US (United States) Code. Title 41. Chapter 9: Contract disputes

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Public contracts

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-CITE-

41 USC CHAPTER 9 - CONTRACT DISPUTES 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

CHAPTER 9 - CONTRACT DISPUTES

-MISC1-

Sec.

601. Definitions.

602. Applicability of law.

(a) Executive agency contracts.

(b) Tennessee Valley Authority contracts.

(c) Foreign government or international

organization contracts.

603. Maritime contracts.

604. Fraudulent claims.

605. Decision by contracting officer.

(a) Contractor claims.

(b) Review; performance of contract pending appeal.

(c) Amount of claim; certification; notification;

time of issuance; presumption.

(d) Alternative means of dispute resolution.

(e) Termination of authority to engage in

alternative means of dispute resolution;

savings provision.

606. Contractor's right of appeal to board of contract

appeals.

607. Agency boards of contract appeals.

(a) Establishment; consultation; Tennessee Valley

Authority.

(b) Appointment of members; chairman; compensation.

(c) Appeals; inter-agency arrangements.

(d) Jurisdiction.

(e) Decisions.

(f) Accelerated appeal disposition.

(g) Review.

(h) Procedural guidelines.

608. Small claims.

(a) Accelerated disposition of appeals.

(b) Simplified rules of procedure.

(c) Time of decision.

(d) Finality of decision.

(e) Effect of decision.

(f) Review of requisite amount in controversy.

609. Judicial review of board decisions.

(a) Actions in United States Court of Federal

Claims; district court actions; time for

filing.

(b) Finality of board decision.

(c) Remand or retention of case.

(d) Consolidation.

(e) Judgments as to fewer than all claims.

(f) Advisory opinions.

610. Subpena, discovery, and deposition.

611. Interest.

612. Payment of claims.

(a) Judgments.

(b) Monetary awards.

(c) Reimbursement.

(d) Tennessee Valley Authority.

613. Separability.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 56, 253d, 422 of this

title; title 5 section 9003; title 15 section 637; title 10

sections 2321, 2410m, 2836; title 22 sections 3861, 3862; title 25

sections 450k, 450m-1; title 28 sections 2401, 2412, 2414, 2517;

title 31 section 3907; title 35 section 203.

-End-

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41 USC Sec. 601 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 601. Definitions

-STATUTE-

As used in this chapter -

(1) the term "agency head" means the head and any assistant

head of an executive 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 authority;

(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.

-SOURCE-

(Pub. L. 95-563, Sec. 2, Nov. 1, 1978, 92 Stat. 2383; Pub. L.

104-106, div. D, title XLIII, Sec. 4322(b)(5), Feb. 10, 1996, 110

Stat. 677.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in text, 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 (Sec. 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.

-COD-

CODIFICATION

In par. (2), "section 9101(3) of title 31" substituted for

"section 846 of title 31, United States Code" on authority of Pub.

L. 97-258, Sec. 4(b), Sept. 13, 1982, 96 Stat. 1067, the first

section of which enacted Title 31, Money and Finance.

-MISC1-

AMENDMENTS

1996 - Pars. (3), (5) to (7). Pub. L. 104-106 substituted "the

term" for "The term".

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

EFFECTIVE DATE

Section 16 of Pub. L. 95-563 provided that: "This Act [see Short

Title note below] shall apply to contracts 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 [enacting

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 above] may be cited as the 'Contract Disputes Act of

1978'."

-End-

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41 USC Sec. 602 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 602. Applicability of law

-STATUTE-

(a) Executive agency contracts

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.

-SOURCE-

(Pub. L. 95-563, Sec. 3, Nov. 1, 1978, 92 Stat. 2383.)

-End-

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41 USC Sec. 603 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 603. Maritime contracts

-STATUTE-

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,

Appendix, as applicable, to the extent that those chapters are not

inconsistent with this chapter.

-SOURCE-

(Pub. L. 95-563, Sec. 4, Nov. 1, 1978, 92 Stat. 2384.)

-REFTEXT-

REFERENCES IN TEXT

Chapter 20 of title 46, Appendix, 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 (Sec. 741 et seq.) of Title 46, Appendix,

Shipping. For complete classification of this Act to the Code, see

Short Title note set out under section 741 of Title 46, Appendix,

and Tables.

Chapter 22 of title 46, Appendix, 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 (Sec. 781 et seq.) of Title 46, Appendix.

For complete classification of this Act to the Code, see Short

Title note set out under section 781 of Title 46, Appendix, and

Tables.

-End-

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41 USC Sec. 604 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 604. Fraudulent claims

-STATUTE-

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 (!1) shall be determined

within six years of the commission of such misrepresentation of

fact or fraud.

-SOURCE-

(Pub. L. 95-563, Sec. 5, Nov. 1, 1978, 92 Stat. 2384.)

-FOOTNOTE-

(!1) So in original. Probably should be "section".

-End-

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41 USC Sec. 605 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 605. Decision by contracting officer

-STATUTE-

(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. Each claim by a contractor

against the government relating to a contract and each claim by the

government against a contractor relating to a contract shall be

submitted within 6 years after the accrual of the claim. The

preceding sentence does not apply to a claim by the government

against a contractor that is based on a claim by the contractor

involving fraud. 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 a 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 $100,000 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 $100,000, 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, that the amount requested accurately reflects

the contract adjustment for which the contractor believes the

government is liable, and that the certifier is duly authorized to

certify the claim on behalf of the contractor.

(2) A contracting officer shall, within sixty days of receipt of

a submitted certified claim over $100,000 -

(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 tribunal concerned to direct a

contracting officer to issue a decision in a specified period of

time, as determined by the tribunal concerned, 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.

(6) The contracting officer shall have no obligation to render a

final decision on any claim of more than $100,000 that is not

certified in accordance with paragraph (1) if, within 60 days after

receipt of the claim, the contracting officer notifies the

contractor in writing of the reasons why any attempted

certification was found to be defective. A defect in the

certification of a claim shall not deprive a court or an agency

board of contract appeals of jurisdiction over that claim. Prior to

the entry of a final judgment by a court or a decision by an agency

board of contract appeals, the court or agency board shall require

a defective certification to be corrected.

(7) The certification required by paragraph (1) may be executed

by any person duly authorized to bind the contractor with respect

to the claim.

(d) Alternative means of dispute resolution

Notwithstanding any other provision of this chapter, a contractor

and a contracting officer may use any alternative means of dispute

resolution under subchapter IV of chapter 5 of title 5, or other

mutually agreeable procedures, for resolving claims. The contractor

shall certify the claim when required to do so as provided under

subsection (c)(1) of this section or as otherwise required by law.

All provisions of subchapter IV of chapter 5 of title 5 shall apply

to such alternative means of dispute resolution.

(e) Termination of authority to engage in alternative means of

dispute resolution; savings provision

In any case in which the contracting officer rejects a

contractor's request for alternative dispute resolution

proceedings, the contracting officer shall provide the contractor

with a written explanation, citing one or more of the conditions in

section 572(b) of title 5 or such other specific reasons that

alternative dispute resolution procedures are inappropriate for the

resolution of the dispute. In any case in which a contractor

rejects a request of an agency for alternative dispute resolution

proceedings, the contractor shall inform the agency in writing of

the contractor's specific reasons for rejecting the request.

-SOURCE-

(Pub. L. 95-563, Sec. 6, Nov. 1, 1978, 92 Stat. 2384; Pub. L.

101-552, Sec. 6(a), Nov. 15, 1990, 104 Stat. 2745; Pub. L. 102-572,

title IX, Sec. 907(a)(1), Oct. 29, 1992, 106 Stat. 4518; Pub. L.

103-355, title II, Secs. 2351(a)[(1)], (b), (e), 2352, Oct. 13,

1994, 108 Stat. 3322; Pub. L. 104-106, div. D, title XLIII, Secs.

4321(a)(6), (7), 4322(b)(6), Feb. 10, 1996, 110 Stat. 671, 677;

Pub. L. 104-320, Sec. 6, Oct. 19, 1996, 110 Stat. 3871; Pub. L.

105-85, div. A, title X, Sec. 1073(g)(3), Nov. 18, 1997, 111 Stat.

1906.)

-MISC1-

AMENDMENTS

1997 - Subsecs. (d), (e). Pub. L. 105-85 struck out "(as in

effect on September 30, 1995)" after "title 5" wherever appearing.

1996 - Subsec. (a). Pub. L. 104-106, Sec. 4321(a)(6), made

technical correction to Pub. L. 103-355, Sec. 2351(a). See 1994

Amendment note below.

Subsec. (d). Pub. L. 104-320, Sec. 6(1), substituted "The

contractor shall certify the claim when required to do so as

provided under subsection (c)(1) of this section or as otherwise

required by law." for "In a case in which such alternative means of

dispute resolution or other mutually agreeable procedures are used,

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 or her knowledge and belief, and that the amount requested

accurately reflects the contract adjustment for which the

contractor believes the Government is liable."

Pub. L. 104-106, Sec. 4322(b)(6), inserted "(as in effect on

September 30, 1995)" after "title 5" in two places.

Subsec. (e). Pub. L. 104-320, Sec. 6(2), struck out first

sentence which read as follows: "The authority of agencies to

engage in alternative means of dispute resolution proceedings under

subsection (d) of this section shall cease to be effective on

October 1, 1999, except that such authority shall continue in

effect with respect to then pending dispute resolution proceedings

which, in the judgment of the agencies that are parties to such

proceedings, require such continuation, until such proceedings

terminate."

Pub. L. 104-106, Sec. 4322(b)(6), inserted "(as in effect on

September 30, 1995)" after "title 5".

Pub. L. 104-106, Sec. 4321(a)(7), made technical amendment to

Pub. L. 103-355, Sec. 2352(b). See 1994 Amendment note below.

1994 - Subsec. (a). Pub. L. 103-355, Sec. 2351(a)(1), as amended

by Pub. L. 104-106, Sec. 4321(a)(6), inserted after second sentence

"Each claim by a contractor against the government relating to a

contract and each claim by the government against a contractor

relating to a contract shall be submitted within 6 years after the

accrual of the claim. The preceding sentence does not apply to a

claim by the government against a contractor that is based on a

claim by the contractor involving fraud."

Subsec. (c). Pub. L. 103-355, Sec. 2351(b), substituted

"$100,000" for "$50,000" wherever appearing.

Subsec. (c)(4). Pub. L. 103-355, Sec. 2351(e), substituted

"tribunal concerned" for "agency board of contract appeals" and

"tribunal concerned," for "board,".

Subsec. (e). Pub. L. 103-355, Sec. 2352(b), as amended by Pub. L.

104-106, Sec. 4321(a)(7), inserted after first sentence "In any

case in which the contracting officer rejects a contractor's

request for alternative dispute resolution proceedings, the

contracting officer shall provide the contractor with a written

explanation, citing one or more of the conditions in section 572(b)

of title 5 or such other specific reasons that alternative dispute

resolution procedures are inappropriate for the resolution of the

dispute. In any case in which a contractor rejects a request of an

agency for alternative dispute resolution proceedings, the

contractor shall inform the agency in writing of the contractor's

specific reasons for rejecting the request."

Pub. L. 103-355, Sec. 2352(a), substituted "October 1, 1999" for

"October 1, 1995".

1992 - Subsec. (c)(1). Pub. L. 102-572, Sec. 907(a)(1)(A), struck

out "and" after "belief," and inserted before period at end ", and

that the certifier is duly authorized to certify the claim on

behalf of the contractor".

Subsec. (c)(6), (7). Pub. L. 102-572, Sec. 907(a)(1)(B), added

pars. (6) and (7).

1990 - Subsecs. (d), (e). Pub. L. 101-552 added subsecs. (d) and

(e).

EFFECTIVE DATE OF 1996 AMENDMENT

Section 4321(a) of Pub. L. 104-106 provided that the amendment

made by that section is effective as of Oct. 13, 1994, and as if

included in Pub. L. 103-355 as enacted.

For effective date and applicability of amendment by section

4322(b)(6) of Pub. L. 104-106, see section 4401 of Pub. L. 104-106,

set out as a note under section 251 of this title.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1992 AMENDMENT

Section 907(a)(2) of Pub. L. 102-572 provided that: "The

amendment made by paragraph (1)(B) [amending this section] shall be

effective with respect to all claims filed before, on, or after the

date of the enactment of this Act [Oct. 29, 1992], except for those

claims which, before such date of enactment, have been the subject

of an appeal to an agency board of contract appeals or a suit in

the United States Claims Court."

Section 907(a)(4) of Pub. L. 102-572 provided that: "The

amendments made by paragraph (1)(A) [amending this section] shall

be effective with respect to certifications executed more than 60

days after the effective date of amendments to the Federal

Acquisition Regulation implementing the amendments made by

paragraph (1)(A) with respect to the certification of claims." [For

effective date of implementing regulations, see 59 F.R. 11368, Mar.

10, 1994.]

EFFECT OF CONTRACT PROVISIONS PROVIDING FOR SUBMISSION OF CLAIMS

EARLIER THAN SIX YEARS AFTER ACCRUAL

Section 2351(a)(2) of Pub. L. 103-355 provided that:

"Notwithstanding the third sentence of section 6(a) of the Contract

Disputes Act of 1978 [41 U.S.C. 605(a)], as added by paragraph (1),

if a contract in existence on the date of the enactment of this Act

[Oct. 13, 1994] requires that a claim referred to in that sentence

be submitted earlier than 6 years after the accrual of the claim,

then the claim shall be submitted within the period required by the

contract. The preceding sentence does not apply to a claim by the

Federal Government against a contractor that is based on a claim by

the contractor involving fraud."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 256, 606, 609, 611 of

this title; title 5 section 504; title 10 section 2324; title 28

section 1491; title 31 section 3907.

-End-

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41 USC Sec. 606 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 606. Contractor's right of appeal to board of contract appeals

-STATUTE-

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 607 of this title.

-SOURCE-

(Pub. L. 95-563, Sec. 7, Nov. 1, 1978, 92 Stat. 2385.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 256 of this title; title

10 sections 2324, 2410m.

-End-

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41 USC Sec. 607 01/06/03

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TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 607. Agency boards of contract appeals

-STATUTE-

(a) Establishment; consultation; Tennessee Valley Authority

(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 a 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 updated at least once every three years and

submitted to the Administrator.

(2) The Board of Directors of the Tennessee Valley Authority may

establish a board of contract appeals for the Authority of an

indeterminate number of members.

(b) Appointment of members; chairman; compensation

(1) Except as provided in paragraph (2), the members of agency

boards shall be selected and appointed to serve in the same manner

as administrative law judges appointed pursuant to section 3105 of

title 5, with an additional requirement that such members shall

have had not fewer than five years' experience in public contract

law. Full-time members of agency boards serving as such on the

effective date of this chapter shall be considered qualified. The

chairman and vice chairman of each board shall be designated by the

agency head from members so appointed. Compensation for the

chairman, the vice chairman, and all other members of an agency

board shall be determined under section 5372a of title 5.

(2) The Board of Directors of the Tennessee Valley Authority

shall establish criteria for the appointment of members to its

agency board of contract appeals established in subsection (a)(2)

of this section, and shall designate a chairman of such board. The

chairman and all other members of such board shall receive

compensation, at the daily equivalent of the rates determined under

section 5372a of title 5, for each day they are engaged in the

actual performance of their duties as members of the board.

(c) Appeals; inter-agency arrangements

If the volume of contract claims is not sufficient to justify an

agency board under subsection (a) of this section or if he

otherwise considers it appropriate, any agency head shall arrange

for appeals from decisions by contracting officers of his agency to

be decided by a board of contract appeals of another executive

agency. In the event an agency head is unable to make such an

arrangement with another agency, he shall submit the case to the

Administrator for placement with an agency board. The provisions of

this subsection shall not apply to the Tennessee Valley Authority.

(d) Jurisdiction

Each agency board shall have jurisdiction to decide any appeal

from a decision of a contracting officer (1) relative to a contract

made by its agency, and (2) relative to a contract made by any

other agency when such agency or the Administrator has designated

the agency board to decide the appeal. In exercising this

jurisdiction, the agency board is authorized to grant any relief

that would be available to a litigant asserting a contract claim in

the United States Court of Federal Claims.

(e) Decisions

An agency board shall provide to the fullest extent practicable,

informal, expeditious, and inexpensive resolution of disputes, and

shall issue a decision in writing or take other appropriate action

on each appeal submitted, and shall mail or otherwise furnish a

copy of the decision to the contractor and the contracting officer.

(f) Accelerated appeal disposition

The rules of each agency board shall include a procedure for the

accelerated disposition of any appeal from a decision of a

contracting officer where the amount in dispute is $100,000 or

less. The accelerated procedure shall be applicable at the sole

election of only the contractor. Appeals under the accelerated

procedure shall be resolved, whenever possible, within one hundred

and eighty days from the date the contractor elects to utilize such

procedure.

(g) Review

(1) The decision of an agency board of contract appeals shall be

final, except that -

(A) a contractor may appeal such a decision to the United

States Court of Appeals for the Federal Circuit within one

hundred twenty days after the date of receipt of a copy of such

decision, or

(B) the agency head, if he determines that an appeal should be

taken, and with the prior approval of the Attorney General,

transmits the decision of the board of contract appeals to the

Court of Appeals for the Federal Circuit for judicial review

under section 1295 of title 28, within one hundred and twenty

days from the date of the agency's receipt of a copy of the

board's decision.

(2) Notwithstanding the provisions of paragraph (1), the decision

of the board of contract appeals of the Tennessee Valley Authority

shall be final, except that -

(A) a contractor may appeal such a decision to a United States

district court pursuant to the provisions of section 1337 of

title 28, within one hundred twenty days after the date of

receipt of a copy of such decision, or

(B) The Tennessee Valley Authority may appeal the decision to a

United States district court pursuant to the provisions of

section 1337 of title 28, within one hundred twenty days after

the date of the decision in any case.

(3) An award by an arbitrator under this chapter shall be

reviewed pursuant to sections 9 through 13 of title 9, except that

the court may set aside or limit any award that is found to violate

limitations imposed by Federal statute.

(h) Procedural guidelines

Pursuant to the authority conferred under the Office of Federal

Procurement Policy Act [41 U.S.C. 401 et seq.], the Administrator

is authorized and directed, as may be necessary or desirable to

carry out the provisions of this chapter, to issue guidelines with

respect to criteria for the establishment, functions, and

procedures of the agency boards (except for a board established by

the Tennessee Valley Authority).

-SOURCE-

(Pub. L. 95-563, Sec. 8, Nov. 1, 1978, 92 Stat. 2385; Pub. L.

97-164, title I, Secs. 156, 160(a)(15), Apr. 2, 1982, 96 Stat. 47,

48; Pub. L. 101-509, title V, Sec. 529 [title I, Sec. 104(d)(4)],

Nov. 5, 1990, 104 Stat. 1427, 1447; Pub. L. 101-552, Sec. 6(b),

Nov. 15, 1990, 104 Stat. 2746; Pub. L. 102-572, title IX, Sec.

902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103-355, title

II, Sec. 2351(c), Oct. 13, 1994, 108 Stat. 3322.)

-REFTEXT-

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 (Sec. 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.

-COD-

CODIFICATION

In subsec. (b)(1), "administrative law judges" 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. (i), 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), was omitted.

-MISC1-

AMENDMENTS

1994 - Subsec. (f). Pub. L. 103-355 substituted "$100,000" for

"$50,000".

1992 - Subsec. (d). Pub. L. 102-572 substituted "United States

Court of Federal Claims" for "United States Claims Court".

1990 - Subsec. (b)(1). Pub. L. 101-509, Sec. 529 [title I, Sec.

104(d)(4)(A)], substituted "Compensation for the chairman, the vice

chairman, and all other members of an agency board shall be

determined under section 5372a of title 5." for "The chairman of

each agency board shall receive compensation at a rate equal to

that paid a GS-18 under the General Schedule contained in section

5332, of title 5, the vice chairman shall receive compensation at a

rate equal to that paid a GS-17 under such General Schedule, and

all other members shall receive compensation at a rate equal to

that paid a GS-16 under such General Schedule. Such positions shall

be in addition to the number of positions which may be placed in

GS-16, GS-17, and GS-18 of such General Schedule under existing

law."

Subsec. (b)(2). Pub. L. 101-509, Sec. 529 [title I, Sec.

104(d)(4)(B)], substituted "The chairman and all other members of

such board shall receive compensation, at the daily equivalent of

the rates determined under section 5372a of title 5, for each day

they are engaged in the actual performance of their duties as

members of the board." for "The chairman of such board shall

receive compensation at a rate equal to the daily rate paid a GS-18

under the General Schedule contained in section 5332, of title 5,

for each day he is engaged in the actual performance of his duties

as a member of such board. All other members of such board shall

receive compensation at a rate equal to the daily rate paid a GS-16

under such General Schedule for each day they are engaged in the

actual performance of their duties as members of such board."

Subsec. (g)(3). Pub. L. 101-552 added par. (3).

1982 - Subsec. (d). Pub. L. 97-164, Sec. 160(a)(15), substituted

"United States Claims Court" for "Court of Claims".

Subsec. (g)(1)(A). Pub. L. 97-164, Sec. 156(1), substituted

"United States Court of Appeals for the Federal Circuit" for "Court

of Claims".

Subsec. (g)(1)(B). Pub. L. 97-164, Sec. 156(2), substituted

"Court of Appeals for the Federal Circuit for judicial review under

section 1295 of title 28" for "United States Court of Claims for

judicial review, under section 2510 of title 28".

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section

911 of Pub. L. 102-572, set out as a note under section 171 of

Title 28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101-509 effective on such date as the

President shall determine, but not earlier than 90 days, and not

later than 180 days, after Nov. 5, 1990, see section 529 [title

III, Sec. 305] of Pub. L. 101-509, set out as a note under section

5301 of Title 5, Government Organization and Employees.

EFFECTIVE 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 601, 603, 606, 609 of

this title; title 5 sections 504, 5102, 5372a, 9003; title 22

section 3862; title 25 section 450m-1; title 28 sections 1295,

1346.

-End-

-CITE-

41 USC Sec. 608 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 608. Small claims

-STATUTE-

(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 officer where the amount in dispute is $50,000 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.

(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 decisions 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.

-SOURCE-

(Pub. L. 95-563, Sec. 9, Nov. 1, 1978, 92 Stat. 2387; Pub. L.

103-355, title II, Sec. 2351(d), Oct. 13, 1994, 108 Stat. 3322.)

-MISC1-

AMENDMENTS

1994 - Subsec. (a). Pub. L. 103-355 substituted "$50,000" for

"$10,000".

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

-End-

-CITE-

41 USC Sec. 609 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 609. Judicial review of board decisions

-STATUTE-

(a) Actions in United States Court of Federal Claims; 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 Court of Federal Claims,

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 607 of this

title, notwithstanding any contract provision, regulation, or rules

of law to the contrary, the decision 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 Government from a decision

of an agency board pursuant to section 607 of this title, the court

may render an opinion and judgement and remand the case for further

action by the agency board or by the executive agency as

appropriate, with such direction as the court considers just and

proper.

(d) Consolidation

If two or more suits arising from one contract are filed in the

United States Court of Federal Claims and one or more agency

boards, for the convenience of parties or witnesses or in the

interest of justice, the United States Court of Federal Claims may

order the consolidation of such suits in that court or transfer any

suits to or among the agency boards involved.

(e) Judgments as to fewer than all claims

In any suit filed pursuant to this chapter involving two or more

claims, counterclaims, cross-claims, or third-party claims, and

where a portion of one such claim can be divided for purposes of

decision or judgment, and in any such suit where multiple parties

are involved, the court, whenever such action is appropriate, may

enter a judgment as to one or more but fewer than all of the

claims, portions thereof, or parties.

(f) Advisory opinions

(1) Whenever an action involving an issue described in paragraph

(2) is pending in a district court of the United States, the

district court may request a board of contract appeals to provide

the court with an advisory opinion on the matters of contract

interpretation at issue.

(2) An issue referred to in paragraph (1) is any issue that could

be the proper subject of a final decision of a contracting officer

appealable under this chapter.

(3) A district court shall direct any request under paragraph (1)

to the board of contract appeals having jurisdiction under this

chapter to adjudicate appeals of contract claims under the contract

or contracts being interpreted by the court.

(4) After receiving a request for an advisory opinion under

paragraph (1), a board of contract appeals shall provide the

advisory opinion in a timely manner to the district court making

the request.

-SOURCE-

(Pub. L. 95-563, Sec. 10, Nov. 1, 1978, 92 Stat. 2388; Pub. L.

97-164, title I, Secs. 157, 160(a)(15), 161(10), Apr. 2, 1982, 96

Stat. 47-49; Pub. L. 102-572, title IX, Sec. 902(b)(1), Oct. 29,

1992, 106 Stat. 4516; Pub. L. 103-355, title II, Sec. 2354, Oct.

13, 1994, 108 Stat. 3323.)

-MISC1-

AMENDMENTS

1994 - Subsec. (f). Pub. L. 103-355 added subsec. (f).

1992 - Subsecs. (a)(1), (d). Pub. L. 102-572 substituted "United

States Court of Federal Claims" for "United States Claims Court"

wherever appearing.

1982 - Subsec. (a)(1). Pub. L. 97-164, Sec. 161(10), substituted

"Claims Court" for "Court of Claims".

Subsec. (c). Pub. L. 97-164, Sec. 157, struck out ", or, in its

discretion and in lieu of remand it may retain the case and take

such additional evidence or action as may be necessary for final

disposition of the case" after "with such direction as the court

considers just and proper".

Subsec. (d). Pub. L. 97-164, Sec. 160(a)(15), substituted "United

States Claims Court" for "Court of Claims" in two places.

EFFECTIVE DATE OF 1994 AMENDMENT

For effective date and applicability of amendment by Pub. L.

103-355, see section 10001 of Pub. L. 103-355, set out as a note

under section 251 of this title.

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section

911 of Pub. L. 102-572, set out as a note under section 171 of

Title 28, Judiciary and Judicial Procedure.

EFFECTIVE 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 603 of this title; title 5

section 9003; title 10 section 2410m; title 22 sections 3861, 3862;

title 28 sections 1295, 1346, 1491.

-End-

-CITE-

41 USC Sec. 610 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 610. Subpena, discovery, and deposition

-STATUTE-

A member of an agency board of contract appeals may administer

oaths to witnesses, authorize depositions and discovery

proceedings, and require by subpena the attendance of witnesses,

and production of books and papers, for the taking of testimony or

evidence by deposition or in the hearing of an appeal by the agency

board. In case of contumacy or refusal to obey a subpena by a

person who resides, is found, or transacts business within the

jurisdiction of a United States district court, the court, upon

application of the agency board through the Attorney General; or

upon application by the board of contract appeals of the Tennessee

Valley Authority, shall have jurisdiction to issue the person an

order requiring him to appear before the agency board or a member

thereof, to produce evidence or to give testimony, or both. Any

failure of any such person to obey the order of the court may be

punished by the court as a contempt thereof.

-SOURCE-

(Pub. L. 95-563, Sec. 11, Nov. 1, 1978, 92 Stat. 2388.)

-End-

-CITE-

41 USC Sec. 611 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 611. Interest

-STATUTE-

Interest on amounts found due contractors on claims shall be paid

to the contractor from the date the contracting officer receives

the claim pursuant to section 605(a) of this title from the

contractor until payment thereof. The interest provided for in this

section shall be paid at the rate established by the Secretary of

the Treasury pursuant to Public Law 92-41 (85 Stat. 97) for the

Renegotiation Board.

-SOURCE-

(Pub. L. 95-563, Sec. 12, Nov. 1, 1978, 92 Stat. 2389.)

-REFTEXT-

REFERENCES IN TEXT

Provisions of Public Law 92-41, referred to in text, which

authorized the Secretary of the Treasury to fix interest rates for

the Renegotiation Board, were contained in section 2(a)(3) of Pub.

L. 92-41, which was classified to section 1215(b)(2) of Title 50,

Appendix, War and National Defense, and was omitted from the Code.

See note preceding section 1211 of Title 50, Appendix.

-MISC1-

INTEREST DUE ON CLAIMS WITH DEFECTIVE CERTIFICATIONS

Pub. L. 102-572, title IX, Sec. 907(a)(3), Oct. 29, 1992, 106

Stat. 4518, provided that: "If any interest is due under section 12

of the Contract Disputes Act of 1978 [41 U.S.C. 611] on a claim for

which the certification under section 6(c)(1) [41 U.S.C. 605(c)(1)]

is, on or after the date of the enactment of this Act [Oct. 29,

1992], found to be defective shall be paid from the later of the

date on which the contracting officer initially received the claim

or the date of the enactment of this Act."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 31 sections 3902, 3907.

-End-

-CITE-

41 USC Sec. 612 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 612. Payment of claims

-STATUTE-

(a) Judgments

Any judgment against the United States on a claim under this

chapter shall be paid promptly in accordance with the procedures

provided by section 1304 of title 31.

(b) Monetary awards

Any monetary award to a contractor by an agency board of contract

appeals shall be paid promptly in accordance with the procedures

contained in subsection (a) of this section.

(c) Reimbursement

Payments made pursuant to subsections (a) and (b) of this section

shall be reimbursed to the fund provided by section 1304 of title

31 by the agency whose appropriations were used for the contract

out of available funds or by obtaining additional appropriations

for such purposes.

(d) Tennessee Valley Authority

(1) Notwithstanding the provisions of subsection (a) through (c)

of this section, any judgment against the Tennessee Valley

Authority on a claim under this chapter shall be paid promptly in

accordance with the provisions of section 831h(b) of title 16.

(2) Notwithstanding the provisions of subsection (a) through (c),

any monetary award to a contractor by the board of contract appeals

for the Tennessee Valley Authority shall be paid in accordance with

the provisions of section 831h(b) of title 16.

-SOURCE-

(Pub. L. 95-563, Sec. 13, Nov. 1, 1978, 92 Stat. 2389; Pub. L.

104-106, div. D, title XLIII, Sec. 4322(b)(7), Feb. 10, 1996, 110

Stat. 677.)

-MISC1-

AMENDMENTS

1996 - Subsecs. (a), (c). Pub. L. 104-106 substituted "section

1304 of title 31" for "section 1302 of the Act of July 27, 1956,

(70 Stat. 694, as amended; 31 U.S.C. 724a)".

EFFECTIVE DATE OF 1996 AMENDMENT

For effective date and applicability of amendment by Pub. L.

104-106, see section 4401 of Pub. L. 104-106, set out as a note

under section 251 of this title.

-End-

-CITE-

41 USC Sec. 613 01/06/03

-EXPCITE-

TITLE 41 - PUBLIC CONTRACTS

CHAPTER 9 - CONTRACT DISPUTES

-HEAD-

Sec. 613. Separability

-STATUTE-

If any provision of this chapter, or the application of such

provision to any persons or circumstances, is held invalid, the

remainder of this chapter, or the application of such provision to

persons or circumstances other than those to which it is held

invalid, shall not be affected thereby.

-SOURCE-

(Pub. L. 95-563, Sec. 15, Nov. 1, 1978, 92 Stat. 2391.)

-End-