claims from the contractor, final payment may be processed with the approval of appropriate legal counsel.

(b) The amount of final payment must include, as appropriate, any deductions to cover liquidated damages for late completion, liquidated damages for labor violations, amounts withheld for improper payment of labor wages, and the amount of unilateral change orders covering defects and omissions.

532.908 Contract clause.

(a) For FSS Stock, Special Order, and Schedules solicitations and contracts that provide payment in 10 days under 532.905(c), the contracting officer must:

(1) If the contract will include FAR 52.212-4, insert the clause at 552.232-70. GSA received a class deviation to allow use of 552.232-70 for commercial items. (2) If the contract will not include FAR 52.212-4, insert 552.232-25, Prompt Payment, instead of FAR 52.232–25.

(b) The contracting officer shall insert the clause at 552.232-71, Prompt Payment, in solicitations and contracts for the acquisition of leasehold interests in real property. The contracting officer may modify the date for constructive acceptance in subparagraph (b)(2) of the basic clause to specify a period longer than 7 calendar days (but not to exceed 30 days) if necessary due to the nature of the services to be received, inspected or accepted by the Government. A written justification for specifying the longer period must be prepared and approved by the contracting director. The contracting officer shall use Alternate I instead of the basic clause if the lease contract does not contain provisions for ordering alterations or overtime utility services.

(c) The contracting officer shall insert the clause at 552.232-73, Electronic Funds Transfer Payment, in solicitations and contracts for acquisitions of leasehold interests in real property which involve both more than 10,000 square feet of space and terms which exceed 6 months, if payment may be made by electronic funds transfer.

[54 FR 26541, June 23, 1989, as amended at 57 FR 37890, Aug. 21, 1992; 63 FR 12966, Mar. 16, 1998]

Subpart 532.70—Authorizing Payment by Credit Card Under Schedule Contracts

SOURCE: 54 FR 43180, Oct. 23, 1989, unless otherwise noted.

532.7001 Definition.

Government commercial credit card, used in this subpart, means the uniquely numbered credit card issued by the contractor under single award schedule, Federal Supply Schedule IG 615, Governmentwide Commercial Credit Card Service, to named individual Government employees to pay for official Government purchases.

532.7002 Solicitation requirements.

When solicitations for schedule contracts for supplies (other than telecommunication and telephone equipment) and services (other than teleprocessing services) request offerors to indicate whether payment by Government commercial credit card for orders of $25,000 or less will be accepted, the contracting officer shall identify the clearinghouse that is being used by the contractor issuing credit cards under single award schedule, Federal Supply Schedule IG 615, for Governmentwide Commercial Credit Card Service on the cover page or in section L of the solicitation. The name of the clearinghouse is provided for offerors' information and use in responding to the schedule solicitation.

before consulting with the Assistant Inspector General-Auditing or the Field Audit Office regarding cost or other supporting data as required under:

(1) Cost-reimbursement type contracts;

(2) The cost-reimbursement portion of fixed-price type contracts;

(3) Time and materials or labor-hour contracts; or

(4) Fixed-price contracts providing for (i) progress payments based on costs, (ii) advance payments, (iii) guaranteed loans, or (iv) incentives or redetermination.

(b) The contracting officer shall not approve the final payment invoice or voucher for such contracts, nor for the final payment or settlement of other contracts subject to audit prior to (1) receipt and review of the contract audit report or (2) consultation with the Assistant Inspector General for Auditing or the Field Audit Office if no audit is to be conducted; provided, that this paragraph (b) shall not apply to fixed-price contracts with escalation where no price revision (upward or downward) is to be made.

532.7102 Submission and processing of invoices or vouchers.

(a) Contractors should be required to submit invoices or vouchers to the contracting officer. Contracting officers must annotate the invoices with the date of receipt as required by FAR 32.905. That date will be used to determine interest penalties for late payments. The processing of invoices or vouchers before payment must include a review by the contracting officer, or a designee, to determine that the items and amounts claimed are in consonance with the contract terms and represent prudent business transactions. The contracting officer must ensure that these payments are commensurate with physical and technical progress under the contract. If the contractor has not deducted from the invoice amounts which are questionable or which are required to be withheld, the contracting officer shall make the required deduction, except as provided in 532.7103.

(b) Subject to 532.7101, approval by the contracting officer of any payment,

must be noted on (or attached to) the invoice or voucher submitted by the contractor. The invoice or voucher will be forwarded to the appropriate contract finance office and retained therein after certification and scheduling for payment by a disbursing office.

532.7103 Action upon receipt of an audit report.

Audit reports will be furnished to the contracting officer, with a copy to the appropriate contract finance office. Upon receipt of an audit report, the contracting officer shall, pursuant to contract terms, determine the allowability of all costs covered by audit, giving full consideration to the auditor's recommendations. When the contracting officer is in doubt or questions the recommendations of the auditor, deductions need not be made from invoices or vouchers for provisional payments. In these cases, the contracting officer shall confer with the auditor and other appropriate Government personnel (such as a price specialist or legal counsel) to determine what further action should be taken regarding the costs in question. If the contracting officer disagrees with the auditor's recommendations, the contracting officer shall document the contract file and furnish the auditor with a copy of the statement.

532.7104 Suspension and disapproval of amounts claimed.

The contracting officer shall notify the appropriate contract finance office in writing when amounts claimed for payment are (a) suspended, (b) disapproved as not being allowable according to contract terms, or (c) not allocable to the contract. This notice by the contracting officer will be the basis for the issuance by the contract finance office of GSA Form 533, Administrative Difference Statement. A copy of GSA Form 533 will be attached to each copy of the invoice or voucher from which the deduction has been made, including an explanation of the deduction.

by the contracting officer at an earlier time, the protest shall be deemed to be filed when received by the contracting officer.

When a protest is filed only with the agency, an award may not be made until a decision on the protest is issued, unless the contracting director first makes the determination required by FAR 33.103(a)(2). The protestor must be notified in writing of the contracting officer's decision in a timely man

ner.

[56 FR 47006, Sept. 17, 1991]

533.104 Protests to GAO.

(a) General procedures. (1) In addition to the requirements of FAR 33.104(a)(3), the agency report must contain the GAO protest number (GAO case file number), the solicitation or contract number, the full corporate name of the protesting organization and other firms involved, and a statement indicating whether the protest was filed before or after award. If the protest is filed after award, the report must contain the identity of the awardee, the date of award, the contract number, the date and time of bid opening (including a statement when the date of bid opening was extended by subsequent amendments), the total number of offerors, a complete chronological statement of all relevant events and administrative actions taken (including reasons and authority for the actions taken), and any other relevant documents believed helpful in determining the validity of the protest. (This evidence should be referenced and identified within the text of the position statement, alphabetically or numerically, e.g., Tab A, Exhibit 1, etc.)

(2) GAO protests must be handled on a priority basis. The appropriate Associate General Counsel (AGC) shall prepare a report for signature of the General Counsel responding to GAO protests. These reports are to be based upon a statement of fact and position prepared by the responsible contracting officer and approved by the contracting director. When requested by the appropriate AGC, the Regional Counsel will prepare a statement of legal position analyzing the merits of a protest concerning a regional procurement.

(3) The following procedures must be followed in handling protests:

con

(i) When a protest is received by the agency, the AGC shall telephonically notify the contracting officer through the appropriate Central Office tracting activity or Regional Counsel. If the contracting activity or Regional Counsel receives a copy of a protest before being notified thereof by the AGC, they must immediately notify the appropriate AGC.

(ii) After receiving the formal protest, which has been filed with GAO, the AGC will formally request a statement of fact and position from the contracting officer through the appropriate Central Office contracting activity or Regional Counsel. The contracting officer shall immediately notify the affected bidders or offerors that a protest has been received.

(iii) The contracting officer shall notify assigned counsel and begin preparing a documented statement of fact and position immediately upon receiving a protest or notice thereof.

(iv) When completed, the statement of fact and position must be concurred in by the contracting director, and on regional procurements, by the Office of Regional Counsel. In appropriate cases, the AGC may request the Regional Counsel to prepare a legal position analyzing the merits of a protest against a regional procurement. In such cases, the contracting officer's statement of fact and position should be included as a referenced attachment thereto.

(v) The Regional Counsel's legal position, when requested, and the contracting officer's statement of fact and position, must be transmitted to the appropriate AGC, in triplicate. If other interested parties are involved, additional copies may be requested. The statement is due in the office of the appropriate AGC no later than 10 workdays after the date on which the contracting officer originally received the protest. This time may be reduced if GAO invokes the express option. If a contracting officer is unable to prepare a statement of fact and position within 10 workdays, the appropriate AGC must be notified promptly, by telephone, of the reasons for the delay and of the additional time needed. Additional time may be granted if the spe

cific circumstances of the protest require a longer time. A request for an extension is proper only if the facts or legal issues affecting the resolution of a protest are so complicated that an adequate report cannot be prepared on time; the need to coordinate the report with other agencies, or with offices in distant locations, makes it impossible to prepare the report on time; or other compelling circumstances prevent preparing the report on time. Upon request of the AGC, the contracting officer shall confirm any oral requests for extensions in writing. The contracting director shall concur in the request and send a copy to the HCA. A request for an extension, which will delay submission of the agency's report to GAO beyond 35 days from the date GSA originally received the protest, may be granted only by the GAO. The AGC will notify the Central Office contracting activity or Regional Counsel of the GAO's decision.

(vi) After submitting the statement to the AGC, the contracting officer or Regional Counsel must advise the AGC of all later developments that may affect the case.

transmitted

(vii) All documents under these procedures must be sent by the fastest means possible.

(viii) In addition to the requirements of FAR 33.104(a)(5)(ii), a copy of any comments is sent to the AGC.

(4) The Office of General Counsel (OGC) must furnish the GAO with the name, title, and telephone number of one or more officials whom the GAO may contact regarding protests. The OGC is responsible for promptly advising the GAO of any change in the designated officials.

(5) The format for notification required by FAR 33.104(a)(2) is as follows: Name Address

A protest concerning

Solicitation No.

has been filed with the General Accounting Office (GAO).

The protest was filed by (Insert the name and address of the protester, and the name of the person signing the protest.) on (Date).

Copies of the protest may be obtained from this office.

You may submit your views and relevant information regarding the protest directly to the General Accounting Office. A copy of any

submission to the GAO should be provided to this office.

Contracting Officer's signature

(b) Protests before award. Under FAR 33.104(b), the HCA may determine in writing that urgent and compelling circumstances significantly affecting the interests of the United States do not permit waiting for the decision of GAO and award is likely to occur within 30 days. The written determinations and findings (D&F), in the format shown at 501.704–70(e)(1), should be prepared by the contracting officer for the signature of the HCA. The D&F must be concurred in by the Regional Counsel (on regional procurements), and the appropriate AGC. After the D&F is approved, it must be returned to the appropriate AGC who notifies GAO of the agency's findings and intended action before the award is made.

(c) Protests after award. If the protest is received from GAO (not from protester or any other party) within the time periods specified in FAR 33.104(c) contract performance must be suspended unless the HCA determines in writing that contract performance is in the best interests of the United States or that urgent and compelling circumstances that significantly affect the interests of the United States do not permit waiting for the GAO's decision. The written determination and findings (D&F), in the format shown at 501.704–70(e)(2), should be prepared by the contracting officer for signature of the HCA. The D&F must be concurred in by the Regional Counsel (on regional procurements), and the the appropriate AGC. After the D&F is approved, it must be returned to the AGC who notifies GAO of the agency's findings and intended action before contract performance is authorized.

(d) Notice to GAO. The HCA responsible for the solicitation, proposed award, or award of the contract must report to the Comptroller General through the OGC within 65 days of receipt of the GAO's recommendation if the agency has decided not to comply with the recommendation. The report must explain the reasons why the

GAO's recommendation will not be followed.

[54 FR 26543, June 23, 1989, as amended at 57 FR 61584, Dec. 28, 1992; 61 FR 1151, Jan. 17, 1996]

533.105 Protests to GSBCA.

(a) Notification procedure. After receiving a protest, the contracting officer shall notify the following:

(1) All firms solicited, or those who have submitted sealed bids or offers if the protest is filed after the closing date of the solicitation, and the appropriate delegating official in the Information Technology Service. When giving such notification, the contracting officer should follow these procedures:

(i) Avoid interpreting or characterizing the nature of the protest.

(ii) Use appropriate means to ensure delivery to all the firms by the workday after the date of filing with the GSBCA.

(iii) Use the following format:

Name (Officer, Managing Agent, or person who signed offer) Address

A protest concerning Solicitation No. has been filed with the General Services Administration Board of Contract Appeals (GSBCA). The protest was filed by (Insert the name and address of the protester and the name of the person signing the protest.) on (Date). The protest has been purportedly filed pursuant to Section 2713 of the Competition in Contracting Act, Pub. L. 98-369. Copies of the protest may be obtained from the Office of the Clerk of the GSBCA, 18th and F Streets NW, Washington, DC 20405, or from the contracting officer.

Contracting Officer's signature

(2) The agency on whose behalf GSA is making the procurement, if any. A copy of the protest complaint, including all attachments, must be forwarded to the agency by appropriate means to ensure next day delivery to both the requiring office and the agency's legal office.

(3) Assigned counsel. A copy of the protest complaint, including all attachments, must be forwarded to the appropriate AGC by appropriate means to ensure next day delivery.

(4) The Board, through assigned counsel, within 3 workdays after the date of filing with the GSBCA, that the notices described in paragraphs (a)(1)