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$ 1023.307 [Reserved] $ 1023.308 Awards against other agen

cies. If an applicant is entitled to an award because it prevails over another agency of the United States Government that participates in a proceeding before the Board and takes a position that is not substantially justified, the award or an appropriate portion of the award shall be made against that agen




8 1023.310. Contents of application

overview. (a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the agency or agencies that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.

(b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). The applicant shall attach a net worth exhibit that satisfies the requirements of section 1023.311. However, an applicant may omit this statement and forego the attachment of the net worth exhibit if:

(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or

(2) It states that it is a cooperative association as defined in 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).

(c) The application shall state the amount of fees and expenses for which an award is sought. The applicant must document fees and expenses as required in $ 1023.312.

(d) The application may also include any other matters that the applicant wishes the Board to consider in determining whether, and in what amount, an award should be made.

(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. $1023.311 Net worth exhibit.

(a) Each applicant, except a qualified tax-exempt organization or cooperative association, must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in $ 1023.304(f) of this subpart) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The presiding administrative judge may require an applicant to file additional information to determine its eligibility for an award.

(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit may submit that portion directly to the presiding administrative judge in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion for a protective order setting forth the ground therefor. A protective order may be granted for good cause shown.

$ 1023.312 Documentation of fees and

expenses. The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for

which an award is sought. A separate, PROCEDURES FOR CONSIDERING itemized statement shall be submitted

APPLICATIONS for each professional firm or individual whose services are covered by the ap $ 1023.320 Filing and service of docuplication. The statement should show

ments. the hours spent in connection with the Any application for an award, or Contract Disputes Act appeal by each other pleading or document relating to individual, a description of the specific an application, shall be filed and served services performed, the rates at which on all parties to the proceeding in the each fee has been computed, any ex- same manner as other pleadings in the penses for which reimbursement is underlying proceeding, except as prosought, the total amount claimed, and vided in $1023.311(b) for confidential fithe total amount paid or payable by nancial information. the applicant or by any other person or entity for the services provided. The $ 1023.321 Answer to application. presiding administrative judge may re (a) Within 30 days after service of an quire the applicant to provide vouch application, counsel representing the ers, receipts, logs, or other substan agency against which an award is tiation for any fees or expenses sought may file an answer to the appliclaimed pursuant to $ 1023.306 of this cation. Unless agency counsel requests subpart.

an extension of time for filing or files

a statement of intent to negotiate $ 1023.313 When an application may be

under paragraph (b) of this section, filed.

failure to file an answer within the 30(a) An application may be filed when day period may be treated as a consent ever the applicant has prevailed in the to the award requested. proceeding, or, with permission of the (b) If agency counsel and the appliBoard for good cause shown, when the cant believe that the issues in the fee applicant has prevailed in a significant application can be settled, they may and discrete substantive portion of the jointly file a statement of their intent proceeding, but in no case later than 30 to negotiate a settlement. The filing of days after the Board's final disposition this statement shall extend the time of the proceeding.

for filing an answer for an additional 30 (b) For purposes of paragraph (a) of days. Further extensions may be grantthis section, final disposition means ed by the presiding administrative the date on which a decision or order judge upon request by agency counsel disposing of the merits of the pro and the applicant. ceeding or any other complete resolu (c) The answer shall explain in detail tion of the proceeding, such as a settle any objections to the award requested ment or voluntary dismissal, becomes and identify the facts relied on in supfinal and unappealable.

port of agency counsel's position. If the (c) If reconsideration of a decision is answer is based on any alleged facts sought as to which an applicant be- not already in the record of the prolieves it has prevailed, proceedings for ceeding, agency counsel shall include the award of fees shall be stayed pend- with the answer either supporting affiing final disposition of the underlying

davits or a request for further procontroversy. When the United States ceedings under $1023.325, appeals the underlying merits of a cov

$ 1023.322 Reply. ered proceeding to a court, no decision on an application for fees and other ex- Within 15 days after service of an anpenses in connection with that pro- swer, the applicant may file a reply. If ceeding shall be made until a final and the reply is based on any alleged facts unreviewable decision is rendered by not already in the record of the prothe court on that appeal or until the ceeding, the applicant shall include underlying merits of the case have with the reply either supporting affidabeen finally determined pursuant to vits or a request for further prothe appeal.

ceedings under $1023.325.

$ 1023.323 Comments by other parties. ceeding for which fees and other ex

penses are sought. Any party to a proceeding other than

(b) A request that the presiding adthe applicant and agency counsel may

ministrative judge order further profile comments on an application within

ceedings under this section shall spe30 days after it is served or on an an

cifically identify the information swer within 15 days after it is served. A

sought or the disputed issues and shall commenting party may not participate

explain why the additional proceedings further in proceedings on the application unless the Board determines that

are necessary to resolve the issues. the public interest requires such par

$ 1023.326 Board decision. ticipation in order to permit full exploration of matters raised in the com

The Board shall issue its decision on ments.

the application as expeditiously as is

practicable after completion of pro$ 1023.324 Settlement.

ceedings on the application. Whenever

possible, the decision shall be made by The applicant and agency counsel

the same administrative judge or panel may agree on a proposed settlement of

that decided the contract appeal for the award before final action on the ap

which fees are sought. The decision plication, either in connection with a

shall include written findings and consettlement of the underlying pro

clusions on the applicant's eligibility ceeding or after the underlying pro

and status as a prevailing party, and an ceeding has been concluded, in accord

explanation of the reasons for any difance with the agency's standard settle

ference between the amount requested ment procedure. If a prevailing party

and the amount awarded. The decision and agency counsel agree on a proposed

shall also include, if at issue, findings settlement of an award before an appli

on whether the agency's position was cation has been filed, the application

substantially justified, whether the apshall be filed with the proposed settle

plicant unduly protracted the proment.

ceedings, or whether special cir$ 1023.325 Further proceedings.

cumstances make the award unjust. If

the applicant has sought an award (a) Ordinarily, the determination of against more than one agency, the dean award will be made on the basis of cision shall allocate responsibility for the written record. However, on re

payment of any award made among the quest of either the applicant or agency agencies, and shall explain the reasons counsel, or, on his or her own initia- for the allocation made. tive, the presiding administrative judge may order further proceedings, $ 1023.327 Reconsideration. such as an informal conference, oral ar

Either party may seek reconsidergument, additional written submis

ation of the decision on the fee applicasions or, as to issues other than sub

tion in accordance with 10 CFR 1023.120, stantial justification (such as the ap

Rule 27. plicant's eligibility or substantiation of fees and expenses), pertinent dis

(57 FR 53642, Nov. 12, 1992, as amended at 62 covery or an evidentiary hearing. Such

FR 24808, May 7, 1997] further proceedings shall be held only

$ 1023.328 Judicial review. when necessary for full and fair resolution of the issues arising from the ap

Judicial review of a final Board deciplication, and shall be conducted as sion on an application for an award promptly as possible. Whether or not may be sought as provided in 5 U.S.C. the position of the agency was substan

504(c)(2). tially justified shall be determined on the basis of the administrative record

$ 1023.329 Payment of award. as a whole, including the contracting An applicant seeking payment of an officer Appeal File and supplements award shall submit to agency counsel a filed pursuant to Rule 4 of the Board's copy of the Board's final decision Rules of Practice, 10 CFR part 1023, granting the award, accompanied by a which is made in the covered pro- certification that the applicant will not seek review of the decision in the (1) The Board is located in the WashUnited States courts. Agency counselington, DC metropolitan area and its will forward the submission to the ap- address is: Webb Building, room 1006, propriate disbursing official. The agen- 4040 North Fairfax Drive, Arlington, cy will pay the amount awarded to the Virginia 22203. applicant within 60 days.

(2) The Administrative Judge as

signed to hear and develop the record PART 1024-PROCEDURES FOR on an appeal has authority to act for FINANCIAL ASSISTANCE APPEALS the Board with respect to such appeal

within the limits assigned and as set Sec.

forth in these rules. 1024.1 Scope and purpose.

(c) In order that a right to appeal 1024.2 Authority.

may be exercised in a timely manner, a 1024.3 General.

financial assistance recipient must ap1024.4 Rules of procedure.

peal, in writing, within 60 days after AUTHORITY: Dept. of Energy Organization receipt of a "final decision” on the Act, Pub. L. 95-91, 91 Stat. 577 (42 U.S.C. 7101, matter by a financial assistance or et seq.); E.O. 10789; Pub. L. 95–224, 92 Stat. 3

contracting officer. (41 U.S.C. 501-509).

(d) The appeal may take one of the SOURCE: 45 FR 29764, May 5, 1980, unless following three alternative courses, deotherwise noted.

pending on the amount of the claim

and degree of formality desired or $ 1024.1 Scope and purpose.

needed: These procedures establish a process (1) The first method is to proceed on permitting recipients of financial as the basis of a written record, without sistance to appeal adverse final deci any oral presentations. It is the sions made by financial assistance offi quickest and simplest process available cers or contracting officers. The objec to an appellant. All appeals involving tive is to provide a timely, just, and in- less than $10,000 will be decided on this expensive resolution of disputes involv basis, unless, on application made by ing grants, cooperative agreements, the appellant, or the respondent, the loan guarantees, loan agreements, or Board rules otherwise. This method is other financial assistance instruments. also available for appeals where the

amount in dispute is more than $10,000 81024.2 Authority.

if an election is made in accordance The authority of the Board dérives with Rule 2. (See § 1024.4) from direct delegation of the Secretary (2) A second method is to use a conto hear and decide finally for the De- ference-type hearing in which the writpartment appeals from any decision ten record is supplemented with an inbrought before it on disputes arising formal oral presentation. It is the secunder financial assistance agreements. ond fastest process available to an ap

pellant and is conducted in a relatively $1024.3 General.

informal manner which may require (a) A recipient or party to a grant, little, if any, testimony, and may even cooperative agreement, loan guarantee be conducted by a telephone conference or agreement, or other such financial call where deemed appropriate. assistance may have a right to appeal (3) The third method, and the most disputes with the Department. Such a time consuming is the use of an adverright may be set forth in statutes, in sary evidentiary hearing. Because of Departmental regulations dealing with the procedural and logistical aspects the type of financial assistance in involved, this method is more expenvolved, or in the agreement itself.

sive and time consuming than the (b) Appeals are decided by the Finan other two methods for both the appelcial Assistance Appeals Board in Ac- lant and respondent. Generally, this cordance with the procedures set forth method is used only if there are comin these regulations. Decisions will be plex facts in dispute. by majority vote and will be the final (e) All three methods are designed to disposition of the matter within the be as informal as possible; nevertheDepartment.

less, it should be recognized that the

Counsel, Department of Energy, Washington DC 20585.

(c) upon receiving the appeal notice, the Board will promptly acknowledge receipt of the notice of appeal and will notify the parties of the date docketed.

Board must have an adequate record on which to base a sound decision. While an orderly presentation of evidence is required, the Board attempts to be as flexible as possible in the interests of arriving at an impartial, inexpensive and expeditious resolution of the matter.

. (f) The services of an attorney are not necessarily required, especially as to the first method. The appellant should note, however, that the respondent is represented by an attorney. Hearings, if held, are transcribed, and witnesses are required to present information or evidence at such hearings under oath. In each case, the Board shall issue a written decision unless otherwise requested by a party and the request is approved. (45 FR 29764, May 5, 1980, as amended at 57 FR 56441, Nov. 30, 1992)


Unless submitted earlier, within 20 days after the appellant receives the Board's notice of docketing, the appellant must submit to the Board, with copy to respondent, a letter electing one of the three methods available for processing the appeal. For disputes involving less than $10,000, method "1" (as set forth in Rule 5(a)) will automatically apply unless appellant specifically petitions and is granted the right to proceed under one of the other two methods. In exceptional circumstances, the respondent may likewise request the use of one of the other two methods. This election letter must identify the attorney or other person who will repesent the appellant, if the notice of appeal did not already do so. (See Rule 7(a)). In case the parties disagree as to the appeal method to be used, the Board will finally decide.

$ 1024.4 Rules of procedure.

The following rules of procedure shall govern all financial assistance disputes appealed to the Board in accordance with this subpart:

RULE 1. Filing of an appeal; acknowledgment. 2. Selection of an appeal method. 3. Development of the record. 4. Objections to evidence submitted. 5. Alternative methods of appeal. 6. Parties to the appeal. 7. Representation before the Board.

8. Dismissal for failure to meet deadlines and other requirements.

9. The Board's powers, functions, and responsibilities.

10. Ex parte communications (communications outside the record).

11. Notice and location of hearings. 12. Calculation of time periods.

RULE 3. DEVELOPMENT OF THE RECORD (a) Appellant; complaint. (1) Within 30 days after receiving the docketing notice from the Board, the appellant shall:

(i) Submit a complaint, or

(ii) Submit a specific request (for approval by the Board), that the final decision as issued by the financial assistance officer or contracting officer, together with the notice of appeal, adequately describe the matter in dispute and will serve as the complaint.

(2) The complaint shall include: A copy of the decision appealed from; relevant portions of the applicable assistance agreements; a statement of the amount, if any, in dispute; and, if the appellant is proceeding under method 1 or 2, a copy of any documents supporting its claim. The documents must be organized chronologically and accompanied by an indexed list identifying each document by date, originator and addressee.

(3) To reduce the burden on the appellant, the appellant may specify, in an appropriate index, those relevant documents already in the possession of the respondent which the respondent will then add to those documents submitted in its answer.

(b) Respondent; answer. (1) Respondent shall submit an answer within 30 days after receipt of a complaint, or after receipt of a notice from the Board that the decision and notice of appeal shall serve as the complaint. The Board may enter a general denial on behalf of the respondent upon its failure to submit an answer within the time limitation.

(2) In its answer the respondent shall submit to the Board, with copy to appellant,


ACKNOWLEDGMENT (a) A brief written notice of appeal, along with a copy of the final agency decision being appealed shall be submitted within 60 days after receipt of the decision. The notice must indicate that an appeal is intended, and must clearly state the issues in controversy, and the relief requested. This notice, if sufficiently detailed, may serve as the appellant's initial complaint. See Rule 3(a).

(b) The appeal notice shall be mailed or delivered to the financial Assistance Appeals Board (for address see $ 1024.3(b)(1)), with a copy to the official whose decision is being appealed, and a second copy to the General

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