33.211 Contracting officer’s decision
Source: FAR 33.211 on acquisition.gov
FAR 33.211 requires contracting officers to issue timely, well-documented decisions on contract claims, outlining appeal rights and ensuring contractors are informed of their options and deadlines.
Overview
FAR 33.211 outlines the procedures and requirements for contracting officers when issuing a final decision on a claim by or against a contractor. This section ensures that claims are handled fairly, timely, and with proper documentation, providing contractors with clear guidance on their rights and appeal options.
Key Rules
- Written Decision Requirement
- Contracting officers must issue a written decision on claims, including a description of the dispute, references to contract terms, factual agreements/disagreements, rationale, and appeal rights.
- Notification and Delivery
- The decision must be sent to the contractor by certified mail or another method that provides evidence of receipt.
- Timeliness
- Decisions must be issued within 60 days for claims of $100,000 or less (if requested), or within a reasonable time. For claims over $100,000, a decision or notification of delay must be provided within 60 days.
- Defective Certification
- No obligation to decide claims over $100,000 with defective certification if the contractor is notified of the defect within 60 days.
- Appeal Rights
- Contractors may appeal to the agency board of contract appeals or the U.S. Court of Federal Claims, with specific procedures and deadlines outlined in the decision letter.
- Deemed Denial
- Failure to issue a decision within required timeframes is considered a denial, allowing the contractor to appeal.
- Payment of Amounts Due
- Amounts determined payable should be paid promptly, without prejudice to appeal rights.
Responsibilities
- Contracting Officers: Must review claims, coordinate with advisors, issue timely and complete written decisions, notify contractors, and process payments as appropriate.
- Contractors: Must submit claims with proper certification, respond to notifications, and follow appeal procedures if disputing the decision.
- Agencies: Ensure oversight of the claims process and compliance with statutory timeframes.
Practical Implications
- This section ensures transparency, fairness, and due process in resolving contract disputes. Contractors must be aware of strict timelines and documentation requirements to preserve their rights. Delays or errors in certification can impact the resolution process, and failure to act within deadlines can result in automatic denial of claims.
(a) When a claim by or against a contractor cannot be satisfied or settled by mutual agreement and a decision on the claim is necessary, the contracting officer shall-
(1) Review the facts pertinent to the claim;
(2) Secure assistance from legal and other advisors;
(3) Coordinate with the contract administration officer or contracting office, as appropriate; and
(4) Prepare a written decision that shall include-
(i) A description of the claim or dispute;
(ii) A reference to the pertinent contract terms;
(iii) A statement of the factual areas of agreement and disagreement;
(iv) A statement of the contracting officer’s decision, with supporting rationale;
(v) Paragraphs substantially as follows:
"This is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number.
With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s-
(1) Small claim procedure for claims of $50,000 or less or, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less; or
(2) Accelerated procedure for claims of $100,000 or less.
Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7102(d)&num=0&edition=prelim" target="_blank">41 U.S.C. 7102(d), regarding Maritime Contracts) within 12 months of the date you receive this decision"; and
(vi) Demand for payment prepared in accordance with 32.604 and 32.605 in all cases where the decision results in a finding that the contractor is indebted to the Government.
(b) The contracting officer shall furnish a copy of the decision to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt. This requirement shall apply to decisions on claims initiated by or against the contractor.
(c) The contracting officer shall issue the decision within the following statutory time limitations:
(1) For claims of $100,000 or less, 60 days after receiving a written request from the contractor that a decision be rendered within that period, or within a reasonable time after receipt of the claim if the contractor does not make such a request.
(2) For claims over $100,000, 60 days after receiving a certified claim; provided, however, that if a decision will not be issued within 60 days, the contracting officer shall notify the contractor, within that period, of the time within which a decision will be issued.
(d) The contracting officer shall issue a decision within a reasonable time, taking into account-
(1) The size and complexity of the claim;
(2) The adequacy of the contractor’s supporting data; and
(3) Any other relevant factors.
(e) The contracting officer shall have no obligation to render a final decision on any claim exceeding $100,000 which contains a defective certification, 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.
(f) In the event of undue delay by the contracting officer in rendering a decision on a claim, the contractor may request the tribunal concerned to direct the contracting officer to issue a decision in a specified time period determined by the tribunal.
(g) Any failure of the contracting officer to issue a decision within the required time periods will be deemed a decision by the contracting officer denying the claim and will authorize the contractor to file an appeal or suit on the claim.
(h) The amount determined payable under the decision, less any portion already paid, should be paid, if otherwise proper, without awaiting contractor action concerning appeal. Such payment shall be without prejudice to the rights of either party.