2630 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Proposed Rules

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 33, 39, 42, 50, and 52

[FAR Case 94–730]

RIN 9000–AG38

Federal Acquisition Regulation;

Protests, Disputes, and Appeals

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: This proposed rule is issued

pursuant to the Federal Acquisition

Streamlining Act of 1994 (Pub. L. 103–

355) dated October 13, 1994, to

implement the requirements for protests

and disputes in Government

procurement. This regulatory action was

not subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993.

DATES: Comments should be submitted

on or before March 13, 1995 to be

considered in the formulation of a final

rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (VRS), 18th & F Streets, NW.,

room 4037, Washington, DC 20405.

Please cite FAR case 94–730 in all

correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: Mr.

Craig Hodge, Protests/Disputes Team

Leader at (703) 274–8176 in reference to

this FAR case. For general information,

contact the FAR Secretariat, room 4037,

GS Building, Washington, DC 20405

(202) 501–4755. Please cite FAR case

94–730, Protests, Disputes, and Appeals.

SUPPLEMENTARY INFORMATION:

A. Background

The Federal Acquisition Streamlining

Act of 1994, Pub. L. 103–355, provides

authorities that streamline the

acquisition process and minimize

burdensome Government-unique

requirements. Major changes that can be

expected in the acquisition process as a

result of Federal Acquisition

Streamlining Act implementation

include changes in the areas of

Commercial Item Acquisition,

Simplified Acquisition Procedures, the

Truth in Negotiations Act, and

Introduction of the Federal Acquisition

Network.

This notice announces proposed FAR

revisions developed under FAR Case

94–730, Protests, Disputes, and Appeals.

The Act changed the General

Accounting Office (GAO) protest

procedures, the General Services Board

of Contract Appeals (GSBCA) protest

procedures, and the alternative dispute

resolution (ADR) procedures. This rule

reflects those changes to GAO, GSBCA,

and ADR procedures that require

revisions to the FAR.

In view of expected benefits to

Government and industry from the Act,

FAR implementation was formulated

under an expedited process. The FAR

Council is interested in an exchange of

ideas and opinions with respect to the

regulatory implementation of the Act.

For that reason, the FAR Council is

conducting a series of public meetings.

However, the FAR Council has not

scheduled a public meeting on this rule

(FAR case 94–730) because of the clarity

and non-controversial nature of the rule.

If the public believes such a meeting is

needed with respect to this rule, a letter

requesting a public meeting and

outlining the nature of the requested

meeting shall be submitted to and

received by the FAR Secretariat (see

ADDRESSES caption) on or before

February 9, 1995. The FAR Council will

consider such requests in determining

whether a public meeting on this rule

should be scheduled.

B. Regulatory Flexibility Act

This proposed rule is not expected to

have a significant economic impact on

a substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq.,

because among other things, it

authorizes a higher reimbursement of

attorney costs associated with a GAO or

a GSBCA protest to small businesses

than may be reimbursed to large

businesses. An Initial Regulatory

Flexibility Analysis has, therefore, not

been performed. Comments from small

entities concerning the affected FAR

subpart will be considered in

accordance with 5 U.S.C. 610 of the Act.

Such comments must be submitted

separately and should cite 5 U.S.C. 601,

et seq. (FAR case 94–730), in

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed changes

to the FAR do not impose recordkeeping

or information collection requirements,

or collections of information from

offerors, contractors, or members of the

public which require the approval of the

Office of Management and Budget under

44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 33, 39,

42, 50 and 52

Government procurement.

Dated: December 29, 1994.

Edward C. Loeb,

Deputy Project Manager for the

Implementation of the Federal Acquisition

Streamlining Act of 1994.

Therefore, it is proposed that 48 CFR

Parts 33, 39, 42, 50, and 52 be amended

as set forth below:

1. The authority citation for 48 CFR

Parts 33, 39, 42, 50, and 52 continues to

read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 33—PROTESTS, DISPUTES,

AND APPEALS

2. Section 33.101 is amended by

adding in alphabetical order the

definitions ‘‘Day’’ and ‘‘Filed’’; and

revising the definition ‘‘Protest’’ to read

as follows:

33.101 Definitions.

Day, for the purpose of this subpart

means a calendar day, unless otherwise

specified. In the computation of any

period—

(a) The day of the act, event, or

default from which the designated

period of time begins to run is not

included; and

(b) The last day after such act, event,

or default is included unless—

(1) Such last day is a Saturday, a

Sunday, or a legal holiday; or

(2) In the case of a filing of a paper

at any appropriate administrative forum,

such last day is a day on which weather

or other conditions causes the closing of

the forum, in which event the next day

that is not a Saturday, Sunday, or legal

holiday is included.

Filed means the 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. Unless otherwise stated,

the agency close of business is

presumed to be 4:30 p.m. local time.

* * * * *

Protest, as used in this subpart, means

a written objection by an interested

party to any of the following:

(a) A solicitation or other request by

an agency for offers for a contract for the

procurement of property or services.

(b) The cancellation of such a

solicitation or other request.

(c) An award or proposed award of

such a contract.

(d) A termination or cancellation of an

award of such a contract, if the written

objection contains an allegation that the

termination or cancellation is based in
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Proposed Rules 2631

whole or in part on improprieties

concerning the award of the contract.

3. Section 33.102 is amended by

revising paragraph (a); redesignating

paragraphs (b) and (c) as (c) and (e),

respectively, and adding new

paragraphs (b) and (d); and revising

newly designated paragraphs (e)(2) and

(e)(3) to read as follows:

33.102 General.

(a) Contracting officers shall consider

all protests and seek legal advice,

whether protests are submitted before or

after award and whether filed directly

with the agency, the General

Accounting Office (GAO), or for

automatic data processing acquisitions

under 40 U.S.C. 759 (ADP contracts),

the General Services Board of Contract

Appeals (GSBCA or the Board). (See

19.302 for protests of small business

status and 22.608–3 for protests

involving eligibility under the WalshHealey Public Contracts Act.)

(b) If in connection with a protest, the

head of an agency determines that a

solicitation, proposed award, or award

does not comply with the requirements

of law or regulation, the head of the

agency may—

(1) Take any action that may have

been taken by the Comptroller General

in the event of a GAO protest; and

(2) Pay appropriate costs as stated in

section 33.104(h).

* * * * *

(d) Protest likely after award. The

contracting officer may stay

performance of a contract within the

time period contained in 33.104(c)(1) if

the contracting officer makes a written

determination that—

(1) A protest is likely to be filed; and

(2) Delay of performance is, under the

circumstances, in the best interests of

the United States.

(e) * * *

(2) May protest to the GAO in

accordance with GAO regulations (4

CFR Part 21). An interested party who

has filed a protest regarding an ADP

procurement with the GAO may not file

a protest with the GSBCA with respect

to that procurement.

(3) May protest to the GSBCA

regarding an award of an ADP contract

in accordance with GSBCA Rules of

Procedure (48 CFR Chapter 61). An

interested party who has filed a protest

regarding an ADP procurement with

GSBCA (40 U.S.C. 759(f)) may not file

a protest with the GAO with respect to

that procurement.

4. Section 33.103 is amended in

paragraph (b)(1) by removing ‘‘or’’ and

inserting ‘‘and’’; by revising the second

and third sentences of (b)(2); by revising

the second sentence in paragraph (b)(4);

and by adding paragraph (b)(5) to read

as follows:

33.103 Protests to the agency.

* * * * *

(b) * * *

(2) * * * In all other cases, protests

shall be filed not later than 14 days after

the basis of protest is known or should

have been known, whichever is earlier.

The agency for good cause shown, or

where it determines that a protest raises

issues significant to the agency’s

acquisition system, may consider the

merits of any protest which is not filed

timely.

* * * * *

(4) * * * Failure to substantially

comply with any of the above

requirements may be grounds for

dismissal of the protest.

(5) The agency should furnish a copy

of the written protest ruling to the

protester by certified mail return receipt

requested, or by any other method that

provides evidence of receipt.

5. Section 33.104 is amended—

a. By revising the introductory text;

b. By adding a sentence to the end of

paragraph (a)(2)(ii);

c. By revising the introductory text of

paragraph (a)(3)(i);

d. In paragraph (a)(3)(ii)(H) by adding

a ‘‘s’’ to ‘‘allegation’’;

e. By redesignating paragraphs (a)(5)

through (a)(7) as (a)(6) through (a)(8),

respectively and adding a new

paragraph (a)(5);

f. By revising the introductory text of

newly designated paragraph (a)(6);

g. In the third sentence of paragraph

(a)(6)(iii) by adding a ‘‘s’’ to ‘‘request’’;

and

h. By revising paragraphs (c)(1), and

(c)(5); and

i. By revising paragraphs (f), (g), and

(h).

The revised text reads as follows:

33.104 Protests to GAO.

Procedures for protests at the GAO are

found at 4 CFR Part 21 (GAO Bid Protest

Regulations). In the event this section

conflicts with 4 CFR Part 21, 4 CFR Part

21 governs.

(a) * * *

(2) (ii) * * * However, if the protestor

has identified sensitive information and

requests a protective order, then the

contracting officer should obtain a

redacted version from the protestor to

furnish to other interested parties.

(3)(i) Upon notice that a protest has

been filed with the GAO, the contracting

officer shall immediately begin

compiling the information necessary for

a report to the GAO. The agency

normally submits a complete report to

the GAO within 35 days after the GAO

notifies the agency by telephone that a

protest has been filed, or within 20 days

after receipt from the GAO of a

determination to use the express option,

unless the GAO—

* * * * *

(5) When a protest is filed with the

GAO, and an actual or prospective

offeror so requests, the procuring agency

shall establish a protest file and, in

accordance with any applicable

protective orders, provide actual or

prospective offerors reasonable access to

the file. However, if the GAO dismisses

the protest before the administrative

report is submitted then no protest file

need be established.

(i) The protest file shall consist of the

agency administrative report.

(ii) Information exempt from

disclosure under section 552 of title 5,

United States Code, or under an

applicable protective order, may be

redacted from the protest file.

(iii) The protest file shall be made

available within a reasonable time after

submittal of the agency administrative

report.

(6) The GAO may issue protective

orders which establish terms,

conditions, and restrictions for the

provision of any document to an

interested party. Protective orders

prohibit or restrict the disclosure by the

party of procurement sensitive

information, trade secrets or other

proprietary or confidential research,

development or commercial information

that is contained in such document.

Protective orders do not authorize

withholding any documents or

information from the United States

Congress or an executive agency.

* * * * *

(c) Protests after award. (1) When the

agency receives notice of a protest from

the GAO within 10 days after contract

award or within 5 days after a debriefing

date offered to the protestor for any

debriefing that is required by 15.1003,

whichever is later, the contracting

officer shall immediately suspend

performance or terminate the awarded

contract, except as provided in

paragraphs (c)(2) and (3) of this section.

* * * * *

(5) When the agency receives notice of

a protest filed with the GAO after the

dates contained in paragraph (c)(1), the

contracting officer need not suspend

contract performance or terminate the

awarded contract unless the contracting

officer believes that an award may be

invalidated and a delay in receiving the

supplies or services is not prejudicial to

the Government’s interest.

* * * * *
2632 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Proposed Rules

(f) GAO decision time. GAO issues its

recommendation on a protest within

125 days from the date of filing of the

protest with the GAO, or within 65 days

under the express option, unless GAO

establishes a longer period of time. The

GAO attempts to issue its

recommendation on an amended protest

that adds a new ground of protest

within the time limit of the initial

protest. If an amended protest cannot be

resolved within the initial time limit,

the GAO may resolve the amended

protest through an express option.

(g) Notice to GAO. If the agency has

not fully implemented the GAO

recommendations with respect to a

solicitation for a contract or an award or

a proposed award of a contract within

60 days of receiving the GAO

recommendations, the head of the

contracting activity responsible for that

contract shall report such failure to the

GAO not later than 5 days after the

expiration of the 60 day period. The

report shall explain the reasons why the

GAO’s recommendation exclusive of

costs, has not been followed by the

agency.

(h) Award of costs. (1) If the GAO

determines that a solicitation for a

contract or a proposed award or an

award of a contract does not comply

with a statute or regulation, the GAO

may recommend that the agency

conducting the procurement pay to an

appropriate interested party the direct

cost, exclusive of profit, of filing and

pursuing the protest, including

reasonable attorney’s fees and

consultant and expert witness fees, and

bid and proposal preparation costs.

(2) If the GAO recommends the award

of costs to an interested party, the

agency, in accordance with agency

procedures, shall attempt to reach an

agreement on the amount of the cost to

be paid. If the agency and the interested

party are unable to agree on the amount

to be paid, GAO may, upon request of

the interested party, recommend to the

agency the amount of cost that the

agency should pay.

(3) No agency shall pay a party, other

than a small business concern within

the meaning of section 3(a) of the Small

Business Act (see 19.001, ‘‘Small

business concern’’), costs under

paragraph (h)(2) of this section—

(i) For consultant and expert witness

fees that exceed the highest rate of

compensation for expert witnesses paid

by the Government; or

(ii) For attorneys’ fees that exceed

$150 per hour unless the agency

determines, based on the

recommendation of the Comptroller

General on a case by case basis, that an

increase in the cost of living or a special

factor, such as the limited availability of

qualified attorneys for the proceedings

involved, justifies a higher fee. The cap

placed on attorneys’ fees for businesses,

other than small businesses, constitutes

a benchmark as to what constitutes a

‘‘reasonable’’ level for attorneys’ fees for

small businesses.

(4) A recommended award of costs

may be paid by the agency out of funds

available to or for the use of the agency

for the acquisition of supplies or

services. Before paying a recommended

award of costs, agency personnel should

consult legal counsel. Section 33.104(h)

applies to all recommended awards of

costs which have not yet been paid.

(5) If the GAO recommends the

agency pay costs (as defined under

paragraph (h)(1) of this section) and the

agency does not promptly pay the costs,

the agency shall promptly report to

GAO the reasons for the failure to follow

the GAO recommendation.

(6) Any costs the contractor receives

under this section shall be excluded

from all proposals, billings, or claims

against the Government and such

exclusions should be reflected in the

cost agreement.

6. Section 33.105 is amended—

(a) By adding an introductory

paragraph;

(b) By revising paragraph (a)(1);

(c) In paragraph (a)(2)(ii) by removing

‘‘five’’ and inserting ‘‘three’’;

(d) By revising the introductory text of

paragraph (d)(1);

(e) In paragraph (d)(1)(i) by removing

‘‘calendar’’;

(f) By adding paragraph (d)(4);

(g) In paragraph (e) by removing ‘‘45

work’’ and inserting ‘‘65’’;

(h) By redesignating paragraphs (f)

and (g) as (g) and (h) and adding a new

paragraph (f);

(i) By revising the new by designated

paragraphs (g)(1)(i), and (g)(2);

(j) By adding paragraphs (g)(3) and

(g)(4); and

(k) By revising paragraph (h).

The revised text reads as follows:

33.105 Protests to GSBCA.

Procedures for protests at the GSBCA,

are found at 48 CFR chapter 61 (GSBCA

Rules). In the event this subpart

conflicts with 48 CFR Chapter 61, 48

CFR Chapter 61 governs.

(a)(1) Upon request of an interested

party in connection with any

procurement that is subject to this

section (including any such

procurement that is subject to

delegation of procurement authority),

the GSBCA shall review any decision by

the contracting officer that is alleged to

violate a statute, a regulation, or the

conditions of a delegation of

procurement authority. ADP acquisition

protests not covered under the Federal

Property and Administrative Services

Act (40 U.S.C. 759) may not be heard by

the GSBCA, but may be heard by the

agency, the courts, or GAO. A protester

shall furnish a copy of its complete

protest to the official and location

designated in the solicitation, or in the

absence of such a designation to the

contracting officer, on the same day the

protest is filed with the GSBCA. Any

request for a hearing on either a

suspension of procurement authority or

on the merits shall be in the protest.

* * * * *

(d)(1) If a protest contains a timely

request for a suspension of procurement

authority, the Board will hold a hearing.

A timely request for suspension of

procurement authority is one that is

filed before award, within 10 days of

award, or within five days of the offered

debriefing, when the debriefing is

required by 15.1003, whichever is later.

The Board suspends the procurement

authority unless the agency establishes

that—

* * * * *

(4) A suspension shall not preclude

the agency concerned from continuing

the procurement process up to but not

including the award of the contract

unless the Board determines such action

is not in the best interests of the United

States.

* * * * *

(f) Any agreement that provides for

the dismissal of a protest and involves

a direct or indirect expenditure of

appropriated funds shall be made part

of the public record (subject to any

protective order considered appropriate

by the Board) before dismissal of the

protest. If an agency is party to a

settlement agreement, the submission of

the agreement to the Board shall include

a memorandum, signed by the

contracting officer concerned, that

describes in detail the procurement, the

grounds for protest, the Government’s

position regarding the grounds for

protest, the terms of the settlement, and

the agency’s position regarding the

propriety of the award or proposed

award of the contract at issue in the

protest.

(g) * * *

(1) * * *

(i) Filing and pursuing the protest,

including reasonable attorney

consultant, and expert witness fees,

studies, analyses, tests; and

* * * * *

(2) Costs awarded under paragraph

(g)(1) of this section or payments of

amounts due under settlement

agreements shall be paid out in
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Proposed Rules 2633

accordance with the procedures

provided in 31 U.S.C. 1304 (the

Permanent Indefinite Judgment Fund).

The agency concerned shall reimburse

that fund out of funds available for the

procurement.

(3) No agency shall pay a party, other

than a small business concern within

the meaning of section 3(a) of the Small

Business Act (see 19.001, ‘‘Small

business concern’’), costs under

paragraph (g)(1) of this section—

(i) For consultant and expert witness

fees that exceed the highest rate of

compensation for expert witnesses paid

by the Government; or

(ii) For attorneys’ fees that exceed

$150 per hour unless the Board

determines, on a case by case basis, that

an increase in the cost of living or a

special factor, such as the limited

availability of qualified attorneys for the

proceedings involved, justifies a higher

fee. The cap placed on attorneys’ fees

for businesses, other than small

businesses, constitutes a benchmark as

to what constitutes a ‘‘reasonable’’ level

for attorneys’ fees for small businesses.

(4) Within 30 days after receipt by the

agency of an application for cost, the

agency may file an answer.

(h) The GSBCA’s final decision may

be appealed by the agency or by any

interested party, including any

intervening interested parties, as set

forth in the Contract Disputes Act.

7. Section 33.106 is amended by

revising paragraph (a) to read as follows:

33.106 Solicitation provision and contract

clause.

(a) The contracting officer shall insert

the provision at 52.233–2, Service of

Protest, in solicitations for other than

simplified acquisitions.

* * * * *

8. Section 33.201 is amended by

revising the definition ‘‘Alternate means

of dispute resolution’’; and in the

definition ‘‘Claim’’ by removing the

amount ‘‘$50,000’’ and inserting

‘‘$100,000’’.

33.201 Definitions.

Alternate dispute resolution (ADR)

means any procedure or combination of

procedures voluntarily used to resolve

issues in controversy without the need

to resort to litigation. These procedures

include, but are not limited to, assisted

settlement negotiations, conciliation,

facilitation, mediation, fact-finding,

minitrials, and arbitration.

* * * * *

9. Section 33.206 is revised to read as

follows:

33.206 Initiation of a claim.

(a) Contractor claims shall be

submitted, in writing, to the contracting

officer for a decision within 6 years after

the contractor knew or should have

known the facts and circumstances

giving rise to the issue in controversy

unless a shorter time period has been

agreed to. This 6 year time period does

not apply to contracts in existence as of

October 13, 1994, that contain a clause

requiring submittal of a claim earlier

than 6 years after accrual of the claim.

The contracting officer 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 contracting officer.

(b) The contracting officer shall issue

a written decision on any Government

claim initiated against a contractor

within 6 years after accrual of the claim.

The 6 year period shall not apply to a

Government claim against a contractor

that is based on a claim by the

contractor involving fraud.

33.207 [Amended]

10. Section 33.207 is amended in

paragraph (a)(1) by removing ‘‘$50,000’’

and inserting ‘‘$100,000’’.

33.208 [Amended]

11. Section 33.208 is amended in

paragraph (c) by removing ‘‘as defined

in 33.201,’’.

12. Section 33.211 is amended in

paragraph (a)(4)(v) by removing the

amounts ‘‘$10,000’’ and ‘‘$50,000’’ and

inserting ‘‘$50,000’’ and ‘‘$100,000’’,

respectively; in paragraphs (c)(1), (c)(2)

and (e) by removing the amounts

‘‘$50,000’’ and inserting ‘‘$100,000’’;

and by revising paragraph (f) to read as

follows:

33.211 Contracting officer’s decision.

* * * * *

(f) In the event of undue delay by the

contracting officer in rendering a

decision on a claim, the contractor may

request the tribunal concerned to direct

the contracting officer to issue a

decision in a specified time period

determined by the tribunal.

* * * * *

13. Section 33.214 is amended by

redesignating paragraphs (b) through (d)

as (c) through (e) and adding a new

paragraph (b) to read as follows:

33.214 Alternative dispute resolution

(ADR).

* * * * *

(b) If the contracting officer rejects a

request for ADR from a small business

contractor, the contracting officer shall

provide the contractor written

explanation citing one or more of the

conditions in 5 U.S.C. 572(b) or such

other specific reasons that ADR

procedures are inappropriate for the

resolution of the dispute. In any case

where a contractor rejects a request of

an agency for ADR proceedings, the

contractor shall inform the agency in

writing of the contractor’s specific

reasons for rejecting the request.

* * * * *

PART 39—ACQUISITION OF

INFORMATION RESOURCES

14. Section 39.002 is amended by

redesignating paragraph (b) as (c) and

adding a new paragraph (b) to read as

follows:

39.002 Delegations of procurement

authority.

* * * * *

(b) The Administrator of the General

Services Administration, or the

appropriate official of any agency

authorized to issue a redelegation of

procurement authority, may issue a

delegation of procurement authority

(DPA) for any procurement initiated or

contract award executed without the

requisite DPA. If the Administrator or

other appropriate agency official issues

a DPA, the originally executed contract

may be ratified by the contracting

agency. Preaward procurement actions

taken prior to obtaining a DPA do not

need to be reaccomplished.

* * * * *

15. Subpart 42.15 is added to read as

follows:

Subpart 42.15—Small Business

Contract Administration

42.1501 General.

The contracting officer shall make

every reasonable effort to respond in

writing within 30 days to any written

request to the contracting officer from a

small business concern with respect to

a contract administration matter. In the

event the contracting officer cannot

respond to the request within the 30 day

period, the contracting officer shall,

within such period, transmit to the

contractor a written notification of the

specific date the contracting officer

expects to respond. This provision shall

not apply to a request for a contracting

officer decision under the Contract

Disputes Act of 1978 (41 U.S.C. 601–

613).

PART 50—EXTRAORDINARY

CONTRACTUAL ACTIONS

50.303 [Redesignated as 50.303–1]

16. Section 50.303 is redesignated as

50.303–1 and a new 50.303 heading is

added to read as follows:
2634 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Proposed Rules

50.303 Contract adjustment.

* * * * *

17. Section 50.303–2 is added to read

as follows:

50.303–2 Contractor certification.

A contractor seeking a contract

adjustment that exceeds the simplified

acquisition threshold shall, at the time

the request is submitted, submit a

certification by a person authorized to

certify the request on behalf of the

contractor that (a) the request is made in

good faith and (b) the supporting data

are accurate and complete to the best of

that person’s knowledge and belief.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

18. Section 52.233–1 is amended by

revising the date of the clause, the third

sentence in paragraph (c), and

paragraph (d)(1); in paragraph

(d)(2)(i)(A) and (e) by removing

‘‘$50,000’’ each place it occurs and

inserting ‘‘$100,000’’; and by revising

paragraph (g) to read as follows:

52.233–1 Disputes.

* * * * *

Disputes (Date)

* * * * *

(c) * * * However, a written demand or

written assertion by the Contractor seeking

the payment of money exceeding $100,000 is

not a claim under the Act until certified as

required by subparagraph (d)(2) of this

clause. * * *

(d)(1) A claim by the Contractor shall be

made in writing and, unless otherwise stated

in this contract, submitted within 6 years

after accrual of the claim to the Contracting

Officer for a written decision. A claim by the

Government against the Contractor shall be

subject to a written decision by the

Contracting Officer.

* * * * *

(g) If the claim by the Contractor is

submitted to the Contracting Officer or a

claim by the Government is presented to the

Contractor, the parties, by mutual consent,

may agree to use ADR. If the Contractor

refuses an offer for alternative disputes

resolution, the Contractor shall inform the

Contracting Officer, in writing, of the

Contractor’s specific reasons for rejecting the

request. When using arbitration conducted

pursuant to 5 U.S.C. 575–580, or when using

any other ADR technique that the agency

elects to handle in accordance with the

ADRA, any claim, regardless of amount, shall

be accompanied by the certification

described in subparagraph (d)(2)(iii) of this

clause, and executed in accordance with

subparagraph (d)(3) of this clause.

* * * * *

19. Section 52.233–2 is amended by

revising the date of the clause; and

adding paragraph (c) to read as follows:

52.233–2 Service of Protest.

* * * * *

Service of Protest (Date)

* * * * *

(c) In this procurement, you may not

protest to the GSBCA because of the nature

of the supplies being procured. (Contracting

Officer shall strike the word ‘‘not’’ where the

GSBCA is a correct forum.)

(End of provision)

20. Section 52.233–3 is amended by

revising the date of the clause; and in

paragraph (a) by revising the first

sentence to read as follows:

52.233–3 Protest after Award.

* * * * *

Protest After Award (Date)

* * * * *

(a) Upon receipt of a notice of protest (as

defined in 33.101 of the FAR) or a

determination that a protest is likely (see

FAR 33.102(d)), the Contracting Officer may,

by written order to the Contractor, direct the

Contractor to stop performance of the work

called for by this contract. * * *

* * * * *

[FR Doc. 95–482 Filed 1–9–95; 8:45 am]

BILLING CODE 6820–34–P