Subpart 49.1 - General Principles

Parent topic: Part 49 - Termination of Contracts

49.100 Scope of subpart.

(a) This subpart deals with-

(1) The authority and responsibility of contracting officers to terminate contracts in whole or in part

for the convenience of the Government or for default;

(2) Duties of the contractor and the contracting officer after issuance of the notice of termination;

(3) General procedures for the settlement of terminated contracts; and

(4) Settlement agreements.

(b) Additional principles applicable to the termination for convenience and settlement of fixed-price

and cost-reimbursement contracts are included in subparts 49.2 and 49.3. Additional principles

applicable to the termination of contracts for default are included in subpart 49.4.

49.101 Authorities and responsibilities.

(a) The termination clauses or other contract clauses authorize contracting officers to terminate

contracts for convenience, or for default, and to enter into settlement agreements under this

regulation.

(b) The contracting officer shall terminate contracts, whether for default or convenience, only when

it is in the Government’s interest. The contracting officer shall effect a no-cost settlement instead of

issuing a termination notice when-

(1) It is known that the contractor will accept one,

(2) Government property was not furnished, and

(3) There are no outstanding payments, debts due the Government, or other contractor obligations.

(c) When the price of the undelivered balance of the contract is less than $5,000, the contract should

not normally be terminated for convenience but should be permitted to run to completion.

(d) After the contracting officer issues a notice of termination, the termination contracting officer

(TCO) is responsible for negotiating any settlement with the contractor, including a no-cost

settlement if appropriate. Auditors and TCO’s shall promptly schedule and complete audit reviews

and negotiations, giving particular attention to the need for timely action on all settlements involving

small business concerns.

(e) If the same item is under contract with both large and small business concerns and it is

necessary to terminate for convenience part of the units still to be delivered, preference shall be

given to the continuing performance of small business contracts over large business contracts unless
the chief of the contracting office determines that this is not in the Government’s interest.

(f) The contracting officer is responsible for the release of excess funds resulting from the

termination unless this responsibility is specifically delegated to the TCO.

49.102 Notice of termination.

(a) General. The contracting officer shall terminate contracts for convenience or default only by a

written notice to the contractor (see 49.601). The notice of termination may be expedited by means

of electronic communication capable of providing confirmation of receipt by the contractor. When

the notice is mailed, it shall be sent by certified mail, return receipt requested. When the contracting

office arranges for hand delivery of the notice, a written acknowledgment shall be obtained from the

contractor. The notice shall state-

(1) That the contract is being terminated for the convenience of the Government (or for default)

under the contract clause authorizing the termination;

(2) The effective date of termination;

(3) The extent of termination;

(4) Any special instructions; and

(5) The steps the contractor should take to minimize the impact on personnel if the termination,

together with all other outstanding terminations, will result in a significant reduction in the

contractor’s work force (see paragraph (g) of the notice in 49.601-2). If the termination notice is by

telegram, include these "steps" in the confirming letter or modification.

(b) Distribution of copies. The contracting officer shall simultaneously send the termination notice to

the contractor, and a copy to the contract administration office and to any known assignee,

guarantor, or surety of the contractor.

(c) Amendment of termination notice. The contracting officer may amend a termination notice to-

(1) Correct nonsubstantive mistakes in the notice;

(2) Add supplemental data or instructions; or

(3) Rescind the notice if it is determined that items terminated had been completed or shipped

before the contractor’s receipt of the notice.

(d) Reinstatement of terminated contracts. Upon written consent of the contractor, the contracting

office may reinstate the terminated portion of a contract in whole or in part by amending the notice

of termination if it has been determined in writing that-

(1) Circumstances clearly indicate a requirement for the terminated items; and

(2) Reinstatement is advantageous to the Government.
49.103 Methods of settlement.

Settlement of terminated cost-reimbursement contracts and fixed-price contracts terminated for

convenience may be effected by (a) negotiated agreement, (b) determination by the TCO, (c) costingout under vouchers using SF 1034, Public Voucher for Purchases and Services Other Than Personal,

for cost-reimbursement contracts (as prescribed in subpart 49.3), or (d) a combination of these

methods. When possible, the TCO should negotiate a fair and prompt settlement with the contractor.

The TCO shall settle a settlement proposal by determination only when it cannot be settled by

agreement.

49.104 Duties of prime contractor after receipt of notice of

termination.

After receipt of the notice of termination, the contractor shall comply with the notice and the

termination clause of the contract, except as otherwise directed by the TCO. The notice and clause

applicable to convenience terminations generally require that the contractor-

(a) Stop work immediately on the terminated portion of the contract and stop placing subcontracts

thereunder;

(b) Terminate all subcontracts related to the terminated portion of the prime contract;

(c) Immediately advise the TCO of any special circumstances precluding the stoppage of work;

(d) Perform the continued portion of the contract and submit promptly any request for an equitable

adjustment of price for the continued portion, supported by evidence of any increase in the cost, if

the termination is partial;

(e) Take necessary or directed action to protect and preserve property in the contractor’s possession

in which the Government has or may acquire an interest and, as directed by the TCO, deliver the

property to the Government;

(f) Promptly notify the TCO in writing of any legal proceedings growing out of any subcontract or

other commitment related to the terminated portion of the contract;

(g) Settle outstanding liabilities and proposals arising out of termination of subcontracts, obtaining

any approvals or ratifications required by the TCO;

(h) Promptly submit the contractor’s own settlement proposal, supported by appropriate schedules;

and

(i) Dispose of termination inventory, as directed or authorized by the TCO.

49.105 Duties of termination contracting officer after

issuance of notice of termination.
(a) Consistent with the termination clause and the notice of termination, the TCO shall-

(1) Direct the action required of the prime contractor;

(2) Examine the settlement proposal of the prime contractor and, when appropriate, the settlement

proposals of sub-contractors;

(3) Promptly negotiate settlement with the contractor and enter into a settlement agreement; and

(4) Promptly settle the contractor’s settlement proposal by determination for the elements that

cannot be agreed on, if unable to negotiate a complete settlement.

(b) To expedite settlement, the TCO may request specially qualified personnel to-

(1) Assist in dealings with the contractor;

(2) Advise on legal and contractual matters;

(3) Conduct accounting reviews and advise and assist on accounting matters; and

(4) Perform the following functions regarding termination inventory (see subpart 45.6):

(i) Verify its existence.

(ii) Determine qualitative and quantitative allocability.

(iii) Make recommendations concerning serviceability.

(iv) Undertake necessary screening and redistribution.

(v) Assist the contractor in accomplishing other disposition.

(c) The TCO should promptly hold a conference with the contractor to develop a definite program for

effecting the settlement. When appropriate in the judgment of the TCO, after consulting with the

contractor, principal subcontractors should be requested to attend. Topics that should be discussed

at the conference and documented include-

(1) General principles relating to the settlement of any settlement proposal, including obligations of

the contractor under the termination clause of the contract;

(2) Extent of the termination, point at which work is stopped, and status of any plans, drawings, and

information that would have been delivered had the contract been completed;

(3) Status of any continuing work;

(4) Obligation of the contractor to terminate subcontracts and general principles to be followed in

settling subcontractor settlement proposals;

(5) Names of subcontractors involved and the dates termination notices were issued to them;

(6) Contractor personnel handling review and settlement of subcontractor settlement proposals and

the methods being used;

(7) Arrangements for transfer of title and delivery to the Government of any material required by the
Government;

(8) General principles and procedures to be followed in the protection, preservation, and disposition

of the contractor’s and subcontractors’ termination inventories, including the preparation of

termination inventory schedules;

(9) Contractor accounting practices and preparation of SF 1439 (Schedule of Accounting

Information (49.602-3));

(10) Form in which to submit settlement proposals;

(11) Accounting review of settlement proposals;

(12) Any requirement for interim financing in the nature of partial payments;

(13) Tentative time schedule for negotiation of the settlement, including submission by the

contractor and subcontractors of settlement proposals, termination inventory schedules, and

accounting information schedules (see 49.206-3 and 49.303-2);

(14) Actions taken by the contractor to minimize impact upon employees affected adversely by the

termination (see paragraph (g) of the letter notice in 49.601-2); and

(15) Obligation of the contractor to furnish accurate, complete, and current cost or pricing data, and

to certify to that effect in accordance with 15.403-4(a)(1) when the amount of a termination

settlement agreement, or a partial termination settlement agreement plus the estimate to complete

the continued portion of the contract exceeds the threshold in 15.403-4.

49.105-1 Termination status reports.

When the TCO and contracting officer are in different activities, the TCO will furnish periodic status

reports on termination actions to the contracting office upon request. The contracting office shall

specify the information required.

49.105-2 Release of excess funds.

(a) The TCO shall estimate the funds required to settle the termination, and within 30 days after the

receipt of the termination notice, recommend the release of excess funds to the contracting officer.

The initial deobligation of excess funds should be accomplished in a timely manner by the

contracting officer, or the TCO, if delegated the responsibility. The TCO shall not recommend the

release of amounts under $1,000, unless requested by the contracting officer.

(b) The TCO shall maintain continuous surveillance of required funds to permit timely release of any

additional excess funds (a recommended format for release of excess funds is in 49.604). If previous

releases of excess funds result in a shortage of the amount required for settlement, the TCO shall

promptly inform the contracting officer, who shall reinstate the funds within 30 days.

49.105-3 Termination case file.
The TCO responsible for negotiating the final settlement shall establish a separate case file for each

termination. This file will include memoranda and records of all actions relative to the settlement

(see 4.801).

49.105-4 Cleanup of construction site.

In the case of terminated construction contracts, the contracting officer shall direct action to ensure

the cleanup of the site, protection of serviceable materials, removal of hazards, and other action

necessary to leave a safe and healthful site.

49.106 Fraud or other criminal conduct.

If the TCO suspects fraud or other criminal conduct related to the settlement of a terminated

contract, the TCO shall discontinue negotiations and report the facts under agency procedures.

49.107 Audit of prime contract settlement proposals and

subcontract settlements.

(a) The TCO shall refer each prime contractor settlement proposal valued at or above the threshold

for obtaining certified cost or pricing data set forth in FAR 15.403-4(a)(1) to the appropriate audit

agency for review and recommendations. The TCO may submit settlement proposals of less than the

threshold for obtaining certified cost or pricing data to the audit agency. Referrals shall indicate any

specific information or data that the TCO considers relevant and shall include facts and

circumstances that will assist the audit agency in performing its function. The audit agency shall

develop requested information and may make any further accounting reviews it considers

appropriate. After its review, the audit agency shall submit written comments and recommendations

to the TCO. When a formal examination of settlement proposals valued under the threshold for

obtaining certified cost or pricing data is not warranted, the TCO will perform or have performed a

desk review and include a written summary of the review in the termination case file.

(b) The TCO shall refer subcontract settlements received for approval or ratification to the

appropriate audit agency for review and recommendations when—

(1) The amount exceeds the threshold for obtaining certified cost or pricing data; or

(2) The TCO determines that a complete or partial accounting review is advisable. The audit agency

shall submit written comments and recommendations to the TCO. The review by the audit agency

does not relieve the prime contractor or higher tier subcontractor of the responsibility for

performing an accounting review.

(c)

(1) The responsibility of the prime contractor and of each subcontractor (see 49.108) includes

performance of accounting reviews and any necessary field audits. However, the TCO should request

the Government audit agency to perform the accounting review of a subcontractor’s settlement
proposal when-

(i) A subcontractor objects, for competitive reasons, to an accounting review of its records by an

upper tier contractor;

(ii) The Government audit agency is currently performing audit work at the subcontractor’s plant, or

can perform the audit more economically or efficiently;

(iii) Audit by the Government is necessary for consistent audit treatment and orderly administration;

or

(iv) The contractor has a substantial or controlling financial interest in the subcontractor.

(2) The audit agency should avoid duplication of accounting reviews performed by the upper tier

contractor on subcontractor settlement proposals. However, this should not preclude the

Government from making additional reviews when appropriate. When the contractor is performing

accounting reviews according to this section, the TCO should request the audit agency to

periodically examine the contractor’s accounting review procedures and performance, and to make

appropriate comments and recommendations to the TCO.

(d) The audit report is advisory only, and is for the TCO to use in negotiating a settlement or issuing

a unilateral determination. Government personnel handling audit reports must be careful not to

reveal privileged information or information that will jeopardize the negotiation position of the

Government, the prime contractor, or a higher tier subcontractor. Consistent with this, and when in

the Government’s interest, the TCO may furnish audit reports under paragraph (c) of this section to

prime and higher tier subcontractors for their use in settling subcontract settlement proposals.

49.108 Settlement of subcontract settlement proposals.

49.108-1 Subcontractor’s rights.

A subcontractor has no contractual rights against the Government upon the termination of a prime

contract. A subcontractor may have rights against the prime contractor or intermediate

subcontractor with whom it has contracted. Upon termination of a prime contract, the prime

contractor and each subcontractor are responsible for the prompt settlement of the settlement

proposals of their immediate subcontractors.

49.108-2 Prime contractor’s rights and obligations.

(a) Termination for convenience clauses provide that after receipt of a termination notice the prime

contractor shall, unless directed otherwise by the TCO, terminate all subcontracts to the extent that

they relate to the performance of prime work terminated. Therefore, prime contractors should

include a termination clause in their subcontracts for their own protection. Suggestions regarding

use of subcontract termination clauses are in subpart 49.5.

(b) The failure of a prime contractor to include an appropriate termination clause in any subcontract,

or to exercise the clause rights, shall not-
(1) Affect the Government’s right to require the termination of the subcontract; or

(2) Increase the obligation of the Government beyond what it would have been if the subcontract had

contained an appropriate clause.

(c) In any case, the reasonableness of the prime contractor’s settlement with the subcontractor

should normally be measured by the aggregate amount due under paragraph (f) of the subcontract

termination clause suggested in 49.502(e). The TCO shall allow reimbursement in excess of that

amount only in unusual cases and then only to the extent that the terms of the subcontract did not

unreasonably increase the rights of the subcontractor.

49.108-3 Settlement procedure.

(a) Contractors shall settle with subcontractors in general conformity with the policies and

principles relating to settlement of prime contracts in this subpart and subparts 49.2 or 49.3.

However, the basis and form of the subcontractor’s settlement proposal must be acceptable to the

prime contractor or the next higher tier subcontractor. Each settlement must be supported by

accounting data and other information sufficient for adequate review by the Government. In no

event will the Government pay the prime contractor any amount for loss of anticipatory profits or

consequential damages resulting from the termination of any subcontract (but see 49.108-5).

(b) Except as provided in 49.108-4, the TCO shall require that-

(1) All subcontractor termination inventory be disposed of and accounted for in accordance with the

procedures contained in paragraph (j) of the clause at 52.245-1, Government Property; and

(2) The prime contractor submit, for approval or ratification, all termination settlements with

subcontractors.

(c) The TCO shall promptly examine each subcontract settlement received to determine that the

subcontract termination was made necessary by the termination of the prime contract (or by

issuance of a change order-see 49.002(b)). The TCO will also determine if the settlement was arrived

at in good faith, is reasonable in amount, and is allocable to the terminated portion of the contract

(or, if allocable only in part, that the proposed allocation is reasonable). In considering the

reasonableness of any subcontract settlement, the TCO shall generally be guided by the provisions

of this part relating to the settlement of prime contracts, and shall comply with any applicable

requirements of 49.107 and 49.111 relating to accounting and other reviews. After the examination,

the TCO shall notify the contractor in writing of-

(1) Approval or ratification, or

(2) The reasons for disapproval.

49.108-4 Authorization for subcontract settlements without approval or

ratification.

(a)

(1) The TCO may, upon written request, give written authorization to the prime contractor to
conclude settlements of subcontracts terminated in whole or in part without approval or ratification

when the amount of settlement (see 49.002(d)) is $100,000 or less, if-

(i) The TCO is satisfied with the adequacy of the procedures used by the contractor in settling

settlement proposals, including proposals for retention, sale, or other disposal of termination

inventory of the immediate and lower tier subcontractors (the TCO shall obtain the advice and

recommendations of-

(A) The appropriate audit agency relating to the adequacy of the contractor’s audit administration,

including personnel, and

(B) The cognizant plant clearance officer relating to the adequacy of the contractor’s procedures and

personnel for the administration of property disposal matters);

(ii) Any termination inventory included in determining the amount of the settlement will be disposed

of as directed by the prime contractor, except that the disposition of the inventory shall not be

subject to-

(A) Review by the TCO under 49.108-3(c); or

(B) The screening requirements in 45.602-3; and

(iii) A certificate similar to the certificate in the settlement proposal form in 49.602-1(a) will

accompany the settlement.

(2) Except as provided in paragraph (a)(4) of this section, authority granted to a prime contractor

under paragraph (a)(1) of this section by any TCO shall apply to all Executive agencies’ prime

contracts that are terminated, or modified by change orders.

(3) Except as provided in paragraph (a)(4) of this section, the TCO shall accept, as part of the prime

contractor’s settlement proposal, settlements of terminated lower tier subcontracts concluded by

any of the prime contractor’s immediate or lower tier subcontractors who have been granted

authority as prime contractors to settle subcontracts; provided, that the settlement is within the

limit of the authority. Authorization to settle proposals of lower tier subcontractors shall not be

granted directly to subcontractors. However, a prime contractor authorized to approve

subcontractor settlements may also exercise this authority in its capacity as a subcontractor, with

respect to its terminated subcontracts and orders. When exercising this authority as a

subcontractor, the contractor shall notify the purchaser.

(4) The provisions of paragraphs (a)(1), (2), and (3) of this section shall not apply to contracts under

the administration of any contracting officer if the contracting officer so notifies the prime

contractor concerned. This notice shall

(i) Be in writing, and

(ii) If paragraph (a)(3) of this section is involved, specify any subcontractor affected.

(b) Section 45.602 shall apply to disposal of completed end items allocable to the terminated

subcontract. However, these items may be disposed of without review by the TCO under 49.108-3

and without screening under 45.602-3, if the items do not require demilitarization and the total

amount (at the subcontract price) when added to the amount of the settlement does not exceed the

amount authorized under this subsection.
(c) A TCO granting the authorization in paragraph (a)(1) of this section shall periodically (at least

annually) make a selective review of settlements and settlement procedures to determine if the

contractor is making adequate reviews and fair settlements, and whether the authorization should

remain in effect. The TCO shall obtain the advice and recommendations of the appropriate audit

agency and the cognizant plant clearance officer. When it is determined that the contractor’s

procedures are not adequate, or that improper settlements are being made, or when the authority

has not been used in the preceding 2 years, the TCO shall revoke the authorization by written notice

to the contractor, effective on the date of receipt.

(d) The contractor may make any number of separate settlements with a single subcontractor but

shall not divide settlement proposals solely to bring them under an authorization limit. Separate

settlement proposals that would normally be included in a single proposal, such as those based on a

series of separate orders for the same item under one contract, shall be consolidated whenever

possible.

(e) Upon written request of the contractor, the TCO may increase an authorization granted under

paragraph (a)(1) of this subsection to authorize the contractor to conclude settlements under a

particular prime contract. The TCO may limit the increased authorization to specific subcontracts or

classes of subcontracts.

(f) Authorizations granted under this 49.108-4 shall not authorize the settlement of requisitions or

orders placed with any unit within the contractor’s corporate entity.

(g) Recommended formats for a request to settle subcontractor settlement proposals and the TCO’s

letter of authorization to the contractor are in 49.605 and 49.606, respectively.

49.108-5 Recognition of judgments and arbitration awards.

(a) When a subcontractor obtains a final judgment against a prime contractor, the TCO shall, for the

purposes of settling the prime contract, treat the amount of the judgment as a cost of settling with

the contractor, to the extent the judgment is properly allocable to the terminated portion of the

prime contract, if-

(1) The prime contractor has made reasonable efforts to include in the subcontract a termination

clause described in 49.502(e), 49.503(c), or a similar clause excluding payment of anticipatory

profits or consequential damages;

(2) The provisions of the subcontract relating to the rights of the parties upon its termination are fair

and reasonable and do not unreasonably increase the common law rights of the subcontractor;

(3) The contractor made reasonable efforts to settle the settlement proposal of the subcontractor;

(4) The contractor gave prompt notice to the contracting officer of the initiation of the proceedings

in which the judgment was rendered and did not refuse to give the Government control of the

defense of the proceedings; and

(5) The contractor diligently defended the suit or, if the Government assumed control of the defense

of the proceedings, rendered reasonable assistance requested by the Government.

(b) If the conditions in paragraphs (a)(1) through (5) of this section are not all met, the TCO may

allow the contractor the part of the judgment considered fair for settling the subcontract settlement
proposal, giving due regard to the policies in this part for settlement of proposals.

(c) When a contractor and a subcontractor submit the subcontractor’s settlement proposal to

arbitration under any applicable law or contract provision, the TCO shall recognize the arbitration

award as the cost of settling the proposal of the contractor to the same extent and under the same

conditions as in paragraphs (a) and (b) of this section.

49.108-6 Delay in settling subcontractor settlement proposals.

When a prime contractor’s inability to settle with a subcontractor delays the settlement of the prime

contract, the TCO may settle with the prime contractor. The TCO shall except the subcontractor

settlement proposal from the settlement in whole or part and reserve the rights of the Government

and the prime contractor with respect to the subcontractor proposal.

49.108-7 Government assistance in settling subcontracts.

In unusual cases the TCO may determine, with the consent of the prime contractor, that it is in the

Government’s interest to provide assistance to the prime contractor in the settlement of a particular

subcontract. In these situations, the Government, the prime contractor, and a subcontractor may

enter into an agreement covering the settlement of one or more subcontracts. In these settlements,

the subcontractor shall be paid through the prime contractor as part of the overall settlement with

the prime contractor.

49.108-8 Assignment of rights under subcontracts.

(a) The termination for convenience clauses in 52.249, except the short-form clauses, obligate the

prime contractor to assign to the Government, as directed by the TCO, all rights, titles, and interest

under any subcontract terminated because of termination of the prime contract. The TCO shall not

require the assignment unless it is in the Government’s interest.

(b) The termination for convenience clauses (except the short-form clauses) also provide the

Government the right, in its discretion, to settle and pay any settlement proposal arising out of the

termination of subcontracts. This right does not obligate the Government to settle and pay

settlement proposals of subcontractors. As a general rule, the prime contractor is obligated to settle

and pay these proposals. However, when the TCO determines that it is in the Government’s interest,

the TCO shall, after notifying the contractor, settle the subcontractor’s proposal using the

procedures for settlement of prime contracts. An example in which the Government’s interest would

be served is when a subcontractor is a sole source and it appears that a delay by the prime

contractor in settlement or payment of the subcontractor’s proposal will jeopardize the financial

position of the subcontractor. Direct settlements with subcontractors are not encouraged.

49.109 Settlement agreements.
49.109-1 General.

When a termination settlement has been negotiated and all required reviews have been obtained,

the contractor and the TCO shall execute a settlement agreement on Standard Form 30 (Amendment

of Solicitation/Modification of Contract) (see 49.603). The settlement shall cover-

(a) Any setoffs that the Government has against the contractor that may be applied against the

terminated contract and

(b) All settlement proposals of subcontractors, except proposals that are specifically excepted from

the agreement and reserved for separate settlement.

49.109-2 Reservations.

(a) The TCO shall-

(1) Reserve in the settlement agreement any rights or demands of the parties that are excepted from

the settlement;

(2) Ensure that the wording of the reservation does not create any rights for the parties beyond

those in existence before execution of the settlement agreement;

(3) Mark each applicable settlement agreement with "This settlement agreement contains a

reservation" and retain the contract file until the reservation is removed;

(4) Ensure that sufficient funds are retained to cover complete settlement of the reserved items; and

(5) At the appropriate time, prepare a separate settlement of reserved items and include it in a

separate settlement agreement.

(b) A recommended format for settlement of reservations appears in 49.603-9.

49.109-3 Government property.

Before execution of a settlement agreement, the TCO shall determine the accuracy of the

Government property account for the terminated contract. If an audit discloses property for which

the contractor cannot account, the TCO shall reserve in the settlement agreement the rights of the

Government regarding that property or make an appropriate deduction from the amount otherwise

due the contractor.

49.109-4 No-cost settlement.

The TCO shall execute a no-cost settlement agreement (see 49.603-6 or 49.603-7, as applicable) if-

(a) The contractor has not incurred costs for the terminated portion of the contract or

(b) The contractor is willing to waive the costs incurred and
(c) No amounts are due the Government under the contract.

49.109-5 Partial settlements.

The TCO should attempt to settle in one agreement all rights and liabilities of the parties under the

contract except those arising from any continued portion of the contract. Generally, the TCO shall

not attempt to make partial settlements covering particular items of the prime contractor’s

settlement proposal. However, when a TCO cannot promptly complete settlement under the

terminated contract, a partial settlement may be entered into if-

(a) The issues on which agreement has been reached are clearly severable from other issues and

(b) The partial settlement will not prejudice the Government’s or contractor’s interests in disposing

of the unsettled part of the settlement proposal.

49.109-6 Joint settlement of two or more settlement proposals.

(a) With the consent of the contractor, the TCO or TCO’s concerned may negotiate jointly two or

more termination settlement proposals of the same contractor under different contracts, even

though the contracts are with different contracting offices or agencies. In such cases, accounting

work shall be consolidated to the greatest extent practical. The resulting settlement may be

evidenced by one settlement agreement covering all contracts involved or by a separate agreement

for each contract involved.

(b) When the settlement agreement covers more than one contract, it shall-

(1) Clearly identify the contracts involved,

(2) Assign an amendment modification number to each contract,

(3) Apportion the total amount of the settlement among the several contracts on some reasonable

basis,

(4) Have attached or incorporated a schedule showing the apportionment, and

(5) Be distributed and attached to each contract involved in the same manner as other contract

modifications.

49.109-7 Settlement by determination.

(a) General. If the contractor and TCO cannot agree on a termination settlement, or if a settlement

proposal is not submitted within the period required by the termination clause, the TCO shall issue a

determination of the amount due consistent with the termination clause, including any cost

principles incorporated by reference. The TCO shall comply with 49.109-1 through 49.109-6 in

making a settlement by determination and with 49.203 in making an adjustment for loss, if any.

Copies of determinations shall receive the same distribution as other contract modifications.

(b) Notice to contractor. Before issuing a determination of the amount due the contractor, the TCO
shall give the contractor at least 15 days notice by certified mail (return receipt requested) to submit

written evidence, so as to reach the TCO on or before a stated date, substantiating the amount

previously proposed.

(c) Justification of settlement proposal.

(1) The contractor has the burden of establishing, by proof satisfactory to the TCO, the amount

proposed.

(2) The contractor may submit vouchers, verified transcripts of books of account, affidavits, audit

reports, and other documents as desired. The TCO may request the contractor to submit additional

documents and data, and may request appropriate accountings, investigations, and audits.

(3) The TCO may accept copies of documents and records without requiring original documents

unless there is a question of authenticity.

(4) The TCO may hold any conferences considered appropriate-

(i) To confer with the contractor,

(ii) To obtain additional information from Government personnel or from independent experts, or

(iii) To consult persons who have submitted affidavits or reports.

(d) Determinations. After reviewing the information available, the TCO shall determine the amount

due and shall transmit a copy of the determination to the contractor by certified mail (return receipt

requested), or by any other method that provides evidence of receipt. The transmittal letter shall

advise the contractor that the determination is a final decision from which the contractor may

appeal under the Disputes clause, except as shown in paragraph (f) of this section. The

determination shall specify the amount due the contractor and will be supported by detailed

schedules conforming generally to the forms for settlement proposals prescribed in 49.602-1 and by

additional information, schedules, and analyses as appropriate. The TCO shall explain each major

item of disallowance. The TCO need not reconsider any other action relating to the terminated

portion of the contract that was ratified or approved by the TCO or another contracting officer.

(e) Preservation of evidence. The TCO shall retain all written evidence and other data relied upon in

making a determination, except that copies of original books of account need not be made. The TCO

shall return books of account, together with other original papers and documents, to the contractor

within a reasonable time.

(f) Appeals. The contractor may appeal, under the Disputes clause, any settlement by determination,

except when the contractor has failed to submit the settlement proposal within the time provided in

the contract and failed to request an extension of time. The pendency of an appeal shall not affect

the authority of the TCO to settle the settlement proposal or any part by negotiation with the

contractor at any time before the appeal is decided.

(g) Decision on the contractor’s appeal. The TCO shall give effect to a decision of the Claims Court

or a board of contract appeals, when necessary, by an appropriate modification to the contract.

When appropriate, the TCO should obtain a release from the contractor. TCO’s are authorized to

modify the formats of settlement agreements in 49.603 to agree with this provision.
49.110 Settlement negotiation memorandum.

(a) The TCO shall, at the conclusion of negotiations, prepare a settlement negotiation memorandum

describing the principal elements of the settlement for inclusion in the termination case file and for

use by reviewing authorities. Pricing aspects of the settlement shall be documented in accordance

with 15.406-3. The memorandum shall be distributed in accordance with 15.406-3.

(b) If the settlement was negotiated on the basis of individual items, the TCO shall specify the

factors considered for each item. If the settlement was negotiated on an overall lump-sum basis, the

TCO need not evaluate each item or group of items individually, but shall support the total amount of

the recommended settlement in reasonable detail. The memorandum shall include explanations of

matters involving differences and doubtful questions settled by agreement, and the factors

considered. The TCO should include any other matters that will assist reviewing authorities in

understanding the basis for the settlement.

49.111 Review of proposed settlements.

Each agency shall establish procedures, when necessary, for the administrative review of proposed

termination settlements. When one agency provides termination settlement services for another

agency, the agency providing the services shall also perform the settlement review function.

49.112 Payment.

49.112-1 Partial payments.

(a) General. If the contract authorizes partial payments on settlement proposals before settlement, a

prime contractor may request them on the form prescribed in 49.602-4 at any time after submission

of interim or final settlement proposals. The Government will process applications for partial

payments promptly. A subcontractor shall submit its application through the prime contractor which

shall attach its own invoice and recommendations to the subcontractor’s application. Partial

payments to a subcontractor shall be made only through the prime contractor and only after the

prime contractor has submitted its interim or final settlement proposal. Except for undelivered

acceptable finished products, partial payments shall not be made for profit or fee claimed under the

terminated portion of the contract. In exercising discretion on the extent of partial payments to be

made, the TCO shall consider the diligence of the contractor in settling with subcontractors and in

preparing its own settlement proposal.

(b) Amount of partial payment. Before approving any partial payment, the TCO shall obtain any

desired accounting, engineering, or other specialized reviews of the data submitted in support of the

contractor’s settlement proposal. If the reviews and the TCO’s examination of the data indicate that

the requested partial payment is proper, reasonable payments may be authorized in the discretion of

the TCO up to-

(1) 100 percent of the contract price, adjusted for undelivered acceptable items completed before

the termination date, or later completed with the approval of the TCO (see 49.205);
(2) 100 percent of the amount of any subcontract settlement paid by the prime contractor if the

settlement was approved or ratified by the TCO under 49.108-3(c) or was authorized under

49.108-4;

(3) 90 percent of the direct cost of termination inventory, including costs of raw materials,

purchased parts, supplies, and direct labor;

(4) 90 percent of other allowable costs (including settlement expense and manufacturing and

administrative indirect costs) allocable to the terminated portion of the contract and not included in

paragraphs (b)(1), (2), or (3) of this section; and

(5) 100 percent of partial payments made to subcontractors under this section.

(c) Recognition of assignments. When an assignment of claims has been made under the contract,

the Government shall not make partial payments to other than the assignee unless the parties to the

assignment consent in writing (see 32.805(e)).

(d) Security for partial payments. If any partial payment is made for completed end items or for costs

of termination inventory, the TCO shall protect the Government’s interest. This shall be done by

obtaining title to the completed end items or termination inventory, or by the creation of a lien in

favor of the Government, paramount to all other liens, on the completed end items or termination

inventory, or by other appropriate means.

(e) Deductions in computing amount of partial payments. The TCO shall deduct from the gross

amount of any partial payment otherwise payable under 49.112-1(b)-

(1) All unliquidated balances of progress and advance payments (including interest) made to the

contractor, which are allocable to the terminated portion of the contract; and

(2) The amounts of all credits arising from the purchase, retention, or sale of property, the costs of

which are included in the application for payment.

(f) Limitation on total amount. The total amount of all partial payments shall not exceed the amount

that will, in the opinion of the TCO, become due to the contractor because of the termination.

(g) Effect of overpayment. If the total of partial payments exceeds the amount finally determined due

on the settlement proposal, the contractor shall repay the excess to the Government on demand,

together with interest. The interest shall be computed at the rate established by the Secretary of the

Treasury under 50 U.S.C. App.1215(b)(2) from the date the excess payment was received by the

contractor to the date of repayment. However, interest will not be charged for any-

(1) Excess payment attributable to a reduction in the settlement proposal because of retention or

other disposition of termination inventory, until 10 days after the date of the retention or disposition,

or a later date determined by the TCO, or

(2) Overpayment under cost-reimbursement research and development contracts without profit or

fee if the overpayments are repaid to the Government within 30 days after demand.

(h) Certification and approval of partial payments.

(1) The contractor shall place the following certification on vouchers or invoices for partial

payments:
The payment covered by this voucher is a partial payment on the Contractor’s settlement proposal

under contract No. _______________ under part 49 of the Federal Acquisition Regulation.

(2) The TCO shall approve the invoice or voucher by noting on it the following:

Payment of $ ____________ is approved.

49.112-2 Final payment.

(a) Negotiated settlement. After execution of a settlement agreement, the contractor shall submit a

voucher or invoice showing the amount agreed upon, less any portion previously paid. The TCO shall

attach a copy of the settlement agreement to the voucher or invoice and forward the documents to

the disbursing officer for payment.

(b) Settlement by determination. If the settlement is by determination and-

(1) There is no appeal within the allowed time, the contractor shall submit a voucher or invoice

showing the amount determined due, less any portion previously paid; or

(2) There is an appeal, the contractor shall submit a voucher or invoice showing the amount finally

determined due on the appeal, less any portion previously paid. Pending determination of any

appeal, the contractor may submit vouchers or invoices for charges that are not directly involved

with the portion being appealed, without prejudice to the rights of either party on the appeal.

(c) Construction contracts. In the case of construction contracts, before forwarding the final

payment voucher, the contracting officer shall ascertain whether there are any outstanding labor

violations. If so, the contracting officer shall determine the amount to be withheld from the final

payment (see subpart 22.4).

(d) Interest. The Government shall not pay interest on the amount due under a settlement agreement

or a settlement by determination. The Government may, however, pay interest on a successful

contractor appeal from a contracting officer’s determination under the Disputes clause at 52.233-1.

49.113 Cost principles.

The cost principles and procedures in the applicable subpart of part 31 shall, subject to the general

principles in 49.201-

(a) Be used in asserting, negotiating, or determining costs relevant to termination settlements under

contracts with other than educational institutions, and

(b) Be a guide for the negotiation of settlements under contracts for experimental, developmental, or

research work with educational institutions (but see 31.104).

49.114 Unsettled contract changes.

(a) Before settlement of a completely terminated contract, the TCO shall obtain from the contracting
office a list of all related unsettled contract changes. The TCO shall settle, as part of final settlement,

all unsettled contract changes after obtaining the recommendations of the contracting office

concerning the changes.

(b) When the contract has been partially terminated, any outstanding unsettled contract changes

will usually be handled by the contracting officer. However, the contracting officer may delegate this

function to the TCO.

49.115 Settlement of terminated incentive contracts.

(a) Fixed-price incentive contracts. The TCO shall settle terminated fixed-price incentive (FPI)

contracts under the provisions of paragraph (j) of the clause at 52.216-16, Incentive Price RevisionFirm Target, and 52.249-2, Termination for Convenience of the Government (Fixed-Price).

(1) Partial termination. Under a partially terminated contract, the TCO shall negotiate a settlement

as provided in the termination clause of the contract, and paragraph (j) of the clause at 52.216-16,

Incentive Price Revision-Firm Target, or paragraph (1) of the clause at 52.216-17, Incentive Price

Revision-Successive Targets. The contracting officer shall apply the incentive price revision

provisions to completed items accepted by the Government, including any for which the contractor

may request reimbursement in the settlement proposal. The TCO shall reimburse the contractor at

target price for completed articles included in the settlement proposal for which a final price has not

been established. The TCO shall incorporate in the settlement agreement an appropriate reservation

as to final price for these completed articles.

(2) Complete termination. If any items were delivered and accepted by the Government, the

contracting officer shall establish prices under the incentive provisions of the contract. On the

terminated portion of the contract, the provisions of the termination clause (see 52.249-2,

Termination for Convenience of the Government (Fixed-Price)) shall govern and the provisions of the

incentive clause shall not apply. The TCO responsible for the termination settlement will ensure, on

the basis of evidence considered proper (including coordination with the contracting officer), that no

portion of the costs considered in the negotiations under the incentive provisions are included in the

termination settlement.

(b) Cost-plus-incentive-fee contracts. The TCO shall settle terminated cost-plus-incentive-fee

contracts under the clause at 52.249-6, Termination (Cost-Reimbursement).

(1) Partial termination. Under a partial termination, the TCO shall limit the settlement to an

adjustment of target fee as provided in paragraph (e) of the clause at 52.216-10, Incentive Fee. The

settlement agreement shall include a reservation regarding any adjustment of target cost resulting

from the partial termination. The contracting officer shall adjust the target cost, if required.

(2) Complete termination. The parties shall negotiate the settlement under the provisions of subpart 

49.3 and the clause at 52.249-6, Termination (Cost Reimbursement). The fee shall be adjusted on the

basis of the target fee, and the incentive provisions shall not be applied or considered.