other official specified in agency

procedures) determines, that the costs were incurred either:

(1) As a direct result of a specific term or condition of a Federal contract or subcontract; or

(2) As a result of compliance with specific written direction of the cognizant contracting officer.

(e) Costs incurred in connection with proceedings described in paragraph (b) of this subsection, but

which are not made unallowable by that paragraph, may be allowable to the extent that:

(1) The costs are reasonable in relation to the activities required to deal with the proceeding and the

underlying cause of action;

(2) The costs are not otherwise recovered from the Federal Government or a third party, either

directly as a result of the proceeding or otherwise; and

(3) The percentage of costs allowed does not exceed the percentage determined to be appropriate

considering the complexity of procurement litigation, generally accepted principles governing the

award of legal fees in civil actions involving the United States as a party, and such other factors as

may be appropriate. Such percentage shall not exceed 80 percent. Agreements reached under

paragraph (c) of this subsection shall be subject to this limitation. If, however, an agreement

described in paragraph (c)(1) of this subsection explicitly states the amount of otherwise allowable

incurred legal fees and limits the allowable recovery to 80 percent or less of the stated legal fees, no

additional limitation need be applied. The amount of reimbursement allowed for legal costs in

connection with any proceeding described in paragraph (c)(2) of this subsection shall be determined

by the cognizant contracting officer, but shall not exceed 80 percent of otherwise allowable legal

costs incurred.

(f) Costs not covered elsewhere in this subsection are unallowable if incurred in connection with the

following:

(1) Defense against Federal Government claims or appeals or the prosecution of claims or appeals

against the Federal Government (see 2.101).

(2) Organization, reorganization, (including mergers and acquisitions) or resisting mergers and
acquisitions (see also 31.205-27).

(3) Defense of antitrust suits.

(4) Defense of suits brought by employees or ex-employees of the contractor or subcontractor under

section 2 of the Major Fraud Act of 1988 where the contractor or subcontractor was found liable or

settled.

(5) Costs of legal, accounting, and consultant services and directly associated costs incurred in

connection with the defense or prosecution of lawsuits or appeals between contractors or

subcontractors arising from either—

(i) An agreement or contract concerning a teaming arrangement, a joint venture, or similar

arrangement of shared interest; or

(ii) Dual sourcing, coproduction, or similar programs, are unallowable, except when—

(A) Incurred as a result of compliance with specific terms and conditions of the contract or

subcontract or written instructions from the contracting officer; or

(B) When agreed to in writing by the contracting officer.

(6) Patent infringement litigation, unless otherwise provided for in the contract or subcontract.

(7) Representation of, or assistance to, individuals, groups, or legal entities which the contractor or

subcontractor is not legally bound to provide, arising from an action where the participant was

convicted of violation of a law or regulation or was found liable in a civil or administrative

proceeding.

(8) Protests of Federal Government solicitations or contract awards, or the defense against protests

of such solicitations or contract awards, unless the costs of defending against a protest are incurred

pursuant to a written request from the cognizant contracting officer.

(9) A Congressional investigation or inquiry into an issue that is the subject matter of a proceeding

resulting in a disposition as described in paragraphs (b)(1) through (5) of this section (see 10 U.S.C.

3744(a)(17)).

(g) Costs which may be unallowable under 31.205-47, including directly associated costs, shall be

segregated and accounted for by the contractor or subcontractor separately. During the pendency of

any proceeding covered by paragraph (b) and paragraphs (f)(4) and (f)(7) of this subsection, the

contracting officer shall generally withhold payment of such costs. However, if in the best interests

of the Government, the contracting officer may provide for conditional payment upon provision of

adequate security, or other adequate assurance, and agreement by the contractor or subcontractor

to repay all unallowable costs, plus interest, if the costs are subsequently determined to be

unallowable.

31.205-48 Research and development costs.

Research and development, as used in this subsection, means the type of technical effort described

in 31.205-18 but sponsored by a grant or required in the performance of a contract. When costs are

incurred in excess of either the price of a contract or amount of a grant for research and
development effort, the excess is unallowable under any other Government contract.

31.205-49 Goodwill.

Goodwill, an unidentifiable intangible asset, originates under the purchase method of accounting for

a business combination when the price paid by the acquiring company exceeds the sum of the

identifiable individual assets acquired less liabilities assumed, based upon their fair values. The

excess is commonly referred to as goodwill. Goodwill may arise from the acquisition of a company as

a whole or a portion thereof. Any costs for amortization, expensing, write-off, or write-down of

goodwill (however represented) are unallowable.

31.205-50 [Reserved]

31.205-51 Costs of alcoholic beverages.

Costs of alcoholic beverages are unallowable.

31.205-52 Asset valuations resulting from business combinations.

(a) For tangible capital assets, when the purchase method of accounting for a business combination

is used, whether or not the contract or subcontract is subject to CAS, the allowable depreciation and

cost of money shall be based on the capitalized asset values measured and assigned in accordance

with 48 CFR9904.404-50(d), if allocable, reasonable, and not otherwise unallowable.

(b) For intangible capital assets, when the purchase method of accounting for a business

combination is used, allowable amortization and cost of money shall be limited to the total of the

amounts that would have been allowed had the combination not taken place.

Subpart 31.3 - Contracts with Educational Institutions

31.301 Purpose.

This subpart provides the principles for determining the cost of research and development, training,

and other work performed by educational institutions under contracts with the Government.

31.302 General.

The OMB Uniform Guidance at 2 CFR part 200, subpart E and appendix III, provides principles for

determining the costs applicable to research and development, training, and other work performed

by educational institutions (defined as institutions of higher education in the OMB Uniform Guidance

at 2 CFR part 200, subpart A, and 20 U.S.C. 1001) under contracts with the Government.
31.303 Requirements.

(a) Contracts that refer to this subpart 31.3 for determining allowable costs under contracts with

educational institutions (defined as institutions of higher education in the OMB Uniform Guidance at

2 CFR part 200, subpart A, and 20 U.S.C. 1001) shall be deemed to refer to, and shall have the

allowability of costs determined by the contracting officer in accordance with, the OMB Uniform

Guidance at 2 CFR part 200, subpart E and appendix III, in effect on the date of the contract.

(b) Agencies are not expected to place additional restrictions on individual items of cost.

Subpart 31.4 - [Reserved]

Subpart 31.5 - [Reserved]

Subpart 31.6 - Contracts with State, Local, and Federally

Recognized Indian Tribal Governments

31.601 Purpose.

This subpart provides the principles for determining allowable cost of contracts and subcontracts

with State, local, and federally recognized Indian tribal governments.

31.602 General.

The OMB Uniform Guidance at 2 CFR part 200, subpart E and appendices V and VII sets forth the

principles for determining the allowable costs of contracts and subcontracts with State, local, and

federally recognized Indian tribal governments. These principles are for cost determination and are

not intended to identify the circumstances or dictate the extent of Federal and State or local

participation in financing a particular contract.

31.603 Requirements.

(a) Contracts that refer to this subpart 31.6 for determining allowable costs under contracts with

State, local and Indian tribal governments shall be deemed to refer to, and shall have the

allowability of costs determined by the contracting officer in accordance with, the OMB Uniform

Guidance at 2 CFR part 200, subpart E and appendices V and VII, in effect on the date of the

contract.

(b) Agencies are not expected to place additional restrictions on individual items of cost. However,

under 10 U.S.C. 3744, 41 U.S.C.4304, 31 U.S.C. 3730, and 41 U.S.C. 4310, the following costs are

unallowable:

(1) Costs of entertainment, including amusement, diversion, and social activities, and any costs
directly associated with such costs (such as tickets to shows or sports events, meals, lodging,

rentals, transportation, and gratuities).

(2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before

Congress, a State legislature, or a legislative body of a political subdivision of a State.

(3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding

(including filing of any false certification) brought by the United States where the contractor is

found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including

filing of a false certification).

(4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal,

state, local, or foreign laws and regulations, except when incurred as a result of compliance with

specific terms and conditions of the contract or specific written instructions from the contracting

officer authorizing in advance such payments in accordance with applicable regulations in the FAR

or an executive agency supplement to the FAR.

(5) Costs of any membership in any social, dining, or country club or organization.

(6) Costs of alcoholic beverages.

(7) Contributions or donations, regardless of the recipient.

(8) Costs of advertising designed to promote the contractor or its products.

(9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.

(10) Costs for travel by commercial aircraft which exceed the amount of the standard commercial

fare.

(11) Costs incurred in making any payment (commonly known as a "golden parachute payment")

which is-

(i) In an amount in excess of the normal severance pay paid by the contractor to an employee upon

termination of employment; and

(ii) Is paid to the employee contingent upon, and following, a change in management control over, or

ownership of, the contractor or a substantial portion of the contractor’s assets.

(12) Costs of commercial insurance that protects against the costs of the contractor for correction of

the contractor’s own defects in materials or workmanship.

(13) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor

under a service contract performed outside the United States, to the extent that the amount of the

severance pay paid in any case exceeds the amount paid in the industry involved under the

customary or prevailing practice for firms in that industry providing similar services in the United

States, as determined by regulations in the FAR or in an executive agency supplement to the FAR.

(14) Costs of severance pay paid by the contractor to a foreign national employed by the contractor

under a service contract performed in a foreign country if the termination of the employment of the

foreign national is the result of the closing of, or curtailment of activities at, a United States facility

in that country at the request of the government of that country.
(15) Unless any of the exceptions at 31.205-47(c) or (d) apply, costs incurred by a contractor or

subcontractor in connection with any criminal, civil, or administrative proceedings that result in

dispositions described at 31.205-47(b)(1) through (5) commenced by: a Federal, State, local, or

foreign government, for a violation of, or failure to comply with, law or regulation by the contractor

or subcontractor (including its agents or employees); a contractor or subcontractor employee

submitting a whistleblower complaint of reprisal in accordance with 41 U.S.C. 4712 or 10 U.S.C.

4701; or a third party in the name of the United States under the False Claims Act, 31 U.S.C. 3730.

For any such proceeding that does not result in a disposition described at 31.205-47(b)(1) through

(5), or to which 31.205-47(c) exceptions apply, the cost of that proceeding shall be subject to the

limitations in 31.205-47(e).

(16) Costs incurred in connection with a Congressional investigation or inquiry into an issue that is

the subject matter of a proceeding resulting in a disposition as described at 31.205-47(b)(1) through

(5).

Subpart 31.7 - Contracts with Nonprofit Organizations

31.701 Purpose.

This subpart provides the principles for determining the cost applicable to work performed by

nonprofit organizations under contracts with the Government. A nonprofit organization, for purpose

of identification, is defined as a business entity organized and operated exclusively for charitable,

scientific, or educational purposes, of which no part of the net earnings inure to the benefit of any

private shareholder or individual, of which no substantial part of the activities is carrying on

propaganda or otherwise attempting to influence legislation or participating in any political

campaign on behalf of any candidate for public office, and which are exempt from Federal income

taxation under section 501 of the Internal Revenue Code.

31.702 General.

The OMB Uniform Guidance at 2 CFR part 200, subpart E and appendix IV, sets forth principles for

determining the costs applicable to work performed by nonprofit organizations (as defined in the

OMB Uniform Guidance at 2 CFR part 200) under contracts (as well as grants and other

agreements) with the Government. See 31.108 for exceptions to the cost principles for nonprofit

organizations.

31.703 Requirements.

(a) Contracts which refer to this subpart 31.7 for determining allowable costs shall be deemed to

refer to, and shall have the allowability of costs determined by the contracting officer in accordance

with, the OMB Uniform Guidance at 2 CFR part 200, subpart E and appendix IV in effect on the date

of the contract.

(b) Agencies are not expected to place additional restrictions on individual items of cost. However,

under 10 U.S.C. 3744 and 41 U.S.C.4304, the costs cited in 31.603(b) are unallowable.