AFARS -- Part 33
Protests, Disputes, and Appeals
AAC 96-2
July 25, 1997
(b)
(i) The Head of Contracting Activity (HCA) may make agency head determinations and act for the agency head regarding those actions described in FAR 33.102(b)(1) and (b)(2), with power of redelegation no lower than the Principal Assistant Responsible for Contracting, the Chief of the supporting legal office, or the official designated as the independent review authority in accordance with FAR 33.103(d)(4).
(ii) Actions taken pursuant to this authority shall be consistent with 20 U.S.C.2305(f), 31 U.S.C.3554, and FAR Part 33.
(iii) With respect to the award of costs, contracting officers shall attempt to reach an agreement on the amounts of costs to be paid to a protester or an interested party. If no agreement can be reached, persons exercising authority as cited in (i) above may, at the request of the protester or an interested party, make the final agency determination of the amount the contracting officer will pay.
(iv) Officials shall consult legal counsel in exercising this authority.
33.103 -- Protests to the Agency.
(a)
(2) Deleted.
(d)
(3) As soon as practicable after receipt of a protest at the contracting office, the contracting officer shall consult with the legal office concerning the protest. Protests received at a level higher than the contracting office shall be referred to the contracting office for resolution. Concurrent with this referral, the office that initially received the protest will send the protester a letter, identifying the contracting office that will handle the protest and giving the point of contact within that office.
(4) Protests requesting an independent review at a level above the contracting officer will be handled as follows:
(i) For contracting officers under the jurisdiction of HQ, AMC, in accordance with procedures established by the Commander, AMC.
(ii) For Contracting offices under the jurisdiction of the Corps of Engineers, in accordance with the procedures established by the Chief of Engineers.
(iii) For all other contracting activities, in accordance with procedures established by the HCA. If the independent review will be conducted within contracting channels, the HCA will appoint a review authority at least at the level of Director of Contracting. The HCA may also appoint individuals assigned outside contracting channels as a review authority (e.g. attorneys, chief of staff, installation commanders).
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.
(a) General procedures. The contracting officer shall take the action required of the "agency" in FAR 33.104.
(4)(i)
(1) Contracting offices shall use the following reporting procedures, except that the PARC may require the report to be sent through the PARC's office:
(i) Contracting offices reporting to AMC shall forward the report directly to the addressee in 1.290(b)(12).
(ii) Contracting offices reporting to the U.S. Army Corps of Engineers (USACE) shall forward the report directly to the addressee in 1.290(b)(13).
(iii) All other Army contracting offices shall forward the report by courier or U.S. Postal Service's Express Mail (or equivalent express mail service) directly to the Office Of The Chief Trial Attorney, Attn: DAJA-CA, 901 N. Stuart Street, Suite 500, Arlington, VA 22203-1837.
(iv) The report shall be forwarded to reach the addressees in (i)-(iii) not later than 20 days after the GAO notifies the agency by telephone that a protest has been filed. If the GAO decides to use the express option and the contracting officer concludes that the report cannot be furnished in time, the contracting officer shall notify the appropriate office in (i)-(iii) at once so that it may request an extension from GAO.
(2) Before forwarding the report to the Comptroller General, the addressees in (1)(i)-(iii) shall review the report and recommend any changes required to ensure that the report sent to the Comptroller General is accurate, complete and legally sufficient.
(b) Protests before award.
(1)
(A) When it is necessary to request authorization to award a contract notwithstanding a protest, the contracting officer shall prepare the written finding in the form of a D&F to be signed by the HCA. The D&F must clearly explain the damage the United States will suffer if award is not authorized and the damage the United States will suffer if the award is made and the protest is sustained. However, no award shall be made or selection announced prior to approval by the DASA(P), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. The contracting officer shall also prepare a request for approval which identifies all protest issues and addresses the merits and expected resolution of the protest. Include details of any Congressional interest in the protest. After legal review, forward the request with the D&F to the HCA.
(B) Within three days after the contracting office is notified of the protest, the HCA shall endorse the request for approval and electronically transmit the request and the D&F to the appropriate office in (a)(4)(i)(1)(i)-(iii). That office shall immediately distribute the request and the D&F to the addressee in 1.290(b)(1) and to Department Of The Army, Attn: Sagc, General Counsel, 104 Army Pentagon, Washington DC 20310-0104.
(c) Protests after award.
(2) rocess the finding as required at (b), Protests before award. The D&F must clearly explain the damage the United States will suffer if continuing performance is not authorized and the damage the United States will suffer if continuing performance is authorized and the protest is sustained. Continuing performance cannot be authorized prior to approval by the DASA(P), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. Process the request for approval as required in (b).
(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.
33.190 -- 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:
(i) The Army Chief Trial Attorney, as appointed by the Judge Advocate General, is the authorized representative of the Secretary of the Army and has sole authority and responsibility for the conduct and control of litigation of contract disputes for all department of the Army cases docketed with the ASBCA, except for Corps of Engineer cases described in (ii) and (iii);
(ii) The Engineer Chief Trial Attorney, as appointed by the Chief Counsel, Corps of Engineers, is the authorized representative of the Secretary of the Army and has sole authority and responsibility for the conduct and control of litigation of contract disputes for all Corps of Engineers cases docketed with the ASBCA of a value of less than $3 million;
(iii) The Assistant Judge Advocate General for Civil Law may determine, on a case by case basis, to delegate Corps of Engineer cases of a value of $3 million or more to the Engineer Chief Trial Attorney.
(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:
(1) A copy of the appeal file.
(2) A trial attorney's litigation file (exempt report, paragraph 5-2e(4) of AR 335-15) which shall include the information listed in (i) through (v). This report shall not be provided to the ASBCA or the contractor.
(i) The names, current addresses and telephone numbers of all potential witnesses (including the contractor's) having information concerning the facts in dispute.
(ii) A signed statement of each Government witness itemizing personal knowledge of the facts the witness will testify to under oath at hearing (or a summary if it is impossible to obtain a signed statement). Include the following:
(A) Background and circumstances surrounding the generation of pertinent documents.
(B) Explanation, basis and/or rationale of those portions of the available documents which will require clarification at the hearing.
(C) Listing of any facts and events not shown by available documents.
(D) Identification of any other persons having personal knowledge of pertinent facts.
(E) A statement regarding the expected availability of the witness for the hearing.
(iii) An analysis for the Chief Trial Attorney discussing the contractor's individual allegations and overall position with an opinion of the validity of each, and an appraisal of the strengths and weaknesses apparent in both parties' positions.
(iv) A memorandum by the legal advisor or the official making the decision (with input from legal counsel), setting forth an analysis of the legal issues involved in the dispute, including comments about the adequacy of the findings of fact and the legal sufficiency of the decision.
(v) The advisory report, if any, of the Contract Settlement Review Board.
(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 --
(1) Furnish technical and legal assistance to the contracting officer as required; and
(2) Establish procedures to ensure that all appeals filed under the disputes clause are reviewed at a level higher than the contracting officer.
(b) The reviewing official designated by the HCA shall --
(1) Ensure that the findings cover all issues in dispute and are consistent with the decision from which the appeal is taken;
(2) Ensure that the contracting officer's comprehensive report to the Chief Trial Attorney, including the evidence submitted in support of the contracting officer's decision, is complete;
(3) Within 10 calendar days after receiving the contracting officer's comprehensive report, forward to the Chief Trial Attorney --
(i) Evaluations, conclusions and recommendations;
(ii) Any additional evidence considered essential to enable the Chief Trial Attorney to protect the interests of the Government before the ASBCA; and
(iii) If the reviewing official decides that the contracting officer's decision is not sufficiently supported by available and competent evidence or is erroneous, an estimated date by which either additional support will be furnished or the decision will be withdrawn; and
(4) Assist the Chief Trial Attorney in obtaining additional evidence or in making other necessary preparations for presenting the Government's position before the ASBCA.
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.
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 --
(1) Under rules and procedures that the Chief Trial Attorney may prescribe, the Chief Trial Attorney may authorize attorneys designated by an HCA to act as trial attorneys or to assist in the presentation of Army cases; or
(2) When it is determined by the HCA that an appeal before the ASBCA has particular significance to the contracting activity and that it involves difficult operational issues and technical facts, subsequent to the filing of the contracting officer's comprehensive report and after consultation with the Chief Trial Attorney, the HCA may detail an attorney from the contracting activity to assist the Chief Trial Attorney.
(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.
(a) The authority and responsibility to settle contract disputes docketed with the ASBCA remains with the contracting officer, subject to (b) and the following:
(1) The contracting officer shall advise the Chief Trial Attorney of all offers of settlement from a contractor, whether such offer is made by the contractor or through the contractor's attorney.
(2) The contracting officer shall consult with the Chief Trial Attorney before accepting a contractor's offer of settlement and before making a settlement offer to the contractor.
(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).
(1) An agreement on matters for which there is no substantial controversy and which will not have the effect of disposing of an appeal may be entered into by the Chief Trial Attorney or by an individual trial attorney; provided that, in the case of a pre-hearing written stipulation or agreement, authority shall have been granted the individual trial attorney in advance by the Chief Trial Attorney.
(2) In appropriate cases, such as those where time-consuming delays would occur by returning the appeal to the contracting officer, the Chief Trial Attorney (or an individual trial attorney acting with the prior approval of the Chief Trial Attorney) may enter into an agreement with an appellant which will have the effect of disposing of an appeal after concurrence has been obtained from a representative of the HCA. Such agreement may then become the basis of an ASBCA decision disposing of the appeal.
33.212-90-8 -- Review of ASBCA Decisions.
(a) Contracting activity review.
(1) The contracting activity shall review decisions of the ASBCA and, if the HCA thinks that a decision should be reconsidered by the ASBCA or appealed to the U.S. Court of Appeals for the Federal Circuit, the HCA may, within 10 calendar days after receipt of the decision, request the Chief Trial Attorney to either --
(i) File a motion for reconsideration, stating the grounds relied upon to sustain the motion; or
(ii) Initiate action seeking an appeal to the U.S. Court of Appeals for the Federal Circuit, stating the basis for such an appeal pursuant to the review standards of section 10(b) of the Contract Disputes Act of 1978, as amended.
(2) If the Chief Trial Attorney does not concur with a request of the HCA, within five calendar days, the Chief Trial Attorney shall forward the request, together with reasons for opposition, through the Judge Advocate General to the addressee in 1.290(b)(1) for the decision in coordination with the General Counsel of the Army. If it is determined that a motion for reconsideration will not be made or that an appeal will not be taken to the U.S. Court of Appeals for the Federal Circuit, the Chief Trial Attorney may certify this fact to the ASBCA.
(3) When it appears that an adverse decision of the ASBCA has resulted from flaws in the regulations that implement DoD policy rather than an error by the ASBCA, recommendations for changes to acquisition regulations should be developed following the format in DFARS 1.201-1(d)(i) and submitted to the addressee in 1.290(b)(2).
(b) Chief Trial Attorney review.
The Chief Trial Attorney independently reviews all ASBCA decisions involving Army contracts to determine whether any decision should be reconsidered by the ASBCA or appealed to the U.S. Court of Appeals for the Federal Circuit.
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.
See 33.213(a).