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29-60 Contract appeals.
CHAPTER 29-DEPARTMENT OF LABOR
PART 29-60-CONTRACT APPEALS Sec.
29-60.1 Scope of part.
decisions of contracting officers of the Department of Labor pursuant to the "disputes" clauses of contracts with the Department of Labor.
Subpart A-Boards of Contract Appeals; Establishment and Functions § 29-60.2 Establishment and member
ship of a Board of Contract Appeals. Within 20 days of the filing of a written notice of appeal with a contracting officer of the Department of Labor pursuant to the "disputes" clause of a contract with the Department of Labor, the Secretary of Labor will establish а Board of Contract Appeals to hear the appeal. The Board will be composed of three persons, at least one of whom is an attorney, admitted to practice before the highest court of any State, commonwealth or territory of the United States, or the District of Columbia. One attorney member of the Board will be designated chairman of the Board by the Secretary of Labor. No person will be appointed to the Board if the Secretary finds that he has participated in the negotiation, award, or administration of the contract under which the appeal is taken, or has any personal interest in the subject matter of the appeal.
§ 29-60.3 Jurisdiction and authority of Boards of Contract Appeals.
(a) Jurisdiction. A Board of Contract Appeals appointed under this part shall have the power and the duty to hear, consider and decide as fully and finally as might the Secretary of Labor (1)
questions of fact decided by a contracting officer of the United States Department of Labor pursuant to the "disputes" clause of a contract with the Department of Labor which are presented by timely appeal from such a decision, and (2) questions of procedural law arising during and in connection with, the appeal proceeding: Provided, That the jurisdiction of such a Board shall not extend to disputes relating to labor standards, equal employment opportunity, or claims for relief not provided in the written contracts.
(b) Powers. A Board of Contract Appeals shall have all the powers of the Secretary of Labor necessary or appropriate to the exercise of the jurisdiction and the performance of the duly provided in paragraph (a) of this section, including:
(1) The power to administer oaths and affirmations;
(2) The power to conduct hearings, examine and cross-examine witnesses, and to call witnesses;
(3) The power to rule upon offers of proof and admissibility of evidence;
(4) The power to regulate the course of hearings and the conduct of the parties and their representatives therein;
(5) The power to rule upon procedural requests;
(6) The power to hold conferences for the settlement, clarification and simplification of issues; and
(7) The power to make decisions in conformity with this part.
(c) Delegation of authority. A Board of Contract Appeals may authorize and direct a hearing examiner of the Department of Labor to hold hearings and receive evidence and arguments in its stead, and to certify the record of the proceedings to it. The Board shall delegate to the hearing examiner any of its power which it may deem necessary to properly conduct the hearings.
(d) Quorum. Two members of a Board of Contract Appeals shall constitute a quorum for the transaction of the business of the Board provided that one of them is a qualified attorney, and the decision of at least two of the members of the Board shall constitute the decision of the Board.
matter within its jurisdiction shall be the final decision of the Secretary of Labor.
Subpart B-Prehearing Procedures § 29-60.10 Appeals.
(a) How taken. An appeal from a decision of a contracting officer of the Department of Labor may be taken by mailing or otherwise furnishing to the contracting officer, within the time allowed by the contract, an original and two copies of a written notice of appeal addressed to the Secretary of Labor.
(b) Contents of a notice of appeal. A notice of appeal should indicate that an appeal is thereby intended and should include the following information:
(1) Identification of the contract involved;
(2) Identification of the Administration, Bureau, or Office of the Department of Labor which awarded the contract;
(3) Identification of the written decision from which the appeal is taken, including the date and form of decision; (4) A concise specification of the errors complained of, and of the reasons therefor; and
(5) A statement of the relief sought by the appellant.
(c) Signature of a notice of appeal. A notice of appeal shall be signed by the contractor or the contractor's authorized representative.
(d) Acknowledgement. Upon his receipt of a notice of appeal, a contracting officer shall promptly acknowledge it in writing to the appellant, and shall transmit to him a copy of the regulations in this part.
(e) Forwarding of a notice of appeal. Within 5 days of his receipt of a notice of appeal, a contracting officer shall forward the original thereof to the Assistant Secretary of Labor for Administration for transmittal to the Secretary of Labor. § 29-60.11 Establishment of a Board of Contract Appeals.
Upon his receipt of a notice of appeal, the Secretary of Labor, by an appropriate order, will establish a Board of Contract Appeals in accordance with the provisions of § 29-60.2, and will refer the appeal to it. A copy of the order will be transmitted to the appellant or his representative of record, to the contracting officer from whose decision the appeal is taken, and to the Solicitor of Labor.
(e) Decision. A Board of Contract Appeals shall decide all cognizable questions in accordance with applicable contract provisions and applicable laws and regulations. A decision of the Board on a
(6) Any other document and information which the contracting officer may consider pertinent to the appeal.
(b) Upon his preparation of an appeal file, and before its transmittal to a Board, a contracting officer shall provide the appellant with a table of contents of the appeal file, and shall afford him an opportunity to examine the file. The appellant shall have the right to have included in the file any additional document and information which the appellant may deem pertinent to the appeal. § 29-60.13 Request for hearing.
Within 15 days of the receipt of a copy of an order establishing a Board of Contract Appeals, the appellant may request in writing a hearing, which the Board shall grant. In the absence of such a request, the Board may itself order a hearing. If no hearing is either requested or ordered, the Board shall decide the appeal on the appeal file and such written submissions, including briefs, as the parties may submit on their own initiative or at the Board's request.
Notice of hearing.
In cases where a hearing has been requested or has been ordered by a Board of Contract Appeals, the parties shall be given a minimum of 15 days notice, in writing, of the time and place of the hearing. Hearings shall be held in Washington, D.C., unless the Board determines that fairness to one of the parties requires a different hearing site.
§ 29-60.15 Dismissal for lack of jurisdiction.
(a) Objectives. Within 60 days after receipt of the appeal file, the Chairman of a Board of Contract Appeals shall direct the parties to appear before the Board for the purpose of exploring the possibility of informally disposing of the appeal by agreement. If it becomes evident that such informal disposition cannot be achieved, the following matters shall be considered:
(1) Jurisdiction of the Board, if this issue has not already been raised and disposed of;
(2) Elimination, simplification and clarification of issues;
(3) Possibility of obtaining stipulations, admissions of fact and other agreements which would avoid unnecessary proof;
(4) Limitations on the number of witnesses; and
(5) Such other matters as may aid in the fair and expeditious disposition of the appeal.
(b) Order. At the conclusion of the conference the Board shall enter an order reciting the action taken at the conference. The order shall control the subsequent course of the proceeding unless modified by the Board for good cause.
(c) Time and place. Prior to the conference, the parties shall be given a minimum of 20 days notice, in writing, of the time and place of the conference, which shall be held in Washington, D.C., unless the Board orders otherwise.
A Board of Contract Appeals shall have the power at any time, on its own motion or on the motion of a party, to raise the issue of its jurisdiction over the appeal, and to dismiss the appeal for lack of jurisdiction after affording the parties an opportunity to be heard on the issue. § 29-60.17 Settlement; withdrawal of appeal.
(a) A dispute may be settled in whole or in part at any time before decision of an appeal, by written stipulation between the appellant and the contracting officer, or their authorized representatives, filed with the Board.
(b) At any time prior to the decision of an appeal, the appellant may withdraw the appeal with prejudice, by written notice to the Board.
§ 29-60.18 Representation of parties.
(a) Appellant. An individual appellant may appear before a Board of Contract Appeals or a hearing examiner acting on its behalf, in person; a corporation, by an officer thereof; a partnership or join venture, by a member thereof; or any of these, by an attorney admitted to practice before the highest court of any State, Commonwealth, or Territory of the United States or the District of Columbia. (b) Appellee. The Solicitor or his designee shall represent a contracting officer in every proceeding before the Board, or a hearing examiner acting on its behalf.
Service of papers.
(a) Any written communication submitted by a party to a Board of Contract Appeals or a hearing examiner acting in its behalf, except the appeal file, shall contain or be accompanied by evidence of service of a copy thereof upon the other party or his attorney, by means of personal delivery or by mail.
(b) Such communications shall be addressed to the Assistant Secretary of Labor for Administration for transmittal to the Board or Hearing Examiner, as the case may be.
Nature of hearings.
A hearing shall be as informal as may be reasonably appropriate for an adversary proceeding. The purpose of a hearing shall be to provide a Board of Contract Appeals with the pertinent facts and positions of the parties as a basis for the Board's decision of an appeal. § 29-60.31
(a) General. The parties may offer at a hearing such relevant evidence as they may deem appropriate and as would be admissible under the generally accepted rules of evidence applied in the courts of the United States in nonjury trials, subject, however, to the sound discretion of the presiding Board or hearing examiner, as the case may be, in supervising the manner and extent of presentation of such evidence. In general, admissibility shall hinge on relevancy and materiality. Letters or copies thereof, affidavits, and other evidence not admissible under such generally accepted rules of evidence may nevertheless be admitted in the discretion of the Board or the hearing examiner. The weight to be attached to evidence
presented in any particular form will be within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties shall be conclusive. The parties may stipulate the testimony that would be given by a witness if that witness were present.
(b) Examination of witnesses. Testimony shall adduced ordinarily be through the examination and cross-examination of witnesses. Witnesses shall be examined orally, under oath or affirmation, unless all the facts are stipulated or the presiding Board or hearing examiner, as the case may be, shall otherwise order. However, if the testimony of a witness is not given under oath or if the circumstances otherwise warrant, the witness should be warned that his statements may be subject to the provisions of title 18, United States Code, sections 287, 1001, and any other provisions of law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any department or agency thereof.
(c) Copies of documents. Accurate copies of admissible documents may be accepted in evidence if the submission of original documents is not practicable.
(d) Withdrawals of exhibits. At any time, upon request and after notice to the other party, a Board of Contract Appeals may, in its discretion, permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of certified true copies of exhibits or any part thereof may be required by the Board as a condition of granting permission for such withdrawal.
§ 29-60.32 Transcripts of proceedings.
A verbatim transcript of a hearing shall be made. A copy of the transcript shall be available to a party requesting it at the time of the hearing, on such terms as the presiding Board or hearing examiner may provide.
Absence of parties.
The unexcused absence of a party or his authorized representative at the time and place set for a hearing shall not be the occasion for delay of the hearing. In such event, the hearing shall proceed and the case shall be regarded as submitted on the record by the absent party.