49.107 Audit of prime contract settlement proposals and subcontract settlements
Source: FAR 49.107 on acquisition.gov
Settlement proposals at or above the certified cost or pricing data threshold must be audited, and both contractors and the government have defined roles in ensuring accurate and confidential reviews.
Overview
FAR 49.107 establishes the requirements for auditing prime contract settlement proposals and subcontract settlements following contract terminations. The section outlines when the Termination Contracting Officer (TCO) must refer settlement proposals to the appropriate audit agency, the procedures for handling proposals above and below the certified cost or pricing data threshold, and the responsibilities of both government and contractors in the audit process. It also addresses the handling of privileged information and the advisory nature of audit reports.
Key Rules
- Audit Referral Thresholds
- Prime contractor settlement proposals at or above the certified cost or pricing data threshold (see FAR 15.403-4(a)(1)) must be referred to the audit agency. Proposals below this threshold may be referred at the TCO’s discretion.
- Subcontract Settlement Audits
- Subcontract settlements must be referred for audit if they exceed the threshold or if the TCO deems a review advisable.
- Contractor and Subcontractor Responsibilities
- Prime contractors and subcontractors are responsible for their own accounting reviews, but the TCO may request a government audit under specific circumstances (e.g., competitive objections, efficiency, consistency, or financial interest).
- Audit Report Use and Confidentiality
- Audit reports are advisory and must be handled to protect privileged or sensitive information. The TCO may share audit reports with contractors when in the Government’s interest.
Responsibilities
- Contracting Officers (TCOs): Refer proposals for audit as required, specify relevant information, ensure desk reviews for lower-value proposals, and safeguard audit report confidentiality.
- Contractors: Perform required accounting reviews and field audits of their own and subcontractor proposals.
- Agencies: Conduct audits, provide written recommendations, and periodically review contractor audit procedures.
Practical Implications
- Ensures financial integrity and compliance in settlement proposals after contract terminations.
- Clarifies when audits are mandatory versus discretionary.
- Highlights the need for careful handling of sensitive audit information.
- Common pitfalls include failing to refer proposals for audit when required or mishandling privileged information.
(a) The TCO shall refer each prime contractor settlement proposal valued at or above the threshold for obtaining certified cost or pricing data set forth in FAR 15.403-4(a)(1) to the appropriate audit agency for review and recommendations. The TCO may submit settlement proposals of less than the threshold for obtaining certified cost or pricing data to the audit agency. Referrals shall indicate any specific information or data that the TCO considers relevant and shall include facts and circumstances that will assist the audit agency in performing its function. The audit agency shall develop requested information and may make any further accounting reviews it considers appropriate. After its review, the audit agency shall submit written comments and recommendations to the TCO. When a formal examination of settlement proposals valued under the threshold for obtaining certified cost or pricing data is not warranted, the TCO will perform or have performed a desk review and include a written summary of the review in the termination case file.
(b) The TCO shall refer subcontract settlements received for approval or ratification to the appropriate audit agency for review and recommendations when—
(1) The amount exceeds the threshold for obtaining certified cost or pricing data; or
(2) The TCO determines that a complete or partial accounting review is advisable. The audit agency shall submit written comments and recommendations to the TCO. The review by the audit agency does not relieve the prime contractor or higher tier subcontractor of the responsibility for performing an accounting review.
(c)
(1) The responsibility of the prime contractor and of each subcontractor (see 49.108) includes performance of accounting reviews and any necessary field audits. However, the TCO should request the Government audit agency to perform the accounting review of a subcontractor’s settlement proposal when-
(i) A subcontractor objects, for competitive reasons, to an accounting review of its records by an upper tier contractor;
(ii) The Government audit agency is currently performing audit work at the subcontractor’s plant, or can perform the audit more economically or efficiently;
(iii) Audit by the Government is necessary for consistent audit treatment and orderly administration; or
(iv) The contractor has a substantial or controlling financial interest in the subcontractor.
(2) The audit agency should avoid duplication of accounting reviews performed by the upper tier contractor on subcontractor settlement proposals. However, this should not preclude the Government from making additional reviews when appropriate. When the contractor is performing accounting reviews according to this section, the TCO should request the audit agency to periodically examine the contractor’s accounting review procedures and performance, and to make appropriate comments and recommendations to the TCO.
(d) The audit report is advisory only, and is for the TCO to use in negotiating a settlement or issuing a unilateral determination. Government personnel handling audit reports must be careful not to reveal privileged information or information that will jeopardize the negotiation position of the Government, the prime contractor, or a higher tier subcontractor. Consistent with this, and when in the Government’s interest, the TCO may furnish audit reports under paragraph (c) of this section to prime and higher tier subcontractors for their use in settling subcontract settlement proposals.