48 CFR 31.205-47 - Costs related to legal and other proceedings.

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31.205-47 Costs related to legal and other proceedings.
(a) Definitions. As used in this subpart—
Costs 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 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 proceedings.
Fraud, as used in this subsection, 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., sections 3729-3731, or the Anti-Kickback Act, 41 U.S.C., sections 51 and 54.
Penalty, does not include restitution, reimbursement, or compensatory damages.
Proceeding, includes an investigation.
(b) In accordance with 41 U.S.C. 4310 and 10 U.S.C. 2324(k), costs incurred in connection with any proceeding brought by a Federal, State, local, or foreign government, or by a contractor or subcontractor employee submitting a whistleblower complaint of reprisal in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409, for violation of, or a failure to comply with, law or regulation by the contractor (including its agents or employees), or costs incurred in connection with any proceeding brought by 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 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. 2409, 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;
(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 subparagraphs (b) (1) through (3) of this subsection (but see paragraphs (c) and (d) of this subsection); or
(5) Not covered by subparagraphs (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 subparagraphs (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 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) 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 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.
(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
(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—
(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 under section 2 of the Major Fraud Act of 1988 where the contractor 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 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 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.
(7) Representation of, or assistance to, individuals, groups, or legal entities which the contractor 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.
(g) Costs which may be unallowable under 31.205-47, including directly associated costs, shall be segregated and accounted for by the contractor separately. During the pendency of any proceeding covered by paragraph (b) and subparagraphs (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 to repay all unallowable costs, plus interest, if the costs are subsequently determined to be unallowable.
[48 FR 42301, Sept. 19, 1983, as amended at 51 FR 12302, Apr. 9, 1986; 54 FR 13024, Mar. 29, 1989; 55 FR 52794, Dec. 21, 1990; 61 FR 41477, Aug. 8, 1996; 63 FR 58600, Oct. 30, 1998; 65 FR 80265, Dec. 20, 2000; 66 FR 17754, 17756, Apr. 3, 2001; at 66 FR 2131, Jan. 10, 2001; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66990, Dec. 27, 2001; 67 FR 43514, June 27, 2002; 78 FR 60172, Sept. 30, 2013]

Title 48 published on 2013-10-01

The following are only the Rules published in the Federal Register after the published date of Title 48.

For a complete list of all Rules, Proposed Rules, and Notices view the Rulemaking tab.

  • 2014-07-25; vol. 79 # 143 - Friday, July 25, 2014
    1. 79 FR 43589 - Federal Acquisition Regulation; Allowability of Legal Costs for Whistleblower Proceedings
      GPO FDSys XML | Text
      DEPARTMENT OF DEFENSE, GENERAL SERVICES ADMINISTRATION, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
      Final rule.
      Effective: July 25, 2014.
      48 CFR Part 31

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United States Code
U.S. Code: Title 10 - ARMED FORCES

§ 2301 - Repealed.

§ 2302 - Definitions

§ 2302a - Simplified acquisition threshold

§ 2302b - Implementation of simplified acquisition procedures

§ 2302c - Implementation of electronic commerce capability

§ 2302d - Major system: definitional threshold amounts

§ 2303 - Applicability of chapter

§ 2303a - Repealed.

§ 2304 - Contracts: competition requirements

§ 2304a - Task and delivery order contracts: general authority

§ 2304b - Task order contracts: advisory and assistance services

§ 2304c - Task and delivery order contracts: orders

§ 2304d - Task and delivery order contracts: definitions

§ 2304e - Contracts: prohibition on competition between Department of Defense and small businesses and certain other entities

§ 2305 - Contracts: planning, solicitation, evaluation, and award procedures

§ 2305a - Design-build selection procedures

§ 2306 - Kinds of contracts

§ 2306a - Cost or pricing data: truth in negotiations

§ 2306b - Multiyear contracts: acquisition of property

§ 2306c - Multiyear contracts: acquisition of services

§ 2307 - Contract financing

§ 2308 - Buy-to-budget acquisition: end items

§ 2309 - Allocation of appropriations

§ 2310 - Determinations and decisions

§ 2311 - Assignment and delegation of procurement functions and responsibilities

§ 2312 - Remission of liquidated damages

§ 2313 - Examination of records of contractor

§ 2313a - Defense Contract Audit Agency: annual report

§ 2314 - Laws inapplicable to agencies named in

§ 2315 - Law inapplicable to the procurement of automatic data processing equipment and services for certain defense purposes

§ 2316 - Disclosure of identity of contractor

§ 2317 - Repealed.

§ 2318 - Advocates for competition

§ 2319 - Encouragement of new competitors

§ 2320 - Rights in technical data

§ 2321 - Validation of proprietary data restrictions

§ 2322 - Repealed.

§ 2323 - Contract goal for small disadvantaged businesses and certain institutions of higher education

§ 2323a - Credit for Indian contracting in meeting certain subcontracting goals for small disadvantaged businesses and certain institutions of higher education

§ 2324 - Allowable costs under defense contracts

§ 2325 - Restructuring costs

§ 2326 - Undefinitized contractual actions: restrictions

§ 2327 - Contracts: consideration of national security objectives

§ 2328 - Release of technical data under Freedom of Information Act: recovery of costs

§ 2329 - Repealed.

§ 2330 - Procurement of contract services: management structure

§ 2330a - Procurement of services: tracking of purchases

§ 2331 - Procurement of services: contracts for professional and technical services

§ 2332 - Share-in-savings contracts

§ 2333 - Joint policies on requirements definition, contingency program management, and contingency contracting

§ 2334 - Independent cost estimation and cost analysis

§ 2335 - Prohibition on collection of political information

§ 2336 - Intergovernmental support agreements with State and local governments

§ 2337 - Life-cycle management and product support

U.S. Code: Title 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS
U.S. Code: Title 51 - NATIONAL AND COMMERCIAL SPACE PROGRAMS

Title 48 published on 2013-10-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 48 CFR 31 after this date.

  • 2014-07-25; vol. 79 # 143 - Friday, July 25, 2014
    1. 79 FR 43589 - Federal Acquisition Regulation; Allowability of Legal Costs for Whistleblower Proceedings
      GPO FDSys XML | Text
      DEPARTMENT OF DEFENSE, GENERAL SERVICES ADMINISTRATION, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
      Final rule.
      Effective: July 25, 2014.
      48 CFR Part 31