U15: Manage Disagreements PDF

FAR PARTS. UCF l U15: Manage Disagreements U-02 U-03 U-04 U-05 Contracting Competency: Manage Disagreements Numbers of Questions Addressed on Exam: 10 U-06 *DoD Contracting Competency Model U-08 Should you require assistance, please contact the DAU Help Desk. U-12 U-13 Seller and Buyer Actions for a...

FAR PARTS. UCF l U15: Manage Disagreements U-02 U-03 U-04 U-05 Contracting Competency: Manage Disagreements Numbers of Questions Addressed on Exam: 10 U-06 *DoD Contracting Competency Model U-08 Should you require assistance, please contact the DAU Help Desk. U-12 U-13 Seller and Buyer Actions for a Protest U-10 Protest Basics U-09 Version: 1.0.2 U-15 Submitting a Claim U-14 Appeals Basics U-17 Government Actions in Response to a Claim U-18 U-19 U-20 Lesson 1 of 5 Protest Basics DoD contracting officers issue solicitations, sometimes cancel solicitations, award contracts, and sometimes terminate or cancel the award of a contract. In these situations, one or more interested parties can potentially protest these actions. Basis for Lesson This lesson is based on the following job task(s) from the DoD Contracting Competency Model: Manage Disagreements 0 Submit protests and appeals (seller job task) 0 Respond to protests and appeals (buyer job task) KEY TERMINOLOGY As we begin our discussion we must understand some key terminology from FAR 33.101. A protest is defined as a written objection by an interested party to any of the following: A solicitation or other request by an agency for offers for a contract for the procurement of property or services The cancellation of the solicitation or other request An award or proposed award of the contract A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract. An Interested Party, for the purpose of filing a protest, means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. Protest Venue means protests filed with: 1. The agency 2. The Government Accountability Office (GAO), or 3. The U.S. Court of Federal Claims. (U.S. District Courts do not have any bid protest jurisdiction.) Day means a calendar day, unless otherwise specified. In the computation of any period: The day of the act, event, or default from which the designated period of time begins to run is not included; and The last day after the act, event, or default is included, unless the last day is a Saturday, Sunday, or Federal holiday Filed means the complete receipt of any document by an agency before its close of business. Without regard to protest venue, contracting officers shall consider all protests and seek legal advice (FAR 33.102(a)). Additionally, any protests of the small business representation of an offeror is to be promptly forwarded to the Small Business Administration Government Contracting Area Director (FAR 19.302(c)(1)). An interested party wishing to protest is encouraged to seek resolution within the agency before filing a protest with the GAO (FAR 33.102(e)).  ACCESSIBILITY: This. ash card can be selected using the Tab or Shift-Tab to select. Press enter or the spacebar to ip the selected card. Use the Up and Down arrow keys to scroll through text. This information is also available in the Keyboard Shortcuts list. Lesson 2 of 5 Seller and Buyer Actions for a Protest Basis for Lesson This lesson is based on the following job task(s) from the DoD Contracting Competency Model: Manage Disagreements 0 Submit protests and appeals (seller job task) 0 Respond to protests and appeals (buyer job task) * ** ** *** ifr** * **** GAO Accountability * lntegr,ity * Reliability We previously learned that there are three venues for filing a protest. Let's take a look at each of those, with regard to both Seller and Buyer tasks. FAR 33.103(d) & (e) Protests to the Agency (Seller Tasks) Protests shall be concise and logically presented to facilitate review by the agency. Failure Protests shall include the following: to do so may be grounds for dismissal of the protest Name, address, and phone numbers of the protester Solicitation or contract number Detailed statement of the legal and factual grounds for the protest Copies of relevant documents Request for a ruling by the agency Statement as to the form of relief requested Adequate information establishing that the protester is an interested party All information establishing the timeliness of the protest All protests filed with the agency will be addressed to the contracting officer or other If the protester is unsuccessful receiving relief from the agency, the protester has 10 days Protests based on alleged apparent improprieties in a solicitation shall be filed before bid official designated to receive protests from receiving knowledge of the adverse decision to file the protest with the GAO. opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of the protest is known or should have been known, whichever is earlier. FAR 33.103(f) Protests to the Agency (Buyer [Government] Tasks) Action upon receipt of protest: Upon receipt of a protest before award, a contract may not be awarded, pending agency resolution of the protest, unless contract award is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. Such justification or determination shall be approved at a level above the contracting officer, or by another official pursuant to agency procedures. If award is withheld pending agency resolution of the protest, the contracting officer will Upon receipt of a protest within 10 days after contract award or within 5 days after a inform the offerors whose offers might become eligible for award of the contract. debriefing date offered to the protester under a timely debriefing request in accordance with FAR 15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance, pending resolution of the protest within the agency, including any review by an independent higher level official, unless continued performance is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. Such justification or determination shall be approved at a level above the contracting officer, or by another official pursuant to agency procedures. IAW FAR 33.103(g), agencies shall make their best efforts to resolve agency protests within 35 days after the protest is. led. C O NT I NU E FAR 33.104 Protests to the GAO (Seller Task) General procedure A protester is required to furnish a copy of its complete protest to the official and location designated in the solicitation or, in the absence of such a designation, to the contracting officer, so it is received no later than 1 day after the protest is filed with the GAO. The GAO may dismiss the protest if the protester fails to furnish a complete copy of the protest within 1 day. FAR 33.104 Protests to the GAO (Buyer [Government] Tasks) Immediately after receipt of the GAO’s written notice that a protest has been filed, the agency shall give notice of the protest to the contractor if the award has been made, or, if no award has been made, to all parties who appear to have a reasonable prospect of receiving award if the protest is denied. Upon notice that a protest has been filed with the GAO, the contracting officer shall immediately begin compiling the information necessary for a report to the GAO. The agency shall submit a complete report to the GAO within 30 days after the GAO notifies the agency by telephone that a protest has been filed. When a protest is filed with the GAO, and an actual or prospective offeror so requests, the procuring agency shall, in accordance with any applicable protective orders, provide actual or prospective offerors reasonable access to the protest file. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall provide to all parties and the GAO a list of those documents, or portions of documents, that the agency has released to the protester or intends to produce in its report, and those documents that the agency intends to withhold from the protester and the reasons for the proposed withholding. Agencies shall furnish the GAO with the name, title, and telephone number of one or more officials (in both field and headquarters offices, if desired) whom the GAO may contact who are knowledgeable about the subject matter of the protest. For protests before award, when the agency has received notice from the GAO of a protest filed directly with the GAO, a contract may not be awarded unless authorized, in accordance with agency procedures, by the head of the contracting activity, on a nondelegable basis. For protests after award, when the agency receives notice of a protest from the GAO within 10 days after contract award or within 5 days after a debriefing date offered to the protester for any debriefing that is required by FAR 15.505 or 15.506, whichever is later, the contracting officer shall immediately suspend performance or terminate the awarded contract. C O NT I NU E FAR 33.105 Protest at the U.S. Court of Federal Claims (Applies to Seller and Buyer) Procedures for protests at the U.S. Court of Federal Claims are set forth in the Rules of the U.S. Court of Federal Claims. This is not testable, but for inquiring minds, the rules may be found at http://www.uscfc.uscourts.gov/rules-and-forms. To whom shall protests to the agency be addressed? 0 Program Manager Lesson 3 of 5 Appeals Basics Basis for Lesson This lesson is based on the following job task(s) from the DoD Contracting Competency Model: Manage Disagreements 0 Submit protests and appeals (seller job task) 0 Respond to protests and appeals (buyer job task) From time to time, the Government and a contractor have disagreements relating to a particular contract. When that occurs, there are procedures in place regarding claims and appeals. Let's take a closer look. Once again, we will begin our discussion by understanding some key terminology. FAR 2.101 defines Claim as a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. FAR 33.201 defines Accrual of a Claim as 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. FAR 33.201 defines Alternative Disputes Resolution (ADR) as 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. FAR 33.201 defines Issue in Controversy as a material disagreement between the Government and the contractor that: May result in a claim; or Is all or part of an existing claim FAR 33.201 defines Misrepresentation of Fact as 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. According to FAR 33.204, it is the Government's policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting of. cer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim. FAR 33.202 tells us that 41 U.S.C. chapter 71 - Disputes, establishes procedures and requirements for asserting and resolving claims subject to the Disputes statute. In addition, the Disputes statute provides for: The payment of interest on contractor claims; Certification of contractor claims; and A civil penalty for contractor claims that are fraudulent or based on a misrepresentation of fact. S U B M I T T I NG A C L A I M Lesson 4 of 5 Submitting a Claim When contracts are in place and performance is occurring, occasionally the Government and the contractor have material disagreements regarding what the contract requires. These disagreements may result in the contractor submitting a claim. Basis for Lesson This lesson is based on the following job task(s) from the DoD Contracting Competency Model: Manage Disagreements 0 Submit protests and appeals (seller job task) 0 Respond to protests and appeals (buyer job task) Contractor 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. (FAR 33.206(a)). For claims exceeding $100,000, the contractor must certify the claim. This certification may be executed by any person authorized to bind the contractor with respect to the claim. (FAR 33.207(a), (e)) Contracting Officer 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. (FAR 33.206(b)) Lesson 5 of 5 Government Actions in Response to a Claim Basis for Lesson This lesson is based on the following job task(s) from the DoD Contracting Competency Model: Manage Disagreements 0 Submit protests and appeals (seller job task) 0 Respond to protests and appeals (buyer job task) IAW FAR 33.208(a), the Government shall pay interest on a contractor's claim on the amount found due and unpaid from the date that: The contracting officer receives the claim; or Payment otherwise would be due, if that date is later, until the date of payment. Contracting Of. cer's Authority (FAR 33.210) 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 33.214, contracting officers are authorized to use Alternative Dispute Resolution (ADR) procedures to resolve claims. Contracting Of cer's Decision (FAR 33.211) When a claim cannot be satisfied by mutual agreement and a decision is necessary, the contracting officer shall: Review the facts Consult with legal Coordinate with the contract administration office Prepare a written decision known as the "Contracting Officer's Final Decision" (COFD), which includes guidance for the appeals process. The contractor may appeal to: The agency board of contract appeals within 90 days of receiving the COFD, or The United States Court of Federal Claims within 12 months receiving the COFD. Obligation to Continue Performance (FAR 33.213) The Disputes statute, at 41 U.S.C.7103(g), authorizes agencies to require a contractor to continue contract performance in accordance with the contracting officer’s decision pending a final resolution of any claim arising under, or relating to, the contract. If a contracting officer denies a contractor's claim in a Contracting Officer's Final Decision, the contractor must continue contract performance. 0 True 0 False SUBMIT