5. Financial Assistance Disputes

The Board has been designated to sit as the Department of Energy Financial Assistance Appeals Board to hear and decide appeals from disputes arising under financial assistance programs, grants, cooperative agreements, loan agreements and loan guarantees. This authority is more fully discussed in Chapter VII.

6. Invention Licensing Appeals

The Board has also been designated to sit as the Department of Energy Licensing Appeals Board with authority to hear and decide appeals from decisions issued under 10 CFR 781. Procedures under this designation are discussed in Chapter VIII.

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PRETRIAL PROCEDURES

a. NOTICE OF APPEAL

The appeal procedure before the Board is initiated by timely mailing or filing a notice of appeal with the contracting officer addressed to the Board.44 The contracting officer shall forward the notice of appeal to the Board within 10 days of receipt, including the information specified in the rules.45 The notice of appeal should not be mailed directly to the Board; however, submission of a notice of appeal directly to the Board has been held not to be fatal.46

DOE contracts generally require that an appeal must be filed within 30 days after receipt of the contracting officer's

44 10 CFR §703.101. See Appendix B for suggested forms. 45 10 CFR §703.103; the rules require that contracting officers submit the following information with their notice of receipt of notice of appeal (see appendix B-1): a. Date of receipt by the appellant of the contracting officer's decision; b. Date of receipt by the contracting officer of the appellant's notice of appeal; c. Amount of claim;

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d. Whether appellant is a small business;

e. Whether Accelerated Procedure has been requested;

f. Names and address and telephone numbers, if known, of any attorney or attorneys representing the appellant, the contracting officer or any other parties to the appeal; and

g. An endorsement of the date of mailing of the appellant's notice of appeal letter.

Carpenter Steel, AECBCA No. 5-65 (1965) 65-1 BCA 17496, 3 AEC Rep. 311.

decision.47 It should be signed by the appellant, a representative of his company, or his attorney; it should specify those portions of the contracting officer's findings and decision from which the appeal is taken; and it should state the reasons why the decision is believed to be in error. Further, the notice of appeal should include, if desired, a request for accelerated procedure.48

Upon receipt of notice by the Board, the parties shall be promptly notified of its receipt and docketing by the Board Recorder, who will also furnish copies of the Board rules and any other documentation not previously furnished.

Note: Under the Act, notice of appeal is direct to the Board within 90 days after receipt of the contracting officer's decision. The rules require a copy to be furnished simultaneously to the contracting officer. The contracting officer will continue to submit an appeal file (Rule 1 and 4).

It is within the discretion of the Board to hear or to dismiss appeals which have not been submitted within 30 days following the Contracting Officer's decision.49 While a party does not have a right to make an untimely appeal, the U.S. Court of Claims has held that a Board may, in the exercise of its sound discretion, entertain an appeal to avoid a harsh result.50

47 41 CFR §9-7.5004-3.

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10 CFR $703.102.

49 Maney Aircraft Parts, Inc. v. The United States, 197 Ct. Cl. 159 (1972).

Ordinarily, oversight and routine neglect are not grounds for waiver of the 30-day appeal period. The Board will exercise its discretion only when it appears absolutely necessary for reasons of fairness.51

Note: Under the Act, if a contractor has submitted a claim for $50,000 or less and has asked for a written decision within 60 days and none has been issued, the contractor may file an appeal citing the contracting officer's failure. If a contractor has submitted a claim in excess of $50,000 and the contracting officer fails to issue a decision within a reasonable time, the contractor may file an appeal citing the contracting officer's failure. In either instance, the Board may, at its option, stay the proceedings and direct the contracting officer to issue a decision within an indicated time or it may deem the failure to be a contracting officer denial of the claim. (See Rule 3.)

B. COMPLAINT AND ANSWER

One of the Board's primary objectives is to eliminate formal procedural requirements and to substitute effective informal means for bringing disputed matters into focus and resolution. No technical forms for pleadings are required in complaints and answers brought before the Board. The complaint can be submitted in any form and need only set forth simple,

51 One board has held that the 30-day period must be strictly complied with as it is jurisdictional in nature. J. R. Youngdale Const. Co., ASBCA 18090 (Feb. 28, 1973) 73-1 BCA 19944 at 46,658. However this holding was reversed by the U.S. Court of Claims which required Boards, under the principle of fairness, to make an inquiry into the circumstances surrounding the tardy submission of the appeal. J. R. Youngdale Constr. Co. v. The United States, 205 Ct. Cl. 578