# DLAD PART 33

- SUBPART 33.1 – PROTESTS

- 33.103 Protests to the agency.
- 33.104 Protests to GAO.
- 33.106 Solicitation provision.

- SUBPART 33.2 - DISPUTES AND APPEALS

- 33.209 Suspected fraudulent claims.
- 33.211 Contracting officer’s decision.
- 33.212 Contracting officer's duties upon appeal.
- 33.213 Obligation to continue performance.
- 33.214 Alternative Dispute Resolution (ADR).

PART 33

PROTESTS, DISPUTES, AND APPEALS

TABLE OF CONTENTS

SUBPART 33.1 - PROTESTS

33.103 Protests to the agency.

33.104 Protests to GAO.

33.106 Solicitation provision and contract clause.

SUBPART 33.2 - DISPUTES AND APPEALS

33.209 Suspected fraudulent claims.

33.211 Contracting officer’s decision.

33.212 Contracting officer's duties upon appeal.

33.213 Obligation to continue performance.

33.214 Alternative dispute resolution (ADR)

SUBPART 33.1 – PROTESTS

33.103 Protests to the agency.

(d)(4)(90) Protesters may submit a protest to the contracting officer or, under the authority of Executive Order (EO) No. 12979, Agency Procurement Protests, as implemented by FAR 33.103(d), may request an independent review of their protest at a higher level than the contracting officer. The decision authority for such an agency level protest under EO 12979 shall be the Chief of the Contracting Office (CCO). This authority may not be redelegated. In those instances where the CCO has had previous personal involvement with the procurement, the decision-maker shall be at a level above the CCO. This shall be the Executive Director, Contract and Acquisition Management, at activities where such a position has been established; or, where there is either no such position or the Executive Director, Contract and Acquisition Management, has also had previous personal involvement with the procurement, the decision-maker shall be the Deputy Commander. This independent review above the contracting officer level is not available as an appeal of a contracting officer’s decision regarding a protest. Rather, it is an alternative to filing a protest directly with the contracting officer. Solicitations must indicate that this independent review is available as an alternative to consideration by the contracting officer, rather than as an appellate procedure.

(91) Legal review is required on all protest decisions, whether the protest was submitted to the contracting officer or was submitted under EO 12979.

(92) DLA activities have flexibility in designing specific procedures for resolving agency level protests under EO 12979. However, procedures used shall ensure the protest decision authority reviews input from both the protester and the contracting officer in order to reach an independent decision. As with all protests, activities shall consider using Alternative Dispute Resolution (ADR) techniques in resolving agency level protests.

(93) Each activity shall collect information concerning agency level protests filed each fiscal year under EO 12979. This information shall include the number of protests filed and their disposition, whether or not there was a stay of the procurement or contract award, and the number of any subsequent protests to GAO.

33.104 Protests to GAO.

(a) General Procedures.

(2) Interested parties must be provided notice of a protest filed at GAO in accordance with FAR 33.104(a)(2). The Office of Counsel for the supply chain or activity involved is responsible for ensuring that the required notice is provided. The notice can be provided by either the contracting activity or by the Office of Counsel.

(3)(90) After receiving a protest, the Chief Counsel of the field activity (see (a)(7), below) must ensure that the protest is reviewed for possible corrective action or disposition using alternative dispute resolution (ADR). For protests not resolved through ADR, the Chief Counsel shall ensure his or her respective legal office provides appropriate representation, including submission of the report and documents required by FAR 33.104(a)(3). Letters transmitting agency reports to GAO must be signed by the Chief Counsel responsible for the supply chain.

(4)(i) The attorney assigned to handle the protest is responsible for ensuring that DG receives an electronic copy of the agency report by the day the report is due to GAO. A full copy with attachments may be forwarded immediately thereafter by mail.

(90) Offices of Counsel that have not been delegated the authority and responsibility to represent DLA in protests filed with GAO shall provide both redacted and unredacted documents described in 33.104(a)(4) to DG.

(5)(iv) If an assigned protest attorney believes that a party has violated the terms of a protective order, the attorney shall immediately notify GAO and DG.

(6) Counsel assigned to protests shall promptly forward to DG a copy of any comments received from the protester or any interested party, as well as copies of any substantive communications among the parties.

(7) DG has provided GAO the name, title, and telephone number of DG’s senior procurement attorney as the designated DLA contact for protests.

(90) Headquarters, General Counsel (DG), is the administrative focal point for all DLA protests filed with GAO. Immediately after receiving written notice from GAO of a protest, DG will notify the Office of Counsel for the supply chain or activity involved that a protest has been filed with GAO. That Office of Counsel shall promptly assign an attorney to the protest and shall notify DG and GAO of the name and phone number of the assigned attorney. The assigned counsel should consult DLA’s Bid Protest Procedures Manual for specific procedures regarding protests before GAO.

(91) The Chief Counsels of the following offices have been delegated the authority and responsibility to represent DLA in bid protests filed with GAO for their respective supply chains: DSCC, DESC, DSCR, DSCP, and DRMS.

(92) For Offices of Counsel that have not been delegated the authority and responsibility to represent DLA in bid protests filed with GAO, DG will notify GAO of which DLA attorney is assigned to the protest action.

(93) Offices of Counsel that have not been delegated the authority and responsibility to represent DLA in bid protests filed with GAO shall forward the complete report, including all relevant documents, to DG within 20 days after the protest was filed with GAO, unless the circumstances in FAR 33.104(a)(3)(i)(A) or (B) apply. If GAO has invoked the express option, the Office of Counsel handling the protest shall contact DG to establish a report due date. That office shall also furnish the names and addresses of any interested parties. DG shall be responsible for submitting the report required by FAR 33.104(a)(3) to GAO, and copies of the report to the protester and other interested parties.

(94) Contracting offices, through their legal staff, shall promptly inform DG of any protests that concern significant or unsettled legal issues or high visibility acquisitions.

(95) It is DLA policy not to allow requests for extension of time to file an agency report. In unusual circumstances or when ADR procedures are pending, DG may approve requests to petition GAO for short extensions of time. Prior DG approval is required before asking GAO for an extension of time.

(b) Protests before award.

(1) If the contracting activity determines it is necessary to award a contract after receipt of a notice from GAO that a protest has been filed, the head of the contracting activity (HCA), with the concurrence of the Chief Counsel, shall make the written finding required by FAR 33.104(b)(1). Counsel must send a copy of the finding to DG.

(90) Contracting offices for which the Director, Acquisition Management, (J-7) is the HCA (see DLAD 2.101) shall submit the proposed finding through their Chief Counsel to DG for concurrence. If DG concurs, DG will then forward the proposed finding to the Director, Acquisition Management, (J-7) for approval. After the Director, Acquisition Management, (J-7) has signed the finding, J-7 shall immediately notify DG and shall provide DG a copy of the signed determination.

(2) Before the contracting activity awards the contract, the attorney handling the protest shall notify GAO of the finding made under FAR 33.104(b)(1). For contracting offices where the Director, Acquisition Management, (J-7) is the HCA, DG will notify GAO of the finding made under FAR 33.104(b)(1).

(c) Protests after award.

(1) For purchase orders, award is considered to be made on the date the purchase order is issued. If a protest is received within 10 days of the date a purchase order is issued, the contracting activity shall suspend performance of the order. This determination shall be coordinated with the Office of Counsel handling the protest.

(2) If the contracting activity decides to continue contract performance pursuant to a written finding by the HCA under FAR 33.104(c)(2), that finding must be made with the concurrence of the Chief Counsel for the supply chain or activity involved. After the HCA has signed the authorization to continue performance, the Chief Counsel shall notify DG of the HCA’s finding and immediately provide DG a copy.

(90) Contracting offices for which the Director, Acquisition Management, (J-7) is the HCA (see DLAD 2.101) shall submit the proposed finding through their Chief Counsel to DG for concurrence. If DG concurs, DG will then forward the proposed finding to the Director, Acquisition Management, (J-7) for approval. After the Director, Acquisition Management, (J-7) has signed the finding, J-7 shall immediately notify DG and shall provide DG a copy of the written determination.

(3) Before the contracting activity lifts the stop work order or performance is otherwise continued, the attorney handling the protest shall notify GAO of the finding made under FAR 33.104(c)(2). For contracting offices where the Director, Acquisition Management, (J-7) is the HCA, DG will notify GAO of the finding made under FAR 33.104(c)(2).

(g) Notice to GAO.

(90) When a protest has been sustained, the Chief Counsel of the Supply Chain or activity involved shall notify DG if the contracting activity or office recommends the agency not follow the GAO recommendation. A final decision not to follow the GAO recommendation shall be made by the Director, Acquisition Management, (J-7), with the concurrence of DG. If the Director, Acquisition Management, (J-7) determines, after coordinating with DG, not to follow the GAO recommendation, DG shall notify the Chief Counsel in writing of the determination. The Chief Counsel shall then submit a report under FAR 33.104(g) detailing why the agency has not fully implemented the GAO recommendation. In accordance with FAR 33.104(g), the report must be signed by the HCA and submitted to GAO within 65 days of receipt of the GAO recommendation.

(h) Award of costs.

(90) The authority and responsibility for resolving claims for protest costs has been delegated to the Chief Counsels of the following offices: DESC, DSCC, DSCR, DSCP, and DRMS. This authority may not be redelegated. All decisions resolving claims for protest costs require concurrence of the contracting officer.

(91) The authority to resolve protest claims applies not only when the GAO issues a decision recommending protest costs be paid, but also when the agency takes corrective action after determining the solicitation, proposed award, or award does not comply with applicable laws and/or regulations. The amount paid, however, is limited by 31 U.S.C. § 3554(c)(2).

(92) Offices of Counsel that have not been delegated the authority to settle claims for protest costs shall forward requests for protest costs, attorneys’ fees, and/or bid or proposal preparation costs to DG. DG, in consultation with the applicable Office of Counsel, is responsible for disposition of these claims. The applicable Office of Counsel is responsible for ensuring contracting offices pay protesters in accordance with the settlements reached.

33.106 Solicitation provision.

(90) The contracting officer shall insert a provision substantially the same as the provision at 52.233-9000 in all solicitations, including solicitations for acquisitions of commercial items.

SUBPART 33.2 - DISPUTES AND APPEALS

33.209 Suspected fraudulent claims.

Suspected fraudulent claims will be referred to the supply chain or activity Office of Counsel for appropriate action and/or investigation, which may include reporting the matter to DG, consistent with FAR 9.406-2 and -3, DFARS and DFARS PGI 209.406-3, and DLAD 9.406-3.

33.211 Contracting officer’s decision.

(a)(4)(v) Contracting officers shall include ADR language in final decisions, unless the proper official has determined in writing that ADR is inappropriate. (See 5 U.S.C. § 572(b) and Defense Logistics Agency Directive 5025.30, Defense Logistics Agency OneBook (Alternative Dispute Resolution Policy).) Typically, this is done by adding a sentence substantially as follows to the end of the paragraph regarding the contractor’s appeal rights: “Subject to the appeal time frames specified above, you may request that this dispute be resolved using alternative dispute resolution procedures."

33.212 Contracting officer's duties upon appeal.

(90) The notice of final decision required by FAR 33.211 advises the contractor that it may submit a notice of appeal directly to either the Board of Contract Appeals (BCA) or the United States Court of Federal Claims (COFC). When the contracting officer receives a copy of a notice of appeal, all records pertaining to the appeal will be held for review until final resolution.

(91) Notice of Appeal to the Armed Services Board of Contract Appeals (ASBCA): Notices of appeal that are submitted directly to the contracting officer shall be forwarded immediately to the applicable Office of Counsel for further re-transmission to the ASBCA. Direct communication by the applicable Office of Counsel with the ASBCA is authorized. The charter and rules of the ASBCA are set forth in the DFARS, Appendix A and at http://docs.law.gwu.edu/asbca/rule.htm. All official correspondence to the ASBCA will be addressed to the Recorder, Armed Services Board of Contract Appeals, Skyline 6, 5109 Leesburg Pike, 7th floor, Falls Church, VA 22041-3208.

33.213 Obligation to continue performance.

(a) When the Alternate I of the clause at FAR 52.233-1, Disputes, is proposed to be used in contracts when permitted by the circumstances described in DFARS 233.215, the determination shall be approved by the Supply Chain HCAs or, the Commanders/Directors DDC, DMC, DRMS, and DAPS. For those DLA activities not designated as a contracting activity (see DFARS 202.101, the determination to use the Alternate I, as provided in DFARS 233.215, shall be forwarded to DLA Procurement (J-72) by cover letter signed by the Commander/Director for approval by the Director, Acquisition Management, (J-7). Examples of the types of unusual circumstances when continued performance may be determined to be vital to the national security or public health and welfare include the acquisition of weapons support systems, and related components other than those listed in DFARS 233.215, or other essential supplies or services whose timely reprocurement from other sources would be impracticable.

33.214 Alternative Dispute Resolution (ADR).

The contracting officer shall insert the clause at 52.233-9001 in all solicitations and awards when the clause at FAR 52.233-1 is used, including acquisitions conducted using FAR Part 12, unless the conditions described in FAR 33.203(b) apply, or unless a different ADR clause is used that is specifically tailored to the acquisition.