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Navy Marine Corps Acquisition Regulation Supplement


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PART 5233 PROTESTS, DISPUTES, AND  APPEALS

 

SUBPART 5233.1 PROTESTS

 

5233.103 Protests to the  agency.

(d)(4) HCAs are responsible for establishing  procedures for handling requests made by interested parties for an independent review of  their protest at a level above the contracting officer. In addition, for purposes of  this paragraph, a level above the contracting officer means the CCO or, if the CCO is  less than two levels higher than the contracting officer, the Chief of the next higher  contracting office. An individual so designated who has been personally and  substantially involved with the procurement shall recuse himself or herself and,  instead, refer the matter to another appropriate official at a comparable or higher  level.

(f) For purposes of this paragraph, a level  above the contracting officer means the CCO or, if the CCO is less than two levels  higher than the contracting officer, the Chief of the next higher contracting office. An  individual so designated who has been personally and substantially involved with the  procurement shall recuse himself or herself and, instead, refer the matter to another  appropriate official at a comparable or higher level.

 

5233.104 Protests to GAO.

(g) HCAs shall consult with DASN(AP) before any  final decision is reached not to implement GAO's recommendations. Concurrent with the  submission to the Comptroller General, a copy of the report shall be provided to  DASN(AP) by email at RDAJ&As.fct@navy.mil with the subject [Activity Name] FAR  33.104 GAO Protest Recommendation Decision.

 

5233.170 Briefing requirement for  protested acquisitions valued at $1 billion or more.

Within 5 days of receipt of the protest, submit  the required protest notice to DASN(AP) by email at RDAJ&As.fct@navy.mil with the  subject [Activity Name] PGI 233.170 - Protest [solicitation or contract number, as  appropriate].

 

SUBPART 5233.2 DISPUTES AND  APPEALS

 

5233.201 Definitions.

"Disruption", as used in this part, means the  cost effect upon, or the increased cost of performing, the unchanged work due to a  change to the contract.

"Delay", as used in this part with respect to  contractors, claims or requests for equitable adjustments, means the time oriented cost  effects or length of a suspension in scheduled contract work or a period of time  oriented cost effects or length of a suspension in scheduled contract work or a period  of time a contractor is required to perform beyond the contract delivery or completion  date, allegedly due to contractually remediable Government actions or inactions. Delay  can be expressed in terms of time or cost or some combination of time and cost.

 

5233.203 Applicability.

(b)(2) The HCA is delegated the authority to  make the determination that the application of the Act to the contract would not be in  the public interest.

 

5233.204 Policy.

 

5233.204-90 General.

(a) Multi  discipline approach. Since claims by contractors often involve difficult and  complex legal, factual and financial issues requiring extensive fact finding or  analysis to determine whether or not the Government is liable, a multi-disciplined  team should generally be established to analyze the claim.

(b) Formal and  constructive changes.

(1) When DON actions alleged by the  contractor, after appropriate evaluation, constitute a change, the contracting officer  shall promptly formalize such constructive change(s) in writing as soon as the parties  have negotiated an acceptable adjustment to the contract price and delivery clauses,  irrespective of whether the contract contains the clause at FAR 52.243 7, Notification  of Changes.

(2) In exceptional cases where disruption,  delay or other claimed impacts are known to exist and cannot be currently resolved,  the contracting activity may proceed with equitable adjustments covering the  interrelated formal changes coupled with usage or qualified release. The qualified  release should specifically identify the inter relationship with the contractor's  claim such as delay or disruption impacts reserving to the contractor the right to  pursue and demonstrate support for a separate equitable adjustment therefore under the  contract.

(c) Rejection of  "total cost" and "total time" based claims.

Claims based on "total cost" or "total time"  approaches are considered only as a last resort. A contractor (claimant) filing a  total cost or total time-based claim should establish that there is no other feasible,  acceptable basis for computing the claimant's increased costs or delays and prove that  there is no way of correlating government actions and omissions to historical cost  elements or even to reasonable substantiated cost estimates.

 

5233.209 Suspected fraudulent  claims.

The Naval Criminal Investigative Service is the  agency official responsible for investigating fraud.

 

5233.211 Contracting officer's  decision.

(a)(1) When reviewing the facts pertinent to a  claim, the contracting officer shall determine if the claimant established:

(A) the existence of a legal basis for  entitlement,

(B) facts meeting the elements of proof required  to support the basis of entitlement, and

(C) adequate factual support for the amounts  claimed.

(b) Copies of the contracting officer's decision  shall receive the same distribution as the related contract and also shall be furnished  to any assignee, guarantor, or surety of the contractor. In addition, a legible copy of  the decision shall be forwarded to the Office of the General Counsel, Legal Services  Support Group, Navy Litigation Office, Department of the Navy, Washington, DC 20360 at  the time of transmittal to the contractor.

 

SUBPART 5233.90 PROCEDURES

 

5233.9001 Claims approval  requirements.

(a) All proposed claim settlements in excess of  $25 million, and final decisions of the contracting officer involving payments in an  amount greater than $25 million, shall be submitted for review and

approval to DASN(AP) by email at  RDAJ&As.fct@navy.mil with the subject [Activity Name] NMCARS 5233.9001 Proposed  Claim Settlement >$25M. Other proposed claim settlements and final decisions of the  contracting officer shall be reviewed and approved as specified by the HCA.

(b) The supporting documentation submitted to  DASN(AP) with respect to claim settlements or final decisions of a contracting officer  shall include a legal memorandum. As a minimum the required legal memorandum should:

(1) Analyze the applicability and adequacy of  the contractor's legal theory or theories of Government liability;

(2) Analyze and evaluate the presence and  adequacy of evidentiary facts satisfying the elements of proof required by such legal  theory or theories;

(3) Analyze the applicability and adequacy of  any affirmative defense the Government may have to the contractor's claim, e.g., accord  and satisfaction, failure of consideration, fraud, release, laches, statute of  limitations; and

(4) Analyze and evaluate the presence of any  counterclaims the Government may have against the contractor.

(c) No settlement commitment or final decision  may be made prior to obtaining the required approval.

(d) Primary emphasis should be given to  achieving prompt settlement of claims, thereby obviating need for provisional price  increases or payments. Provisional price increases or provisional payments against  contractor claims may be made when the following documents have been obtained:

(1) A legal determination that the contractor is  entitled to compensation.

(2) Sufficient technical, administrative, and  audit analyses to permit such legal determination; and

(3) A determination by the contracting officer  with respect to the amount of compensation for which there is entitlement and that the  amount of ultimate entitlement to compensation will equal or exceed the amount of the  provisional price increase or provisional payment.

(e) When a provisional payment, either  individually or cumulatively against a single claim exceeds $25 million, a written  justification shall be submitted for approval to DASN(AP) by email at  RDAJ&As.fct@navy.mil with the subject [Activity Name] NMCARS 5233.9001 Proposed  Claim Provisional Payment >$25M.

The justification shall cover--

(1) the requirements of the claim;

(2) the projected date of settlement of the  claim; and

(3) other pertinent information, including  comments as to whether the contractor has reasonably satisfied all requests for  documentary and analytical support of the claimed amount.

 

5233.9002 Contractor appeals to the  Armed Services Board of Contract Appeals (ASBCA).

(a) General.  The Office of the General Counsel (OGC) has sole litigation authority for all appeals  under DON contracts to the ASBCA. Because of the frequent complexity of these cases, the  OGC and the contracting activity involved should maintain the continuity of any DON  claim team that might have investigated and evaluated the contractor's claim submission.  Such teams should continue to function in an assisting capacity under the leadership of  the OGC Trial Attorney assigned to handle the appeal.

(b) Litigation  report requirement. With the compilation of Rule 4 documents, a comprehensive  litigation report shall be forwarded to the Litigation Division. The report should  include:

(1) A detailed narrative statement of facts,  preferably in chronological sequence, and with a topical segregation when appropriate,  with references to attached supporting documents of expected testimony. If such a  statement was previously submitted, it need not be submitted a second time, but should  be supplemented or revised if additional information becomes available in the  interim.

(2) An analysis and evaluation (classified as  attorney client privileged information) of the factual and legal positions of both sides  (including affirmative defenses and counterclaims available to the Government), the  available evidence, and the expertise and effectiveness of prospective witnesses.

(3) The advisory report, if any, of the  reviewing official or board.

(c) Settlement  negotiations pending appeal. The conduct of settlement negotiations in connection  with any pending appeal should generally be accomplished by a selected team consisting  of the trial attorney and representatives of the contracting officer (including  contracting activity technical personnel, counsel, negotiator, and auditor if  necessary). Other arrangements may be made in specific cases as appropriate. However, no  final settlement agreement will be made without the written approval of the contracting  officer. When a settlement is made, a memorandum shall be prepared by the negotiating  team (and signed by all team members) stating the basis and reasons. The settlement  agreement shall be drafted by the contracting activity and trial attorney. The trial  attorney shall file any legal papers required to be filed with the ASBCA to effect  disposition of the case by mutual agreement of the parties.

(d) Review and  approval. Negotiated settlements of appeals pending before the ASBCA, as well as  negotiated settlements of appeal issues that have been remanded to the DON for quantum  determination, will be subject to review and approval at levels established for claims  of the same dollar amount.

(e) Contract  modification. Whenever contract modification and other contract documents are  required to implement a settlement of ASBCA or appellate court decision, they should  reference the ASBCA proceedings by title and docket number.

 

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