[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Proposed Rules]
[Pages 2630-2634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-482]
[[Page 2629]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 33 et al.
Federal Acquisition Regulation; Protests, Disputes, and Appeals;
Proposed Rule
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 /
Proposed Rules
[[Page 2630]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 33, 39, 42, 50, and 52
[FAR Case 94-730]
RIN 9000-AG38
Federal Acquisition Regulation; Protests, Disputes, and Appeals
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule is issued pursuant to the Federal
Acquisition Streamlining Act of 1994 (Pub. L. 103-355) dated October
13, 1994, to implement the requirements for protests and disputes in
Government procurement. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
DATES: Comments should be submitted on or before March 13, 1995 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets, NW., room 4037, Washington, DC 20405. Please cite FAR case 94-
730 in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Craig Hodge, Protests/Disputes
Team Leader at (703) 274-8176 in reference to this FAR case. For
general information, contact the FAR Secretariat, room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 94-
730, Protests, Disputes, and Appeals.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355,
provides authorities that streamline the acquisition process and
minimize burdensome Government-unique requirements. Major changes that
can be expected in the acquisition process as a result of Federal
Acquisition Streamlining Act implementation include changes in the
areas of Commercial Item Acquisition, Simplified Acquisition
Procedures, the Truth in Negotiations Act, and Introduction of the
Federal Acquisition Network.
This notice announces proposed FAR revisions developed under FAR
Case 94-730, Protests, Disputes, and Appeals. The Act changed the
General Accounting Office (GAO) protest procedures, the General
Services Board of Contract Appeals (GSBCA) protest procedures, and the
alternative dispute resolution (ADR) procedures. This rule reflects
those changes to GAO, GSBCA, and ADR procedures that require revisions
to the FAR.
In view of expected benefits to Government and industry from the
Act, FAR implementation was formulated under an expedited process. The
FAR Council is interested in an exchange of ideas and opinions with
respect to the regulatory implementation of the Act. For that reason,
the FAR Council is conducting a series of public meetings. However, the
FAR Council has not scheduled a public meeting on this rule (FAR case
94-730) because of the clarity and non-controversial nature of the
rule. If the public believes such a meeting is needed with respect to
this rule, a letter requesting a public meeting and outlining the
nature of the requested meeting shall be submitted to and received by
the FAR Secretariat (see ADDRESSES caption) on or before February 9,
1995. The FAR Council will consider such requests in determining
whether a public meeting on this rule should be scheduled.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because among
other things, it authorizes a higher reimbursement of attorney costs
associated with a GAO or a GSBCA protest to small businesses than may
be reimbursed to large businesses. An Initial Regulatory Flexibility
Analysis has, therefore, not been performed. Comments from small
entities concerning the affected FAR subpart will be considered in
accordance with 5 U.S.C. 610 of the Act. Such comments must be
submitted separately and should cite 5 U.S.C. 601, et seq. (FAR case
94-730), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 33, 39, 42, 50 and 52
Government procurement.
Dated: December 29, 1994.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, it is proposed that 48 CFR Parts 33, 39, 42, 50, and 52
be amended as set forth below:
1. The authority citation for 48 CFR Parts 33, 39, 42, 50, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 33--PROTESTS, DISPUTES, AND APPEALS
2. Section 33.101 is amended by adding in alphabetical order the
definitions ``Day'' and ``Filed''; and revising the definition
``Protest'' to read as follows:
33.101 Definitions.
Day, for the purpose of this subpart means a calendar day, unless
otherwise specified. In the computation of any period--
(a) The day of the act, event, or default from which the designated
period of time begins to run is not included; and
(b) The last day after such act, event, or default is included
unless--
(1) Such last day is a Saturday, a Sunday, or a legal holiday; or
(2) In the case of a filing of a paper at any appropriate
administrative forum, such last day is a day on which weather or other
conditions causes the closing of the forum, in which event the next day
that is not a Saturday, Sunday, or legal holiday is included.
Filed means the receipt of any document by an agency before its
close of business. Documents received after close of business are
considered filed as of the next day. Unless otherwise stated, the
agency close of business is presumed to be 4:30 p.m. local time.
* * * * *
Protest, as used in this subpart, means a written objection by an
interested party to any of the following:
(a) A solicitation or other request by an agency for offers for a
contract for the procurement of property or services.
(b) The cancellation of such a solicitation or other request.
(c) An award or proposed award of such a contract.
(d) A termination or cancellation of an award of such a contract,
if the written objection contains an allegation that the termination or
cancellation is based in [[Page 2631]] whole or in part on
improprieties concerning the award of the contract.
3. Section 33.102 is amended by revising paragraph (a);
redesignating paragraphs (b) and (c) as (c) and (e), respectively, and
adding new paragraphs (b) and (d); and revising newly designated
paragraphs (e)(2) and (e)(3) to read as follows:
33.102 General.
(a) Contracting officers shall consider all protests and seek legal
advice, whether protests are submitted before or after award and
whether filed directly with the agency, the General Accounting Office
(GAO), or for automatic data processing acquisitions under 40 U.S.C.
759 (ADP contracts), the General Services Board of Contract Appeals
(GSBCA or the Board). (See 19.302 for protests of small business status
and 22.608-3 for protests involving eligibility under the Walsh-Healey
Public Contracts Act.)
(b) If in connection with a protest, the head of an agency
determines that a solicitation, proposed award, or award does not
comply with the requirements of law or regulation, the head of the
agency may--
(1) Take any action that may have been taken by the Comptroller
General in the event of a GAO protest; and
(2) Pay appropriate costs as stated in section 33.104(h).
* * * * *
(d) Protest likely after award. The contracting officer may stay
performance of a contract within the time period contained in
33.104(c)(1) if the contracting officer makes a written determination
that--
(1) A protest is likely to be filed; and
(2) Delay of performance is, under the circumstances, in the best
interests of the United States.
(e) * * *
(2) May protest to the GAO in accordance with GAO regulations (4
CFR Part 21). An interested party who has filed a protest regarding an
ADP procurement with the GAO may not file a protest with the GSBCA with
respect to that procurement.
(3) May protest to the GSBCA regarding an award of an ADP contract
in accordance with GSBCA Rules of Procedure (48 CFR Chapter 61). An
interested party who has filed a protest regarding an ADP procurement
with GSBCA (40 U.S.C. 759(f)) may not file a protest with the GAO with
respect to that procurement.
4. Section 33.103 is amended in paragraph (b)(1) by removing ``or''
and inserting ``and''; by revising the second and third sentences of
(b)(2); by revising the second sentence in paragraph (b)(4); and by
adding paragraph (b)(5) to read as follows:
33.103 Protests to the agency.
* * * * *
(b) * * *
(2) * * * In all other cases, protests shall be filed not later
than 14 days after the basis of protest is known or should have been
known, whichever is earlier. The agency for good cause shown, or where
it determines that a protest raises issues significant to the agency's
acquisition system, may consider the merits of any protest which is not
filed timely.
* * * * *
(4) * * * Failure to substantially comply with any of the above
requirements may be grounds for dismissal of the protest.
(5) The agency should furnish a copy of the written protest ruling
to the protester by certified mail return receipt requested, or by any
other method that provides evidence of receipt.
5. Section 33.104 is amended--
a. By revising the introductory text;
b. By adding a sentence to the end of paragraph (a)(2)(ii);
c. By revising the introductory text of paragraph (a)(3)(i);
d. In paragraph (a)(3)(ii)(H) by adding a ``s'' to ``allegation'';
e. By redesignating paragraphs (a)(5) through (a)(7) as (a)(6)
through (a)(8), respectively and adding a new paragraph (a)(5);
f. By revising the introductory text of newly designated paragraph
(a)(6);
g. In the third sentence of paragraph (a)(6)(iii) by adding a ``s''
to ``request''; and
h. By revising paragraphs (c)(1), and (c)(5); and
i. By revising paragraphs (f), (g), and (h).
The revised text reads as follows:
33.104 Protests to GAO.
Procedures for protests at the GAO are found at 4 CFR Part 21 (GAO
Bid Protest Regulations). In the event this section conflicts with 4
CFR Part 21, 4 CFR Part 21 governs.
(a) * * *
(2) (ii) * * * However, if the protestor has identified sensitive
information and requests a protective order, then the contracting
officer should obtain a redacted version from the protestor to furnish
to other interested parties.
(3)(i) Upon notice that a protest has been filed with the GAO, the
contracting officer shall immediately begin compiling the information
necessary for a report to the GAO. The agency normally submits a
complete report to the GAO within 35 days after the GAO notifies the
agency by telephone that a protest has been filed, or within 20 days
after receipt from the GAO of a determination to use the express
option, unless the GAO--
* * * * *
(5) When a protest is filed with the GAO, and an actual or
prospective offeror so requests, the procuring agency shall establish a
protest file and, in accordance with any applicable protective orders,
provide actual or prospective offerors reasonable access to the file.
However, if the GAO dismisses the protest before the administrative
report is submitted then no protest file need be established.
(i) The protest file shall consist of the agency administrative
report.
(ii) Information exempt from disclosure under section 552 of title
5, United States Code, or under an applicable protective order, may be
redacted from the protest file.
(iii) The protest file shall be made available within a reasonable
time after submittal of the agency administrative report.
(6) The GAO may issue protective orders which establish terms,
conditions, and restrictions for the provision of any document to an
interested party. Protective orders prohibit or restrict the disclosure
by the party of procurement sensitive information, trade secrets or
other proprietary or confidential research, development or commercial
information that is contained in such document. Protective orders do
not authorize withholding any documents or information from the United
States Congress or an executive agency.
* * * * *
(c) Protests after award. (1) When the agency receives notice of a
protest from the GAO within 10 days after contract award or within 5
days after a debriefing date offered to the protestor for any
debriefing that is required by 15.1003, whichever is later, the
contracting officer shall immediately suspend performance or terminate
the awarded contract, except as provided in paragraphs (c)(2) and (3)
of this section.
* * * * *
(5) When the agency receives notice of a protest filed with the GAO
after the dates contained in paragraph (c)(1), the contracting officer
need not suspend contract performance or terminate the awarded contract
unless the contracting officer believes that an award may be
invalidated and a delay in receiving the supplies or services is not
prejudicial to the Government's interest.
* * * * * [[Page 2632]]
(f) GAO decision time. GAO issues its recommendation on a protest
within 125 days from the date of filing of the protest with the GAO, or
within 65 days under the express option, unless GAO establishes a
longer period of time. The GAO attempts to issue its recommendation on
an amended protest that adds a new ground of protest within the time
limit of the initial protest. If an amended protest cannot be resolved
within the initial time limit, the GAO may resolve the amended protest
through an express option.
(g) Notice to GAO. If the agency has not fully implemented the GAO
recommendations with respect to a solicitation for a contract or an
award or a proposed award of a contract within 60 days of receiving the
GAO recommendations, the head of the contracting activity responsible
for that contract shall report such failure to the GAO not later than 5
days after the expiration of the 60 day period. The report shall
explain the reasons why the GAO's recommendation exclusive of costs,
has not been followed by the agency.
(h) Award of costs. (1) If the GAO determines that a solicitation
for a contract or a proposed award or an award of a contract does not
comply with a statute or regulation, the GAO may recommend that the
agency conducting the procurement pay to an appropriate interested
party the direct cost, exclusive of profit, of filing and pursuing the
protest, including reasonable attorney's fees and consultant and expert
witness fees, and bid and proposal preparation costs.
(2) If the GAO recommends the award of costs to an interested
party, the agency, in accordance with agency procedures, shall attempt
to reach an agreement on the amount of the cost to be paid. If the
agency and the interested party are unable to agree on the amount to be
paid, GAO may, upon request of the interested party, recommend to the
agency the amount of cost that the agency should pay.
(3) No agency shall pay a party, other than a small business
concern within the meaning of section 3(a) of the Small Business Act
(see 19.001, ``Small business concern''), costs under paragraph (h)(2)
of this section--
(i) For consultant and expert witness fees that exceed the highest
rate of compensation for expert witnesses paid by the Government; or
(ii) For attorneys' fees that exceed $150 per hour unless the
agency determines, based on the recommendation of the Comptroller
General on a case by case basis, that an increase in the cost of living
or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee. The cap
placed on attorneys' fees for businesses, other than small businesses,
constitutes a benchmark as to what constitutes a ``reasonable'' level
for attorneys' fees for small businesses.
(4) A recommended award of costs may be paid by the agency out of
funds available to or for the use of the agency for the acquisition of
supplies or services. Before paying a recommended award of costs,
agency personnel should consult legal counsel. Section 33.104(h)
applies to all recommended awards of costs which have not yet been
paid.
(5) If the GAO recommends the agency pay costs (as defined under
paragraph (h)(1) of this section) and the agency does not promptly pay
the costs, the agency shall promptly report to GAO the reasons for the
failure to follow the GAO recommendation.
(6) Any costs the contractor receives under this section shall be
excluded from all proposals, billings, or claims against the Government
and such exclusions should be reflected in the cost agreement.
6. Section 33.105 is amended--
(a) By adding an introductory paragraph;
(b) By revising paragraph (a)(1);
(c) In paragraph (a)(2)(ii) by removing ``five'' and inserting
``three'';
(d) By revising the introductory text of paragraph (d)(1);
(e) In paragraph (d)(1)(i) by removing ``calendar'';
(f) By adding paragraph (d)(4);
(g) In paragraph (e) by removing ``45 work'' and inserting ``65'';
(h) By redesignating paragraphs (f) and (g) as (g) and (h) and
adding a new paragraph (f);
(i) By revising the new by designated paragraphs (g)(1)(i), and
(g)(2);
(j) By adding paragraphs (g)(3) and (g)(4); and
(k) By revising paragraph (h).
The revised text reads as follows:
33.105 Protests to GSBCA.
Procedures for protests at the GSBCA, are found at 48 CFR chapter
61 (GSBCA Rules). In the event this subpart conflicts with 48 CFR
Chapter 61, 48 CFR Chapter 61 governs.
(a)(1) Upon request of an interested party in connection with any
procurement that is subject to this section (including any such
procurement that is subject to delegation of procurement authority),
the GSBCA shall review any decision by the contracting officer that is
alleged to violate a statute, a regulation, or the conditions of a
delegation of procurement authority. ADP acquisition protests not
covered under the Federal Property and Administrative Services Act (40
U.S.C. 759) may not be heard by the GSBCA, but may be heard by the
agency, the courts, or GAO. A protester shall furnish a copy of its
complete protest to the official and location designated in the
solicitation, or in the absence of such a designation to the
contracting officer, on the same day the protest is filed with the
GSBCA. Any request for a hearing on either a suspension of procurement
authority or on the merits shall be in the protest.
* * * * *
(d)(1) If a protest contains a timely request for a suspension of
procurement authority, the Board will hold a hearing. A timely request
for suspension of procurement authority is one that is filed before
award, within 10 days of award, or within five days of the offered
debriefing, when the debriefing is required by 15.1003, whichever is
later. The Board suspends the procurement authority unless the agency
establishes that--
* * * * *
(4) A suspension shall not preclude the agency concerned from
continuing the procurement process up to but not including the award of
the contract unless the Board determines such action is not in the best
interests of the United States.
* * * * *
(f) Any agreement that provides for the dismissal of a protest and
involves a direct or indirect expenditure of appropriated funds shall
be made part of the public record (subject to any protective order
considered appropriate by the Board) before dismissal of the protest.
If an agency is party to a settlement agreement, the submission of the
agreement to the Board shall include a memorandum, signed by the
contracting officer concerned, that describes in detail the
procurement, the grounds for protest, the Government's position
regarding the grounds for protest, the terms of the settlement, and the
agency's position regarding the propriety of the award or proposed
award of the contract at issue in the protest.
(g) * * *
(1) * * *
(i) Filing and pursuing the protest, including reasonable attorney
consultant, and expert witness fees, studies, analyses, tests; and
* * * * *
(2) Costs awarded under paragraph (g)(1) of this section or
payments of amounts due under settlement agreements shall be paid out
in [[Page 2633]] accordance with the procedures provided in 31 U.S.C.
1304 (the Permanent Indefinite Judgment Fund). The agency concerned
shall reimburse that fund out of funds available for the procurement.
(3) No agency shall pay a party, other than a small business
concern within the meaning of section 3(a) of the Small Business Act
(see 19.001, ``Small business concern''), costs under paragraph (g)(1)
of this section--
(i) For consultant and expert witness fees that exceed the highest
rate of compensation for expert witnesses paid by the Government; or
(ii) For attorneys' fees that exceed $150 per hour unless the Board
determines, on a case by case basis, that an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher
fee. The cap placed on attorneys' fees for businesses, other than small
businesses, constitutes a benchmark as to what constitutes a
``reasonable'' level for attorneys' fees for small businesses.
(4) Within 30 days after receipt by the agency of an application
for cost, the agency may file an answer.
(h) The GSBCA's final decision may be appealed by the agency or by
any interested party, including any intervening interested parties, as
set forth in the Contract Disputes Act.
7. Section 33.106 is amended by revising paragraph (a) to read as
follows:
33.106 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 52.233-2,
Service of Protest, in solicitations for other than simplified
acquisitions.
* * * * *
8. Section 33.201 is amended by revising the definition ``Alternate
means of dispute resolution''; and in the definition ``Claim'' by
removing the amount ``$50,000'' and inserting ``$100,000''.
33.201 Definitions.
Alternate dispute resolution (ADR) means any procedure or
combination of procedures voluntarily used to resolve issues in
controversy without the need to resort to litigation. These procedures
include, but are not limited to, assisted settlement negotiations,
conciliation, facilitation, mediation, fact-finding, minitrials, and
arbitration.
* * * * *
9. Section 33.206 is revised to read as follows:
33.206 Initiation of a claim.
(a) Contractor claims shall be submitted, in writing, to the
contracting officer for a decision within 6 years after the contractor
knew or should have known the facts and circumstances giving rise to
the issue in controversy unless a shorter time period has been agreed
to. This 6 year time period does not apply to contracts in existence as
of October 13, 1994, that contain a clause requiring submittal of a
claim earlier than 6 years after accrual of the claim. The contracting
officer shall document the contract file with evidence of the date of
receipt of any submission from the contractor deemed to be a claim by
the contracting officer.
(b) The contracting officer shall issue a written decision on any
Government claim initiated against a contractor within 6 years after
accrual of the claim. The 6 year period shall not apply to a Government
claim against a contractor that is based on a claim by the contractor
involving fraud.
33.207 [Amended]
10. Section 33.207 is amended in paragraph (a)(1) by removing
``$50,000'' and inserting ``$100,000''.
33.208 [Amended]
11. Section 33.208 is amended in paragraph (c) by removing ``as
defined in 33.201,''.
12. Section 33.211 is amended in paragraph (a)(4)(v) by removing
the amounts ``$10,000'' and ``$50,000'' and inserting ``$50,000'' and
``$100,000'', respectively; in paragraphs (c)(1), (c)(2) and (e) by
removing the amounts ``$50,000'' and inserting ``$100,000''; and by
revising paragraph (f) to read as follows:
33.211 Contracting officer's decision.
* * * * *
(f) In the event of undue delay by the contracting officer in
rendering a decision on a claim, the contractor may request the
tribunal concerned to direct the contracting officer to issue a
decision in a specified time period determined by the tribunal.
* * * * *
13. Section 33.214 is amended by redesignating paragraphs (b)
through (d) as (c) through (e) and adding a new paragraph (b) to read
as follows:
33.214 Alternative dispute resolution (ADR).
* * * * *
(b) If the contracting officer rejects a request for ADR from a
small business contractor, the contracting officer shall provide the
contractor written explanation citing one or more of the conditions in
5 U.S.C. 572(b) or such other specific reasons that ADR procedures are
inappropriate for the resolution of the dispute. In any case where a
contractor rejects a request of an agency for ADR proceedings, the
contractor shall inform the agency in writing of the contractor's
specific reasons for rejecting the request.
* * * * *
PART 39--ACQUISITION OF INFORMATION RESOURCES
14. Section 39.002 is amended by redesignating paragraph (b) as (c)
and adding a new paragraph (b) to read as follows:
39.002 Delegations of procurement authority.
* * * * *
(b) The Administrator of the General Services Administration, or
the appropriate official of any agency authorized to issue a
redelegation of procurement authority, may issue a delegation of
procurement authority (DPA) for any procurement initiated or contract
award executed without the requisite DPA. If the Administrator or other
appropriate agency official issues a DPA, the originally executed
contract may be ratified by the contracting agency. Preaward
procurement actions taken prior to obtaining a DPA do not need to be
reaccomplished.
* * * * *
15. Subpart 42.15 is added to read as follows:
Subpart 42.15--Small Business Contract Administration
42.1501 General.
The contracting officer shall make every reasonable effort to
respond in writing within 30 days to any written request to the
contracting officer from a small business concern with respect to a
contract administration matter. In the event the contracting officer
cannot respond to the request within the 30 day period, the contracting
officer shall, within such period, transmit to the contractor a written
notification of the specific date the contracting officer expects to
respond. This provision shall not apply to a request for a contracting
officer decision under the Contract Disputes Act of 1978 (41 U.S.C.
601-613).
PART 50--EXTRAORDINARY CONTRACTUAL ACTIONS
50.303 [Redesignated as 50.303-1]
16. Section 50.303 is redesignated as 50.303-1 and a new 50.303
heading is added to read as follows: [[Page 2634]]
50.303 Contract adjustment.
* * * * *
17. Section 50.303-2 is added to read as follows:
50.303-2 Contractor certification.
A contractor seeking a contract adjustment that exceeds the
simplified acquisition threshold shall, at the time the request is
submitted, submit a certification by a person authorized to certify the
request on behalf of the contractor that (a) the request is made in
good faith and (b) the supporting data are accurate and complete to the
best of that person's knowledge and belief.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
18. Section 52.233-1 is amended by revising the date of the clause,
the third sentence in paragraph (c), and paragraph (d)(1); in paragraph
(d)(2)(i)(A) and (e) by removing ``$50,000'' each place it occurs and
inserting ``$100,000''; and by revising paragraph (g) to read as
follows:
52.233-1 Disputes.
* * * * *
Disputes (Date)
* * * * *
(c) * * * However, a written demand or written assertion by the
Contractor seeking the payment of money exceeding $100,000 is not a
claim under the Act until certified as required by subparagraph
(d)(2) of this clause. * * *
(d)(1) A claim by the Contractor shall be made in writing and,
unless otherwise stated in this contract, submitted within 6 years
after accrual of the claim to the Contracting Officer for a written
decision. A claim by the Government against the Contractor shall be
subject to a written decision by the Contracting Officer.
* * * * *
(g) If the claim by the Contractor is submitted to the
Contracting Officer or a claim by the Government is presented to the
Contractor, the parties, by mutual consent, may agree to use ADR. If
the Contractor refuses an offer for alternative disputes resolution,
the Contractor shall inform the Contracting Officer, in writing, of
the Contractor's specific reasons for rejecting the request. When
using arbitration conducted pursuant to 5 U.S.C. 575-580, or when
using any other ADR technique that the agency elects to handle in
accordance with the ADRA, any claim, regardless of amount, shall be
accompanied by the certification described in subparagraph
(d)(2)(iii) of this clause, and executed in accordance with
subparagraph (d)(3) of this clause.
* * * * *
19. Section 52.233-2 is amended by revising the date of the clause;
and adding paragraph (c) to read as follows:
52.233-2 Service of Protest.
* * * * *
Service of Protest (Date)
* * * * *
(c) In this procurement, you may not protest to the GSBCA
because of the nature of the supplies being procured. (Contracting
Officer shall strike the word ``not'' where the GSBCA is a correct
forum.)
(End of provision)
20. Section 52.233-3 is amended by revising the date of the clause;
and in paragraph (a) by revising the first sentence to read as follows:
52.233-3 Protest after Award.
* * * * *
Protest After Award (Date)
* * * * *
(a) Upon receipt of a notice of protest (as defined in 33.101 of
the FAR) or a determination that a protest is likely (see FAR
33.102(d)), the Contracting Officer may, by written order to the
Contractor, direct the Contractor to stop performance of the work
called for by this contract. * * *
* * * * *
[FR Doc. 95-482 Filed 1-9-95; 8:45 am]
BILLING CODE 6820-34-P
