41 U.S.C. § 113 : US Code - Section 113: Appeals

Search 41 U.S.C. § 113 : US Code - Section 113: Appeals

(a) Failure to settle claims by agreement; preparation of findings;
notice to war contractor
Whenever the contracting agency responsible for settling any
termination claim has not settled the claim by agreement or has so
settled only a part of the claim, (1) the contracting agency at any
time may determine the amount due on such claim or such unsettled
part, and prepare written findings indicating the basis of the
determination, and deliver a copy of such findings to the war
contractor, or (2) if the termination claim has been submitted in
the manner and substantially the form prescribed under this
chapter, the contracting agency, upon written demand by the war
contractor for such findings, shall determine the amount due on the
claim or unsettled part and prepare and deliver such findings to
the war contractor within ninety days after the receipt by the
agency of such demand. In preparing such findings, the contracting
agency may require the war contractor to furnish such information
and to submit to such audits as may be reasonably necessary for
that purpose. Within thirty days after the delivery of any such
findings, the contracting agency shall pay to the war contractor at
least 90 per centum of the amount thereby determined to be due,
after deducting the amount of any outstanding interim financing
applicable thereto.
(b) Rights of war contractor
Whenever any war contractor is aggrieved by the findings of a
contracting agency on his claim or part thereof or by its failure
to make such findings in accordance with subsection (a) of this
section, he may bring suit against the United States for such claim
or such part thereof, in the United States Court of Federal Claims
or in a United States district court, in accordance with sections
1346, 2401, and 2402 of title 28, except that, if the contracting
agency is the Reconstruction Finance Corporation, or any
corporation organized pursuant to the Reconstruction Finance
Corporation Act, or any corporation owned or controlled by the
United States, the suit shall be brought against such corporation
in any court of competent jurisdiction in accordance with existing
law.
(c) Procedure
Any proceeding under subsection (b) of this section shall be
governed by the following conditions:
(1) When any contracting agency provides a procedure within the
agency for protest against such findings or for other appeal
therefrom by the war contractor, the war contractor, before
proceeding under subsection (b) of this section, (i) in his
discretion may resort to such procedure within the time specified
in his contract or, if no time is specified, within thirty days
after the delivery to him of the findings; and (ii) shall resort
to such procedure for protest or other appeal to the extent
required by the Administrator of General Services, but failure of
the contracting agency to act on any such required protest or
appeal within thirty days shall operate as a refusal by the
agency to modify its findings. Any revision of the findings by
the contracting agency, upon protest or appeal within the agency,
shall be treated as the findings of the agency for the purpose of
appeal or suit under subsection (b) of this section.
Notwithstanding any contrary provision in any war contract, no
war contractor shall be required to protest or appeal from such
findings within the contracting agency except in accordance with
this paragraph.
(2) A war contractor may initiate proceedings in accordance
with subsection (b) of this section (i) within ninety days after
delivery to him of the findings by the contracting agency, or
(ii) in case of protests or appeal within the agency, within
ninety days after the determination of such protest or appeal, or
(iii) in case of failure to deliver such findings, within one
year after his demand therefor. If he does not initiate such
proceedings within the time specified, he shall be precluded
thereafter from initiating any proceedings in accordance with
subsection (b) of this section, and the findings of the
contracting agency shall be final and conclusive, or if no
findings were made, he shall be deemed to have waived such
termination claim.
(3) Notwithstanding any contrary provision in any war contract,
the court shall not be bound by the findings of the contracting
agency, but shall treat such findings as prima facie correct, and
the burden shall be on the war contractor to establish that the
amount due on his claim or part thereof exceeds the amount
allowed by the findings of the contracting agency. Whenever the
court finds that the war contractor failed to negotiate in good
faith with the contracting agency for the settlement of his claim
or part thereof before appeal or suit thereon, or failed to
furnish to the agency any information reasonably requested by it
regarding his termination claim or part thereof, or failed to
prosecute diligently any protest or appeal required to be taken
under subsection (c)(1)(ii) of this section, the court (i) may
refuse to receive in evidence any information not submitted to
the contracting agency; (ii) may deny interest on the claim or
part thereof for such period as it deems proper; or (iii) may
remand the case to the contracting agency for further proceedings
upon such terms as the court may prescribe. Unless the case is
remanded, the court shall enter the appropriate award or judgment
on the basis of the law and facts, and may increase or decrease
the amount allowed by the findings of the contracting agency.
(4) Any such proceedings shall not affect the authority of the
contracting agency concerned to make a settlement of the
termination claim, or any part thereof, by agreement with the war
contractor at any time before such proceedings are concluded.
(d) Omitted
(e) Arbitration
The contracting agency responsible for settling any claim and the
war contractor asserting the claim, by agreement, may submit all or
any part of the termination claim to arbitration, without regard to
the amount in dispute. Such arbitration proceedings shall be
governed by the provisions of United States Arbitration Act to the
same extent as if authorized by an effective agreement in writing
between the Government and the war contractor. Any such arbitration
award shall be final and conclusive upon the United States to the
same extent as a settlement under subsection (c) of section 106 of
this title, but shall not be subject to approval by any settlement
review board.
(f) Conclusiveness of decisions
Whenever any dispute exists between any war contractor and a
subcontractor regarding any termination claim, either of them, by
agreement with the other, may submit the dispute to a contracting
agency for mediation or arbitration whenever authorized by the
agency or required by the Administrator of General Services.
Any award or decision in such proceedings shall be final and
conclusive as to the parties so submitting any such dispute and
shall not be questioned by the United States in settling any
related claim, in the absence of fraud or collusion.