32. Due Process

(A) Comment: A respondent stated that the rule denies a contractor due process and notification of alleged noncompliance by allowing the contracting officer to issue initial determinations prior to receiving all the facts, and giving the contractor only 30 days to respond. The respondent suggested that the contractor should be given 60 days from the initial determination that a significant deficiency exists to respond to the contracting officer, and also provide the contracting officer the flexibility to allow more than 60 days if deemed necessary.

Response: The rule provides adequate opportunities for communication between the contracting officer and the contractor prior to the implementation of payment withholds. The contractor will be notified of a preliminary finding of a deficiency during the course of formal system reviews and audits. This occurs before the auditor or functional specialist releases a report to the contractor and contracting officer. After receiving a report, the contracting officer will promptly evaluate and issue an initial determination. The contractor is then allowed 30 days to respond to any significant deficiencies. Contractors are given ample opportunity to present their position during system reviews. Accordingly, the requirement for a contractor to respond within 30 days of an initial determination is adequate. The rule does not preclude the contracting officer from granting a contractor additional time to respond should that be requested and warranted.

(B) Comment: A respondent stated that provisions in these clauses do not nullify rights under other contract clauses or due process actions. The respondent recommended adding the phrase "except for actions resolved under contract disputes" to the end of the sentence in DFARS 252.242-7005(d)(8).

Response: Nothing in the rule negates the contracting parties' rights and obligations under the Contract Disputes Act and disputes clause, the availability of other avenues of dispute resolution, or the entitlement to Contract Disputes Act interest on contractor claims. However, Prompt Payment Act interest entitlement is not intended in any event. Under these circumstances, a reference to disputes resolution in DFARS 252.242-7005(d)(8) is not needed.