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 or the documentation in paragraph (d) of this section (Rule 4) (which shall be deemed part of the pleadings for this purpose), 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 him to meet such evidence.

(h) Rule 8; hearing-election. Upon receipt of respondent's answer or the notice referred to in the last sentence of paragraph (f) (2) of this section (Rule 6), appellant shall advise the Board whether he desires a hearing, as prescribed in paragraphs (q) through (y) of this section (Rules 17 through 25), or whether in the alternative he elects to submit his case on the record without a hearing, as prescribed in paragraph (k) of this section (Rule 11). In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in paragraph (1) of this section (Rule 12).

(i) Rule 9; prehearing briefs. Based on an examination of the documentation described in paragraph (d) of this section (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 paragraph (h) of this section (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 simutaneously be furnished to the other party as previously arranged.

(j) Rule 10; perhearing or presubmission conference. (1) Whether the case is to be submitted pursuant to paragraph (k) of this section (Rule 11), or heard pursuant to paragraphs (q) through (y) of this section (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 of the Board for a conference to consider:

(i) The simplification or clarification of the issues;

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

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

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

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

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

(k) Rule 11; submission without a hearing. Either party may elect to waive a hearing and to submit his case upon the Board record, as settled pursuant to paragraph (m) of this section (Rule 13). In the event of such election to submit, the submission may be supplemented by oral argument (transcribed if requested), and/or by briefs, arranged in accordance with paragraphs (r) and (w) of this section (Rules 18 and 23).

(1) Rule 12: optional accelerated procedure. Should an appeal involve $10,000 in amount or less, it may at the option of appellant be processed under this paragraph. In the event of such election, the Board will undertake to issue a decision on the appeal on an expedited basis, without regard to its normal position on the docket. Under this accelerated procedure, the case will be further expedited if the parties elect to waive pleadings and/or elect to waive the hearing and submit on the record. In all other respects, the rules in this section will apply.

(m) Rule 13; settling of the record. (1) A case submitted on the record pursuant to paragraph (k) of this section (Rule 11) shall be ready for decision when the parties are so notified by the Board. A case which is heard shall be ready for decision upon receipt of transcript, or upon receipt of briefs when briefs are to be submitted. At any time prior to the date that a case is ready for decision, either party, upon notice to the other, may supplement the record with

documents and exhibits deemed relevant and material by the Board. The Board upon its own initiative may call upon either party, with appropriate notice to the other, for evidence deemed by it to be relevant and material. The weight to be attached to any evidence of record will rest within the sound discretion of the Board. Either party may at any stage of the proceeding, on notice to the other party, raise objection to material in the record or offered into the record, on the grounds of relevancy and materiality.

(2) The Board record shall consist of documentation described in paragraph (d) of this section (Rule 4), and any additional material, pleadings, prehearing briefs, record of prehearing or presubmission conferences, depositions, interrogatories, admissions, transcripts of hearing, hearing exhibits, and posthearing briefs, as may thereafter be developed pursuant to the rules in this section.

(3) This record will at all times be available for inspection by the parties at the office of the Board. In the interest of convenience, prior arrangements for inspection of the file should be made with the Board. Copies of material in the record may, if practicable, be furnished to appellant at the cost of reproduction.

(n) Rule 14; depositions--(1) When permitted. After an appeal has been docketed, the Board may, 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.

(2) Orders on depositions. The time, place, and manner of taking depositions shall be governed by order of the Board. (3) 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 instance, however, the deposition may be used to contradict or impeach the testimony of the witness given at the hearing. In cases otherwise heard on the record, the Board may, on motion of either party and in its dis

cretion, receive depositions as evidence in supplementation of that record.

(4) Expenses. All expenses of taking the deposition of any person shall be borne by the party taking that deposition, except that the other party shall be entitled to coples of the transcript of the deposition only upon paying therefor.

(0) Rule 15; interrogatories to parties; inspection of documents; admission of facts. For good cause shown, the Board may permit a party to serve written interrogatories upon the opposing party, order a party to produce and permit inspection and copying or photographing of designated documents relevant to the appeal, or permit the serving on the opposing party of a request for admission of facts. Such permission will be granted and orders entered as are consistent with the objective of securing just and inexpensive determination of appeals without unnecessary delay.

(p) Rule 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 certified, 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.

(q) Rule 17; hearings, 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.

(r) Rule 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 paragraph (k) of this section (Rule 11).

(s) Rule 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 paragraph (k) of this section (Rule 11).

(t) Rule 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 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. 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.

(u) Rule 21; examination of witnesses. Witnesses before the Board will be examined orally under oath or affirmation, unless the facts are stipulated, or the Board member shall otherwise order. If the testimony of a witness is not given under oath the Board may, if it seems expedient, warn the witness that his statements may be subject to the provisions of Title 18, United States Code. sections 287 and 1001, and any other provisions of law imposing penalties for knowingly making false representations in 'connection with claims against the United States or in any matter within the jurisdiction of any department or agency thereof.

(v) Rule 22; 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.

(w) Rule 23; posthearing briefs. Posthearing briefs may be submitted upon such terms as may be agreed upon by the parties and the presiding member at the conclusion of the hearing. Ordinarily they will be simultaneous briefs, exchanged within 20 days after receipt of transcript.

(x) Rule 24; transcript of proceedings. Testimony and argument at hearings shall be reported verbatim unless the Board otherwise orders. Transcripts of the proceedings shall be supplied to the parties at such rates as may be fixed by contract between the Board and the reporter. If the proceedings are reported by an employee of the Government, the appellant may receive transcripts upon payment to the Government at the same rates as those set by contract between the Board and the independent reporter.

(y) Rule 25; withdrawal of exhibits. After a decision has become final the Board may, upon request and after notice to the other party, in its discretion permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.

(z) Rule 26; the appellant. An individual appellant may appear before the Board in person, a corporation by an officer thereof, a partnership or joint venture by a member thereof, or any of these by an attorney at law duly licensed in any State, Commonwealth, Territory, or in the District of Columbia.

(aa) Rule 27; the respondent. Government counsel may in accordance with their authority represent the interests of the Government before the Board. They shall file notices of appearance with the Board, and notice thereof will be given appellant or his attorney in the form specified by the Board from time to time. Whenever at any time it appears that appellant and Government counsel are in agreement as to disposition of the controversy, the Board may suspend further processing of the appeal in order to permit reconsideration by the contracting officer: Provided, however, That if the Board is advised thereafter by either

party that the controversy has not been disposed of by agreement, the case shall be restored to the Board's calendar without loss of position.

(bb) Rule 28; decisions. Decisions of the Board will be made in writing and authenticated copies thereof will be forwarded simultaneously to both parties. The rules of the Board and all final orders and decisions (except those required for good cause to be held confidential and not cited as precedents) shall be open for public inspection at the offices of the Board in Washington, D.C. Decisions of the Board will be made upon the record, as described in paragraph (m) of this section (Rule 13).

(cc) Rule 29; motions for reconsideration. A motion for reconsideration, if filed by either party, shall set forth specifically the ground or grounds relied upon to sustain the motion, and shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion.

(dd) Rule 30; dismissal without prej. udice. In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the suspension has continued, or it appears that it will continue, for an inordinate length of time, the Board may in its discretion dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed.

[33 F.R. 12046, Aug. 24, 1968]

§ 1.775

Miscellaneous provisions.

(a) Limitations on award. The decision of the Board shall not be in an amount, if any, greater than that claimed in the proceedings before the Board nor shall a decision otherwise grant relief greater than that so claimed by the appellant.

(b) Litigation. The Board will not proceed with consideration of an appeal if the matter is the subject of a lawsuit to which the United States is a party, unless:

(1) The appellant files with the Board a certified copy of a court order staying or suspending further court proceedings pending completion of administrative action by the Board; and

(2) Clearance is obtained from the Department of Justice for further ad

ministrative

consideration and final disposition of the appeal.

(c) Claims pending before the Comptroller General of the United States. The Board will not proceed with consideration of an appeal while the same matter is involved in a claim pending before the Comptroller General unless clearance is secured.

(d) Notification by parties. The parties will promptly notify the Board of any litigation pending or any claim filled in the General Accounting Office, involving any matter in an appeal.

(e) Ex parte communications. Any communication between a Board member or employee and a party to a proceeding before the Board respecting the merits of such proceeding, which is not made in the presence of, or communicated to, any other party to the proceedings, with a full opportunity on their part to respond, is prohibited. Any communication respecting the merits of any pending appeal, other than those specifically mentioned hereinabove in these regulations, will be in writing with copy simultaneously supplied by the communicant to any other party thereto who shall be afforded a period of 15 calendar days from the date of receipt thereof to file a response, which, with the incoming communication, shall be made a part of the appeal file.

(f) Duties of contracting officers in remanded cases. When an appeal is remanded to the contracting officer for implementation, the contracting officer shall upon accomplishment thereof inform the Board and furnish a copy of the documents evidencing the same. [33 F.R. 12048, Aug. 24, 1968]

§ 1.776 Effective date and applicability.

The revised rules in § 1.774 shall take effect 60 days following publication in the FEDERAL REGISTER. Except as otherwise directed by the Board and agreed to by the parties, the rules in § 1.774 shall not apply to appeals which have been docketed prior to their effective date.

[33 F.R. 12048, Aug. 24, 1968]

STANDARDS FOR COLLECTION, COMPROMISE, SUSPENSION OR TERMINATION OF COLLECTION EFFORT, AND REFERRAL OF CIVIL CLAIMS FOR MONEY OR PROPERTY AUTHORITY: §§ 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 210.

SOURCE: 1.900 to 1.906 appear at 32 F.R. 2613, Feb. 8, 1967, unless otherwise noted.

§ 1.900

Prescription of standards.

The instructions contained in §§ 1.900 through 1.954 are issued pursuant to the Public Law 89-508 (Federal Claims Collection Act of 1966, 80 Stat. 308) and the joint regulations thereunder of the Comptroller General of the United States and the Attorney General of the United States, Title 4. Chapter II, Code of Federal Regulations. Except as provided in § 1.903, they constitute standards governing Veterans Administration collection, compromise, suspension or termination of collection effort, and the referral to the General Accounting Office and the Department of Justice for litigation of civil claims by the Veterans Administration for money or property. § 1.901 Omissions not a defense.

The standards set forth in §§ 1.900 through 1.954 shall apply to Veterans Administration handling of claims for money and property but the failure of the agency to comply with any provision of the standards shall not be available as a defense to any debtor.

§ 1.902 Fraud, antitrust and tax claims excluded.

The standards set forth in §§ 1.900 through 1.954 do not apply to the handling of any claim as to which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim, or to any claim based in whole or in part on violation of the antitrust laws. Only the Department of Justice has authority to compromise or terminate collection action on such claims. However, the standards will govern Veterans Administration handling of specific claims subsequent to Department of Justice notification that the alleged fraud, false claim, or misrepresentation does not warrant action by that department. The Veterans Administration has no authority to consider or compromise Federal tax claims.

87-693 (76 Stat. 593, 42 U.S.C. 2651-2653). Nor are §§ 1.900 through 1.954 intended to preclude Veterans Administration settlement, waiver, or compromise of claims under § 17.48 (f) of this chapter for the cost of medical or hospital care furnished pursuant to § 17.47 (c) (1) or (d) of this chapter to persons who are entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof by reason of "workmen's compensation" or "employer's liability" statutes, State or Federal; right to maintenance and cure in admiralty; or statutory or other relationships with third parties, giving rise to liability for damages because of negligence or other legal wrong.

§ 1.904 Conversion claims.

The instructions contained in §§ 1.900 through 1.954 are directed primarily to the recovery of money on behalf of the Government and the circumstances in which the Veterans Administration may dispose of claims for less than the full amount. In addition, the Veterans Administration will assert demands for the return of specific property or the payment of its value in cases of conversion. § 1.905 Subdivision of claims not au

thorized.

Nothing contained in §§ 1.900 through 1.954 is intended to foreclose the right of any debtor to appeal or administrative hearing provided by statute, contract, or applicable Veterans Administration Regulation.

STANDARDS For Collection OF CLAIMS AUTHORITY: §§ 1.910 to 1.921 issued under 72 Stat. 1114; 38 U.S.C. 210.

SOURCE: 1.910 to 1.921 appear at 32 F.R. 2613, Feb. 8, 1967, unless otherwise noted. § 1.910 Aggressive collection action.

The Veterans Administration will take aggressive action, on a timely basis with.