PART 21

PROTESTS AND DISPUTES

# Table of Contents

21.1 GENERAL DISCUSSION. [1](#general-discussion.)

21.1.1 General Policies. [1](#general-policies.)

21.2 PROTESTS. [1](#protests.)

21.2.1 Authorities. [1](#authorities.)

21.2.2 Definitions. [2](#definitions.)

21.2.3 Notice to the CO of Objections.
[2](#notice-to-the-co-of-objections.)

21.2.4 Filing of Protest to the HCA. [2](#filing-of-protest-to-the-hca.)

21.2.4.1 Award While Protest Is Pending.
[3](#award-while-protest-is-pending.)

21.2.4.2 Protest Received After Award.
[3](#protest-received-after-award.)

21.2.4.3 HCA\'s Decision on the Protest.
[3](#hcas-decision-on-the-protest.)

21.2.5 CO Responsibilities After Protest to the HCA.
[4](#co-responsibilities-after-protest-to-the-hca.)

21.2.6 Clause Usage Prescriptions. [4](#clause-usage-prescriptions.)

21.2.7 Other Protests. [5](#other-protests.)

21.3 DISPUTES RESOLUTION. [5](#disputes-resolution.)

21.3.1 Definition. [5](#definition.)

21.3.2 Disagreements Relating to Contractor Performance Evaluation.
[5](#disagreements-relating-to-contractor-performance-evaluation.)

21.3.3 Applicability of the Act. [5](#applicability-of-the-act.)

21.3.4 Policy. [6](#policy.)

21.3.5 Initiation of A Claim. [6](#initiation-of-a-claim.)

21.3.6 Interest on Claims. [6](#interest-on-claims.)

21.3.7 Suspected Fraudulent Claims. [6](#suspected-fraudulent-claims.)

21.3.8 Contracting Officer\'s Authority.
[6](#contracting-officers-authority.)

21.3.9 Contracting Officer\'s Decision.
[7](#contracting-officers-decision.)

21.3.10 Contracting Officer\'s Duties Upon Appeal.
[8](#contracting-officers-duties-upon-appeal.)

21.3.11 Obligation to Continue Performance.
[8](#obligation-to-continue-performance.)

21.3.12 Clause Usage Prescriptions. [9](#clause-usage-prescriptions.-1)

21.50 TEXT OF CLAUSES [9](#text-of-clauses)

### 21.1 GENERAL DISCUSSION.

#### 21.1.1 General Policies.

It is BPA policy to pursue its purchasing activities in a reasonable,
commercial manner. This includes treating offerors, potential offerors,
and contractors fairly and equitably. In the event an offeror or
contractor feels wrongly treated and seeks remedy, BPA will conduct its
response in compliance with this Part 21 of the BPI.

### 21.2 PROTESTS.

#### 21.2.1 Authorities.

***POLICY:*** Pursuant to section 2(f) of the Bonneville Project Act, 16
U.S.C. 832a(f), the Chief Executive Officer is authorized to decide
protests. The authority to decide protests has been delegated to the BPA
HCA. The HCA has established protest policy and procedures for
acquisitions subject to these Bonneville Purchasing Instructions (BPI),
pursuant to 16 U.S.C. 832a(f), as set forth in this subpart 21.2.

#### 21.2.2 Definitions.

***INFORMATION:***

\"Interested party\" means an actual or prospective offeror whose direct
economic interest would be affected by the award of or failure to award
a particular contract.

\"Protest\" means a written objection by an interested party to a
solicitation, proposed award, or award of a contract for the acquisition
of supplies, services and construction by BPA, which includes statements
of the grounds or bases supporting the objection.

\"Protester\" means an interested party who has filed a formal, written
protest with the HCA.

\"Solicitation\" means a Request for Offers issued by BPA.

#### 21.2.3 Notice to the CO of Objections.

***PROCEDURE:***

\(a\) An interested party must notify the CO of its objection to a
solicitation, proposed award, or award in writing within 10 working days
of the date on which it had actual or constructive notice of the subject
matter of the objection. Objections based upon alleged adverse actions
which are apparent prior to the closing date for the receipt of offers
must be filed before that closing date. Objections not brought to the
attention of the CO within this time limitation will not be considered
unless, at the CO\'s sole discretion, the time limitation is waived.

\(b\) Upon notification by an interested party of its objection, the CO
shall promptly arrange to conduct discussions with the interested party.
The CO shall advise the interested party that the discussions are
intended to clarify issues, remove misunderstandings, informally resolve
the objections, and to remind the interested party of its protest rights
(see Clause 21-1, Protests Against Award).

\(c\) In the event the objection has not been resolved, the CO shall
provide the interested party with a copy of this subpart, which explains
the processes for protest to the HCA.

\(d\) The CO shall document in the file all communications with an
interested party related in any manner to potential or actual objections
or protests. The date that discussions are terminated, and by whom,
shall be documented.

#### 21.2.4 Filing of Protest to the HCA.

***PROCEDURE:***

\(a\) An interested party who has complied with the provisions in 21.2.3
may file a written protest with the BPA HCA. In order to be considered
by the HCA, a protest must be delivered to the HCA within 10 working
days from the date the informal discussions with the CO, described in
21.2.3, are terminated.

\(b\) The protest shall contain: (1) the name and address of the
protester; (2) identity of the CO and the solicitation or contract
involved; (3) all facts relevant to and grounds in support of the
protest, and (4) a request for a specific ruling by BPA.

\(c\) The HCA shall immediately send an acknowledgment of any written
protests received to the protester and request from the involved CO a
complete written statement which fully explains BPA\'s position.
However, where the protest fails to comply with the requirements in (a)
or (b) above, or is patently without merit, the HCA may dismiss the
protest without requesting a report from the CO.

##### 21.2.4.1 Award While Protest Is Pending.

***PROCEDURE:*** Generally, a contract shall not be awarded until the
HCA has resolved a pending protest. However, in any instance where the
CO determines, for good cause, that award should be made, before a
decision is rendered on the protest, the CO shall prepare a written
statement justifying the award for the approval of the HCA. When
relevant, the statement shall include information pertaining to
considerations (1) through (5) in 21.2.4.2(b), below. On the basis of
this statement and other considerations, including those listed in
21.2.4.2(b) which may be applicable, the HCA may approve the award. Upon
receipt of approval by the HCA, the CO may proceed with award.

##### 21.2.4.2 Protest Received After Award.

***PROCEDURE:***

\(a\) When a protest is received by the HCA after contract award, the
HCA shall request the CO to immediately forward a copy of the protest to
the successful contractor, advise the successful contractor of its right
to comment thereon, and that it may be notified to temporarily suspend
performance if the HCA determines it to be necessary.

\(b\) In consultation with the CO and other BPA staff, the HCA shall
decide whether or not to temporarily suspend contractor performance on
the basis of considerations which may include, but are not limited to:
(1) the cost to the BPA of suspending performance until a final
determination of the protest is made; (2) the impact of delay on program
operations or budget availability; (3) the cost to the contractor of
suspending performance until a final determination of the protest is
made; (4) the importance to BPA of immediate performance of the subject
contract; (5) the risks to customers, their consumers, or other third
parties which are associated with a suspension; (6) the complexity of
the issues involved in the protest; (7) the degree to which it appears
that BPA may have acted contrary to statute or BPA regulation; (8) the
likelihood that the HCA will uphold the apparent merits of the protest;
and (9) the availability of other remedies.

##### 21.2.4.3 HCA\'s Decision on the Protest.

***PROCEDURE:***

\(a\) Upon receipt of a written protest and a complete report from the
CO (see, 21.2.5(a)) the HCA shall decide the protest, and so advise the
protester, CO and all other interested parties in writing. The
notification to the protester will be in writing and will be sent by any
method which will obtain a receipt for delivery. It will include the
grounds for the decision and, if adverse to the protester, will inform
the protester that it may, within 10 working days following receipt of
the notification from the HCA, discuss the decision with the HCA.

\(b\) If the protest is decided in favor of the protester, the HCA,
having considered and balanced the needs of BPA with the requirement of
fairness to all interested parties, will determine and advise the CO of
the appropriate remedy. The HCA may grant remedies such as, but not
limited to, the following: (1) issuing a new solicitation; (2)
recompeting the contract; (3) awarding a

contract consistent with statute and BPA regulation; (4) terminating the
contract; (5) refraining from exercising options under the contract; (6)
awarding reasonable proposal preparation costs; and (7) awarding
reasonable protest and appeal costs.

\(c\) The HCA shall place a written record of the decision in the
protest file, and forward a copy to the CO for inclusion in the
solicitation file.

#### 21.2.5 CO Responsibilities After Protest to the HCA.

***PROCEDURE:***

\(a\) The CO\'s statement shall record whether or not informal
discussions were held with the protester and when they were terminated,
and provide a brief summary of the issues discussed. It shall also
contain a timeline of events, including the dates of the solicitation,
amendments thereto, negotiations, other notifications to interested
parties, extensions requested or granted, and the award. Each of the
issues addressed by the protester shall be specifically answered, and
the CO\'s position clearly stated and supported by facts. The statement
shall be accompanied by appropriate supporting documentation, including,
but not limited to:

\(1\) Evaluations;

\(2\) Document of Award Decision;

\(3\) Relevant portions of proposals;

\(4\) Other relevant data or correspondence submitted by the protester;
and

\(5\) Correspondence from other parties relating to the protest.

\(b\) The CO shall submit the statement, as described in 21.2.5(a), to
the HCA within 10 working days of the date of the request.

\(c\) The CO shall inform all other interested parties of the protest
and, when appropriate, shall request an extension of acceptance time.
The CO shall also furnish interested parties with a copy of the protest
and advise them that they may, within five working days of receipt of
the notice, mail written comments in connection therewith to the HCA.
The interested parties should be informed that any comments they submit
may be released to the successful offeror.

\(d\) The CO shall seek the advice of the HCA regarding the request of
any party for payment of costs incurred in connection with protests of
solicitations or contract awards, or the defense against protests of
such solicitations or contract awards. As per paragraph (b), clause
21-1, Protests Against Award, such costs are unallowable, unless the
costs incurred in connection with protests of solicitations or contract
awards, or defending against a protest are incurred pursuant to a
written request from the CO.

#### 21.2.6 Clause Usage Prescriptions.

***PROCEDURE:*** The CO shall insert clause 21-1, Protests Against
Award, in solicitations exceeding \$100,000, except for commercial
supplies or commercial services or commercial construction.

#### 21.2.7 Other Protests.

***PROCEDURES*** There are no formal procedures for resolution of
protests against transactions less than \$100,000, or for contracts for
commercial supplies and/or services, including construction. The CO
shall attempt to resolve any such protests. However, if this is not
possible, the HCA will decide all such protests.

### 21.3 DISPUTES RESOLUTION.

#### 21.3.1 Definition.

***INFORMATION:***

\"Claim\" means a written demand or assertion by one of the contracting
parties seeking, as a matter of right, the payment of money, the
adjustment or interpretation of contract terms including the period of
performance, or other relief arising under or relating to the contract.
A voucher, invoice, or other routine request for payment or equitable
adjustment that is not in dispute when submitted is not considered a
claim. The submission may be converted to a claim, by written notice to
the CO if it is disputed either as to liability or amount, or is not
acted upon in a reasonable time.

\"Misrepresentation of fact\" means a false statement of substantive
fact, or any conduct which encourages belief in a substantive fact
material to proper understanding of the matter in hand, made with intent
to deceive or mislead.

#### 21.3.2 Disagreements Relating to Contractor Performance Evaluation.

***POLICY:***

\(a\) Contractor inquiries on performance evaluations should be handled
in a prompt, courteous and helpful manner. Debriefings are encouraged
over arm\'s length communications where disagreements arise.

\(b\) Explanations of performance evaluations should clearly set forth
the factual basis of the COs decision. In those cases where there is
disagreement on factual matters or allegations that the CO's judgment is
arbitrary or capricious, the CO should advise the contractor to refer
the issue to the HCA. The HCA will not review matters solely related to
the application of the CO\'s business judgment.

\(c\) BPA will not provide information in response to inquiries about
disputes concerning performance evaluations relating to other
contractors. Contractors making such inquiries should be advised that
BPA will not respond except to the extent required under FOIA (See
Subpart 5.2).

#### 21.3.3 Applicability of the Act.

***PROCEDURE:*** BPA is guided by the general direction, but not all
requirements of the Contract Disputes Act (41 U.S.C 601-603) and the
Administrative Disputes Resolution Act of 1990 (P. Law 101-552) in order
to simplify the resolution of disputes.

#### 21.3.4 Policy.

It is BPA\'s policy to try to resolve all contractual issues by mutual
agreement at the CO level, without litigation. In appropriate
circumstances, before issuance of a CO\'s decision on a claim, the CO
should consider initiating informal discussions between the parties,
facilitated by individuals who have not participated substantially in
the matter in dispute, to aid in resolving the differences. If the
informal discussions are not successful, the CO is encouraged to use
arbitration or mediation to resolve the dispute.

#### 21.3.5 Initiation of A Claim.

***PROCEDURE:***

\(a\) Contractor claims shall be submitted in writing to the CO for a
decision before final payment. The CO shall document the contract file
with evidence of the date of receipt of any submission from the
contractor deemed to be a claim by the CO.

\(b\) The CO shall, based upon the CO's documented findings and
decision, initiate a BPA claim against a contractor by asserting BPA\'s
right to compensation, and requesting payment. If the contractor
disagrees, and the CO is unable to negotiate a satisfactory settlement,
the CO shall issue a written decision on the claim.

#### 21.3.6 Interest on Claims.

***PROCEDURE:***

\(a\) BPA shall pay simple interest on a contractor\'s claim on the
amount found due and unpaid during the pendency of the claim, commencing
either from (a) the date the CO receives the claim, or (b) the date
payment otherwise would be due, if that date is later than the date of
the claim, until the date of payment.

\(b\) BPA shall determine simple interest due on a contractor's claim
using the separate rate for each successive 6-month rate period
established by the Secretary of Treasury, or portions thereof, during
the pendency of the claim. The CO shall, using the amount found due and
unpaid as of the date determined as per paragraph (a) above, compute
simple interest through the remainder of the first 6-month Treasury rate
period at the rate then in effect, and recomputed thereafter using the
Treasury rate in effect for each successive 6-month Treasury rate
period, or portion of rate period, until the date the claim is paid.

#### 21.3.7 Suspected Fraudulent Claims.

***PROCEDURE:*** If the contractor is unable to support the basis for a
claim and there is material evidence of misrepresentation of fact or
fraud on the part of the contractor, the CO shall refer the matter to
the BPA Chief Auditor through the HCA.

#### 21.3.8 Contracting Officer\'s Authority.

***POLICY:*** COs are authorized, within any specific limitations of
their warrants, to decide or settle all claims whether by BPA or by the
Contractor arising under or relating to a contract, except

\(a\) A claim or dispute for penalties or forfeitures prescribed by
statute or regulation that another Federal agency is specifically
authorized to administer, settle, or determine; or

\(b\) The settlement, compromise, payment, or adjustment of a claim
involving fraud.

#### 21.3.9 Contracting Officer\'s Decision.

***PROCEDURE:***

\(a\) When a claim by or against a contractor cannot be satisfied or
settled by mutual agreement and a decision on the claim is necessary,
the CO shall:

\(1\) Review the facts pertinent to the claim;

\(2\) Secure assistance from legal and other advisors;

\(3\) Prepare a written decision that shall include a \--

\(A\) Description of the claim or dispute;

\(B\) Reference to the pertinent contract terms;

\(C\) Statement of the factual areas of agreement or disagreement;

\(D\) Statement of the CO\'s decision, with supporting rationale;

\(E\) Paragraph substantially as follows:

\"This is the final decision of the Contracting Officer. You may submit
this decision to one of the following disputes resolution processes. If
you decide to submit this decision to such processes, you must, within
the time frames specified below, file the request to do so with the
appropriate body. A copy of that request shall simultaneously be sent to
the Contracting Officer that issued the decision.

\(1\) Within 90 days from the date of receipt of such decision the
Contractor or Contracting Officer initiates disputes resolution
processes described in Subchapter IV of the Administrative Disputes
Resolution Act of 1990 (P. Law 101-552, 104 Stat. 2736) with the Seattle
Office of the American Arbitration Association at the address,

American Arbitration Association

701 Pike Street, Suite 950

Seattle, WA 98101-4111

whose telephone number is (206) 622-6435 and facsimilie number is(206)
343-5679; or

\(2\) Within 90 days from the date of receipt of such decision the
Contractor appeals the decision to the US Department of Energy, Board of
Contract Appeals at either its postal or courier address.

US Postal Service (USPS) mailing address: US Department of Energy

Board of Contract Appeals

HG-50, Building 950

L'Enfant Plaza Building

1000 Independence Avenue SW

Washington, DC 20585-0116

Courier and other than USPS address: US Department of Energy

Board of Contract Appeals

Room 7115e 810

950 L'Enfant Plaza SW

Washington, DC 20024

whose telephone number is (202) 287-1900 and facsimilie (202) 287-1700,
(a copy of the Board\'s rules of procedures is attached); or

\(3\) Within 12 months from the date of receipt of such decision the
Contractor brings an action thereon in the United States Court of
Federal Claims.

\(F\) Demand for payment in all cases where a decision results in a
finding that the contractor is indebted to BPA.

\(b\) Before releasing the final decision, the CO in his/her sole
judgement may seek the review by the HCA and Office of General Counsel,
but their review is advisory only. The CO has the ultimate
responsibility for the decision being that person\'s independent act.

\(c\) The CO shall furnish a copy of the decision (and the rules of the
DOE Board of Contract Appeals) to the contractor by any method that
provides evidence of receipt.

\(d\) The CO shall issue the decision within the following time
limitations:

\(1\) For claims of \$100,000 or less, 60 days after receiving a written
request from the contractor that a decision be rendered within that
period, or within a reasonable time after receipt of the claim if the
contractor does not make such a request.

\(2\) For claims over \$100,000, 60 days after receiving a claim;
provided, however, that if a decision will not be issued within 60 days,
the CO shall notify the contractor within that period of the time within
which a decision will be issued.

\(e\) Any failure of the CO to issue a decision within the required time
periods will be deemed a decision by the CO to deny the claim and will
authorize the contractor to file an appeal or suit on the claim.

\(f\) The amount determined payable under the decision, less any portion
already paid, should be paid, if otherwise proper, without awaiting
contractor action concerning appeal. Such payment shall be without
prejudice to the rights of either party.

#### 21.3.10 Contracting Officer\'s Duties Upon Appeal.

***PROCEDURE:*** The CO shall provide data, documentation, information,
and support as required by the appropriate reviewing body or person for
use on a pending arbitration, mediation, or appeal from the CO\'s
decision. The CO is also responsible for following up with the reviewing
person or body to obtain the decision and the final disposition of
charges and costs of the resolution process and their distribution to
the involved parties.

#### 21.3.11 Obligation to Continue Performance.

***POLICY:*** The contractor is required to continue performance of a
contract in accordance with the CO\'s decision pending final decision on
a claim relating to the contract.

#### 21.3.12 Clause Usage Prescriptions.

***PROCEDURE:***

\(a\) Disputes clauses are not normally used for transactions less than
\$100,000 or for commercial supplies or commercial services or
commercial construction.

\(b\) The CO shall include either clause 21-2, Disputes, or 21-3,
Disputes Resolution Process, in all solicitations and contracts over
\$100,000, except those for commercial supplies or commercial services
or commercial construction. Clause 21-3, Disputes Resolution Process, is
more appropriate where the nature of the contract is such that disputes
are common or expected.

\(c\) The CO may include clause 21-4, Release of Claims, in
solicitations and contracts where the likelihood of claims is high, and
when it is not already included in the applicable payment clause.

\(d\) The CO shall include clause 21-5, Applicable Law, in all contracts
exceeding \$100,000.

### 21.50 TEXT OF CLAUSES

The following clauses are referenced in Part 21:

Clause 21-1 Protests Against Award.

Clause 21-2 Disputes

Clause 21-3 Disputes Resolution Process

Clause 21-4 Release Of Claims.

Clause 21-5 Applicable Law.

######### Clause 21-1 PROTESTS AGAINST AWARD (Sep 98)(BPI 21.2.6)

\(a\) Interested parties agree that any protest against award will be
filed with the BPA Head of the Contracting Activity prior to filing with
any other forum, pursuant to 16 U. S. C. 832a(f) and Subpart 21.2 of the
Bonneville Purchasing Instructions.

\(b\) An interested party must notify the Contracting Officer of its
objection to a solicitation, proposed award, or award in writing within
10 working days of the date on which it had actual or constructive
notice of the subject matter of the objection. Objections based upon
alleged adverse action in any type of solicitation which are apparent
prior to the closing date for the receipt of proposals must be filed
before that date. Objections not brought to the attention of the
Contracting Officer within this time limitation will not be considered
unless, at the Contracting Officer\'s sole discretion, the time
limitation is waived. The costs of any party, if incurred in connection
with protests of solicitations or contract awards, or the defense
against protests of such solicitations or contract awards, are
unallowable, unless the costs of defending against a protest are
incurred pursuant to a written request from the CO.

\(c\) Interested parties who are unable to resolve disagreements
informally with the Contracting Officer may send a formal, written
protest to the Head of the Contracting Activity. In order to be
considered by the Head of the Contracting Activity, the protest must be
delivered to the Head of the Contracting Activity within 10 working days
from the date informal discussions with the Contracting Officer are
terminated.

\(d\) The protest shall contain: (1) the name and address of the
protester, (2) the identity of the contracting officer and the
solicitation or contract involved, (3) all facts relevant to and grounds
in support of the protest, and (4) a request for a specific ruling by
BPA. It shall be sent to: Head of the Contracting Activity, Bonneville
Power Administration, P. O. Box 3621, Portland, Oregon 97208 (Street
Address: 905 N. E. 11th Avenue, Portland, OR 97232).

(End of clause)

######### Clause 21-2 DISPUTES (Sep 98)(BPI 21.3.12)

Disputes arising under or related to this contract will be settled in
accordance with Bonneville Purchasing Instructions, Subpart 21.3. The
Contractor shall proceed diligently with performance of this contract,
pending final resolution of any request for relief, claim, appeal, or
action arising under or relating to the contract, and comply with any
pending decision of the Contracting Officer regarding matters in
dispute.

(End of clause)

######### Clause 21-3 DISPUTES RESOLUTION PROCESS (Oct 05)(BPI 21.3.12)

\(a\) All disputes arising under or relating to this contract shall be
resolved under this clause.

\(b\) \"Claim,\" as used in this clause, 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 this contract. A claim arising under a contract, unlike a
claim relating to that contract, is a claim that can be resolved under a
contract clause that provides for the relief sought by the claimant. A
voucher, invoice, or other routine request for payment or equitable
adjustment that is not in dispute when submitted is not a claim. The
submission may be converted to a claim, by complying with the
requirements of this clause, if it is not disputed either as to
liability or amount or is not acted upon in a reasonable time.

\(c\) A claim by the Contractor shall be made in writing and submitted
to the Contracting Officer for a written decision before final payment.
A claim by BPA against the Contractor shall be subject to a written
decision by the Contracting Officer.

\(d\) For Contractor claims of \$100,000 or less, the Contracting
Officer must, if requested in writing by the Contractor, render a
decision within 60 days of receipt of the request. For Contractor claims
in excess of \$100,000, the Contracting Officer must, within 60 days,
decide the claim or notify the Contractor of the date when the decision
will be made. At any time prior to issuance of the Contracting
Officer\'s final decision, either party may request mediation or other
alternate disputes resolution process (see paragraph (g)) by a third
party in order to assist in settling the claim. Should the contractor
request the use of an alternate disputes resolution process, the time
frames for issuing a CO decision and payment of interest shall be
suspended.

\(e\) The decision of the Contracting Officer shall be final and
conclusive and not subject to review by any forum, tribunal, or
Government agency unless:

\(1\) Within 90 days from the date of receipt of such decision the
Contractor or Contracting Officer initiates disputes resolution
processes described in Subchapter IV of the Administrative Disputes
Resolution Act of 1990 (P. Law 101-552, 104 Stat. 2736) with the Seattle
Office of the American Arbitration Association at the address,

American Arbitration Association

701 Pike Street, Suite 950

Seattle, WA 98101-4111

whose telephone number is (206) 622-6435 and facsimile number is(206)
343-5679; or

\(2\) Within 90 days from the date of receipt of such decision the
Contractor appeals the decision to the US Department of Energy, Board of
Contract Appeals at either its postal or courier address:

US Postal Service (USPS) mailing address: US Department of Energy

Board of Contract Appeals

HG-50, Building 950

L'Enfant Plaza Building

1000 Independence Avenue SW

Washington, DC 20585-0116

Courier and other than USPS address: US Department of Energy

Board of Contract Appeals

Suite 810

950 L'Enfant Plaza SW

Washington, DC 20024

whose telephone number is (202) 287-1900 and facsimile (202) 287-1700,
in the manner specified in the decision; or

\(3\) Within 12 months from the date of receipt of such decision the
Contractor brings an action thereon in the United States Court of
Federal Claims.

\(f\) The authority of the Contracting Officer under the Act does not
extend to claims or disputes which by statute or regulation other
agencies are expressly authorized to decide.

\(g\) Alternative disputes resolution process.

\(1\) The parties are encouraged to attempt an alternative dispute
resolution as described by Subchapter IV of the Administrative Disputes
Resolution Act of 1990 (P. Law 101-552, 104 Stat. 2736), including, at
the request of any party, mediation or binding arbitration, prior to
commencing litigation in any court, board or tribunal. Mediation shall
be accomplished as agreed between the parties. Arbitration, if any,
shall be done through the Seattle, Washington Office of the American
Arbitration Association, and shall be done according to the Commercial
Arbitration Rules of the American Arbitration Association, using one
arbitrator unless otherwise agreed to by the parties. If the contractor
rejects BPA's request to use an alternate dispute resolution process,
the reason for its rejection shall be furnished to the Contracting
Officer.

\(2\) The parties stipulate that any tribunal to which any controversy
or claim is brought should stay its proceedings, except in aid of
arbitration, pending completion of arbitration and the issuance of the
Arbitrator\'s award.

\(3\) Service of summons in any court action to enforce or challenge an
award must be effectuated according to Rule 4 of the Federal Rules of
Civil Procedure for the United States District Courts or under the
comparable rule of another court or tribunal with subject matter
jurisdiction.

\(4\) Except as specified below in this paragraph, there shall be no
discovery in connection with any dispute resolution process. However, in
the event that any party to such dispute resolution process shall
receive information pertaining to the dispute through anyone\'s use of
the Freedom of Information Act with the Department of Energy or
Bonneville Power Administration, then, at the option of Bonneville Power
Administration, other discovery shall be permitted and, if thus
permitted at all, shall be opened fully to all parties. To the extent
that such discovery cannot be effectuated by consent and agreement, it
shall be under the supervision of the individual assisting with the
dispute resolution.

\(h\) BPA shall pay interest on the amount found due and unpaid from:
(1) the date the Contracting Officer receives the claim, or (2) the date
payment otherwise would be due, if that date is later, until the date of
payment. Simple interest on claims shall be paid at the rate fixed by
the Secretary of the Treasury, and applicable for each 6-month period as
fixed by the Treasury Secretary during the pendency of the claim.

\(i\) The Contractor shall proceed diligently with performance of this
contract, pending final resolution of any request for relief, claim,
appeal, or action arising under or relating to the contract, and comply
with any decision of the Contracting Officer.

(End of clause)

######### Clause 21-4 RELEASE OF CLAIMS. (Sep 98)(BPI 21.3.12)

After completion of work, and prior to final payment, the Contracting
Officer may, at his or her option, require the Contractor to furnish a
release of claims against BPA arising out of the contract, other than
claims specifically excepted from the operation of the release.

(End of clause)

######### Clause 21-5 APPLICABLE LAW. (Sep 98)(BPI 21.3.12)

Irrespective of the place of performance, this contract will be
construed and interpreted according to the federal common law of
government contracts, as enunciated and applied by federal judicial
bodies, boards of contract appeals, and quasi-judicial agencies of the
Federal Government. To the extent that the federal common law of
government contracts is not dispositive, the laws of the State of Oregon
shall apply.

(End of clause)