Protest, Claims, Disputes and Appeals Chapter 7

1. Protest, Claims, Disputes and Appeals Chapter 7

2. Learning Objectives Distinguish the different Contingency Contracting environment from CONUS contracting regarding protests and claims Determine when to employ the various resolution approaches Decide how to resolve a claim/protest in any AOR

3. Protests Good lines of communication between the contingency contracting office and the supporting legal office are critical to successfully defend against any bid protest or appeal. As part of deployment preparations, the CCO must identify and know how to work with supporting legal counsel. What should I do?

4. Protests to the Agency • Prior to submission of an agency protest, all parties shall use their best efforts to resolve concerns. • Agency should provide for inexpensive, informal, simple, and expeditious resolution. • Alternative dispute resolution (ADR) , third party neutrals, and another agency’s personnel are acceptable protest resolution methods.

5. Protests to the Agency Con’t • Protests to the agency shall include pertinent information per FAR 33.103(d)(2), such as: • Name, address, fax, and telephone numbers of the protester • Solicitation or contract number • Detailed statement of legal and factual grounds for the protest • Copies of relevant documents • Request for a ruling by agency • Statement as to the form of relief requested • All information establishing protester as an interested party and the timeliness of the protest • Failure to substantially comply with the above may be grounds for dismissal of the protest

6. Receipt of a Protest: Action • If award is withheld pending agency resolution of the protest, CCO will inform individuals whose offers may become eligible for the award of the contract. • If appropriate, the offerors should be requested to extend the time for acceptance to avoid the need for resolicitation. • Upon receipt of a protest, the CCO shall immediately suspend performance, pending resolution of the protest within the agency. • Pursuing an agency protest does not extend the time for obtaining a stay at GAO. • Agencies shall make their best efforts to resolve agency protests within 35 days after the protest is filed.

7. Protests to GAO • General Procedures • Protester provides copy to contracting office within 1 day after filing with GAO • Agency immediately notifies awardee or potential awardees that protest filed • KO immediately begins compiling information for report to the GAO

8. Protest Procedures • Agency provides • Copy of documents described in 33.104(a)(3)(ii) • KO’s signed statement of relevant facts • List of parties receiving the documents • Agency must provide a copy of the GAO report to the protester • GAO may issue protective orders • Protester/other parties submit comments on agency’s report to GAO • Agency must provide GAO contact information for knowledgeable person

9. Protests Before Award • After notified of protest from GAO, contract may not be awarded…unless HCA determines • Urgent and compelling circumstances significantly affect the U.S. and can’t wait for GAO decision, and • Award is likely to occur within 30 days of written finding • Award shall not be authorized unless HCA determination above provided to GAO • If award will be withheld, agency should ask potential awardees to extend their offers

10. Protest After Award • When agency receives notice of timely protest from GAO, KO will suspend performance or terminate, unless HCA states in writing that • Contract performance will be in the best interests of the United States; or • Urgent and compelling circumstances that significantly affect the interests of the United States will not permit waiting for the GAO’s decision * Contract performance shall not be authorized until the agency has notified the GAO of the finding

11. Claims • Government’s policy - try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level • Claim - a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract • Demand or assertion for amounts > $100K is not a claim unless certified IAW FAR 33.207 • If contractor cannot support any part of claim and there is misrepresentation of fact or fraud, KO shall refer to investigative agency

12. CCO Final Decision (FAR 33.211) • If claim cannot be resolved by mutual agreement • Review facts pertinent to claim • Secure legal assistance • Coordinate with ACO, if appropriate • Prepare written decision • Description of the claim or dispute • Reference to the pertinent contract terms • Statement of the factual areas of agreement and disagreement • Statement of the contracting officer’s decision, with supporting rationale • Demand for payment prepared in accordance with 32.610(b) in all cases where the decision results in a finding that the contractor is indebted to the Government

13. Final Decision Con’t • CCO shall furnish a copy of the decision to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt • Time limitations • If claim ≤ $100K, within 60 days of receipt • If claim > $100K, 60 days after receiving a certified claim, provided that if decision will not be issued within 60 days, CCO provides an estimated timeframe • Failure of the CCO to issue a decision within the required time periods will be deemed a decision by the contracting officer denying the claim and will authorize the contractor to file an appeal or suit on the claim

14. Disputes, Appeals and ADR • Under the Contract Disputes Act, CCOs receive NO special treatment or waiver of applicable rules simply because a contingency contract action is at issue • CDA requires contractor to continue performance pending a final resolution of any claim (FAR 52.233-1 required) • If appeal filed, CCO shall provide data, documentation, information, and support as may be required by the agency Board of Contract Appeals • Both parties encouraged to use ADR in lieu of expensive, time-consuming litigation

15. Practical Tips for CCOs • CCOs, inspectors, and CORs should use digital cameras to document performance problems • Account for personnel turnover • Maintain accurate, current contract files, electronic files preferred • Use legal office (local and/or reach-back) in responding to claims and/or appeals