2024: The FAR - Federal Acquisition Regulations, Part 33

Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos

1. 2024 Webinar Series The FAR: Federal Acquisition Regulations Understand the rules of the federal contracting game - and play to win ! J Schaus & Associates, WASHINGTON DC – [email protected]

2. 2024 Webinar Series THE FAR ABOUT THE SERIES : We’ll cover each PART of THE FAR Typically held Wednesdays and Fridays, 12pm Complimentary Recorded Video Posted on YouTube https://www.youtube.com/@jenniferschaus/videos PPT Posted on SlideShare.net Sponsor/Advertising Options Available J Schaus & Associates, WASHINGTON DC – [email protected]

3. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – [email protected]

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5. 2024 Webinar Series THE FAR ABOUT US: Services for FED GOV CONTRACTORS: Washington DC based; Professional services for established gov cons; Market Analysis to GSA Schedules; Contract Administration, etc. J Schaus & Associates, WASHINGTON DC – [email protected]

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9. TUESDAY, MAY 21 st 9-11am “GSA Schedules: The What, Why, How To - And Fine Print!” REGISTER: https://events.teams.microsoft.com/event/01d60a75-d77d-44d0-a501-9f74ff47c4ef@253e7787-672d-4071-9290-fc3db5246db7 TUESDAY, JUNE 4 th 9-11am “Federal Contractors Basic Marketing Guide” REGISTER: https://events.teams.microsoft.com/event/70f1a706-f1b3-46e1-9f88-d769e16075f3@253e7787-672d-4071-9290-fc3db5246db7 LIVE WEB BASED TRAINING

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13. 2024 Webinar Series - THE FAR THANK YOU TO OUR WEBINAR SPONSORS J Schaus & Associates, WASHINGTON DC – [email protected]

14. The FAR – Federal Acquisition Regulations - WEBINAR SERIES 2024 JSchaus & Associates – Washington DC – [email protected]

15. Full training calendar: virginiaptac.org & useful links Register for free counseling: https://virginiaptac.org/services/counseling/ Your “one stop” shop for Government Contracting assistance Reach us at [email protected] or 703-277-7750 This APEX Accelerator is funded in part through a cooperative agreement with the Department of Defense. Next Steps?

16. 2024 Webinar Series THE FAR THE FAR – PART 33 J Schaus & Associates, WASHINGTON DC – [email protected]

17. 2024 Webinar Series THE FAR FAR PART #33: Protests, Disputes, and Appeals SPEAKER: Maria Panichelli FIRM: McCarter & English EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

18. FAR Part 33 – Scope of Part Policies and procedures for: Subpart 33/1 – (Bid) Protests What is a Bid Protest? (v. Size/Status Protests) Subpart 33.2 – Disputes & Appeals (i.e. CDA Claims) What is a Claim? (v. REAs) J Schaus & Associates, WASHINGTON DC – [email protected]

19. SUBpart 33.1 - Protests J Schaus & Associates, WASHINGTON DC – [email protected]

20. Protests – General FAR 33.101 – Definitions Defines only five terms: “day,” “filed,” “interested party for the purposes of a protest,” and “Protest.” Other parts, subparts, and sections . . . may define other words or terms and those definitions only apply to the part . . . where the word or term is defined. J Schaus & Associates, WASHINGTON DC – [email protected]

21. Protests – General FAR 33.101 – Definitions What even is a Protest? Interested Party  Standing “Day” and “Filed” are important, because they may impact your filing deadline Protest Venue/Forum Choice – 3 Options (3 Bites at the Apple?) J Schaus & Associates, WASHINGTON DC – [email protected]

22. Protests – General FAR 33.102 – General Contracting Officers must consider all protests and seek legal advice Where solicitation, proposed award, or award doesn’t comply with requirements of law or regulation, head of the agency may take action recommended by GAO; pay appropriate costs Effect on obligation of funds Stay of contract performance (stay tuned…) Agency protest v. Government Accountability Office (GAO) Procurement integrity violations J Schaus & Associates, WASHINGTON DC – [email protected]

23. Protests – General J Schaus & Associates, WASHINGTON DC – [email protected]   Agency GAO COFC Suspension Of Procurement Automatic suspension if protest filed within 10 days of contract award or 5 days after receipt of requested and required debriefing Automatic suspension if protest filed within 10 days of contract award or 5 days after receipt of requested and required debriefing and GAO notifies agency within same time period Temporary Restraining Order and Preliminary Injunction (Always Discretionary) Discovery Rights Usually none “ Agency Report” includes relevant documents and factual/legal response to allegations raised in the protest Potentially significant discovery; at minimum, receipt of Agency’s administrative record Available Remedies Broad range of remedies available, depending on the allegations Full range of remedies available, plus protest costs and attorney’s fees Injunction or declaratory judgment; may award bid and proposal preparation costs Appeal Avenues No direct appeal, but a protest may be filed at GAO or COFC No direct appeal, but protestor may seek reconsideration within 10 days of decision or file protest at USCOFC Federal Circuit

24. Protests to the Agency FAR 33.103 Inexpensive, informal, procedurally simple, and expeditious resolution of protests Practical Advice/Opinion Required contents in subparagraph (d) Provides for independent review at a level above the Contracting Officer J Schaus & Associates, WASHINGTON DC – [email protected]

25. Protests to the Agency FAR 33.103 Deadlines Stays of Award/Performance DOES NOT EXTEND TIME FOR STAY AT GAO Aspirational 35 Days to Decision J Schaus & Associates, WASHINGTON DC – [email protected]

26. Protests to GAO FAR 33.104 Procedures at 4 CFR Part 21 control over FAR Part 33 Deadlines Interested Party Definitions (Day, Filed, Interested Party) Required contents Stays of Award/Performance Protective Orders J Schaus & Associates, WASHINGTON DC – [email protected]

27. Protests to GAO FAR 33.104 Contracting Officer required to submit Agency report to GAO. Agency report shall include copies of documents, as appropriate, and Contracting Officer’s signed statement of relevant facts May get a hearing, may not 100 Days Remedies Modification of the Solicitation Re-Evaluation of Proposals Re-Opening of Discussions Solicitation of Revised Proposals Contract Termination Bid and Proposal Costs Partial Recovery of Protest Costs J Schaus & Associates, WASHINGTON DC – [email protected]

28. Newer at the GAO: EPDS Electronic Protest Docketing System An automated case management system that allows parties to file documents over the Internet GAO will make electronic documents available to the parties over the Internet Use of EPDS is mandatory However, classified material must never be filed through EPDS J Schaus & Associates, WASHINGTON DC – [email protected]

29. Protests at the U.S. Court of Federal Claims FAR 33.105 Procedures set forth in rules of the U.S. Court of Federal Claims Much less popular No time limit for post-award protests May award declaratory and injunctive as well as monetary relief No automatic stay Least cost-effective Automatic transfer if 1 party goes this route J Schaus & Associates, WASHINGTON DC – [email protected]

30. Protests – Solicitations and Contract Clauses FAR 33.106 - Solicitation provision and contract clause FAR 52.233-2, Service of Protest In solicitations for contracts expected to exceed simplified acquisition threshold ($ 250K ) FAR 52.233-3, Protest After Award In all solicitations and contracts J Schaus & Associates, WASHINGTON DC – [email protected]

31. SUBpart 33.2 – disputes and appeals J Schaus & Associates, WASHINGTON DC – [email protected]

32. Disputes – General FAR 33.201 – Definitions Defines “Accrual of claim,” “Alternative Dispute Resolution,” “Defective Certification,” “Issue in Controversy.” “Accrual of a claim” - the date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known. For liability to be fixed, some injury must have occurred. However, monetary damages need not have been incurred. J Schaus & Associates, WASHINGTON DC – [email protected]

33. Disputes – General FAR 2.101: Claim means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under 41 U.S.C . chapter 71, Contract Disputes, until certified as required by the statute. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer as provided in 33.206(a), if it is disputed either as to liability or amount or is not acted upon in a reasonable time. J Schaus & Associates, WASHINGTON DC – [email protected]

34. Disputes – General FAR 33.202 – Disputes Contract Disputes Act of 1978 (“ CDA ”) – established procedures for handling “claims” relating to USG contracts 41 U.S.C . chapter 71 – Disputes statute establishes procedures and requirements for asserting and resolving claims subject to the Disputes statute Codification of CDA Also provides for: Payment of interest on contractor claims Certification of contractor claims Civil penalty for contractor claims that are fraudulent or based on a misrepresentation of fact J Schaus & Associates, WASHINGTON DC – [email protected]

35. Disputes – General FAR 33.203 – Applicability FAR Part 33 applies to any express or implied contract with USG covered by the FAR Doesn’t apply to contracts with a foreign government/international organization (if application of Disputes statute is not in the public interest) Applies to all disputes with respect to Contracting Officer decisions on matters “arising under” or “relating to” a contract J Schaus & Associates, WASHINGTON DC – [email protected]

36. Disputes Process: Anatomy of a Claim FAR 33.206 – Initiation of a Claim Contractor claims shall be submitted: In writing To the Contracting Officer for a decision Within 6 years after accrual of a claim Contracting Officer shall: Issue a written decision on any Government claim initiated against a contractor within 6 years after accrual of the claim J Schaus & Associates, WASHINGTON DC – [email protected]

37. Disputes Process: Anatomy of a Claim FAR 33.207 – Contractor Certification Contractor must provide certification in this provision when submitting any claim exceeding $100,000 “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.” Ensure that certification is executed by a person authorized to bind the contractor with respect to the claim J Schaus & Associates, WASHINGTON DC – [email protected]

38. Disputes Process: Anatomy of a Claim FAR 33.208 – Interest on Claims Government shall pay interest on a contractor’s claim on the amount found due and unpaid from the date that: The CO receives the claim; or Payment would otherwise be due, if that date is later, until the date of payment Simple interest at Treasury Rate applicable to the period during which the contracting officer receives the claim And then at the rate applicable for each 6-month period during pendency of the claim J Schaus & Associates, WASHINGTON DC – [email protected]

39. Disputes Process – Fraud FAR 33.209 – Suspected Fraudulent Claims Beware of submitting claims that misrepresent facts! Contracting Officer is required to refer the matter to the agency official responsible for investigating fraud J Schaus & Associates, WASHINGTON DC – [email protected]

40. Disputes Process: CO Authority FAR 33.210 – Contracting Officer’s Authority COs are authorized, within the limitations of their warrants, to decide or resolve all claims arising under or relating to a contract COs authorized to use ADR Authority to decide or resolve claims does not extend to: Claim for penalties or forfeitures prescribed by statute or regulation that another Federal agency is specifically authorized to administer, settle or determine; or Any claim involving fraud J Schaus & Associates, WASHINGTON DC – [email protected]

41. Disputes Process – COFD FAR 33.211 – Contracting Officer’s Decision When a claim cannot be settled by mutual agreement, Contracting Officer shall issue a final decision that conforms with the requirements of this clause Final decisions must include instructions for appealing the decision Decisions must be issued within statutory time limits For claims of $100,000 or less, 60 days after receiving a written request from the contractor that a decision be issued within 60 days For claims greater than $100,000, 60 days after receiving a certified claim If decision will not be issued within 60 days, CO shall notify the contractor, within that period, of the time within which a decision will be issued Government gets one shot to extend the deadline – after that, the claim is deemed denied and contractor can appeal J Schaus & Associates, WASHINGTON DC – [email protected]

42. Disputes Process: Post- COFD FAR 33.212 – Contracting Officer’s Duties Upon Appeal Consistent with any agency procedures, Contracting Officer shall provide data, documentation, information, and support as may be required by the agency Board of Contract Appeals for use on a pending appeal from the COFD J Schaus & Associates, WASHINGTON DC – [email protected]

43. Disputes Process: Post- COFD FAR 33.213 – Obligation to Continue Performance Contractors can be required to continue contract performance in accordance with the COFD pending final resolution of any claim If a claim arises not under, but relating to a contract, CO may consider providing financing of the continued performance J Schaus & Associates, WASHINGTON DC – [email protected]

44. Disputes Process – ADR FAR 33.214 – Alternate Dispute Resolution ( ADR ) Objective: provide for relatively inexpensive and expeditious resolution of issues in controversy If CO rejects a contractor’s request for ADR , they need to provide a written explanation justifying their rejection of the request ADR procedures may be used at any time that the Contracting Officer has authority to resolve the issue in controversy When ADR procedures are used subsequent to issuance of a COFD , their use does not alter any of the time limitations or procedural requirements for filing an appeal of the COFD and does not constitute a reconsideration of the final decision J Schaus & Associates, WASHINGTON DC – [email protected]

45. Disputes: Solicitations and Contract Clauses FAR 33.215 – Contract Clauses FAR 52.233-1, Disputes Unless conditions in 33.203(b) apply If it is determined under agency procedures that continued performance is necessary pending resolution of any claim arising under or relating to the contract, CO shall use clause with Alternate I FAR 52.233-4, Applicable Law for Breach of Contract Claim In all solicitations and contracts United States law applies J Schaus & Associates, WASHINGTON DC – [email protected]

46. 2024 Webinar Series THE FAR FAR PART #33: Protests, Disputes, and Appeals SPEAKER: Maria Panichelli FIRM: McCarter & English EMAIL: [email protected] J Schaus & Associates, WASHINGTON DC – [email protected]

47. 2024 Webinar Series THE FAR Please subscribe to our YouTube Channel for Gov Con Content Uploads including THESE WEBINARS! https://www.youtube.com/@jenniferschaus/videos J Schaus & Associates, WASHINGTON DC – [email protected]

48. 2024 Webinar Series The FAR: Federal Acquisition Regulations THANK YOU FOR JOINING US! J Schaus & Associates, WASHINGTON DC – [email protected]