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PART 5-60—CONTRACT APPEALS

Sec.
5-60.000 Scope of part.

Subpart 5–60.1-General Policy 5-60.101 Jurisdiction for considering ap

peals. 5-60.102 Organization and location of the

Board. 5-60.103 Receipt and reference of appeals. 5-60.104 Board of Contract Appeals pro

cedure. 5-60.104-1 Rules. 5-60.104–2 Appearance of witnesses for GSA. 5-60.104-3 Distribution of decisions. 5-60.105 Annual report. Subpart 5-60.2-Rules of the General Services

Administration Board of Contract Appeals 5-60.201 Notice of appeal. 5-60.201-1 Filing. 5-60.201-2 Acknowledgment and distribu

tion. 5-60.202 Contents of notices of appeal. 5-60.203 Defective notices of appeal. 5-60.204 Appeal file. 5-60.204–1 Request, preparation, and sub

mission. 5-60.204-2 Documents and index. 5–60.204-3 Availability. 5-60.204–4 Copies. 5-60.204-5 Administrative record. 5-60.204-6 Clerk of the Board. 5-60.205 Scope of appeals 5-60.206 Untimely appeals. 5-60.207 Representation. 5-60.208 Depositions. 5-60.209 Discovery. 5-60.210 Conferences. 5-60.211 Submission without a hearing. 5-60.212 Hearings. 5-60.213 Absence of a party from hearing. 5-60.214 Nature of hearings. 5-60.215 Examination of witnesses. 5-60.216 Post-hearing submissions. 5-60.217 Transcripts of proceedings. 5-60.218 Submission of additional infor

mation at Board's request. 5-60.219 Copies of documents. 5-60.220 Decisions. 5-60.221 Optional accelerated procedure

for cases involving sums not in

excess of $5,000. 5-60.222 Reconsideration of decisions. 5-60.223 Extensions of time. 5-60.224 Payment of claims.

AUTHORITY: The provisions of this Part 5–60 issued under sec. 205(c), 63 Stat. 390; 40 U.S.C. 486 (C).

$ 5–60.000 Scope of part.

This part establishes policies and procedures regarding matters to be considered by the Board of Contract Appeals, and the rules of the Board. (28 F.R. 1769, Feb. 26, 1963)

Subpart 5-60.1—General Policy lent legal training and experience. The

Chairman is the administrative head of

the Board but otherwise serves on an SOURCE: The provisions of this Subpart 5-60.1 appear at 28 F.R. 1769, Feb. 26, 1963,

equal status with other members. unless otherwise noted.

$ 5–60.103 Receipt and reference of

appeals. $ 5–60.101 Jurisdiction for considering

When a notice of appeal in any form appeals.

is received in GSA, it shall be endorsed (a) Except as stated in paragraph (b) or stamped to show the date of receipt of this section, the General Services Ad- and immediately be forwarded to the ministration Board of Contract Appeals Administrator. The Administrator will (referred to in this part 5-60 as "the forward to the Board appeals submitted Board") shall consider and determine under the terms of the contract and such appeals from decisions of contracting other appeals as he determines should be officers and other officials of GSA arising submitted to the Board for decision or under contracts which contain provi- recommendation. sions requiring the determination of ap

$ 5–60.104 Board of Contract Appeals peals by the head of an agency or his duly authorized representative or board,

procedure. and as otherwise authorized by the Ad- § 5-60.104-1 Rules. ministrator.

The Board has authority Appeals referred to the Board are to determine appeals falling within the handled in accordance with the rules of scope of its jurisdiction as fully and

the Board (see Subpart 5–60.2). These finally as might the Administrator rules outline the manner in which aphimself.

peals are received, hearings conducted, (b) The Administrator reserves the and decisions rendered. right to direct that the authority of the Board shall not be exercised where he § 5–60.104–2 Appearances of witnesses

for GSA. may desire or be required to render a decision on a matter in dispute. In such GSA witnesses, as determined by the instances, the Administrator may re- appropriate service or staff office in conquest the Board to submit findings and sultation with the Office of General recommendations.

Counsel, shall appear before the Board $ 5–60.102 Organization and location of

and give testimony. the Board.

§ 5-60.104–3 Distribution of decisions. (a) The Board is located in Washing- A copy of the decision of the Board ton, D.C., and is a part of the staff of the shall be furnished to each party, to all Administrator.

affected Central Office services and staff (b) The Board consists of a Chairman offices, all regional offices, and shall be and four to six other members, in addi- available for public inspection unless tion to clerical personnel. At least three prohibited by GSA regulations governing members of the Board must be trained the availability of records. in the law. In general, the appeals are assigned to a panel of at least three

$ 5–60.105 Annual report. members of the Board. The decision of The Board shall submit to the Admina majority of the panel constitutes the istrator, during the month of July of decision of the Board. Each panel shall each year, a report containing an achave one member who is a graduate of count of its transactions and proceedings an accredited law school or has equiva- for the preceding fiscal year.

Subpart 5–60.2—Rules of the Gen- e.g., Public Buildings Service, Federal eral Services Administration Board Supply Service, etc.

(3) The decision from which the apof Contract Appeals

peal is taken, including any findings of SOURCE: The provisions of this Subpart

fact made in connection therewith. 5–60.2 appear at 29 F.R. 14928, Nov. 4, 1964, (4) The date of the decision. unless otherwise noted.

(5) The contractual provisions con$ 5–60.201 Notice of appeal.

cerned in the dispute.

(6) The nature of the dispute, and the $ 5–60.201-1 Filing.

relief sought by the appellant. A notice of appeal must be in writing,

(b) The notice of appeal shall be should be addressed to the Administra

signed by the appellant personally, if an tor of General Services, and mailed or

individual, or if not, by an authorized otherwise furnished to the contracting

officer or duly authorized representative officer. However, where the notice of

of the appellant organization. A supappeal is addressed to the contracting

porting brief may be submitted with the officer from whose decision the appeal is

notice of appeal, or, if the appellant pretaken, or to the head of the constituent

fers, may be filed with the Board within General Services Administration organi

15 days after the mailing or filing of the

notice. zation, upon referral the Board will proceed as though the appeal had been made § 5–60.203 Defective notices of appeal. to the Administrator. The notice of

Where the Board finds that a notice of appeal must be mailed or otherwise filed within the time specified therefor in the

appeal does not comply with the require

ments of $ 5–60.202, the appellant will contract, or as allowed in applicable provisions of directives or law. When a no

be notified in writing promptly of such tice of appeal is received the recipient

deficiency. Appellant's failure thereshall endorse thereon the date of receipt,

after to perfect the appeal expeditiously

will result in a written demand by the and, if mailed, the date of mailing. The envelope in which the notice of appeal

Board that appellant show cause why

the appeal should not be dismissed, and was rec ved (whether by mail or by

such dismissal will ensue unless the aphand delivery) shall be preserved and attached to the notice.

pellant, within the time prescribed by

the Board, furnishes a satisfactory ex§ 5–60.201-2 Acknowledgment and dis- planation for his delay.

tribution. After the Board receives the notice of $ 5–60.204 Appeal file. appeal, it will promptly acknowledge re

$ 5–60.204–1 ceipt thereof to the appellant, furnishing

Request, preparation, and

submission. the appellant with a copy of these rules. The Board simultaneously will furnish The contracting officer will submit to copies of the notice of appeal and ac- the Board through the Central Office knowledgment to the contracting officer, service or staff office concerned and the GSA Central Office service or staff through the Office of the General Counoffice concerned, and the appropriate sel the following documents and inforrepresentative of the Office of the Gen- mation (herein referred to as the "aperal Counsel.

peal file") as promptly as possible after $ 5–60.202 Contents of notices of ap

receipt of the Board's request therefor,

and in any event so as to reach the Board peal.

within 30 days after such receipt. (a) A notice of appeal should indicate that an appeal is intended and should

$ 5–60.204–2 Documents and index. include the following information:

(a) The appeal file should include the (1) Identification of contract involved originals or copies of all documents per(by number).

tinent to the appeal, together with an (2) The General Services Administra. index listing the documents. There tion organization involved in the dispute, should be included:

(1) The decision from which the appeal is taken, including any findings of fact made in connection therewith.

(2) The invitation for bids, the contract, pertinent plans, specifications, amendments, and change orders.

(3) Correspondence between the parties.

(4) Transcripts of any testimony taken during the course of any proceedings conducted on the dispute prior to the filing of the appeal.

(5) Such additional information as may be considered material.

(6) A statement of the position relied on by the Government with regard to the issues presented by the appeal.

(b) A copy of the index listing the documents in the appeal file and of the statement of position relied upon by the Government shall be furnished the appellant by the Board when the appeal file is received.

§ 5–60.204-3 Availability.

The appeal file will be available for inspection by the parties or their representatives at the Board's offices. A duplicate appeal file will also be available for such inspection at the office of the contracting officer in the regional office. The contracting officer will notify the Board whenever the appellant makes inspection of his appeal file, furnishing dates, names, and other relevant information.

(b) Availability. The administrative record shall be available for inspection by the parties or their representatives at the Board's offices.

(c) Copies. Copies of material in the administrative record shall be available upon the same basis as that set forth in § 5–60.204-4 for copies of documents in the appeal file. § 5–60.204–6 Clerk of the Board.

The Board's Clerk maintains central control of all records pertaining to the Board's activities, and is prepared to handle inquiries concerning same. In the interest of convenience, prior arrangements for inspection of any appeal file at the Board's Washington office or for inspection of any administrative record and for desired copies of material in such files or records should be made with the Clerk. § 5–60.205 Scope of appeals.

Where an appeal is within the jurisdiction of the Board, it will, in its discretion, hear, consider, and make decisions on all questions necessary for the complete adjudication of the issues. Defenses which go to the jurisdiction of the Board will be raised by motion. Filing of motions to dismiss for lack of jurisdiction shall not be unreasonably delayed. Normally, motions to dismiss for lack of jurisdiction shall, upon application of either party, be heard and determined before oral hearing on the merits. The Board, however, has the right at any time to determine its lack of authority to proceed in a particular case. Appeals not falling within the scope of the Board's jurisdiction will be formally dismissed. § 5–60.206 Untimely appeals.

Where the Government contends that a notice of appeal was not filed within the time specified, or where the Board itself decides that a question concerning timeliness of the appeal is present, the Board's initial consideration will be limited to such jurisdictional question. Accordingly, the Board shall not consider the merits of the appeal if the submission was in fact untimely. If the Board determines that a notice of appeal was filed untimely, it shall dismiss the appeal, giving appropriate notice of such action to the parties.

8 5–60.20444 Copies.

Arrangements can be made to furnish an appellant with desired copies of material in the appeal file upon payment of the cost involved. Authority to authenticate or attest such copies is vested in the GSA General Counsel to whom requests for such service should be addressed, with a copy of the request to be furnished the Board.

$ 5–60.204–5 Administrative record.

(a) Contents. The administrative record shall include the submissions to the Board by the parties to the appeal, the Board's correspondence file pertaining to the appeal, the transcript of any proceeding, and the written memorials of any other action taken by the Board with respect to the appeal.

§ 5-60.207 Representation.

An appellant may appear before the Board in person, or may be represented by counsel or by any other duly authorized representative. $ 5-60.208 Depositions.

(a) Upon agreement of the parties, the testimony of any person may be taken by deposition for use as evidence in the appeal proceedings. The deponent may be examined on any matter, not privileged, which is relevant to the subject of the appeal. Testimony taken by deposition shall not be considered as evidence in the appeal until such testimony is offered and received in evidence at the oral hearing. If oral hearing has been waived and the appeal is submitted on the record pursuant to the Board's rules, the deposition shall be considered in evidence before the Board, unless any objection made thereto shall have been sustained. Objection may be made at the oral hearing or on submission on the record to receiving in evidence any deposition or any part thereof on the ground that it does not qualify for admission or upon any other ground which would require the exclusion of the evidence if the witness were orally testifying before the Board. Opportunity for rebuttal of relevant evidence contained in a deposition which is received in evidence shall be accorded the adverse party.

(b) Depositions shall be taken before any person authorized to administer oaths by the laws of the United States or of the state where the examination is held. Each deposition shall show the Board's docket number and style of the proceeding, the place and date of taking, the name of the deponent and the names of all persons present. The person taking the deposition shall certify thereon that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.

(c) Depositions may be taken upon oral examinations or upon written interrogatories. & 5–60.209 Discovery.

(a) Upon written motion filed with the Board, appellant may move for access to official records in the custody of the General Services Administration for the inspection or production of records, not privileged, which constitute or con

tain evidence regarding any matter which is relevant to the subject matter involved in the appeal.

(b) The motion shall identify with reasonable particularity the document desired and in what respect it is relevant to the issues of the case in terms of discovery. No record furnished in response to a motion shall become evidence until offered and received in evidence. Motions for an order of discovery shall be filed with the Board prior to oral hearing.

(c) Privileged records are those (1) relating solely to internal management, (2) confidential by law, (3) security classified, and (4) whose release is otherwise not in the public interest.

(d) Records, as used in this subpart, include, but are not limited to, documents, papers, books, and letters. § 5-60.210 Conferences.

(a) The Board may, upon the request of either party, or in its own discretion, arrange for the holding of a conference at a time and place specified by the Board to consider the following:

(1) Simplification of the issues.

(2) Possibility of obtaining stipulations, admissions of fact, and agreement respecting the introduction of documents.

(3) Limitation of the number of expert witnesses.

(4) Such other matters as may facilitate disposition of the appeal.

(b) A memorandum report by the Board member who conducted the conference shall be included in the appeal file. $ 5–60.211 Submission without a hear

ing. Where neither party desires a hearing, and the Board does not require one, the Board's decision will be based upon the available record as furnished by the parties. § 5–60.212 Hearings.

The Board shall grant a hearing at the request of either party, or in its own discretion may order that a hearing be held. The parties will be given a minimum of 15 days' notice in writing of the time and place of the hearing. Unless there is substantial justification shown for holding the hearing elsewhere, it will be held in the General Services Building,

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