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period 1967–1971 in 13 Federal agencies. Information concerning award protests was furnished by the General Accounting Office.
The discussion of contractual fairness and special management powers under Public Law 85–804 in Chapter 4 is based upon findings of a Special Task Force. Members of this task force were:
The analysis in Chapters 2 and 3 of the methods used to resolve disputes related to the performance and award of Government contracts is based primarily on a study conducted by our Study Group 4 (Legal Remedies). The group included attorneys and management personnel drawn from private industry, the Federal Government, the private bar, and the academic community. The study group members are listed in Appendix B of Part A.
Extensive data about both disputes-resolving systems were assembled. The study group conducted six public meetings, at various locations throughout the United States, that were attended by more than 250 individuals representing all parts of the procurement sector. Fifty-five formal presentations were made at the public meetings and other views were heard through open discussions between the audiences and members of the study group.
Additional data were collected through the use of questionnaires sent to Government agencies, large and small businesses, and the Commission's network of legal advisors. The study group also developed a profile of 2,800 contract disputes and appeals that occurred during the
Valentine B. Deale Private Practitioner
Chairman, AEC Board of
Contract Appeals Colonel Cecil Thomas Deputy General Counsel and Lakes
Command Staff Judge Advocate, Army Materiel
Command William Mitchell Private Practitioner and for
mer AEC General Counsel Ralph C. Nash, Jr. Professor of Law
Graduate Studies in Law
sity A previous study of Public Law 85–804, conducted by Professor Nash, Mr. Mitchell, and Mr. Deale for the Atomic Energy Commission, provided base material for use by the Task Force.
List of Recommendations
1. Make clear to the contractor the identity and authority of the contracting officer, and other designated officials, to act in connection with each contract.
2. Provide for an informal conference to review contracting officer decisions adverse to the contractor.
3. Retain multiple agency boards; establish minimum standards for personnel and caseload; and grant the boards subpoena and discovery powers.
4. Establish a regional small claims boards system to resolve disputes involving $25,000 or less.
5. Empower contracting agencies to settle and pay, and administrative forums to decide, all claims or disputes arising under or growing out of or in connection with the administration or performance of contracts entered into by the United States.
6. Allow contractors direct access to the Court of Claims and district courts.
7. Grant both the Government and contractors judicial review of adverse agency boards of contract appeals decisions. [Five Commissioners dissent.]
8. Establish uniform and relatively short time periods within which parties may seek judicial review of adverse decisions of administrative forums.
9. Modify the present court remand practice to allow the reviewing court to take additional evidence and make a final disposition of the case.
10. Increase the monetary jurisdictional
limit of the district courts to $100,000. [One Commissioner dissents.]
11. Pay interest on claims awarded by administrative and judicial forums.
12. Pay all court judgments on contract claims from agency appropriations if feasible.
13. Promulgate award protest procedures that adequately inform protestors of the steps that can be taken to seek review of administrative decisions in the contract award process.
14. Continue the General Accounting Office as an award protest-resolving forum. [One Commissioner dissents.]
15. Establish, through executive branch ard GAO cooperation, more expeditious and mandatory time requirements for processing protests through GAO.
16. Establish in the executive procurement regulations, in cooperation with the General Accounting Office, a coordinated requirement for high-level management review of any decision to award a contract while a protest is pending with GAO.
17. GAO should continue to recommend termination for convenience of the Government of improperly awarded contracts in appropriate instances.
18. Improve contracting agency debriefing procedures.
19. Establish a pre-award protest procedure in all contracting agencies.
20. Conduct periodic reviews by GAO of agency award protest procedures and practices. 21. Make authority presently conferred by Public Law 85–804 permanent authority.
22. Authorize use of Public Law 85–804 by all contracting agencies under regulations prescribed by the President.
23. Incorporate Public Law 85–804 into the primary procurement statute.
[One Commissioner dissents to recommendations 21–23.]
24. Revise existing requirements in Public Law 85–804 on reporting to Congress.