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PART 18-54CONTRACT APPEAL the contracting oficer from whose deciPROCEDURE
sion the appeal is taken. The notice of Sec.
appeal shall indicate that an appeal is 18–54.000 Scope of part.
thereby intended, and shall identify the 18-54.101 Authority.
contract (by number), the contracting 18–54.102 Notice of appeal.
officer, and specify the portion of the 18-54.103 Action by contracting officer. findings of fact or decision from which 18–54.104 Designation of Government coun
the appeal is taken: Provided, however, sel.
That an appeal shall not be deemed in18-54.105 Petition. 18-54.106 Answer.
valid if the notice expresses a desire for 18-54.107 Reply.
a review of the adverse decision. The 18-54.108 Appeal Ale-inspection of file. notice shall be signed by the contractor 18–54.109 Amendments to petition and an or his attorney. A suggested form of swer.
notice of appeal is set forth in $ 18 18-54.110 Trial briefs.
54.123. 18-54.111 Motions to dismiss for lack of
jurisdiction. 18–54.112 Failure to state a case. 18-54.113 Depositions. 18–54.114 Stipulations.
§ 18–54.103 Action by contracting offi18–54.115 Prehearing conference.
cer. 18-54.116 Settlement. 18-54.117 Filing of papers.
When a notice of appeal in any form 18–54.118 Hearing.
has been received by the contracting 18–54.119 Representation of the contractor. officer, he shall endorse thereon the date 18-54.120 Decisions.
of mailing or the date of receipt if other18-54.121 Reconsideration.
wise filed, and shall forward such notice 18-54.122 Rescinded instructions.
immediately to the Chairman of the 18–54.123 Form for notice of appeal.
Board for docketing. Within 10 days AUTHORITY: The provisions of this Part from the date of receipt of the notice of 18–54 issued under 42 U.S.C. 2473(b) (1). appeal, the contracting officer shall
SOURCE: The provisions of this Part 18-54 transmit one copy of the notice of appeal appear at 29 F.R. 16769, Dec. 5, 1964, unless to the General Counsel for use of Govotherwise noted.
ernment counsel and one copy to the $ 18–54.000 Scope of part.
Board. The Board's copy shall be acThis Part 18-54 establishes procedures
companied by a file consisting of: for the review and adjudication of ap
(a) The findings of fact and the deci
sion from which the appeal is taken; peals arising from NASA contracts.
(b) All documents relied upon in § 18–54.101 Authority.
making findings or decision; Under provisions of NASA Manage
(c) A copy of the contract and specifiment Instruction 2-4-1, June 25, 1959,
cations, pertinent plans, amendments, the Board of Contract Appeals is au- an
and change orders; thorized to act for the Administrator in
(d) All correspondence between the hearing, considering, and deciding ap
parties relating to the dispute; peals by contractors from findings of fact
(e) Transcripts of any testimony taken or decisions of NASA contracting officers
in connection with the dispute in addior their representatives.
tion to any affidavits or statements of
any witnesses that were made prior to $ 18–54.102 Notice of appeal.
the notice of appeal; and An appeal from findings of fact or de- (f) Such additional information as the cision of a NASA contracting officer shall contracting officer may consider matebe made by submitting a notice in writing, addressed to the Board of Contract
True copies may be substituted for origiAppeals (hereinafter referred to as the
nals in this file. Board), National Aeronautics and Space Administration. Washington, D.C., 20546. § 18–54.104 Designation of government Such notice shall be filed within 30 days
counsel. from the date of receipt of the written Upon receipt of the copy of notice of decision of the contracting officer, unless appeal from the contracting officer, the otherwise provided in the contract. The General Counsel shall promptly desigoriginal notice, together with two copies nate counsel to represent the interests of thereof, shall be mailed to or filed with the Government. Government counsel
shall file a notice of appearance with the § 18–54.108 Appeal fileinspection of Board, and notice thereof shall be given promptly to the contractor by the Board.
The appeal file shall consist of the § 18–54.105 Petition.
notice of appeal, documents required to
be filed pursuant to § 18–54.103, the peA petition in support of the appeal
tition and exhibits thereto, the answer shall be filed by the appellant with the
and exhibits attached thereto, all paBoard within 30 days after the mailing
pers filled by the parties with the Board or filing of the notice of appeal or within
pursuant to instructions contained heresuch longer period of time as may be al
in, and all correspondence exchanged belowed by the Board. A supporting brief
tween the Board and the parties or their may also be filed. The petition shall set
attorneys. The appeal file shall be availforth:
able for inspection by the appellant and (a) A summary of the decision of the
Government counsel at the offices of the contracting officer on the dispute from
Board or the office of the contracting which the appeal is taken; and (b) A simple, concise, and direct
officer. statement of each claim upon which the $ 18–54.109 Amendments to petition contractor relies and the reasons why and answer. the findings or decision are deemed At any time before oral hearing or beerroneous.
fore submission of a case by the parties Documentary evidence in support of without an oral hearing, the Board at claims may be filed as exhibits to the its discretion may permit a party, within petition. Exhibits shall be plainly listed the proper scope of the appeal, to amend and identified in the petition. An origi- its petition or answer, upon conditions nal and, two copies of the petition and just to both parties. The Board, at its exhibits shall be filed. Upon receipt discretion or upon application by a party, thereof the Board shall forward a copy
may order a party to make a more defiof the petition to counsel for the Govern
nite statement of its petition or answer, ment and a copy to the contracting
or to reply to an answer. When issues officer.
within the proper scope of the appeal & 18–54.106 Answer.
but not raised by the complaint and (a) Within 30 days after receipt of the answer are tried by express or implied petition, or within such longer period of consent of the parties, they shall be time as may be allowed by the Board, treated in all respects as if they had counsel for the Government shall pre- been raised therein. If evidence is pare and file with the Board an answer objected to at the hearing on the ground thereto. The answer shall set forth
that it is not within the issues made by simple, concise, and direct statements of
the petition and answer, the Board may the Government's position on each claim asserted by the contractor. A supporting
allow the pleadings to be amended brief may also be filed.
within the proper scope of the appeal (b) Documentary evidence in support and shall do so freely when the presof the Government's position may be entation of the merits of the action filed as exhibits to the answer. All docu- will be served thereby and the objecting ments filed as exhibits to the answer party fails to satisfy the Board that the shall be plainly listed and identified in admission of such evidence would prejuthe answer. An original and two copies dice him in maintaining his case or deof the answer and exhibits shall be filed fense upon the merits. The Board may, with the Board. Upon receipt thereof the Board shall forward a copy of the
however, grant a continuance to enable answer to the contractor or his attorney
the objecting party to meet such eviand a copy to the contracting officer.
dence. $ 18–54.107 Reply.
8 18–54.110 Trial briefs. The contractor may file a reply within The Board at its discretion may order 15 days after receipt of the answer of the submission of trial briefs prior to counsel for the Government.
$ 18–54.111 Motions to dismiss for lack (c) The taking of a deposition shall of jurisdiction.
be preceded by giving the opposite party Defenses which go to the jurisdiction
at least 15-day notice in writing of the of the Board shall be raised by motion.
time and place where such deposition Filing of motions to dismiss for lack of
will be taken. The notice shall state jurisdiction shall not be unreasonably de
the name and address of the witness, and layed. Motions to dismiss for lack of
the name, official title, and address of the jurisdiction shall, upon application of
person before whom the deposition is to either party, be heard and determined
be taken; and shall indicate whether the before oral hearing on the merits. The
deposition will be taken on oral examiBoard, however, has the right at any
nation or written interrogatories. The time to recognize its lack of authority to
parties may stipulate in writing the reproceed in a particular case.
quirements of the notice, in which case
no notice is required. If the deposition § 18–54.112 Failure to state a case. is to be taken on written interrogatories,
If. after completion of the pleadings. two copies thereof should accompany the the Board finds that the appellant has notice or stipulation. failed to state a case on which any relief '(d) Within 10 days after receipt of the could be granted by the Board, the Board interrogatories, the opposing party may may give notice to the appellant to show
serve cross-interrogatories to be procause why the appeal should not be dis
pounded to the witness by forwarding missed on the ground that no useful pur
them to the officer designated to take pose would be served by setting the case the deposition and simultaneously forfor oral hearing on the merits. The ap
warding a copy to the other party. pellant, in such event, will be afforded (e) Each deposition shall show the an opportunity to be heard orally for the
docket number and caption of the propurpose of showing cause why the appeal ceedings, the place and date of taking, should not be dismissed on that ground the name of the witness, and the names and, if the appellant so desires, to move of all persons present. The person takto amend the complaint within the prop ing the deposition shall certify on the er scope of the appeal. If the Board deposition that the witness was duly thereafter finds that the appellant has sworn by him and that the deposition is failed to show cause, and finds that the a true record of the testimony given by complaint, with such amendments as
the witness, and shall enclose the origimay be offered by the appellant, fails to nal deposition and exhibits in a sealed state a case on which the Board could packet with postage and other transgrant relief, the appeal shall be dismissed.
portation prepaid and forward same to
the Board. 8 18–54.113 Depositions.
(f) A deposition taken under the pro(a) Depositions shall be limited to visions of this section may be offered by those situations where there is reason to either party to the appeal. Depositions believe that the witness will not be avail will not be considered as evidence until able for the hearing, and shall be per- they have been offered and received as mitted in evidence only when in fact the such. All objections made at the time witness is not present at the hearing. of the taking of the deposition will be Subject to the foregoing limitation, dep- passed on at the hearing by the Board, ositions upon oral examination or writ which may exclude any part determined ten interrogatories may be taken by
to be irrelevant, immaterial, or othereither party and used as evidence at the
wise not admissible as evidence in the hearing when relevant and material to
proceedings. The entire deposition must
be offered unless otherwise stipulated by the case. (b) Depositions to be offered in evi
the parties or directed by the Board. dence before the Board may be taken 8 18–54.114 Stipulations. before and authenticated by any person The parties may stipulate in writing authorized by the laws of the United to any facts that are relevant and mateStates, or by the laws of the place where rial to the issues involved, and to those the deposition is taken, to administer documents or facts which may be reoaths.
ceived in evidence without formal proof. 818-54.115 Prehearing conference. or repetitious evidence. The general
The Board, upon its own initiative or procedure as to the introduction of eviupon application of one of the parties. dence and the calling of witnesses shall may direct the parties or their attorneys be at the discretion of the Chairman. to appear before the Board or a member (d) Testimony shall be under oath or designated by the Chairman at a speci.
affirmation, unless the facts are stipufied time and place for a conference to
lated or the Chairman shall otherwise orconsider:
der. Attention of witnesses shall be in(a) Simplification of the issues;
vited to the provisions of 18 U.S.C. 1621 (b) The possibility of obtaining stipu
relating to false testimony under oath. lations as to admissions of fact and in. If the testimony of a witness is not given troduction of documents which will avoid under oath the Board shall invite the atunnecessary proof;
tention of the witness to the provisions (c) The limitation of the number of of Title 18, United States Code, Sections expert witnesses, if a hearing is to be
287, 1001; Section 19 of the Contract held; and
Settlement Act of 1944 (41 U.S.C. 119); (d) Such other matters as may aid in
and any other provisions of law imposthe disposition of the appeal.
ing penalties for knowingly making false
representations in connection with claims The results of the conference shall be
against the United States or in any matreduced to writing by the Board or the
ter within the jurisdiction of any departmember designated by the Chairman and
ment or agency thereof. made part of the record.
(e) The Board shall make provision for § 18–54.116 Settlement.
& verbatim transcript of the hearing. A dispute may be settled at any time (f) After a decision has become final, by the contractor's filing written notice the Board may, upon request and after withdrawing his appeal or by written notice to the other party, permit the stipulation between the contractor and withdrawal of original exhibits, or any the Government counsel approved by part thereof, by the party entitled therethe Board settling either the entire dis- to. The substitution of true copies of pute or any part thereof. If only part exhibits or any part thereof may be reof the dispute is settled, the appeal shall quired by the Board at its discretion as a continue as to any issues remaining in condition of granting permission for such dispute.
withdrawal. 8 18–54.117 Filing of papers.
f 18–54.119 Representation of the conThe parties shall file with the Board
tractor. an original and two copies of all papers,
An individual appellant may appear subsequent to the petition and answer. before the Board in person; a corporaUpon receipt thereof, the Board shall tion may be represented by an officer forward a copy to the opposing party.
thereof, a partnership or joint venture
by a member thereof; or an organization $ 18–54.118 Hearing.
may be represented by an attorney-at(a) The contractor may submit the law duly licensed in any State, Commoncase on the record or request a hearing. wealth, or in the District of Columbia. The Board shall, at the request of either In special cases, the Board may authorparty within 15 days after the answer ize contractors to be represented by peris filed, grant a hearing. The parties sons other than those mentioned. shall be given at least 15-day notice of
8 18–54.120 Decisions. the time and place of hearing. (b) Hearings will be held at NASA
Decisions of the Board shall be made Headquarters, Washington, D.C., unless
in writing and shall reflect the opinion of
a majority of the members. Copies of otherwise ordered by the Board.
the decision shall be forwarded simul(c) Hearings shall be as informal as
taneously to both parties. All final ormay be reasonably allowable and appro- ders and decisions (except those required priate under all the circumstances. Both for good cause to be held confidential) parties may offer oral and written evi- shall be available for public inspection dence, subject to the exclusion by the at the offices of the Board, NASA HeadChairman of any irrelevant, immaterial, quarters, Washington, D.C.
§ 18–54.121 Reconsideration.
A request for reconsideration by the Board may be filed within 30 days after the date of the decision. Such request shall set forth specifically the ground or grounds relied upon to sustain the request. § 18–54.122 Rescinded instructions.
This Part 18-54 incorporates the Instruction entitled “Contract Appeal Procedure” issued by the Administrator and effective on June 25, 1959. The procedures set forth supersede the contract appeal procedures established under NASA (NACA) General Regulation No. 6, November 14, 1955; they do not apply to appeals filled prior to June 25, 1959, unless otherwise directed by the Board with the contractor's consent. $ 18–54.123 Form for notice of appeal.
The following is a suggested form for Notice of Appeal.
Date. BOARD OF CONTRACT APPEALS, NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, Washington, D.C., 20546. Appeal of
(Name of Contractor) Address
(Street No.) (City) (Zone/State) Contract No. (Invitation No.) ---Specification No. -------------------------