Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
ities, <strong>the</strong> contracting <strong>of</strong>ficer's role in disposing
<strong>of</strong> disputes will vary according to <strong>the</strong> facts and
circumstances <strong>of</strong> a particular case.
For <strong>the</strong>se reasons, it is not possible to define
an "ideal" contracting <strong>of</strong>ficer in dealing with
contract disputes or to describe in detail his
function, authority, and degree <strong>of</strong> independence.
The definition will vary from agency to
agency and even from contract to contract, according
to <strong>the</strong> differing circumstances. Efforts
should be made by each procuring agency to
define <strong>the</strong> roles <strong>of</strong> its contracting <strong>of</strong>ficers and
o<strong>the</strong>r Government <strong>of</strong>ficials in various situations
and make <strong>the</strong>se roles clear to <strong>the</strong> contractors
who must deal with <strong>the</strong> Government
contract personnel.
To avoid misunderstandings, promote confidence
in <strong>the</strong> procurement process, and improve
<strong>the</strong> climate for <strong>the</strong> negotiated settlement <strong>of</strong>
disputes, <strong>the</strong> disputes authority <strong>of</strong> <strong>the</strong> contracting
<strong>of</strong>ficer, and <strong>of</strong> every o<strong>the</strong>r Government
agent <strong>the</strong> contractor must deal with, should be
made clear to each contractor. If <strong>the</strong> contracting
<strong>of</strong>ficer is in fact not empowered to make
an "independent and personal" disputes decision
in connection with a contract, but must
consult his superiors, he should tell <strong>the</strong> contractor
who will make or influence <strong>the</strong> decision.
If a contracting <strong>of</strong>ficer has for all practical
purposes delegated authority to make purely
technical decisions to <strong>the</strong> project engineer, <strong>the</strong>
contractor should be told this. The contractor
should be made to understand, as clearly as
possible, just where and how <strong>the</strong> decisions for
<strong>the</strong> Government under a contract are made. If
this area <strong>of</strong> confusion and misunderstanding
were eliminated, we believe disputes settlement
at <strong>the</strong> contracting <strong>of</strong>ficer level would be
easier to achieve.
Informal Review Conference
Recommendation 2. Provide for an informal
conference to review contracting <strong>of</strong>ficer decisions
adverse to <strong>the</strong> contractor.
Although an effort to clarify <strong>the</strong> role and
authority <strong>of</strong> <strong>the</strong> contracting <strong>of</strong>ficer will reduce
<strong>the</strong> number <strong>of</strong> misunderstandings ripening into
full-blown disputes requiring a contracting
<strong>of</strong>ficer's decision, such disputes inevitably will
continue to arise. Therefore, we recommend
that a mechanism be established to provide an
improved means for review and settlement <strong>of</strong>
contract disputes prior to <strong>the</strong> initiation <strong>of</strong> relatively
expensive and time-consuming litigation.
This review should be informal and take
place within 30 days following <strong>the</strong> contractor's
receipt <strong>of</strong> <strong>the</strong> contracting <strong>of</strong>ficer's final decision.
The reviewing <strong>of</strong>ficials should include an
agency <strong>of</strong>ficial or <strong>of</strong>ficials at a level above <strong>the</strong>
contracting <strong>of</strong>ficer. The contractor's attendance
at a review conference should be mandatory
if <strong>the</strong> contractor intends to proceed
directly to court in accordance with Recommendation
6, or if <strong>the</strong> amount in dispute exceeds
$25,000.
Many procuring agencies now subject proposed
contracting <strong>of</strong>ficer final decisions to
substantive and procedural review prior to issuance,
and almost all agencies provide for a
formal or informal review <strong>of</strong> <strong>the</strong> contracting
<strong>of</strong>ficer's findings prior to a board or court proceeding.
However, <strong>the</strong> contractor does not normally
participate in such review.
The recommended informal review conference
has several goals. First, <strong>the</strong> conference is
designed to promote settlements before litigation
by bringing in Government <strong>of</strong>ficials who
have not been closely associated with <strong>the</strong> dispute
to hear both sides <strong>of</strong> <strong>the</strong> question. We believe
that many disputes go to litigation simply
because <strong>the</strong> disputing parties have become too
personally involved in <strong>the</strong> dispute to see that
settlement is possible and desirable. Second, if
contracting <strong>of</strong>ficers are, as many contractors
apparently believe, <strong>of</strong>ten reluctant to issue decisions
that may be controversial or unpopular
with <strong>the</strong>ir superiors, <strong>the</strong> knowledge that a final
review prior to litigation can be invoked may
give <strong>the</strong>m additional confidence to make decisions.
This factor alone could be instrumental
in improving <strong>the</strong> contracting <strong>of</strong>ficer role in
<strong>the</strong> disputes-resolving process. Third, giving
<strong>the</strong> contractor an opportunity to have disputes
considered in such a review conference should
increase its confidence in <strong>the</strong> procurement
process. The contracting <strong>of</strong>ficer will no longer
be <strong>the</strong> contractor's only recourse before relatively
expensive and time-consuming appeals
procedures. Finally, <strong>the</strong> procuring agencies
should benefit from <strong>the</strong> conference. It will en-
13