Page images
PDF
EPUB

§1-30.528 Consideration for amendments

providing for progress payments.

Contracts may not be modified except in the interest of the Government. Contracts which do not provide for progress payments may be amended to provide for progress payments only when the amendment provides new and valuable consideration moving to the Government. Appropriate price reduction may provide this consideration. In the varying circumstances of individual cases, the consideration for progress payments need not necessarily be monetary. Agreements by the contractor, incorporated in such an amendment, for the benefit of and substantially advantageous to the Government, may constitute sufficient consideration for an amendment providing for progress payments. When estimated financing costs have been included as an element (whether or not identified) in the contract price of a contract not providing for progress payments, it is fair to expect elimination of the applicable portion of that element of the price when progress payments are provided by amendment. The fair and reasonable consideration for the progress payment amendment should approximate in value as nearly as practically ascertainable the amount by which the con

tract price would have been smaller if a Progress Payments clause had been contained in the contract in the first instance. In the absence of definite information on this point, pertinent factors for estimating the fair and reasonable amount of consideration would include (a) the amounts of progress payments expected to be outstanding for an estimated period of time, (b) the cost of equivalent working funds to the contractor, and (c) the estimated profit rate expected to be earned by contract performance. If not accomplished by a contract price reduction, other concessions or agreement by the contractor, advantageous to the Government and incorporated in the amendment, may be fairly evaluated and accepted as being of value reasonably equivalent to a price reduction. This consideration should be such as is fair, equitable and reasonable in the light of the circumstances of each case. (See § 1-30.527.) This consideration should be for the progress payment amendment, and there shall be no provision for interest or other specific charge for progress payments, or for a reduction in payments after the progress payment amendment (other than any agreed discount for prompt payment) by reason of the making of progress payments.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small]

I CERTIFY THAT THE ABOVE STATEMENT (With attachments) HAS BEEN PREPARED FROM THE BOOKS AND RECORDS OF THE ABOVE NAMED CON-
TRACTOR IN ACCORDANCE WITH THE CONTRACT AND THE INSTRUCTIONS HEREON, AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, THAT IT IS
CORRECT, THAT ALL THE COSTS OF CONTRACT PERFORMANCE (Except as herewith reported in writing) HAVE BEEN PAID OR WILL BE PAID CURRENT-
LY, BY THE CONTRACTOR, WHEN DUE, IN THE ORDINARY COURSE OF BUSINESS, THAT THE WORK REFLECTED ABOVE HAS BEEN PERFORMED, THAT
THE QUANTITIES AND AMOUNTS INVOLVED ARE CONSISTENT WITH THE REQUIREMENTS OF THE CONTRACT, THAT THERE ARE NO ENCUMBRANCES
(oncept a reported in writing herewith, or an previous progress payment requee! No.
AGAINST THE PROPERTY ACQUIRED OR PRODUCED FOR AND AL-

LOCATED OR PROPERLY CHARGEABLE TO THE CONTRACT WHICH WOULD AFFECT OR IMPAIR THE GOVERNMENT'S TITLE, THAT THERE HAS BEEN NO
MATERIALLY ADVERSE CHANGE IN THE FINANCIAL CONDITION OF THE CONTRACTOR SINCE THE SUBMISSION OF THE MOST RECENT WRITTEN INFORMA
TION DATED
OR IN THE STATUS OF CONTRACT PERFORMANCE SINCE THE SUBMISSION OF THE MOST RECENT WRITTEN
INFORMATION DATED
BY THE CONTRACTOR TO THE GOVERNMENT IN CONNECTION WITH THE CONTRACT, AND THAT AFTER
THE MAKING OF THE REQUESTED PROGRESS PAYMENT THE UNLIQUIDATED PROGRESS PAYMENTS WILL NOT EXCEED THE MAXIMUM UNLIQUIDATED
PROGRESS PAYMENTS PERMITTED BY THE CONTRACT.

[blocks in formation]
[blocks in formation]

SFCTION II- GENERAL INSTRUCTIONS DATES Spaces are provided in the heading of Section II for the eatry of two dates. In the first space, enter the date of the first incurrence of costs of performance of the kind eligible for progress payments under the contract. In the second space, enter the date through which such costs have been accumulated for inclusion in this request and are therefore shown individually, as applicable item entries in Sections II and III.

LIMITED COSTS BASIS-Cenain contracte limit the progress payment base to incurred costs of direct labor and/or direct material or other specified costs which are less than incurred "Total costs". Then the contract includes Buch limitations only those costs eligible for progress payments under the contract are to be identified and reported in Section II.

ITEM 7-1-11 applicable, enter the rate used in computing general and administrative empenses and the computed dollar amount.

ITEM 78Self-explanatory.

ITEM & Enter the percentage figure for progress paymence ocated in the contract (Paragraph (a) (1) (i) of the uniform progress payment clause) and the computed dollar amount based on that percentage, i.e., the com puted dollar amount of the entry in Item 7g.

ITEMS AND 10 Make no entry unless the contract requires progress payments to the contractor on account of progress payments to subcontractors. Include only progress payments on subcontracts which ovform to the progress payment provisions of the prime contract.

ITEM 9. Eater only progress payments actually paid.

ITEM 9. Enter total progress payments recouped from subcontractors. ITEM c Self-explanatory.

ITEM 9 d. Make no entry unless the prime contract specifies progress payments on account of unpaid subcontract progress payment billings which have been approved for current payment in the ordinary course of business. Include only such approved unpaid invoices.

ITER 10 Self-explanatory.

ITEM 11 Self-explanatory.

ITEM 11b Enter the percentage stated in the contract which limits aggregate progress payments (Paragraph (e) (4) of the uniform progress payment clause) which can be made and compute the dollar amount based on that percentage, i.e., the computed dollar amount of the entry in item 30.

ITEM 11c Self-explanatory.

ITEMS 12 AND 13 Self-explanatory.

[graphic]

SECTION III GENERAL INSTRUCTIONS This section is to be com pleted only when specifically requested by Government personnel responsible for administration of the contract. Completion of this sec tion will be reque when the rate or quality of contract performance is not eationsryhen there is reason to believe that: (a) the con ma involve pas to the contractor; or (b) insufficient costs delivered items; or (c) outstanding progress pay

may exceed fair value of the work accomplished on the deliere portion of the contract or (2) the applicable percentage of allocated to unfinished work.

SPECIME

TOTAL COST BASIS Certain contracte provide that the pre base will be total incurred costs. In such casestopal penses incurred for performance of the contract hich

cable to the contract, consistent with sound and geallcepted accounting principles and practices, and which are not otheruded by the contract. (For exclusions, see the progress payment claus of the contract.)

MANUFACTURING AND PRODUCTION EXPENSE: GENERAL AND ADMINISTRATIVE EXPENSE Under certain conditions, eligible incured costs include manufacturing and production expenses and general and administrative expenses which have been incurred for performance of the contract which are reasonable, allocable to the contract, and consistent with sound and generally accepted accounting principles and practices.

(NOTE: In connection with the first progress payment request on a contract, attach an explanation of the method, bases and period used In determining the amount of each of these two types of expenses. Il the method, bases or periods used for computing these expenses differ in subsequent requests for progress payments under the contract, attach an explanation of such changes to the progress payment re queat involved.)

INCURRED COSTS INVOLVING SUBCONTRACTORS If the incurred costs eligible for progress payments under the contract include costs shown on invoices of subcontractors, suppliers and others that portion of the costs computed on the basis of such invoices can only include costs for: (1) completed work to which the prime contractor has acquired title; (2) materials delivered to which the prime contractor has acquired tide; (3) services rendered; and (4) costs billed under cost reimbursement or time and material subcontracts for work to which the prime contractor has acquired title.

SECTION II SPECIFIC INSTRUCTIONS

ITEM 7 COSTS ELIGIBLE UNDER PROGRESS PAYMENT CLAUSE - Costa to be shown in items 7a through 7g are not to include advance payments, down payments, deposits, or progress payments made or to be made to subcostractors, suppliers or others.

ITEM 7 and b. If applicable, enter the direct material and direct laber costa.

ITEM 7 c. If applicable, enter the rate used in computing manufacturing and production expenses and the computed dollar amount.

ITEM 7 d. Fnter the total of all other direct costs. Attach a separate statement identifying each such cost and the amount thereof.

ITEM 7. Self-explanatory.

SECTION I SPECIFIC INSTRUCTIONS

ITEM 14 Of the costs reported in Item 7g, compute and enter only come which are applicable to items delivered, invoiced and accepted to the applicable date. In order of preference, these costs are to be computed on the basis of one of the following: (a) the actual unit cost of items delivered, giving proper consideration to the deferment of the starting load costs; (b) projected unit costs (based on experienced costs, plus estimated costa to complete the contract), where the con tractor maintains cost data which will clearly establish the reliability of such estimates; and (c) the total contract price of items delivered. ITEM IS Self-explanatory.

ITEM 16 Enter the percentage stated in the contract limiting unliquideted progress payments in relation to eligible coms (Paragraph (a)(3)(1) of the unilem progress payment clause). Compute and enter the dollar amount based on that percentage, i.e., the percentage of the entry in item

15.

ITEM 17 Enter the total billing price, as adjusted, of items delivered, accepted and invoiced to the applicable date.

ITEMS 18 AND 19 Self-explanatory.

ITEM 20 This entry is to be completed from the contractor's records. It is the total of all amounts which have been or are to be applied from previous billings to reduce outstanding progress payments, including amounts, if any, of payments OTHER than those applied from previous billings. (NOTE: If the entry includes reductions effected by means other than through previous billings, attach a statement showing details thereof.)

ITEM 21 Self-explanatory.

ITEM 22. Self-explanatory.

ITEM 22 Enter the percentage stated in the contract, limiting unliquidated progress payments to that percentage of the contract price of items which have not been delivered and accepted (Paragraph (a)(3)(ii) of the uniform progress payment clause).

ITEM 22c Self-explanatory. (NOTE: If the entry in this item is less then the entry in item 21, there has been an overpayment which requires adjustment.)

ITEM 23 Self-explanatory.

Subpart 1-30.6-[Reserved]

Subpart 1-30.7—Assignment of Claims

§ 1-30.700 Scope of subpart.

This subpart prescribes the policies and procedures relating to the assignment of claims of money due or to become due under Government contracts.

§ 1-30.701 General.

The Assignment of Claims Act of 1940, as amended, 54 Stat. 1029, 65 Stat. 41 (31 U.S.C. 203, 41 U.S.C. 15), hereafter referred to in this Subpart 1-30.7 as the Act, permits the assignment to a bank, trust company, or other financing institution, including any Federal lending agency of moneys due or to become due from the United States under a contract providing for payments aggregating $1,000 or more, provided the conditions specified in the Act, as set forth in § 1-30.702, are met. The Act further provides that an assignee receiving payment under an assignment is not, by reason of any liability of the assignor to the United States or any department or agency thereof, whether arising from or independently of the assigned contract, obligated or liable to make restitution, refund or repayment to the United States. Also, under the Act, the contracts of certain specified agencies, and other agencies designated by the President, may in time of war or national emergency, provide that payments made thereunder to an assignee shall not be subject to reduction or set-off for any liability of the assignor arising independently of the assigned contract.

§ 1-30.702 Conditions governing assignment of claims.

Moneys due or to become due from the United States, or any agency or department thereof under a contract, may be assigned under the following conditions:

(a) The contract provides for payments aggregating $1,000 or more;

(b) The payments are assigned to a bank, trust company, or other financ

ing institution, including any Federal lending agency;

(c) The contract does not forbid assignment;

(d) Unless otherwise expressly permitted by the contract any assignment shall cover all amounts payable under the contract and not already paid, shall not be made to more than one party, and shall not be subject to further assignment, except that any assignment may be made to one party as agent or trustee for two or more parties participating in the financing; and

(e) That in the event of any assignment, the assignee shall file written notice of the assignment, together with a true copy of the instrument of assignment with (1) the contracting officer or the head of his department or agency; (2) the surety or sureties upon the bond or bonds, if any, in connection with the assigned contract; and (3) the disbursing officer, if any, designated in the assigned contract to make payment.

§ 1-30.703 Contract clause-assignment of claims.

The following clause shall be inserted in all contracts except it is not required to be used in construction contracts estimated not to exceed $10,000:

ASSIGNMENT OF CLAIMS

(a) Pursuant to the provisions of the Assignment of Claims Act of 1940, as amended (31 U.S.C. 203, 41 U.S.C. 15), if this contract provides for payments aggregating $1,000 or more, claims for moneys due or to become due the Contractor from the Government under this contract may be assigned to a bank, trust company, or other financing institution, including any Federal lending agency, and may thereafter be further assigned and reassigned to any such institution. Any such assignment or reassignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in such financing. Unless otherwise provided in this contract, payments to an assignee of any moneys due or to become due under this contract shall not, to the extent provided in said Act, as amended, be subject to reduction or setoff. (The preceding sentence applies only if this contract is made in time of war or national emergency as defined in

said Act and is with the Department of Defense, the General Services Administration, the Energy Research and Development Administration, the National Aeronautics and Space Administration, the Federal Aviation Administration, or any other department or agency of the United States designated by the President pursuant to Clause 4 of the proviso of section 1 of the Assignment of Claims Act of 1940, as amended by the Act of May 15, 1951, 65 Stat. 41.)

(b) In no event shall copies of this contract or of any plans, specifications, or other similar documents relating to work under this contract, if marked "Top Secret," "Secret," or "Confidential," be furnished to any assignee of any claim arising under this contract or to any other person not entitled to receive the same. However, a copy of any part or all of this contract so marked may be furnished, or any information contained therein may be disclosed, to such assignee upon the prior written authorization of the Contracting Officer.

The last two sentences of paragraph (a) of the foregoing clause shall be deleted from contracts entered into with foreign contractors and may, in accordance with agency procedures, be deleted in other cases where special circumstances make it advisable in the best interests of the Government. [41 FR 19317, May 12, 1976]

[blocks in formation]

There are no forms prescribed for use as an instrument of assignment or as a notice of assignment; however, the following is a suggested format for use by the assignee in providing the notice of the assignment as required by § 1-30.702(e).

NOTICE OF ASSIGNMENT
Date

To: (Address to one of the parties specified in § 1-30.702(e))

This has reference to Contract No. dated entered into between (contractor's name and address) and (Government Agency, Name of Office, and address), for (describe nature of the contract).

PLEASE TAKE NOTICE that moneys due or to become due under the contract described above have been assigned to the undersigned pursuant to the provisions of the Assignment of Claims Act of 1940, as amended, 54 Stat. 1029; 65 Stat. 41 (31 U.S.C. 203, 41 U.S.C. 15).

A true copy of the instrument of assignment executed by the contractor on (Date) is attached to the original hereof.

[blocks in formation]

On behalf of

-a.m.

(p.m.) on

(Signature)

(Title)

(Name of addressee of this notice)

§ 1-30.705 Filing notice of assignment and the instrument of assignment.

The assignee should address a notice of assignment to each of the parties specified in § 1-30.702(e) and file with each party four signed copies of the notice, together with one true copy of the instrument of assignment (a certified true duplicate or a photostatic copy of the original). If a disbursing officer is not designated in the contract to make payment, it is not necessary that the notice be filed with any agency or department official other than the contracting officer or the head of his department or agency.

« PreviousContinue »