§703.104 Preparation, contents, organization, forwarding, and status of appeal file.

(a) Duties of Contracting Officer. Within 30 days of receipt of an appeal, the contracting officer shall assemble and transmit to the Board an appeal file consisting of all documents pertinent to the appeal, including:

(1) The contracting officer's 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; and

(5) Any additional information considered pertinent.

Within the same time above specified the contracting officer shall furnish the appellant a copy of each document he transmits to the Board, except those stated in §703.104(a) (1), (2) and (3) (as to which a list furnished appellant of all such documents transmitted will suffice), and those stated in paragraph (d) of this section.

(b) Duties of the appellant. Within 30 days after receipt of a copy of the appeal file assembled by the contracting officer, the appellant shall supplement the same by transmitting to the Board any documents not contained therein which he considers pertinent to the appeal, and shall furnish one copy of any such document to the contracting officer.

(c) Organization or appeal file. Documents in the appeal file may be originals or legible facsimile or authenticated copies thereof, and shall be arranged in chronological order where practicable, numbered sequentially,

tabbed, and indexed to identify the contents of the file.

(d) Lengthy documents. The Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when a party has shown

that doing so would impose an undue burden. At the time a party files with the Board a document as to which such a waiver has been granted, it shall notify the other party that the same or a copy is available for inspection at the offices of the Board or of the party filing same.

(e) Status of documents in the appeal file and supplements. Documents contained in the appeal file are considered as part of the record, and may be offered into evidence at any time prior to or during the hearing.

§ 703.105 Dismissal for lack of jurisdiction.

Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing on the motion shall be afforded on application of either party, unless the Board determines that its decision on the motion will be deferred pending hearing on both the merits of the appeal, and the motion. The Board shall have the right at any time and on its own motion to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon.

§ 703.106 Pleadings.

(a) Appellant. Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise and direct statements of each of appellant's claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form or formality is required. Should the complaint not be received within 30 days, appellant's claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth his complaint and the respondent shall be so notified.

(b) Respondent. Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, respondent shall prepare and file an answer thereto, setting forth simple, concise, and direct statements of respondent's de

fenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses or counter-claims as appropriate. Should the answer not be reIceived within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified.

§703.107 Amendments of pleadings or record.

(a) The Board upon its own initiative or upon application by a party may, in its discretion, order a party to make a more definite statement of the complaint or answer, or to reply to an answer.

(b) The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend its pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings are tried by express or implied consent of the parties, or by permission of the Board, they shall be treated in all respects as if they had been raised therein. In such instances, motions to amend the pleadings to conform to the proof may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, it may be admitted within the proper scope of the appeal, provided, however, that the objecting party may be granted a continuance if necessary to enable that party to meet such evidence.

703.108 Hearing election.

Upon receipt of respondent's answer or the notice referred to in the last sentence of §703.106(b), appellant shall advise whether a hearing is desired as prescribed in §§ 703.117 through 703.125, or whether, in the alternative, the case will be submitted on the record without a hearing, as prescribed in §703.111. In appropriate cases, the appellant may also elect the optional accelerated procedure prescribed in § 703.112.

703.109 Prehearing briefs. Based on an examination of the pleadings, and determination of whether the arguments and authorities

a

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 §703.108. 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.

§ 703.110 Prehearing or presubmission

conference.

(a) Whether the case is to be submitted pursuant to §703.111 or heard pursuant to §§ 703.117 through 703.126, the Board may upon its own initiative or upon the application of either party, call upon the parties to appear before the Board or an Administrative Judge thereof for a conference to consider:

(1) The simplification or clarification of the issues;

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

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

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

(5) The scope of testimony, including a possible request by the Board for the introduction of any fact or expert testimony desired; and

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

(b) A transcript of the conference shall be made and a copy shall be available for public inspection. Following the conference, the Board may enter an order setting forth the results of the conference which shall thereafter constitute a part of the record.

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§ 703.111 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 §703.113. 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 or require such submission to be supplemented by oral argument (transcribed if requested), and by briefs arranged in accordance with § 703.123.

§ 703.112 Optional accelerated procedure.

(a) In appeals involving $25,000 or less, either party may elect, in its 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 is claimed, 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. In addition, such optional accelerated procedure, at the discretion of the Board, may be employed regardless of the amount involved for other reasons, such as financial hardship, status as small business, location of appellant in an area of concentrated unemployment

or

underemployment or in an area of substantial or persistent labor surplus. An accelerated case shall 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 sustains such objection. In accelerated cases proceeding under this rule, parties are encouraged, to the extent pos

sible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.

(b) 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 Administrative Judge with the concurrence of the Chairman or other designated member.

(c) Except as herein modified, these rules otherwise apply to accelerated cases in all respects.

§703.113 Settling the record.

(a) The record upon which the Board's decision will be rendered consists of the pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, oral and written testimony, transcripts of conferences and hearings, hearing exhibits, posthearing briefs, and documents which the Board has specifically designated 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, or such other place as the Board may designate.

(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 any party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.

§ 703.114 Discovery.

(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 re

quires 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 classified or privileged information or documents.

(b) Depositions. 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.

(1) 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.

(2) Use as Evidence. No testimony taken by depositions 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.

(c) Interrogatories to parties. After an appeal has been filed with the Board, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath and returned within 30 days. Upon timely objection by a party, the Board will determine the extent to which the interrogatories will be permitted.

(d) Admission of facts. After an appeal has been filed with the Board, a party may serve upon the other party a request for the admission of specified facts. Within 30 days after service, the party served shall answer each requested fact or file objections thereto.

The factual propositions set out in the request shall be deemed admitted upon the failure of a party to respond to the request for admissions.

(e) Production and inspection of documents. Upon motion of any party showing good cause therefor, and upon notice, the Board may order the other party to produce and permit the inspection and copying or photographing of any designated documents or objects, not privileged, specifically identified, and their relevance and materiality to the cause or causes in issue explained, which are reasonably calculated to lead to the discovery of admissible evidence. If the parties cannot themselves agree thereon, the Board shall specify just terms and conditions in making the inspection and taking the copies and photographs.

(f) Expenses. Each party shall bear its own expenses associated with discovery, unless for purposes of hardship or other reasons in the sound discretion of the Board, the expenses should be apportioned otherwise.

§ 703.115 Subpoenas.

On application by a party, the Chairman of the Board, or other Board member, may, upon a showing of general relevance, issue subpoenas requiring the attendance and testimony of witnesses or the production of documents, or other things. An application for subpoena shall identify the name, title, and address of the person to whom the subpoena is to be directed, and the time and place where that person is to appear to give testimony or to produce specified documents or other things.

§ 703.116 Service of papers, and time computation.

(a) A copy of all pleadings, briefs, or other papers shall be served on the other party or parties, and four copies simultaneously filed with the Board at the Department of Energy, Washington, DC 20545. Service shall be made by delivery of a copy, or by mailing the same, addressed to the party upon whom service is to be made or his attorney.

(b) For purposes of time, computation, and extensions:

(1) All time limitations specified for various procedural actions are com

puted 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;

(2) Except as otherwise provided by law, in computing any period of time prescribed by these rules or by any order of the Board, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day; and

(3) Requests for extensions of time from either party shall be made in writing and state good cause therefor.

HEARINGS

§ 703.117 Where and when held.

Hearings will ordinarily be held in the Washington, DC area, except that upon request reasonably made and upon good cause shown, the Board may 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 or extend a hearing.

§ 703.118 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.

§ 703.119 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 § 703.111.

§ 703.120 Nature of hearings.

(a) Hearings shall be as informal as the Board may consider to be reasonable and appropriate under the circumstances. Appellant and respondent may offer at a hearing on the merits such relevant evidence as each deems appropriate and as would be admissible under the Federal Rules of Evidence (Pub. L. 93-595, 88 Stat. 1926, January 2, 1975), subject, however, to the sound discretion of the Board, or presiding administrative judge 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 presiding member.

(b) 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.

§ 703.121 Examination of witnesses.

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 title 18, U.S.C. 287 and 1001.

§ 703.122 Copies of papers.

When books, records, papers, or documents have been received in evidence, a true copy thereof or of such part thereof as may be material or relevant may be substituted therefor, during the hearing or at the conclusion thereof.

§ 703.123 Posthearing briefs.

Posthearing briefs may be submitted upon such terms as may be agreed upon by the parties and the presiding mem