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Why is the clause at FAR 52.233-1 named "Disputes"? The word dispute appears in the clause only four times and the word is not defined. The word claim appears 24 times and is defined in great detail.

The clause is devoted to the procedure for the submission and certification of claims and to CO issuance of decisions on claims.

The same applies to FAR Subpart 33.2. Why isn't it named "Claims, CO Decisions, and Appeals"? Wouldn't that be more descriptive of its content than "Disputes and Appeals"?

Is a dispute a prerequisite to the submission of a claim?

What constitutes a dispute? Is every disagreement between the parties a dispute? If not, what is the difference?

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2 hours ago, Vern Edwards said:

Is a dispute a prerequisite to the submission of a claim?

No. The other party may agree with the claim without material disagreement.

2 hours ago, Vern Edwards said:

What constitutes a dispute? Is every disagreement between the parties a dispute? If not, what is the difference?

It seems contractual issues in controversy are disputes. Accordingly, a disagreement would need to be a material disagreement that may result in a claim or is a part of an existing claim.

“Issue in controversy means a material disagreement between the Government and the contractor that-

            (1) May result in a claim; or

            (2) Is all or part of an existing claim.“

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14 hours ago, Vern Edwards said:

Why is the clause at FAR 52.233-1 named "Disputes"? The word dispute appears in the clause only four times and the word is not defined. The word claim appears 24 times and is defined in great detail.

The clause is devoted to the procedure for the submission and certification of claims and to CO issuance of decisions on claims.

The same applies to FAR Subpart 33.2. Why isn't it named "Claims, CO Decisions, and Appeals"? Wouldn't that be more descriptive of its content than "Disputes and Appeals"?

Is a dispute a prerequisite to the submission of a claim?

I think the clause and Subpart titles are an artifact in the FAR from before some case law led to a rule change.  Per The Government Contract Reference Book, "Prior to 1995, claims could not be adjudicated by a board of contract appeals or the U.S. Court of Federal Claims until there had been a dispute followed by the submission of a claim." (emphasis added).  It goes on, "However, in Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995), the rule was changed and it was held that there was no requirement that there be a dispute prior to the filing of a proper claim except where the issue was nonpayment of a voucher, invoice, or routine request for payment."

I found what appears to be the resultant Proposed Rule in the Federal Register, at 66 FR 42921.  The changes did not include a retitling of the clause or Subpart, which may have led to their current statuses as misnomers.

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In the old Armed Services Procurement Regulation, Section 1, General Provisions, paragraph 1.314 was named "Disputes." This is how the Disputes clause read in the 1976 edition of the Armed Services Procurement Regulation, before enactment of the Contract Disputes Act (CDA) of 1978, which is the current law:

Quote

(a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Secretary. The decision of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of his appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision.

(b) This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

No mention of the word claim. No certification requirement. The entire focus was on the word dispute. The CO had to make a final decision about a dispute.

The CDA changed that, shifting the focus to a claim, and the CO had to make a final decision about a claim. But when DOD added coverage of the new law to the ASPR it retained the old paragraph heading, "Disputes and Appeals." Since the FAR was largely modeled on the ASPR, the coverage in Part 33 was named "Disputes and Appeals." They didn't name it to reflect the change in emphasis from disputes to claims. No dispute is necessary for a claim. Today, Subpart 33.2 is still "Disputes and Appeals," which is a little misleading. Some contracting officers still think there has to be a dispute before there can be a claim, even after the Reflectone decision.

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