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New Rule Prescribes Data Required for Adequate Final Indirect Cost Rate Proposal

Client Alert | 1 min read | 06.02.11

On May 31, 2011, the FAR Council published a final rule governing contract closeout requirements, including the identification of a long list of data items required for a final indirect cost rate proposal to be found "adequate," as well as additional types of data that the government can request to supplement a proposal; clarification of the division of duties between the CO and auditors with respect to auditing and finalizing the proposal; and the requirement that mandatory withholdings be exacted by the CO for contractors who fail to timely submit an adequate proposal. While the rule does not require that proposals be submitted using any particular format in order to qualify as "adequate," it remains unclear what will happen in individual cases if DCAA refuses to commence an audit because the contractor declines to provide the burdensome cost schedules required by the DCAA "model" format.

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Client Alert | 4 min read | 08.13.26

Supreme Court Confirms Contractual Loss of Bargain Without Repudiatory Breach

English law has long treated the choice between terminating for repudiatory breach and exercising a contractual termination right as consequential. Under the Financings[1] causation principle, a party exercising a contractual right for a non-repudiatory breach could recover losses accrued to the date of termination — but nothing more. Loss of bargain was out of reach unless the breach went to the root of the contract. A practical workaround, confirmed in Lombard,[2] was to designate the relevant obligation as a condition, elevating any breach to repudiatory status, but that device carries significant strategic risk if the termination is later found to have been wrongful....