# AFARS PART 5133

- Subpart 5133.1 -- Protests

- 5133.102 -- General.
- 5133.103 -- Protests to the agency.

- 5133.103-90 -- Annual agency bid protest report.

- 5133.104 -- Protests to Government Accountability Office (GAO).
- 5133.105 – Reserved.
- 5133.190 -- Reporting and analysis of bid protests.

- 5133.190-1 -- Bid protest action report.
- 5133.190-2 -- Quarterly bid protest analysis report.

- Subpart 5133.2 -- Disputes and Appeals

- 5133.212 -- Contracting officer's duties upon appeal.

- 5133.212-90 -- Appeal procedures.
- 5133.212-90-1 -- Notice of an appeal.
- 5133.212-90-2 -- ASBCA appeal file.
- 5133.212-90-3 -- Comprehensive report to the Chief Trial Attorney.
- 5133.212-90-4 -- Review of appeal.
- 5133.212-90-5 -- Receipt of complaint.
- 5133.212-90-6 -- Litigation.
- 5133.212-90-7 -- Disposition.
- 5133.212-90-8 -- Review of ASBCA decisions.
- 5133.212-90-9 Dispute settlement and judgments, use of the Judgment Fund.

- 5133.213 -- Obligation to continue performance.
- 5133.9001 – Designation of grant appeal authority. [AFARS Revision #23, dated May 16, 2008]

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).

(ii) Actions taken must be consistent with 10 U.S.C.2305(f), 31 U.S.C.3554, and FAR Part 33.

(iii) For award of costs, contracting officers must attempt to reach an agreement on the amounts to be paid to a protester or an interested party. If no agreement can be reached, persons exercising authority as cited in (i) above may, at the request of the protester or an interested party, make the final agency determination of the amount the contracting officer will pay.

(iv) Officials must consult legal counsel in exercising this authority.

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.

(4) Protests requesting an independent review at a level above the contracting officer will be handled as follows:

(i) For contracting officers under the jurisdiction of the Headquarters, Army Materiel Command (HQ, AMC), in accordance with procedures established by the Commander, AMC.

(ii) For contracting officers under the jurisdiction of the United States Army Corps of Engineers (USACE), in accordance with the procedures established by the Chief of Engineers.

(iii) For all other contracting activities, in accordance with procedures established by the HCA. If the independent review will be conducted within contracting channels, the HCA will appoint a review authority at least at the level of Director of Contracting. The HCA may also appoint individuals assigned outside contracting channels as a review authority (e.g. attorneys, chief of staff, installation commanders).

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 --

(a) The number of protests received during the reporting period, to include their disposition;

(b) An assessment of the causes of the most frequently recurring issues, including a description of all corrective actions taken to include the award of protest costs;

(c) The distribution of protests by subordinate contracting offices; and

(d) Any additional information considered necessary to a full understanding of the efficiency and effectiveness of the activity’s agency protest procedures.

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.

(4)(S-90)

(1) Contracting offices must use the following reporting procedures, except that the PARC may require the report to be sent through the PARC’s office:

(i) Contracting offices reporting to AMC must send the report directly to the addressee in 5101.290(b) (9).

(ii) Contracting offices reporting directly to the USACE must send the report directly to the following address: U.S. Army Corps of Engineers, Attn: CECC-C, 441 G St., N.W., Washington, DC 20314-1000. [AFARS Revision #004, dated July 26, 2002]

(iii) All other Army contracting offices must send the report via courier or express mail service to the U.S. Army Contract and Fiscal Law Division, Attn: JALS-KFLC, 901 N. Stuart Street, Suite 500, Arlington, VA 22203-1837.

(iv) The report must be sent not later than 20 days after the GAO notifies the agency by telephone that a protest has been filed. If the GAO decides to use the express option and the contracting officer concludes that the report cannot be furnished in time, he/she must notify the appropriate office in (i)-(iii) at once so that it may request an extension from GAO.

(2) Before forwarding the report to the GAO Comptroller General, the addressees in 5133.104(a)(4)(S-90)(1)(i)-(iii) must review the report and recommend any changes required to ensure that the report is accurate, complete, and legally sufficient.

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

(b) Protests before award.

(1) (A) When it is necessary to request authorization to award a contract notwithstanding a protest, the contracting officer must prepare a determination and findings (D&F) to be signed by the HCA. The D&F must clearly explain the damage the United States will suffer if award is not authorized and the damages the United States will suffer if the award is made and the protest is sustained. However, no award can be made or selection announced prior to approval by the Deputy Assistant Secretary of the Army (Procurement) (DASA(P)), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. The contracting officer must also prepare a request for approval that identifies all protest issues and addresses the merits and expected resolution of the protest. Include details of any Congressional interest in the protest. After legal review, forward the request with the D&F to the HCA.

(B) Within three days after the contracting office is notified of the protest, the HCA will endorse the request for approval and electronically transmit the request and the D&F to the appropriate office in 5133.104(a)(4)(S-90)(1)(i)-(iii). That office shall immediately distribute the request and the D&F to the addressee in 5101.290(b)(1) and to Department of the Army, Attn: SAGC, General Counsel, 104 Army Pentagon, Washington DC 20310-0104.

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

(c) Protests after award.

(2) Process the finding as required at (b), Protests before award. The D&F must explain the damage the United States will suffer if continuing performance is not authorized and the damages the United States will suffer if continuing performance is authorized and the protest is sustained. Continuing performance cannot be authorized prior to approval by the DASA (P), except for contracting offices reporting to AMC, when the approval may be granted by the Command Counsel, AMC. Process the request for approval as required in (b).

(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.

5133.190 -- 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:

(a) AMC contracting activities: Addressee in 5101.290(b)(9).

(b) USACE contracting activities: U.S. Army Corps of Engineers, Attn: CECC-C, 441 G St., N.W., Washington, DC 20314-1000. [AFARS Revision #004, dated July 26, 2002]

(c) All other contracting activities: Addressee in 5133.104(a)(4)(S-90)(1)(iii).

[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:

(1) The Army Chief Trial Attorney, as appointed by the Judge Advocate General, is the authorized representative of the Secretary of the Army with sole authority and responsibility for the conduct and control of litigation of contract disputes for all Department of the Army cases docketed with the Armed Services Board of Contract Appeals (ASBCA), except for USACE cases described in (2) and (3).

(2) The Engineer Chief Trial Attorney, as appointed by the Chief Counsel, Corps of Engineers, is the authorized representative of the Secretary of the Army and has sole authority and responsibility for the conduct and control of litigation of contract disputes for all Corps of Engineers cases docketed with the ASBCA of a value of less than $3 million.

(3) The Assistant Judge Advocate General for Civil Law may determine, on a case by case basis, to delegate Corps of Engineer cases of a value of $3 million or more to the Engineer Chief Trial Attorney.

(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:

(1) A copy of the appeal file.

(2) A trial attorney’s litigation file (exempt report, paragraph 5-2e(4) of Army Regulation (AR) 335-15 which shall include the information listed in (i) through (v) below. This report shall not be provided to the ASBCA or the contractor.

(i) The names, current addresses and telephone numbers of all potential witnesses (including the contractor’s) having information concerning the facts in dispute.

(ii) A signed statement of each Government witness itemizing personal knowledge of the facts the witness will testify to under oath at hearing (or a summary if it is impossible to obtain a signed statement). Include the following:

(A) Background and circumstances surrounding the generation of pertinent documents.

(B) Explanation, basis and/or rationale of those portions of the available documents which will require clarification at the hearing.

(C) Listing of any facts and events not shown by available documents.

(D) Identification of any other persons having personal knowledge of pertinent facts.

(E) A statement regarding the expected availability of the witness for the hearing.

(iii) An analysis for the Chief Trial Attorney discussing the contractor’s individual allegations and overall position with an opinion of the validity of each, and an appraisal of the strengths and weaknesses apparent in both parties’ positions.

(iv) A memorandum by the legal advisor or the official making the decision (with input from legal counsel), setting forth an analysis of the legal issues involved in the dispute, including comments about the adequacy of the findings of fact and the legal sufficiency of the decision.

(v) The advisory report, if any, of the Contract Settlement Review Board.

(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 --

(1) Furnish technical and legal assistance to the contracting officer as required; and

(2) Establish procedures to ensure that all appeals filed under the disputes clause are reviewed at a level higher than the contracting officer.

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

(1) Ensure that the findings cover all issues in dispute and are consistent with the decision from which the appeal is taken;

(2) Ensure that the contracting officer’s comprehensive report to the Chief Trial Attorney, including the evidence submitted in support of the contracting officer’s decision, is complete;

(3) Within 10 calendar days after receiving the contracting officer’s comprehensive report, forward to the Chief Trial Attorney --

(i) Evaluations, conclusions and recommendations;

(ii) Any additional evidence considered essential to enable the Chief Trial Attorney to protect the interests of the Government before the ASBCA; and

(iii) If the reviewing official decides that the contracting officer’s decision is not sufficiently supported by available and competent evidence or is erroneous, an estimated date by which either additional support will be furnished or the decision will be withdrawn; and

(4) Assist the Chief Trial Attorney in obtaining additional evidence or in making other necessary preparations for presenting the Government’s position before the ASBCA.

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 --

(1) The Chief Trial Attorney may authorize attorneys designated by an HCA to act as trial attorneys or to assist in the presentation of Army cases; or

(2) When it is determined by the HCA that an appeal before the ASBCA has particular significance to the contracting activity and that it involves difficult operational issues and technical facts, subsequent to the filing of the contracting officer’s comprehensive report and after consultation with the Chief Trial Attorney, the HCA may detail an attorney from the contracting activity to assist the Chief Trial Attorney.

(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:

(1) The contracting officer must advise the Chief Trial Attorney of all offers of settlement from a contractor, whether made by the contractor or through the contractor’s attorney.

(2) The contracting officer must consult with the Chief Trial Attorney before accepting a contractor’s offer of settlement and before making a settlement offer to the contractor.

(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)).

(1) An agreement on matters for which there is no substantial controversy and which will not have the effect of disposing of an appeal may be entered into by the Chief Trial Attorney or by an individual trial attorney; provided that, in the case of a pre-hearing written stipulation or agreement, authority shall have been granted the individual trial attorney in advance by the Chief Trial Attorney.

(2) In appropriate cases, such as those where time-consuming delays would occur by returning the appeal to the contracting officer, the Chief Trial Attorney (or an individual trial attorney acting with the prior approval of the Chief Trial Attorney) may enter into an agreement with an appellant which will have the effect of disposing of an appeal after concurrence has been obtained from a representative of the HCA. Such agreement may then become the basis of an ASBCA decision disposing of the appeal.

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

(a) Contracting activity review.

(1) The contracting activity must review ASBCA decisions and, if the HCA thinks that a decision should be reconsidered by the ASBCA or appealed to the U.S. Court of Appeals for the Federal Circuit, the HCA may within 10 calendar days after receipt of the decision, request the Chief Trial Attorney to either --

(i) File a motion for reconsideration, stating the grounds relied upon to sustain the motion; or

(ii) Initiate action seeking an appeal to the U.S. Court of Appeals for the Federal Circuit, stating the basis for such an appeal pursuant to the review standards of section 10(b) of the Contract Disputes Act of 1978, as amended.

(2) If the Chief Trial Attorney does not concur with a request of the HCA within five calendar days, the Chief Trial Attorney shall forward the request, together with reasons for opposition, through the Judge Advocate General to the addressee in 5101.290(b)(1) for the decision in coordination with the General Counsel of the Army. If it is determined that a motion for reconsideration will not be made or that an appeal will not be taken to the U.S. Court of Appeals for the Federal Circuit, the Chief Trial Attorney may certify this fact to the ASBCA.

(3) When it appears that an adverse decision of the ASBCA has resulted from flaws in the regulations that implement DoD policy rather than an error by the ASBCA, recommendations for changes to acquisition regulations should be developed following the format in DFARS 201.201-1(d)(i) and submitted to the addressee in 5101.290(b)(3).

[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.

(1) The Army shall assign responsibility, within the Office of the Assistant Secretary of the Army (Financial Management and Comptroller) (ASA(FM&C)), for tracking available expired funds within the Service. The ASA(FM&C) shall insure that financial managers throughout the Service are aware of the requirements set forth herein and are prepared to expeditiously assist contracting officers to comply with these procedures.

(2) The following procedures for settlements shall be followed by the Army.

(i) In situations where contract funds have expired but the accounts have not closed, settlements shall be funded with expired funds if available. Contracting Officers will ascertain the availability of appropriate expired funds, through financial management channels, from the ASA(FM&C).

(ii) If the Assistant Secretary (FM&C) determines that no expired funds exist within the Army to fund the settlement and the accounts are not closed, the Contracting Officer must access the Judgment Fund through a consent judgment in order to use current year funds to pay the settlement (i.e., reimburse the Fund). The reimbursement point of contact (POC) is the ASA(FM&C) or his/her designee.

(iii) If no expired funds exist but the account remains open, the following procedure will be followed. If the contracting officer has current year funds available to reimburse the Fund, then he/she shall set aside the funds and may enter into a consent decree and allow the Fund to pay the judgment. The contracting officer will then coordinate with the Fund POC indicated on the Financial Management Service (FMS) Forms (ASA(FM&C)) to accomplish reimbursement of the Fund. If the contracting officer does not have sufficient current funding to reimburse the Fund, he/she will contact the ASA(FM&C) for authorization prior to entering into a consent decree.

(iv) If the accounts are closed, the following procedure will be used. If the contracting officer has sufficient funds to pay the settlement, he/she will not use the Fund, and pay the settlement with Agency funds. If sufficient current funds are not available, the contracting officer must obtain approval from ASA(FM&C) to enter into a consent judgment to access the Fund.

(v) When use of the Judgment Fund is authorized, the contracting officer shall fill out the appropriate Certificate of Finality and Financial Management Service forms (FMS Forms 195, 196, 197A and 198 (if appropriate)) and submit the payment request to the FMS. The “reimbursement contact” on FMS Form 196 shall be the ASA(FM&C) or his/her designee. Copies of the FMS forms sent to the FMS shall simultaneously be forwarded to the ASA(FM&C). The ASA(FM&C) shall insure prompt reimbursement by the Army to the Fund.

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

(1) The contracting officer shall ascertain the availability of current funds through financial management channels, if necessary through ASA(FM&C). If current funds are available, the contracting officer will not use the Fund, and will pay the judgment with Agency funds.

(2) If current funds are not available, the contracting officer will pay the judgment using the Fund and notify the ASA(FM&C).

(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.

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.