Government Contract FAR Novation Agreements FAR 42.1204

Theodore P. Watson, Esq. ( Federal FAR. Novation of Contract Law Lawyer)

Are you a federal government contractor who needs help navigating the complex process of novating contracts? Or maybe you’re a business owner facing the daunting task of novating contracts during a purchase or sale. Whatever your situation, we’re here to help.

Our team of experienced government novation contract lawyers is well-versed in the specific requirements outlined in FAR Part 42. We can guide you through the process and ensure that all necessary steps are taken to successfully novate your federal contracts.

Don’t let the stress and confusion of novating contracts hold you back. With our expertise, you can rest easy knowing that your contracts are in good hands. Whether you’re a small business or a larger company, we have the knowledge and resources to help you achieve your goals.

Contact us today to schedule a consultation with one of our skilled government novation contract lawyers. Let us help you navigate the complex world of federal contracts and novation requirements.

Get a better grasp on how to prepare for the government contract novation process and increase your chances of getting the contracting officer to approve your novation agreement. 

The bottom line with any sale of a business involving federal contracts there is nothing guaranteed from the government under The Federal Acquisition Regulations  (FAR 42.12) that the novation of the contract will be approved.

The responsible contracting officer does not have to automatically approve your novation of contract. This shocks everyone upfront but it’s the truth.

Well, you may say why not? The reality is that after going through a substantial amount of man-hours to evaluate your initial government contract and award it to you, it would meaningless to simply accept a new party to the contract without any level of concern. Under the FAR novation process, the agency may choose whether or not to allow novated contracts depending upon whether or not it’s in the government’s best interest.

In the eyes of the federal government, when you novate a contract, there is a potential risk to contract performance or other common problems.  The critical concern is that you do not want to get involved with allegations of violating the Anti-Assignment Act.

Procurement regulations and government contract novation law do not allow you to just sell government contracts. However, the government does realize that companies are sold and bought. Therefore, there is a level of assessment and approval that is carved out in the Federal Acquisition Regulations.

• Increasing your chances of approval simply means understanding how the novation game is played.
• You want to have an attorney that understands your state law requirements but also has a FAR novation agreement lawyer
  overseeing the entire purchase or sale.
• Developing a strategic approach for your particular set of facts is critical.

Definition of Government Novation Contracts

  Government novation contracts refer to the process of transferring the contractual rights and obligations from one party to another in a government contract.

Importance of Government Novation Contracts

        Novation contracts are essential in cases where there is a change of ownership or transfer of assets, such as in mergers and acquisitions, bankruptcies, or any other situation that results in a change of control of the contracting entity.

Understanding FAR Novation Contracts

        Novation contracts are a legal process of transferring the contractual rights and obligations of one party to another. Novation contracts require the consent of all parties involved.

Types of Novation Contracts

        There are two types of novation contracts, legal and equitable. Legal novation is when the original contract is terminated, and a new contract is created between the new parties. Equitable novation is when the parties agree to modify the existing contract to include the new party.

Difference between Contract Novation and Assignment

        Novation differs from an assignment in that an assignment, the original party remains a party to the contract, while in novation, the original party is completely replaced by the new party.

When are Novation Contracts Required

Change of Ownership

  FAR Novation contracts are required when there is a change of ownership in the contracting entity. This could be in cases of mergers and acquisitions, buyouts, or other similar situations.

Transfer of Assets

        When there is a transfer of assets that is part of the contract, novation contracts are required to ensure the continuity of the contract.

Mergers and Acquisitions

        In mergers and acquisitions, the acquiring company becomes the new contracting party and assumes the rights and obligations of the original contracting party.

Bankruptcy

        In cases of bankruptcy, novation contracts may be required to ensure that the contract is still performed.

What is the Novation of Contract Process Under FAR Part 42?

        Under FAR Part 42, the novation process is a five-step process that involves obtaining consent from all parties to the contract, providing written notification of the novation and its terms to all parties, obtaining releases from all previous contracting parties, and finally registering the new agreement with the Federal Government. This process provides assurance that the original obligations of the contracting parties are still enforced, and that any changes that have occurred are documented and accepted. Additionally, this process provides a mechanism for protecting the interests of all parties to the contract. 

It is important to note, however, that FAR Part 42 only applies to federal contracts. If a novation involves state or local governments or private entities, it may be necessary to adhere to different requirements and procedures. Additionally, if a contract is modified or terminated, it will likely require the approval of all parties before any changes can take effect. Finally, depending upon the terms of the original agreement, some contractual obligations may not be able to be changed without the consent of all parties involved. 

 FAR Novation of Contract? What Does Novation Mean?

 The government contract novation process is sometimes required when the buyer of an existing contractor firm assumes an obligation to pay or perform under the terms of the original agreement. 

According to the free dictionary website, (novation definition dictionary), novation of contract means “the substitution of a new contract for an old one. Under the contract novation definition, the new contract extinguishes the rights and obligations that were in effect under the old agreement.  

A novated contract ordinarily arises when a new individual assumes an obligation to pay that was incurred by the original party to the contract.  Companies dealing with Federal Government contracts should understand the difference between the novation of contracts and the assignment of contract requirements.

• In the commercial world, a novation revokes and discharges a prior contract. However, under Federal Acquisition Regulation FAR 42.1204, government contract novation means that the agency finds it in its best interest to approve a novation. FAR 42 is considered the source of federal contract novation law.

Under the FAR novation definition, whether or not you are a small business can make a difference in how the process works. This is especially true when seeking to novate contracts under the SBA 8(a) Program, Service Disabled Veteran contracts or HUBZone contract novations.

• Buyers and sellers should be extremely careful to not assume that the government has to accept the business sale. There is no automatic legal right to novate contracts with federal projects.

REALISTIC EXPECTATIONS FROM THE CONTRACTING OFFICER?

The government contract novation process is not set in stone, the FAR novations contracts law regulations cover the basic checklist requirements. However, federal novation law is predicated on the “government’s best interest.” Therefore, the contracting officer may require various documents that the FAR may not point to. With that said, the government can recognize a third party in interest when there is a legitimate sale of the business and it’s within the best interest of the government to approve the novation.

• Having a clear understanding of why certain documents may be relevant is critical to your understanding of the contract novation process.
• Understand that the contracting officer has vast discretion to approve or not approve your contract novation agreement.

THE GOVERNMENT’S INTEREST IS PARAMOUNT WHEN IT COMES TO A GETTING A NOVATED CONTRACT

Federal procurement law under 41 USC 6305 which prohibits the transfer of government projects to a third party requires the agency first to decide whether the contract novation is in the government’s interest to novate contracts.

• The government can refuse to approve your novations contracts and still hold you liable for the performance of the project.
• Although the contracting officer requires proof of the sales transaction, you may want to have some level of finality conditioned upon the government’s acceptance and approval.
• Understand the difference between novation and assignment of contract terms.
• If you continue to sell the company without an approved government novations contract, the government may essentially issue you a termination for default. 
• Does your novation agreement have a way out if the contracting officer fails to approve the agreement?

DOES YOUR SITUATION REQUIRE FAR NOVATION AGREEMENTS?

FAR 42.1204(a) states that when dealing with an assignment of contract transaction, “novation contract agreements” with the Government are required if a federal contractor transfers all of the assets involved in performing a Federal Government contract, including:

•  the sale of these assets with a provision for assuming liabilities;
•  the transfer of these assets incident to a merger or corporate consolidation; or
•  the contribution of these assets in connection with the formation of a new business entity.

An assignment and novation contracts are also required if a forward merger or asset purchase sale results in the transfer of a Government contract or all of the assets involved in performing the particular contract.

Under the FAR novation of contract definition, the big problem for most companies occurs when attempting to simply transfer government contracts with nothing else. This can create a risk for the government.

AFTER YOUR PURCHASE AN EXISTING BUSINESS DO YOU LOSE ALL RIGHTS TO EXISTING CLAIMS AGAINST THE GOVERNMENT?

Some companies make the mistake of drafting their own novation agreements and then hope that the language of the novation agreement closely tracks the suggested format contained in FAR Part 42.1204 transfer by novation clause. This can prove to be fatal.  When filing a claim under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101 et seq., the Board of Contract Appeal’s  jurisdiction extends only to appeals brought by a “contractor.” A “contractor” is defined as “a party to a Government contract other than the Government.” 41 USC 7101(7). See CPARS Ratings, Fapiis Past Performance and Contractor Integrity Data – What Every Federal Government Contractor Needs to Know.

As a successor in interest under a novation agreement, pursuant to which it is “entitled to all the rights” of its predecessor as if it were “the original party”
to the contract, your company may be recognized by the government as the successor in interest for all purposes, including the right to pursue any claims its predecessor could have pursued. See Vought Aircraft Company, ASBCA No. 47357, 95-1 BCA ,r 27,421 at 136,666. If the government specifically states that it recognizes your company as a successor in interest, then you should be able to bring a claim against the government that accrued before the novation occurred.

THINGS TO CONSIDER

 When deciding to execute an asset purchase agreement to novate contracts, you might want to consider the following:

• If the only asset being transferred is the contract, then the government may decide that you are violating the Anti-Assignment Act;
• The existing prime contractor should first discuss the plan with the contracting officer and get a feel for his or her thoughts.
• Understand that if there is no stock purchase then the government does not have to approve the contract novation.

Under the novation contract definition, government contract novations also become relevant when the original party continues its responsibility to the government, but a new contract is substituted for the old one. Novation of contracts often occurs when small business owners decide to retire or engage in an asset purchase agreement with a buyer or some other similar business arrangement. See Government Contract Novation Vs Assignment of Contract.

FAR 42.1204 Government Novation of Contract Laws

 Asset Purchase Sale? Under federal procurement and FAR novation clause, in novation of contract agreements are usually required when there is an asset purchase sale. However, even in a situation where there is a stock purchase, you always want to check with the contracting officer (CO) to see what his or her preference might be when it comes to the assignment of contract requirements. The regulations do not require a novation for stock purchases but realize that contracting officers have great amounts of discretion.

• Even if the business name stays the same, many COs still require a FAR novation agreement for government contracts
• More complications can occur when SBA 8(a) participant is buying or selling an existing business.

Agency Will Consider the Risk of  Future Performance: When you submit a bid, the agency initially evaluates your proposal based on key personnel and management among other things. When you change ownership and have different management, the risk of performance becomes an important consideration for the government when accepting novation proposals. Therefore, having a properly drafted novation agreement or asset purchase agreement can be necessary under FAR 42.1205. See information about Basic Tips on How to Respond to Federal Government Investigations.

 Novation Agreement FAR 42.1204 Process – Stock Purchase Agreements: Under FAR 42.1204(b), the novation process is not necessary when there is a change of ownership resulting from a stock purchase. There must also be no legal change in the original contracting party and the original party remains in control of the assets and is the party performing the contract. See SBA Affiliation Rules – Important New Government Contract Small Business Guidance.

If you want to execute a FAR novation agreement for government contracts, you, with the help of your federal novation contract law attorney, must submit the proposed agreement and documents set forth in FAR 42.1204(e) and (f).

 Generally, you do not have to go through the novation process when your company merely changes its name. In that situation, you should seek approval from the government to recognize the name change. See FAR 42.1205(a). You may want to engage help from a government contract novation law attorney law and your business law attorney. See information about Signs of Being Under Investigation (Federal)

SBA 8(a) Government Contract Novation 

Under federal novation contract law, for small businesses under the Federal 8a Certification Program, you also want to notify the SBA as part of the government contract novation process of your intentions to sell the 8a certified business and enter into a novation agreement for affected contracts.

SBA does not override the contracting officer’s authority here. There are more complex rules when it comes to the government novation of contract law and the application of FAR novation agreements under the SBA 8a Certification Program.

To get a federal novated contract or for Help with Novation Contract Law, Call Watson & Associates, LLC FAR novation agreement lawyers at 1-866-601-5518.