2024: The FAR - Federal Acquisition Regulations, Part 33

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2024 Webinar Series
THE FAR
THE FAR – PART 33

2024 Webinar Series
THE FAR
FAR PART #33:
Protests, Disputes, and Appeals
SPEAKER: Maria Panichelli
FIRM: McCarter & English
EMAIL: MPanichelli@McCarter.com

FAR Part 33 – Scope of Part
Policies and procedures for:
 Subpart 33/1 – (Bid) Protests
 What is a Bid Protest? (v. Size/Status Protests)
 Subpart 33.2 – Disputes & Appeals (i.e. CDA Claims)
 What is a Claim? (v. REAs)

SUBPART 33.1 - PROTESTS

Protests – General
FAR 33.101 – Definitions
 Defines only five terms: “day,” “filed,” “interested party for the
purposes of a protest,” and “Protest.”
 Other parts, subparts, and sections . . . may define other words or terms and
those definitions only apply to the part . . . where the word or term is defined.

 What even is a Protest?
 Interested Party  Standing
 “Day” and “Filed” are important, because they may impact your filing
deadline
 Protest Venue/Forum Choice – 3 Options (3 Bites at the Apple?)

FAR 33.102 – General
 Contracting Officers must consider all protests and seek legal advice
 Where solicitation, proposed award, or award doesn’t comply with requirements of
law or regulation, head of the agency may take action recommended by GAO; pay
appropriate costs
 Effect on obligation of funds
 Stay of contract performance (stay tuned…)
 Agency protest v. Government Accountability Office (GAO)
 Procurement integrity violations

Agency GAO COFC
Suspension Of Procurement Automatic suspension if protest filed within
10 days of contract award or 5 days after
receipt of requested and required debriefing
Automatic suspension if protest filed within
10 days of contract award or 5 days after
receipt of requested and required debriefing
and GAO notifies agency within same time
period
Temporary Restraining Order and
Preliminary Injunction (Always Discretionary)
Discovery Rights Usually none “Agency Report” includes relevant
documents and factual/legal response to
allegations raised in the protest
Potentially significant discovery; at minimum,
receipt of Agency’s administrative record
Available Remedies Broad range of remedies available,
depending on the allegations
Full range of remedies available, plus protest
costs and attorney’s fees
Injunction or declaratory judgment; may
award bid and proposal preparation costs
Appeal Avenues No direct appeal, but a protest may be filed
at GAO or COFC
No direct appeal, but protestor may seek
reconsideration within 10 days of decision or
file protest at USCOFC
Federal Circuit

Protests to the Agency
FAR 33.103
 Inexpensive, informal, procedurally simple, and expeditious resolution of
protests
 Practical Advice/Opinion
 Required contents in subparagraph (d)
 Provides for independent review at a level above the Contracting Officer

Protests to the Agency
FAR 33.103
 Deadlines
 Stays of Award/Performance
– DOES NOT EXTEND TIME FOR STAY AT GAO
 Aspirational 35 Days to Decision

Protests to GAO
FAR 33.104
 Procedures at 4 CFR Part 21 control over FAR Part 33
 Deadlines
 Interested Party
 Definitions (Day, Filed, Interested Party)
 Required contents
 Stays of Award/Performance
 Protective Orders

Protests to GAO
FAR 33.104
 Contracting Officer required to submit Agency report to GAO. Agency report shall include copies of documents, as
appropriate, and Contracting Officer’s signed statement of relevant facts
 May get a hearing, may not
 100 Days
 Remedies
– Modification of the Solicitation
– Re-Evaluation of Proposals
– Re-Opening of Discussions
– Solicitation of Revised Proposals
– Contract Termination
– Bid and Proposal Costs
– Partial Recovery of Protest Costs

Newer at the GAO: EPDS
 Electronic Protest Docketing System
– An automated case management system that allows parties to file
documents over the Internet
– GAO will make electronic documents available to the parties over
the Internet
– Use of EPDS is mandatory
• However, classified material must never be filed through EPDS

Protests at the U.S.
Court of Federal Claims
FAR 33.105
 Procedures set forth in rules of the U.S. Court of Federal
Claims
– Much less popular
– No time limit for post-award protests
– May award declaratory and injunctive as well as monetary relief
– No automatic stay
– Least cost-effective
– Automatic transfer if 1 party goes this route

Protests – Solicitations and
Contract Clauses
FAR 33.106 - Solicitation provision and contract clause
 FAR 52.233-2, Service of Protest
– In solicitations for contracts expected to exceed simplified
acquisition threshold ($250K)
 FAR 52.233-3, Protest After Award
– In all solicitations and contracts

SUBPART 33.2 – DISPUTES AND APPEALS

Disputes – General
 Defines “Accrual of claim,” “Alternative Dispute Resolution,”
“Defective Certification,” “Issue in Controversy.”
 “Accrual of a claim” - the date when all events, that fix the alleged liability of
either the Government or the contractor and permit assertion of the claim,
were known or should have been known. For liability to be fixed, some injury
must have occurred. However, monetary damages need not have been
incurred.

FAR 2.101: Claim means a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract terms, or other relief arising under or relating to
the contract. However, a written demand or written assertion by the contractor seeking the
payment of money exceeding $100,000 is not a claim under 41 U.S.C. chapter 71, Contract
Disputes, until certified as required by the statute. A voucher, invoice, or other routine
request for payment that is not in dispute when submitted is not a claim. The submission
may be converted to a claim, by written notice to the contracting officer as provided in
33.206(a), if it is disputed either as to liability or amount or is not acted upon in a
reasonable time.

FAR 33.202 – Disputes
 Contract Disputes Act of 1978 (“CDA”) – established procedures for handling “claims”
relating to USG contracts
 41 U.S.C. chapter 71 – Disputes statute establishes procedures and requirements for
asserting and resolving claims subject to the Disputes statute
– Codification of CDA
 Also provides for:
– Payment of interest on contractor claims
– Certification of contractor claims
– Civil penalty for contractor claims that are fraudulent or based on a misrepresentation of fact

FAR 33.203 – Applicability
 FAR Part 33 applies to any express or implied contract with USG
covered by the FAR
 Doesn’t apply to contracts with a foreign government/international
organization (if application of Disputes statute is not in the public
interest)
 Applies to all disputes with respect to Contracting Officer decisions on
matters “arising under” or “relating to” a contract

Disputes Process:
Anatomy of a Claim
FAR 33.206 – Initiation of a Claim
 Contractor claims shall be submitted:
– In writing
– To the Contracting Officer for a decision
– Within 6 years after accrual of a claim
 Contracting Officer shall:
– Issue a written decision on any Government claim initiated against a contractor
within 6 years after accrual of the claim

Disputes Process:
Anatomy of a Claim
FAR 33.207 – Contractor Certification
 Contractor must provide certification in this provision when submitting any claim
exceeding $100,000
– “I certify that the claim is made in good faith; that the supporting data are accurate
and complete to the best of my knowledge and belief; that the amount requested
accurately reflects the contract adjustment for which the contractor believes the
Government is liable; and that I am duly authorized to certify the claim on behalf of
the contractor.”
 Ensure that certification is executed by a person authorized to bind the contractor
with respect to the claim

Disputes Process:
Anatomy of a Claim
FAR 33.208 – Interest on Claims
 Government shall pay interest on a contractor’s claim on the amount found
due and unpaid from the date that:
– The CO receives the claim; or
– Payment would otherwise be due, if that date is later, until the date of payment
 Simple interest at Treasury Rate applicable to the period during which the
contracting officer receives the claim
– And then at the rate applicable for each 6-month period during pendency of the
claim

Disputes Process – Fraud
FAR 33.209 – Suspected Fraudulent Claims
 Beware of submitting claims that misrepresent facts!
 Contracting Officer is required to refer the matter to the
agency official responsible for investigating fraud

Disputes Process:
CO Authority
FAR 33.210 – Contracting Officer’s Authority
 COs are authorized, within the limitations of their warrants, to decide or resolve
all claims arising under or relating to a contract
 COs authorized to use ADR
 Authority to decide or resolve claims does not extend to:
– Claim for penalties or forfeitures prescribed by statute or regulation that
another Federal agency is specifically authorized to administer, settle or
determine; or
– Any claim involving fraud

Disputes Process – COFD
FAR 33.211 – Contracting Officer’s Decision
 When a claim cannot be settled by mutual agreement, Contracting Officer shall issue a final
decision that conforms with the requirements of this clause
 Final decisions must include instructions for appealing the decision
 Decisions must be issued within statutory time limits
– For claims of $100,000 or less, 60 days after receiving a written request from the contractor that a
decision be issued within 60 days
– For claims greater than $100,000, 60 days after receiving a certified claim
• If decision will not be issued within 60 days, CO shall notify the contractor, within that period, of the time within
which a decision will be issued
• Government gets one shot to extend the deadline – after that, the claim is deemed denied and contractor can
appeal

Disputes Process:
Post-COFD
FAR 33.212 – Contracting Officer’s Duties Upon Appeal
 Consistent with any agency procedures, Contracting Officer
shall provide data, documentation, information, and support
as may be required by the agency Board of Contract Appeals
for use on a pending appeal from the COFD

Disputes Process:
Post-COFD
FAR 33.213 – Obligation to Continue Performance
 Contractors can be required to continue contract
performance in accordance with the COFD pending final
resolution of any claim
 If a claim arises not under, but relating to a contract, CO
may consider providing financing of the continued
performance

Disputes Process – ADR
FAR 33.214 – Alternate Dispute Resolution (ADR)
 Objective: provide for relatively inexpensive and expeditious resolution of issues in
controversy
 If CO rejects a contractor’s request for ADR, they need to provide a written
explanation justifying their rejection of the request
 ADR procedures may be used at any time that the Contracting Officer has authority to
resolve the issue in controversy
– When ADR procedures are used subsequent to issuance of a COFD, their use does not
alter any of the time limitations or procedural requirements for filing an appeal of the COFD
and does not constitute a reconsideration of the final decision

Disputes: Solicitations
and Contract Clauses
FAR 33.215 – Contract Clauses
 FAR 52.233-1, Disputes
– Unless conditions in 33.203(b) apply
– If it is determined under agency procedures that continued performance is
necessary pending resolution of any claim arising under or relating to the
contract, CO shall use clause with Alternate I
 FAR 52.233-4, Applicable Law for Breach of Contract Claim
– In all solicitations and contracts
– United States law applies

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2024: The FAR - Federal Acquisition Regulations, Part 33

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2024: The FAR - Federal Acquisition Regulations, Part 33