PART 4-30-CONTRACT FINANCING Subpart 4-30.4—Advance Payments

Sec.

4-30.400 Scope of subpart.

4-30.406 Responsibility-delegation of au

thority.

Subpart 4-30.50-Special Contract Financing

Authorities

80.5001 Contracts with states. -30.5002

Contracts pursuant to the Research and Marketing Act of 1946, as amended, 7 U.S.C. 4271 and 1624.

AUTHORITY: The provisions of this Part 4-30 issued under 5 U.S.C. 301, 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 4-30 appear at 29 F.R. 14343, Oct. 16, 1964, unless otherwise noted.

Subpart 4-30.4-Advance Payments 84-30.400 Scope of subpart.

Subpart 1-30.4 shall apply only to those contracts of this Department executed pursuant to the authority of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 255). 84-30.406 Responsibility - delegation

of authority.

Heads of agencies or their designees are delegated the authority to make the determination to make advance payments pursuant to section 305 of the Act, based upon written findings which, in accordance with Section 307(c), shall be final and available within the agency for a period of at least six years following the date of the determination. Designees shall be responsible headquarters or field officials other than the contracting officer.

Subpart 4-30.50-Special Contract

Financing Authorities

84-30.5001 Contracts with states.

Under circumstances where the State requires advance payment and contracting with the State is to the Government's advantage, advance payments may be made. (Comp. Gen. Dec. B-35670 of 7-16-43 and B-36099 of 8-14-43.) 84-30.5002 Contracts pursuant to the

Research and Marketing Act of 1946, as amended, 7 U.S.C. 4271 and 1624. The Act provides that advance, progress, or other payments may be made without regard to the provisions of section 3648, Revised Statutes. Advance

payments may be made in any amount not exceeding the contract price, provided: (a) adequate security for such advance payments is obtained when the contract is being made with other than public organizations, (b) the amount of the advance payment is based upon an analysis of the financing required by the contractor for the contract and does not exceed reasonable financial requirements between payments, and (c) such advance payment is necessary and appropriate in order to contract for the required work. Contract provisions must state the amount of the advance payment. Performance bonds on prescribed standard forms will satisfy requirements for adequate security.

4-50.201 4-50.202 4-50.203 4-50.204 +50.205

4-50.206

Manner of filing appeals.

Form and contents of appeal.

Receipt and transmittal.

Board of Contract Appeals.

Request by contracting officer for hearing.

Releases to contractors.

AUTHORITY: The provisions of this Part 4-50 issued under 5 U.S.C. 301, 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 4-50 appear at 29 FR. 14344, Oct. 16, 1964, unless otherwise noted.

§ 4-50.000 Scope of part.

This part prescribes policy and procedure for the handling of questions of fact and disputes thereon arising under contracts.

Subpart 4-50.1-Disputes

shall be performed in accordance with the procedures herein, recognizing that their application requires the utmost in tact and sound judgment. It is emphasized that by the inclusion of the standand disputes clause in a contract, the parties have agreed upon a procedure to be followed when disagreements arise thereunder, and failure to pursue these administrative procedures and exhaust all the remedies so provided may prejudice the rights of the contractor otherwise to enforce such claims in the courts. § 4-50.102 Questions of fact.

The general provisions of Standard Forms 23A and 32 specifically indicate several questions as being questions of fact. In general terms, any question which involves the submission of evidence to enable a decision is a question of fact whereas any question which does not require the introduction of evidence to form a decision is a question of law. For instance, the interpretation of the intent or meaning of contract provisions involves questions of law but determinations as to whether the contractor has complied with contract provisions usually involve the introduction of evidence and thus are questions of fact. 84-50.103

Determination of questions

by mutual agreement.

Within the terms of the contract, it is the responsibility of the contracting officer to resolve by mutual agreement with the contractor a variety of questions of fact. These may arise either before or after all payments due under the contract are believed to have been made, in such problem areas as price adjustments, change in delivery time, rejection of materials, or similar matters in connection with the administration of contract provisions. A tactful and cooperative approach by the contracting officer to the contractor's problem will do much to avoid formal protests and claims. In the majority of cases, a satisfactory agreement can be reached if the contractor has been fully informed of the specific contract provisions pertinent to the questions involved and the rights of the contractor and the Government with respect thereto. When questions are settled in this manner, the agreement should be documented for record purposes in the form of a letter or memorandum of agreement. If, however, the contractor is dissatisfied with explana

tions or determinations given and an agreement cannot be successfully negotiated, he should be referred to the contract provisions regarding disputes and advised to present his claim in writing to the contracting officer. The contractor shall be given an opportunity to present to the contracting officer oral arguments or evidence in support of his claims, if he so desires. It is particularly important that the claim be in writing if it is in regard to a matter which the contract requires to be in writing. Decisions will be rendered in accordance with § 4-50.104.

A contractor may designate legal counsel or other persons to represent him in disputes with the Contracting Officer. The Contracting Officer, after receipt of any such designation, should furnish the representative with a copy of any written communication to the contractor. If a contractor has more than one representative, the furnishing of a copy of such communication to any one representative is sufficient.

[29 F.R. 14344, Oct. 16, 1964, as amended at 35 F.R. 18018, Aug. 15, 1970]

§ 4-50.104 Decisions by contracting officer.

§ 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 Plant and Operations 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.

§ 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 Officer.

Contractor's Olaim. 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 provi

sion 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 appropriate 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. Corclude the decision with the following paragraph as required by § 1-1.318:

"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.” § 4-50.105 Record of evidence to be maintained.

The contracting officer shall maintain a complete record of the evidence upon which his decision is based.

Subpart 4-50.2-Contract Appeals

SOURCE: The provisions of this Subpart 4.50-2 appear at 83 F.R. 17917, Dec. 8, 1968, unless otherwise noted.

§ 4-50.201 Manner of filing appeals.

(a) Appeals may be taken from decisions of contracting officers of the Department involving disputed questions of

fact under contracts, the terms of which provide that such appeals may be made.

(b) Such appeals shall be taken by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the head of the Department (the Secretary of Agriculture) within the time prescribed in the contract.

§ 4-50.202 Form and contents of appeal. The appeal shall clearly identify the decision from which the appeal is taken, the date of the decision, and the contract number. The appeal need not follow any prescribed form. It may be in the form of a letter and should contain a full statement of the exact nature of the dispute, the specific relief sought by the contractor, the pertinent facts and reasons in support of the contractor's contentions and, if the contractor desires to appear or be represented at an oral hearing, a request that a hearing be held. § 4-50.203 Receipt and transmittal.

Upon receipt of the appeal, the officer receiving it shall certify the date of receipt, and such date shall be considered as the date of filing with the Board of Contract Appeals. The appeal shall be forwarded within 10 days after receipt through agency channels to the Board of Contract Appeals in care of the Hearing Clerk, Department of Agriculture. Washington, D.C. 20250.

A copy of the letter transmitting the appeal to the Board shall be furnished to the Office of Operations.

[39 FR 44203, Dec. 23, 1974]

§ 4-50.204 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]

§ 4-50.205 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.

§ 4-50.206 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). (See 43 Comp. Gen. 231 in connection with this requirement.)