# DLAD PART 33 – PROTESTS, DISPUTES, AND APPEALS

- 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

(Revised November 19, 2013 through PROCLTR 2014-31)

TABLE OF CONTENTS

SUBPART 33.1 – PROTESTS

33.103 Protests to the agency.

33.104 Protests to General Accountability Office (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)(S-90) (i) Protesters may submit a protest to the contracting officer or, under the authority of Executive Order (EO) Number 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 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 the HCA at contracting activities and the Deputy Director, DLA Acquisition (J7) for contracting offices for which the Director, DLA Acquisition is the HCA. Solicitations must indicate that this independent review is available as an alternative to consideration by the contracting officer, rather than as an appellate procedure.

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

(iii) 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.

(iv) 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 the U.S. Government Accountability Office (GAO).

33.104 Protests to GAO.

(a) General procedures.

(2) The contracting activity’s or office’s Counsel is responsible for ensuring that the notice of protest filed at GAO is provided to all interested parties. The notice can be provided by either the contracting activity or office or by Counsel.

(3)(90) After receiving a protest, the chief counsel for the contracting activity or office (see 33.104(a)(7)(S-90)) 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 contracting activity or office.

(4)(i) The attorney assigned to handle the protest is responsible for ensuring that DLA Chief Trial Attorney receives an electronic copy of the agency report by the day the report is due to GAO and receives copies of any comments received from the protester or interested parties. For DLA Disposition Services Counsel and DLA Distribution Counsel, a draft agency report must be provided to DLA Chief Trial Attorney 5 days before the report due date. A full copy with attachments may be forwarded immediately by mail.

(7)(S-90) DLA Chief Trial Attorney has provided GAO the name, title, and telephone number of a DLA General Counsel procurement attorney as the designated DLA contact for protests.

(i) The DLA Chief Trial Attorney is the administrative focal point for all DLA protests filed with GAO. Immediately after receiving written notice from GAO of a protest, the DLA Chief Trial Attorney will notify the contracting activity’s or office’s Office of Counsel that a protest has been filed with GAO. The contracting activity’s or office’s Office of Counsel shall promptly assign an attorney to the protest and shall notify the DLA Chief Trial Attorney 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.

(ii) The chief counsel of the following offices have been delegated the authority and responsibility to represent DLA in bid protests filed with GAO for their respective contracting activities and offices: DLA Land and Maritime, DLA Energy, DLA Aviation, DLA Troop Support, DLA Disposition Services, and DLA Distribution.

(iii) For offices of counsel that have not been delegated the authority and responsibility to represent DLA in bid protests filed with GAO, the DLA Chief Trial Attorney will notify GAO of which DLA attorney is assigned to the protest action.

(iv) 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 the DLA Chief Trial Attorney 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 the DLA Chief Trial Attorney to establish a report due date. That office shall also furnish the names and addresses of any interested parties. The DLA Chief Trial Attorney 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.

(b) Protests before award.

(1) If the contracting activity or office 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 coordination by the chief counsel, shall make the written finding required by FAR 33.104(b)(1). Counsel must send a copy of the finding to the DLA Chief Trial Attorney.

(90) Contracting offices for which the Director, DLA Acquisition (J7) is the HCA (see 2.101) shall submit the proposed finding through their chief counsel to the DLA Chief Trial Attorney for coordination. The DLA Chief Trial Attorney will provide the proposed finding to the Director, DLA Acquisition (J7) with a recommendation for approval or disapproval. If the Director, DLA Acquisition (J7) approves and signs the finding, DLA Acquisition (J7) shall immediately notify the DLA Chief Trial Attorney and shall provide the DLA Chief Trial Attorney a copy of the signed determination.

(2) Before the contracting activity or office awards the contract, the attorney handling the protest shall notify GAO of the finding made under FAR 33.104(b)(1) in accordance with FAR 33.104(b)(2). For contracting offices where the Director, DLA Acquisition (J7) is the HCA, DLA Chief Trial Attorney will notify GAO of the finding.

(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 or office shall suspend performance of the order. This determination shall be coordinated with Counsel handling the protest.

(2) If the contracting activity or office 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 coordination by the Chief Counsel for the contracting activity or office involved. If the Director, DLA Acquisition is the HCA, coordination by the DLA Chief Trial Attorney is required. After the HCA has signed the authorization to continue performance, the Chief Counsel shall notify the DLA Chief Trial Attorney of the HCA’s finding and immediately provide it a copy.

(90) Contracting offices for which the Director, DLA Acquisition (J7) is the HCA (see 2.101) shall submit the proposed finding through their chief counsel to DLA Chief Trial Attorney for concurrence. The DLA Chief Trial Attorney will provide the proposed finding to the Director, DLA Acquisition, with a recommendation for approval or disapproval. If the Director, DLA Acquisition approves and signs the finding, DLA Acquisition shall immediately notify the DLA Chief Trial Attorney and shall provide the DLA Chief Trial Attorney a copy of the signed determination.

(3) Before the contracting activity or office 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, DLA Acquisition (J7) is the HCA, the DLA Chief Trial Attorney 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 contracting activity or office involved shall notify the DLA Chief Trial Attorney 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, DLA Acquisition (J7), through coordination with the DLA Chief Trial Attorney. If the Director, DLA Acquisition (J7) determines, after coordinating with the DLA Chief Trial Attorney, not to follow the GAO recommendation, the DLA Chief Trial Attorney 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.

(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: DLA Energy, DLA Land and Maritime, DLA Aviation, DLA Troop Support, DLA Disposition Services, and DLA Distribution. 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 the DLA Chief Trial Attorney. The DLA Chief Trial Attorney, 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 contracting activity or office Office of Counsel for appropriate action and/or investigation, which may include reporting the matter to DLA General Counsel, 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 Issuance Alternative Dispute Resolution Policy. The contracting officer shall add a statement 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) 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. All official correspondence to the ASBCA will be addressed to the Recorder, Armed Services Board of Contract Appeals, Skyline 6, 5109 Leesburg Pike, Suite 700, Falls Church, Virginia 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 contracting activity’s HCAs. For those DLA activities not designated as a contracting activity, the determination to use the Alternate I, as provided in DFARS 233.215, shall be forwarded to DLA Acquisition J72 by cover letter signed by the Commander/Director for approval by the Director, DLA Acquisition (J7). 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.