curements which offer competitive opportunities for prospective prime contractors or subcontractors, resolving all doubts as to whether or not to publicize, in a particular procurement, in favor of publicizing. The requirements of Subpart 1-1.10 of this title and Subpart 29-1.10 shall be interpreted in a manner consistent with this policy.

§ 29-1.1002 Availability of invitations

for bids and requests for proposals. A contracting officer may limit the availability of publicized unclassified invitations for bids and requests for proposals provided he makes them available for perusal at the issuing office and provided further that he:

(a) States in the synopsis or publicizing notice required by § 1-1.1003 of this title that the number of available "bid sets" is limited, what that limited number is, and that the bid sets will be available on a "first-come-first-served" basis;

(b) States in the synopsis whether only written requests for bid sets will be honored or whether they may be requested by phone and providing, if the latter, the name and phone number of the DOL employee to be contacted; and

(c) Makes available a total of 100 bid sets over and above the number mailed initially or a cumulative total of 150 (counting initial mailing) whichever is less, to concerns and individuals on the bidders mailing list or who are otherwise known to be interested (regardless of whether or not the full bidders mailing list is used).

(d) Obtains a deviation as to the number of "bid sets" required in paragraph (c) of this section, from the head of the procuring activity based on unreasonableness of the standard in paragraph (c) of this section for the particular procurement.

§ 29-1.1002-50 Other publicity concerning procurements.

Where without cost to the Government, the procuring activity can effect the publication of procurement solicitation information, it is encouraged to do so. Such publication may result from its own initiative or in conjunction with one of the DOL information offices. The solicitation may either be current or proposed, but the publication of such information must be consistent with § 1-1. 1003-1(b) of this title. The publication of other information, however, shall not

97-031-73-8

relieve a procuring activity from the requirement for compliance with §§ 1-1. 1003-1, 1-2.202-3(b) and 29-2.203 of this title. Paid advertisements may only be used as provided in § 29-2.203-3. Subpart 29-1.50-Novation Agreements and Change of Name Agreements

SOURCE: The provisions of this Subpart 29-1.50 appear at 36 F.R. 22159, Nov. 20, 1971, unless otherwise noted.

§ 29-1.5000 Scope of subpart.

This subpart prescribes the policy and procedures for (a) recognition of a successor in interest to Government contracts when such interests are acquired incidental to a transfer of all the assets of a contractor or such part of his assets as is involved in the performance of the contract, (b) a change of name of a contractor, and (c) execution of novation agreements and change of name agreements by a single administration or office and change of name or novation agreements affecting more than one administration or office. (See also § 1-30.710 of this title on assignment of claims in case of transfers of a business or corporate mergers.)

§ 29-1.5001 Legal review.

All novation agreements and change of name agreements, prior to execution by the Department, shall be reviewed by the Solicitor's Office for legal sufficiency. § 29-1.5002 Agreement to recognize a successor in interest.

(a) The transfer of a Government contract is prohibited by law (41 U.S.C. 15). However, the Government may recognize a third party as the successor in interest to a Government contract where the third party's interest is incidental to the transfer of all the assets of the contractor, or all of that part of the contractor's assets involved in the performance of the contract. Examples include, but are not limited to:

(1) Sale of such assets;

(2) Transfer of such assets pursuant to merger or consolidation of corporation; and

(3) Incorporation of a proprietorship or partnership.

(b) When a contractor requests that the Department recognize a successor in interest, the contractor shall be required to provide three signed copies of a novation agreement to the administration or

office concerned, together with one copy of each of the following, as applicable:

(1) A properly authenticated copy of the instrument by which the transfer of assets was effected, as for example, a bill of sale, certificate of merger, indenture of transfer, or decree of court;

(2) A list of all contracts and purchase orders which have not been finally settled between the Department and the transferor, showing the contract number, the name and address of the procurement office involved, the total dollar value of each contract as amended, the type of contract involved, and the balance remaining unpaid;

(3) A certified copy of the resolutions of the boards of directors of the corporate parties authorizing the transfer of assets;

(4) A certified copy of the minutes of any stockholders' meetings of the corporate parties necessary to approve the transfer of assets;

(5) A properly authenticated copy of the certificate and articles of incorporation of the transferee if such corporation was formed for the purpose of receiving the assets involved in the performance of the Government contracts;

(6) Opinion of counsel for the transferor and transferee that the transfer was properly effected in accordance with applicable law and the effective date of transfer;

(7) Evidence of the capability of the transferee to perform the contracts;

(8) Balance sheets of the transferor and the transferee as of dates immediately prior to and after the transfer of assets; and

(9) Consent of sureties on all contracts listed under paragraph (a) of this section where bonds are required, or a statement that none is required.

(c) When it is consistent with the Government's interest to recognize a successor in interest to a Government contract, the administration or office concerned shall execute an agreement with the transferor and the transferee, which shall ordinarily provide in part that:

(1) The transferee assumes all the transferor's obligations under the contract;

(2) The transferor waives all rights under the contract as against the Government;

(3) The transferor guarantees performance of the contract by the transferee (a satisfactory performance bond

may be accepted in lieu of such guarantee); and

(4) Nothing in the agreement shall relieve the transferor or the transferee from compliance with any Federal law.

(d) A form for such an agreement for use when the transferor and transferee are corporations, and all the assets of the transferor are transferred, is set forth herein. This form may be adapted to fit specific cases and may be used as a guide in preparing similar agreements for use in other situations.

AGREEMENT

This Agreement, entered into as of (date upon which the transfer of assets became effective pursuant to applicable State law), 19--, by and between the ABC Corporation, a corporation duly organized and existing under the laws of the State of with its principal office in the city of..

-(hereinafter referred to as the "Transferor"); the XYZ Corporation add if appropriate (formerly known as the EFG Corporation), a corporation duly organized and existing under the laws of the State of with its principal office in the -(hereinafter referred to the "Transferee"); and the United States of America (hereinafter referred to as the "Government").

city of

as

WITNESSETH

1. Whereas, the Government, represented by various Contracting Officers of the Department of Labor has entered into certain contracts and purchase orders with the Transferor (namely:

--), or as set

forth in the attached list marked "Exhibit A" to this Agreement and herein incorporated by reference; and the term "the Contracts" as hereinafter used means the above contracts and purchase orders, and all other contracts and purchase orders, including modifications thereto, heretofore made between the Government, represented by various Contracting Officers of the abovenamed Department, and the Transferor (whether or not performance and payment have been completed and releases executed, if the Government or the Transferor has any remaining rights, duties or obligations thereunder), and including modifications thereto hereafter made in accordance with the terms and conditions of such contracts and purchase orders between the Government and the Transferee;

assumed all the duties, obligations and liabilities of the Transferor under the Contracts;

5. Whereas, the Transferee is in a position fully to perform the Contracts, and such duties and obligations as may exist under the Contracts;

6. Whereas, it is consistent with the Government's interest to recognize the Transferee as the successor party to the Contracts;

7. Whereas, there has been filled with the Government evidence of said assignment, conveyance or transfer, as required by § 29-1.5002(b);

Where a change of name is also involved, such as prior or concurrent change of name of the transferee, an appropriate recital shall be used; for example:

8. Whereas, there has been filled with the Government a certificate dated 19_-, signed by the Secretary of State of the State of to the effect that the corporate name of EFG Corporation was changed to XYZ Corporation on 19--;

Now, therefore, in consideration of the premises, the parties, hereto agree as follows:

9. The Transferor hereby confirms said assignment, conveyance, and transfer to the Transferee, and does hereby release and discharge the Government from, and does hereby waive, any and all claims, demands, and rights against the Government which it now has or may hereafter have in connection with the contracts.

10. The Transferee hereby assumes, agrees to be bound by, and undertakes to perform each and every one of the terms, covenants and conditions contained in the Contracts. The Transferee further assumes all obligations and liabilities of, and all claims and demands against, the Transferor under the Contracts, in all respects as if the Transferee were the original party to the Contracts.

11. The Transferee hereby ratifies and confirms all actions heretofore taken by the Transferor with respect to the Contracts with the same force and effect as if the action had been taken by the Transferee.

12. The Government hereby recognizes the Transferee as the Transferor's successor in interest in and to the Contracts and agrees that the Transferee hereby becomes entitled to all rights, title, and interest of the Transferor in and to the Contracts in all respects as if the Transferee were the original party to the Contracts. The term "Contractor" as used in the Contracts shall be deemed hereafter to refer to the Transferee rather than to the Transferor.

13. Except as expressly provided herein, nothing in this Agreement shall be construed as a waiver of any rights of the Government against the Transferor.

14. Notwithstanding the foregoing provisions, all payments and reimbursements heretofore made by the Government to the Transferor and all other action heretofore taken by the Government, pursuant to its obligation under any of the Contracts, shall be deemed to have discharged pro tanto the

Government's obligations under the Contracts. All payments and reimbursements made by the Government after the date of this Agreement in the name of or to the Transferor shall have the same force and effect as if made to said Transferee and shall constitute a complete discharge of the Government's obligations under the Contracts, to the extent of the amounts so paid or reimbursed.

15. The Transferor and the Transferee hereby agree that the Government shall not be obligated to pay or reimburse either of them for, or otherwise give effect to, any costs, taxes or other expenses, or any increases therein, directly or indirectly arising out of or resulting from (1) said assignment, conveyance and transfer, or (ii) this Agreement, other than those which the Government, in the absence of said assignment, conveyance and transfer, or this Agreement, would have been obligated to pay or reimburse under the terms of the

Contracts.

16. The Transferor hereby guarantees payment of all liabilities and the performance of all obligations which the Transferee (1) assumes under this Agreement, or (ii) may hereafter undertake under the Contracts as they may hereafter be amended or modified in accordance with the terms and conditions thereof; and the Transferor hereby waives notice of and consents to any such amendment or modification.

17. Except as herein modified, the Contracts shall remain in full force and effect.

In witness whereof, each of the parties hereto has executed this Agreement as of the day and year first above written.

corporation, was then of said corporation; and that this Agreement was duly signed for and in behalf of said corporation by authority of its governing body and is within the scope of its corporate powers. Witness by hand and the seal of said corporation this day of

19.

[CORPORATE SEAL]

By...

§ 29-1.5003 Agreement to recognize change of name of contractor.

(a) When only a change of name is involved, so that the rights and obligations of the parties remain unaffected, an agreement shall be executed by the Administration or Office concerned and the contractor modifying all existing contracts between the parties so as to reflect the contractor's change of name. Three signed copies of the Change of Name Agreement and one copy of each of the following shall be forwarded by the contractor to the Administration or Office concerned:

(1) A copy of the instrument by which the change of name was effected, authenticated by a proper official of the State having jurisdiction;

(2) Opinion of counsel for the contractor as to the effective date of the change of name and that it was properly effected in accordance with applicable law; and

(3) A list of all contracts and purchase orders which have not been finally settled between the Department concerned and the transferor, showing the contract number, the name and address of the procurement office involved, the total dollar value of each contract as amended, and the balance remaining unpaid.

(b) A format for such an agreement which shall be adapted for specific cases is set forth below.

XYZ Corporation, (namely:

-) or

(as set forth in the attached list marked "Exhibit A" to this Agreement and herein incorporated by reference); and the term "the Contracts" as hereinafter used means the above contracts and purchase orders, and all other contracts and purchase orders, including modifications thereto, entered into between the Government, represented by various Contracting Officers of the Department of Labor, and the Contractor (whether or not performance and payment have been completed and releases executed, if the Government or the Contractor has any remaining rights, duties or obligations thereunder); 2. Whereas, the XYZ Corporation, by an amendment to its certificate of incorporation, dated has changed its corporate name to ABC Corporation;

-->

3. Whereas, a change of corporate name only is accomplished by said amendment, so that rights and obligations of the Government and of the Contractor under the Contracts are unaffected by said change; and

4. Whereas, there has been filed with the Government documentary evidence of said change in corporate name;

Now therefore, in consideration of the premises, the parties hereto agree that the Contracts covered by this agreement are hereby amended by deleting therefrom the name "XYZ Corporation" wherever it appears in the Contracts and substituting therefor the name "ABC Corporation".

In witness whereof, each of the parties hereto has executed this Agreement as of the day and year first above written.

tracts as required by § 29-1.5002(b) (2), to the Administrations or Offices having contracts with the contractor or contractors concerned. Such notice shall be transmitted to the appropriate addressee listed herein.

Associate Assistant Secretary for Systems Development and Administrative Services. Manpower Administration, Office of National Projects.

Bureau of International Affairs, Attention: IA,

Bureau of Labor Statistics, Attention: BA.

Administration(s)

or

29-2.302

29-2.303

29-2.303-1

29-2.303-4

29-2.303-7

the (b) If Office(s) do not object to the proposed novation agreement within 30 days after receipt of notice, the initiating Administration or Office shall assume acceptance of the proposed novation agreement.

(c) When more than one Administration or Office has outstanding contracts with the contractor or contractors, a single agreement covering all such contracts shall be executed by the Administration or Office having the largest unsettled dollar balance with the contractor or contractors.

(d) A signed copy of the executed novation agreement or change of name agreement shall be forwarded to the contractor, a signed copy shall be retained in the administration or office executing the agreement, and where more than one administration or office is involved, two conformed copies of the agreement shall be prepared by each affected administration and office incorporating a summary of the agreement and attaching thereto a complete list of the contracts affected.

Responsiveness of bids. Time of bid submission. Late bids.

General.

Telegraphic bids.

Disposition of late bids.

Subpart 29-2.4-Opening of Bids and Award of

Protests against award.

Award when only one bid is received.

AUTHORITY: The provisions of this Part 292 issued under 63 Stat 389, 80 Stat. 379; 5 U.S.C. 301, 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 29-2 appear at 36 F.R. 3061, Feb. 17, 1971, unless otherwise noted.

NOTE: Nomenclature changes appear at 38 FR 15965, June 19, 1973.

Subpart 29-2.1-Use of Formal
Advertising

§ 29-2.101

tising.

Meaning of formal adver

Formal advertising is both by statute and policy the basic and preferred method of procuring supplies and services. Contracts entered into by DOL shall be made by formal advertising in all