(a) Concurrent with forwarding the appeal file to the ASBCA, the contracting officer must send the following documents to the addressee in 5133.104(a)(4)(S-90)(1)(ii) or (iii) as applicable with a copy to the reviewing official designated in accordance with 5133.212-90-4:
(1) A copy of the appeal file.
(2) A trial attorney’s litigation file (exempt report, paragraph 5-2e(4) of Army Regulation (AR) 335-15 which shall include the information listed in (i) through (v) below. This report shall not be provided to the ASBCA or the contractor.
(i) The names, current addresses and telephone numbers of all potential witnesses (including the contractor’s) having information concerning the facts in dispute.
(ii) A signed statement of each Government witness itemizing personal knowledge of the facts the witness will testify to under oath at hearing (or a summary if it is impossible to obtain a signed statement). Include the following:
(A) Background and circumstances surrounding the generation of pertinent documents.
(B) Explanation, basis and/or rationale of those portions of the available documents which will require clarification at the hearing.
(C) Listing of any facts and events not shown by available documents.
(D) Identification of any other persons having personal knowledge of pertinent facts.
(E) A statement regarding the expected availability of the witness for the hearing.
(iii) An analysis for the Chief Trial Attorney discussing the contractor’s individual allegations and overall position with an opinion of the validity of each, and an appraisal of the strengths and weaknesses apparent in both parties’ positions.
(iv) A memorandum by the legal advisor or the official making the decision (with input from legal counsel), setting forth an analysis of the legal issues involved in the dispute, including comments about the adequacy of the findings of fact and the legal sufficiency of the decision.
(v) The advisory report, if any, of the Contract Settlement Review Board.
(b) The contracting officer must send to the Chief Trial Attorney a copy of all correspondence and other data pertinent to the dispute received after the trial attorney’s litigation file has been submitted. Also forward copies to the reviewing official.
(c) Upon discovery of new facts or circumstances, the Chief Trial Attorney is authorized, in appropriate cases, to have the reviewing official reconsider the matter.
[AFARS Revision #21, dated May 22, 2007]
