52.233-3 Protest after Award
Source: FAR 52.233-3 on acquisition.gov
FAR 52.233-3 requires contractors to immediately comply with stop-work orders issued after a protest and provides mechanisms for cost recovery and government reimbursement if the protest is sustained due to contractor fault.
Overview
FAR 52.233-3, Protest after Award, outlines the procedures and obligations for both contractors and contracting officers when a protest is filed after contract award. The clause allows the contracting officer to issue a stop-work order if a protest is received or anticipated, requiring the contractor to halt work and minimize costs. Depending on the outcome of the protest, the stop-work order may be canceled (with work resuming and possible equitable adjustments) or the work may be terminated under the contract’s termination clauses. The clause also addresses cost recovery for contractors in the event of termination and holds contractors financially responsible if a protest is sustained due to their misrepresentation or misstatement. Alternate I modifies the adjustment language for cost-reimbursement contracts.
Key Rules
- Stop-Work Order Upon Protest
- Contracting officers may issue a stop-work order if a protest is filed or likely, and contractors must immediately comply and minimize costs.
- Resumption and Adjustment
- If the stop-work order is canceled, contractors resume work and may request equitable adjustment to schedule or price if costs or time increased.
- Termination Procedures
- If work is terminated, reasonable costs from the stop-work order are considered in the settlement, whether for convenience or default.
- Contractor Liability for Protest Costs
- Contractors may be required to reimburse the government for protest costs if the protest is sustained due to their misrepresentation.
Responsibilities
- Contracting Officers: Issue and manage stop-work orders, determine protest outcomes, process equitable adjustments, and enforce contractor liability for protest costs.
- Contractors: Immediately comply with stop-work orders, minimize costs, assert rights to adjustments within 30 days, and reimburse protest costs if at fault.
- Agencies: Oversee protest procedures and ensure compliance with FAR requirements.
Practical Implications
- This clause ensures orderly handling of protests after award, protecting government interests and providing a process for contractors to recover costs. Contractors must be vigilant in responding to stop-work orders and documenting costs. Failure to comply or misrepresent facts can result in financial penalties and offsets against future payments.
As prescribed in 33.106(b), insert the following clause:
Protest after Award (Aug 1996)
(a) Upon receipt of a notice of protest (as defined in FAR 33.101) or a determination that a protest is likely (see FAR 33.102(d)), the Contracting Officer may, by written order to the Contractor, direct the Contractor to stop performance of the work called for by this contract. The order shall be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stop-page. Upon receipt of the final decision in the protest, the Contracting Officer shall either-
(1) Cancel the stop-work order; or
(2) Terminate the work covered by the order as provided in the Default, or the Termination for Convenience of the Government, clause of this contract.
(b) If a stop-work order issued under this clause is canceled either before or after a final decision in the protest, the Contractor shall resume work. The Contracting Officer shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly, if-
(1) The stop-work order results in an increase in the time required for, or in the Contractor’s cost properly allocable to, the performance of any part of this contract; and
(2) The Contractor asserts its right to an adjustment within 30 days after the end of the period of work stoppage; provided, that if the Contracting Officer decides the facts justify the action, the Contracting Officer may receive and act upon a proposal at any time before final payment under this contract.
(c) If a stop-work order is not canceled and the work covered by the order is terminated for the convenience of the Government, the Contracting Officer shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.
(d) If a stop-work order is not canceled and the work covered by the order is terminated for default, the Contracting Officer shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.
(e) The Government’s rights to terminate this contract at any time are not affected by action taken under this clause.
(f) If, as the result of the Contractor’s intentional or negligent misstatement, misrepresentation, or miscertification, a protest related to this contract is sustained, and the Government pays costs, as provided in FAR 33.102(b)(2) or 33.104(h)(1), the Government may require the Contractor to reimburse the Government the amount of such costs. In addition to any other remedy available, and pursuant to the requirements of subpart 32.6, the Government may collect this debt by offsetting the amount against any payment due the Contractor under any contract between the Contractor and the Government.
(End of clause)
Alternate I (June1985). As prescribed in 33.106 (b), substitute in paragraph (a)(2) the words "the Termination clause of this contract" for the words "the Default, or the Termination for Convenience of the Government clause of this contract." In paragraph (b) substitute the words "an equitable adjustment in the delivery schedule, the estimated cost, the fee, or a combination thereof, and in any other terms of the contract that may be affected" for the words "an equitable adjustment in the delivery schedule or contract price, or both."