As prescribed in 232.1005-70(a), the contracting officer shall include the following clauses with appropriate fill-ins in solicitations and contracts that include performance-based payments:
(1) For performance-based payments made on a whole-contract basis, use the clause at 252.232-7012, Performance-Based Payments–Whole-Contract Basis.
PERFORMANCE-BASED PAYMENTS-WHOLE-CONTRACT BASIS (APR 2020)
(a) Performance-based payments shall form the basis for the contract financing payments provided under this contract, and shall apply to the whole contract. The performance-based payments schedule (Contract Attachment ____) describes the basis for payment, to include identification of the individual payment events, evidence of completion, and amount of payment due upon completion of each event.
(b) In accordance with 10 U.S.C. 2307(b)(4)(A), the Contractor’s financial statements shall be in compliance with Generally Accepted Accounting Principles in order to receive performance-based payments.
(c)(1) The Contractor shall, in addition to providing the information required by FAR 52.232-32, submit information for all payment requests using the following format:
| Current performance-based payment(s) event(s) addressed by this request: |
||
| Contractor shall identify— | Amount | Totals |
| (1a) Negotiated value of all previously completed performance-based payment(s) event(s); | ||
| (1b) Negotiated value of the current performance-based payment(s) event(s); | ||
| (1c) Cumulative negotiated value of performance-based payment(s) events completed to date (1a) + (1b); and | ||
| (2) Total costs incurred to date. | ||
(2) Incurred cost is determined by the Contractor’s accounting books and records, to which the Contractor shall provide access upon request of the Contracting Officer. An acceptable accounting system in accordance with DFARS 252.242-7006 is not required for reporting of incurred costs under this clause. If the Contractor’s accounting system is not capable of tracking costs on a job order basis, the Contractor shall provide a realistic approximation of the allocation of incurred costs attributable to this contract in accordance with the Contractor’s accounting system. FAR 52.232-32(m) does not require certification of incurred costs.
(d) Security for financing.
(1) Title to the property described in paragraph (f) of the clause at FAR 52.232-32, Performance-Based Payments, is the preferred security for receipt of performance-based payments.
(2)(i) If the Contractor’s accounting system is not capable of identifying and tracking through the build cycle the property that is allocable and properly chargeable to this contract, the Contracting Officer may consider acceptance of one or a combination of the following alternative forms of security sufficient to constitute adequate security for the performance-based payments and so specify in the contract, consistent with FAR 32.202-4:
(A) A paramount lien on assets.
(B) An irrevocable letter of credit from a federally insured financial institution.
(C) A bond from a surety, acceptable in accordance with FAR part 28.
(D) A guarantee of repayment from a person or corporation of demonstrated liquid net worth, connected by significant ownership interest to the Contractor.
(E) Title to identified Contractor assets of adequate worth.
(ii) Paragraph (f) of the clause at FAR 52.232-32 does not apply to the extent that the Contractor and the Contracting Officer agree on alternative forms of security. In the event the Contractor fails to provide adequate security, as required in this contract, no financing payment will be made under this contract. Upon receipt of adequate security, financing payments will be made, including all previous payments to which the Contractor is entitled, in accordance with the terms of the provisions for contract financing. If at any time the Contracting Officer determines that the security provided by the Contractor is insufficient, the Contractor shall promptly provide such additional security as the Contracting Officer determines necessary. In the event the Contractor fails to provide such additional security, the Contracting Officer may collect or liquidate such security that has been provided and suspend further payments to the Contractor; and the Contractor shall repay to the Government the amount of unliquidated financing payments as the Contracting Officer at his sole discretion deems repayable.
(End of clause)
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