# AFFARS PART 5333Protests, Disputes, and Appeals

- PART 5333
  Protests, Disputes, and Appeals

- 5333.090 Policy

- SUBPART 5333.1 — PROTESTS

- 5333.103 Protests to the agency
- 5333.104 Protests to the GAO
- 5333.190 Protests to the United States Court of Federal Claims (USCFC)

- SUBPART 5333.2 — DISPUTES AND APPEALS

- 5333.214 Alternate dispute resolution (ADR)
- 5333.290 Requests for equitable adjustment (REA)
- 5333.291 Claims and terminations for default
- 5333.292 Appeals to the Armed Services Board of Contract Appeals (ASBCA)
- 5333.293 Appeals to the United States Court of Federal Claims (USCFC)

PART 5333
Protests, Disputes, and Appeals

[Revised July 14, 2011]

5333.090 Policy

The acquisition team shall use alternative means of dispute resolution to the maximum extent practicable. Alternate Disputes Resolution (ADR) techniques shall be used whenever possible to resolve all issues in controversy. The acquisition team shall attempt to use ADR prior to the commencement of litigation once unassisted negotiations have reached an impasse. Further, ADR shall be offered in litigation, unless one of the exceptions in 5 U.S.C. 572(b) applies or the policy set forth by Deputy General Counsel (Dispute Resolution (SAF/GCD) indicates that ADR is not appropriate. ADR shall also be used to resolve protests to the maximum extent practicable.

SUBPART 5333.1 — PROTESTS

5333.103 Protests to the agency

(d) No text.

(3) An agency protest is usually filed with the contracting officer. Offerors are encouraged to file at the lowest level to resolve the issues concerned. In all cases, a copy of an agency protest must be provided to the contracting officer regardless of the level at which the protest is filed. The contracting officer shall prepare the protest file following an agency protest (including a protest of a non-appropriated funds procurement) regardless of the level at which the protest is filed. The contracting officer shall request guidance from SAF/AQC, safaqc.workflow@pentagon.af.mil, for any protest likely to generate significant Congressional interest.

(4) When an agency protest is denied, an offeror may request an independent review at a level above the contracting officer.

(h) The decision to deny a protest shall be made at a level no lower than that at which the protest was filed. Protests may be sustained at any level in the review process, with the concurrence of the cognizant legal office.
5333.104 Protests to the GAO

Follow the mandatory procedures at MP5333.104, Protests to the GAO.

5333.190 Protests to the United States Court of Federal Claims (USCFC)

(a) The Commercial Law and Litigation Directorate of the Air Force Legal Operations Agency (AFLOA/JAQ) serves as the Air Force agency counsel to the Department of Justice (DoJ) for protests at the USCFC and assists the assigned DoJ attorney in defending Air Force interests.

(b) The contracting officer shall inform AFLOA/JAQ of any notice of protest at the USCFC and provide support as requested by AFLOA/JAQ. Also notify the SCO or the SCCO and the cognizant legal office.

SUBPART 5333.2 — DISPUTES AND APPEALS

5333.214 Alternate dispute resolution (ADR)

For ACAT I and II programs, the contracting officer shall establish an agreement between the Government and the contractor, such as a memorandum of understanding, that outlines the intent of the parties with respect to the use of ADR. Contracting officers shall consider establishing ADR agreements for other programs and acquisitions.

5333.290 Requests for equitable adjustment (REA)

The contracting officer shall use ADR to the maximum extent practicable to resolve a REA when unassisted negotiations reach an impasse. The contracting officer shall refer to AFLOA/JAQ, with a copy to SAF/GCD, any REA greater than $500,000 in which unassisted negotiations have reached an impasse in order to develop a dispute resolution strategy.

5333.291 Claims and terminations for default

(a) If a contractor submits an uncertified claim exceeding $100,000, the contracting officer shall notify the contractor, in writing, of its failure to certify as required by the Contract Disputes Act (41 U.S.C. 601-613). The notice shall state that a final decision will not be issued until the claim is certified.

(b) Prior to making a final decision on a claim or termination for default, the contracting officer shall refer the proposed final decision to the cognizant legal office for legal advice, ADR suitability, and appropriate dispute resolution strategies. The contracting officer, with the assistance of the cognizant legal office, shall seek review by AFLOA/JAQ of all proposed final decisions. At the same time, the contracting officer shall provide SAF/GCD with any proposed final decision on a claim involving PEO programs, any proposed final decision on a claim greater than $500,000, or any proposed termination for default with estimated excess reprocurement costs greater than $500,000.

(c) The contracting officer shall use ADR to the maximum extent practicable to resolve an Air Force affirmative contract claim (such as defective pricing, liquidated damages, etc.) when unassisted negotiations reach an impasse as determined by the SCO or SCCO. The contracting officer shall provide to AFLOA/JAQ, with a copy to SAF/GCD, any audit or other findings indicating Air Force entitlement to recovery greater than $500,000 where unassisted negotiations have reached an impasse, in order to develop a dispute resolution strategy. Government claims must be formally asserted [issuance of a Contracting Officer’s Final Decision (FAR 33.206)] within 6 years after the accrual of the claim.

5333.292 Appeals to the Armed Services Board of Contract Appeals (ASBCA)

(a) AFLOA/JAQ represents the Air Force in appeals to the ASBCA.

(b) If the contractor files an appeal with the ASBCA, the contracting officer shall forward to AFLOA/JAQ and the cognizant legal office a copy of any notice of appeal to the ASBCA, along with the envelope in which the notice was received. If the contractor files an appeal with the contracting officer instead of the ASBCA, the contracting officer shall immediately notify AFLOA/JAQ of the date the appeal was received and forward to AFLOA/JAQ and the cognizant legal office a copy of the appeal and a copy of the envelope in which the appeal was received. The contracting officer shall forward the original appeal and envelope to the ASBCA.

(c) The contracting officer shall prepare a “Rule 4 file” for any appeal to the ASBCA in accordance with Rule 4 of the ASBCA rules (see DFARS Appendix A, Part 2). The contracting officer shall consult with AFLOA/JAQ before including in the Rule 4 file any legal opinions or intra-governmental or inter-governmental documents as described in DoD Regulation 5400.7, DoD Freedom of Information Act Program; the Air Force Supplement to DoD 5400.7-R; and FAR 24.2.

(d) While an appeal is pending, the contracting officer along with the program manager/user/functional Commander and SJA will support the assigned trial attorney as required including; identifying and locating government witnesses, gathering contractual documents and other physical evidence for conferences and hearings necessary to defend or otherwise dispose of an appeal.

(e) The contracting officer shall obtain approval from the AFLOA/JAQ trial attorney assigned to the appeal prior to releasing the Rule 4 file. After such approval, the contracting officer shall simultaneously mail copies of the Rule 4 file to the ASBCA (Recorder), the contractor, and AFLOA/JAQ. The contracting officer shall not provide contractors, or their representatives, access to any Government files or documents, other than the Rule 4 file, without approval from AFLOA/JAQ.

5333.293 Appeals to the United States Court of Federal Claims (USCFC)

(a) The Department of Justice represents the Air Force in appeals brought before the USCFC. The Commercial Law and Litigation Directorate (AFLOA/JAQ) serves as the Air Force counsel with the Department of Justice in such appeals.

(b) The contracting officer shall notify the cognizant legal office of any notice of appeal to the USCFC. The cognizant legal office shall forward a copy of the notice to SAF/GCD and AFLOA/JAQ.

(c) The contracting officer shall assist the cognizant legal office in preparing the litigation report.