25 C.F.R. Subpart N—Post-Award Contract Disputes
Title 25 - Indians
(a) This subpart covers: (1) All HHS and DOI self-determination contracts, including construction contracts; and (2) All disputes regarding an awarding official's decision relating to a self-determination contract. (b) This subpart does not cover the decisions of an awarding official that are covered under subpart L. (a) The Contract Disputes Act of 1978 (CDA), Public Law 95–563 (41 U.S.C. 601 as amended); (b) If the matter is submitted to the Interior Board of Contract Appeals, 43 CFR 4.110–126; and (c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412 and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13 (DHHS). No. The Federal government attempts to resolve all contract disputes by agreement at the awarding official's level. These are alternatives to filing a claim under the CDA: (a) Before issuing a decision on a claim, the awarding official should consider using informal discussions between the parties, assisted by individuals who have not substantially participated in the matter, to aid in resolving differences. (b) In addition to filing a CDA claim, or instead of filing a CDA claim, the parties may choose to use an alternative dispute resolution mechanism, pursuant to the provisions of the Administrative Dispute Resolution Act, Public Law 101–552, as amended, 5 U.S.C. 581 et seq., or the options listed in section 108(1)(b)(12) of the Indian Self-Determination Act, as applicable. (a) A claim is a written demand by one of the contracting parties, asking for one or more of the following: (1) Payment of a specific sum of money under the contract; (2) Adjustment or interpretation of contract terms; or (3) Any other claim relating to the contract. (b) However, an undisputed voucher, invoice, or other routing request for payment is not a claim under the CDA. A voucher, invoice, or routing request for payment may be converted into a CDA claim if: (1) It is disputed as to liability or amount; or (2) It is not acted upon in a reasonable time and written notice of the claim is given to the awarding official by the senior official designated in the contract. (a) An Indian tribe or tribal organization shall submit its claim in writing to the awarding official. The awarding official shall document the contract file with evidence of the date the claim was received. (b) A Federal agency shall submit its claim in writing to the contractor's senior official, as designated in the contract. Yes. The Contract Disputes Act requires that an Indian tribe or tribal organization making a claim for more than $100,000 shall certify that: (a) The claim is made in good faith, (b) Supporting documents or data are accurate and complete to the best of the Indian tribe or tribal organization's knowledge and belief; (c) The amount claimed accurately reflects the amount believed to be owed by the Federal government; and (d) The person making the certification is authorized to do so on behalf of the Indian tribe or tribal organization. (a) If the parties do not agree on a settlement, the awarding official will issue a written decision on the claim. (b) The awarding official shall always give a copy of the decision to the Indian tribe or tribal organization by certified mail, return receipt requested, or by any other method which provides a receipt. A decision shall: (a) Describe the claim or dispute; (b) Refer to the relevant terms of the contract; (c) Set out the factual areas of agreement and disagreement; (d) Set out the actual decision, based on the facts, and outline the reasoning which supports the decision; and (e) Contain the following language:
This is a final decision. You may appeal this decision to the Interior Board of Contract Appeals (IBCA), U.S. Department of the Interior, 801 North Quincy Street, Arlington, VA 22203. If you decide to appeal, you shall, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the IBCA and provide a copy to the individual from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, and refer to the decision and contract number. Instead of appealing to the IBCA, you may bring an action in the U.S. Court of Federal Claims or in the United States District Court within 12 months of the date you receive this notice. (a) If the claim is for more than $100,000, the awarding official shall issue the decision within 60 days of the day he or she receives the claim. If the awarding official cannot issue a decision that quickly, he or she shall tell you when the decision will be issued. (b) If the claim is for $100,000 or less, and you want a decision within 60 days, you shall advise the awarding official in writing that you want a decision within that period. If you advise the awarding official in writing that you do want a decision within 60 days, the awarding official shall issue the decision within 60 days of the day he or she receives your written notice. (c) If your claim is for $100,000 or less and you do not advise the awarding official that you want a decision within 60 days, or if your claim exceeds $100,000 and the awarding official has notified you of the time within which a decision will be issued, the awarding official shall issue a decision within a reasonable time. What is “reasonable” depends upon the size and complexity of your claim, and upon the adequacy of the information you have given to the awarding official in support of your claim. If the awarding official does not issue a decision within the time required under §900.223, the Indian tribe or tribal organization may treat the delay as though the awarding official has denied the claim, and proceed according to §900.222(e), Yes. Once the awarding official decides that money should be paid under the contract, the amount due, minus any portion already paid, should be paid as promptly as possible, without waiting for either party to file an appeal. Any payment which is made under this subsection will not affect any other rights either party might have. In addition, it will not create a binding legal precedent as to any future payments. In any appeal involving a disallowance of costs, the Board of Contract Appeals will give due consideration to the factual circumstances giving rise to the disallowed costs, and shall seek to determine a fair result without rigid adherence to strict accounting principles. The determination of allowability shall assure fair compensation for the work or service performed, using cost and accounting data as guides, but not rigid measures, for ascertaining fair compensation. (a) The decision of the awarding official is 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 the Contract Disputes Act. Once the decision has been made, the awarding official may not change it, except by agreement of the parties, or under the following limited circumstances: (1) If evidence is discovered which could not have been discovered through due diligence before the awarding official issued the decision; (2) If the awarding official learns that there has been fraud, misrepresentation, or other misconduct by a party; (3) If the decision is beyond the scope of the awarding official's authority; (4) If the claim has been satisfied, released or discharged; or (5) For any other reason justifying relief from the decision. (b) Nothing in this subpart shall be interpreted to discourage settlement discussions or prevent settlement of the dispute at any time. (c) If a decision is withdrawn and a new decision is issued that is not acceptable to the contractor, the contractor may proceed with the appeal based on the new decision. If no new decision is issued, the contractor may proceed under §900.224. (d) If an appeal or suit is filed, the awarding official may modify or withdraw his or her final decision. Yes. If an Indian tribe or tribal organization wins the claim, it will be entitled to interest on the amount of the award. The interest will be calculated from the date the awarding official receives the claim until the day it is paid. The interest rate will be the rate which the Secretary of the Treasury sets for the Renegotiation Board under the Renegotiation Act of 1951, Public Law 92–41, 26 U.S.C. 1212 and 26 U.S.C. 7447. (a) The awarding official shall provide any data, documentation, information or support required by the IBCA for use in deciding a pending appeal. (b) Within 30 days of receiving an appeal or learning that an appeal has been filed, the awarding official shall assemble a file which contains all the documents which are pertinent to the appeal, including: (1) The decision and findings of fact from which the appeal is taken; (2) The contract, including specifications and pertinent modifications, plans and drawings; (3) All correspondence between the parties which relates to the appeal, including the letter or letters of claims in response to which the decision was issued; (4) Transcripts of any testimony taken during the course of the proceedings, and affidavits or statements of any witnesses on the matter in dispute, which were made before the filing of the notice of appeal with the IBCA; and (5) Any additional information which may be relevant. (a) Indian tribes and tribal organizations shall continue performance of a contract during the appeal of any claims to the same extent they would had there been no dispute. (b) A pending dispute will not affect or bar the negotiation or award of any subsequent contract or negotiation between the parties.
Title 25: Indians
PART 900—CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
Subpart N—Post-Award Contract Disputes
§ 900.215 What does this subpart cover?
§ 900.216 What other statutes and regulations apply to contract disputes?
§ 900.217 Is filing a claim under the CDA our only option for resolving post-award contract disputes?
§ 900.218 What is a claim under the CDA?
§ 900.219 How does an Indian tribe, tribal organization, or Federal agency submit a claim?
§ 900.220 Does it make a difference whether the claim is large or small?
§ 900.221 What happens next?
§ 900.222 What goes into a decision?
§ 900.223 When does an Indian tribe or tribal organization get the decision?
§ 900.224 What happens if the decision does not come within that time?
§ 900.225 Does an Indian tribe or tribal organization get paid immediately if the awarding official decides in its favor?
§ 900.226 What rules govern appeals of cost disallowances?
§ 900.227 Can the awarding official change the decision after it has been made?
§ 900.228 Is an Indian tribe or tribal organization entitled to interest if it wins its claim?
§ 900.229 What role will the awarding official play during an appeal?
§ 900.230 What is the effect of a pending appeal?
