AFARS PART 5133

Previous PageTable Of ContentsNext Page



AFARS -- Part 5133

Protests, Disputes, and Appeals

Subpart 5133.1 -- Protests

5133.102 -- General.

(b) (i) The Head of the Contracting Activity (HCA) may make agency head determinations regarding actions described in FAR 33.102(b)(1) and (b)(2). The HCA may redelegate no lower than the Principal Assistant Responsible for Contracting (PARC), the Chief of the supporting legal office, or the official designated as the independent review authority in accordance with FAR 33.103(d)(4).

5133.103 -- Protests to the agency.

(d) (3) As soon as practicable, the contracting officer must consult with the legal office concerning the protest. Protests received at a level higher than the contracting office must be referred to the contracting office for resolution. Concurrent with this referral, the office that initially received the protest must inform the protester, identifying the contracting office that will handle the protest and giving the point of contact within that office.

5133.103-90 -- Annual agency bid protest report.

HCAs must prepare an annual report of agency bid protests and send it to the addressee in 5101.290(b)(3) not later than 30 calendar days following the end of the fiscal year. The analysis must include --

5133.104 -- Protests to Government Accountability Office (GAO).

(a) General procedures. The contracting officer must take the action required of the “agency” in FAR 33.104.

[AFARS Revision #21, dated May 22, 2007]

(b) Protests before award.

[AFARS Revision #21, dated May 22, 2007]

(c) Protests after award.

(g) Notice to GAO. Send the report to the addressee in 5101.290(b)(1) not later than 45 days after receipt of the recommendations.

5133.105 – Reserved.

5133.170 Briefing requirement for protested acquisitions valued at $1 billion or more.

(S-90) (a) Within 10 days of receipt of a protest, provide an initial, written notification of the protest via email to the Office of the DASA (P) at psstaff@conus.army.mil and copy furnish the PARC, Field Attorney and Trial Attorney. The initial notification shall be in the form of a short information paper and shall include the following items:

5133.190 -- Reporting and analysis of bid protests.

5133.190-1 -- Bid protest action report.

Within 15 calendar days following notification of resolution of a GAO protest, the contracting officer must send a bid protest action report in the format in 5153.9006 (double spaced between item numbers) to the following addressees:

[AFARS Revision #21, dated May 22, 2007]

5133.190-2 -- Quarterly bid protest analysis report.

(a) AMC, USACE and the Office of the Chief Trial Attorney must prepare a quarterly bid protest analysis report for GAO protests in the format in 5153.9007 (double space between item numbers) and send it with the bid protest action reports to the addressee in 5101.290(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.

(c) The Army Contracting and Transformation Enterprise Systems Directorate, SAAL-PX, Deputy Assistant Secretary of the Army for Procurement will prepare a consolidated report quarterly not later than 45 calendar days following the end of each quarter.

[AFARS Revision #21, dated May 22, 2007]

Subpart 5133.2 -- Disputes and Appeals

5133.212 -- Contracting officer's duties upon appeal.

5133.212-90 -- Appeal procedures.

(a) For purposes of this section 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:

(b) All contract disputes addressed in this section 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. [AFARS Revision #21, dated May 22, 2007]

5133.212-90-1 -- Notice of an appeal.

Contracting officers must concurrently --

(a) Send to the Chairman, ASBCA, 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 Agency (DCMA) staff has participated in contract award and/or administration, send to the DCMA office involved a notice of the appeal, with direction to preserve all documents pertaining to the contract.

5133.212-90-2 -- 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.

5133.212-90-3 -- Comprehensive report to the Chief Trial Attorney.

(a) Concurrent with forwarding the appeal file to the ASBCA, the contracting officer must send the following documents to the addressee in 5133.104(a)(4)(S-90)(1)(ii) or (iii) as applicable with a copy to the reviewing official designated in accordance with 5133.212-90-4:

(b) The contracting officer must send 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.

[AFARS Revision #21, dated May 22, 2007]

5133.212-90-4 -- Review of appeal.

(a) The HCA shall --

(b) The reviewing official designated by the HCA shall --

5133.212-90-5 -- 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, he/she must within 15 calendar days after receipt of the complaint, send 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.

5133.212-90-6 -- Litigation.

The Chief Trial Attorney 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 will present all Army cases to the ASBCA, using trial attorneys assigned to the office, except that --

(b) Local legal counsel and, when their expertise is required, any other person in the contracting activity must assist and support the Office of the Chief Trial Attorney in preparing the case.

(c) The Chief Trial Attorney and the attorneys assigned 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 must be informed of any actions taken in connection with these matters.

5133.212-90-7 -- Disposition.

(a) The authority and responsibility to settle contract disputes docketed with the ASBCA remains with the contracting officer, subject to (b) and the following:

(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). He/she must notify the appropriate Army Command (ACOM) legal office/Staff Judge Advocate (SJA) of any disagreement regarding the settlement of a case before raising the matter to the Assistant Secretary of the Army (Acquisition, Logistics and Technology) (ASA(AL&T)).

5133.212-90-8 -- Review of ASBCA decisions.

(a) Contracting activity review.

[AFARS Revision #21, dated May 22, 2007]

(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.

5133.212-90-9 Dispute settlement and judgments, use of the Judgment Fund.

(a) Judgment Fund. The Contract Disputes Act (CDA) provides that the Judgment Fund (“the Fund”) may be used to pay for adverse judgments against the Government. Settlement agreements in CDA cases before the Armed Services Board of Contract Appeals may be converted into consent judgments to access the Judgment Fund to pay for settlements under certain circumstances. Settlement in CDA cases before Federal Courts where the Army is represented by the Department of Justice (DoJ) may use DoJ’s independent authority to use the Judgment Fund for settlements; however, the policy set forth herein shall be followed by Army contracting activities. The Judgment Fund must be reimbursed with funds current as of the date of the judgment.

(b) Fiscal Considerations in Settlements. If funds appropriate to pay a settlement are expired but the account remains open, Contracting Officers must use expired funds to pay the settlement. If the account remains open but no expired funds remain, Contracting Officers must use the Judgment Fund to access current funds to pay the settlement. Access to the Fund requires a consent judgment from the Board or use of the Department of Justice’s independent authority to use the Fund. If accounts appropriate to pay a settlement are canceled/closed, Contracting Officers may use current funds to pay the settlement.

(c) Settlement Procedures.

(d) Judgments. The following procedures shall be used to pay judgments using the Judgment Fund.

(e) Settlement agreements. All settlements converted to consent judgments and funded by the Judgment Fund shall be in writing and contain appropriate release language. The contracting officer, local attorney and trial attorney shall insure that all settlement amounts are fair and reasonable.

(f) Expeditious handling. Inquiries and approvals required by these procedures may be oral so long as they are documented by memorandum for record. Settlements are often time-sensitive and these procedures should be carried out expeditiously.

5133.213 -- Obligation to continue performance.

(a) The HCA must approve the determination to use the alternate paragraph in the clause at FAR 52.233-1.

Subpart 5133.90 – Grant and cooperative agreement claims, disputes and appeals [AFARS Revision #23, dated May 16, 2008]

5133.9001 – Designation of grant appeal authority. [AFARS Revision #23, dated May 16, 2008]

(a) Procedures governing grants and cooperative agreements are set forth in DoD 3210.6-R, Department of Defense Grant and Agreements Regulations (DoDGARs).

(b) The DoDGARs requires the designation of Grant Appeal Authorities to decide formal administrative appeals brought under Section 22.815(e) of the DoDGARs.

(c) The Head of the Contracting Activity (HCA) that awarded the grant or cooperative agreement shall serve as the Grant Appeal Authority, provided that the individual is a General Officer or member of the Senior Executive Service. The Grant Appeal Authority may utilize a board in accordance with Section 22.815(e)(1)(ii) of the DoDGARs.

(d) Grant Appeal Authority may not be redelegated. In the event that the HCA is not a General Officer or member of the Senior Executive Service, the Deputy Assistant Secretary of the Army (Procurement) shall designate a qualified individual as the Grant Appeal Authority on a case-by-case basis.

(e) The Grant Appeal Authority shall utilize the procedures specified in Section 22.815(e) of the DoDGARs.

Previous PageTop Of PageTable Of ContentsNext Page