39.5.1  Public Contracts, Technology Law, and Related Matters

39.5.1.1  (08-11-2004)
Contracting

  1. The GLS attorneys in the Public Contracts and Technology Law Branch (PCTL) are responsible for providing legal support to the Service’s contracting offices, requiring activities, the facilities management offices, fiscal offices, and other National and field or area office elements, upon request, on all legal matters pertaining to the formation, administration, performance, and payment made under contracts entered into by the Service. This support covers the full range of problems encountered by the various Service elements in all phases of purchasing supplies and nonpersonal services.

  2. Formation. PCTL attorneys provide legal assistance by reviewing acquisition plans, solicitations, requests for proposals, and contract awards. The dollar value threshold requiring legal review is set forth in Agency-Wide Shared Services (AWSS) Procurement Policy and Procedures Memorandum No. 4.1(B). PCTL attorneys assist in drafting special clauses and contract language, interpreting and applying the numerous statutory, regulatory, policy, and funding requirements, and advising on matters concerning contractor responsibility and performance standards.

  3. Administration. PCTL attorneys provide legal assistance by reviewing contract modifications and task orders as required by the dollar value threshold as set forth in AWSS Procurement Policy and Procedures Memorandum No. 4.1(B) and as requested.

  4. Performance. PCTL attorneys provide legal assistance by working with contracting personnel to identify and resolve performance problems prior to litigation.

  5. Software Licenses, Patents, and Trademarks. PCTL attorneys provide legal advice pertaining to copyright, trademark, and software licensing issues as they relate to procurement. In rendering such advice, PCTL attorneys ensure that all protectible rights and interests acquired by the Service through contract and licenses to intellectual property are fully preserved and protected.

39.5.1.2  (06-16-2009)
Agreements

  1. PCTL attorneys ensure agreements submitted for review comply with Government contract standards. Upon request, PCTL attorneys provide legal assistance in drafting special clauses and agreement language and in interpreting and applying the numerous statutory, regulatory, policy, and funding requirements relating to Government agreements between Counsel and/or the Service and other parties.

  2. Memoranda of Understanding. PCTL attorneys review Memoranda of Understanding (MOU) to ensure that program objectives, as well as the rights and obligations of the parties, are clearly stated.

  3. Cooperative Agreements and Grants. PCTL attorneys consider the transfer of financial assistance between the Service and the State, local government, or other recipient and the involvement of the Service in the matter following the transfer.

  4. Interagency Agreements. PCTL attorneys review of interagency agreements includes consideration of whether the services provided by one Federal agency to another raise reimbursement issues under the Economy Act, 31 U.S.C. § 1535, AWSS Procurement Policy and Procedures Memorandum No. 17.5, or other statutory authority. Additionally, where the agreement requires that the Service reimburse another Federal agency, PCTL attorneys ensure the agreement was reviewed by the Service’s Office of Procurement and was signed by a Contracting Officer.

39.5.1.3  (06-16-2009)
Technology Matters

  1. The Chief, PCTL, coordinates the rendering of legal advice pertaining to technology-related matters including emerging electronic commerce issues and the adoption and redesign of electronic-based processes. PCTL attorneys furnish legal support for technology matters including furnishing legal guidance regarding program authority and the review and drafting of related contracts, licenses, MOUs, and non-disclosure agreements that relate to technology matters. Legal products that pertain to electronic processes and data are reviewed for both legal sufficiency and compliance with all applicable legal requirements, such as electronic and information technology accessibility requirements imposed by Section 508 of the Rehabilitation Act, as amended by the Workforce Investment Act of 1998 and the Federal Technology Transfer Act of 1986.

  2. Computer Security. PCTL attorneys perform the legal work associated with information security-related matters including the application of computer security standards, risk management, encryption, public key infrastructure initiatives, and non-disclosure agreements and other issues related to contractor personnel access to, and use of, IRS IT systems. Legal guidance is furnished regarding statutes, regulations, and policies that bear on the use and management of information technology in the federal government, to include:

    • E-Government Act of 2002

    • Federal Information Security Management Act of 2002

    • OMB IT and computer security policy guidance

    • Treasury Security Manual, TD P 15-71

    • Treasury Information Technology Security Program, TD P 85-01

    • Computer Fraud and Abuse Act

    • Economic Espionage Act of 1996

    • Trade Secrets Act

    • Electronic signature alternatives as provided for by the Government Paperwork Elimination Act and the Electronic Signatures in Global and National Commerce Act (to the extent government activities and requirements relate to business, commercial, or consumer transactions)

39.5.1.4  (08-11-2004)
Litigation

  1. PCTL attorneys represent the Service in bid protests before the Government Accountability Office (GAO) and in appeals before the Civilian Board of Contract Appeals (CBCA). Additionally, PCTL attorneys provide litigation support to the Department of Justice before Federal District Courts, the United States Court of Federal Claims, and appellate courts.

39.5.1.4.1  (08-11-2004)
Protests

  1. Contracting officers consider and respond to, or resolve, all protests, whether submitted before or after award and whether filed directly with the Service, the GAO, the U.S. Court of Federal Claims, or Federal District Courts.

  2. PCTL Attorney Support. PCTL attorneys provide advice, assistance, and direct and indirect litigation support in protests.

  3. Protest Policies and Procedures. The policies and procedures for processing agency and GAO protests are found in:

    • FAR Part 33

    • DTAR Part 1033

    • Procurement Policy and Procedures Memorandum No. 33.1

    • GAO Bid Protest Regulations in 4 C.F.R. Part 21

39.5.1.4.2  (06-16-2009)
Contract Disputes

  1. The Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613, establishes procedures and requirements for asserting and resolving claims by or against contractors arising under or relating to a contract subject to the CDA. In addition, the CDA provides for the payment of interest on contractor claims, for the certification of contractor claims in excess of $100,000, and for a civil penalty for contractor claims that are fraudulent or based on a misrepresentation of fact.

  2. PCTL Attorney Support. PCTL attorneys provide advice, assistance, and support in formulating the contracting officer’s final decision on matters arising under or relating to a contract dispute.

  3. Dispute Policies and Procedures. The policies and procedures for processing agency disputes are found in FAR Part 33.

39.5.1.4.3  (06-16-2009)
Contract Appeals

  1. When the contracting officer issues a final decision pursuant to the Contract Disputes Act of 1978, the paragraph contained in FAR 33.211(a)(4)(v) must be included, which indicates that the contractor may either appeal the decision by mailing or otherwise furnishing written notice to the Civilian Board of Contract Appeals (CBCA), with a copy to the contracting officer, within 90 days from the date the decision is received, or appeal the decision directly to the U.S. Court of Federal Claims within 12 months of the date the decision is received.

  2. The CBCA serves as the authorized representative of the Secretary to hear, consider, and determine appeals filed under IRS contracts, 41 U.S.C. § 607 and 48 C.F.R. Chapter 10. The CBCA has authority with respect to disputes arising under or relating to IRS contracts. The rules of the board govern the procedures to be followed.

  3. The U.S. Court of Federal Claims. In accordance with 41 U.S.C. § 609, in lieu of appealing the decision of the contracting officer to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims.

  4. PCTL Attorney Support. PCTL attorneys provide advice, assistance, and direct and indirect litigation support in appeals.

  5. Appeal Policies and Procedures. The policies and procedures for processing appeals are found in:

    • FAR Part 33

    • CBCA Rules

    • The Federal Rules of Civil Procedure

39.5.1.4.4  (08-11-2004)
Support to Department of Justice

  1. PCTL attorneys provide litigation support to DOJ before Federal District Courts, the United States Court of Federal Claims, and appellate courts. Such support, which may include drafting interrogatories, pleadings, briefs, and other papers, generally includes answering interrogatories on behalf of the agency for the Department of Justice.

39.5.1.5  (06-16-2009)
Whistleblower Matters

  1. Section 406 of the Tax Relief and Health Care Act of 2006 amended IRC § 7623 concerning the payment of awards to whistleblowers; the Act also established a Whistleblower Office within the IRS. GLS (PCTL) has been the primary counsel liaison with the Whistleblower Office. PCTL coordinates issues with other counsel and service offices, publishes guidance regarding the program, and handles litigation with respect to the Whistleblower Program, both before the Tax Court and in conjunction with the Department of Justice before the Court of Federal Claims.


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