known or should have been known, whichever is earlier.

(b) Filing of protests. (1) All solicitations, except those issued by the Office of Facilities, will instruct interested parties to deliver a copy of any GAO or GSBCA protest to the contracting officer and the Deputy Assistant Secretary for Acquisition and Materiel Management (93D), VA Central Office, 810 Vermont Avenue NW., Washington, DC 20420, by adding this requirement to its service of protest provision, FAR 52.233-2.

(2) An interested party may protest to the contracting officer, the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities (08), as appropriate.

(3) Protests must be in writing and addressed as follows:

(i) Contracting officer protests-address where offer/bid is to be submitted;

(ii) Deputy Assistant Secretary for Acquisition and Materiel Management (93B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; or

(iii) Deputy Assistant Secretary for Facilities (08), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

(4) A protest filed with any of the individuals identified in paragraph (b)(2) of this section will:

(i) Include the name, address and telephone number of the protester;

(ii) Identify the solicitation and/or contract number;

(iii) Set forth a detailed statement of the legal and factual grounds of the protest including copies of relevant documents;

(iv) Specifically request a ruling by the individual upon whom the protest is served; and

(v) State the form of relief requested.

(5) The protester shall furnish a copy of the protest, including relevant documents not issued by the contracting agency, to the individual or location designated by the contracting agency in the solicitation for receipt of protests. If there is no designation in the solicitation, the protester shall

furnish a copy of the protest to the contracting officer.

(6) No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise, logically arranged and clearly state legally sufficient grounds of protest. An agency protest, however, may be dismissed for failure to comply with any of the requirements of this section.

(7) Protests regarding certain issues may be dismissed by VA without consideration of the merits or forwarded to another agency for appropriate action. Among these protests are the following:

(i) Contract administration. The administration of an existing contract is within the discretion of the contracting agency. Disputes between a contractor and the Department are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613.

(ii) Small business size standards and standard industrial classification. Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification are for review solely by the Small Business Administration. 15 U.S.C. 637(b)(6); 13 CFR 121.3-6 (1984).

(iii) Small business certificate of competency program. Any referral made to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act, or any issuance of a certificate of competency or refusal to issue a certificate under such section is not reviewed in accordance with bid protest procedures absent a showing of possible fraud or bad faith on the part of Government officials.

(iv) Protests under section 8(a) of the Small Business Act. Since contracts are let under section 8(a) of the Small Business Act to the Small Business Administration at the contracting officer's discretion and on such terms as agreed upon by the procuring agency and the Small Business Administration, the decision to place or not to place a procurement under the 8(a) subcontract are not subject to review absent a showing of possible fraud or bad faith on the part of Government

officials or that regulations may have been violated. 15 U.S.C. 637(a).

(v) Affirmative determination of responsibility by the Contracting Officer. Because a determination that a bidder or offeror is capable of performing a contract is based in large measure on subjective judgments which generally are not readily susceptible to reasoned review, an affirmative determination of responsibility will not be reviewed, absent a showing that such determination was made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not met.

(vi) Procurement protested to the General Services Administration Board of Contract Appeals. Interested parties may protest a procurement or proposed procurement of automated data processing equipment and services to the General Services Administration Board of Contract Appeals. After a particular procurement or proposed procurement is protested to the Board, the procurement may not, while the protest is before the Board, be the subject of a protest to the contracting agency. An interested party who has filed a protest with the Board may not protest the same matter to the contracting agency. 40 U.S.C. 759(h), as amended by section 2713 of the Competition in Contracting Act of 1984, Pub. L. 98-369.

(vii) Protests not filed with the contracting agency within the time limits set forth in 833.103(a).

(viii) Walsh-Healey Public Contract Act. Challenges of the legal status of a firm as a regular dealer or manufacturer within the meaning of the Walsh-Healey Act is for determination solely by the procuring agency, the Small Business administration (if a small business is involved) and the Secretary of Labor. 41 U.S.C. 35-45.

(ix) Subcontractor protests. The contracting agency will not consider subcontractor protests except where the subcontract is by or for the Government.

(x) Judicial proceedings. The contracting agency will not consider protests where the matter involved is the subject of litigation before a court of competent jurisdiction.

(c) Answering protests. (1) On protests filed with the contracting officer, the contracting officer may make the determination identified in FAR 33.103(a). On protests filed with the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities (08), those individuals are authorized to make the determination identified in FAR 33.103(a). These determinations made under (a) and (b) of this section will be in writing and will be made part of the contract file.

(2) The individuals identified in paragraph (c)(1) of this section will respond to any protests within 25 workdays after receipt of the protest. Preaward protests must be answered prior to contract award. Any delays in answering the protest will be communicated to all interested parties.

(d) Letter to protester. When a protest has been lodged with the contracting officer and has been subsequently denied by the contracting officer, the letter to the protester along with copies to interested parties detailing the contracting officer's reasons for denying the protest will conclude with the following statement, naming the appropriate VA officials:

Should you disagree with this decision, you may file an appeal with 1 Any such appeal must be received within 10 working days after receipt of this letter. In the alternative, you may file an appeal with the General Accounting Office (GAO) at the following address: General Counsel, General Accounting Office, Washington, DC 20548, ATTN: Procurement Law Control Group. Any GAO appeal must be filed within 10 workdays of this formal notification of or actual or constructive knowledge of initial adverse agency action (as determined in 4 CFR 21.0(e)). It should be noted that if you file an appeal with the Deputy Assistant Secretary for Acquisition and Materiel Management or the Deputy Assistant Secretary for Facilities, you may waive your

'The Deputy Assistant Secretary for Acquisition and Materiel Management (93B), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420 or (for contracts awarded by the Office of Facilities), Deputy Assistant Secretary for Facilities (08), 811 Vermont Avenue, NW., Washington, DC 20420.

right of further appeal to the Comptroller General at a later date.

(e) Requests for GAO advance decisions. When a written protest has been lodged with the contracting officer and he/she considers it desirable to do so, he/she may request an advance decision from the Comptroller General. The submission to the Comptroller General will be sent through the Deputy Assistant Secretary for Acquisition and Materiel Management (93B) or the Deputy Assistant Secretary for Facilities, as appropriate, and will include the material indicated in FAR 33.104(a)(2). The contracting officer will notify the protesting individual or firm promptly in writing of the decision of the Comptroller General.

(f) Protect after award. When written protect is lodged with the contracting officer, he/she will review the basis for award.

(1) If the contracting officer determines that the award was proper, he/ she will furnish the protester a written explanation of the basis for the award which is responsive to the allegations of the protest. The contracting officer will advise the protester that he/she may appeal the determination to the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities in the case of a Central Office architect-engineer or construction contract, or the Comptroller General as specified in paragraph (d) of this section.

(2) If the contracting officer determines that the award is questionable, he/she will advise the contractor of the protest and invite him/her to submit his/her views and relevant information. At the same time, the contracting officer may seek to obtain a mutual agreement with the contractor to suspend performance on a no-cost basis or issue a stop-work order in accordance with contract clause, FAR 52.233-3, Protest After Award (July 1985). Whether or not the contractor agrees, the case will be submitted promptly to the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities, in the case of a Central Office architect-engineer or construction contract, who will

(a) General. (1) When a protest before or after award has been lodged with the General Accounting Office (GAO), the contracting officer will prepare a report to be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities (08), as appropriate, within 5 workdays after receipt of verbal notice of the protest or receipt of a copy of the protest, whichever occurs first, for preparation of the Department report. The report should include a copy of the documentation indicated in FAR 33.104(a)(2).

(2) Contracting officers are responsible for the notification procedures outlined in FAR 33.104(a)(3).

(b) Protests before award. When the Department has received notice from the GAO of a preaward protest filed directly with GAO, award shall not be made until the matter is resolved, unless the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities (08), as appropriate, approves the head of contracting activity findings required by FAR 33.104(b)(1) and GAO has been notified pursuant to FAR 33.104(b)(2).

(c) Protests after award. Protests after award shall be handled in a manner consistent with procedures identified for protests before award. Although persons involved or affected by the filing of a protest may be limited, at least the contractor shall be furnished the notice of the protest and its basis by the contracting officer. When VA receives from GAO, within ten calendar days after award, a notice of protest filed directly with GAO, and it is determined by the head of the contracting activity pursuant to FAR 33.104(c)(2) that contract performance should be authorized, the written find

ings will first be approved by the Deputy Assistant Secretary for Acquisition and Materiel Management (93B) (or the Deputy Assistant Secretary for Facilities, as appropriate), and the GAO must be notified as required by FAR 33.104(c)(3).

[51 FR 23070, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 52 FR 28560, July 31, 1987; 54 FR 40065, Sept. 29, 1989]

833.105 Protests to the GSBCA.

(a) Contracting officers are required to forward appropriate documentation to prepare the Department's protest file within 3 workdays after receipt of the notice of protest to the Deputy Assistant Secretary for Acquisition and Materiel Management (93B).

(b) Contracting officers are responsible for the notification procedures outlined in FAR 33.105(a)(2)(i). Confirmation of this notification process will be forwarded to the Deputy Assistant Secretary for Acquisition and Materiel Management (93B), or the Deputy Assistant Secretary for Facilities (08), as appropriate, within three workdays after receipt of the protest in order to comply with FAR 33.105(a)(2)(ii).

[51 FR 23070, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 52 FR 28559, July 31, 1987; 54 FR 40065, Sept. 29, 1989]

833.106 Solicitation provision.

The contracting officer shall insert the VAAR provision 852.233-2, Service of Protest (July 1985) (Deviation FAR 52.233-2) and VAAR provision 852.23370, Protest Content (June 1987) in all solicitations other than small purchases.

[52 FR 28561, July 31, 1987; 52 FR 32013, Aug. 25, 1987]

Subpart 833.2-Disputes and Appeals 833.209 Suspected fraudulent claims.

Matters relating to suspected fraudulent claims will be referred to the Assistant Inspector General, Office of Investigations (51) for investigation and referral to the Department of Justice. No collection, recovery or other settlement action will be initiated

while the matter is in the hands of the Department of Justice without first obtaining the concurrence of the U.S. Attorney concerned, through the Inspector General.

833.211 Contracting officer's decision.

(a) When a dispute cannot be settled by agreement and a final decision under the Disputes clause of the contract is necessary, the contracting officer shall furnish the contractor his/ her final decision in the matter.

(b) The decision must be identified as a final decision, be in writing, and include a statement of facts in sufficient detail to enable the contractor to fully understand the decision and the basis on which it was made. It will normally be in the form of a statement of the claim or other description of the dispute with necessary references to the pertinent contract provisions. It will set forth those facts relevant to the dispute, with which the contractor and the contracting officer are in agreement, and as clearly as possible, the area of disagreement.

(c) Except as provided in paragraph (d) of this section, the decision shall, in addition to the material required by FAR 33.211(a)(4), contain the following:

The Department of Veterans Affairs Board of Contract Appeals (VABCA) is the authorized representative of the Secretary for hearing and determining such disputes. The rules of the VABCA are published in section 1.783, of Title 38, Code of Federal Regulations. The address of the Board is 810 Vermont Avenue, NW., Washington, DC 20420.

(d) If the decision involves a contract entered into prior to the effective date of the Contracts Disputes Act of 1978, i.e., March 1, 1979, and the decision is on a claim which was pending before the contracting officer, or initiated thereafter, the decision shall contain the following:

The Department of Veterans Affairs Contract Appeals Board (VACAB) is the authorized representative for hearing such disputes. The rules of the VACAB are published in § 1.774, of Title 38, Code of Federal Regulations. The address of the Board is 810 Vermont Avenue, NW., Washington, DC 20420.

The appeal must be filed within 30 days of receipt of the final decision. Any request for an extension of the 30-day appeal period will be denied by the contracting officer. In the alternative, the contractor may elect to proceed under the Contract Disputes Act of 1978, 41 U.S.C. 601-613, in which case, you must within 90 days from the date you reIceive this decision, mail or otherwise furnish written notice to the Board of Contract Appeals and provide a copy to the contracting officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. Instead of appealing to the Board of Contract Appeals, you may bring an action directly in the U.S. Claims Court (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding Maritime Contracts) within 12 months of the date you receive this decision. If you appeal to the Board of Contract Appeals, you may, solely at your election, proceed under the Board's small claims procedure for claims of $10,000 or less or its accelerated procedure for claims of $50,000 or less.

(e) The contracting officer's final decison will be forwarded to the contractor by certified mail, return receipt requested.

[51 FR 23070, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 52 FR 28561, July 31, 1987; 54 FR 40065, Sept. 29, 1989]

833.212 Contracting officer's duties upon appeal.

(a) When a notice of appeal in any form has been received by the contracting officer, that officer will endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days, will forward said original notice of appeal and a copy of the contracting officer's final decision

letter to the Department of Veterans Affairs Board of Contract Appeals (VABCA). Copies of the notice of appeal and the final decision letter will be transmitted concurrently to the Deputy Assistant Secretary for Acquisition and Materiel Management (93) and the Assistant General Counsel (025). (In cases of construction contracts administered by the Office of Facilities, copies of appeal and final decision letter need not be transmitted to the Deputy Assistant Secretary for Acquisition and Materiel Management (93).)

(b) Within 20 days of receipt of an appeal, or advice that an appeal has been filed, the contracting officer will assemble and transmit to the VABCA, through the Office of General Counsel (025), an appeal file consisting of all documents pertinent to the appeal, including:

(1) The decision and findings of fact from which the appeal is taken; (2) The contract, including specifications and pertinent amendments, plans and drawings;

(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision issued;

was

(4) Transcripts of any testimony taken during the course of proceedings and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the VABC; and

(5) Any additional information considered pertinent.

[51 FR 23070, June 25, 1986; 51 FR 44179, Dec. 8, 1986, and 52 FR 28559, July 31, 1987]