(b) Two members, being a majority of the Appeal Board, constitute a quorum, if one of those members is the member qualified in the conduct of administrative proceedings. The vote of a majority controls in any decision by the Appeal Board, including orders in interlocutory matters and final decisions. A dissenting member is, of course, free to express his dissent and the reasons for it in a separate opinion for the record.

(c) Consultation between members of the Atomic Safety and Licensing Appeal Board and the staff, in initial licensing proceedings other than contested proceedings, is permitted on the same conditions specified for the Commissioners under 10 CFR § 2.780. However, atomic safety and licensing boards are not permitted under § 2.719 to consult, on any fact in issue, with the Chairman, Vice Chairman or third member of the Atomic Safety and Licensing Appeal Board, in any proceeding in which an appeal from the initial decision may be taken to the Atomic Safety and Licensing Appeal Board, whether contested or not.

[34 F.R. 13362, Aug. 19, 1969]

§3.1 Scope.

This part establishes a Board of Contract Appeals and prescribes the functions and rules of procedure of such Board in considering and deciding an appeal from findings of fact or decision of a contracting officer in a dispute arising under any AEC prime contract containing a disputes provision and any subcontract containing a disputes provision requiring the AEC contracting officer's decision and providing for an appeal therefrom to the Commission, where the AEC has approved the insertion of the disputes provision in the subcontract.1

§ 3.2 Purpose.

The purpose of this part is to provide for the orderly, impartial, fair, and expeditious handling of contract appeals in an informal manner, consistent with the requirements of law, the regulations of this part, the orderly conduct of the proceeding, and the necessity for preserving the record.

§ 3.3 Establishment and membership of the Board.

(a) There is hereby established within the Atomic Energy Commission the "Atomic Energy Commission Board of Contract Appeals (herein referred to as the Board), which shall be the authorized representative of the Commission for the purpose of considering and deciding appeals from findings of fact or decisions of contracting officers in disputes within the scope of this part. Decisions of the Board are final decisions of the Commission.

The

(b) The Board shall be composed of members appointed by the Commission. The Commission shall designate one member of the Board as Chairman and another member as Vice Chairman. Chairman and Vice Chairman shall be full-time employees of the Commission and attorneys admitted to practice before the highest court of any State, Territory, or the District of Columbia.

1 Appendix A contains representative examples of the types of disputes clauses generally contained in AEC prime contracts and approved for inclusion in some subcontracts.

(c) For the purpose of considering and deciding an appeal, the Board shall consist of a panel of three members, one of whom shall be the Chairman or Vice Chairman. The Chairman or Vice Chairman shall preside over the panel's activities. The composition of a panel shall be established by the Chairman within 10 days after receipt of the appeal file. The decision of the panel shall be the decision of the Board.

(d) Should the appellant elect to have his appeal considered under the accelerated procedures of §3.13, the Board shall consist of the Chairman or, at the designation or in the absence of the Chairman, the Vice Chairman. The decision of the Chairman (or Vice Chairman) shall be the decision of the Board.

(e) In the absence of the Chairman, the Vice Chairman shall have all the powers and duties of the Chairman.

(f) Two of the three members on a panel shall consitute a quorum for the conduct of the panel's business. In the absence of the presiding member of a panel, he shall designate one of the remaining members to preside.

(g) The Board members, including the Chairman and Vice Chairman, are subject to the laws relating to conflict of interest and the implementing AEC policies published in AEC Manual Chapter 4124, 10 CFR 1.256-Appendix. § 3.4

Chairman.

The chairman shall be responsible directly to the Commission. He shall exercise the proper control of the docket and be responsible for assuring the orderly and expeditious handling of disputes on appeal to the Board. §3.5 Authority of the Board.

(a) The Board shall have all powers necessary for the performance of its duties including but not limited to the authority to conduct hearings, call witnesses, dismiss appeals, order the production of documents and other evidence, administer oaths and affirmations, issue subpoenas, order depositions to be taken, take official notice of facts within general knowledge, and decide all questions of fact and law. Decisions on questions of law are subject to 68 Stat. 81 (1954), 41 U.S.C. sections 321 and 322 (1958) relating to finality.

(b) A majority of the full Board shall have the power to establish additional rules not inconsistent with the rules contained in this Part 3.

§3.6 Ex parte communications.

(a) No member of the Board or of the Board's staff shall entertain off the record, except from another member of the Board or of the Board's staff, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral regarding any substantive matter at issue in the appeal.

(b) This section does not apply to ex parte communications authorized by law or concerning the Board's administrative functions.

§ 3.7 Contracting officer determination.

(a) When a dispute arises or is alleged to arise under the contract and cannot be disposed of by agreement, the contracting officer will expeditiously prepare and transmit to the contractor his written findings of fact or decision, a copy of this part, and a copy of any rules established by the Board.

(b) The findings of fact or decision of the contracting officer shall specifically inform the contractor that the findings of fact or decision is the final decision of the contracting officer and the time allowed under the terms of the contract in which to file an appeal. § 3.8 Notice of appeal.

(a) An appeal from the findings of fact or decision of a contracting officer shall be made by notice of appeal' in writing, addressed to the Board, and shall be mailed to, or filed with, the contracting officer, within the time allowed by the contract. The notice of appeal shall specify the portion of the decision from which the appeal is taken, and the reasons why the findings or decision are deemed erroneous, and shall include a request for application of the accelerated procedure under § 3.13 if such is desired.

(b) A statement of fact and argument in the form of a brief in support of the appeal may be subinitted with the notice of appeal, or, if the appellant prefers,

A suggested form of notice of appeal appears at the end of this part as Appendix B.

may be mailed to or filed with the contracting officer, addressed to the Board, within 15 days after the mailing or filing of the notice. When a statement of fact and argument in the form of a brief in support of the appeal is not submitted with the notice, the contractor shall state in the notice whether such a statement of fact and argument in the form of a brief in support of the appeal will be filed.

§ 3.9 Reply.

(a) When a statement of fact and argument in the form of a brief in support of the appeal has been filed, a reply may be filed with the Board by the contracting officer within 30 days from the date of receipt of the statement of fact and argument in the form of a brief in support of the appeal.

(b) In the event no statement of fact and argument in the form of a brief is filed by appellant, the contracting officer may file an additional statement of his position and supporting argument within 30 days from the receipt of notice that no statement of fact and argument in the form of a brief in support of the appeal will be filed.

§ 3.10

Responsibilities of the contracting officer.

(a) Immediately upon receipt of the notice of appeal, the contracting officer shall inform the Board that the appeal has been received and shall promptly but in no event later than 15 days from the date of receipt transmit the appeal file in triplicate to the Board. The appeal file shall consist of the notice of appeal and the appellant's brief, if any, submitted therewith and of all documents on which the contracting officer has relied in making his findings of fact or decision, including the following:

(1) The findings of fact or decision of the contracting officer;

(2) The contract, specifications, pertinent drawings and plans; and modifications including change orders; and

(3) All correspondence and other data material to the appeal other than documents in the categories set forth in § 9.5 (a) of this chapter.

(b) At the time the appeal file is transmitted to the Board, a copy of all papers and documents included in the appeal file and not reasonably expected by the contracting officer to be accessible to the appellant, shall be transmitted to

the appellant together with an index thereof.

[29 F.R. 12831, Sept. 11, 1964, as amended at 32 FR. 9215, June 29, 1967]

§3.11 Dismissal for lack of jurisdiction.

Any motion addressed to the jurisdiction of the Board shall be filed promptly but in no event later than 15 days prior to the date set for conference (see §3.12). The moving party shall attach to the motion a statement setting forth the basis for the motion. A statement in opposition to the motion may be filed with the Board within 8 days from the date on which the motion is received by the opposing party. The Board shall have the right on its own motion at any time to recognize its lack of jurisdiction after affording the parties an opportunity to be heard thereon.

(a) Within sixty days after receipt of the appeal file, the Chairman shall direct the parties to appear before the Board for the purpose of exploring the possibility of informally disposing of the appeal by agreement. If it becomes evident that such informal disposition of the appeal by agreement cannot be achieved, the following matters shall be considered:

(1) Jurisdiction of the Board, if the issue has been raised and not already disposed of;

(2) Simplification of issues;

(3) The possibility of obtaining stipulations, admissions of facts and other agreements which will avoid unnecessary proof;

(4) Scope of expert testimony if a hearing is to be held, including requests by the Board for the introduction of any expert testimony desired by the Board; and

(5) Such other matters as may aid in the disposition of the appeal.

(b) The results of the conference shall be reduced to writing by the Board and such writing shall thereafter constitute part of the record.

(c) At the conclusion of the conference the Board may enter an order which recites the action taken at the conference. The order shall control the subsequent course of the proceeding unless modified for good cause.

§3.13 Accelerated procedure.

(a) If the amount involved in an appeal does not exceed $10,000, the Board

(see § 3.3(d)) will, at the request of the appellant, undertake to issue a decision on the appeal on an expedited basis, without regard to its normal position on the docket. Under this accelerated procedure, the case will be further expedited if the parties elect to waive the filing of written materials and/or elect to waive the hearing. In all other respects these rules will apply.

(b) This procedure may at the discretion of the Chairman be employed regardless of the amount involved for other good causes shown, such as financial hardship, status as small business, location of appellant in an area of substantial or persistent labor surplus.

(c) A request for a decision on an expedited basis under this section shall be contained in the notice of appeal. §3.14

Representation.

The parties to an appeal may appear before the Board in person, a corporation by an officer thereof, a partnership or joint venture by a member thereof, or any of these by an attorney who is admitted to practice before the courts of any State, Territory, or the District of Columbia.

§3.15 Request for hearing.

If at the conclusion of the conference there remains a disputed question of fact, the Board shall, at the request of either party received not later than 15 days from the last day of the conference, grant a hearing. In the absence of a request, the Board may, in its discretion, require a hearing. If a hearing is not held, the Board shall decide the appeal on the record.

§3.16 Notice of hearing.

The parties will be given a minimum of 15 days' notice of the time and place of the hearing which will be held at the AEC Field Office administering the contract from which the dispute arises, the AEC Headquarters Building, Germantown, Maryland, or any other place which the Board determines will best serve the interests of the parties. §3.17 Conduct of Hearings.

(a) The hearings shall be conducted by the Board.

(b) Hearings shall be as informal as may be reasonable and appropriate under the circumstances. The parties may offer such relevant evidence as they

deem appropriate and as would be admissible under the generally-accepted rules of evidence applied in the courts of the United States in non-jury trials, subject, however, to the sound discretion of the Board in supervising the extent and manner of presentation of such evidence. In general, admissibility will hinge on relevancy and materiality. Letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the generally-accepted rules of evidence, may be admitted in the discretion of the Board. The weight to be attached to evidence presented in any particular form will be 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 regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Board may in any case require evidence in addition to that offered by the parties.

(c) Witnesses before the Board will be examined orally under oath or affirmation, unless the facts are stipulated, or the Board shall otherwise order. If the testimony of a witness is not given under oath, the Board shall invite the attention of the witness to the provisions of 18 U.S.C., sections 287 and 1001.

(d) A verbatim transcript of the hearing shall be made. A copy of the transcript shall be available for public inspection.

§3.18 Post-hearing briefs.

The Board shall fix a time not less than 30 days from the conclusion of the hearing within which post-hearing briefs may be filed.

§3.19 Service of papers.

A copy of all statements or briefs addressed to the Board, except the appeal file, shall be served on the other party and his attorney at the time of filing with the Board. Service of written materials may be made personally or by mailing same to the other party. §3.20

Decisions.

The opinion of a majority of a panel, or of the Chairman, or Vice Chairman in appeals decided under § 3.13, constitutes the decision of the Board. A copy of the decision shall be furnished to both parties and shall be available for public inspection.

TYPICAL PRIME CONTRACT DISPUTES CLAUSE (a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Commission. The decision of the Commission or its duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the

performance of the contract and in accordance with the Contracting Officer's decision.

(b) This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

TYPICAL SUBCONTRACT DISPUTES CLAUSE

A-Except as otherwise provided in this Subcontract, any dispute concerning a question of fact arising under this Subcontract which is not disposed of by agreement shall be decided by the AEC Contracting Officer for the Prime Contractor's Contract No. who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the prime contractor and the Subcontractor. Within thirty (30) days from the date of receipt of such copy, the Subcontractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the U.S. Atomic Energy Commission, and the decision of the Commission shall, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence, be final and conclusive; provided, that if no such appeal to the Commission is taken, the decision of the Contracting Officer shall be final and conclusive. In connection with any appeal proceeding under this article, the subcontractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the subcontractor shall proceed diligently with the performance of the Subcontract and in accordance with the decision of the Contracting Officer.

B-This "Disputes" article does not preclude consideration of law questions in connection with decisions provided for in paragraph A above; provided, that nothing in this Subcontract shall be construed 88 making final the decision of any administrative official, representative, or board on a question of law.