go

Incoming calls to the Board are received by the Board secretary. Calls regarding simple questions of Board procedures will be referred to the Board Recorder, while calls ing to substantive issues will require a telephone conference call or a conference meeting with participation by all parties in the discussion.

Note: The new rules do not change the existing rules in any substantial manner (Rule 703.100(a)).

J. DISMISSALS AND SANCTIONS

It may sometimes become necessary, for reasons not within the control of the Board, to dismiss cases without prejudicing the rights of the appealing party to restore the appeal, at some future date, to the Board docket. The rule however limits the restoration rights to three years unless the Board, in its discretion, should extend the time limits (Rule 29). Additionally the rules recognize the right of the Board to take appropriate action when a party fails to prosecute or defend an appeal before the Board (Rule 30). If a party should fail or refuse to obey a Board order without a proper reason, the Board may impose whatever sanctions it considers appropriate including a dismissal with prejudice (Rule 31).

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HEARINGS

The Board must give the parties at least 15 days notice of both time and place of a hearing.110 However, notice may be waived by agreement of both parties. Often, under the accelerated procedure, and sometimes, under the nonaccelerated procedure, a hearing has been held immediately following the conference or within the same week as the conference.111 Such scheduling facilitates expeditious and inexpensive disposition of appeals.

The Board generally conducts a hearing as informally as is reasonable and appropriate.112 The Board exercises discretion in ruling on the admissibility of evidence and applies the Federal Rules of Evidence subject, however, to the sound discretion of the Board in supervising the extent and manner of presentation of such evidence. Letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the generally accepted rules of evidence, may be admitted in the discretion of the presiding administrative judge.113 In general, admissibility will depend on relevancy. However, the Board also attempts, in ruling on admissibility, to assure that the hearing does not become unreasonably expensive and time consuming.114

Live testimony provided the cost is reasonable is preferred where possible to documentary evidence, including depositions.115 Hearsay evidence may be admitted at the Board's discretion,116 however, it has been allowed only occasionally.

As to documents, the Board usually requires the parties to furnish to the Board and to each other prior to the hearing: (1) all documents and exhibits upon which each party relies; (s) an itemized statement of the derivation of each party's claim(s); (3) a list of the witnesses each party intends to call, including a brief description of their subject and sometimes their qualifications; and (4) occasionally, the complete, written, direct testimony of expert witnesses.117 These requirements have served both to expedite hearings and to diminish greatly the element of surprise. In one appeal involving a voluminous record, the Board further required the parties, after hearings in the appeal had commenced, to specify those documents already in the appeal record on which they intended to rely for evidentiary support of their positions.118

Unless otherwise ordered by the Board, all witnesses shall be examined orally under oath or affirmation.119 If testimony is not given under oath, the Board shall then notify the witness of the provisions of the false claims and false statements statutes. 120

115 10 CFR $703.114(b)(2).

116 Supra n. 109.

117 See Oakland Construction Company, AECBCA No. 93-11-71 (December 9, 1971), 4 AEC Rep. 1336 for an example of a preconference order.

118 Ets-Hokin Corp., AECBCA Nos. 70-5-70 thru 77-5-70, 4 AEC Rep. 1312 (July 9, 1971). The parties were also given an opportunity to submit written objections, including supporting reasons, to any documents designated by the other party.

120 10 CFR §703.121 citing 18 U.S.C. §287 and §1001.

Note: While the new rules are shorter and have different time limitations; the intent is that the general concept remain the same but with less verbiage (Rule 20 thru 23). Hearings under the Small Claims and Accelerated procedures should be no different with the exception of a greater effort to finish quickly at minimum

costs.