(ii) the transfer of these assets to a merger or consolidation of a business; and under international law, Novation is the acquisition of territory by a sovereign state by “the gradual transformation of a right into territorio alieno in full sovereignty without any formal and unequivocal instrument in this sense.”  As noted above, the FAR requires the submission of three signed copies of the “proposed” innovation agreement. The FAR contains a standard agreement on refinancing for the award of government contracts. FAR 42.1204 (i). The standard form is required when the assignor and the assignor are capital companies and all the assets of the assignor are transferred. Id. The form can be adapted for use in other contexts, but the government will generally not accept any changes to keywords. Id. In our experience, proposing substantial changes to these conditions has only one other purpose than to delay the approval of the innovation agreement. FAR 42.1204 (e). The fourth category of information has a particular emphasis and explanation. Proof of the purchaser`s ability is your “sales interview” to convince the competent contract agent to process the innovation request. This evidence could include, without limitation, information on the taker`s financial stability, experience in similar work, the performance of other government missions, applicable certifications and certifications, audit systems, favourable audit history, holding relevant security clearances, management and other information focused on liability and ability to execute contracts in accordance with their requirements. Many of the provisions of the innovation agreement are what you would expect from consent to the transfer.
The ceding company renounces his contractual rights; The purchaser declares himself bound by a contract; The government recognizes that the purchaser is a thought-back who is of interest to the ceding company; The parties agree that it is the government that pays the purchaser and not the purchaser; And the treaties remain fully in force and effective. However, under the standard novation agreement, there are some unusual concepts that strongly favour the government. There are few things you can do to change these terms, but you need to be aware of their effects. Corporate equities such as acquisitions and mergers include a large number of innovation contracts, and this is a common method for restructuring credit debt. FAR 42.1204 (f). Most of this information is relatively simple and inexpensive to obtain. However, the demand for audited balance sheets can be heavy. Some contractors, including most small businesses, do not have audited accounts. The requirement for these contractors to obtain audited balance sheets would be costly and could also significantly delay the innovation process. As a result, many contract agents will waive this requirement and instead accept unverified balance sheets or other evidence that all assets have been transferred. Most novation requirements are approved. Contractors make little use of refusal.
If your application is rejected, the best course of action is normally that your lawyer should contact the Agency`s advisor to discuss the appropriateness of circumstances in which the government might accept the innovation. While a right to refuse an application for innovation may be a theoretical possibility, the likelihood of success would be very low because of the extraordinary discretion granted to contract agents in this area. This booking is the second in a series of 10 on the obvious problems encountered during the acquisition and disposition of a company conducting public contracts or subcontractors. The first part focused on the types of deal structures that are subject to anti-assignment statutes and therefore require government approval.