Can I make the name change on the contract under FAR 52.212-4(c) Changes? If not, what authority must I use?
The answer to your question regarding the clause to use for a modification to change the name is dependent on whether the action is in response to a change of name agreement or a novation agreement.
Open full Question Details
FAR 42.1204 covers novation agreements; which are the legal term defined at FAR 2.101 as:
"Novation agreement" means a legal instrument--
(1) Executed by the--
(i) Contractor (transferor);
(ii) Successor in interest (transferee); and
(iii) Government; and
(2) By which, among other things, the transferor guarantees performance of the contract, the transferee assumes all obligations under the contract, and the Government recognizes the transfer of the contract and related assets.
FAR 42.1204 specifies the rules and procedures for the Government to take when a Contractor notifies us of their sale or transfer (merger or consolidation) where the contracts that they hold will become the responsibility of a new contractor if the Government consents. The new contractor must agree under FAR 42.1204(i) to:
(2) The Transferee agrees to be bound by and to perform each contract in accordance with the conditions contained in the contracts. The Transferee also assumes all obligations and liabilities of, and all claims against, the Transferor under the contracts as if the Transferee were the original party to the contracts.
The change you describe appears to require a novation agreement. Both the contractor and contracting officer need to follow the procedures at FAR 42.12. The contracting officer must also comply with DFARS 242.12 and PGI 242.1203.
Also, legal counsel is required to review the novation agreement. We recommend the contracting office consult with legal counsel for any assistance and advice in processing this request and novation agreement.
Pursuant to FAR 42.1204(a), the Government may recognize a third party as the successor in interest to a Government contract when the third party's interest in the contract arises out of the transfer of--
(1) all the contractor's assets; or
(2) The entire portion of the assets involved in performing the contract...Examples of such transactions include, but are not limited to--
(i) The sale of all a contractor’s assets, or the entire portion of the assets involved in performing a contract with a provision for assuming liabilities;
(ii) The transfer of assets incident to a merger or corporate consolidation; and
(iii) The incorporation of a proprietorship or partnership, or formation of a partnership.
From the background (above), it appears Beckman Coulter will be taking on Siemens' Government contract as a result of the sale of its MicroScan Microbiology products. Based on this indicator, the Government should consider Beckman Coulter to be "third party as the successor of interest," which indicates the need for a Novation Agreement rather than a Change of Name Agreement. As indicated in the Novation Agreement format in FAR 42.1204, the Novation Agreement would apply to both Siemens, Beckman Coulter, and the Government, and must be signed by all three parties.
We recommend that you contact the:
a. A responsible DCMA Administrative Contracting Officer;
b. counsel from the office responsible for processing Novation Agreements for your
department, as stated in DFARS PGI 242.120;
c. your legal counsel
The following is for your information:
FAR Subpart 42.3 -- Contract Administration Office Functions
FAR 42.301 -- General
When a contract is assigned for administration under Subpart 42.2, the contract administration office (CAO) shall perform contract administration functions in accordance with 48 CFR Chapter I, … .
FAR 42.302 -- Contract Administration Functions
(a) The contracting officer normally delegates the following contract administration functions to a CAO.
(26) Process and execute novation and change of name agreements under Subpart 42.12.
FAR Subpart 42.12 -- Novation and Change-of-Name Agreements
FAR 42.1202 -- Responsibility for Executing Agreements
The contracting officer responsible for processing and executing novation and change-of-name agreements shall be determined as follows:
(a) If any of the affected contracts held by the transferor have been assigned to an administrative contracting officer (ACO) (see 2.1 and 42.202), the responsible contracting officer shall be –
(1) This ACO; or
(2) The ACO responsible for the corporate office, if affected contracts are in more than one plant or division of the transferor.
(b) If none of the affected contracts held by the transferor have been assigned to an ACO, the contracting officer responsible for the largest unsettled (unbilled plus billed but unpaid) dollar balance of contracts shall be the responsible contracting officer.
(c) If several transferors are involved, the responsible contracting officer shall be –
(1) The ACO administering the largest unsettled dollar balance; or
(2) The contracting officer (or ACO) designated by the agency having the largest unsettled dollar balance, if none of the affected contracts have been assigned to an ACO.
FAR 42.1203 -- Processing Agreements
(a) If a contractor wishes the Government to recognize a … a name change, the contractor must submit a written request to the responsible contracting officer (see 42.1202).
(b) The responsible contracting officer shall --
(1) Identify and request that the contractor submit the information necessary to evaluate the proposed agreement for … a name change.
(2) Notify each contract administration office and contracting office affected by a proposed agreement … .
(h) Following distribution of the agreement, the responsible contracting officer shall --
(1) Prepare a Standard Form 30, Amendment of Solicitation/Modification of Contract, incorporating a summary of the agreement and attaching a complete list of contracts affected;
(4) Send a copy of this Standard Form 30 with attached list to each contract administration office or contracting office involved, which shall be responsible for further appropriate distribution.
FAR 42.1205 -- Agreement to Recognize Contractors Change of Name
(a) If only a change of the contractor’s name is involved and the Government’s and contractor’s rights and obligations remain unaffected, the parties shall execute an agreement to reflect the name change. The contractor shall forward to the responsible contracting officer three signed copies of the Change-of-Name Agreement, and one copy each of the following:
(3) A list of all affected contracts and purchase orders remaining unsettled between the contractor and the Government, showing for each the contract number and type, and name and address of the contracting office.
2. There appears to be two issues contained if this inquiry is concerning the execution of change of name agreements: (1) is there one Government organization who can execute the agreement on behalf of all of the agencies that have contracts with the company, and (2) do separate modifications need to be executed for each individual contract?
3. First, pursuant to FAR 42.301 and FAR 42.302(a)(26), the cognizant Contract Administration Office (CAO) is the single Government organization responsible for processing and executing change of name agreements under FAR Subpart 42.12 on the behalf all affected Government contracting offices. The responsible CAO and, hence the responsible Contracting Officer, is determined in accordance with the procedures specified in FAR 42.1202 as described above. So for example, pursuant to FAR 42.1202(c)(1), if the Defense Contract Management Agency (DCMA) is the responsible Administrative Contracting Office (ACO) administering the largest unsettled dollar balance of all of the company’s contracts, then the cognizant DCMA office would be the single organization responsible for executing the change of name agreement with the contractor on the behalf of all affected Government contracts.
4. Second, pursuant to FAR 42.1203(h)(1), the responsible Contracting Officer would issue a single contract modification (i.e., SF30) implementing the change of name agreement with the contractor which would include a complete list of all of the contracts affected across the Federal Government. Furthermore, pursuant to FAR 42.1203(h)(4), the responsible Contracting Officer would send a copy of this single SF30 that modifies the attached contract list to each contract administration office or contracting office involved, which shall be responsible for further appropriate distribution.
5. Finally, it is the contractor’s responsibility to request approval of a change of name agreement. Pursuant to FAR 42.1205(a)(3), we believe that it is incumbent upon the contractor to at least initially determine the responsible CAO based on the criteria set forth in FAR 42.1202, given that they possess the requisite information needed to make this assessment, and then submit the request to that CAO along with the list of all affected contracts and purchase orders remaining unsettled between the contractor and all Government agencies, showing for each the contract number and type, and name and address of the contracting office. Therefore, we recommend that the requester’s contracting office ask the contractor to take that action.