Prior to his appointment, effective May 9, 1976, Mr. Garza served as Chief Counsel of the NASA-Dryden Flight Research Center, Edwards, California. In that capacity he was responsible for all procurement and other legal matters for the Center. Earlier, from 1966 until 1970, he was an Assistant Counsel at the NASA-Johnson Space Center where he handled contract matters, Disputes and appeals in addition to other general legal matters. In 1970 he was designated the Chief of the Office of Contractor Equal Opportunity at the Johnson Center. From 1960 until 1966 he was an assistant District Counsel with the U.S. Army Corps of Engineers engaged in general and procurement law, as well as contract appeals practice before the Engineer Board of Contract Appeals. Mr. Garcia received a Doctor of Jurisprudence Degree from the University of Texas School of Law; a BA Degree from the University of Texas and an AA degree from Pan American University. He is admitted to the practice of Law in the State of Texas and before the United States Supreme Court. Note: Mr. Garza was appointed Vice-Chairman effective July 1, 1979 after the retirement of Mr. Roberts. EBCA RULES OF PRACTICE (41 Federal Register page 12215, Wednesday, March 24, 1976) Title 10-Energy CHAPTER III-ENERGY RESEARCH AND PART 703-CONTRACT APPEALS The reorganization of the Board, its Because these rules relate solely to Agency practice and procedure and largely adopt the Uniform Rules of Practice for Boards of Contract Appeals referred to above, it has been determined, pursuant to Section 553 of Title 5 United States Code, that rule making and public procedures thereon are unnecessary. Accordingly, the following revision to Title 10, Code of Federal Regulations, Chapter III, Part 703, is published as a document, subject to codification, to be effective March 24, 1976. JOHN B. FARMAKIDES, Chairman, Board of tion, forwarding, and status of appeal file. Subpart B-Rules of the Contract Adjustment Board 703.200 Authority. 703.201 Applicables rules. 703.202 Matters pending as contract appeals. 703.203 Decisions. APPENDIX A—Organization and functions, ERDA Manual, Chapter 0114, Office of the Board of Contract Appeals. AUTHORITY: Sec. 105, Pub. L. 93-438, 88 Stat. 1238, 42 U.S.C. 5815; sec. 161, Pub. L. 83-703, 68 Stat. 948, 42 U.S.C. 2201; sec. 3, Pub. L. 85-804, 72 Stat. 972, 50 U.S.C. 1433. Subpart A-Rules of the Board of Contract Appeals § 703.1 Scope and purpose. (a) The establishment of the Energy Research and Development Administration (ERDA) and the transfer to it of functions previously assigned to other agencies, including those discharged by the Board of Contract Appeals of the Atomic Energy Commission, led to a newly reorganized Board of Contract Appeals in ERDA. All decisions rendered by this Board become the final decisions of the Agency. (b) The reorganization of the Board, its scope of functions and authorities, including the authority to establish and issue rules of procedure not inconsistent with its charter and the change in organization from one composed of two full-time, permanent members augmented by a panel of part-time "consultant" members, to its present composition of three full-time, permanent, lawyer members, is more fully set forth in ERDA Manual Chapter 0114; published for concenience as Appendix A to this part. (c) Several factors were taken into consideration in reorganizing the Board, primary of which was the desire to establish an organization more like that of other agency boards, and to establish procedures that would conform to a more common practice before boards of contract appeals. This was in keeping with the recommendation of the Commission on Government Procurement and the Office of Federal Procurement Policy, and with the need of ERDA for prompt, fair, and inexpensive resolution of contract disputes as part of an effective agency-contractor relationship. (d) Consistent with this policy, the Uniform Rules of Practice of Boards of Contract Appeals, as proposed by the National Conference of Boards of Contract Appeals Members, have been Chapter III-Energy Research and Development Administration adopted herein in major part. However, some provisions differ from the uniform rules, particularly in those areas in which earlier Agency practice had proven successful in expediting the appeal process. For example, the new rules call for the filing of a notice of appeal directly with the contracting officer, and that officer is then required to ascertain identification shown by experience to be effective in expediting the appeal process. Another rule with a similar purpose permits direct appeal by a subcontractor in disputes arising under a subcontract entered into by a cost-type prime contractor in which a dispute provision has been included. The earlier practice of providing for direct service of pleadings and papers between parties, simultaneously with their filing before the Board, similarly expedites the appeal and is adopted. (e) The new rules also require that items in the appeal file be offered into evidence rather than the entire appeal file automatically becoming part of the evidence, subject to objection, at the time the appeal file is transmitted. This practice encourages the submission of relevant documentation only. The provisions in the uniform rules relating to depositions and discovery are consolidated and amended to clarify the use of depositions as one form of discovery, and to provide for apportionment of expenses within the discretion of the Board in cases of hardship associated with discovery. (f) The use of the optional accelerated procedure is expanded beyond that contemplated in the uniform rules to recognize equitable considerations as well as a monetary ceiling for purposes of greater flexibility as reflected in earlier Agency practice. Thus, accelerated procedure is made available, in the sound discretion of the Board, in certain cases additional to those meeting a monetary limitation. The provision for final decision to be rendered by the entire Board in every case, including those processed under accelerated procedure, complements this practice. (g) Some provisions have no corresponding basis in the uniform rules. For example, the revised rules include provisions for the use of subpoenas, and for security requirements, as provided by the enabling authorization; the Board is authorized to decide applications for extraordinary relief involving contractual fairness sitting as the Contract Adjustment Board. However, as to the later § 703.13 provisions, it should be noted that each case brought before the Contract Adjustment Board is judged solely on its merits under the criteria of Pub. L. 85-804 and Executive Order 10789, as amended, and decisions made pursuant thereto may not be cited as precedent in other matters brought before the Board. (h) Throughout the revised rules emphasis is placed on flexibility and the exercise of broad discretion as primary means of effecting the resolution of appeals in an orderly, impartial and expeditious manner. Emphasis is likewise placed upon the sound administration of these rules in as informal a manner as possible, consistent with the need to provide due process and to develop an adequate record for Board action and judicial review. PREFACE TO THE RULES § 703.11 Jurisdiction for considering appeals. The Energy Research and Development Administration Board of Contract Appeals (Board) is the authorized representative of the Administrator to consider and determine appeals from decisions of contracting officers arising under contracts which contain provisions for resolving such disputes. The Board is also designated and authorized to function as the Contract Adjustment Board in applications for extraordinary relief pursuant to Pub. L. 85-804. § 703.12 Organization and location of Board. (a) The Board is located in Washington, D.C. and its mailing address is: The Board of Contract Appeals, U.S. Energy Research and Development Administration, Washington, D.C. 20545. (b) The Board consists of a chairman and two other members all of whom shall be attorneys at law duly licensed by any State or the District of Columbia. The decision of a majority of the Board constitutes the decision of the Board. Board members are designated as Administrative Judges and the chairman is designated as Chief Administrative Judge. § 703.13 Decisions on questions of law. When an appeal is taken pursuant to a disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board, may, in its discretion, hear, consider, and decide all questions of law necessary for the com |