FAR 33.205—Relationship of the Disputes statute to Pub. L.85-804.
Plain-English Summary
FAR 33.205 explains how the Contract Disputes Act (CDA) and the standard Disputes clause interact with Public Law 85-804, which authorizes extraordinary contractual relief in limited circumstances. It covers three main topics: (1) requests for relief under Pub. L. 85-804 are not CDA claims and must be handled under FAR subpart 50.1; (2) requests for rescission or reformation based on mutual mistake are now treated as CDA claims when the contractor asserts a legal entitlement to that remedy; and (3) a claim denied or only partly granted under the CDA may still be considered for extraordinary relief under Pub. L. 85-804 if the agency lacks other adequate legal authority. The section also addresses the contracting officer’s need to seek legal advice when authority is uncertain and requires written decisions, prepared with counsel, on claims involving alleged entitlement to rescission or reformation. In practice, this section prevents contractors from bypassing the normal disputes process, preserves the limited and exceptional nature of Pub. L. 85-804 relief, and ensures that legally cognizable contract remedies are first considered under the CDA before extraordinary relief is pursued.
Key Rules
Pub. L. 85-804 is not a claim
Requests for relief under Public Law 85-804 are not claims under the Disputes statute or the Disputes clause. They must be processed under FAR subpart 50.1, which governs extraordinary contractual actions.
Mutual mistake relief is a CDA matter
Relief that used to be available only under Pub. L. 85-804—specifically rescission or reformation for mutual mistake—is now available through the contracting officer’s authority under the Contract Disputes statute and the Disputes clause.
Seek legal advice on authority
If there is any question whether the contracting officer has authority to settle or decide a particular type of claim, the contracting officer should obtain legal advice before acting.
Alleged entitlement is a claim
A contractor’s allegation that it is legally entitled to rescission or reformation to correct or mitigate a mistake must be treated as a CDA claim, not as an extraordinary relief request.
Written decisions are required
Because these claims involve complex legal issues, contracting officers must issue written decisions, with the advice and assistance of legal counsel, either granting or denying relief in whole or in part.
Denied claims may seek extraordinary relief
If a claim is denied or not fully approved under paragraph (b), it may still be considered as a request for relief under Pub. L. 85-804 and FAR subpart 50.1, but only after CDA consideration first.
No bypass of CDA process
A request is not cognizable under Pub. L. 85-804 unless other legal authority in the agency is lacking or inadequate. The contractor must first submit the matter to the contracting officer under the Disputes statute.
Responsibilities
Contracting Officer
Determine whether the matter is a CDA claim or a Pub. L. 85-804 request; process Pub. L. 85-804 requests under FAR subpart 50.1; treat allegations of entitlement to rescission or reformation as CDA claims; seek legal advice when authority is uncertain; and issue written decisions, with counsel’s assistance, granting or denying relief in whole or in part.
Contractor
Submit claims for rescission or reformation based on mistake under the CDA and the Disputes clause; understand that extraordinary relief under Pub. L. 85-804 is not a substitute for a CDA claim; and, if relief is denied or only partly granted, consider whether to pursue extraordinary relief through the agency’s Pub. L. 85-804 procedures.
Agency Legal Counsel
Advise the contracting officer on legal entitlement, authority, and the proper forum for the request; assist in preparing written decisions on rescission or reformation claims; and help determine whether agency authority is lacking or inadequate for purposes of Pub. L. 85-804 consideration.
Agency
Administer extraordinary contractual actions under FAR subpart 50.1 and ensure that Pub. L. 85-804 relief is used only when other legal authority is unavailable or insufficient.
Practical Implications
Contractors cannot label a normal contract dispute as a Pub. L. 85-804 request to avoid the CDA process; the contracting officer must first treat qualifying rescission/reformation allegations as claims.
The distinction between legal entitlement and extraordinary relief matters: if the contractor is asserting a right recognized under federal contract law, the CDA route applies first.
Written decisions are especially important because rescission and reformation claims often involve complex facts and legal standards, and informal handling can create appeal and record problems.
A denial under the CDA does not necessarily end the matter; it may open the door to extraordinary relief, but only through the separate Pub. L. 85-804 process and only if agency authority is otherwise lacking or inadequate.
Contracting officers should involve counsel early when mistake, mutual mistake, rescission, or reformation is raised, because misclassifying the request can lead to jurisdictional errors and improper processing.
Official Regulatory Text
(a) Requests for relief under Public Law85-804 ( 50 U.S.C. 1431 - 1435 ) are not claims within the Disputes statute or the Disputes clause at 52.233-1 , Disputes, and shall be processed under subpart 50.1 , Extraordinary Contractual Actions. However, relief formerly available only under Public Law85-804; i.e., legal entitlement to rescission or reformation for mutual mistake, is now available within the authority of the contracting officer under the Contract Disputes statute and the Disputes clause. In case of a question whether the contracting officer has authority to settle or decide specific types of claims, the contracting officer should seek legal advice. (b) A contractor’s allegation that it is entitled to rescission or reformation of its contract in order to correct or mitigate the effect of a mistake shall be treated as a claim under the Disputes statute. A contract may be reformed or rescinded by the contracting officer if the contractor would be entitled to such remedy or relief under the law of Federal contracts. Due to the complex legal issues likely to be associated with allegations of legal entitlement, contracting officers shall make written decisions, prepared with the advice and assistance of legal counsel, either granting or denying relief in whole or in part. (c) A claim that is either denied or not approved in its entirety under paragraph (b) of this section may be cognizable as a request for relief under Public Law85-804 as implemented by subpart 50.1 . However, the claim must first be submitted to the contracting officer for consideration under the Disputes statute because the claim is not cognizable under Public Law85-804, as implemented by subpart 50.1 , unless other legal authority in the agency concerned is determined to be lacking or inadequate.