[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Rules and Regulations]
[Pages 48224-48231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22777]
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DEPARTMENT OF DEFENSE
48 CFR Parts 1, 33, 42, 50, and 52
[FAC 90-32; FAR Case 94-730; Item II]
RIN 9000-AG28
Federal Acquisition Regulation; Protests, Disputes, and Appeals
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355) (the Act) dated October 13,
1994, to implement the Act's requirements with respect to disputes and
protests to the General Accounting Office and General Services
Administration Board of Contract Appeals. This regulatory action was
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993.
DATES: Effective date: October 1, 1995.
Applicability date: Where this rule repeats a GSBCA rule that went
into effect earlier, the date of the GSBCA rule and its applicability
provision prevails; otherwise, this rule is applicable to protests or
claims filed on or after the effective date of this rule.
FOR FURTHER INFORMATION CONTACT: Mr. Craig E. Hodge, Protests/Disputes
Team Leader, at (703) 274-8940 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 FAC 90-32,
FAR case 94-730, Protests, Disputes and Appeals.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355,
(the Act) provides authorities that streamline the acquisition process
and minimize burdensome Government-unique requirements.
This notice announces 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.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration and
the National Aeronautics and Space Administration certify that this
final rule will not 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 a relatively small
number of firms file protests or claims. In addition, this rule is
generally derivative of GAO and GSBCA rules which implement the
statute. Neither the GAO nor the GSBCA concluded that the rules they
were promulgating, which form the basis for this rule, had a
significant economic impact on a substantial number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the change to
the FAR does 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.
[[Page 48225]]
D. Public Comments
On January 10, 1995, a proposed rule was published in the Federal
Register (60 FR 2630). In response to the notice of proposed
rulemaking, 19 public comments were received.
The largest number of public comments concerned the definition of
``accrual''. Some commenters felt that contractor and Government claims
were to be treated differently because ``accrual'' was defined only in
terms of the contractor claim. To resolve that problem, a general
definition of ``accrual'' has been added. Several commenters requested
retroactive language be added. Therefore, the six-year limitation was
specifically applied only to contracts awarded after the end of the
current fiscal year. There were also a number of alternate definitions
of ``accrual'' proposed. In addition to the discovery of the events, a
discovery of some damage has been added to cover the unusual case where
the party is aware of the events giving rise to the claim, but not of
any resulting damage.
In the protest area, commenters exhibited the most interest in the
GAO bid protest file, and requested guidance on GAO and GSBCA witness
fee limitations. The protest file requirement has been clarified.
Although the GAO rule was concerned with providing protest files to the
intervenors, Congress mandated protest files be made available by the
contracting officer even to parties which failed to intervene. The
extent to which the discussion of protest files differs between the
proposed GAO regulation and this regulation reflects that difference.
In any event, the GAO final regulation dropped the requirement for a
protest file. Further specific guidance concerning witness fee
limitations has now been incorporated in the regulation.
List of Subjects in 48 CFR Parts 1, 33, 42, 50 and 52
Government procurement.
Dated: September 7, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, 48 CFR Parts 1, 33, 42, 50, and 52 are amended as set
forth below:
1. The authority citation for 48 CFR Parts 1, 33, 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 1--FEDERAL ACQUISITION REGULATION SYSTEM
2. Section 1.602-3 is amended by revising paragraph (c)(2) to read
as follows:
1.602-3 Ratification of unauthorized commitments.
* * * * *
(c) * * *
(2) The ratifying official has the authority to enter into a
contractual commitment;
* * * * *
PART 33--PROTESTS, DISPUTES, AND APPEALS
3. 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, as used in 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 the act, event, or default is included
unless--
[[Page 48226]]
(1) The last day is a Saturday, Sunday, or legal holiday; or
(2) In the case of a filing of a paper at any appropriate
administrative forum, the last day is a day on which weather or other
conditions cause the closing of the forum for all or part of the day,
in which event the next day on which the appropriate administrative
forum is open is included.
(c) In the case of the 5-day period after a debriefing date and the
10-day period after contract award for filing a protest resulting in a
suspension (as described at 33.104(c)), Saturdays, Sundays, and legal
holidays shall be counted.
Filed, as used in this subpart, means the complete 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 the solicitation or other request.
(c) An award or proposed award of the contract.
(d) A termination or cancellation of an award of the contract, if
the written objection contains an allegation that the termination or
cancellation is based in whole or in part on improprieties concerning
the award of the contract.
4. 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 could have been recommended by the
Comptroller General had the protest been filed with the General
Accounting Office; and
(2) Pay appropriate costs as stated in 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.
[[Page 48227]]
5. Section 33.103 is amended in the first sentence of (b)(1) by
removing ``or'' and inserting ``and'' in its place; revising the second
and third sentences of (b)(2) and the second sentence in (b)(4); and
adding (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
timely filed.
* * * * *
(4) * * * Failure to substantially comply with any of the
requirements of this paragraph (b) 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.
6. Section 33.104 is amended--
a. By revising the introductory text, paragraphs (a)(1), (a)(3),
the first sentence of (a)(4)(i) introductory text, (a)(4)(ii) (A) and
(B), (a)(5) introductory text, (a)(5) (i), (ii), and (iii), (a)(6),
(c)(1), (c)(5), (e), (f), (g), and (h);
b. By removing from the first sentence of (a)(2) the words
``substantial and'';
c. By adding a sentence to the end of paragraph (a)(2)(ii); and
d. By removing from (b)(1)(ii) the word ``calendar''; and by
removing the word ``protestor'' and inserting ``protester'' in
(a)(4)(i) introductory text, (a)(4)(ii)(C), and (d), and by removing
the word ``Protestor's'' in paragraph (a)(4)(i)(B) and adding
``Protester's'' in its place.
The revised and added text reads as follows:
33.104 Protests to GAO.
Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid
Protest Regulations). In the event guidance concerning GAO procedure in
this section conflicts with 4 CFR Part 21, 4 CFR Part 21 governs.
(a) General procedures. (1) A protester is required to 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, so it is received no later than 1 day after the
protest is filed with the GAO. The GAO may dismiss the protest if the
protester fails to furnish a complete copy of the protest within 1 day.
(2) * * *
(ii) * * * However, if the protester has identified sensitive
information and requests a protective order, then the contracting
officer shall obtain a redacted version from the protester to furnish
to other interested parties, if one has not already been provided.
(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 shall submit 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--
(A) Advises the agency that the protest has been dismissed; or
(B) Authorizes a longer period in response to an agency's request
for an extension. Any new date is documented in the agency's file.
(ii) When a protest is filed with the GAO, and an actual or
prospective offeror so requests, the procuring agency
[[Page 48228]]
shall, in accordance with any applicable protective orders, provide
actual or prospective offerors reasonable access to the protest file.
However, if the GAO dismisses the protest before the documents are
submitted to the GAO, then no protest file need be made available.
Information exempt from disclosure under 5 U.S.C. 552 may be redacted
from the protest file. The protest file shall be made available to non-
intervening actual or prospective offerors within a reasonable time
after submittal of an agency report to the GAO. The protest file shall
include an index and as appropriate--
(A) The protest;
(B) The offer submitted by the protester;
(C) The offer being considered for award or being protested;
(D) All relevant evaluation documents;
(E) The solicitation, including the specifications or portions
relevant to the protest;
(F) The abstract of offers or relevant portions; and
(G) Any other documents that the agency determines are relevant to
the protest, including documents specifically requested by the
protester.
(iii) The agency report to the GAO shall include--
(A) A copy of the documents described in 33.104(a)(3)(ii);
(B) The contracting officer's signed statement of relevant facts
and a memorandum of law. The contracting officer's statement shall set
forth findings, actions, and recommendations, and any additional
evidence or information not provided in the protest file that may be
necessary to determine the merits of the protest;
(C) A list of the documents withheld from the protester, or
intervenors, and the reasons for withholding them. The list identifies
any documents specifically requested by, and withheld from, the
protester; and
(D) A list of parties being provided the documents.
(4)(i) At the same time the agency submits its report to the GAO,
the agency shall furnish copies of its report to the protestor and any
intervenors. * * *
* * * * *
(ii)(A) If the protester requests additional documents within 2
days after the protester knew the existence or relevance of additional
documents, or should have known, the agency shall provide the requested
documents to the GAO within 5 days of receipt of the request.
(B) The additional documents shall also be provided to the
protester and other interested parties within this 5-day period unless
the agency has decided to withhold them for any reason (see subdivision
(a)(4)(i) of this section). This includes any documents covered by a
protective order issued by the GAO. Documents covered by a protective
order shall be provided only in accordance with the terms of the order.
* * * * *
(5) 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.
(i) Requests for protective orders. Any party seeking issuance of a
protective order shall file its request with the GAO as soon as
practicable after the protest is filed, with copies furnished
simultaneously to all parties.
(ii) Exclusions and rebuttals. Within 2 days after receipt of a
copy of the protective order request, any party may file with the GAO a
request that particular documents be excluded from the coverage of the
protective order, or that particular parties or individuals be included
in or excluded from the protective order. Copies of the request shall
be furnished simultaneously to all parties.
(iii) Additional documents. If the existence or relevance of
additional documents first becomes evident after a protective order has
been issued, any party may request that these additional documents be
covered by the protective order. Any party to the protective order also
may request that individuals not already covered by the protective
order be included in the order. Requests shall be filed with the GAO,
with copies furnished simultaneously to all parties.
* * * * *
(6) The protester and other interested parties are required to
furnish a copy of any comments on the agency report directly to the GAO
within 14 days, or 7 days if express option is used, after receipt of
the report, with copies provided to the contracting officer and to
other participating interested parties. If a hearing is held, these
comments are due within 7 days after the hearing.
* * * * *
(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 protester for any
debriefing that is required by 15.1004, 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 subparagraph (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.
* * * * *
(e) Hearings. The GAO may hold a hearing at the request of the
agency, a protester, or other interested party who has responded to the
notice in paragraph (a)(2) of this section. A recording or
transcription of the hearing will normally be made, and copies may be
obtained from the GAO. All parties may file comments on the hearing and
report within 7 days of the hearing.
(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. 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 the 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, a proposed award, or an award of a contract does not
comply with a statute or regulation, the GAO may recommend that the
agency pay to an appropriate protester the cost, exclusive
[[Page 48229]]
of profit, of filing and pursuing the protest, including reasonable
attorney, consultant and expert witness fees, and bid and proposal
preparation costs. The agency shall use funds available for the
procurement to pay the costs awarded.
(2) If the GAO recommends the award of costs to an interested
party, the agency 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
pursuant to 5 U.S.C. 3109 and Expert and Consultant Appointments, 60 FR
45649, September 1, 1995 (5 CFR 304.105); 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 a ``reasonable'' level for attorneys'
fees for small businesses.
(4) A recommended award of costs may be paid by the agency from
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 that the agency pay costs (as defined in
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 not
be the subject of subsequent proposals, billings, or claims against the
Government and those exclusions should be reflected in the cost
agreement.
7. Section 33.105 is amended--
a. By adding an introductory paragraph;
b. By revising (a)(1) and the introductory text of (d)(1);
c. By removing from (a)(2)(i) ``working day'' and inserting ``work
day'' in its place, from (a)(2)(ii) ``five working days'' and inserting
``3 work days''; from (b)(6) ``protestors'' and inserting
``protesters''; from (c) ``15'' and inserting ``10'', from (d)(1)(i)
the word ``calendar'', and from (e) ``25 work days'' and ``45 work
days'' and inserting ``35 days'' and ``65 days'', respectively;
d. By redesignating paragraphs (f) and (g) as (g) and (h),
respectively, and revising the newly redesignated (g) and (h), and
f. By adding new paragraphs (d)(4) and (f).
The revised and added text reads as follows:
33.105 Protests to GSBCA.
Procedures for protests to the GSBCA, are found at 48 CFR Chapter
61 (GSBCA Rules). In the event guidance concerning GSBCA procedures in
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 Section 111 of the Federal Property and
Administrative Services Act (40 U.S.C. 759), the GSBCA reviews 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 this section 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, unless the agency
does not contest an order suspending its procurement authority. 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 15.1004,
whichever applies. 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 the 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) The GSBCA may declare an appropriate prevailing party to be
entitled to the cost, exclusive of profit, of--
(i) Filing and pursuing the protest, including reasonable attorney,
consultant and expert witness fees; and
(ii) Bid and proposal preparation.
(2) Costs awarded under subparagraph (g)(1) of this section, or
payments of amounts due under settlement agreements, shall be paid out
in 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 for--
(i) Consultant and expert witness fees that exceed the highest rate
of compensation for expert witnesses paid by the Government pursuant to
5 U.S.C. 3109 and Expert and Consultant Appointments, 60 FR 45649,
September 1, 1995 (5 CFR 304.105); or
(ii) 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 a ``reasonable'' level for
attorneys' fees for small businesses.
[[Page 48230]]
(4) Within 30 days after receipt by the agency of an application
for costs, 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 of 1978 (41 U.S.C. 601-613).
8. Section 33.201 is amended by adding in alphabetical order
definitions for ``Accrual of a claim'' and ``Alternative dispute
resolution (ADR)'' removing the definition ``Alternative means of
dispute resolution (ADR)''; and in the definition ``Claim'' by removing
the amount ``$50,000'' and inserting ``$100,000'' in its place.
33.201 Definitions.
Accrual of a claim occurs on the date when all events, which fix
the alleged liability of either the Government or the contractor and
permit assertion of the claim, were known or should have been known.
For liability to be fixed, some injury must have occurred. However,
monetary damages need not have been incurred.
Alternative 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
may 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 accrual of a
claim, unless the contracting parties agreed to a shorter time period.
This 6-year time period does not apply to contracts awarded prior to
October 1, 1995. 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, unless the contracting parties agreed to a
shorter time period. The 6-year period shall not apply to contracts
awarded prior to October 1, 1995, or to a Government claim based on a
contractor claim involving fraud.
33.207 [Amended]
10. Section 33.207 is amended in paragraph (a)(1) by removing
``$50,000'' and inserting ``$100,000'' in its place.
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
``$10,000'' and ``$50,000'' and inserting ``$50,000'' and ``$100,000'',
respectively; in (c)(1), (c)(2) and (e) by removing ``$50,000'' and
inserting ``$100,000'' in its place; 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.
* * * * *
14. Subpart 42.16 is added to read as follows:
Subpart 42.16--Small Business Contract Administration
42.1601 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 the 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
15. Section 50.303 is redesignated as 50.303-1 and a new 50.303
heading is added to read as follows:
50.303 Contract adjustment.
* * * * *
16. 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.
50.304, 50.305 & 50.306 [Amended]
17. Sections 50.304(a) introductory text, 50.305(a) and 50.306
introductory text are amended by removing the reference ``50.303'' and
inserting ``50.303-1'' in its place.
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 paragraphs (d)(1) and (g); in
(d)(2)(i)(A) and twice in (e) by removing ``$50,000'' and inserting
``$100,000'' to read as follows:
52.233-1 Disputes.
* * * * *
Disputes (Oct 1995)
* * * * *
(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,
[[Page 48231]]
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 (Oct 1995)
* * * * *
(c) In this procurement, you may not protest to the GSBCA
because of the nature of the supplies or services 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 the first sentence of (a) to read as follows:
52.233-3 Protest after Award.
* * * * *
Protest After Award (Oct 1995)
* * * * *
(a) Upon receipt of a notice of protest (as defined in FAR
33.101) 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. 95-22777 Filed 9-15-95; 8:45 am]
BILLING CODE 6820-EP-P
