Reclamation Acquisition Regulations (RAR)
PART WBR 1433
PROTESTS, DISPUTES, AND APPEALS
SUBPART WBR 1433.1 -- PROTESTS
WBR 1433.103 Protests to the agency.
WBR 1433.104 Protests
to the General Accounting Office (GAO)
WBR
1433.105 [Reserved].
WBR
1433.106 Solicitation Provision
SUBPART WBR 1433.2 -- DISPUTES AND APPEALS
WBR 1433.206 Initiation of a claim.
WBR 1433.206-80
Tracking claims.
WBR
1433.210 Contracting officer's authority.
WBR 1433.210-80 Technical analysis.
WBR 1433.214 Alternative
dispute resolution (ADR).
WBR
1433.215 Contract clauses.
WBR
1433.215-80 Reclamation solicitation provisions and contract clauses.
PART WBR 1433 -- PROTESTS, DISPUTES, AND APPEALS
SUBPART WBR 1433.1 -- PROTESTS
WBR 1433.103 Protests to the agency.
(a) Independent Review. Pursuant to FAR 33.103(d)(4), an interested party may request independent review of its protest at a level higher than the contracting officer, which shall be the BPC or her/his designee. This independent review is available as an alternative to consideration by the CO or as an appeal of the CO's decision on a protest. Any appeal of a decision by the CO must be received by the BPC no later than 3 days after receipt of that decision by the interested party. The BPC may consider an appeal which is not filed timely following a determination that the protest raises issues significant to the Reclamation acquisition system. The BPC shall render an appellate decision no later than 5 days after receipt of an appeal.
(b) Decision. The CO or the BPC shall use his/her best effort to issue a written decision or to otherwise resolve the challenge within 35 days after receipt of an agency protest containing the information in FAR 33.103 (d)(2). The decision shall be reviewed by the local attorney-advisor of the Office of the Solicitor before issuance. The BPC is only involved in rendering a decision if the interested party has invoked the process described in WBR 1433.103 (a). In addition to the requirements of DIAR 1433.103 , when a protest is denied by the CO, the decision shall advise the protester that the decision may be appealed to the BPC and that any such appeal must include a copy of the CO's protest decision.
(c) Protests before award. A determination to proceed with award shall be prepared by the CO under the conditions in FAR 33.103(f)(1 ) after compliance with DIAR 1433.103 .
(d)Protests after award. The CO may suspend performance or terminate the contract under the conditions in FAR 33.103(f)(3).
WBR 1433.104 Protests to the General Accounting Office.
(a) Notice of protest.
(1) AAMD, D-7800, shall provide the notification to the CO upon being informed of a protest by the Assistant Solicitor for Procurement and Patents.
(2) Upon receipt of a copy of the protest, AAMD will contact
the CO to determine iftechnical assistance is required in preparing
the protest report.
(b) Submission
of report. All protest reports required by
FAR 33.104(a)(3 ) shall be submitted to the Assistant Solicitor
for Procurement and Patents (SOL) by the BPC. Contracting offices
shall submit this report to the BPC no later than 3 days (as defined
at FAR
33.101) prior to the date established by the SOL for receipt
by the SOL. This sequence is graphically depicted:
(c) Protests before award. A determination to proceed with award in the face of a protest under DIAR 1433.104(b). shall be signed sequentially by the CO, the CCO, the BPC, the Assistant Solicitor for Procurement and Patents (SOL), and the HCA. In order to provide for timely notification to GAO, this signatory process shall be accomplished by fax. Following signature by the HCA, D-7800 shall immediately fax a copy (with telephonic notice) to the CO and to the SOL for GAO notification. This process is graphically depicted: (Webmaster's note: in hardcopy format only)
(d) Protests after award. A determination to continue contract performance shall be prepared in accordance with the procedures in paragraph (c) above.
(e) Decision. AAMD shall notify the CO upon being informed of a decision on the protest.
WBR 1433.105 [Reserved].
WBR 1433.106 Solicitation Provision. The CO shall insert the provision at WBR 1452.233-80 , Agency Procurement Protests, in all solicitations.
SUBPART WBR 1433.2 -- DISPUTES AND APPEALS
WBR 1433.206 Initiation of a claim.
WBR 1433.206-80 Tracking claims.
(a) The CCO shall establish a tracking system to schedule and regularly monitor the resolution of each claim received or initiated. The system shall --
(1) Document any consideration given to the use of the alternate disputes resolution (see FAR 33.214) during the disposition process; and
(2) Be capable of providing the information required by WBR 1401.7081-4.
(b) The status of each outstanding claim shall be reviewed by the CCO on a quarterly basis to ensure that continuing action is being taken to achieve a proper, timely disposition.
(c) A report on each outstanding claim where an audit has been requested shall be made using the format illustrated in WBR 1453.303-1401-4 , and submitted to the AAMD by the last day of each fiscal year quarter.
WBR 1433.210 Contracting officer's authority.
WBR 1433.210-80 Technical analysis.
(a) CO's conducting a technical analysis of a claim may use the available services of Construction Management, D-8160. Requests for assistance should be made within 30 days after receipt of a certified construction contract claim.
(b) D-8160 shall review the claim within 30 days of receipt and provide a proposed listing of actions and a time schedule necessary to complete its technical analysis or to provide assistance.
(c) The CO, when the claim involves contract specifications which were prepared in a regional office, shall obtain comments from the regional engineer on the technical analysis received under paragraph (a) above.
(d) Upon receipt of the schedule in paragraph (b) above, the CO may submit a written request, through the CCO, to D-8160 for its services
WBR 1433.214 Alternative dispute resolution (ADR).
(a) Definitions. "ADR proceeding," as used in this section, means any process used as an alternative means of dispute resolution or dispute avoidance including, but not limited to, settlement negotiations, mediation, factfinding, mini-trials, non-binding arbitration, dispute review boards, partnering, or any process mutually agreed to by the parties involved.
"Partnering," as used in this section, means a way of two or more parties doing business that recognizes that they have common goals which can be achieved through cooperation and open communications.
(b) Guidance on ADR proceeding.
(1) ADR. Guidance for use of common ADR proceedings is contained in the following Reclamation ADR Handbooks, available from AAMD: An Overview of Available ADR Processes; Contracting Officers Guide to Resolving Contract Disputes; Mediation; Mini-trial; Disputes Review Board; and How to Avoid ADR Obstacles. Other types of specific ADR guidance and technical assistance is available from AAMD.
(2) Partnering. Reclamation promotes voluntary partnering in the administration of construction contracts, or in other types of contracts for which the CO determines there is a need.
(c) Settlement memorandum.
(1) The settlement agreement resulting from an ADR proceeding shall be documented in a memorandum which shall contain the information required by FAR 15.406-3, and WBR 1415.406-3 . The memorandum --
(i) Should be prepared by the neutral third-party individual identified in the proceeding agreement;
(ii) Shall be signed by the Reclamation settlement official;
(iii) Is not subject to the review requirements of Subpart WBR 1401.70 .
(2) The decision of the settlement official resulting from an ADR proceeding shall not be subject to any further reviews or approvals.
WBR 1433.215 Contract clauses.
WBR 1433.215-80 Reclamation solicitation provisions and contract clauses.
(a) The CO shall insert the clause at WBR 1452.233-81 , Claims Accounting -- Bureau of Reclamation, in solicitations and contracts which contain the clause at FAR 52.243-6, Change Order Accounting.
(b) The CO may insert the provision at WBR 1452.233-82 , Notice of Proposed Partnering -- Bureau of Reclamation, in appropriate solicitations for construction. The provision may be modified for use in solicitations for other than construction when the CO determines there is a need for proposed partnering.