**PART 1833**

# PROTESTS, DISPUTES, AND APPEALS

**TABLE OF CONTENTS**

**SUBPART [1833.1](#OLE_LINK1) PROTESTS**

1833.103 Protests to the agency.

1833.104 Protests to GAO.

1833.106 Solicitation provision and contract clause.

1833.106-70 Solicitation provision.

**SUBPART [1833.2](#OLE_LINK2) DISPUTES AND APPEALS**

1833.209 Suspected fraudulent claims.

1833.210 Contracting officer's authority.

1833.211 Contracting officer's decision.

1833.215 Contract clause.

**PART 1833**

# PROTESTS, DISPUTES, AND APPEALS

**Subpart** []{#OLE_LINK1 .anchor}**1833.1\--Protests**

**1833.103 Protests to the agency.**

\(c\) An independent review under the provision at
[**1852.233-70**](http://www.hq.nasa.gov/office/procurement/regs/5228-41.htm#1852.233-70)
is available as an alternative to a protest to the contracting officer,
but not as an appeal of a protest decision. All independent reviews
shall be conducted by the Assistant Administrator for Procurement or
designee. Such reviews are different from the Ombudsman Program
described at
[**1815.7001**](http://www.hq.nasa.gov/office/procurement/regs/1815.htm#P819_83502).

\(d\) NASA shall summarily dismiss and take no further action upon any
protest to the Agency if the substance of the protest is pending in
judicial proceedings or the protester has filed a protest on the same
acquisition with the United States General Accounting Office prior to
receipt of an Agency protest decision.

\(4\) When a potential bidder or offeror submits an Agency protest to
NASA to the contracting officer or alternatively requests an independent
review, the decision of the contracting officer or the independent
review official shall be final and is not subject to any appeal or
reconsideration within NASA.

\(f\) Protests received at NASA offices or locations other than that of
the cognizant contracting officer shall be immediately referred to the
contracting officer for disposition (see 1833.106(a)). The contracting
officer shall advise the Headquarters Offices of Procurement (Code HS)
and the General Counsel (Code GK) of the receipt of the protest and the
planned and actual disposition. This paragraph does not apply when the
protester has requested an independent review under the provision at
1852.233-70.

\(1\) The Assistant Administrator for Procurement (Code HS) is the
approval authority for contract award.

\(3\) The Assistant Administrator for Procurement (Code HS) is the
approval authority for authorizing continued contract performance.

**1833.104**  **Protests** **to** **GAO.**

The Assistant Administrator for Procurement is the sole authority for
deciding whether to defend a protest to GAO or to direct remedial
action. NASA per­son­nel shall take no action to respond to or resolve any
protest filed with GAO other than in accordance with this part and other
guidance provided by NASA Headquarters.

(a)(2) The Headquarters Office of Pro­curement (Code HS) shall notify the
con­tracting officer of protest receipt, and the contracting officer
shall immediately give notice of the protest to all interested parties.
Oral contracting officer notices shall be subsequently confirmed in
writing, and the contracting officer shall also send a copy of the
written confir­mation to Code HS, the Head­quar­ters Office of the General
Coun­sel (Code GK), and the instal­lation Chief Counsel.

(3)(i) The contracting officer shall send four copies of the protest
report, consisting of the protest file, the contracting officer's
state­ment of facts, and a draft memoran­dum of law to Code GK within 20
days after GAO notifi­cation of protest receipt. Also include a copy of
the file index in electronic format. The contracting officer shall
retain a minimum of two copies of the protest file.

\(ii\) When an actual or prospective offeror requests access to a
protest file, the contracting officer shall take the following actions,
except **(*a*)** and **(*b*)** are not required if already accomplished:

**(*a*)** Send a copy of the protest file index to Code GK within 10
days of receipt of the request.

**(*b*)** Send a copy of the protest file to Code GK within 15 days of
receipt of the request.

**(*c*)** With Code GK concurrence, send the protest file and index to
the requesting party to ensure delivery within 20 days after receipt of
the request.

\(iv\) Code GK shall submit the protest file to GAO.

(4)(i) Code GK shall provide copies of the report to the protestor(s),
any intervenors, and the installation Chief Counsel.

(b)(1) The Assistant Administrator for Procurement (Code HS) is the
approval authority for contract award.

(c)(1) The contracting officer shall consult Code HS before terminating
a protested contract.

\(2\) The Assistant Administrator for Procurement (Code HS) is the
approval authority for authorizing contract performance.

\(f\) The Agency may request GAO reconsi­deration of its decision within
10 days of issuance. If reconsideration is appropriate, the installation
Chief Counsel shall forward a draft request for reconsideration, with
any additional supporting documentation, to Code GK within 6 days of
issuance of the GAO decision.

**1833.106 Solicitation provision and contract clause.**

\(a\) The contracting officer shall be the designated recipient of
Agency protests in paragraph (a) of the provision at [**FAR
52.233-2**](http://www.arnet.gov/far/current/html/52_233_240.html#1089438).

**1833.106-70 Solicitation provision.**

Contracting officers shall insert the provision at
[**1852.233-70**](http://www.hq.nasa.gov/office/procurement/regs/5228-41.htm#1852.233-70)
in all solicitations.

**Subpart** []{#OLE_LINK2 .anchor}**1833.2\--Disputes and Appeals**

**1833.209** **Suspected** **fraudulent** **claims.**

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

**1833.210 Contracting officer's authority.**

See [**NASA Policy Directive
2010.2**](http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PD_2010_002B_&page_name=main)
on use of Alternative Dispute Resolution.

**1833.211** **Contracting** **officer's** **decision.**

(a)(4)(v) The Armed Services Board of Contract Appeals is the NASA
Administrator's authorized representa­tive for hearing appeals of
contracting officer final decisions. Accordingly, contract­ing officers
shall cite that fact in the final decision letter, provide the Board's
mailing address (Armed Servic­es Board of Contract Appeals, Skyline Six,
5109 Leesburg Pike, Falls Church, VA 22041-3208), and in­clude a
notification that the Board's oper­at­ing procedures appear in Part 48,
Code of Fed­eral Regulations, Chapter 2, Appendix A.

**1833.215**  **Contract** **clause.**

The contracting officer shall use the clause at [**FAR
52.233-1**](http://www.arnet.gov/far/current/html/52_233_240.html#1089419),
Disputes, with its Alternate I 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.