The bottom line with any sale of a business involving federal contracts is that there is nothing guaranteed from the government. The responsible contracting officer does not have to automatically approve your novation.
Well, you may say why not? The reality is that after going through a substantial amount of man-hours to evaluate your contract and award it to you, it would meaningless to simply accept a new party to the contract without any level of concern. 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.
What is a Government Contract Novation?
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, (novations dictionary), novation of government contracts 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.
Novation of 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 novation of contracts and 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 consider the source of federal contract novation law.
Whether or not you are a small business can make 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 CONTRACTING OFFICER?
The Federal novation government contracts process is not set in stone, the FAR novation 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 its within the best interested of the government to approve the novation.
- Have a clear understanding of why certain documents may be relevant is critical to your understanding of the novation process.
- Understand that the contracting officer has vast discretion to approve or not approve your novation agreement.
WHAT IS THE ASSIGNMENT OF CONTRACT ACT?
Under an assignment of contract in government procurement, the original contractor keeps performing its obligations under contract but give some rights to a third party. Here the government must be involved in the process.
Most situations involving the sale of a business with a federal contract can get the government’s approval. However, developing a plan of action up front is essential to getting a more favorable result at the end.
- Understanding the psychology of what the government looks for can be a problem for either buyers or sellers.
- Know the difference between novation and assignment.
- Many government contractors know that the Anti-Assignment Act prohibits the mere sale of federal contracts but how to craft the deal to protect the government’s interest still remains a problem.
Government’s Interest is Paramount
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 novation contract and still hold you liable for 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 contract novation, the government may essentially issue you a termination for default.
- Does your agreement have a way out if the contracting officer fails to approve the novation agreement?
Does Your Situation Require Government Contract Novation Agreements Under FAR 42.1204 Novation Process?
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 novation contract definition, the big problem for most companies occurs when attempting to simply transfer the contract with nothing else. This can create a risk for the government.
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 contracts often occur when small business owners decide to retire, engage in an asset purchase agreement with a buyer or some other similar business arrangement.
Government Contract Novation Agreement With Asset Purchase?
Under federal procurement and novation law, government contract novation agreements are usually required when there is an asset purchase sale. However, an 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 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.
Federal Novation Government Contracts Process FAR 42.1204 – Stock Purchase Agreements
Under FAR 42.1204(b), the novation process is not necessary when there 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.
If you want to execute a FAR novation agreement for government contracts, you, with the help of your novation government contracts attorney, must submit the proposed agreement and documents set forth at 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.
Be Proactive: The best approach to handling a government contract novation is to first speak with the responsible contracting officer ahead of time. In addition, you may want to ensure that your documents with a prospective buyer are conditioned upon the government’s approval.
When it comes to federal law, you sometimes want to value your business on the fact that you have an existing project worth a certain amount.
- Keep in mind that government contracts are not meant to be sold.
- However, if the contracting officer believes contract novation agreements to be in government’s best interest, the buyer may ultimately get the intended result.
- Difference between novation and assignment of contract means focusing on the end result of your specific business transaction.
SBA 8(a) Government Contract Novations
For small businesses under the Federal 8a Certification Program, you also want to notify the SBA as part of the 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 contract novation law and the application of novation agreements under the SBA 8a Certification Program.
To Novate a government contract or for Help with Novation Law, Call Watson & Associates, LLC novation government contracts lawyers at 1-866-601-5518.