41 U.S.C. § 7103 — Decision by contracting officer

Page 178 TITLE 41—PUBLIC CONTRACTS § 7103 (2) the procurement of services; (3) the procurement of construction, alter- ation, repair, or maintenance of real property; or (4) the disposal of personal property. (b) TENNESSEE VALLEY AUTHORITY CON- TRACTS.— (1) IN GENERAL.—With respect to contracts of the Tennessee Valley Authority, this chapter applies only to contracts containing a clause that requires contract disputes to be resolved through an agency administrative process. (2) EXCLUSION.—Notwithstanding any other provision of this chapter, this chapter does not apply to a contract of the Tennessee Valley Authority for the sale of fertilizer or electric power or related to the conduct or operation of the electric power system. (c) FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION CONTRACTS.—If an agency head determines that applying this chapter would not be in the public interest, this chapter does not apply to a contract with a foreign government, an agency of a foreign government, an inter- national organization, or a subsidiary body of an international organization. (d) MARITIME CONTRACTS.—Appeals under sec- tion 7107(a) of this title and actions brought under sections 7104(b) and 7107(b) to (f) of this title, arising out of maritime contracts, are gov- erned by chapter 309 or 311 of title 46, as applica- ble, to the extent that those chapters are not in- consistent with this chapter. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3817.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 7102(a)–(c) .. 41:602. Pub. L. 95–563, §§ 3, 4, Nov. 1, 1978, 92 Stat. 2383. 7102(d) ........ 41:603. In subsection (c), the words ‘‘an agency head’’ are substituted for ‘‘the head of the agency’’ for consist- ency with the defined term ‘‘agency head’’ in section 7101 of the revised title. In subsection (d), the words ‘‘chapter 309 or 311 of title 46’’ are substituted for ‘‘the Act of March 9, 1920, as amended (41 Stat. 525, as amended; 46 U.S.C. 741–752) or the Act of March 3, 1925, as amended (43 Stat. 1112, as amended; 46 U.S.C. 781–790)’’ in section 4 of the Con- tract Disputes Act of 1978 (Public Law 95–563, 92 Stat. 2384) because of section 18(c) of Public Law 109–304 (46 U.S.C. note prec. 101). § 7103. Decision by contracting officer (a) CLAIMS GENERALLY.— (1) SUBMISSION OF CONTRACTOR’S CLAIMS TO CONTRACTING OFFICER.—Each claim by a con- tractor against the Federal Government relat- ing to a contract shall be submitted to the contracting officer for a decision. (2) CONTRACTOR’S CLAIMS IN WRITING.—Each claim by a contractor against the Federal Government relating to a contract shall be in writing. (3) CONTRACTING OFFICER TO DECIDE FEDERAL GOVERNMENT’S CLAIMS.—Each claim by the Federal Government against a contractor re- lating to a contract shall be the subject of a written decision by the contracting officer. (4) TIME FOR SUBMITTING CLAIMS.— (A) IN GENERAL.—Each claim by a con- tractor against the Federal Government re- lating to a contract and each claim by the Federal Government against a contractor re- lating to a contract shall be submitted with- in 6 years after the accrual of the claim. (B) EXCEPTION.—Subparagraph (A) of this paragraph does not apply to a claim by the Federal Government against a contractor that is based on a claim by the contractor involving fraud. (5) APPLICABILITY.—The authority of this subsection and subsections (c)(1), (d), and (e) does not extend to a claim or dispute for pen- alties or forfeitures prescribed by statute or regulation that another Federal agency is spe- cifically authorized to administer, settle, or determine. (b) CERTIFICATION OF CLAIMS.— (1) REQUIREMENT GENERALLY.—For claims of more than $100,000 made by a contractor, the contractor shall certify that— (A) the claim is made in good faith; (B) the supporting data are accurate and complete to the best of the contractor’s knowledge and belief; (C) the amount requested accurately re- flects the contract adjustment for which the contractor believes the Federal Government is liable; and (D) the certifier is authorized to certify the claim on behalf of the contractor. (2) WHO MAY EXECUTE CERTIFICATION.—The certification required by paragraph (1) may be executed by an individual authorized to bind the contractor with respect to the claim. (3) FAILURE TO CERTIFY OR DEFECTIVE CER- TIFICATION.—A contracting officer is not obli- gated to render a final decision on a claim of more than $100,000 that is not certified in ac- cordance with paragraph (1) if, within 60 days after receipt of the claim, the contracting offi- cer notifies the contractor in writing of the reasons why any attempted certification was found to be defective. A defect in the certifi- cation of a claim does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a defective certification to be corrected. (c) FRAUDULENT CLAIMS.— (1) NO AUTHORITY TO SETTLE.—This section does not authorize an agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud. (2) LIABILITY OF CONTRACTOR.—If a con- tractor is unable to support any part of the contractor’s claim and it is determined that the inability is attributable to a misrepresen- tation of fact or fraud by the contractor, then the contractor is liable to the Federal Govern- ment for an amount equal to the unsupported part of the claim plus all of the Federal Gov- ernment’s costs attributable to reviewing the unsupported part of the claim. Liability under this paragraph shall be determined within 6 years of the commission of the misrepresenta- tion of fact or fraud. Page 179 TITLE 41—PUBLIC CONTRACTS § 7103 (d) ISSUANCE OF DECISION.—The contracting of- ficer shall issue a decision in writing and shall mail or otherwise furnish a copy of the decision to the contractor. (e) CONTENTS OF DECISION.—The contracting officer’s decision shall state the reasons for the decision reached and shall inform the contractor of the contractor’s rights as provided in this chapter. Specific findings of fact are not re- quired. If made, specific findings of fact are not binding in any subsequent proceeding. (f) TIME FOR ISSUANCE OF DECISION.— (1) CLAIM OF $100,000 OR LESS.—A contracting officer shall issue a decision on any submitted claim of $100,000 or less within 60 days from the contracting officer’s receipt of a written request from the contractor that a decision be rendered within that period. (2) CLAIM OF MORE THAN $100,000.—A con- tracting officer shall, within 60 days of receipt of a submitted certified claim over $100,000— (A) issue a decision; or (B) notify the contractor of the time with- in which a decision will be issued. (3) GENERAL REQUIREMENT OF REASONABLE- NESS.—The decision of a contracting officer on submitted claims shall be issued within a rea- sonable time, in accordance with regulations prescribed by the agency, taking into account such factors as the size and complexity of the claim and the adequacy of information in sup- port of the claim provided by the contractor. (4) REQUESTING TRIBUNAL TO DIRECT ISSUANCE WITHIN SPECIFIED TIME PERIOD.—A contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer. (5) FAILURE TO ISSUE DECISION WITHIN RE- QUIRED TIME PERIOD.—Failure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a de- cision by the contracting officer denying the claim and authorizes an appeal or action on the claim as otherwise provided in this chap- ter. However, the tribunal concerned may, at its option, stay the proceedings of the appeal or action to obtain a decision by the con- tracting officer. (g) FINALITY OF DECISION UNLESS APPEALED.— The contracting officer’s decision on a claim is final and conclusive and is not subject to review by any forum, tribunal, or Federal Government agency, unless an appeal or action is timely commenced as authorized by this chapter. This chapter does not prohibit an executive agency from including a clause in a Federal Govern- ment contract requiring that, pending final de- cision of an appeal, action, or final settlement, a contractor shall proceed diligently with per- formance of the contract in accordance with the contracting officer’s decision. (h) ALTERNATIVE MEANS OF DISPUTE RESOLU- TION.— (1) IN GENERAL.—Notwithstanding any other provision of this chapter, a contractor and a contracting officer may use any alternative means of dispute resolution under subchapter IV of chapter 5 of title 5, or other mutually agreeable procedures, for resolving claims. All provisions of subchapter IV of chapter 5 of title 5 apply to alternative means of dispute resolution under this subsection. (2) CERTIFICATION OF CLAIM.—The contractor shall certify the claim when required to do so under subsection (b)(1) or other law. (3) REJECTING REQUEST FOR ALTERNATIVE DIS- PUTE RESOLUTION.— (A) CONTRACTING OFFICER.—A contracting officer who rejects a contractor’s request for alternative dispute resolution proceedings shall provide the contractor with a written explanation, citing one or more of the condi- tions in section 572(b) of title 5 or other spe- cific reasons that alternative dispute resolu- tion procedures are inappropriate. (B) CONTRACTOR.—A contractor that re- jects an agency’s request for alternative dis- pute resolution proceedings shall inform the agency in writing of the contractor’s specific reasons for rejecting the request. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3817.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 7103(a)(1) .... 41:605(a) (1st sen- tence related to submission). Pub. L. 95–563, §§ 5, 6(a) (1st, 2d, 5th–last sentences), (b), (c)(3), (5), Nov. 1, 1978, 92 Stat. 2384, 2385. 7103(a)(2) .... 41:605(a) (1st sen- tence related to writing require- ment). 7103(a)(3) .... 41:605(a) (2d sen- tence). 7103(a)(4)(A) 41:605(a) (3d sen- tence). Pub. L. 95–563, § 6(a) (3d, 4th sentences), Nov. 1, 1978, as added Pub. L. 103–355, title II, § 2351(a)(1), Oct. 13, 1994, 108 Stat. 3322, amended Pub. L. 104–106, div. D, title XLIII, § 4321(a)(6), Feb. 10, 1996, 110 Stat. 671. 7103(a)(4)(B) 41:605(a) (4th sen- tence). 7103(a)(5) .... 41:605(a) (8th sen- tence). 7103(b)(1) .... 41:605(c)(1) (last sen- tence). Pub. L. 95–563, § 6(c)(1) (last sentence), Nov. 1, 1978, 92 Stat. 2385; Pub. L. 102–572, title IX, § 907(a)(1)(A), Oct. 29, 1992, 106 Stat. 4518; Pub. L. 103–355, title II, § 2351(b), Oct. 13, 1994, 108 Stat. 3322. 7103(b)(2) .... 41:605(c)(7). Pub. L. 95–563, § 6(c)(6), (7), as added Pub. L. 102–572, title IX, § 907(a)(1)(B), Oct. 29, 1992, 106 Stat. 4518. 7103(b)(3) .... 41:605(c)(6). 7103(c)(1) .... 41:605(a) (last sen- tence). 7103(c)(2) .... 41:604. 7103(d) ........ 41:605(a) (5th sen- tence). 7103(e) ........ 41:605(a) (6th, 7th sentences). 7103(f)(1) .... 41:605(c)(1) (1st sen- tence). Pub. L. 95–563, § 6(c)(1) (1st sentence), (2), Nov. 1, 1978, 92 Stat. 2385; Pub. L. 103–355, title II, § 2351(b), Oct. 13, 1994, 108 Stat. 3322. 7103(f)(2) .... 41:605(c)(2). 7103(f)(3) .... 41:605(c)(3). 7103(f)(4) .... 41:605(c)(4). Pub. L. 95–563, § 6(c)(4), Nov. 1, 1978, 92 Stat. 2385; Pub. L. 103–355, title II, § 2351(e), Oct. 13, 1994, 108 Stat. 3322. 7103(f)(5) .... 41:605(c)(5). 7103(g) ........ 41:605(b). Page 180 TITLE 41—PUBLIC CONTRACTS § 7104 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 7103(h)(1) .... 41:605(d) (1st, last sentences). Pub. L. 95–563, § 6(d) (1st, last sentences), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2745, 2746; Pub. L. 104–106, div. D, title XLIII, § 4322(b)(6), Feb. 10, 1996, 110 Stat. 677; Pub. L. 105–85, div. A, title X, § 1073(g)(3), Nov. 18, 1997, 111 Stat. 1906. 7103(h)(2) .... 41:605(d) (2d sen- tence). Pub. L. 95–563, § 6(d) (2d sen- tence), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2745; Pub. L. 104–320, § 6(1), Oct. 19, 1996, 110 Stat. 3871. 7103(h)(3)(A) 41:605(e) (1st sen- tence). Pub. L. 95–563, § 6(e), as added Pub. L. 101–552, § 6(a), Nov. 15, 1990, 104 Stat. 2746; Pub. L. 103–355, title II, § 2352, Oct. 13, 1994, 108 Stat. 3322; Pub. L. 104–106, div. D, title XLIII, §§ 4321(a)(7), 4322(b)(6), Feb. 10, 1996, 110 Stat. 671, 677; Pub. L. 104–320, § 6(2), Oct. 19, 1996, 110 Stat. 3871; Pub. L. 105–85, div. A, title X, § 1073(g)(3), Nov. 18, 1997, 111 Stat. 1906. 7103(h)(3)(B) 41:605(e) (last sen- tence). In subsection (b)(1)(D) and (2), the word ‘‘duly’’ is omitted as unnecessary. In subsection (b)(3), the words ‘‘of contract appeals’’ are omitted as unnecessary because of the definition of ‘‘agency board’’ in section 7101 of the revised title. In subsection (c)(2), the words ‘‘this subsection’’, which appear in section 5 of the Contract Disputes Act of 1978 (Pub. L. 95–563, 92 Stat. 2384), and which were probably intended to mean ‘‘this section’’, are trans- lated as ‘‘this paragraph’’ in accordance with the prob- able intent of Congress. In subsection (f)(5), the words ‘‘the commencement of’’ are omitted as unnecessary. The words ‘‘of the ap- peal or action’’ are substituted for ‘‘in the event an ap- peal or suit is so commenced in the absence of a prior decision by the contracting officer’’ to eliminate un- necessary words. § 7104. Contractor’s right of appeal from decision by contracting officer (a) APPEAL TO AGENCY BOARD.—A contractor, within 90 days from the date of receipt of a con- tracting officer’s decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title. (b) BRINGING AN ACTION DE NOVO IN FEDERAL COURT.— (1) IN GENERAL.—Except as provided in para- graph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regu- lation, or rule of law to the contrary. (2) TENNESSEE VALLEY AUTHORITY.—In the case of an action against the Tennessee Valley Authority, the contractor may only bring an action directly on the claim in a district court of the United States pursuant to section 1337 of title 28, notwithstanding any contract pro- vision, regulation, or rule of law to the con- trary. (3) TIME FOR FILING.—A contractor shall file any action under paragraph (1) or (2) within 12 months from the date of receipt of a con- tracting officer’s decision under section 7103 of this title. (4) DE NOVO.—An action under paragraph (1) or (2) shall proceed de novo in accordance with the rules of the appropriate court. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3820.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 7104(a) ........ 41:606. Pub. L. 95–563, § 7, Nov. 1, 1978, 92 Stat. 2385. 7104(b) ........ 41:609(a). Pub. L. 95–563, § 10(a), Nov. 1, 1978, 92 Stat. 2388; Pub. L. 97–164, title I, § 161(10), Apr. 2, 1982, 96 Stat. 49. In subsection (a), the words ‘‘of contract appeals’’ are omitted as unnecessary because of the definition of ‘‘agency board’’ in section 7101 of the revised title. In subsection (b)(1), the words ‘‘United States Court of Federal Claims’’ are substituted for ‘‘United States Claims Court’’ because of section 902(b)(1) of the Fed- eral Courts Administration Act of 1992 (Pub. L. 102–572, 106 Stat. 4516, 28 U.S.C. 171 note). § 7105. Agency boards (a) ARMED SERVICES BOARD.— (1) ESTABLISHMENT.—An Armed Services Board of Contract Appeals may be established within the Department of Defense when the Secretary of Defense, after consultation with the Administrator, determines from a work- load study that the volume of contract claims justifies the establishment of a full-time agen- cy board of at least 3 members who shall have no other inconsistent duties. Workload studies will be updated at least once every 3 years and submitted to the Administrator. (2) APPOINTMENT OF MEMBERS AND COMPENSA- TION.—Members of the Armed Services Board shall be selected and appointed in the same manner as administrative law judges ap- pointed pursuant to section 3105 of title 5, with an additional requirement that members must have had at least 5 years of experience in pub- lic contract law. The Secretary of Defense shall designate the chairman and vice chair- man of the Armed Services Board from among the appointed members. Compensation for the chairman, vice chairman, and other members shall be determined under section 5372a of title 5. (b) CIVILIAN BOARD.— (1) ESTABLISHMENT.—There is established in the General Services Administration the Civil- ian Board of Contract Appeals. (2) MEMBERSHIP.— (A) ELIGIBILITY.—The Civilian Board con- sists of members appointed by the Adminis- trator of General Services (in consultation with the Administrator for Federal Procure- ment Policy) from a register of applicants maintained by the Administrator of General Services, in accordance with rules issued by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) for estab- lishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services shall appoint a member without re-