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CHAPTER III—DEPARTMENT OF ENERGY
Contract appeals ...
management relations .........
for access to classified matter or special nuclear
tive uranium and thorium processing sites .........
missioning fund; procedures for special assess-
business enterprises seeking DOE contracts and
Department of Energy nuclear sites ........
power from the Boulder Canyon Project .........
Part 905 960
Energy Planning and Management Program ..........
for nuclear waste repositories
fuel and/or high-level radioactive waste
Subpart A-Rules of the Board of Contract
SECURITY 703.134 Security requirements.
Subpart B-Rules of the Contract Adjustment Board (Reserved)
PREFACE TO THE RULES 703.11 Jurisdiction for considering appeals. 703.12 Organization and location of board. 703.13 Decisions on questions of law. 703.14 Contract appeals procedure.
APPENDIX A-ORGANIZATION AND FUNCTIONS,
DOE MANUAL, CHAPTER 0114, OFFICE OF
THE BOARD OF CONTRACT APPEALS AUTHORITY: Sec. 105, Pub. L. 93-438, 88 Stat. 1238, 42 U.S.C. 5815; sec. 161, Pub. L. 83-703, 68 Stat. 948, 42 U.S.C. 2201; sec. 3, Pub. L. 85804, 72 Stat. 972, 50 U.S.C. 1433.
SOURCE: 41 FR 12215, Mar. 24, 1976, unless otherwise noted.
PRELIMINARY PROCEDURES 703.101 Appeals, how taken. 703.102 Notice of appeal, contents of. 703.103 Forwarding of appeals. 703.104 Preparation, contents, organization,
forwarding, and status of appeal file. 703.105 Dismissal for lack of jurisdiction. 703.106 Pleading8. 703.107 Amendments of pleadings or record. 703.108 Hearing election. 703.109 Prehearing briefs. 703.110 Prehearing or presubmission con
ference. 703.111 Submission without a hearing. 703.112 Optional accelerated procedure. 703.113 Settling the record. 703.114 Discovery. 703.115 Subpoenas. 703.116 Service of papers, and time computation.
HEARINGS 703.117 Where and when held. 703.118 Notice of hearings. 703.119 Unexcused absence of a party. 703.120 Nature of hearings. 703.121 Examination of witnesses. 703.122 Copies of papers. 703.123 Posthearing briefs. 703.124 Transcript of proceedings. 703.125 Withdrawal of exhibits.
Subpart A-Rules of the Board of
Contract Appeals 8703.1 Scope and purpose.
(a) The establishment of the Department of Energy (DOE) and the transfer to it of functions previously assigned to other agencies, including those discharged by the Board of Contract Appeals of the Atomic Energy Commission, led to a newly reorganized Board of Contract Appeals in DOE. All decisions rendered by this Board become the final decisions of the Agency.
(b) The reorganization of the Board, its scope of functions and authorities, including the authority to establish and issue rules of procedure not inconsistent with its charter and the change in organization from one composed of two full-time, permanent members augmented by a panel of part-time "consultant" members, to its present composition of three full-time, permanent, lawyer members, is more fully set forth in DOE Manual Chapter 0114; published for convenience as appendix A to this part.
(c) Several factors were taken into consideration in reorganizing the Board, primary of which was the desire to establish an organization more like that of other agency boards, and to establish procedures that would conform to a more common practice before boards of contract appeals. This was in keeping with the recommendation of the Commission on Government Procurement and the Office of Federal Procurement Policy, and with the need
REPRESENTATION 703.126 The appellant. 703.127 The respondent.
DECISIONS 703.128 Written decisions.
MOTION FOR RECONSIDERATION 703.129 Motion for reconsideration.
DISMISSALS 703.130 Dismissal without prejudice. 703.131 Dismissal for failure to prosecute.
EX PARTE COMMUNICATIONS 703.132 Ex parte conduct.
of DOE for prompt, fair, and inexpen- the entire Board in every case, includsive resolution of contract disputes as ing those processed under accelerated part of an effective agency-contractor procedure, complements this practice. relationship.
(g) Some provisions have no cor(d) Consistent with this policy, the responding basis in the uniform rules. Uniform Rules of Practice of Boards of For example, the revised rules include Contract Appeals, as proposed by the provisions for the use of subpoenas, and National Conference of Boards of Con- for security requirements, as provided tract Appeals Members, have been by the enabling authorization; the adopted herein in major part. However,
Board is authorized to decide applicasome provisions differ from the uni- tions for extraordinary relief involving form rules, particularly in those areas
contractual fairness sitting as the Conin which earlier Agency practice had tract Adjustment Board. However, as proven successful in expediting the ap to the later provisions, it should be peal process. For example, the new noted that each case brought before rules call for the filing of a notice of the Contract. Adiustment Board is appeal directly with the contracting of- judged solely on its merits under the ficer, and that officer is then required criteria of Public Law 85-804 and Execto ascertain identification shown by
utive Order 10789, as amended, and deexperience to be effective in expediting cisions made pursuant thereto may not the appeal process. Another rule with a
be cited as precedent in other matters similar purpose permits direct appeal
brought before the Board. by a subcontractor in disputes arising
(h) Throughout the revised rules emunder a subcontract entered into by a
phasis is placed on flexibility and the cost-type prime contractor in which a
exercise of broad discretion as primary dispute provision has been included.
means of effecting the resolution of apThe earlier practice of providing for di
peals in an orderly, impartial and experect service of pleadings and papers be
ditious manner. Emphasis is likewise tween parties, simultaneously with
placed upon the sound administration their filing before the Board, similarly
of these rules in as informal a manner expedites the appeal and is adopted.
as possible, consistent with the need to (e) The new rules also require that
provide due process and to develop an items in the appeal file be offered into
adequate record for Board action and evidence rather than the entire appeal
judicial review. file automatically becoming part of the evidence, subject to objection, at the
PREFACE TO THE RULES time the appeal file is transmitted. This practice encourages the submis- 8703.11 Jurisdiction for considering sion of relevant documentation only. appeals. The provisions in the uniform rules re
The Department of Energy Board of lating to depositions and discovery are
Contract Appeals (Board) is the authorconsolidated and amended to clarify
ized representative of the Administhe use of depositions as one form of
trator to consider and determine apdiscovery, and to provide for apportion
peals from decisions of contracting ofment of expenses within the discretion
ficers arising under contracts which of the Board in cases of hardship asso
contain provisions for resolving such ciated with discovery.
disputes. The Board is also designated (1) The use of the optional acceler
and authorized to function as the Conated procedure is expanded beyond that
tract Adjustment Board in applications contemplated in the uniform rules to
for extraordinary relief pursuant to recognize equitable considerations as
Public Law 85–804. well as a monetary ceiling for purposes of greater flexibility as reflected in
8703.12 Organization and location of earlier Agency practice. Thus, acceler
Board. ated procedure is made available, in the sound discretion of the Board, in
(a) The Board is located in Washingcertain cases additional to those meet
ton, DC and its mailing address is: ing a monetary limitation. The provi- The Board of Contract Appeals, U.S. Departsion for final decision to be rendered by ment of Energy, Washington, DC 20645.
(b) The Board consists of a chairman and two other members all of whom shall be attorneys at law duly licensed by any State or the District of Columbia. The decision of a majority of the Board constitutes the decision of the Board. Board members are designated as Administrative Judges and the chairman is designated as Chief Administrative Judge.
$ 703.13 Decisions on questions of law.
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. $703.14 Contract appeals procedure.
(a) Rules. Appeals referred to the Board are handled in accordance with the rules of the Board.
(b) Administration and interpretation of rules. 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 a just and inexpensive determination of appeals without unnecessary delay.
(c) Preliminary procedures. Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise.
8703.102 Notice of appeal, contents of.
(a) The notice of appeal shall identify the contract by number, and shall specify the portion of the decision from which the appeal is taken, and the reasons why the decision of the contracting officer is deemed erroneous. It shall include a request for application of the accelerated procedure, if such is desired under $703.112. All papers filed after the notice of appeal should be sent directly to the Board, with concurrent service upon the other party or parties.
(b) The notice of appeal should be signed personally by the appellant (the contractor taking the appeal, or a subcontractor under a cost-type prime contract which contains a dispute provision), 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 $703.106 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of 8703.106 for a complaint.
8703.103 Forwarding of appeals.
When a notice of appeal has been received by the contracting officer, he shall, within 10 days, endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and shall forward said notice of appeal to the Board. In so notifying the Board, the contracting officer shall include the following information: Date of receipt by the appellant of the contracting officer's decision; date of receipt by the contracting officer of the appellant's notice of appeal; amount of the claim; whether appellant is a small business; whether accelerated procedure has been requested, and if so, the names, addresses, and telephone numbers if known, of any attorney or attorneys representing the appellant, the contracting officer and any other parties to the appeal. Following receipt by the Board of the original notice of an appeal, the same will be docketed and the appellant and contracting officer so advised.
$703.101 Appeals, how taken.
An appeal from a decision of a contracting officer shall be taken 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 or applicable provision of directive or law.