D isagreement between people is a fact of life. There are always times when we argue with someone about something. It may be about politics; it may be about money; it may be as mundane as whose turn it is to do the dishes. Disagreements are inevitable. How do we resolve them? Perhaps discus- sion? Or rock/paper/scissors? There is no standard set of rules or how-to guide for resolving interpersonal issues. These types of disagreements also
day exchanges. But inevitably some points don’t manifest themselves until performance begins and execution becomes reality. The Disputes Act and Clause Similar to those commercial con- tracts you may have signed, the gov- ernment has a clause to establish guidelines and processes for resolv- ing these types of disagreements or disputes in awarded contracts. It is the Disputes Clause in the Federal Acquisi- tion Regulation (FAR) 52.233-1 Disputes (May 2014) . The Clause implements 41 U.S.C. Chap- ter 71 , Contract Disputes, also known as the Contract Disputes Act of 1978 or the All Disputes Act, and is covered in FAR subpart 33.2. (For clarity, the Disputes clause pertains to contracts after award. A “dispute” before award is normally considered a protest and covered in FAR subpart 33.1.) To synopsize, the disputes clause defines a claim, describes a process for filing one, creates timelines for contracting officers to process them, establishes appeal rights, and al- lows for payment of interest on some claims. It also establishes a require- ment for the contractor to continue performance while the claim is re- solved. Importantly, it establishes that the clause is the remedy for disputes under or related to the contract (more to follow). The prescription in FAR 33.215 says it shall be inserted in all solicita- tions and contracts (with other than foreign governments or international organizations). In some cases, we use it with its Alternate 1. The government believes this is such a fundamental
happen in our business lives. Signing an agreement to rent a car or a house, to open a mortgage, to obtain cellu- lar services, are all fraught with op- portunities for misunderstanding and disagreement. That is why, if you read the agreements, you will often see language establishing how disagree- ments will be resolved. It is usually in very fine print or in the READ BEFORE SIGNING button and may specify in what state—e.g., Delaware—dis- agreements will be adjudicated. Or it may describe binding arbitration. Or who bears the responsibility for legal costs in the case of disagreements. Specifying upfront the dispute reso- lution process is a prudent business practice. As you can imagine, in government contracting, the same applies. There will inevitably be situations where the government and the contractor will disagree about something. In recent cases, some of the following issues have arisen. Does the word “draw- ings” in the Performance Work State- ment (PWS) or elsewhere include charts? What did the PWS mean in that sentence? How is “timely” or “prompt” defined in terms of days? Did the contractor cause the delay, or was it the government’s fault? If not, is it still an excusable delay? Did the Contracting Officer’s Representative actually change the contract when he or she said that. Unfortunately, the possibili- ties are endless! One would hope we craft a well-structured contract and that many of these potential is- sues are raised and resolved during draft Request for Proposal/industry
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