When adr procedures are used subsequent to the issuance of a contracting officers final decision, their use does not alter any of the time limitations or procedural requirements for filing an appeal of the contracting officers final decision and does not constitute a reconsideration. (d) When appropriate, a neutral person may be used to facilitate resolution of the issue in controversy using the procedures chosen by the parties. (e) The confidentiality of adr proceedings shall be protected consistent with. (f 1) A solicitation shall not require arbitration as a condition of award, unless arbitration is otherwise required by law. Contracting officers should have flexibility to select the appropriate adr procedure to resolve the issues in controversy as they arise. (2) An agreement to use arbitration shall be in writing and shall specify a maximum award that may be issued by the arbitrator, as well as any other conditions limiting the range of possible outcomes. (g) Binding arbitration, as an adr procedure, may be agreed to only as specified in agency guidelines. Such guidelines shall provide advice on the appropriate use of binding arbitration and when an agency has authority to settle an issue in controversy through binding arbitration.
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(A claim arising under a contract is a claim that can be resolved under a contract clause, other than the clause.233-1, disputes, that provides for the relief sought by the claimant; however, relief for such claim can also be sought under the clause. A claim relating to a contract is a claim that cannot be resolved under a contract clause other than the clause.233-1.) This distinction is recognized by the clause with its Alternate i (see.215 ). (b) In all contracts that include the clause.233-1, disputes, with its Alternate i, in the event of a dispute not arising under, but relating to, the contract, the contracting officer shall consider providing, through appropriate agency procedures, financing of the continued performance; provided. 33.214 Alternative dispute resolution (ADR). (a) The objective of using adr procedures is to increase the opportunity for relatively inexpensive and expeditious resolution of issues in controversy. Essential elements of adr include— (1) Existence of an issue in controversy; (2) a voluntary election by both parties to participate in the adr process; (3) An agreement on alternative procedures and terms to be used in lieu of formal litigation; and (4) Participation. (b) If the contracting officer rejects a contractors tom request for adr proceedings, the contracting officer shall provide the contractor a written explanation citing one or more of the conditions in. 572(b) or such other specific reasons that adr procedures are inappropriate for the resolution of the dispute. In any case where a contractor rejects a request of an agency for adr proceedings, the contractor shall inform the agency in writing of the contractors specific reasons for rejecting the request. (c) adr procedures may be used at any time that the contracting officer has authority to resolve the issue in controversy. If a claim has been submitted, adr procedures may be applied to all or a portion of the claim.
Such payment shall be without prejudice to the rights of either presentation party. 33.212 Contracting officers duties upon appeal. To the extent permitted by any agency procedures controlling contacts with agency bca personnel, the contracting officer shall provide data, documentation, information, and support as may be required by the agency bca for use on a pending appeal from the contracting officers decision. 33.213 Obligation to continue performance. (a) In general, before passage of the disputes statute, the obligation to continue performance applied only to claims arising under a contract. However, the disputes statute, at. 7103(g), authorizes agencies to require a contractor to continue contract performance in accordance with the contracting officers decision pending a final resolution of any claim arising under, or relating to, the contract.
This requirement shall apply to decisions on claims initiated by or against the contractor. (c) The contracting officer shall issue the decision within the following statutory time limitations: (1) For claims of 100,000 or less, 60 days after receiving a summary written request from the contractor that a decision be rendered within that period, or within a reasonable time after. (2) For claims over 100,000, 60 days after receiving a certified claim; provided, however, that if a decision will not be issued within 60 days, the contracting officer shall notify the contractor, within that period, of the time within which a decision will be issued. (d) The contracting officer shall issue a decision within a reasonable time, taking into account— (1) The size and complexity of the claim; (2) The adequacy of the contractors supporting data; and (3) Any other relevant factors. (e) The contracting officer shall have no obligation to render a final decision on any claim exceeding 100,000 which contains a defective certification, if within 60 days after receipt of the claim, the contracting officer notifies the contractor, in writing, of the reasons why any. (f) In the event of undue delay by the contracting officer in rendering a decision on a claim, the contractor may request the tribunal concerned to direct the contracting officer to issue a decision in a specified time period determined by the tribunal. (g) Any failure of the contracting officer 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. (h) The amount determined payable under the decision, less any portion already paid, should be paid, if otherwise proper, without awaiting contractor action concerning appeal.
You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the boards— (1) Small claim procedure for claims of 50,000 or less or, in the case of a small business concern (as defined in the Small. Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States court of Federal Claims (except as provided in. 7102(d), regarding Maritime contracts) within 12 months of the date you receive this decision; and (vi) Demand for payment prepared in accordance with.604 and.605 in all cases where the decision results in a finding that the contractor is indebted to the government. (b) The contracting officer 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.
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(see the walk clause.232-17 for the right of the government to collect interest on its claims against a contractor.) (c) With regard to claims having defective certifications, interest shall be paid from either the date that the contracting officer initially receives the claim. However, if a contractor has provided a proper certificate prior to October 29, 1992, after submission of a defective certificate, interest shall be paid from the date of receipt by the government of a proper certificate. 33.209 Suspected fraudulent claims. If the contractor is unable to support any part of the claim and there is evidence that the inability is attributable to misrepresentation of fact or to fraud on the part of the contractor, the contracting officer shall refer the matter to the agency official. 33.210 Contracting officers authority.
Except as provided in this section, contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract subject to the disputes statute. In accordance with agency policies and.214, contracting officers are authorized to use adr procedures to resolve claims. The authority to decide or resolve claims does not extend to— (a) A claim or dispute for penalties or forfeitures prescribed by statute or regulation that another Federal agency is specifically authorized to administer, settle, or determine; or (b) The settlement, compromise, payment, or adjustment. 33.211 Contracting officers decision. (a) When a claim by or against a contractor cannot be satisfied or settled by mutual agreement and a decision on the claim is necessary, the contracting officer shall— (1) review the facts pertinent to the claim; (2) Secure assistance from legal and other advisors;.
The 6-year period shall not apply to contracts awarded prior to October 1, 1995, or to a government claim based on a contractor claim involving fraud. (a) Contractors shall provide the certification specified in paragraph (c) of this section when submitting any claim exceeding 100,000. (b) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim. (c) The certification shall state as follows: I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the. (d) The aggregate amount of both increased and decreased costs shall be used in determining when the dollar thresholds requiring certification are met (see example.403-4 (a 1 iii) regarding certified cost or pricing data).
(e) The certification may be executed by any person authorized to bind the contractor with respect to the claim. (f) A defective certification shall not deprive a court or an agency bca of jurisdiction over that claim. Prior to the entry of a final judgment by a court or a decision by an agency bca, however, the court or agency bca shall require a defective certification to be corrected. 33.208 Interest on claims. (a) The government shall pay interest on a contractors claim on the amount found due and unpaid from the date that— (1) The contracting officer receives the claim (certified if required.207 (a or (2) payment otherwise would be due, if that date. (b) Simple interest on claims shall be paid at the rate, fixed by the secretary of the Treasury as provided in the disputes statute, which is applicable to the period during which the contracting officer receives the claim and then at the rate applicable for.
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However, the claim must first be submitted to the contracting officer for consideration under the disputes statute because the claim is not cognizable under Public Law 85-804, as implemented. Subpart.1, list unless other legal authority in the agency concerned is determined to be lacking or inadequate. 33.206 Initiation of a claim. (a) Contractor claims shall be submitted, in writing, to the contracting officer for a decision within 6 years after accrual of a claim, unless the contracting parties agreed to a shorter time period. This 6-year time period does year not apply to contracts awarded prior to October 1, 1995. The contracting officer shall document the contract file with evidence of the date of receipt of any submission from the contractor deemed to be a claim by the contracting officer. (b) The contracting officer shall issue a written decision on any government claim initiated against a contractor within 6 years after accrual of the claim, unless the contracting parties agreed to a shorter time period.
Subpart.1, extraordinary contractual Actions. However, relief formerly available only under Public Law 85-804;. E., legal entitlement to rescission or reformation for mutual mistake, is now available within the authority of automation the contracting officer under the contract Disputes statute and the disputes clause. In case of a question whether the contracting officer has authority to settle or decide specific types of claims, the contracting officer should seek legal advice. (b) A contractors allegation that it is entitled to rescission or reformation of its contract in order to correct or mitigate the effect of a mistake shall be treated as a claim under the disputes statute. A contract may be reformed or rescinded by the contracting officer if the contractor would be entitled to such remedy or relief under the law of Federal contracts. Due to the complex legal issues likely to be associated with allegations of legal entitlement, contracting officers shall make written decisions, prepared with the advice and assistance of legal counsel, either granting or denying relief in whole or in part. (c) A claim that is either denied or not approved in its entirety under paragraph (b) of this section may be cognizable as a request for relief under Public Law 85-804 as implemented.
use adr procedures to the maximum extent practicable. Certain factors, however, may make the use of adr inappropriate (see. Except for arbitration conducted pursuant to the Administrative dispute resolution Act (adra (. 571, et seq.) agencies have authority which is separate from that provided by the adra to use adr procedures to resolve issues in controversy. Agencies may also elect to proceed under the authority and requirements of the adra. 33.205 Relationship of the disputes statute to pub. (a) Requests for relief under Public Law 85-804 (. ) are not claims within the disputes statute or the disputes clause.233-1, disputes, and shall be processed under.
Misrepresentation of fact means a false statement of substantive fact, or any conduct which leads to the belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead. Chapter 71, disputes, establishes procedures and requirements for asserting and resolving claims subject to the disputes statute. In addition, the disputes statute provides for— (a) The payment of interest on contractor claims; (b) Certification of contractor claims; and (c) A civil penalty for contractor claims that are fraudulent or based on a misrepresentation of fact. (a) Except as specified in paragraph (b) of this section, this part applies to any express or implied contract covered by the federal Acquisition Regulation. (b) This subpart does not apply to any contract with— (1) A foreign government or agency of that government; or (2) An international organization or a subsidiary body of that organization, if the agency head determines that the application of the disputes statute to the. (c) This part applies to all disputes with respect to contracting officer decisions on matters arising under or relating to a contract. Agency boards of Contract Appeals (BCAs) authorized under the disputes statute continue to have all of the authority they possessed before the disputes statute with respect to disputes arising under a contract, as well as authority to decide disputes relating to a contract. The clause.233-1, disputes, disputes, recognizes the all disputes authority established by the disputes statute and states certain requirements and limitations of the disputes statute for the guidance of contractors and contracting agencies. The clause is not intended to affect the rights and obligations of the parties as provided by the disputes statute or to constrain the authority of the statutory agency bcas in the handling and deciding of contractor appeals under the disputes statute.
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Subpart.2—Disputes and Appeals, subpart.2—Disputes and Appeals.201 Definitions. As used in this subpart—, accrual of a claim means the date when all events, that fix the alleged liability of either the government or the contractor and permit assertion of the claim, were known or should have been known. For liability to book be fixed, some injury must have occurred. However, monetary damages need not have been incurred. Alternative dispute resolution (ADR) means any type of procedure or combination of procedures voluntarily used to resolve issues in controversy. These procedures may include, but are not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombudsmen. Defective certification means a certificate which alters or otherwise deviates from the language.207 (c) or which is not executed by a person authorized to bind the contractor with respect to the claim. Failure to certify shall not be deemed to be a defective certification. Issue in controversy means a material disagreement between the government and the contractor that— (1) may result in a claim; or (2) Is all or part of an existing claim.