Part M833 - Protests, Disputes, and Appeals - Office of Acquisition and Logistics (OAL)
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Office of Acquisition and Logistics (OAL)

 

Part M833 - Protests, Disputes, and Appeals

« VAAM Part M832 VAAM Table of Contents VAAM Part 836 »
 
Subpart M833.1—Protests
Sec.  
M833.102-70 General–management of protests at VA.
M833.102-71 Contracting officer’s responsibilities.
M833.103-71 Contracting activity protest procedures.
M833.104-70 Protests at the U.S. Court of Federal Claims.
M833.104-71 Management procedures for protests to GAO.
M833.105 Protests at the U.S. Court of Federal Claims.
Subpart M833.2—Disputes and Appeals
M833.209 Suspected fraudulent claims.
M833.211-70 Contracting officer's final decision.
M833.212 Contracting officer's duties upon appeal.

Subpart M833.1 - Protests

M833.102-70  General-management of protests at VA.

(a) Under VA’s procurement protest system, protesters may file a protest with VA Contracting Officers (CO).  In the alternative, protesters may request an independent review by filing a protest with the Executive Director, Office of Acquisition and Logistics (ED/OAL).

(b) The Office of Risk Management and Compliance Service (RMCS) manages VA protests and appeals on behalf of the ED/OAL.  The RMCS staff shall:

(1) Maintain a log of all protests submitted by contracting officers for review and all protests and appeals filed with the ED/OAL.

(2) Review contracting officers’ draft decision letters, when requested and upon receipt of all relevant documents.  The RMCS Procurement Analyst shall recommend changes, as appropriate, to ensure the decisions are well-reasoned, protest issues are fully addressed, and VA’s position is adequately explained.

(3) Notify and obtain relevant information from contracting officers upon receipt of initial protests and appeals of contracting officers’ decisions filed with the ED/OAL.

(4) Prepare decision letters in response to protests filed with the ED/OAL that are well reasoned and explain the agency position.

(5) Include the following language in decision letters, as appropriate, when initial protests are filed with the ED/OAL;

“Should you disagree with this decision, you may file a protest with the Government Accountability Office (GAO).  Protests filed with the GAO must be filed through GAO’s Electronic Protest Docketing System (EPDS) at https://epds.gao.gov, within 10 calendar days after receipt of this letter.”

(6) Obtain legal concurrence in decisions to protests filed with the ED/OAL prior to releasing the decision to the protester.

(7) Put forth best efforts to ensure protests filed with the ED/OAL are resolved within 35 calendar days after the protest filing pursuant to FAR 33.103(g).

(c) Contracting officers shall notify RMCS staff immediately of any protest filed with the contracting officer or U.S. Court of Federal Claims by forwarding a copy of the protest letter via the email address at EDProtests@va.gov.

M833.102-71  Contracting officer’s responsibilities.

VA contracting officers shall:

(a) Follow the requirements in FAR 33.102(a), 33.103(f) and ensure compliance with VAAR 833.103-70 upon receipt of a protest.

(b) Provide their supervisors and their designated legal counsel a copy of the protest immediately upon receipt.  Contracting officers shall also notify RMCS immediately of any protest filed with the contracting officer or U.S. Court of Federal Claims by forwarding a copy of the protest letter via the email address at EDProtests@va.gov.  In the email notification, contracting officers must state if they will or will not be forwarding a copy of their draft decision to RMCS for review.  If the contracting officer requests RMCS review of their draft decision letter, an RMCS Procurement Analyst will be assigned and shall immediately acknowledge receipt of the request and collaborate with the contracting officer.

(c) Prepare a draft decision letter that is well-reasoned and explains the agency position as required by FAR 33.103(h).

(d) If an RMCS review was requested, submit draft decision letter and relevant documents to the assigned RMCS Procurement Analyst prior to obtaining legal review and concurrence.

(e) If an RMCS review was not requested, submit draft decision letter and relevant documents to the designated legal counsel for review and concurrence.

(f) Include the following appeal language (usually as the last paragraph) in all protest decision letters:

“Should you disagree with this decision, you may file an appeal with the Executive Director, Office of Acquisition and Logistics, Risk Management and Compliance Service (003A2C), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420 or electronically at EDProtests@va.gov.  Any such appeal must be received within 10 calendar days after receipt of this letter.  In the alternative, you may file a protest with the Government Accountability Office (GAO).  Protests filed with the GAO must be filed through GAO’s Electronic Protest Docketing System (EPDS) at https://epds.gao.gov.  Any GAO protest must be filed within 10 calendar days of this formal notification of, or actual or constructive knowledge of, an initial adverse agency action (as determined in 4 Code of Federal Regulations 21.0(e)).  If you file an appeal with the Executive Director, Office of Acquisition and Logistics, you may waive your right to further protest to the Comptroller General at a later date.”

(h) Issue a decision to protesters within 35 calendar days after the protest is filed pursuant to FAR 33.103(g).  If additional time is required, provide a one-time best effort estimate to the protester as to when a final decision will be made.

(i) Provide the decision letter to the protester using a method that provides evidence of receipt pursuant to FAR 33.103(h).

(j) Provide a copy of the signed decision letter to RMCS via the email address at EDProtests@va.gov, or to the assigned RMCS Procurement Analyst, if an RMCS review was received.

(k) Provide a copy of the signed decision letter to the VA attorney who concurred in the draft decision letter.

(l) Provide information as requested by RMCS analysts when protesters appeal the contracting officer’s decision with the ED/OAL.

M833.103-71  Contracting activity protest procedures.

(a) Action upon receipt of protest.  If contract award in the face of a protest is necessary, the approving official for the determination identified in FAR 33.103(f)(1) (protests before award) and/or FAR 33.103(f)(3) (protests received within 10 days after contract award or within 5 days after a debriefing) shall be–

(1) The Head of the Contracting Activity (HCA) for protests to the contracting officer.  If the HCA is also the contracting officer, see paragraph (2); or

(2) The ED/OAL, for a protest under the alternative review in 833.103-70(a)(2); or if the HCA is also the contracting officer.

(b) Protest after award.  When a written protest is filed with the contracting officer after contract award, the following procedures apply:

(1) When FAR 33.103(f)(3) requires suspension of contract performance, the contracting officer must seek to obtain a mutual agreement with the contractor to suspend performance on a no-cost basis.  If unsuccessful, the contracting officer must issue a stop-work order in accordance with contract clause FAR 52.233-3, Protest after Award.

(2) When suspension of contract performance is not required by FAR 33.103(f)(3) and if the contracting officer determines that the award was proper, after consulting with OGC, the contracting officer must provide the protester a written decision as provided in M833.102-71(h).  The contracting officer will advise the protester of their appeal rights as provided in M833.102-71(f).

(3) When suspension of contract performance is not required by FAR 33.103(f)(3) but the contracting officer determines that the award is questionable, the contracting officer, after consulting with OGC, shall advise the contractor of the protest and invite the contractor to submit comments and relevant information.

M833.104-70  Procedures for protests to GAO.

(a) General.

(1) Per FAR 52.233-2, solicitations shall instruct interested parties to send a copy of any protest filed with the Government Accountability Office (GAO) to the contracting officer.

(2) OGC will prepare any response to the GAO on GAO protests.

(3) When a protest before or after award has been filed with GAO, the contracting officer must submit the documents listed in 33.104(a)(3)(ii), as appropriate, to the VA attorney assigned the protest case within 5 workdays after receipt of written notice of the GAO protest notification or by the due date established by the VA attorney.

(4) Contracting officers are responsible for the notification procedures outlined in FAR 33.104(a)(2).

(b) Protests before award.  When VA receives notice from GAO of a pre-award protest filed directly with GAO, award will normally not be made until the matter is resolved.  If the HCA has made a determination that award is necessary pursuant to FAR 33.104(b)(1), the Senior Procurement Executive (SPE) must approve the HCA findings.  OGC is responsible for the GAO notification in FAR 33.104(b)(2).

(c) Protests after award.  When, after award of a contract, VA receives notice from GAO of a protest filed directly with GAO, the contracting officer must, if required to do so by FAR 33.104(c)(1), immediately suspend performance.  However, contract performance need not be suspended, despite the protest, if the SPE approves the HCA’s findings required by FAR 33.104(c)(2) and GAO has been notified under FAR 33.104(c)(3).  Authority to approve the HCA’s findings is further delegated to the Deputy Senior Procurement Executive (DSPE).  OGC is responsible for submitting the required GAO notification in FAR 33.104(c)(3).

(d) Approval of findings.  Required approval under paragraph (b) or (c) of this section must be coordinated and submitted through RMCS.

(e) GAO protests rules and procedures.  The GAO issues a descriptive guide, protest timeline and other material that provides useful information to the GAO protests process.  These resources are available at:  https://www.gao.gov/legal/bid-protests/.

M833.104-71  Management procedures for protests to GAO.

(a) Risk Management and Compliance Service (RMCS) coordinates matters regarding protests with the Government Accountability Office (GAO).  RMCS analysts shall:

(1) Receive protest notifications from GAO representatives and record/log each notice of protest.

(2) Submit GAO protest notifications to appropriate COs and their respective legal counsel.  If RMCS analysts receive additional documents from GAO and other parties to the protest, such documents shall be forwarded to COs and VA legal counsel, as appropriate.

(3) Review the HCA’s written findings when a determination is made to award a contract in the face of a protest pursuant to FAR 33.104(b)(1) or continue contract performance in the face of a protest pursuant to FAR 33.104(c)(2).  RMCS shall submit the HCA’s findings to the Senior Procurement Executive or the Deputy Senior Procurement Executive for approval, as appropriate.

(b) Contracting officers shall coordinate actions with RMCS and Office of General Counsel.  A contracting officer involved in a GAO protest shall:

(1) Inform their supervisor immediately upon receipt of a GAO protest notification.

(2) Notify the contractor of the protest pursuant to the notification procedures in FAR 33.104(a)(2) if the award has been made, or, if no award has been made, notify all parties who appear to have a reasonable prospect of receiving the award if the protest is dismissed or denied.

(3) Stay contract award or performance if the protest was filed in a timely manner to trigger the statutory stay as provided in FAR 33.104(b)(1) and (c)(1).  The contracting officer may lift the stay if the HCA determines pursuant to FAR 33.104(b)(1) and (c)(2) that an award must be made or performance must continue in spite of the protest, provided such determination has been approved in accordance with VAAM 833.104-70(b) and (c).

(4) Forward the HCA’s determination and findings (D&F) to award a contract or continue contract performance, notwithstanding the protest, to RMCS analysts, who will submit to the SPE or the DSPE for approval, as appropriate, as required by VAAM 833.104-70(b) and (c).

(5) Discuss the protest with the VA attorney assigned the protest case immediately upon receipt of the protest to determine whether the issues raised warrant submission of a protest file.  If a protest file is required, the CO shall submit the file to the VA attorney within 5 working days of receipt of the GAO protest notification from RMCS analysts or by the due date established by the VA attorney.  The file shall include an index, and, as appropriate, the documents listed in FAR 33.104(a)(3)(ii).

M833.105  Protests at the U.S. Court of Federal Claims.

(a) Upon receipt of notification of a protest filed in the Court of Federal Claims (COFC) either from the protester’s counsel or from the Department of Justice (DOJ), contracting officers shall immediately provide written notice to their supervisor, designated legal counsel, and RMCS via the email address at EDProtests@va.gov.  The contracting officer can review the court’s rules and procedures as provided in FAR 33.105.

(b) The contracting officer is responsible for providing information to the DOJ attorney assigned the case when requested and consulting with its designated VA legal counsel as necessary.

(c) Upon conclusion of the case, the contracting officer shall immediately inform its supervisor, its designated legal counsel, and RMCS of the court’s opinion or order(s).

Subpart M833.2 - Disputes and Appeals

M833.209  Suspected fraudulent claims.

As provided in VAAR 833.209, the contracting officer must refer matters relating to suspected fraudulent claims to the VA, Office of Inspector General (OIG) for investigation and potential referral to the Department of Justice (DOJ).  The contracting officer may not initiate any collection, recovery, or other settlement action while the matter is in the hands of the DOJ without first obtaining the concurrence of the U.S. Attorney concerned, through the OIG.

M833.211-70  Contracting officer’s final decision.

(a) When a dispute cannot be settled by mutual agreement and a final decision under the Disputes clause of the contract is necessary, the contracting officer shall provide the contractor the contracting officer’s final decision in the matter.  The decision must be made within the time frames stipulated in the FAR, otherwise the claim may be deemed denied.

(b) The contracting officer must identify the decision, in writing, as a final decision and include a statement of facts in sufficient detail to enable the contractor to fully understand the decision and the basis on which it was made.  The contracting officer must ensure that any required legal or technical review or concurrence is completed (see subpart 801.6) prior to rendering the final decision on the matter.

(c) The contracting officer should reference the Civilian Board of Contract Appeals (CBCA) as the board having jurisdiction on appeals.

(d) The CBCA encourages the prompt, efficient and inexpensive resolution of contract disputes through the use of alternative dispute resolution (ADR).  It uses a variety of techniques intended to shorten and simplify, when appropriate, the formal proceedings normally used to resolve cases.

(e) When jointly requested by an agency and its contractor, the Board also provides to executive agencies alternative dispute resolution services on contract-related matters not covered by the Disputes statute (historical title of Act—Contract Disputes Act), whether those matters arise before or after a contract has been awarded.

(f) For more information on CBCA or ADR see:  https://cbca.gov/.

M833.212  Contracting officer’s duties upon appeal.

(a) When a contracting officer receives notice of appeal in any form, the contracting officer shall do the following:

(1) Acknowledge receipt and annotate the appeal with the date of mailing (or date of receipt, if otherwise conveyed).

(2) Within 10 days, forward the original notice of appeal and a copy of the contracting officer’s final decision letter to OGC and any other office that may be impacted.

(b) Within 20 days of receipt of an appeal, or advice that an appeal has been filed, the contracting officer must assemble and transmit to the OGC, an appeal file consisting of all documents pertinent to the appeal, including the following:

(1) The decision and findings of fact that are being appealed.

(2) The contract, all modifications, including specifications and pertinent modifications, amendments, revisions or changes to any specifications, plans and drawings.

(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision was issued.

(4) Transcripts of any testimony taken during the course of proceedings and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal.

(5) Any additional information considered pertinent.

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