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Assisting the co in Resolving Disputes
What does the COR do to assist the CO in resolving disputes?
Two steps in dispute resolution will involve the COR:
1. Preparing supporting documentation for a dispute or claim
2. Participating in ADR procedures.
Preparing supporting documentation for a dispute or claim involves submitting supporting data to the CO that:
Provides a description of the claim or dispute
References the pertinent contract terms
Includes a statement of the areas of agreement or disagreement
Determines whether the contractor is indebted to the government
Makes a recommendation to reject, partially accept, or fully accept the claim
Includes background information covering:
- Facts, in chronological order, about the claim or dispute
- All separate issues or allegations involved in the claim or dispute
- Points of contact for discussion of the dispute.
Methods used in developing this documentation include:
Discussions with the contractor
Personal observations at the work site
Discussions with other government personnel (e.g., audit, quality assurance, or program office employees).
The COR will also participate in ADR procedures.
What is alternative dispute resolution?
Alternative dispute resolution (ADR) is any procedure or combination of procedures that the government and the contractor use voluntarily to resolve issues in controversy without the need to resort to litigation. ADR procedures may include, but are not limited to:
Assisted settlement negotiations
Conciliation, facilitation, mediation, and fact-finding
Use of ombudsmen.
ADR procedures may be used at any time and should be employed as often as possible to resolve controversial issues. ADR procedures are best used when:
An issue in controversy exists
Officials from both parties who are authorized to resolve the issue voluntarily participate in dispute resolution
Both parties agree on procedures and terms
Formal litigation will not be pursued.
Agencies have established very specific ADR procedures. The CO may request, and provide guidance for, the COR's participation in the ADR procedures.
Assisting the co in Processing Formal claims
How does the COR help the CO process formal claims?
To assist the CO in the claim resolution process, the COR should:
1. Submit a detailed analysis of the claim
2. Participate in appeals proceedings.
1. Submitting a detailed analysis of the claim
The COR will provide information to assist the CO in completing a detailed analysis of the claim. This technical analysis should be submitted in writing to the CO, including the following information:
The background of the claim or dispute (including information used to support the dispute)
Contract number and date
Estimated contractor's claim amount, the amount the contractor may be entitled to, and any reasons for the differences between the two amounts
Contractor's labor and equipment usage and cost
Documentation (from monitoring reports) of idle time, wasted time, or dragged-out time
Possible overstaffing of personnel or over equipping
Contractor's cost overage (or overrun) on materials, labor, equipment, and overhead
Contractor's diligence and production efficiency (the COR should note the number of days or months the contractor is behind schedule)
Number of changes or change orders received and processed under the contract
The engineering approach that was employed by the contractor, establishing the reasonableness of any additional time and person-hours expended.
Once a claim has been identified, the CO may request that the COR assist with the preparation of the claims file for the appeal proceedings.
2. Participating in appeals proceedings
The CO may ask the COR to provide some of the required information for the claims file when the contractor appeals to the government agency, the courts, or the agency's counsel. This required information must support the CO's final decision on the claim and must be:
Responsive to all issues addressed in the claim
Impartial and unbiased
If the decision following an appeal favors the contractor, the CO may negotiate an equitable adjustment, unless the amount of relief (in terms of money or extra time to perform the contract) has already been established in the decision. The CO may request assistance from the COR in negotiating the equitable adjustment. After negotiation, a supplemental agreement (bilateral contract modification) is used to formally reflect the equitable adjustment.
What should a claims file include?
A claims file should include the following documentation, whenever possible:
The contract specification and drawings, including all modifications.
The COR's correspondence files.
Copies or documentation of any written or oral technical direction that the COR may have provided to the contractor and that may be pertinent to the claim.
Contract modifications that include technical changes on a project. Of particular importance are changes that were originally approved, plus those that have been added throughout the course of the contract.
Inspection records, including daily records, if applicable, and logs or reports by inspectors and contractor personnel.
Memoranda of meetings (only those pertinent to the claim).
All progress charts and information, including any bar or other charts and all changes to the charts concerning progress.
Copies of the postaward orientation meeting notes. These may establish expectations and understandings of both parties concerning a particular provision of the specifications or anticipated problems.
Copies of contract clauses. These are important for general reference purposes and should be reviewed during the course of a claim's preparation.
Copies of all photographs pertinent to the claim.
Copies of pertinent logs, such as change order logs or submittal approval logs.
Copies of the contractor's interim and final performance evaluations of the contractor's performance. These can be used to support performance disputes.
Information submitted by both parties constitutes the file that will be used during the appeals proceedings, and much of this information will be used as evidence during the litigation process.
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