ate, to produce books, papers, documents, or tangible things, at a time and place therein specified. Subpoenas (including those calling for the production of documentary evidence) are signed by an Administrative Judge or by the Recorder of the Board but otherwise left blank when furnished to the party requesting the subpoena. The party to whom the subpoena is issued shall fill it in before service.

(b) Subpoenas for attendance at hearing. At the request of any party, subpoenas for the attendance of witnesses at a hearing are issued. A subpoena requiring the attendance of a witness at a hearing may be served at any place within 100 miles of the place of hearing specified in the subpoena; but the Board, upon proper application and for good cause shown by the requesting party, may authorize the service of a subpoena at any other place.

(c) Subpoenas for production of documentary evidence. A subpoena, in addition to requiring attendance to testify, may also command any person to whom it is directed to produce books, papers, documents, or tangible things designated therein. A subpoena calling for such production shall show the general relevance and reasonable scope of the evidence sought.

(d) Subpoenas for taking depositions. Subpoenas in aid of depositions (including those for the production of books, papers, documents, or tangible things) may be issued by the Recorder of the Board upon a showing that the parties have ageed to, or the Board has ordered, the taking of depositions under Rule 18. The service of subpoenas in aid of depositions shall be limited to the city or county wherein the witness resides or is employed or transacts business in person. If a subpoena is desired at other locations, a specific ruling of the Board is required.

(e) Requests to Quash or Modify. Upon written request by a person under subpoena or by a party, made within 10 days after service but in any event not later than the time specified in the subpoena for compliance, the board may (1) quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown, or (2) require the person in whose behalf the subpoena was issued to advance the reasonable costs of producing subpoenaed books and papers. Where circumstances require, the Board may act upon such a request at any time after a copy has been served upon the opposing party.

(f) Foreign country. A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner, and be served as provided in 28 U.S.C. § 1781-1784.

(g) Service. A subpoena may be served by a United States Marshal or a deputy, or by any person not a party who is not less than 18 years of age. Service of a subpoena upon

a person named therein shall be made by tendering the subpoena to that person with the fees for one day's attendance and the mileage allowed by law (28 U.S.C. 1821). When the subpoena is issued on behalf of the United States or an officer or agency of the United States, fees and mileage need not be tendered.

(h) Fees. The party at whose instance a subpoena is issued shall be responsible for the payment of witness fees and mileage, as well as the fees and mileage of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Board as a sufficient ground for striking the testimony of the witness and the books, papers, documents, or tangible things produced.

(i) Contumacy or refusal to obey a subpoena. In case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of a United States District Court, the Board will apply to the court through the Attorney General of the United States for an order requiring the person to appear before the Board or a member thereof to give testimony or produce evidence or both. Any failure of any such person to obey the order of the court may be punished by the court as a contempt thereof.

Rule 25. Copies of papers. When books, records, papers or documents have been received in evidence, a true copy or any material or relevant part may be substituted during or at the conclusion of the hearing.

Rule 26. Posthearing briefs. Posthearing briefs may be submitted upon such terms as may be agreed upon by the parties and the presiding Administrative Judge at the conclusion of the hearing.

Rule 27. Transcript of proceedings. Testimony and argument at hearings are reported verbatim, unless the Board otherwise orders. Transcripts or copies of the proceedings are supplied to the parties and others at such rates as may be fixed by the Board.

Rule 28. Withdrawal of exhibits. After a decision has become final, the Board, in its discretion, upon request and after notice to the other party, may direct or permit the withdrawal of all or part of original exhibits. The substitution of true copies of exhibits or photographs of physical objects may be required by the Board as a condition of withdrawal.

PARTIES

Rule 29. Representation of the Parties-(a) The Appellant. An individual appellant may appear before the Board in person, a corporation by an officer, a partnership or joint venture by a member, or any of these by an attorney-at-law admitted to practice before the highest court of the District of Columbia or any State, Commonwealth, or terri

tory of the United States. An attorney representing an appellant shall file a written notice of appearance with the Board.

(b) The Government. Government counsel may, in accordance with their authority, represent the interest of the Government before the Board. They shall file notices of appearance with the Board.

Rule 30. Third Party Practice. The Board, on its own motion, or on the motion of any party may (1) notify any and all persons with legal capacity to sue and be sued and who appear to have an interest in the subject matter of any pending appeal to appear as a party or parties and assert their interest therein; or (2) on motion of the Government may summon any such third person or persons against whom the Government may be asserting a claim or contingent claim for recovery of money paid by the Government in respect of the transaction or matter which constitutes the subject of the appeal to appear as a party or parties and defend their interest, if any, in such appeal. Such motion if made by an appellant shall be filed at the time the complaint is filed; if made by the Government it shall be filed on or before the date on which the Government is required to answer.

Rule 31. Settlement. A dispute may be settled at any time before the Board renders its decision by the appellant filing a written notice withdrawing the appeal or by written stipulation of the parties settling the dispute. Proceedings may be suspended while the parties are considering settlement.

DECISIONS AND RECONSIDERATION OF

DECISIONS

Rule 32. Decisions. Decisions of the Board are rendered in writing. Copies are forwarded simultaneously to both parties. The rules of the Board and all final orders and decisions are open for public inspection at the offices of the Board in Washington, D.C. Decisions of the Board are made solely upon the record, as described in Rule 17.

Rule 33. Motion for reconsideration. A motion for reconsideration shall set forth specifically the grounds relied upon to sustain the motion and shall be filed within 30 days from the date of receipt of a copy of the Board's decision.

DISMISSALS AND SANCTIONS

Rule 34. Dismissal for lack of jurisdiction. Any motion addressed to the jurisdiction of the Board shall be promptly filed. A hearing on the motion may be afforded on application of either party. The Board has the right at any time on its own motion to raise the issue of its jurisdiction to proceed with a particular case and do so by an appropriate order, affording the parties an opportunity to be heard.

Rule 35. Dismissal without prejudice. When the Board is unable to proceed with disposition of an appeal for reasons not within its control, such appeal is placed in a suspense status. In any case where such suspension has continued, or it appears that it may continue for a period in excess of one year, the Board may dismiss the appeal without prejudice to its restoration to the Board's docket when the cause of suspension has been eliminated. Unless either party or the Board acts to reinstate any appeal so dismissed within three years from the date of dismissal, the dismissal is automatically converted to a dismissal with prejudice without further action by the parties or the Board.

Rule 36. Dismissal for failure to prosecute or defend. Whenever a record discloses the failure of any party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates a party's intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be dismissed or granted, as appropriate.

Rule 37. Sanctions. If any party fails or refuses to obey an order issued by the Board, the Board may make such order in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal, including dismissal with prejudice.

COURT REMANDS

Rule 38. Remand from court. Whenever any court remands a case to the Board for further proceedings, each of the parties shall, within 20 days of such remand, submit a report to the Board recommending procedures to be followed so as to comply with the court's order. The Board considers the reports and enters special orders governing the handling of the remanded case. To the extent the court's directive and time limitations permit, such orders conform to these rules.

§ 12-60.203 Effective date.

This part shall apply to all appeals relating to contracts entered into on or after March 1, 1979, and at the contractor's election, to appeals relating to earlier contracts with respect to claims pending before the contracting officer on March 1, 1979, or initiated thereafter. In addition, the Board may, upon notice to the parties, apply any part of these rules not mandated by the Contract Disputes Act of 1978 to any appeal pending under the prior

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use by contractors in connection with procurement by the components of the Department of Transportation, prescribes responsibilities and procedures pertinent thereto, and references applicable contract clauses. This part does not apply to property to which the Government has acquired a lien or title solely as a result of partial, advance, or progress payments. When lien or title is acquired solely as a result of such payments, the provisions of the partial, advance, or progress payments clauses shall apply, including any modifications to such clauses as may be contained in the contract.

Subpart 12-70.1-General

§ 12-70.101 Definitions.

As used in this part, the following terms have the meaning stated below. Additional definitions applicable to property administration are set forth in DOTPR Supplement 1-"Manual for Control of Property in Possession of Contractors."

§ 12-70.101-1 Property.

Includes all property, both real and personal. For the purpose of this part, if consists of two separate categoriesmaterial and facilities.

§ 12-70.101-2 Government property.

Means all property owned by or leased to the Government or acquired by the Government under the terms of a contract. However, the term "Government property" does not include property to which the Government has acquired a lien or title solely as a result of partial, advance, or progress payments. Government property includes both Government-furnished property and contractor-acquired

property as defined below:

(a) Government-furnished property is property in the possession of, or acquired directly by, the Government and subsequently delivered or otherwise made available to the contractor; and

(b) Contractor-acquired property is property procured or otherwise provided by the contractor for the per

§ 12-70.101-4 Material.

Means property which may be incorporated into or attached to an end item to be delivered under a contract or which may be consumed or expended in the performance of a contract. It includes, but is not limited to, raw and processed material, parts, components, assemblies, and small tools and supplies which may be consumed in normal use in the performance of a contract. It also includes items of a nonexpendable nature with a unit acquisition cost of less than $50, unless the Government has designated any such items to be classified as plant equipment.

§ 12-70.101-5 Non-expendable.

Means items of Government personal property which:

(a) Have a unit acquisition cost of $50.00 or more, and

(b) Have a life expectancy of one year or more, and

(c) Retain their identity when put into use, and

(d) Are not consumed in the performance of work on the contract.

§ 12-70.101-6 Plant equipment.

Means personal property of a nonexpendable nature (consisting of equipment, machine tools, test equipment, furniture, vehicles, and accessory and auxiliary items) used or capable of use in the manufacture of supplies or in the performance of service or for any administrative or general plant pur

pose.

§ 12-70.101-7 Facilities.

Means property (other than material) for production, maintenance, research, development, or test, including real property and rights therein, build

§ 12-70.101-9 Excess and residual contract inventory.

"Excess and residual contract inventory" means:

(a) Any property acquired by and in the possession of a contractor or subcontractor (including Government-furnished property) under a contract pursuant to the terms of which title is vested in the Goverment, and in excess of the amounts needed to complete full performance under the entire contract; and

(b) Any property which the Government is obligated to or has an option to take over under any type of contract as a result either of any changes in the specifications or plans there under or of the termination of such contract (or subcontract thereunder), prior to completion of the work, for the convenience or at the option of the Government.

§ 12-70.102 Use for or by contractors of test facilities owned and operated by the Government.

(a) The on-site use for or by contractors of existing Government-owned test facilities located at installations owned and operated by the Government may be authorized in connection with the performance of Government contracts only when:

(1) there is no commercial test capability adequate for the testing needs,

or

(2) substantial cost savings will result from use of the Governmentowned test facilities.

(b) Whenever any such use is authorized, adequate consideration comparable to commercial charges, if any, shall be obtained under any affected contract.

§ 12-70.103 Government property contract clauses.

When Government property is provided under a contract, the contract shall contain the appropriate Government property clause as referenced in Subpart 12-70.9 of this part.

§ 12-70.104 Control of Government property.

The control of Government property shall be in accordance with DOTPR Supplement 1-Manual for Control of Property in Possession of Contractors. Each contract under which Government property is provided shall incorporate this Manual by reference.

§ 12-70.105 Disposition of excess and residual contract inventory.

Excess and residual contract inventory shall be disposed of in accordance with the procedures contained in Subpart 12-70.7 of this part.

Subpart 12-70.2-Furnishing Government Material to Contractors

§ 12-70.201 Policy.

It is the general policy of the Department of Transportation that contractors will furnish all material required for the performance of Government contracts. However, the Government may furnish material to a contractor when it is determined to be in the best interest of the Government by reason of economy, standardization, the expediting of production, or other appropriate circumstances.

§ 12-70.202 Procedure.

(a) Material to be furnshed by the Government shall be set forth in the solicitation in sufficient detail to permit evaluation by prospective contractors.

(b) Where material is to be furnished by the Government, the contract shall state whether the requisitioning documentation is to be prepared by the contractor or the procuring activity. When the responsibility is placed upon the contractor, such documentation shall be prepared in accordance with the instructions provided by the procuring activity.