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  • Question

    Does this require a change of name agreement? Or can an admin mod be accomplished to "change" the legal name to the "dba" name? Thank you.


    Answer

    DBA (short for "doing business as") allows a contractor to legally do business as a particular name at minimal cost and without having to create an entirely new business entity. The contractor can accept payments, advertise, and otherwise present their business under that name.

    In accordance with FAR Part 42.1205, the contractor should have executed an "Agreement to Recognize the Contractor’s Change of Name" so that your contract/contract file is in sync with the name used in the CCR albeit they have just added the dba reference to their official name.

    In accordance with FAR Part 42.1204(b)

    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:

    (1) The document effecting the name change, authenticated by a proper official of the State having jurisdiction.

    (2) The opinion of the contractor’s legal counsel stating that the change of name was properly effected under applicable law and showing the effective date.

    (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. The contracting officer may request the total dollar value as amended and the remaining unpaid balance for each contract.

    b) The following suggested format for an agreement may be adapted for specific cases:

    Change-of-Name Agreement

    (a) The parties agree to the following facts:

    (1) The Government, represented by various Contracting Officers of the _______________ [insert name(s) of agency(ies)], has entered into certain contracts and purchase orders with the XYZ Corporation, namely: ____________ [insert contract or purchase order identifications]; [or delete "namely" and insert "as shown in the attached list marked "Exhibit A’’ and incorporated in this Agreement by reference.’’]. The term "the contracts," as used in this Agreement, means the above contracts and purchase orders and all other contracts and purchase orders, including all modifications, made by the Government and the Contractor before the effective date of this Agreement (whether or not performance and payment have been completed and releases executed if the Government or the Contractor has any remaining rights, duties, or obligations under these contracts and purchase orders).

    (2) The XYZ Corporation, by an amendment to its certificate of incorporation, dated ___________ 20_, has changed its corporate name to ABC Corporation.

    (3) This amendment accomplishes a change of corporate name only and all rights and obligations of the Government and of the Contractor under the contracts are unaffected by this change.

    (4) Documentary evidence of this change of corporate name has been filed with the Government.

    (b) In consideration of these facts, the parties agree that --

    (1) The contracts covered by this Agreement are amended by substituting the name "ABC Corporation" for the name "XYZ Corporation" wherever it appears in the contracts; and

    (2) Each party has executed this Agreement as of the day and year first above written.

    United States of America,

    By ____________________________________________

    Title ___________________________________________

    ABC Corporation,

    By ____________________________________________

    Title ___________________________________________

    [Corporate Seal]

    Certificate

    [Corporate Seal]

    I, ______, certify that I am the Secretary of ABC Corporation; that ___________, who signed this Agreement for this corporation, was then ___________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this _____________ day of____________ 20__.

    By ____________________________________________

    The ABC Corporation (Contractor), a corporation duly organized and existing under the laws of __________ [insert State], and the United States of America (Government), enter into this Agreement as of __________ [insert date when the change of name became effective under applicable State law].

    A novation agreement is unnecessary when there is a change in the ownership of a contractor as a result of a stock purchase, with no legal change in the contracting party, and when that contracting party remains in control of the assets and is the party performing the contract. However, whether there is a purchase of assets or a stock purchase, there may be issues related to the change in ownership that appropriately should be addressed in a formal agreement between the contractor and the Government (see

    42.1203(e)).

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