Figure 1. Where Settlements Can Be More Conveniently Negotiated
is especially true because the ASBCA attempts to resolve matters based on the record. The contracting officer’s decision must be sent to the contractor by certified mail with a return receipt or other traceable means that provides proof of receipt. (This starts the clock for the appeal timeline.) Whether the claim is initiated by the contractor or the government and whether the decision is positive or negative, the final decision must describe the claim or dispute; refer to pertinent contract terms such as clauses or paragraphs in the PWS; include a statement of facts in agree- ment or disagreement; state the contracting officer’s decision with supporting rationale; include a de- mand for payment per FAR 32.604 and 32.605 if it is determined that the contractor owes the government; and include a decision and appeals statement substantially the same as the following example: This is the final decision of the Contract- ing Officer. 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 writ- ten notice to the agency board of con- tract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indi- cate 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 board’s. (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 Business Act and regulations under that Act), $150,000 or less; or (2) Accelerated procedure for claims of $100,000 or less. Instead of appealing to the agency board of contract appeals, you may bring an ac- tion directly in the United States Court of Federal Claims (except as provided in 41 U.S.C. 7102(d), regarding Maritime Contracts) within 12 months of the date you receive this decision.
Debt Collection or Contract Adjustment Action
Requests for Payment or Contract Adjustments
Government
Contractor
!
!
Controversy or Delay
Controversy or Delay (after contactor has opportunity to express views)
Negotiated Settlement
Negotiated Settlement
Claim Asserted
Negotiated Settlement
CONTRACT ING OFFICER FINAL DECISION
Negotiated Settlement
Agency Board of Contract Appeals
U.S . Court of Federal Claims
Appeal by Contractor or by Government (with Department of Justice Approval)
Negotiated Settlement
Negotiated Settlement
(with Department of Justice approval )
Court of Appeals for the Federal Circuit
DISPUTES PROCESS
U.S . Supreme Court
Source: University staff
etc. The bottom line is that we must take prompt action on claims, despite dealing with other work. For properly certified claims over $100,000 , within 60 days the con- tracting officer must either render a decision or notify the contractor when a decision will be made. If the certifi- cation is defective, we must so notify the contractor within 60 days of its receipt. Doing so obviates our require- ment to render a decision until we receive a proper certification. Most defective certifications are adminis- trative rather than substantive as to the dispute in controversy; you will be seeing it again soon. If the contracting officer unduly de- lays rendering a decision, the contrac- tor may request a tribunal (for DoW, the Armed Services Board of Contract Appeals [ASBCA] ) to direct a deadline. And if the contracting officer fails to render a decision within these timeframes, it
will be deemed a denial, triggering the contractor’s ability to appeal.
Contracting Officer Actions and Decision
After receiving a proper claim (and documenting its receipt date), the contracting officer must quickly begin analyzing the claim, reviewing the contract file and all documenta- tion, interviewing people, conferring with legal counsel, possibly request- ing assistance from auditors and/or technical personnel, and, per DFARS Procedures, Guidance and Informa- tion (PGI) 233.210, perhaps investi- gating prior claims filed by the con- tractor. The purpose of this flurry of activity is to enable the contracting of- ficer to render a “Contracting Officer’s Final Decision” that is fair, cogent, and reasonable. Keep in mind that this de- cision may be crucial evidence if the contractor appeals the decision. This
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