CHAPTER 71 -CONTRACT DISPUTES!@!Sec. 7101 -->
In this chapter:
(1) Administrator .—The term "Administrator" means the Administrator for Federal Procurement Policy appointed pursuant to section 1102 of this title .
(2) Agency board or agency board of contract appeals .—The term "agency board" or "agency board of contract appeals" means—
(A) the Armed Services Board;
(B) the Civilian Board;
(C) the board of contract appeals of the Tennessee Valley Authority; or
(D) the Postal Service Board established under section 7105(d)(1) of this title .
(3) Agency head .—The term "agency head" means the head and any assistant head of an executive agency. The term may include the chief official of a principal division of an executive agency if the head of the executive agency so designates that chief official.
(4) Armed services board .—The term "Armed Services Board" means the Armed Services Board of Contract Appeals established under section 7105(a)(1) of this title .
(5) Civilian board .—The term "Civilian Board" means the Civilian Board of Contract Appeals established under section 7105(b)(1) of this title .
(6) Contracting officer .—The term "contracting officer"—
(A) means an individual who, by appointment in accordance with applicable regulations, has the authority to make and administer contracts and to make determinations and findings with respect to contracts; and
(B) includes an authorized representative of the contracting officer, acting within the limits of the representative's authority.
(7) Contractor .—The term "contractor" means a party to a Federal Government contract other than the Federal Government.
(8) Executive agency .—The term "executive agency" means—
(A) an executive department as defined in section 101 of title 5 ;
(B) a military department as defined in section 102 of title 5 ;
(C) an independent establishment as defined in section 104 of title 5 , except that the term does not include the Government Accountability Office; and
(D) a wholly owned Government corporation as defined in section 9101(3) of title 31 .
(9) Misrepresentation of fact .—The term "misrepresentation of fact" means a false statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.
In paragraph (8)(C), the words "Government Accountability Office" are substituted for "General Accounting Office" because of section 8(b) of the GAO Human Capital Reform Act of 2004 (
Public Law 108–271,
118 Stat. 814 , 31 U.S.C. 702 note ).
In paragraph (8)(D), the words " section 9101(3) of title 31 " are substituted for " section 846 of title 31 " because of section 4(b) of
Public Law 97–258
(31 U.S.C. note prec. 101).
CHAPTER 71 -CONTRACT DISPUTES!@!Sec. 7102 -->
(a) Executive Agency Contracts .—Unless otherwise specifically provided in this chapter, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28 ) made by an executive agency for—
(1) the procurement of property, other than real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair, or maintenance of real property; or
(4) the disposal of personal property.
(b) Tennessee Valley Authority Contracts.—
(1) In general .—With respect to contracts of the Tennessee Valley Authority, this chapter applies only to contracts containing a clause that requires contract disputes to be resolved through an agency administrative process.
(2) Exclusion .—Notwithstanding any other provision of this chapter, this chapter does not apply to a contract of the Tennessee Valley Authority for the sale of fertilizer or electric power or related to the conduct or operation of the electric power system.
(c) Foreign Government or International Organization Contracts .—If an agency head determines that applying this chapter would not be in the public interest, this chapter does not apply to a contract with a foreign government, an agency of a foreign government, an international organization, or a subsidiary body of an international organization.
(d) Maritime Contracts .—Appeals under section 7107(a) of this title and actions brought under sections 7104(b) and 7107(b) to (f) of this title, arising out of maritime contracts, are governed by chapter 309 or 311 of title 46, as applicable, to the extent that those chapters are not inconsistent with this chapter.
In subsection (c), the words "an agency head" are substituted for "the head of the agency" for consistency with the defined term "agency head" in section 7101 of the revised title.
In subsection (d), the words " chapter 309 or 311 of title 46" are substituted for "the Act of March 9, 1920, as amended ( 41 Stat. 525 , as amended; 46 U.S.C. 741–752 ) or the Act of March 3, 1925, as amended ( 43 Stat. 1112 , as amended; 46 U.S.C. 781–790 )" in section 4 of the Contract Disputes Act of 1978 (
Public Law 95–563,
92 Stat. 2384 ) because of section 18(c) of
Public Law 109–304
(46 U.S.C. note prec. 101).
CHAPTER 71 -CONTRACT DISPUTES!@!Sec. 7103 -->
(a) Claims Generally.—
(1) Submission of contractor's claims to contracting officer .—Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.
(2) Contractor's claims in writing .—Each claim by a contractor against the Federal Government relating to a contract shall be in writing.
(3) Contracting officer to decide federal government's claims .—Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.
(4) Time for submitting claims.—
(A) In general .—Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.
(B) Exception .—Subparagraph (A) of this paragraph does not apply to a claim by the Federal Government against a contractor that is based on a claim by the contractor involving fraud.
(5) Applicability .—The authority of this subsection and subsections (c)(1), (d), and (e) does not extend to a claim or dispute for penalties or forfeitures prescribed by statute or regulation that another Federal agency is specifically authorized to administer, settle, or determine.
(b) Certification of Claims.—
(1) Requirement generally .—For claims of more than $100,000 made by a contractor, the contractor shall certify that—
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the contractor's knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the contractor.
(2) Who may execute certification .—The certification required by paragraph (1) may be executed by an individual authorized to bind the contractor with respect to the claim.
(3) Failure to certify or defective certification .—A contracting officer is not obligated to render a final decision on a claim of more than $100,000 that is not certified in accordance with paragraph (1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why any attempted certification was found to be defective. A defect in the certification of a claim does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a defective certification to be corrected.
(c) Fraudulent Claims.—
(1) No authority to settle .—This section does not authorize an agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud.
(2) Liability of contractor .—If a contractor is unable to support any part of the contractor's claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Government's costs attributable to reviewing the unsupported part of the claim. Liability under this paragraph shall be determined within 6 years of the commission of the misrepresentation of fact or fraud.
(d) Issuance of Decision .—The contracting officer shall issue a decision in writing and shall mail or otherwise furnish a copy of the decision to the contractor.
(e) Contents of Decision .—The contracting officer's decision shall state the reasons for the decision reached and shall inform the contractor of the contractor's rights as provided in this chapter. Specific findings of fact are not required. If made, specific findings of fact are not binding in any subsequent proceeding.
(f) Time for Issuance of Decision.—
(1) Claim of $100,000 or less .—A contracting officer shall issue a decision on any submitted claim of $100,000 or less within 60 days from the contracting officer's receipt of a written request from the contractor that a decision be rendered within that period.
(2) Claim of more than $100,000 .—A contracting officer shall, within 60 days of receipt of a submitted certified claim over $100,000—
(A) issue a decision; or
(B) notify the contractor of the time within which a decision will be issued.
(3) General requirement of reasonableness .—The decision of a contracting officer on submitted claims shall be issued within a reasonable time, in accordance with regulations prescribed by the agency, taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor.
(4) Requesting tribunal to direct issuance within specified time period .—A contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer.
(5) Failure to issue decision within required time period .—Failure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim and authorizes an appeal or action on the claim as otherwise provided in this chapter. However, the tribunal concerned may, at its option, stay the proceedings of the appeal or action to obtain a decision by the contracting officer.
(g) Finality of Decision Unless Appealed .—The contracting officer's decision on a claim is final and conclusive and is not subject to review by any forum, tribunal, or Federal Government agency, unless an appeal or action is timely commenced as authorized by this chapter. This chapter does not prohibit an executive agency from including a clause in a Federal Government contract requiring that, pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer's decision.
(h) Alternative Means of Dispute Resolution.—
(1) In general .—Notwithstanding any other provision of this chapter, a contractor and a contracting officer may use any alternative means of dispute resolution under subchapter IV of chapter 5 of title 5 , or other mutually agreeable procedures, for resolving claims. All provisions of subchapter IV of chapter 5 of title 5 apply to alternative means of dispute resolution under this subsection.
(2) Certification of claim .—The contractor shall certify the claim when required to do so under subsection (b)(1) or other law.
(3) Rejecting request for alternative dispute resolution.—
(A) Contracting officer .—A contracting officer who rejects a contractor's request for alternative dispute resolution proceedings shall provide the contractor with a written explanation, citing one or more of the conditions in section 572(b) of title 5 or other specific reasons that alternative dispute resolution procedures are inappropriate.
(B) Contractor .—A contractor that rejects an agency's request for alternative dispute resolution proceedings shall inform the agency in writing of the contractor's specific reasons for rejecting the request.
§6(a) (3d, 4th sentences), Nov. 1, 1978, as added
§6(d) (1st, last sentences), as added
§6(d) (2d sentence), as added
In subsection (b)(1)(D) and (2), the word "duly" is omitted as unnecessary.
In subsection (b)(3), the words "of contract appeals" are omitted as unnecessary because of the definition of "agency board" in section 7101 of the revised title.
In subsection (c)(2), the words "this subsection", which appear in section 5 of the Contract Disputes Act of 1978 (
92 Stat. 2384 ), and which were probably intended to mean "this section", are translated as "this paragraph" in accordance with the probable intent of Congress.
In subsection (f)(5), the words "the commencement of" are omitted as unnecessary. The words "of the appeal or action" are substituted for "in the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer" to eliminate unnecessary words.
CHAPTER 71 -CONTRACT DISPUTES!@!Sec. 7104 -->
(a) Appeal to Agency Board .—A contractor, within 90 days from the date of receipt of a contracting officer's decision under section 7103 of this title , may appeal the decision to an agency board as provided in section 7105 of this title .
(b) Bringing an Action De Novo in Federal Court.—
(1) In general .—Except as provided in paragraph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.
(2) Tennessee valley authority .—In the case of an action against the Tennessee Valley Authority, the contractor may only bring an action directly on the claim in a district court of the United States pursuant to section 1337 of title 28 , notwithstanding any contract provision, regulation, or rule of law to the contrary.
(3) Time for filing .—A contractor shall file any action under paragraph (1) or (2) within 12 months from the date of receipt of a contracting officer's decision under section 7103 of this title .
(4) De novo .—An action under paragraph (1) or (2) shall proceed de novo in accordance with the rules of the appropriate court.
In subsection (a), the words "of contract appeals" are omitted as unnecessary because of the definition of "agency board" in section 7101 of the revised title.
In subsection (b)(1), the words "United States Court of Federal Claims" are substituted for "United States Claims Court" because of section 902(b)(1) of the Federal Courts Administration Act of 1992 (
CHAPTER 71 -CONTRACT DISPUTES!@!Sec. 7105 -->
(a) Armed Services Board.—
(1) Establishment .—An Armed Services Board of Contract Appeals may be established within the Department of Defense when the Secretary of Defense, after consultation with the Administrator, determines from a workload study that the volume of contract claims justifies the establishment of a full-time agency board of at least 3 members who shall have no other inconsistent duties. Workload studies will be updated at least once every 3 years and submitted to the Administrator.
(2) Appointment of members and compensation .—Members of the Armed Services Board shall be selected and appointed in the same manner as administrative law judges appointed pursuant to section 3105 of title 5 , with an additional requirement that members must have had at least 5 years of experience in public contract law. The Secretary of Defense shall designate the chairman and vice chairman of the Armed Services Board from among the appointed members. Compensation for the chairman, vice chairman, and other members shall be determined under section 5372a of title 5 .
(b) Civilian Board.—
(1) Establishment .—There is established in the General Services Administration the Civilian Board of Contract Appeals.
(A) Eligibility .—The Civilian Board consists of members appointed by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) from a register of applicants maintained by the Administrator of General Services, in accordance with rules issued by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) for establishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services shall appoint a member without regard to political affiliation and solely on the basis of the professional qualifications required to perform the duties and responsibilities of a Civilian Board member.
(B) Appointment of members and compensation .—Members of the Civilian Board shall be selected and appointed to serve in the same manner as administrative law judges appointed pursuant to section 3105 of title 5 , with an additional requirement that members must have had at least 5 years experience in public contract law. Compensation for the members shall be determined under section 5372a of title 5 .
(3) Removal .—Members of the Civilian Board are subject to removal in the same manner as administrative law judges, as provided in section 7521 of title 5 .
(A) In general .—The Civilian Board has jurisdiction as provided by subsection (e)(1)(B).
(B) Additional jurisdiction .—With the concurrence of the Federal agencies affected, the Civilian Board may assume—
(i) jurisdiction over any additional category of laws or disputes over which an agency board of contract appeals established pursuant to section 8 of the Contract Disputes Act exercised jurisdiction before January 6, 2007; and
(ii) any other function the agency board performed before January 6, 2007, on behalf of those agencies.
(c) Tennessee Valley Authority Board.—
(1) Establishment .—The Board of Directors of the Tennessee Valley Authority may establish a board of contract appeals of the Tennessee Valley Authority of an indeterminate number of members.
(2) Appointment of members and compensation .—The Board of Directors of the Tennessee Valley Authority shall establish criteria for the appointment of members to the agency board established under paragraph (1), and shall designate a chairman of the agency board. The chairman and other members of the agency board shall receive compensation, at the daily equivalent of the rates determined under section 5372a of title 5 , for each day they are engaged in the actual performance of their duties as members of the agency board.
(d) Postal Service Board.—
(1) Establishment .—There is established an agency board of contract appeals known as the Postal Service Board of Contract Appeals.
(2) Appointment and service of members .—The Postal Service Board of Contract Appeals consists of judges appointed by the Postmaster General. The judges shall meet the qualifications of and serve in the same manner as members of the Civilian Board.
(3) Application .—This chapter applies to contract disputes before the Postal Service Board of Contract Appeals in the same manner as it applies to contract disputes before the Civilian Board.
(A) Armed services board .—The Armed Services Board has jurisdiction to decide any appeal from a decision of a contracting officer of the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, or the National Aeronautics and Space Administration relative to a contract made by that department or agency.
(B) Civilian board .—The Civilian Board has jurisdiction to decide any appeal from a decision of a contracting officer of any executive agency (other than the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Regulatory Commission, or the Tennessee Valley Authority) relative to a contract made by that agency.
(C) Postal service board .—The Postal Service Board of Contract Appeals has jurisdiction to decide any appeal from a decision of a contracting officer of the United States Postal Service or the Postal Regulatory Commission relative to a contract made by either agency.
(D) Other agency boards .—Each other agency board has jurisdiction to decide any appeal from a decision of a contracting officer relative to a contract made by its agency.
(2) Relief .—In exercising this jurisdiction, an agency board may grant any relief that would be available to a litigant asserting a contract claim in the United States Court of Federal Claims.
(f) Subpoena, Discovery, and Deposition .—A member of an agency board of contract appeals may administer oaths to witnesses, authorize depositions and discovery proceedings, and require by subpoena the attendance of witnesses, and production of books and papers, for the taking of testimony or evidence by deposition or in the hearing of an appeal by the agency board. In case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of a United States district court, the court, upon application of the agency board through the Attorney General, or upon application by the board of contract appeals of the Tennessee Valley Authority, shall have jurisdiction to issue the person an order requiring the person to appear before the agency board or a member of the agency board, to produce evidence or to give testimony, or both. Any failure of the person to obey the order of the court may be punished by the court as contempt of court.
(g) Decisions .—An agency board shall—
(1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes;
(2) issue a decision in writing or take other appropriate action on each appeal submitted; and
(3) mail or otherwise furnish a copy of the decision to the contractor and the contracting officer.
Subsecs. (b) and (e)(1)(A), (B), (D) and (2) of this section were derived from sections 438 and 607(d), respectively, of former Title 41, Public Contracts. Sections 438 and 607(d) were amended by
title IV, §422, Oct. 7, 2010, 124 Stat. 2727 , respectively, prior to being repealed and reenacted as subsecs. (b) and (e)(1)(A), (B), (D) and (2) of this section by
§§3, 7(b), Jan. 4, 2011, 124 Stat. 3677 , 3855. For applicability of those amendments to this section, see section 6(a) of
set out as a Transitional and Savings Provisions note preceding section 101 of this title . Section 438 of former Title 41 was amended in subsec. (c)(1) by striking "( 41 U.S.C. 607(b) )" and inserting "( 41 U.S.C. 607(d) )" and in subsec. (c)(2)(A) by inserting "of 1978" after "Contract Disputes Act". Section 607(d) of former Title 41 was amended by adding at the end "Notwithstanding any other provision of this section and any other provision of law, an appeal from a decision of a contracting officer of the Central Intelligence Agency relative to a contract made by that Agency may be filed with whichever of the Armed Services Board of Contract Appeals or the Civilian Board of Contract Appeals is specified by such contracting officer as the Board to which such an appeal may be made and such Board shall have jurisdiction to decide that appeal."