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                            5233.9002 Contractor appeals to the Armed Services Board of Contract Appeals (ASBCA).
        
                  NMCARS
NMCARS
Change Number: NMCARS Change 18-22 Effective Date: 07/11/2022
PartPart 5201Part 5202Part 5203Part 5204Part 5205Part 5206Part 5207Part 5208Part 5209Part 5211Part 5212Part 5213Part 5214Part 5215Part 5216Part 5217Part 5219Part 5222Part 5223Part 5225Part 5227Part 5228Part 5229Part 5230Part 5231Part 5232Part 5233Part 5234Part 5235Part 5236Part 5237Part 5239Part 5241Part 5242Part 5243Part 5245Part 5246Part 5248Part 5249Part 5250Part 5252Annex 1Annex 2Annex 3Annex 4Annex 5Annex 6Annex 7Annex 8Annex 9Annex 10Annex 11Annex 12Annex 13Annex 14Annex 15Annex 16Annex 17Annex 18Annex 19Annex 20Annex 21Annex 22Annex 23Annex 24Annex 25
Subpart5233.15233.25233.90
Section5233.90015233.9002
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5233.9002 Contractor appeals to the Armed Services Board of Contract Appeals (ASBCA).5233.9002 Contractor appeals to the Armed Services Board of Contract Appeals (ASBCA).    (a) *General*. The DON Office of the General Counsel (OGC) has sole litigation authority for all appeals under DON contracts to the ASBCA. Because of the frequent complexity of these cases, the DON OGC and the contracting activity involved should maintain the continuity of any DON claim team that might have investigated and evaluated the contractor's claim submission. Such teams should continue to function in an assisting capacity under the leadership of the DON OGC Trial Attorney assigned to handle the appeal.       (b) *Litigation report requirement*. With the compilation of ASBCA Rule 4 documents (available at   https://www.asbca.mil/Rules/rules.html          ), a comprehensive litigation report shall be forwarded to the Litigation Division. The report should include:       (1) A detailed narrative statement of facts, preferably in chronological sequence, and with a topical segregation when appropriate, with references to attached supporting documents of expected testimony. If such a statement was previously submitted, it need not be submitted a second time, but should be supplemented or revised if additional information becomes available in the interim.       (2) An analysis and evaluation (classified as attorney-client privileged information) of the factual and legal positions of both sides (including affirmative defenses and counterclaims available to the Government), the available evidence, and the expertise and effectiveness of prospective witnesses.       (3) The advisory report, if any, of the reviewing official or board.       (c) *Settlement negotiations pending appeal*. The conduct of settlement negotiations in connection with any pending appeal should generally be accomplished by a selected team consisting of the trial attorney and representatives of the contracting officer (including contracting activity technical personnel, counsel, negotiator, and auditor if necessary). Other arrangements may be made in specific cases as appropriate. However, no final settlement agreement will be made without the written approval of the contracting officer. When a settlement is made, a memorandum shall be prepared by the negotiating team (and signed by all team members) stating the basis and reasons. The settlement agreement shall be drafted by the contracting activity and trial attorney. The trial attorney shall file any legal papers required to be filed with the ASBCA to effect disposition of the case by mutual agreement of the parties.       (d) *Review and approval*. Negotiated settlements of appeals pending before the ASBCA, as well as negotiated settlements of appeal issues that have been remanded to the DON for quantum determination, will be subject to review and approval at levels established for claims of the same dollar amount.       (e) *Contract modification*. Whenever contract modification and other contract documents are required to implement a settlement of ASBCA or appellate court decision, they should reference the ASBCA proceedings by title and docket number. **Parent topic:**  Subpart 5233.90 - PROCEDURES
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