48 C.F.R. § 49.108-3

49.108-3 Settlement procedure.

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(a) Contractors shall settle with subcontractors in general conformity with the policies and principles relating to settlement of prime contracts in this subpart and subparts 49.2 or 49.3. However, the basis and form of the subcontractor's settlement proposal must be acceptable to the prime contractor or the next higher tier subcontractor. Each settlement must be supported by accounting data and other information sufficient for adequate review by the Government. In no event will the Government pay the prime contractor any amount for loss of anticipatory profits or consequential damages resulting from the termination of any subcontract (but see 49.108-5).

(b) Except as provided in 49.108-4, the TCO shall require that—

(1) All subcontractor termination inventory be disposed of and accounted for in accordance with the procedures contained in paragraph (j) of the clause at 52.245-1, Government Property; and

(2) The prime contractor submit, for approval or ratification, all termination settlements with subcontractors.

(c) The TCO shall promptly examine each subcontract settlement received to determine that the subcontract termination was made necessary by the termination of the prime contract (or by issuance of a change order—see 49.002(b)). The TCO will also determine if the settlement was arrived at in good faith, is reasonable in amount, and is allocable to the terminated portion of the contract (or, if allocable only in part, that the proposed allocation is reasonable). In considering the reasonableness of any subcontract settlement, the TCO shall generally be guided by the provisions of this part relating to the settlement of prime contracts, and shall comply with any applicable requirements of 49.107 and 49.111 relating to accounting and other reviews. After the examination, the TCO shall notify the contractor in writing of (1) approval or ratification, or (2) the reasons for disapproval.

[48 FR 42424, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997; 69 FR 17748, Apr. 5, 2004; 72 FR 27389, May 15, 2007]

Notes of Decisions

Cited in 5 cases (1 in the last 5 years), 1999–2026 · leading case: Aspic Eng'g & Constr. v. Ecc Centcom Constructors LLC, 913 F.3d 1162 (9th Cir. 2019).

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Aspic Eng'g & Constr. v. Ecc Centcom Constructors LLC, 913 F.3d 1162 (9th Cir. 2019). “” 48 C.F.R. § 49.108-3 . As the district court determined, the Award “conflicts directly with the [Sub]contract[s].”

Morrison Knudsen Corp. v. Fireman's Fund Ins., 175 F.3d 1221 (10th Cir. 1999). “See 48 C.F.R. § 49.108-3 (c) (governing review of prime’s settlements with subs); see, e.”

Lockheed Martin Corp. v. Gordon R. England, Sec'y of the Navy, 424 F.3d 1199 (Fed. Cir. 2005). “See 48 C.F.R. § 49.108-3 (b)(2) (2005). The Termination Contracting Officer did not ratify the subcontract settlements.”

Wolf Creek R.R. LLC v. Am. Ordnance LLC (W.D. Tenn. 2026). · cites it 2× “48 C.F.R. § 49.108-3 (a); The [Terminating Contracting Officer (“TCO”)] shall promptly examine each subcontract settlement received to determine that the subcontract termination was made necessary by the termination of the prime contract (or by issuance of a change order—see 49.”

Lockheed Martin Corp. v. England (Fed. Cir. 2005). “See 48 C.F.R. § 49.108-3 (b)(2) (2005). The Termination Contracting Officer did not ratify the subcontract settlements.”

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