AFARS PART 33

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AFARS -- Part 33

Protests, Disputes, and Appeals

AAC 96-2
July 25, 1997

Subpart 33.1 -- Protests

33.102 -- General

(b)

33.103 -- Protests to the Agency.

(a)

(d)

33.103-90 -- Annual Agency Bid Protest Report.

HCAs shall prepare an annual report of agency bid protests and send it to the addressee in 1.290(b)(3) not later than 30 calendar days following the end of the fiscal year. The analysis will include the following information:

(a) the number of protests received during the reporting period, to include their disposition;

(b) an assessment of the causes of the most frequently recurring issues, including a description of all corrective actions taken to include the award of protest costs;

(c) the distribution of protests by subordinate contracting offices; and

(d) any additional information considered necessary to a full understanding of the efficiency and effectiveness of the activity's agency protest procedures.

33.104 -- Protests to GAO.

(a) General procedures. The contracting officer shall take the action required of the "agency" in FAR 33.104.

(b) Protests before award.

(c) Protests after award.

(g) Notice to GAO. Forward the report to the addressee in 1.290(b)(1) not later than 45 days after receipt of the recommendations.

33.105 -- Deleted

33.190 -- Reporting and Analysis of Bid Protests.

33.190-1 -- Bid Protest Action Report.

Within 15 calendar days following notification of resolution of a GAO or GSBCA protest, the contracting officer shall submit a bid protest action report in the format in 53.9006 (double spaced between item numbers) to the following addressees:

(a) AMC contracting activities: Addressee in 1.290(b)(13).

(b) USACE contracting activities: Addressee in 1.290(b)(12).

(c) All other contracting activities: Addressee in 33.104(a)(4)(i)(1)(iii).

33.190-2 -- Quarterly Bid Protest Analysis Report.

(a) AMC, USACE and the Office of the Chief Trial Attorney shall prepare a quarterly bid protest analysis report for GAO protests and a separate report for GSBCA protests in the format in 53.9007 (double space between item numbers) and send it with the bid protest action reports to the addressee in 1.290(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 and GSBCA.

(b) The ODASA(P), Information Management & Assessment Division, shall prepare a consolidated report quarterly not later than 45 calendar days following the end of each quarter. After approval, the analysis will be distributed to recipients of Army Acquisition Letters.

Subpart 33.2 -- Disputes and Appeals

33.212 -- Contracting Officer's Duties Upon Appeal.

33.212-90 -- Appeal Procedures.

(a) For purposes of this section 33.212-90 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 33.212-90 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.

33.212-90-1 -- Notice of an Appeal.

Contracting officers shall concurrently --

(a) Promptly forward to the Chairman, Armed Services Board Of Contract Appeals, 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

(b) When the Defense Contract Management Command (DCMC) staff has participated in contract award and/or administration, forward to the DCMC office involved a written notice of the appeal, with direction to preserve all documents pertaining to the contract.

33.212-90-2 -- 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.

33.212-90-3 -- Comprehensive Report to the Chief Trial Attorney.

(a) Concurrent with forwarding the appeal file to the ASBCA, the contracting officer shall forward the following documents to the addressee in 33.104(a)(4)(i)(1)(ii) or (iii) as applicable and send a copy of the documents to the reviewing official designated in accordance with 33.212-90-4:

(b) The contracting officer shall promptly forward 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.

(c) Upon discovery of new facts or circumstances, the Chief Trial Attorney is authorized, in appropriate cases, to have the reviewing official reconsider the matter.

33.212-90-4 -- Review of Appeal.

(a) The HCA shall --

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

33.212-90-5 -- 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, the contracting officer shall, as promptly as possible but within 15 calendar days after receipt of the complaint, forward 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.

(b) Provide copies of the supplementary information furnished the Chief Trial Attorney to the reviewing official.

33.212-90-6 -- Litigation.

The Chief Trial Attorney, as the authorized representative of the Secretary of the Army, is delegated sole authority and responsibility for the conduct and control of litigation of contract disputes docketed with the ASBCA.

(a) The Chief Trial Attorney shall present all Army cases to the ASBCA, using trial attorneys assigned to the office, except that --

(b) Local legal counsel to the contracting officer and, when their expertise is required, any other person in the contracting activity shall assist and support the Office of the Chief Trial Attorney in preparing the case.

(c) The Chief Trial Attorney and the attorneys assigned to that office are authorized to communicate directly with any person or organization to secure any witnesses, documents, or information considered necessary in connection with representing the Government in matters before the ASBCA. The contracting officer shall be informed of any actions taken in connection with these matters.

33.212-90-7 -- Disposition.

(a) The authority and responsibility to settle contract disputes docketed with the ASBCA remains with the contracting officer, subject to (b) and the following:

(b) The Chief Trial Attorney has all necessary authority to conclude settlement agreements with the concurrence of the contracting officer, the reviewing official or the DASA(P). The Chief Trial Attorney shall notify the appropriate MACOM legal office/SJA of any disagreement regarding the settlement of a case before raising the matter to the ASA(RDA).

33.212-90-8 -- Review of ASBCA Decisions.

(a) Contracting activity review.

(b) Chief Trial Attorney review.

33.213 -- Obligation to Continue Performance.

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

33.215 -- Contract Clause.

See 33.213(a).

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