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8703.104 Preparation, contents, orga. that doing so would impose an undue

nization, forwarding, and status of burden. At the time a party files with appeal file.

the Board a document as to which such (a) Duties of Contracting Officer. With- a waiver has been granted, it shall noin 30 days of receipt of an appeal, the tify the other party that the same or a contracting officer shall assemble and copy is available for inspection at the transmit to the Board an appeal file offices of the Board or of the party filconsisting of all documents pertinent ing same. to the appeal, including:

(e) Status of documents in the appeal (1) The contracting officer's decision file and supplements. Documents conand findings of fact from which appeal tained in the appeal file are considered is taken;

as part of the record, and may be of(2) The contract including specifica- fered into evidence at any time prior to tions and pertinent amendments, plans or during the hearing. and drawings;

(3) All correspondence between the $703.105 Dismissal for lack of jurisdicparties pertinent to the appeal, includ

tion. ing the letter or letters of claim in re Any motion addressed to the jurisdicsponse to which decision was issued; tion of the Board shall be promptly

(4) Transcripts of any testimony filed. Hearing on the motion shall be taken during the course of proceedings, afforded on application of either party, and affidavits or statements of any unless the Board determines that its witnesses on the matter in dispute decision on the motion will be deferred made prior to the filing of the notice of pending hearing on both the merits of appeal with the Board; and

the appeal, and the motion. The Board (5) Any additional information con shall have the right at any time and on sidered pertinent.

its own motion to raise the issue of its Within the same time above specified

jurisdiction to proceed with a particuthe contracting officer shall furnish

lar case, and shall do so by an approthe appellant a copy of each document

priate order, affording the parties an he transmits to the Board, except those opportunity to be heard thereon. stated in $703.104(a) (1), (2) and (3) (as

8703.106 Pleadings. to which a list furnished appellant of all such documents transmitted will

(a) Appellant. Within 30 days after resuffice), and those stated in paragraph ceipt of notice of docketing of the ap (d) of this section.

peal, the appellant shall file with the (b) Duties of the appellant. Within 30 Board an original and two copies of a days after receipt of a copy of the ap complaint setting forth simple, concise peal file assembled by the contracting and direct statements of each of appelofficer, the appellant shall supplement lant's claims, alleging the basis, with the same by transmitting to the Board appropriate reference to contract proany documents not contained therein visions, for each claim, and the dollar which he considers pertinent to the ap amount claimed. This pleading shall peal, and shall furnish one copy of any fulfill the generally recognized requiresuch document to the contracting offi ments of a complaint, although no parcer.

ticular form or formality is required. (c) Organization or appeal file. Docu- Should the complaint not be received ments in the appeal file may be origi within 30 days, appellant's claim and nals or legible facsimile or authenti- appeal may, if in the opinion of the cated copies thereof, and shall be ar- Board the issues before the Board are ranged in chronological order where sufficiently defined, be deemed to set practicable, numbered sequentially, forth his complaint and the respondent tabbed, and indexed to identify the shall be so notified. contents of the file.

(b) Respondent. Within 30 days from (d) Lengthy documents. The Board receipt of said complaint, or the aforemay waive the requirement of furnish- said notice from the Board, respondent ing to the other party copies of bulky, shall prepare and file an answer therelengthy, or out-of-size documents in to, setting forth simple, concise, and the appeal file when a party has shown direct statements of respondent's de

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.

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 received 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.

9705 8703.110 Prehearing or presubmission

conference. (a) Whether the case is to be submitted pursuant to 8 703.111 or heard pursuant to $8703.117 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.

$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.

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8703.111 Submission without a hear sible consistent with adequate presening.

tation of their factual and legal posiEither party may elect to waive a

tions, to waive pleadings, discovery, hearing and to submit his case upon

and briefs. the record before the Board, as settled

(b) Written decision by the Board in pursuant to $703.113. Submission of a

cases proceeding under this rule norcase without hearing does not relieve

mally will be short and contain sumthe parties from the necessity of prov

mary findings of fact and conclusions ing the facts supporting their allega

only. The Board will endeavor to tions or defenses. Affidavits, deposi

render such decisions within 30 days tions, admissions, answers to interrog

after the appeal is ready for decision. atories, and stipulations may be em

Such decisions will be rendered for the ployed to supplement other documen

Board by a single Administrative tary evidence in the Board record. The

Judge with the concurrence of the Board may permit or require such sub Chairman or other designated member. mission to be supplemented by oral ar (c) Except as herein modified, these gument (transcribed if requested), and

rules otherwise apply to accelerated

rules otherwise apply to acceler by briefs arranged in accordance with cases in all respects. $703.123.

8703.113 Settling the record. 8703.112 Optional accelerated proce (a) The record upon which the dure.

Board's decision will be rendered con(a) In appeals involving $25,000 or sists of the pleadings, prehearing conless, either party may elect, in its no ference memoranda or orders, preheartice of appeal, complaint, answer, or by ing briefs, depositions or interrogseparate correspondence or statement atories received in evidence, admisprior to commencement of hearing or sions, stipulations, oral and written settlement of the record, to have the testimony, transcripts of conferences appeal processed under a shortened and and hearings, hearing exhibits, postaccelerated procedure. For application hearing briefs, and documents which of this rule the amount in controversy the Board has specifically designated will be determined by the sum of the be made a part of the record. The amounts claimed by either party record will at all reasonable times be against the other in the appeal pro available for inspection by the parties ceeding. If no specific amount is at the office of the Board, or such other claimed, a case will be considered to place as the Board may designate. fall within this rule if the sum of the (b) Except as the Board may otheramounts which each party represents wise order in its discretion, no proof in writing that it could recover as a re- shall be received in evidence after comsult of a Board decision favorable to it pletion of an oral hearing or, in cases does not exceed $25,000. In addition, submitted on the record, after notificasuch optional accelerated procedure, at tion by the Board that the case is the discretion of the Board, may be em- ready for decision. ployed regardless of the amount in (c) The weight to be attached to any volved for other reasons, such as finan- evidence of record will rest within the cial hardship, status as small business, sound discretion of the Board. The location of appellant in an area of con- Board may in any case require any centrated unemployment or party, with appropriate notice to the underemployment or in an area of sub- other party, to submit additional evistantial or persistent labor surplus. An dence on any matter relevant to the accelerated case shall be processed appeal. under this rule unless the other party objects and shows good cause why the

8703.114 Discovery. substantive nature of the dispute re- (a) General policy and protective orders. quires processing under the Board's The parties are encouraged to engage regular procedures and the Board sus- in voluntary discovery procedures. In tains such objection. In accelerated connection with any deposition or cases proceeding under this rule, par- other discovery procedure, the Board ties are encouraged, to the extent pos- may make any order which justice re

quires to protect a party or person The factual propositions set out in the from annoyance, embarrassment, op request shall be deemed admitted upon pression, or undue burden or expense, the failure of a party to respond to the and those orders may include limita- request for admissions. tions on the scope, method, time and (e) Production and inspection of docuplace for discovery, and provisions for ments. Upon motion of any party showprotecting classified or privileged in ing good cause therefor, and upon noformation or documents.

tice, the Board may order the other (b) Depositions. After an appeal has party to produce and permit the inbeen docketed and complaint filed, the spection and copying or photographing parties may mutually agree to, or the of any designated documents or obBoard may, upon application of either jects, not privileged, specifically idenparty and for good cause shown, order tified, and their relevance and matethe taking of testimony of any person riality to the cause or causes in issue by deposition upon oral examination or explained, which are reasonably calwritten interrogatories before any offi culated to lead to the discovery of adcer authorized to administer oaths at missible evidence. If the parties cannot the place of examination, for use as themselves agree thereon, the Board evidence or for purpose of discovery. shall specify just terms and conditions The application for order shall specify in making the inspection and taking whether the purpose of the deposition the copies and photographs. is discovery or for use as evidence.

(f) Expenses. Each party shall bear its (1) Orders on Depositions. The time, own expenses associated with discovplace, and manner of taking deposi ery, unless for purposes of hardship or tions shall be as mutually agreed by other reasons in the sound discretion of the parties, or failing such agreement, the Board, the expenses should be apgoverned by order of the Board.

portioned otherwise. (2) Use as Evidence. No testimony taken by depositions shall be consid- 8703.116 Subpoenas. ered as part of the evidence in the On application by a party, the Chairhearing of an appeal unless and until man of the Board, or other Board memsuch testimony is offered and received ber, may, upon a showing of general in evidence at such hearing. It will not relevance, issue subpoenas requiring ordinarily be received in evidence if the attendance and testimony of witthe deponent is present and can testify nesses or the production of documents, personally at the hearing. In such in or other things. An application for substances, however, the deposition may poena shall identify the name, title, be used to contradict or impeach the and address of the person to whom the testimony of the witness given at the subpoena is to be directed, and the hearing. In cases submitted on the time and place where that person is to record, the Board may, in its discre appear to give testimony or to produce tion, receive depositions as evidence in specified documents or other things. supplementation of that record.

(c) Interrogatories to parties. After an 8703.116 Service of papers, and time appeal has been filed with the Board, a computation. party may serve on the other party (a) A copy of all pleadings, briefs, or written interrogatories to be answered other pa pers shall be served on the separately in writing, signed under other party or parties, and four copies oath and returned within 30 days. Upon simultaneously filed with the Board at timely objection by a party, the Board the Department of Energy, Washingwill determine the extent to which the ton, DC 20545. Service shall be made by interrogatories will be permitted.

delivery of a copy, or by mailing the (d) Admission of facts. After an appeal same, addressed to the party upon has been filled with the Board, a party whom service is to be made or his atmay serve upon the other party a re torney. quest for the admission of specified (b) For purposes of time, computafacts. Within 30 days after service, the tion, and extensions: party served shall answer each re- (1) All time limitations specified for quested fact or file objections thereto. various procedural actions are computed as maximums, and are not to be 8703.120 Nature of hearings. fully exhausted if the action described

(a) Hearings shall be as informal as can be accomplished in a lesser period.

the Board may consider to be reasonThese time limitations are similarly

able and appropriate under the cireligible for extension in appropriate

cumstances. Appellant and respondent circumstances, on good cause shown;

may offer at a hearing on the merits (2) Except as otherwise provided by such relevant evidence as each deems law, in computing any period of time appropriate and as would be admissible prescribed by these rules or by any under the Federal Rules of Evidence order of the Board, the day of the event (Pub. L. 93-595, 88 Stat. 1926, January 2, from which the designated period of 1975), subject, however, to the sound time begins to run shall not be in- discretion of the Board, or presiding cluded, but the last day of the period administrative judge in supervising the shall be included unless it is a Satur- extent and manner of presentation of day, Sunday, or a legal holiday, in such evidence. In general, admissibility which event the period shall run to the will hinge on relevancy and materialend of the next business day; and

ity. Letters or copies thereof, affida(3) Requests for extensions of time vits, or other evidence not ordinarily from either party shall be made in

admissible under the generally acceptwriting and state good cause therefor.

ed rules of evidence, may be admitted

in the discretion of the presiding memHEARINGS

ber.

(b) The weight to be attached to evi$ 703.117 Where and when held.

dence presented in any particular form Hearings will ordinarily be held in

will be within the discretion of the the Washington, DC area, except that

Board, taking into consideration all

the circumstances of the particular upon request reasonably made and

case. Stipulations of fact agreed upon upon good cause shown, the Board may

by the parties may be regarded and set the hearing at another location.

used as evidence at the hearing. The Hearings will be scheduled at the dis

parties may stipulate the testimony cretion of the Board with due consider

that would be given by a witness if the ation to the regular order of appeals

witness were present. The Board may and other pertinent factors. On request

in any case require evidence in addior motion by either party and upon

tion to that offered by the parties. good cause shown, the Board may, in its discretion, advance or extend a 8703.121 Examination of witnesses. hearing

Witnesses before the Board will be 8703.118 Notice of hearings.

examined orally under oath or affirma

tion, unless the facts are stipulated, or The parties shall be given at least 15 the Board shall otherwise order. If the days notice of the time and place set testimony of a witness is not given for hearings. In scheduling hearings, under oath, the Board shall invite the the Board will give due regard to the attention of the witness to the providesires of the parties and to the re- sions of title 18, U.S.C. 287 and 1001. quirement for just and inexpensive determination of appeals without unnec $703.122 Copies of papers. essary delay.

When books, records, papers, or docu

ments have been received in evidence, 8703.119 Unexcused absence of a

a true copy thereof or of such part party.

thereof as may be material or relevant The unexcused absence of a party at may be substituted therefor, during the the time and place set for hearing will hearing or at the conclusion thereof. not be occasion for delay. In the event of such absence, the hearing will pro

8703.123 Posthearing briefs. ceed and the case will be regarded as Posthearing briefs may be submitted submitted by the absent party as pro upon such terms as may be agreed upon vided in 9703.111.

by the parties and the presiding mem

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