AFARS PART 5133

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Subpart 5133.1 -- Protests

Subpart 5133.2 -- Disputes and Appeals


AFARS -- Part 5133

Protests, Disputes, and Appeals


Subpart 5133.1 -- Protests

5133.102 -- General

(b)

5133.103 -- Protests to the Agency.

(d)

5133.103-90 -- Annual Agency Bid Protest Report.

HCAs must prepare an annual report of agency bid protests and send it to the addressee in 5101.290(b)(3) not later than 30 calendar days following the end of the fiscal year. The analysis must include:

5133.104 -- Protests to GAO.

(b) Protests before award.

(c) Protests after award.

(g) Notice to GAO. Send the report to the addressee in 5101.290(b)(1) not later than 45 days after receipt of the recommendations.

5133.105 -- Deleted

5133.190 -- Reporting and Analysis of Bid Protests.

5133.190-1 -- Bid Protest Action Report.

Within 15 calendar days following notification of resolution of a GAO protest, the contracting officer must send a bid protest action report in the format in 5153.9006 (double spaced between item numbers) to the following addressees:

5133.190-2 -- Quarterly Bid Protest Analysis Report.

(a) AMC, USACE and the Office of the Chief Trial Attorney must prepare a quarterly bid protest analysis report for GAO protests in the format in 5153.9007 (double space between item numbers) and send it with the bid protest action reports to the addressee in 5101.290(b)(5), not later than 30 calendar days following the end of the quarter. The analysis will also include an assessment of the causes of the most frequently recurring issues and recommendations for appropriate corrective action. Reconcile the numbers submitted with the most current data available from the GAO.

(c) The ODASA(P), Information Management & Assessment Division, will prepare a consolidated report quarterly not later than 45 calendar days following the end of each quarter.

Subpart 5133.2 -- Disputes and Appeals

5133.212 -- Contracting Officer's Duties Upon Appeal.

5133.212-90 -- Appeal Procedures.

(a) For purposes of this section and DFARS Appendix A, the duties and responsibilities of the Chief Trial Attorney are performed by the Army Chief Trial Attorney or the Engineer Chief Trial Attorney as follows:

(b) All contract disputes addressed in this section remain subject to the litigation oversight authority and responsibility delegated to the General Counsel of the Department of the Army.

(c) See DFARS Appendix A for the Armed Services Board of Contract Appeals (ASBCA) charter and rules.

5133.212-90-1 -- Notice of an Appeal.

Contracting officers must concurrently --

(a) Send to the Chairman, ASBCA, 5109 Leesburg Pike, Suite 703, Falls Church VA 22041-3208, any notice of an appeal received directly and include the envelope showing the postmark when the notice of appeal is received by mail; and

5133.212-90-2 -- ASBCA Appeal File.

See DFARS Appendix A, Part 2, Preliminary Procedures, Rule 4, for the contents of the appeal file to be forwarded to the ASBCA.

5133.212-90-3 -- Comprehensive Report to the Chief Trial Attorney.

(b) The contracting officer must send to the Chief Trial Attorney a copy of all correspondence and other data pertinent to the dispute received after the trial attorney’s litigation file has been submitted. Also forward copies to the reviewing official.

5133.212-90-4 -- Review of Appeal.

(a) The HCA shall --

(b) The reviewing official designated by the HCA shall --

5133.212-90-5 -- Receipt of Complaint.

(a) If the contracting officer receives the complaint (DFARS Appendix A, Part 2, Preliminary Procedures, Rule 6) subsequent to forwarding the comprehensive report to the Chief Trial Attorney, he/she must within 15 calendar days after receipt of the complaint, send directly to the Chief Trial Attorney supplementary information covering any issues raised by the complaint which were not sufficiently covered in the comprehensive report. Include specific admissions or denials of each allegation of fact contained in the complaint and a statement of any affirmative defenses or counterclaims applicable.

5133.212-90-6 -- Litigation.

The Chief Trial Attorney is delegated sole authority and responsibility for the conduct and control of litigation of contract disputes docketed with the ASBCA.

5133.212-90-7 -- Disposition.

5133.212-90-8 -- Review of ASBCA Decisions.

5133.212.90-9 Dispute Settlement & Judgments, Use of the Judgment Fund

(a) Judgment Fund. The Contract Disputes Act (CDA) provides that the Judgment Fund (“the Fund”) may be used to pay for adverse judgments against the Government. Settlement agreements in CDA cases before the Armed Services Board of Contract Appeals may be converted into consent judgments to access the Judgment Fund to pay for settlements under certain circumstances. Settlement in CDA cases before Federal Courts where the Army is represented by the Department of Justice may use DoJ’s independent authority to use the Judgment Fund for settlements, however, the policy set forth herein shall be followed by Army contracting activities . The Judgment Fund must be reimbursed with funds current as of the date of the judgment.

(b) Fiscal Considerations in Settlements. If funds appropriate to pay a settlement are expired but the account remains open, Contracting Officers must use expired funds to pay the settlement. If the account remains open but no expired funds remain, Contracting Officers must use the Judgment Fund to access current funds to pay the settlement. Access to the Fund requires a consent judgment from the Board or use of the Department of Justice’s independent authority to use the Fund. If accounts appropriate to pay a settlement are canceled/closed, Contracting Officers may use current funds to pay the settlement.

(c) Settlement Procedures . (1) The Army shall assign responsibility, within the Office of the Assistant Secretary of the Army (Financial Management) (ASA(FM)), for tracking available expired funds within the Service. The ASA(FM) shall insure that financial managers throughout the Service are aware of the requirements set forth herein and are prepared to expeditiously assist contracting officers to comply with these procedures.

(2) The following procedures for settlements shall be followed by the Army.

(d) Judgments. The following procedures shall be used to pay judgments using the Judgment Fund.

(e) Settlement agreements. All settlements converted to consent judgments and funded by the Judgment Fund shall be in writing and contain appropriate release language. The contracting officer, local attorney and trial attorney shall insure that all settlement amounts are fair and reasonable.

(f) Expeditious handling. Inquiries and approvals required by these procedures may be oral so long as they are documented by memorandum for record. Settlements are often time-sensitive and these procedures should be carried out expeditiously.

5133.213 -- Obligation to Continue Performance.

(a) The HCA must approve the determination to use the alternate paragraph in the clause at FAR 52.233-1.

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