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provided in subparagraph (a) above, citing the failure of the contracting officer to issue a decision.
(c) Where the contractor has submitted a claim in excess of $50,000 to the contracting officer and the contracting officer has failed to issue a decision within a reasonable time, the contractor may file a notice of appeal as provided in subparagraph (a) above, citing the failure to issue a decision.
(d) Upon docketing of appeals filed pursuant to (b) or (c) above, the Board, at its option, may stay further proceedings pending issuance of a final decision by the contracting officer within the time fixed by the Board or order the appeal to proceed without the contracting officer's decision.
Rule 2. Contents of notice of appeal. A notice of appeal must indicate that an appeal is intended and identify the contract by number, the administration, bureau, or office concerned with the dispute, the decision from which the appeal is taken, and the amount in dispute, if known. The notice of appeal shall be signed by the appellant, or by an officer of an appellant corporation or member of an appellant firm, or by an appellant's authorized representative or attorney.
Rule 3. Docketing of Appeals. Following receipt by the Board of the original notice of an appeal, the appellant and the contracting officer are promptly notified of its receipt and docketing by the Board, and the Board furnishes a copy of these rules to the appellant.
Rule 4. Preparation, contents, organization, forwarding, and status of appeal file. (a) Duties of contracting officer. Within 30 days after receipt of notice that an appeal has been docketed, the contracting officer shall assemble and transmit to the Board, with a copy to the appellant and the Government attorney, an appeal file consisting of all documents pertinent to the appeal, including:
(1) The contracting officer's decision and findings of fact from which the appeal is taken;
(2) The contract, including pertinent specifications, modifications, plans, and drawings;
(3) All correspondence between the parties pertinent to the appeal, including the letters of claim in response to which the decision was issued;
(4) Transcripts of any testimony taken during the course of proceedings, and affi. davits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and
(5) Any additional information considered pertinent.
(b) Duties of the appellant. Within 30 days after receipt of a copy of the appeal file as sembled by the contracting officer, the appellant may supplement the file by trans.
mitting to the Board any additional documents which it considers pertinent to the appeal and shall furnish two copies of such documents to the Government attorney.
(c) Organization of appeal file. Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file. The contracting officer's final decision and the contract shall be conveniently placed in the file for ready reference.
(d) Lengthy documents. The Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or outof-size documents in the appeal file when a party has shown that doing so would impose an undue burden. At the time a party files with the Board a document as to which such a waiver has been granted, the other party shall be notified that the document or a copy is available for inspection at the offices of the Board or of the party filing the document.
(e) Status of documents in appeal file. Documents contained in the appeal file are, without further action by the parties, a part of the record upon which the Board renders its decision, unless a party objects to the consideration of a particular document at or before the hearing or, if there is no hearing on the appeal, before closing the record. If objection to a document is made, the Board rules upon its admissibility into the record as evidence in accordance with Rules 17 and 23.
Rule 5. Service of documents. A copy of every written communication submitted to the Board shall be sent to every party to the dispute. Such communications shall be sent by delivering in person or by mailing, properly addressed with postage prepaid, to the opposing party or, where the party is represented by counsel, to its counsel. Each communication with the Board shall be accompanied by a statement, signed by the originating party, saying when how, and to whom a copy was sent.
Rule 6. Computation and extension of time limits—(a) Computation. Except as otherwise provided by law, in computing any period of time prescribed by these rules, or by any order of the Board, the day of the event from which the designated period of time begins to run is not included, but the last day of the period is included unless it is a Saturday, Sunday, or a legal holiday, in which case the period runs to the end of the next business day.
(b) Extensions. All requests for extensions of time shall be submitted to the Board in writing and shall state good cause for the request.
Rule 7. Motions. Motions are made by filing an original and two copies, together
with any supporting papers, with the Board. Motions may also be made upon the record, in the presence of the other party, at a prehearing conference or a hearing. The Board considers any timely motion:
(a) For extensions of time (Rule 6) or to cure defaults;
(b) To require that a pleading be made more definite and certain, or for leave to amend a pleading (Rule 14);
(c) To dismiss for lack of jurisdiction (Rule 34); to dismiss for failure to prosecute (Rule 36); or to grant summary relief because a pleading does not raise a justiciable issue;
(d) For discovery, for interrogatories to a party, or for the taking of depositions (Rules 18 and 19);
(e) To reopen a hearing; or to consider a decision (Rule 33); or
(f) For any other appropriate order.
The Board may, on its own motion, initiate any such action by notice to the parties. Unless a longer time is allowed by the Board, a party who receives a motion shall file any answering material within 20 days after the date of receipt. The Board makes an order on each motion that is appropriate and just to the parties, and upon conditions that will promote efficiency in disposing of the appeal. The Board may permit oral hearing or argument on motions, and may require the presentation of briefs.
ELECTION OF PROCEDURES Rule 8. Appellant's Election of Procedures. (a) In every appeal the appellant is required to elect one of the following procedures:
(1) A hearing under the Board's regular procedure (Rule 12);
(2) A hearing under the small claims (expedited) procedure, if applicable (Rule 9);
(3) A hearing under the Board's acceler. ated procedure, if applicable (Rule 10); or
(4) Submission on the written record without a hearing (Rule 11). Also see Rule 11 with respect to the Government's right to waive a hearing.
(b) The small claims (expedited) procedure is available where the amount in dispute is $10,000 or less (Rule 9). The acceler. ated procedure is available where the amount in dispute is $50,000 or less (Rule 10). In deciding whether the small claims (expedited) or accelerated procedure is applicable to an appeal, any question regard ing the amount in dispute shall be determined by the Board
(c) The appellant's election of one of the above procedures shall be made in writing within 30 days after receipt of the appeal file unless such period is extended by the Board for good cause shown. The election may not be withdrawn except with permis. sion of the Board and for good cause shown.
Rule 9. The small claims (expedited) procedure. (a) The small claims (expedited)
procedure provides for simplified rules of procedure to facilitate the decision of an appeal, whenever possible, within 120 days from the date such procedure is elected.
(b) Promptly upon receipt of an appellant's election of the small claims (expedited) procedure, the assigned Administrative Judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:
(1) Identify and simplify the issues in dispute;
(2) Establish a simplified procedure appropriate to the particular appeal;
(3) Determine whether the appellant desires a hearing and, if so, fix a time and place for the hearing; and
(4) Establish a schedule for the expedited resolution of the appeal.
(c) The subpoena power set forth in Rule 24 is available for use under the small claims (expedited) procedure.
(d) The filing of pleadings, motions, discovery proceedings or prehearing procedures will be permitted only to the extent consistent with the requirement of conducting the hearing at the scheduled time and place or, if no hearing is scheduled, of closing the record at an early time so as to permit a decision of the appeal within the 120 day time limit. The Board, in its discretion, may impose shortened time periods for any actions required or permitted under these rules, necessary to enable the Board to decide the appeal within the 120 day time limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.
(e) Decisions in appeals considered under the small claims (expedited) procedure are rendered by a single Administrative Judge. Written decisions of appeals considered under this procedure are short and contain only summary findings of fact and conclusions. If there has been a hearing on the appeal, the presiding Administrative Judge may, in his descretion, hear closing oral arguments of the parties and then render an oral decision on the appeal. Such decision will include summary findings of fact and conclusions. Whenever such an oral decision is rendered, the Board subsequently furnishes the parties with a written transcript of the oral decision for record of the oral decision for record and payment purposes and to commence the time period for the filing of a motion for reconsideration under Rule 33.
(f) Decisions of the Board under the small claims (expedited) procedure shall have no value as precedent. Except in cases of fraud, decisions rendered under the small claims (expedited) procedure may not be appealed by either party.
Rule 10. The accelerated procedure. (a) The accelerated procedure makes available
a procedure where the appeal is resolved, whenever possible, within 180 days from the date such procedure is elected.
(b) Promptly upon receipt of appellant's election of the accelerated procedure, the assigned Administrative Judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:
(1) Identify and simplify the issues in dispute;
(2) Establish a simplified procedure appropriate to the particular appeal;
(3) Determine whether a hearing is desired and, if so, fix a time and place for a hearing; and
(4) Establish a schedule for the accelerated resolution of the appeal.
(c) The subpoena power set forth in Rule 24 is available for use under the accelerated procedure.
(d) The filing of pleadings, motions, discovery proceedings or prehearing procedures will be permitted only to the extent consistent with the requirement of conducting the hearing at the scheduled time and place or, if no hearing is scheduled, the closing of the record at an early time so as to permit decision of the appeal within the 180 day limit. The Board, in its discretion, may impose shortened time periods for any actions required or permitted under these rules, necessary to enable the Board to decide the appeal within the 180 day limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.
(e) Decisions in appeals considered under the accelerated procedure are rendered by a single Administrative Judge, subject to the concurrence of the Vice-Chair or another assigned Administrative Judge. In the event of an even division on an appeal, the Chair participates in the decision of the appeal. Written decisions of appeals considered under this procedure are short and contain only summary findings of fact and conclusions. In cases where the amount in dispute is $10,000 or less and there has been a hearing under the accelerated procedure the presiding Administrative Judge may, in his discretion, hear closing oral arguments of the parties and then render an oral decision on the appeal. Such decision will include summary findings of fact and conclusions. Whenever such an oral decision is rendered the Board subsequently furnishes the par ties with a written transcript of the oral decision for record and payment purposes and to commence the time period for the filing of a motion for reconsideration under Rule 33.
(f) Decisions of the Board under the accelerated procedure are published and have precedential value. Such decisions may be appealed by either party.
Rule 11. Submission of appeal without a hearing. Either party may elect to waive a hearing and to submit its case upon the record before the Board pursuant to Rule 17. Submission of a case without hearing does not relieve a party from the necessity of proving the facts supporting that party's allegation or defenses. Affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the Board record. The Board may permit such submission to be supplemented by oral argument (transcribed if requested) and by briefs in accordance with Rule 26.
Rule 12. Regular Procedure. Under the regular procedure the parties are required to file pleading with the Board (Rule 13). The regular procedure affords the parties an opportunity to make full use of prehearing and discovery procedures. Hearings under the regular procedure are conducted in the same manner as before courts of the United States in non-jury trials.
GENERAL PROCEDURES Rule 13. Pleadings-(a) Complaint. Under the regular procedure the appellant, within 30 days after receipt of the appeal file, shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each of its claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recog. nized requirements of a complaint, although no particular form is required. If the complaint is not filed within 30 days and, in the opinion of the Board, the issues before the Board are sufficiently defined, the appellant's claim and notice of appeal may be deemed to be its complaint, and the parties are so notified.
(b) Answer. Within 30 days from receipt of said complaint or a Rule 13(a) notice from the Board, the Government shall file with the Board an original and two copies of an answer, setting forth simple, concise, and direct statements of the Government's defense to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer and shall set forth any affirmative defenses as appropriate. Should the answer not be filed within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the parties are so notified.
Rule 14. Amendments of pleadings or record-(a) Pleadings. The Board upon its own initiative or upon application by a party may, in its discretion, order a party to make a more definite statement of the complaint or answer, or to reply to an answer. The application for such an order suspends the time for responsive pleading. The Board
may, in its discretion and within the proper scope of the appeal, permit either party to amend its pleadings upon conditions just to both parties.
(b) Record. When an issue within the proper scope of the appeal, but not raised by the pleadings, is tried by consent of the parties or by permission of the Board, the issue is treated in all respects as if it had been raised. A motion to amend the pleadings to conform to the proof may be made but is not required. If evidence is objected to at a hearing on the ground that it is not within an issue raised by the pleadings, it may be admitted in evidence, but the objecting party may be granted a continuance if necessary to enable him to meet such evi. dence.
Rule 15. Prehearing briefs. The Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected under the regular procedure. (Rule 8(a)(1). If the Board does not ask for briefs, either party may, upon notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall be furnished simultaneously to the other party.
Rule 16. Prehearing Conference. (a) Whether the case is to be submitted on the written record or be heard under any hearing procedure, the Board, upon its own ini. tiative or upon the application of any party, may call upon the parties to appear before the Board for a conference to consider:
(1) The simplification, clarification or severing of the issues;
(2) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;
(3) The limitation of the number of expert witnesses and the avoidance of similar cumulative evidence;
(4) The possibility of agreement disposing of all or any of the issues in dispute; and
(5) Such other matters as may aid in the disposition of the appeal.
The result of the conference is set forth in an appropriate memorandum or order which becomes part of the record.
(b) In addition to the procedures provided in subparagraph (a) above, the Board may direct any party whose claim is based in whole or in part on books of account or other records to furnish to the other party a statement showing the items and figures intended to be proved, with adequate reference to the books and records from which such figures were taken, and to make all such books and records available for examination by the other party. The Board may also direct any party to whom such a state.
ment of items and figures has been submitted (1) to make an examination of such books or records or waive challenge of the accuracy of the statement submitted as reflecting the contents of such books and records; and (2) to furnish the submitting party a schedule or schedules showing the results of such examination, with specific references to the books and records from which such figures were taken, where the examining party's results and figures are different from those contained in the statement submitted.
Rule 17. The record of the appeal-(a) Contents. The record upon which the Board's decision is rendered consists of the appeal file (Rule 4) and, if filed, the pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions and interrogatories and answers to interrogatories received in evidence, admissions, stipulations, transcripts of hearings, hearing exhibits, post-hearing briefs, and documents which the Board has specifically made a part of the record. The record is available for inspection at the offices of the Board at all reasonable times.
(b) Time of closing the record. Except as the Board, in its discretion, may otherwise order, no proof is received in evidence after completion of the hearing of the appeal or, in cases submitted on the record, after notification by the Board that the case is ready for decision.
(c) Weight of the evidence. The weight to be attached to any evidence of record rests within the sound discretion of the Board. The Board may require any party to submit additional evidence on any matter relevant to the appeal.
DISCOVERY PROCEDURES Rule 18. Discovery-Depositions-(a) General policy and protective orders. The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense. Such orders may include limitations on the scope, method, time and place for discovery, or provisions for protecting the secrecy of confidential information or documents.
(b) Obtaining a deposition. After an appeal has been docketed, the Board upon application of any party and for good cause shown, may order the taking of testimony of any person by deposition upon oral exam. ination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purposes of discovery. The application for such order shall specify wheth
er the purpose of the deposition is for discovery or for use as evidence.
(c) Orders on depositions. The time, place, and manner of taking depositions are as mutually agreed upon by the parties, or failing such agreement, as ordered by the Board
(d) Use as evidence. No testimony taken by deposition is considered as part of the evidence in the hearing of an appeal unless and until such testimony is offered and received in evidence at the hearing. Testimony by deposition is not ordinarily received in evidence if the deponent is present and can testify at the hearing. However, any deposition may be used to contradict or impeach the testimony of a witness at the hearing. In cases submitted on the record, the Board, in its discretion, may receive depositions as evidence to supplement the record.
(e) Expenses. Each party bears its own expenses associated with discovery, unless, in the discretion of the Board, the expenses are apportioned otherwise.
(f) Subpoenas. Where appropriate, any party may request that a subpoena be issued under the provisions of Rule 24.
Rule 19. Interrogatories to parties, admission of facts, and inspection of documents(a) Interrogatories to parties. After an appeal has been filed with the Board, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath, and returned within 30 days of receipt by the answering party. Within 30 days after service the answering party may object to any interrogatory and the Board determines the extent to which the interrogatory is permitted.
(b) Admission of facts. After an appeal has been filed with the Board, a party may serve upon the other party a written request for the admission of specified facts. If the request is to admit the genuineness of any document or the truth of any facts stated in a document, a copy of such document shall be served with the request. Within 30 days after receipt of the request, the party served shall answer each requested admission of facts or file objections thereto in writing. The factual propositions set out in the request are deemed admitted, if the answering party, willfully and without good cause, fails to respond to the request for admissions.
(c) Production and inspection of documents. After an appeal has been filed with the Board, a party may serve upon the other party a written request to produce and permit the inspection and copying or photographing of any designated documents, not privileged, regarding any matter which is relevant to the appeal.
(d) Any discovery under this rule shall be subject to the provisions of Rule 18(a) with respect to general policy and protective orders.
Rule 20. Time and place of hearing. Hearings will be held at such places determined by the Board to best serve the interests of the parties and the Board. Hearings will be scheduled at the discretion of the Board with due consideration to the regular order of appeals, the requirements for accelerated or expedited procedures and other pertinent factors. On request of any party and for good cause, the Board, may in its discretion, change the date of hearing.
Rule 21. Notice of hearing. The parties are given at least 15 days notice of the time and place set for hearing. In scheduling hearings, the Board gives due regard to the desires of the parties and the requirement for the just and inexpensive determination of appeals without unnecessary delay. Notices of hearings shall be promptly acknowledged by the parties.
Rule 22. Unexcused absence of a party. The unexcused absence of a party at the time and place set for hearing is not an occasion for delay. In the event of such absence, the presiding Administrative Judge may order the hearing to proceed or, in his discretion, may invoke the the provisions of Rule 36.
Rule 23. Nature of hearings. (a) Hearings are as informal as may be reasonable and appropriate under the circumstances. At the hearing the parties may offer such relevant evidence as they deem appropriate and as would be admissible under the Federal Rules of Evidence, subject, however, to the sound discretion of the presiding Administrative Judge in supervising the extent and manner of presenting the evidence. In general, admissibility is governed by relevancy and materiality. Copies of documents, affidavits, or other evidence not ordinarily admissible under judicial rules or evidence, may be admitted in the discretion of the presiding Administrative Judge. The weight to be attached to evidence presented in any particular form is within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties may be used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. In any case, the Board may require evidence in addition to that offered by the parties.
(b) Witnesses before the Board are exam. ined orally under oath or affirmation, unless the facts are stipulated, or the Board otherwise orders.
Rule 24. Subpoenas-(a) General. Every subpoena shall state the name of the Board and the title of the appeal and shall command each person to whom it is directed to attend and give testimony, and, if appropri