NFS part 1833

PART 1833

PROTESTS, DISPUTES, AND APPEALS

Subpart 1833.1--Protests

1833.103 Protests to the agency.

(a) When a protest is filed directly with an installation, any determination under FAR 33.103(a) to award the contract before the protest is resolved will be made by the contracting officer. If the protest is filed with NASA Headquarters, any such determination will be made by the Associate Administrator for Procurement.

(b) When a protest is filed directly with an installation or with NASA Headquarters, the contracting officer shall provide any notice under FAR 33.103(a)(3) to offerors whose offers might become eligible for award.

(c) For protests filed with NASA Headquarters, the contracting officer shall forward to the Program Operations Division (Code HS) within 10 work days a report essentially the same as that required by FAR 33.104(a)(3).

1833.104 Protests to GAO.

(a) General procedures. (1) NASA personnel shall take no action to respond to or resolve any protest filed with GAO other than in accordance with this part.

(2) The notices required by FAR 33.104(a)(2) shall be made by the contracting officer.

(3) Upon receiving any communication from a protester or the GAO regarding a protest, the cognizant procurement officer shall immediately contact Code HS for guidance. Conversely, upon Headquarters receipt of notice from GAO of the filing of a protest, Code HS shall immediately notify the cognizant procurement officer. This is usually done via telephone and constitutes the official notice to the installation that a protest has been filed.

(4) Within 3 work days of being notified, the contracting officer shall forward to Headquarters (Code HS) a copy of the procurement file including all documents referred to in FAR 33.104(a)(3)(ii)(A) through (G) and any others requested by Code HS. The contracting officer's statement (FAR 33.104(a)(3)(ii)(H)) shall be forwarded no later than ten work days after the contracting officer has been notified. The contracting officer's statement shall receive the concurrence of the installation Chief Counsel. If more time is needed, requests for extension may be made by telephone to Headquarters, Code HS.

(5) When the GAO elects to use its express option procedure, the contracting officer's statement shall be forwarded to Code HS within six work days after the contracting officer has been notified. If that is not possible, a report to Code HS shall be made by telephone.

(6) In consultation with the Office of General Counsel, Headquarters (Code HS) shall provide the information required by FAR 33.104(a) to the GAO.

(b) Protests before award. (1) The contracting officer shall provide Headquarters (Code HS) with information and recommendations relevant to a determination under FAR 33.104(b)(1) to award a contract prior to resolution of a protest. Any such determination shall be made by the Associate Administrator for Procurement, who for purposes of this requirement is the "head of the contracting activity." The notification to GAO required by FAR 33.104(b)(2) will be made by Code HS.

(2) The contracting officer shall make the notifications and requests required by FAR 33.104(b)(3).

(c) Protests after award. (1) Any request for a determination under FAR 33.104(c)(2) to authorize performance notwithstanding a protest shall be submitted to Headquarters (Code HS). Any such determination shall be made by the Associate Administrator for Procurement who, for purposes of this requirement, is the "head of the contracting activity." The notification to GAO required by FAR 33.104(c)(3) shall be made by Code HS.

(2) Under FAR 33.104(c)(4), the contracting officer shall consult with Headquarters (Code HS) before terminating a protested contract. If FAR 33.104(c)(5) applies, the contracting officer shall consult with Code HS before taking any action.

(d) Document requests. If the protester in its protest statement or later in the process requests documents, the contracting officer shall forward them to Code HS with the documents required by FAR 33.104(a)(3), within three work days of receipt of the request. Concurrently, the contracting officer shall within 1 work day provide copies of the protest statement, the document request if separate from the protest statement, and the requested documents to the installation Chief Counsel who will prepare a proposed response on the release of the documents. This proposed response will be provided to the contracting officer with copies to Headquarters (Code HS) and the Associate General Counsel for Contracts (Code GK) suitable for incorporation into the Administrative Report.

(e) Conferences. Representatives from Code HS and Code GK, and those installation representatives designated by Code HS or requested by the GAO will attend conferences held in accordance with FAR 33.104(e).

1833.105 Protests to GSBCA.

(a) The installation's Office of Chief Counsel shall, in consultation with the Associate General Counsel for Contracts, (Code GK) and the Associate Administrator for Procurement, represent the agency in protests filed with the GSBCA. The cognizant Chief Counsel is responsible for taking or otherwise ensuring the taking of all actions required by FAR 33.105 and the GSBCA Rules of Procedure.

(b) Upon receiving notice from a non-NASA source of a protest filed with the GSBCA, the receiving office shall immediately notify the cognizant Chief Counsel, who shall further notify the Associate Administrator for Procurement (Code H), the Associate General Counsel for Contracts (Code GK), and the procurement officer.

(c) The contracting officer is responsible for preparing the protest file required by FAR 33.105(b) and otherwise assisting counsel.

(d) The determination and findings required by FAR 33.105(d)(2) shall be (1) prepared and executed by the director or assistant director of the cognizant technical directorate, the cognizant program/ project manager, or cognizant staff official reporting directly to the head of the installation and (2) forwarded to the Associate Administrator for Procurement (Code H) for concurrence.

Subpart 1833.2--Disputes and

Appeals

1833.209 Suspected fraudulent claims.

The contracting officer shall report suspected fraudulent claims to the Office of Inspector General (Code W) and the Office of General Counsel (Code G).

1833.211 Contracting officer's decision.

The Armed Services Board of Contract Appeals is the NASA Administrator's authorized representative for hearing and determining disputes arising under or related to NASA contracts. Accordingly, when final decision letters are prepared, contracting officers shall alter the paragraph at FAR 33.211(a)(4)(v) to include the following:

(a) The Board's mailing address: Armed Services Board of Contract Appeals, Skyline Six, 5109 Leesburg Pike, Falls Church, VA 22041-3208.

(b) A notification that the Board's operating procedures appear in Part 48, Code of Federal Regulations, Chapter 2, Appendix A.

1833.211-70 Contracts awarded before March 1, 1979.

Under contracts awarded before the effective date of the Contract Disputes Act of 1978 (March 1, 1979), the contractor may elect to proceed either under the Act or under the Disputes clause in the contract. Final decision letters regarding disputes under contracts awarded before that date shall be prepared in accordance with FAR 33.211(a)(4) except that contracting officers shall alter the paragraph at FAR 33.211(a)(4)(v) to read as follows:

This is the final decision of the contracting officer. Since your contract was awarded before the effective date of the Contract Disputes Act of 1978 (March 1, 1979), you may appeal this decision by following the procedures of either the Disputes clause at Federal Acquisition Regulation (FAR) 52.233-1, or the Disputes clause (dated September 1962) in your contract. If you decide to appeal under FAR 52.233-1, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the Armed Services Board of Contract Appeals, Skyline Six, 5109 Leesburg Pike, Falls Church, VA 22041-3208, and provide a copy to the contracting officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. For appeals under this clause, you may elect to proceed under the Board's small claims procedure (for claims of $10,000 or less) or its accelerated procedure (for claims of $50,000 or less). In lieu of appealing to the Board, you may bring an action directly in the U.S. Claims Court within 12 months of the date you receive this decision.

If you elect to appeal under the Disputes clause (dated September 1962) of your contract, you must, within 30 days from the date you receive this decision, mail or otherwise furnish to the contracting officer a written appeal or notice addressed to the Armed Services Board of Contract Appeals. The appeal or notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. For appeals under this clause, you may elect to proceed under the Board's optional accelerated procedure (for claims of $25,000 or less).

For additional information, see the procedures of the Armed Services Board of Contract Appeals, which appear in Part 48, Code of Federal Regulations, Chapter 2, Appendix A.

1833.215 Contract clause.

The contracting officer shall use Alternate I the clause at FAR 52.233-1, Disputes, whenever continued performance is vital to national security, the public health and welfare, important agency programs, or other essential supplies or services whose timely reprocurement from other sources would be impracticable.