FAR part 33 Deck 1 (Protests, Disputes and Appeals)

Question 1

What does Part 33 of the Federal Acquisition Regulation (FAR) cover?

Answer 1

Policies and procedures for filing protests and for processing contract disputes and appeals

This part includes various subparts related to protests and disputes.

Question 2

What is the definition of ‘day’ in the context of FAR Part 33?

Answer 2

A calendar day, unless otherwise specified

The computation of any period excludes the day of the act, event, or default.

Question 3

What does ‘filed’ mean in FAR Part 33?

Answer 3

The complete receipt of any document by an agency before its close of business

Documents received after close of business are considered filed as of the next day.

Question 4

Who is considered an ‘interested party’ for filing a protest?

Answer 4

An actual or prospective offeror whose direct economic interest would be affected by the award or failure to award a contract

This includes those who would be directly impacted by procurement decisions.

Question 5

What constitutes a ‘protest’ under FAR Part 33?

Answer 5

A written objection by an interested party to a solicitation, cancellation, award, or termination of a contract

Protests must include specific allegations regarding improprieties.

Question 6

What are the three venues for filing protests according to FAR Part 33?

Answer 6

• The agency
• The Government Accountability Office (GAO)
• The U.S. Court of Federal Claims

U.S. District Courts do not have bid protest jurisdiction.

Question 7

What must contracting officers do with all protests?

Answer 7

Consider all protests and seek legal advice, regardless of the protest venue

This applies to protests submitted before or after award.

Question 8

What actions can the head of an agency take if a protest reveals noncompliance with law or regulation?

Answer 8

• Take actions recommended by the Comptroller General
• Pay appropriate costs
• Require reimbursement from the awardee

These actions are contingent on findings related to the protest.

Question 9

What is the time frame for funds available to an agency for a contract when a protest is filed with the GAO?

Answer 9

Funds shall remain available for obligation for 100 days after the final ruling on the protest

This is in accordance with 31 U.S.C. 1558.

Question 10

What is the recommended approach for an interested party wishing to protest?

Answer 10

Seek resolution within the agency before filing a protest with the GAO

This may facilitate a quicker resolution.

Question 11

What is required in a protest filed with an agency?

Answer 11

• Name and contact information of the protester
• Solicitation or contract number
• Legal and factual grounds for the protest
• Relevant documents
• Request for ruling
• Statement of relief requested
• Evidence of interested party status
• Evidence of timeliness

Failure to comply may result in dismissal of the protest.

Question 12

What happens if a protest is received before award?

Answer 12

A contract may not be awarded pending resolution unless justified for urgent reasons

This justification must be approved at a level above the contracting officer.

Question 13

How long does an agency have to resolve a protest after it is filed?

Answer 13

35 days

Agencies should make best efforts to meet this timeline.

Question 14

What should agency protest decisions include?

Answer 14

Well-reasoned explanations of the agency’s position

These decisions must be communicated to the protester in a way that provides evidence of receipt.

Question 15

What must a protester do after filing a protest with the GAO?

Answer 15

Furnish a copy of the complete protest to the designated official within 1 day

Failure to do so may result in dismissal of the protest.

Question 16

What is the consequence of not filing a protest based on alleged improprieties in a solicitation on time?

Answer 16

Protests must be filed before bid opening or closing date for proposals

Otherwise, the agency may not consider the merits.

Question 17

What is the role of the contracting officer upon receipt of a protest?

Answer 17

To suspend performance pending resolution of the protest unless justified otherwise

Justifications must be documented and approved at a higher level.

Question 18

What is the significance of Executive Order 12979 in the context of agency protests?

Answer 18

Establishes policy on agency procurement protests

It emphasizes the need for informal resolution efforts.

Question 19

What is the time frame for an agency to submit a complete report to the GAO after a protest is filed?

Answer 19

30 days after notification by phone or 20 days after receipt of an express option determination

The GAO may advise the agency that the protest has been dismissed or authorize a longer period for submission.

Question 20

What must the procuring agency provide to actual or prospective offerors upon request when a protest is filed?

Answer 20

Reasonable access to the protest file

This is subject to applicable protective orders.

Question 21

When is the protest file not required to be made available?

Answer 21

If the GAO dismisses the protest before documents are submitted

Information exempt from disclosure may be redacted.

Question 22

What documents must be included in the protest file?

Answer 22

• The protest
• The offer submitted by the protester
• The offer being considered for award
• All relevant evaluation documents
• The solicitation
• The abstract of offers
• Any other relevant documents

Including those specifically requested by the protester.

Question 23

What is required at least 5 days prior to filing the report if the protester has requested specific documents?

Answer 23

The agency must provide a list of released or withheld documents and reasons for withholding

Objections to this disclosure must be filed within 2 days.

Question 24

What must the agency report to the GAO include?

Answer 24

• A copy of relevant documents
• The contracting officer’s signed statement of facts
• A list of parties receiving documents

The statement should include findings, actions, and recommendations.

Question 25

What should an agency do when it submits its report to the GAO?

Answer 25

Furnish copies of its report to the protester and intervenors ## Footnote Certain documents may be withheld for various reasons, including protective orders.

Question 26

What happens if the protester requests additional documents?

Answer 26

The agency must provide them to the GAO within 2 days of the request ## Footnote This includes documents covered by a protective order.

Question 27

What can the GAO issue to establish terms for document provision?

Answer 27

Protective orders ## Footnote These orders restrict the disclosure of sensitive information.

Question 28

What is the time frame for the GAO to issue its recommendation on a protest?

Answer 28

Within 100 days or 65 days under the express option ## Footnote The GAO may also resolve amended protests within the initial time limit.

Question 29

What must an agency do if it does not implement GAO recommendations within 60 days?

Answer 29

Report the failure to the GAO within 5 days ## Footnote The report must explain the reasons for non-compliance.

Question 30

What costs may the GAO recommend an agency pay to a protester?

Answer 30

* Costs of filing and pursuing the protest * Reasonable attorney, consultant, and expert witness fees * Bid and proposal preparation costs ## Footnote The agency must use procurement funds for these payments.

Question 31

What is the maximum hourly rate for attorney fees unless justified?

Answer 31

$150 per hour ## Footnote Agencies may increase this based on specific recommendations.

Question 32

What should be done before paying a recommended award of costs?

Answer 32

Consult legal counsel ## Footnote This applies to all recommended awards of costs that have not yet been paid.

Question 33

What is the definition of 'accrual of a claim'?

Answer 33

The date when all events fixing liability were known or should have been known ## Footnote Injury must have occurred for liability to be fixed.

Question 34

What does 'alternative dispute resolution (ADR)' mean?

Answer 34

Any voluntary procedure to resolve issues in controversy ## Footnote This includes mediation, arbitration, and other methods.

Question 35

What clause must be inserted in solicitations for contracts exceeding the simplified acquisition threshold?

Answer 35

52.233-2, Service of Protest ## Footnote This is a requirement for contracting officers.

Question 36

What clause must be included in all solicitations and contracts?

Answer 36

52.233-3, Protest After Award ## Footnote The clause may have an Alternate I for cost reimbursement contracts.

Question 37

What is required for liability to be fixed?

Answer 37

Some injury must have occurred. ## Footnote Monetary damages need not have been incurred.

Question 38

Define Alternative dispute resolution (ADR).

Answer 38

Any type of procedure or combination of procedures voluntarily used to resolve issues in controversy, including: * Conciliation * Facilitation * Mediation * Fact-finding * Minitrials * Arbitration * Use of ombudsmen.

Question 39

What does defective certification mean?

Answer 39

A certificate which alters or deviates from the language in 33.207(c) or is not executed by an authorized person. ## Footnote Failure to certify is not deemed a defective certification.

Question 40

What is an issue in controversy?

Answer 40

A material disagreement between the Government and the contractor that: * May result in a claim; or * Is all or part of an existing claim.

Question 41

Define misrepresentation of fact.

Answer 41

A false statement of substantive fact or conduct leading to a false belief about a substantive fact, made with intent to deceive or mislead.

Question 42

What does the Disputes statute provide for?

Answer 42

* Payment of interest on contractor claims * Certification of contractor claims * Civil penalty for fraudulent claims or misrepresentation of fact.

Question 43

To what contracts does the Disputes statute apply?

Answer 43

Any express or implied contract covered by the Federal Acquisition Regulation, except for: * Contracts with foreign governments * Contracts with international organizations if deemed not in the public interest.

Question 44

What is the Government's policy regarding contractual issues?

Answer 44

To resolve all contractual issues in controversy by mutual agreement at the contracting officer's level.

Question 45

What is the time limit for submitting contractor claims?

Answer 45

Within 6 years after accrual of a claim, unless a shorter time period is agreed upon.

Question 46

What certification is required for claims exceeding $100,000?

Answer 46

A certification stating: * Claim is made in good faith * Supporting data are accurate and complete * Amount requested reflects the contract adjustment * Authorized to certify the claim.

Question 47

When does the Government pay interest on contractor claims?

Answer 47

From the date the contracting officer receives the claim or when payment would be due, whichever is later.

Question 48

What happens if a contractor is found to have submitted a fraudulent claim?

Answer 48

The contracting officer shall refer the matter to the agency official responsible for investigating fraud.

Question 49

What is the role of the contracting officer in resolving claims?

Answer 49

To decide or resolve all claims arising under or relating to a contract subject to the Disputes statute.

Question 50

What must a contracting officer do if a claim cannot be settled by mutual agreement?

Answer 50

* Review the facts pertinent to the claim * Secure assistance from legal advisors * Prepare a written decision.

Question 51

What is the appeal process for a contractor dissatisfied with a contracting officer's decision?

Answer 51

The contractor may appeal to the agency board of contract appeals or bring an action in the United States Court of Federal Claims.

Question 52

What must be included in the contracting officer's written decision?

Answer 52

* Description of the claim or dispute * Reference to pertinent contract terms * Statement of factual areas of agreement and disagreement * Statement of contracting officer's decision with rationale.

Question 53

What is the significance of the clause at 52.233-1?

Answer 53

It recognizes the 'all disputes' authority established by the Disputes statute and states requirements and limitations for guidance.

Question 54

What happens if a contracting officer fails to issue a decision within the required time periods?

Answer 54

It will be deemed a decision denying the claim and authorizes the contractor to file an appeal or suit.

Question 55

What is the obligation to continue performance under the Disputes statute?

Answer 55

Contractors may be required to continue contract performance pending final resolution of any claim arising under or relating to the contract.

Question 56

What is the objective of using ADR procedures?

Answer 56

To increase the opportunity for relatively inexpensive and expeditious resolution of issues in controversy.

Question 57

What is the objective of using Alternative Dispute Resolution (ADR) procedures?

Answer 57

To increase the opportunity for relatively inexpensive and expeditious resolution of issues in controversy. ## Footnote ADR aims to resolve disputes without formal litigation.

Question 58

What are the essential elements of ADR?

Answer 58

* Existence of an issue in controversy * A voluntary election by both parties to participate in the ADR process * An agreement on alternative procedures and terms to be used in lieu of formal litigation * Participation in the process by officials of both parties who have the authority to resolve the issue in controversy. ## Footnote These elements ensure that both parties are committed to the ADR process.

Question 59

True or False: ADR procedures can only be used after the issuance of a contracting officer's final decision.

Answer 59

False. ## Footnote ADR procedures may be used at any time that the contracting officer has authority to resolve the issue.

Question 60

What must a contracting officer provide if they reject a contractor's request for ADR proceedings?

Answer 60

A written explanation citing one or more of the conditions in 5 U.S.C. 572(b) or specific reasons that ADR procedures are inappropriate. ## Footnote This ensures transparency in the decision-making process.

Question 61

Fill in the blank: A solicitation shall not require _______ as a condition of award, unless required by law.

Answer 61

arbitration. ## Footnote Arbitration should not be a mandatory condition unless legally mandated.

Question 62

What is required for an agreement to use arbitration?

Answer 62

It must be in writing and specify a maximum award that may be issued by the arbitrator, as well as any other conditions limiting the range of possible outcomes. ## Footnote This helps in setting clear expectations for the arbitration process.

Question 63

When may binding arbitration be agreed to?

Answer 63

Only as specified in agency guidelines. ## Footnote Agencies must provide guidance on the appropriate use of binding arbitration.

Question 64

What clause must be inserted in solicitations and contracts unless specific conditions apply?

Answer 64

Clause at 52.233-1, Disputes. ## Footnote This clause outlines the procedures for handling disputes in contracts.

Question 65

What clause must be inserted in all solicitations and contracts?

Answer 65

Clause at 52.233-4. ## Footnote This clause is standard for all contracts to ensure consistency in dispute resolution.

Question 66

What should be protected during ADR proceedings?

Answer 66

The confidentiality of ADR proceedings. ## Footnote This is consistent with 5 U.S.C. 574.

Question 67

What is the role of a neutral person in ADR procedures?

Answer 67

To facilitate resolution of the issue in controversy using the procedures chosen by the parties. ## Footnote This can help the parties reach a mutually agreeable solution.