Sec.

6-60.3 Department support. 6-60.4 Rules.

AUTHORITY: The provisions of this Part 6-60 issued under sec. 205 (c), 63 Stat. 390, as amended, 40 U.S.C. 486 (c); sec. 4, 63 Stat. 111, 22 U.S.C. 2658.

§ 6-60.0 Scope of part.

This part relates to disputes arising under Department of State contracts (which shall for the purpose of this part include grants) and to the transfer of certain appellate and review functions of the Department of State to the Armed Services Board of Contract Appeals (referred to in this part as the Board) and the delegation of authority to the Board to hear and decide appeals of contractors from final decisions of contracting officers arising under disputes provisions of contracts awarded by the Department of State.

[39 FR 8158, Mar. 4, 1974]

The Armed Services Board of Contract Appeals is designated the authorized representative of the Secretary of State and the Assistant Secretary for Administration to hear and determine appeals by contractors from final decisions of Contracting Officers on disputed questions arising under Department of State contracts pursuant to provisions of contracts requiring the determination of such appeals by either official or their duly authorized representative.

[32 FR 15751, Nov. 16, 1967, as amended at 35 FR 1238, Jan. 30, 1970]

§ 6-60.2 Applicability.

This designation shall apply to appeals, notice of which is received, upon publication in the FEDERAL REGISTER Of this revision. Except as otherwise directed by the Board, these rules shall not apply to appeals which have been docketed prior to their effective date.

[39 FR 8158, Mar. 4, 1974]

§ 6-60.3 Department support.

The Supply and Transportation Division shall ensure support by officers and employees of the Department of State in processing appeals, and ascertaining information to the extent required for that purpose, before the Board and is hereby authorized to require such officers and employees to cooperate for this purpose.

[39 FR 8158, Mar. 4, 1974]

§ 6-60.4 Rules.

(a) In acting under this designation, the Board will follow the rules in 32 CFR 30.1 (Appendix A) part 2, which are hereby adopted and set forth in paragraph (b) of this section, except as amended. Rule 33 is superseded by the date of effectiveness of this part upon publication. Part 1 of Appendix A, containing the Charter of the Board, is not included in this paragraph. References to military departments and Secretaries thereof are amended to refer to the Department of State and either the Secretary of State or the Assistant Secretary of State for Administration, or their duly authorized representative or Board, as appropriate. Amendments, applicable

only to appeals arising from Department of State contracts, concerning other provisions of the Rules are identified by the caption (STATE).

(b) Part 2-Rules:

PREFACE TO RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS

I. SUMMARY OF PERTINENT CHARTER PROVISIONS

The Armed Services Board of Contract Appeals is the authorized representative of the Secretary of State and the Assistant Secretary of State for Administration, in hearing, considering, and determining as fully and finally as might either official:

(a) Appeals by contractors from decisions of contracting officers or their authorized representatives or other authorities on disputed questions, taken pursuant to the provision of contracts requiring the determination of such appeals by the Secretary of State or the Assistant Secretary for Administration or their duly authorized representative or board; or

(b) Appeals by contractors taken pursuant to the provisions of any directive whereby the Secretary of State or the Assistant Secretary for Administration has granted a right of appeal not contained in the contract.

When an appeal is taken pursuant to a Disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board may in its discretion hear, consider, and decide all questions of law necessary for the complete adjudication of the issue. In the consideration of an appeal, should it appear that a claim is involved which is not cognizable under the terms of the contract, the Board may make findings of fact with respect to such a claim without expressing an opinion on the question of liability.

When a contract requires the Secretary of State or the Assistant Secretary for Admin

istration, personally to render a decision on the matter in dispute, the Armed Services Board of Contract Appeals makes and submits findings and recommendation to the appropriate official with respect thereto.

There are a number of divisions of the Armed Services Board of Contract Appeals, established by the Chairman of the Board in such manner as to provide for the most effective and expeditions handling of appeals. The Chairman and a Vice Chairman of the Board act as members of each division. Appeals are assigned to the divisions for decision without regard to the military department or other procuring agency which entered into the contract involved. Hearing may be held by a designated member (administrative judge), or by a duly authorized examiner. The decision of a majority of a division constitutes the decision of the Board, unless the Chairman refers the appeal to the Board's Senior Deciding Group (consisting of the Chairman, Vice Chairman and all division heads), in which event a decision of a majority of that group constitutes the decision of the Board. Appeals referred to the Senior Deciding Group are those of unusual difficulty, significant precedential importance, or serious dispute within the normal division decision process.

On request of the parties, an appeal involving $25,000 or less may be decided by a single member and a Vice Chairman or the Chairman under a simplified, accelerated procedure, in accordance with Rule 12. This procedure contemplates a short decision made in not over 30 days from the time the appeal is ready for decision. Further, in appeals involving $5,000 or less, a single member may decide the appeal orally from the bench at the conclusion of a hearing.

II. STATEMENT OF PURPOSE

Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure just and inexpensive determination of appeals without unnecessary delay.

Preliminary procedures are available to encourage full disclosure of relevant and material facts and to discourage unwarranted surprise.

All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. These time limitations are similarly eligible for extension in appropriate circumstances, on good cause shown.

Whenever reference is made to contractor, appellant, contracting officer, respondent and parties, this shall include respective counsel for the parties, as soon as appropriate Notices of Appearance have been filled with the Board.

PRELIMINARY PROCEDURES

1. Appeals, how taken. Notice of an appeal must be in writing, and the original, together with two copies, may be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filled within the time specified therefor in the contract or allowed by applicable provision of directive or law. 2. Notice of appeal, contents of. A notice of appeal should indicate that an appeal is thereby intended and should identify the contract (by number), the department and agency or bureau cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant (the contractor making the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in Rule 6 may be filled with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

3. Forwarding of appeals (STATE). When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the Board, with copies to the Supply and Transportation Division and the Legal Adviser of the Department of State. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor, the contracting officer, the Supply and Transportation Division and the Legal Adviser of the Department of State will promptly be advised of its receipt, and the contractor will be furnished a copy of these rules.

4. Preparation, Contents, Organization, Forwarding, and Status of Appeal File (STATE). (a) Duties of contracting officer. Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly, and in any event within 30 days, compile and transmit to the Supply and Transportation Division copies of all documents pertinent to the appeal, including:

(1) The decision and findings of fact from which appeal is taken;

(2) The contract, including specifications and pertinent amendments, plans and drawings;

(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which decision was issued;

(4) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board;

(5) Any additional information considered pertinent.

8. Upon receipt of respondent's answer or the notice referred to in the last sentence of Rule 6(b), above, appellant shall advise whether he desires a hearing, as prescribed in Rules 17 through 25, or whether in the alternative he elects to submit his case on the record without a hearing, as prescribed in Rule 11. In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in Rule 12.

9. Prehearing briefs. Based on an examination of the documentation described in Rule 4, the pleadings, and a determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may in its discretion require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to Rule 8. In the absence of a Board requirement therefor, either party may in its discretion, and upon appropriate and sufficient 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 simultaneously be furnished to the other party as previously arranged.

10. Prehearing or presubmission conference. Whether the case is to be submitted pursuant to Rule 11, or heard pursuant to Rules 17 through 25, the Board may upon its own initiative or upon the application of either party, call upon the parties to appear before a member or examiner of the Board for a conference to consider:

(a) The simplification or clarification of the issues:

(b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;

(c) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;

(d) The possibility of agreement disposing of all or any of the issues in dispute;

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

The results of the conference shall be reduced to writing by the Board member or examiner in the presence of the parties, and this writing shall thereafter constitute part of the record.

11. Submission without a hearing. Either party may elect to waive a hearing and to submit his case upon the record before the Board, as settled pursuant to Rule 13. Submission of a case without hearing does not relieve the parties from the necessity of proving the facts supporting their allegations 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/or by briefs, arranged in accordance with Rule 23.

12. Optional accelerated procedure. In appeals involving $25,000 or less, either party may elect, in his notice of appeal, complaint, answer or by separate correspondence or statement prior to commencement of hearing or settlement of the record, to have the appeal processed under a shortened and accelerated procedure. For application of this rule the amount in controversy will be determined by the sum of the amounts claimed by either party against the other in the appeal proceeding. If no specific amount of claim is stated, a case will be considered to fall within this rule if the sum of the amounts which each party represents in writing that it could recover as a result of a Board decision favorable to it does not exceed $25,000. Upon such election, a case shall then be processed under this rule unless the other party objects and shows good cause why the substantive nature of the dispute requires processing under the Board's regular procedures and the Board, acting through a Vice Chairman or the Chairman, sustains such objection. In cases proceeding under this rule, parties are encouraged, to the extent possible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.

Written decision by the Board in cases proceeding under this rule normally will be short and contain summary findings of fact and conclusions only. The Board will endeavor to render such decisions within 30 days after the appeal is ready for decision. Such decisions will be rendered for the Board by a single Board member with the concurrence of a Vice Chairman or the Chairman; except that in cases involving $5,000 or less where there has been a hearing, the single Board member presiding at the hearing may, in his discretion, at the conclusion of the hearing and after entertaining such oral arguments as he deems appropriate, render on the record oral summary findings of fact, conclusions and decision of the appeal. In the latter instance, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the date from which the period for filing a motion for reconsideration under Rule 29 commences.

Except as herein modified, these rules otherwise apply to all respects.

13. Settling the record. (a) The record upon which the Board's decision will be rendered consists of the appeal file described in Rule 4, and, to the extent the following items have been filed, pleadings, pre-hearing conference memoranda or orders, pre-hearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, post-hearing briefs, and documents which the Board has specifically designated

to be made a part of the record. The record will at all reasonable times be available for inspection by the parties at the office of the Board.

(b) Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.

(c) The weight to be attached to any evidence of record will rest within the sound discretion of the Board. The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.

14. 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, or undue burden or expense, and those orders may include limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

(b) When depositions permitted. After an appeal has been docketed and complaint filed, the parties may mutually agree to, or the Board may, upon application of either party and for good cause shown, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purpose of discovery. The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.

(c) Orders on depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or, failing such agreement, governed by order of the Board.

(d) Use as evidence. No testimony taken by deposition shall be considered as part of the evidence in the hearing of an appeal unless and until such testimony is offered and received in evidence at such hearing. It will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. In such instances, however, the deposition may be used to contradict or impeach the testimony of the witness given at the hearing. In cases submitted on the record, the Board may in its discretion receive depositions as evidence in supplementation of that record.

(e) Expenses. Each party shall bear its own expenses associated with the taking of any deposition.

15. Interrogatories to parties; inspection of documents; admission of facts. Under appropriate circumstances, but not as a matter of course, the Board will entertain applica

tions for permission to serve written interrogatories upon the opposing party, applications for an order to produce and permit the inspection of designated documents, and applications for permission to serve upon the opposing party a request for the admission of specified facts. Such applications shall be reviewed and approved only to the extent and upon such terms as the Board in its discretion considers to be consistent with the objective of securing just and inexpensive determination of appeals without unnecessary delay, and essential to the proper pursuit of that objective in the particular case.

16. Service of papers. Service of papers in all proceedings pending before the Board may be made personally, or by mailing the same in a sealed envelope registered, or certifiled, postage prepaid, addressed to the party upon whom service shall be made and the date of delivery as shown by return receipt shall be the date of service. Waiver of the service of any papers may be noted thereon or on a copy thereof or on a separate paper, signed by the parties and filed with the Board.

17. Where and when held. Hearings will ordinarily be held in Washington, D.C., except that upon request seasonably made and upon good cause shown, the Board may in its discretion set the hearing at another location. Hearings will be scheduled at the discretion of the Board with due consideration to the regular order of appeals and other pertinent factors. On request or motion by either party and upon good cause shown, the Board may in its discretion advance a hearing.

18. Notice of hearings. The parties shall be given at least 15 days notice of the time and place set for hearings. In scheduling hearings, the Board will give due regard to the desires of the parties, and to the requirement for just and inexpensive determination of appeals without unnecessary delay. Notices of hearing shall be promptly acknowledged by the parties. A party failing to acknowledge a notice of hearing shall be deemed to have submitted his case upon the Board record as provided in Rule 11.

19. Unexcused absence of a party. The unexcused absence of a party at the time and place set for hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the case will be regarded as submitted by the absent party as provided in Rule 11.

20. Nature of hearings. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. Appellant and respondent may offer at a hearing on the merits 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 nonjury trials, subject, however, to the sound discretion of the presiding member or examiner in supervising the extent and manner of presentation of such evidence. In general, admissibility will hinge on relevancy and materiality. Letters or copies thereof, amda