7103.29

CHANGE 16, 15 Jan 51 To Part I, Chapter VII

(d) Distribution will not be made to regional offices of the Army Audit Agency of contracts entered into for the purchase of services or the sale of salvage and waste materials.

(e) The requirements stated above are in addition to the contract ** distribution required by JPR 5-303 through 5-303-A, as amended.

7103.30 Preparation and Distribution of Unnumbered Contracts and Modifications Thereof

a. Signed numbers. Two signed numbers will be prepared and distributed as prescribed by JPR 5-303.3.

Authenticated copies. One will be retained in the official record file and one delivered to the disbursing officer.

7103.31

7103.31

Additional Distribution of Lumber Contracts

Whenever local purchases are made of lumber or allied products (other than purchases made by Army-Navy Lumber Branch Offices), a copy of the contractual instrument together with a statement of the contracting officer indicating the end use of the item purchased will be transmitted to the head office, Army-Navy lumber agency without delay.

7103.32 Preparation and Distribution of Subcontracts, Etc., and Modifications Thereof Under Fixed-Fee Construction or Fixed-Fee Supply Contracts

The original signed number of all subcontracts, both lump sum and fixed fee, and third-party rental agreements under fixed fee contracts will be distributed to the General Accounting Office, through the channels indicated in paragraph 7103.29a (4) and the duplicate signed number will be retained in the office of record. An authenticated copy will be forwarded to the Chief of Engineers, attention: Legal Division.

7103.33 Appeals

a.

Provision for appeal. The standard contract forms provide an orderly method of taking appeals from decisions of the contracting officer.

b. Obligation of the Contractor. It is the obligation of the contractor under the "Changes" article of the supply and construction contract forms, as well as similar articles of other standard forms, and under the "Changed Conditions" article of the lump sum construction contract form to assert any claims for adjustment under those articles promptly; for while the period specified in such provisions may be extended for asserting such claims for adjustment, it should not be, if the contractor's delay has prejudiced the Government's interests by substantially decreasing the contracting officer's ability to determine the facts pertinent to the claim, and in such cases the contracting officer would be warranted in refusing to receive and consider any such claim after the specified time has expired. It is also the obligation of the contractor to proceed diligently with the work notwithstanding any disputed claims.

c. Obligation of the contracting officer. It is the obligation of the contracting officer, upon receipt of a claim for adjustment in price or time, which has not been covered by an appropriate change order, to decide such claim promptly. If he finds the claim warranted he will promptly issue an appropriate change order. If he finds the claim not warranted, he will promptly so advise the contractor, in writing, of his decision, and at the same time advise him of his right to appeal under the "Appeals" article of the contract within the time limitation of 30 days prescribed therein. The contractor should be advised that processing his appeal through the contracting officer will expedite action thereon.

d. Findings of fact. If the contractor appeals, the contracting

7103.33

officer will make thorough findings of fact and serve a copy thereof upon the contractor and invite his prompt response thereto.

e. Decision of the contracting officer. Decisions of the contracting officer must be based upon his own judgment without subordination of his judgment to that of his superior officers. Any such subordination of the contracting officer's judgment except so far as he may be overruled by the appellate authority designated in the contract, is a breach of contract.

f. Processing appeals.

When the contractor's response to the contracting officer's findings of fact is received, the entire record, including the following documents, will be transmitted through channels to the Chief of Engineers, attention: Legal Division.

(5)

The contractor's response to the findings of fact, if any,

(6) In cases where the contract involved is not distributed to the Chief of Engineers: A complete copy of the contract record, including an authenticated copy of the contract, modifications thereto, specifications, and pertinent drawing,

(7) All intermediate correspondence pertinent to the appeal,

(8) The results of the conference required by paragraph 7103.34, and if no such conference were held, the reasons therefor,

(9)

A statement as to the funds available for payment, if appeal is sustained in whole or in part.

In any case where the contractor fails to respond within 15 days, or such longer period as the contracting officer may grant, to the contracting officer's findings of fact, the record will be transmitted without such response.

8. Number of copies. Notwithstanding the provisions of PR 318-E.1, Rule I, paragraph 2, only the original and one copy of all appeals and accompanying documents will be forwarded to the Chief of Engineers, attention: Legal Division, for further processing.

h.

Witnesses for the Government in appeal cases. A list of the names of individuals familiar with the details of the contractor's claims under

CHANGE 1, 28 July 47

To Part I, Chapter VII

7103.33

any appeal to be submitted to the War Department board of contract appeals will be included in the communication forwarding the appeal. Such list will contain the name of each individual, a concise statement as to the facts about which each may have knowledge and a statement as to how materially and competently each such witness may be expected to testify. Witnesses for the Government selected to give testimony in such cases will be interviewed by the legal branch in the district office concerned to determine the extent of the knowledge of such witnesses concerning the facts involved in the appeal and to make certain that such witnesses will have such documents available as may be necessary. A report will be made immediately to the Chief of Engineers, attention: Legal Division, concerning any potential witness who has inadequate knowledge of the facts involved in the case, and also concerning any other individual who does have adequate knowledge of the facts in the case and who should be made available as a witness. Time permitting, witnesses reporting to testify in Washington, D. C., will report to Office of the Chief of Engineers, Legal Division.

1. Final settlement. Final settlement under any contract will not be made pending the determination of disputes or appeals, or of requests for First War Powers relief. Unless the retention of a substantial sum to make adjustments is required, only a nominal sum will be retained pending final decision. (See par. 7103.36.)

j. Time for appeal. The standard disputes article provides for appeal of contractor from adverse decisions of the contracting officer within 30 days from the mailing of any such decision. There is no authority for the extension of such 30-day period. However, if the contracting officer changes his decision a new 30-day period within which to appeal is created.

k. The Corps of Engineers Claims and Appeals Board. There is quoted below in pertinent part memorandum of 9 August 1946, as amended, from the Chief of Engineers to the Chief, Legal Division, OCE, relating to the establishment and functions of the Corps of Engineers Claims and Appeals Board:

1. There is hereby constituted in the Legal Division of this office, a board to be known as "The Corps of Engineers Claims and Appeals Board". The Board will consist of three members, one of whom will be chairman of the Board. The Chief of the Legal Division by virtue of his office will serve as chairman of the Board. There will also be a recorder. The chairman of the Board will recommend appointees for membership on the Board and for recorder. Appointments will be made by the Chief of Engineers. If the chairman of the Board at any time determines that additional members of the Board are necessary in order to process appeals with reasonable dispatch, he may from time to time recommend for appointment such additional members of the Board as he may deem necessary, and will make recommendations for the filling of any vacancies on the Board and in the office of the recorder. 2. The Board created by paragraph 1 of this memorandum is hereby designated as the duly authorized representative of the Chief of Engineers to hear, consider and decide as fully and finally as the Chief of Engineers

7103.33

might do, appeals to the Chief of Engineers under contracts which contain provisions authorizing the Chief of Engineers to designate a board as his duly authorized representative to determine appeals.

3. Except in the case under paragraph 2 above, the chairman of the Corps of Engineers Claims and appeals Board is hereby designated as the duly authorized representative of the Chief of Engineers to hear, consider and decide as fully and finally as the Chief of Engineers might do, appeals from the decisions of contracting officers under contracts requiring the decision of appeals by the Chief of Engineers or his duly authorized representative.

4. In appeals under paragraph 3, above, the Board hereby constituted shall nevertheless hear, consider and report its views on such appeals to the chairman of the Corps of Engineers Claims and Appeals Board as the authorized representative of the Chief of Engineers. If, however, such representative shall not be in accord with the views of the Board, he will promptly submit the case of final determination upon the record to the Chief of Engineers.

5. Should additional members be appointed to the Board, the chairman thereof, from time to time, may divide the Board into Divisions of two or more members and assign members to each Division. A majority of the members of the Board of a Division thereof shall constitute a quorum for the transaction of the business of the Board or of a Division, respectively. The decision of the majority of the members of the Board or of a Division shall be deemed to be the decision of the Board or of a Division, as the case may be; provided, however, that in any appeal heard and considered by a Division, the decision of the Division shall become the decision of the Board, unless within ten days after such decision, the chairman of the Board directs that the decision of the Division be reviewed by the Board. If a majority of the members of a Division is unable to agree upon a decision, the proceedings shall be referred to the Board for a decision. In any appeal before the Board in which the chairman of the Board has not participated, the decision of the Board shall be reviewed by the chairman of the Board. If a majority of the members of the Board is unable to agree upon a decision, or the chairman of the Board, upon his review of a decision made by the Board in a case where he has not participated, is unable to agree therewith, the chairman of the Board will promptly submit the appeal to the Chief of Engineers for his decision upon the record. A vacancy in the Board or in any Division thereof shall not impair the powers nor affect the duties of the Board or Division nor of the remaining members of the Board or Division, respectively. The authority and procedure provided for herein shall apply whether the Board shall be acting as a designated representative of the Chief of Engineers under paragraph 2 above, or in an advisory capacity under paragraph 4 hereof.

6. The Board shall have all powers necessary and incident to the proper performance of its duties, and with the approval of the Chief of Engineers, shall adopt its own methods of procedure and rules and regulations for its conduct and for the preparation and presentation of appeals.