45. Contractor Appeals

Comment: One respondent recommended that when a contracting officer issues a final determination of a significant deficiency, the letter sent to the company should include language referring to the Contracts Disputes Act and what rights the contractor may have to appeal the contracting officer decision. According to the respondent, it is not clear that there is any appeal from the contracting officer's final decision, even though the decision may be completely in error. The respondent stated that the interim rule also does not address how such an appeal should be addressed by the contracting officer. It appears based on the Government comments to the interim rule that the Contracts Disputes Act of 1978 would apply to disputes over significant deficiencies in business systems. According to the respondent, it is not clear whether the final determination made by the contracting officer is subject to the appeals process outlined in FAR 33.211 or whether the contractor may have to certify and send a claim to the contracting officer to initiate the FAR part 33 process. The respondent suggested that this should be clarified in the final rule for the benefit of the Government and the contractors. Another respondent expressed concern that the appeals process in FAR 33.204 does not address the issue of the contracting officer having sole authority to implement the rule.

Response: Final determinations on the adequacy of the contractor's business systems under the rule are not contracting officer's final decisions for the purposes of the Contract Disputes Act of 1978 (CDA). Because the final determinations are not made in response to a claim submitted for a decision by a contractor against the Government related to a contract, they are not final decisions in accordance with the CDA. Further clarification in the rule of the disputes process or the rights the contractor may have under the CDA does not appear necessary.