33.205 Relationship of the Disputes statute to Pub. L.85-804
Source: FAR 33.205 on acquisition.gov
Claims for contract rescission or reformation must first be processed under the Disputes statute before seeking extraordinary relief under Pub. L. 85-804, with legal counsel involvement required for complex decisions.
Overview
FAR 33.205 clarifies the relationship between the Contract Disputes statute (and the Disputes clause at 52.233-1) and Public Law 85-804, which provides for extraordinary contractual relief. Requests for relief under Pub. L. 85-804 are not considered claims under the Disputes statute and must be processed separately under FAR Subpart 50.1. However, remedies such as rescission or reformation for mutual mistake, previously only available under Pub. L. 85-804, can now be addressed by contracting officers under the Disputes statute. Contracting officers must seek legal advice when authority is unclear and must issue written decisions, with legal counsel, on complex claims. If a claim is denied under the Disputes statute, it may then be considered under Pub. L. 85-804, but only after the Disputes process is exhausted and if no other legal remedy exists.
Key Rules
- Requests under Pub. L. 85-804
- Not considered claims under the Disputes statute; must be processed under FAR Subpart 50.1.
- Rescission or Reformation Claims
- Now handled by contracting officers under the Disputes statute, with legal counsel involvement.
- Exhaustion of Disputes Process
- Claims must first be submitted under the Disputes statute before seeking relief under Pub. L. 85-804.
Responsibilities
- Contracting Officers: Determine proper authority, seek legal advice, issue written decisions with legal counsel, and ensure claims are processed in the correct order.
- Contractors: Submit claims for rescission or reformation under the Disputes statute first; only seek Pub. L. 85-804 relief if denied and no other remedy exists.
- Agencies: Provide legal support and ensure compliance with both statutes.
Practical Implications
- Ensures claims are processed under the correct authority and sequence, reducing confusion and improper filings.
- Contractors must understand which statute applies to their claim and follow the correct process.
- Legal complexity requires careful documentation and legal review, especially for rescission or reformation claims.
(a) Requests for relief under Public Law85-804 (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section1431&num=0&edition=prelim" target="_blank">50 U.S.C. 1431-http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section1435&num=0&edition=prelim" target="_blank">1435) are not claims within the Disputes statute or the Disputes clause at 52.233-1, Disputes, and shall be processed under subpart 50.1, Extraordinary Contractual Actions. However, relief formerly available only under Public Law85-804; i.e., legal entitlement to rescission or reformation for mutual mistake, is now available within the authority of the contracting officer under the Contract Disputes statute and the Disputes clause. In case of a question whether the contracting officer has authority to settle or decide specific types of claims, the contracting officer should seek legal advice.
(b) A contractor’s allegation that it is entitled to rescission or reformation of its contract in order to correct or mitigate the effect of a mistake shall be treated as a claim under the Disputes statute. A contract may be reformed or rescinded by the contracting officer if the contractor would be entitled to such remedy or relief under the law of Federal contracts. Due to the complex legal issues likely to be associated with allegations of legal entitlement, contracting officers shall make written decisions, prepared with the advice and assistance of legal counsel, either granting or denying relief in whole or in part.
(c) A claim that is either denied or not approved in its entirety under paragraph (b) of this section may be cognizable as a request for relief under Public Law85-804 as implemented by subpart 50.1. However, the claim must first be submitted to the contracting officer for consideration under the Disputes statute because the claim is not cognizable under Public Law85-804, as implemented by subpart 50.1, unless other legal authority in the agency concerned is determined to be lacking or inadequate.