§ 4-50.104 Decisions by contracting offi

cer.

§ 4-50.104-1 General.

(a) Except as may be otherwise specifically provided in a contract, any dispute concerning a question of fact arising under a contract which is not disposed of by agreement shall be decided by the contracting officer who shall reduce his decision to writing and mail by certified mail, return receipt requested, or otherwise furnish a copy thereof, to the contractor. Such decisions shall be made in the format prescribed in § 4-50.104-2.

(b) Before making his decision, the contracting officer shall consider such oral or written argument or evidence as the contractor presents and shall conduct such investigation as may be necessary to ascertain the facts and shall appropriately document the findings. The advice and assistance of the Office of General Counsel and Office of Operations and Finance should be requested whenever disputes involve complicated questions of fact or involve questions of law. Law questions may be considered in making the decision when necessary to a complete adjudication of the claim although any decision on a question of law cannot be final.

(c) For the purposes of the contracting officer's Findings and Decision, the following definitions apply:

(1) A "fact" is an occurrence or an event.

(2) "Evidence" is any material tending to prove or disprove a fact.

(3) "Finding" is the conclusion reached after the examination or consideration of the facts.

(4) "Decision" is the judgment or answer rendered.

(d) Where questions of fact are in dispute, each question or issue raised in the contractor's claim should be separately considered in the findings and a decision made on each individual issue before a summary decision is reached on the over-all claim. It is extremely important that there be no misunderstanding as to the specific points at issue. Where the claim is not clear, the contracting officer should request a clarification as to what

points are at issue prior to his analysis of the claim.

[29 FR 14344, Oct. 16, 1964, as amended at 42 FR 31454, June 21, 1977]

§ 4-50.104-2 Format.

(Letterhead)

(Date)

CONTRACTING OFFICER'S FINDINGS AND
DECISION

Introduction. The introduction consists of a complete description of the project by name, description, and location, the contractor's name and address, dollar amount of the contract, the contract number, and the name and address of the Contracting Offi

cer.

Contractor's Claim. State the amount the contractor is claiming (in dollars and cents and/or in time) and briefly state the reasons presented by the contractor as a basis for the claim. Attach a copy of the claim as an exhibit. The purpose of this statement before continuing with the Findings is to indicate at the outset exactly what the overall claim or dispute involves.

Findings. Each specific issue that can be handled separately from other issues in the claim should be given a claim number and descriptive title for ready identification and correlated with the attached copy of the claim. Similarly, where issues cannot be logically considered separately, they should be grouped together under a descriptive title and claim number. Each claim should then be dealt with to completion as indicated below before the next is introduced.

(a) Contract Requirements. Include all contract provisions and specifications that are applicable in resolving each of the points at issue. In the interest of brevity and avoiding repetition, it is usually desirable to make references to exhibits or to footnotes rather than quoting the entire provision or specification. Direct quotations may be used when necessary for clarity or emphasis.

(b) Facts. A narrative recitation of the evidence and all facts of performance pertaining to the issue must be made. Material needed to prepare the narrative may be obtained from many sources such as, but not limited to, records or any other evidence submitted by the contractor; statements from expert witnesses or persons with knowledge of the issue in dispute; job diaries, engineers' field books, time and payroll records, suppliers' delivery records, contract modifications, etc. If statements are obtained from persons with knowledge of the issue in dispute, it is preferable that they be in the form of affidavits. These may be attached as exhibits and referenced in appro

priate places, or direct quotations from the exhibits may be included if necessary for clarity or emphasis.

(c) Analysis. Each issue raised by the contractor must be weighed against the contract requirements and the facts. The results of this analysis constitute the contracting officer's finding on the claim.

Decision of the Contracting Officer. Each analysis of the issues is the basis for a respective portion of the decision. If neither additional payment or performance is allowed, so indicate. If additional payment and/or performance time is allowed, itemize the basis therefor and show the totals for the entire claim. Conclude the decision with the following paragraph as required by § 11.318:

"This decision is made in accordance with the Disputes clause and shall be final and conclusive as provided therein, unless, within thirty days from the date of receipt of this decision, a written notice of appeal addressed to the Secretary of Agriculture is mailed or otherwise furnished to the Contracting Officer. The notice of appeal, which is to be designed by you as the contractor or by an attorney acting on your behalf, and which may be in letter form, should indicate that an appeal is intended, should refer to this decision and should identify the contract by number. The notice of appeal may include a statement of the reasons why the decision is considered to be erroneous."

Agriculture. All necessary information concerning appeals, including contents of notice of appeal, filing requirements, and receipt and transmittal requirements for the contracting officer, is set forth in Title 7, Code of Federal Regulations, Part 24. (See § 4-52.506 of this chapter.)

[33 FR 17917, Dec. 3, 1968, as amended at 42 FR 31454, June 21, 1977]

§ 4-50.202 Board of Contract Appeals.

The organization, functions, and rules of procedure of the Board of Contract Appeals, Department of Agriculture, are set forth in Title 7, Code of Federal Regulations, Part 24. (See § 4-52.506.)

[39 FR 44203, Dec. 23, 1974. Redesignated at 42 FR 31454, June 21, 1977]

§ 4-50.203 Request by contracting officer for hearing.

If a hearing is not requested by the contractor, the contracting officer may request that a hearing be held by forwarding such a request in writing to the Board.

[33 FR 17917, Dec. 3, 1968. Redesignated at 42 FR 31454, June 21, 1977]

§ 4-50.204 Releases to contractors.

It is not standard procedure in the usual contracting operations of this Department to execute final releases to the contractors upon conclusion of contracts. However, in any case where such a release or other contractual instrument waiving the Government's right to further claims is to be executed as a result of a decision of a Board of Contract Appeals, there shall be included a statement as follows:

This document is not binding if later found to be in violation of the standards set forth in the Wunderlich Act. (41 U.S.C. 321). [33 FR 17917, Dec. 3, 1968. Redesignated and amended at 42 FR 31454, June 21, 1977]