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entered into one hundred twenty days after the date of enactment (Nov. 1, 1978). Notwithstanding any provision in a contract made before the effective date of this Act, the contractor may elect to proceed under this Act with respect to any claim pending then before the contracting officer or initiated thereafter."
SHORT TITLE Section 1 of Pub. L. 95-563 provided: “That this Act Cenacting this chapter, amending section 5108 of Title 5, Government Organization and Employees, sections 1346, 1491, 2401, 2414, 2510, and 2517 of Title 28, Judiciary and Judicial Procedure, and section 724a of former Title 31, Money and Finance, and enacting provisions set out as notes under this section) may be cited as the 'Contract Disputes Act of 1978'."
agency, and may “upon the designation by" the head of an executive agency include the chief official of any principal division of the agency;
(2) the term "executive agency" means an executive department as defined in section 101 of title 5, an independent establishment as defined by section 104 of title 5 (except that it shall not include the General Accounting Office), a military department as defined by section 102 of title 5, and a wholly owned Government corporation as defined by section 9101(3) of title 31, the United States Postal Service, and the Postal Rate Commission;
(3) The ' term "contracting officer" means any person who, by appointment in accordance with applicable regulations, has the authority to enter into and administer contracts and make determinations and findings with respect thereto. The term also includes the authorized representative of the contracting officer, acting within the limits of his author. ity;
(4) the term “contractor" means a party to a Government contract other than the Government;
(5) The' term “Administrator" means the Administrator for Federal Procurement Policy appointed pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.);
(6) The' term "agency board” means an agency board of contract appeals established under section 607 of this title; and
(7) The ' term “misrepresentation of fact" means a false statement of substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with
intent to deceive or mislead. (Pub. L. 95-563, § 2, Nov. 1, 1978, 92 Stat. 2383.)
8 602. Applicability of law
Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for
(1) the procurement of property, other than real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair or maintenance of real property; or,
(4) the disposal of personal property. (b) Tennessee Valley Authority contracts
With respect to contracts of the Tennessee Valley Authority, the provisions of this chapter shall apply only to those contracts which contain a disputes clause requiring that a contract dispute be resolved through an agency administrative process. Notwithstanding any other provision of this chapter, contracts 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 shall be excluded from the chapter. (c) Foreign government or international organization
contracts This chapter does not apply to a contract with a foreign government, or agency thereof, or international organization, or subsidiary body thereof, if the head of the agency determines that the application of the chapter to the contract would not be in the public interest. (Pub. L. 95-563, 83, Nov. 1, 1978, 92 Stat. 2383.)
REFERENCES IN TEXT This chapter, referred to in text preceding par. (1), was in the original “this Act", meaning Pub. L. 95-563, which enacted this chapter, amended section 5108 of Title 5, Government Organization and Employees, section 1346, 1491, 2401, 2414, 2510, and 2517 of Title 28, Judiciary and Judicial Procedure, and section 724a of former Title 31, Money and Finance, and enacted provisions set out as notes under this section. For complete classification of this Act to the Code, see Short Title note below and Tables.
The Office of Federal Procurement Policy Act, referred to in par. (5), is Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, as amended, which is classified principally to chapter 7 ($ 401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title and Tables.
CODIFICATION In par. (2), "section 9101(3) of title 31" was substituted for "section 846 of title 31, United States Code” on authority of Pub. L. 97-258, $ 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Finance.
8 603. Maritime contracts
Appeals under paragraph (g) of section 607 of this title and suits under section 609 of this title, arising out of maritime contracts, shall be governed by chapter 20 or 22 of title 46 as applicable, to the extent that those chapters are not inconsistent with this chapter. (Pub. L. 95-563, § 4, Nov. 1, 1978, 92 Stat. 2384.)
REFERENCES IN TEXT Chapter 20 of title 46, referred to in text, was in the original a reference to the Act of Mar. 9, 1920 (41 Stat. 525, as amended), known as the Suits in Admiralty Act, which is classified generally to chapter 20 (3 741 et seq.) of Title 46, Shipping. For complete classifica
EFFECTIVE DATE Section 16 of Pub. L. 95-563 provided that: “This Act (see Short Title note below) shall apply to contracts
'So in original. Probably should not be capitalized.
tion of this Act to the Code, see Short Title note set out under section 741 of Title 46 and Tables.
Chapter 22 of title 46, referred to in text, was in the original a reference to the Act of Mar. 3, 1925 (43 Stat. 1112, as amended), known as the Public Vessels Act, which is classified generally to chapter 22 (8 781 et seq.) of Title 46. For complete classification of this Act to the Code, see Short Title note set out under section 781 of Title 46 and Tables.
8 604. Fraudulent claims
If a contractor is unable to support any part of his claim and it is determined that such inability is attributable to misrepresentation of fact or fraud on the part of the contractor, he shall be liable to the Government for an amount equal to such unsupported part of the claim in addition to all costs to the Government attributable to the cost of reviewing said part of his claim. Liability under this subsection shall be determined within six years of the commission of such misrepresentation of fact or fraud. (Pub. L. 95-563, § 5, Nov. 1, 1978, 92 Stat. 2384.) 8 605. Decision by contracting officer (a) Contractor claims
All claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision. All claims by the government against a contractor relating to a contract shall be the subject of a decision by the contracting officer. The contracting officer shall issue his decisions in writing, and shall mail or otherwise furnish a copy of the decision to the contractor. The decision shall state the reasons for the decision reached, and shall inform the contractor of his rights as provided in this chapter. Specific findings of fact are not required, but, if made, shall not be binding in any subsequent proceeding. The authority of this subsection shall not extend to a claim or dispute for penalties or forfeitures prescribed by statute or regulation which another Federal agency is specifically authorized to administer, settle, or determine. This section shall not authorize any agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud. (b) Review; performance of contract pending appeal
The contracting officer's decision on the claim shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency, unless an appeal or suit is timely commenced as authorized by this chapter. Nothing in this chapter shall prohibit executive agencies from including & clause in government contracts requiring that pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer's decision. (c) Amount of claim; certification; notification; time
of issuance; presumption (1) A contracting officer shall issue a decision on any submitted claim of $50,000 or less within sixty days from his receipt of a written request
from the contractor that a decision be rendered within that period. For claims of more than $50,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.
(2) A contracting officer shall, within sixty days of receipt of a submitted certified claim over $50,000—
(A) issue a decision; or
(B) notify the contractor of the time within which a decision will be issued.
(3) The decision of a contracting officer on submitted claims shall be issued within a reasonable time, in accordance with regulations promulgated by the agency, taking into account such factors as the size and complexity of the claim and the adequacy of the information in support of the claim provided by the contractor.
(4) A contractor may request the agency board of contract appeals to direct a contracting officer to issue a decision in a specified period of time, as determined by the board, in the event of undue delay on the part of the contracting officer.
(5) Any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter. However, in the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer, the tribunal concerned may, at its option, stay the proceedings to obtain a decision on the claim by the contracting officer. (Pub. L. 95-563, § 6, Nov. 1, 1978, 92 Stat. 2384.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 606, 609, 611 of this title; title 31 section 3906.
8 606. Contractor's right of appeal to board of con
tract appeals Within ninety days from the date of receipt of a contracting officer's decision under section 605 of this title, the contractor may appeal such decision to an agency board of contract appeals, as provided in section 107 of this title. (Pub. L. 95-563, 87, Nov. 1, 1978, 92 Stat. 2385.) 8 607. Agency boards of contracts appeals (a) Establishment; consultation; Tennessee Valley Au
thority (1) Except as provided in paragraph (2) an agency board of contract appeals may be established within an executive agency when the agency head, after consultation with the Administrator, determines from & workload study that the volume of contract claims justifies the establishment of a full-time agency board of at least three members who shall have no other inconsistent duties. Workload studies will be
2 So in original. Probably should be "section".
updated at least once every three years and any other agency when such agency or the Adsubmitted to the Administrator.
ministrator has designated the agency board to (2) The Board of Directors of the Tennessee decide the appeal. In exercising this jurisdicValley Authority may establish a board of con- tion, the agency board is authorized to grant tract appeals for the Authority of an indetermi- any relief that would be available to a litigant nate number of members.
asserting a contract claim in the United States (b) Appointment of members; chairman; compensa
Claims Court. tion
(e) Decisions (1) Except as provided in paragraph (2), the
An agency board shall provide to the fullest members of agency boards shall be selected and
extent practicable, informal, expeditious, and appointed to serve in the same manner as ad
inexpensive resolution of disputes, and shall ministrative law judges appointed pursuant to issue a decision in writing or take other approsection 3105 of title 5, with an additional re
priate action on each appeal submitted, and quirement that such members shall have had
shall mail or otherwise furnish a copy of the not fewer than five years' experience in public
decision to the contractor and the contracting contract law. Full-time members of agency
officer. boards serving as such on the effective date of this chapter shall be considered qualified. The
(f) Accelerated appeal disposition chairman and vice chairman of each board The rules of each agency board shall include shall be designated by the agency head from a procedure for the accelerated disposition of members so appointed. The chairman of each any appeal from a decision of a contracting of. agency board shall receive compensation at a ficer where the amount in dispute is $50,000 or rate equal to that paid a GS-18 under the Gen- less. The accelerated procedure shall be applieral Schedule contained in section 5332, of title cable at the sole election of only the contractor. 5, the vice chairman shall receive compensation Appeals under the accelerated procedure shall at a rate equal to that paid a GS-17 under such be resolved, whenever possible, within one hunGeneral Schedule, and all other members shall dred and eighty days from the date the contracreceive compensation at a rate equal to that tor elects to utilize such procedure. paid a GS-16 under such General Schedule.
(8) Review Such positions shall be in addition to the number of positions which may be placed in
(1) The decision of an agency board of conGS-16, GS-17, and GS-18 of such General tract appeals shall be final, except thatSchedule under existing law.
(A) a contractor may appeal such & decision (2) The Board of Directors of the Tennessee to the United States Court of Appeals for the Valley Authority shall establish criteria for the Federal Circuit within one hundred twenty appointment of members to its agency board of days after the date of receipt of a copy of contract appeals established in subsection (a)(2) such decision, or of this section, and shall designate a chairman (B) the agency head, if he determines that of such board. The chairman of such board an appeal should be taken, and with the prior shall receive compensation at a rate equal to approval of the Attorney General, transmits the daily rate paid a GS-18 under the General the decision of the board of contract appeals Schedule contained in section 5332, of title 5, to the Court of Appeals for the Federal Cirfor each day he is engaged in the actual per- cuit for judicial review under section 1295 of formance of his duties as a member of such title 28, within one hundred and twenty days board. All other members of such board shall from the date of the agency's receipt of a receive compensation at a rate equal to the copy of the board's decision. daily rate paid & GS-16 under such General
(2) Notwithstanding the provisions of paraSchedule for each day they are engaged in the
graph (1), the decision of the board of contract actual performance of their duties as members
appeals of the Tennessee Valley Authority of such board.
shall be final, except that(c) Appeals; inter-agency arrangements
(A) a contractor may appeal such a decision If the volume of contract claims is not suffi
to a United States district court pursuant to cient to justify an agency board under subsec- the provisions of section 1337 of title 28, tion (a) of this section or if he otherwise consid- within one hundred twenty days after the ers it appropriate, any agency head shall ar- date of receipt of a copy of such decision, or range for appeals from decisions by contracting (B) The Tennessee Valley Authority may officers of his agency to be decided by a board appeal the decision to a United States district of contract appeals of another executive
court pursuant to the provisions of section agency. In the event an agency head is unable
1337 of title 28, within one hundred twenty to make such an arrangement with another
days after the date of the decision in any agency, he shall submit the case to the Admin- case, istrator for placement with an agency board.
(h) Procedural guidelines The provisions of this subsection shall not apply to the Tennessee Valley Authority.
Pursuant to the authority conferred under
the Office of Federal Procurement Policy Act (d) Jurisdiction
(41 U.S.C. 401 et seq.), the Administrator is auEach agency board shall have jurisdiction to thorized and directed, as may be necessary or decide any appeal from a decision of a contract- desirable to carry out the provisions of this ing officer (1) relative to a contract made by its chapter, to issue guidelines with respect to criagency, and (2) relative to a contract made by teria for the establishment, functions, and pro
cedures of the agency boards (except for a board established by the Tennessee Valley Authority). (Pub. L. 95-563, § 8, Nov. 1, 1978, 92 Stat. 2385; Pub. L. 97-164, title I, $$ 156, 160(a)(15), Apr. 2, 1982, 96 Stat. 47, 48.)
REFERENCES IN TEXT For the effective date of this chapter, referred to in subsec. (b)(1), see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of this title.
The Office of Federal Procurement Policy Act, referred to in subsec. (h), is Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, as amended, which is classified principally to chapter 7 ($ 401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title and Tables.
(c) Time of decision
Appeals under the small claims procedure shall be resolved, whenever possible, within one hundred twenty days from the date on which the contractor elects to utilize such procedure. (d) Finality of decision
A decision against the Government or the contractor reached under the small claims procedure shall be final and conclusive and shall not be set aside except in cases of fraud. (e) Effect of decision
Administrative determinations and final deci. sions under this section shall have no value as precedent for future cases under this chapter. (f) Review of requisite amount in controversy
The Administrator is authorized to review at least every three years, beginning with the third year after November 1, 1978, the dollar amount defined in subsection (a) of this section as a small claim, and based upon economic indexes selected by the Administrator adjust that level accordingly. (Pub. L. 95-563, § 9, Nov. 1, 1978, 92 Stat. 2387.)
CODIFICATION In subsec. (b)(1) of this section, "administrative law judges" was substituted for “hearing examiners” on authority of section 3 of Pub. L. 95-251, Mar. 27, 1978, 92 Stat. 184, which is set out as a note under section 3105 of Title 5, Government Organization and Employees.
Subsec. (1) of this section, which required all agency boards of three or more full time members, except that of the Tennessee Valley Authority, within one hundred and twenty days after Nov. 1, 1978, to develop workload studies for approval by the agency head specified in subsec. (a)(1) of this section, was omitted.
8 609. Judicial review of board decisions
AXENDMENTS 1982–Subsec. (d). Pub. L. 97-164, $ 160(a)(15), substituted "United States Claims Court" for “Court of Claims".
Subsec. (gX1XA). Pub. L. 97-164, $ 156(1), substituted “United States Court of Appeals for the Federal Circuit" for “Court of Claims".
Subsec. (g)(1)(B). Pub. L. 97-164, $ 156(2), substituted "Court of Appeals for the Federal Circuit for judi. cial review under section 1295 of title 28" for “United States Court of Claims for judicial review, under section 2510 of title 28".
EFTECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of Title 28, Judiciary and Judicial Procedure.
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 601, 603, 606, 609 of this title; title 28 sections 1295, 1346.
(a) Actions in United States Claims Court; district
court actions; time for filing (1) Except as provided in paragraph (2), and in lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Claims Court, notwithstanding any contract provision, regulation, or rule of law to the contrary.
(2) In the case of an action against the Tennessee Valley Authority, the contractor may only bring an action directly on the claim in a United States district court pursuant to section 1337 of title 28, notwithstanding any contract provision, regulation, or rule of law to the contrary.
(3) Any action under paragraph (1) or (2) shall be filed within twelve months from the date of the receipt by the contractor of the decision of the contracting officer concerning the claim, and shall proceed de novo in accordance with the rules of the appropriate court. (b) Finality of board decision
In the event of an appeal by a contractor or the Government from a decision of any agency board pursuant to section 107 of this title, notwithstanding any contract provision, regulation, or rules of law to the contrary, the deci. sion of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence. (c) Remand or retention of case
In any appeal by a contractor or the Govern. ment from a decision of an agency board pursu
8 608. Small claims
(a) Accelerated disposition of appeals
The rules of each agency board shall include a procedure for the expedited disposition of any appeal from a decision of a contracting of. ficer where the amount in dispute is $10,000 or less. The small claims procedure shall be applicable at the sole election of the contractor. (b) Simplified rules of procedure
The small claims procedure shall provide for simplified rules of procedure to facilitate the decision of any appeal thereunder. Such appeals may be decided by a single member of the agency board with such concurrences as may be provided by rule or regulation.
ant to section 107 of this title, the court may appear before the agency board or a member render an opinion and judgement and remand thereof, to produce evidence or to give testimothe case for further action by the agency board ny, or both. Any failure of any such person to or by the executive agency as appropriate, with obey the order of the court may be punished by such direction as the court considers just and the court as a contempt thereof. proper.
(Pub. L. 95-563, § 11, Nov. 1, 1978, 92 Stat. (d) Consolidation
2388.) If two or more suits arising from one contract are filed in the United States Claims Court and
8 611. Interest one or more agency boards, for the convenience Interest on amounts found due contractors on of parties or witnesses or in the interest of jus- claims shall be paid to the contractor from the tice, the United States Claims Court may order date the contracting officer receives the claim the consolidation of such suits in that court or pursuant to section 605(a) of this title from the transfer any suits to or among the agency contractor until payment thereof. The interest boards involved.
provided for in this section shall be paid at the (e) Judgments as to fewer than all claims
rate established by the Secretary of the TreasIn any suit filed pursuant to this chapter in
ury pursuant to Public Law 92-41 (85 Stat. 97) volving two or more claims, counterclaims,
for the Renegotiation Board. cross-claims, or third-party claims, and where a (Pub. L. 95-563, $ 12, Nov. 1, 1978, 92 Stat. portion of one such claim can be divided for 2389.) purposes of decision or judgment, and in any such suit where multiple parties are involved,
REFERENCES IN TEXT the court, whenever such action is appropriate, Provisions of Public Law 92-41, referred to in text, may enter a judgment as to one or more but which authorized the Secretary of the Treasury to fix fewer than all of the claims, portions thereof, interest rates for the Renegotiation Board, were conor parties.
tained in section 2(a)3) of Pub. L. 92-41, which was
classified to section 1215(b)(2) of the Appendix to (Pub. L. 95-563, $ 10, Nov. 1, 1978, 92 Stat. 2388; Title 50, War and National Defense, and was omitted Pub. L. 97-164, title I, $$ 157, 160(a)(15), from the Code. See note preceding section 1211 of the 161(10), Apr. 2, 1982, 96 Stat. 47-49.)
Appendix to Title 50.
SECTION REFERRED TO IN OTHER SECTIONS 1982–Subsec. (a/1). Pub. L. 97-164, § 161(10), substi- This section is referred to in title 31 sections 3902, tuted "Claims Court" for "Court of Claims".
3906; title 49 App. section 1376b. Subsec. (c). Pub. L. 97-164, $ 157, struck out “, or, in Its discretion and in lieu of remand it may retain the 8 612. Payment of claims case and take such additional evidence or action as may be necessary for final disposition of the case” fol- (a) Judgments lowing "with such direction as the court considers just and proper".
Any judgment against the United States on a Subsec. (d). Pub. L. 97-164, $ 160(&)15), substituted
claim under this chapter shall be paid promptly "United States Claims Court" for "Court of Claims" in in accordance with the procedures provided by two places.
section 1304 of title 31. EFTECTIVE DATE OF 1982 AMENDMENT
(b) Monetary awards Amendment by Pub. L. 97-164 effective Oct. 1, 1982, Any monetary award to a contractor by an see section 402 of Pub. L. 97-164, set out as a note agency board of contract appeals shall be paid under section 171 of Title 28, Judiciary and Judicial promptly in accordance with the procedures Procedure.
contained in subsection (a) of this section. SECTION REFERRED TO IN OTHER SECTIONS (c) Reimbursement This section is referred to in section 603 of this title;
Payments made pursuant to subsections (a) title 28 sections 1295, 1346, 1491; title 49 App. section
and (b) of this section shall be reimbursed to 1376b.
the fund provided by section 1304 of title 31 by 8 610. Subpena, discovery, and deposition
the agency whose appropriations were used for
the contract out of available funds or by obA member of an agency board of contract ap- taining additional appropriations for such purpeals may administer oaths to witnesses, au
poses. thorize depositions and discovery proceedings, and require by subpena the attendance of wit
(d) Tennessee Valley Authority nesses, and production of books and papers, for (1) Notwithstanding the provisions of subsecthe taking of testimony or evidence by deposi- tion (a) through (c) of this section, any judgtion or in the hearing of an appeal by the ment against the Tennessee Valley Authority agency board. In case of contumacy or refusal on & claim under this chapter shall be paid to obey a subpena by a person who resides, is promptly in accordance with the provisions of found, or transacts business within the jurisdic- section 831h(b) of title 16. tion of a United States district court, the court, (2) Notwithstanding the provisions of subsecupon application of the agency board through tion (a) through (c), any monetary award to a the Attorney General; or upon application by contractor by the board of contract appeals for the board of contract appeals of the Tennessee the Tennessee Valley Authority shall be paid in Valley Authority, shall have jurisdiction to accordance with the provisions of section issue the person an order requiring him to 831h(b) of title 16.