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NAPS PART 5233



NAVY ACQUISITION PROCEDURES SUPPLEMENT

PART 5233

PROTESTS, DISPUTES, AND APPEALS

SUBPART 5233.1-PROTESTS

5233.104 Protests to GAO.

(g) HCAs shall consult with ABM before any final decision is reached not to implement GAO's recommendations. A copy of each report shall be provided to ABM concurrent with the submission to the Comptroller General.

SUBPART 5233.2-DISPUTES AND APPEALS

5233.201 Definitions.

"Disruption", as used in this part, means the cost effect upon, or the increased cost of performing, the unchanged work due to a change to the contract.

"Delay", as used in this part with respect to contractors, claims or requests for equitable adjustments, means the time-oriented cost effects or length of a suspension in scheduled contract work or a period of time-oriented cost effects or length of a suspension in scheduled contract work or a period of time a contractor is required to perform beyond the contract delivery or completion date, allegedly due to contractually remediable Government actions or inactions. Delay can be expressed in terms of time or cost or some combination of time and cost.

5233.203 Applicability.

(b) The HCA is the designated official for making a determination that the application of the Act to the contract would not be in the public interest.

5233.204 (DFARS 233.204) Policy.

5233.204(90) General.

(a) Multi-discipline approach. Since claims by contractors often involve difficult and complex legal, factual and financial issues requiring extensive fact-finding or analysis to determine whether or not the Government is liable, a multi-disciplined team should generally be established to analyze the claim.

(b) Formal and constructive changes.

(c) Rejection of "total cost" and "total time" based claims.

Claims based on "total cost" or "total time" approaches are considered only as a last resort. A contractor (claimant) filing a total cost or total time based claim must establish that there is no other feasible, acceptable basis for computing the claimant's increased costs or delays, and prove that there is no way of correlating government actions and omissions to historical cost elements or even to reasonable substantiated cost estimates.

5233.208 Interest on claims.

(d) For claims which require approval by ABM, when it is necessary for the Contracting Officer to obtain additional contract funding in order to honor the Government's obligations in an interest bearing situation, the contracting activity shall notify ABM immediately.

5233.209 Suspected fraudulent claims.

The Naval Criminal Investigative Service

is the agency official responsible for investigating fraud.

5233.211 Contracting officer's decision.

(a)(1) When reviewing the facts pertinent to a claim, the contracting officer should determine if the claimant established:

(i) the existence of a legal basis for entitlement,

(ii) facts meeting the elements of proof required to support the basis of entitlement, and

(iii) adequate factual support for the amounts claimed.

(b) Copies of the contracting officer's decision will receive the same distribution as the related contract and also will be furnished to any assignee, guarantor, or surety of the contractor. In addition, a legible copy of the decision shall be forwarded to the Office of the General Counsel, Legal Services Support Group, Navy Litigation Office, Department of the Navy, Washington, DC. 20360 at the time of transmittal to the contractor.

SUBPART 5233.90-PROCEDURES

5233.9000 Documentation of significant contract events.

For Navy activities where contract administration functions are performed, a record of significant events shall be maintained with respect to:

(1) All contracts in excess of $5,000,000; and

(2) All contracts, regardless of dollar amount, wherein the officer in charge of the contract administration office has determined a reasonable possibility exists that a claim may be asserted thereunder.

5233.9001 Claims approval requirements.

(a) All proposed claim settlements in excess of $25 million, and final decisions of the contracting officer involving payments in an amount greater than $25 million, shall be submitted to ABM for review and approval. Other proposed claim settlements and final decisions of the contracting officer, shall be reviewed and approved as specified by the HCA.

(b) The supporting documentation submitted to ABM with respect to claim settlements or final decisions of a contracting officer will include a legal memorandum. As a minimum the required legal memorandum should:

facts satisfying the elements of proof required by such legal theory or theories;

(c) No settlement commitment or final decision shall be made prior to obtaining the required approval.

(d) Primary emphasis should be given to achieving prompt settlement of claims, thereby obviating need for provisional price increases or payments. Provisional price increases or provisional payments against contractor claims may be made when the following documents have been obtained:

5233.9002 Contractor appeals to the Armed Services Board of Contract Appeals (ASBCA).

(a) General. The Office of the General Counsel (OGC) has sole litigation authority for all appeals under DoN contracts to the ASBCA. Because of the frequent complexity of these cases, the OGC and the contracting activity involved should maintain the continuity of any DoN claim team which might have investigated and evaluated the contractor's claim submission. Such teams should continue to function in an assisting capacity under the leadership of the OGC Trial Attorney assigned to handle the appeal.

(b) Litigation report requirement. With the compilation of Rule 4 documents, a comprehensive litigation report shall be forwarded to the Litigation Division. The report should include:

(c) Settlement negotiations pending appeal. The conduct of settlement negotiations in connection with any pending appeal should generally be accomplished by a selected team consisting of the trial attorney and representatives of the contracting officer (including contracting activity technical personnel, counsel, negotiator, and auditor if necessary). Other arrangements may be made in specific cases as appropriate. However, no final settlement agreement will be made without the written approval of the contracting officer. When a settlement is made, a memorandum shall be prepared by the negotiating team (and signed by all team members) stating the basis and reasons therefor. The settlement agreement shall be drafted by the contracting activity and trial attorney. The trial attorney shall file any legal papers required to be filed with the ASBCA to effect disposition of the case by mutual agreement of the parties.

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