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signed by the Administrator. The every possible circumstance which Board has authority to determine ap- may be encountered. These rules will peals falling within the scope of its ju- be interpreted so as to secure a just risdiction as fully and finally as might and inexpensive determination of apthe Administrator.
peals without unnecessary delay. (b) Under $ 1209.102(b) of this chap (c) Preliminary procedures. Prelimi. ter, the Board is granted the authority nary procedures are available to ento issue its rules of procedure.
courage full disclosure of relevant and
material facts, and to discourage un8 1241.12 Location and organization of
warranted surprise. the Board.
(d) Time, computation, and exten(a) The Board is located in Washing. sions. (1) All time limitations specified ton, D.C., and its mailing address is for various procedural actions are The Board of Contract Appeals, Na computed as maximums, and are not tional Aeronautics and Space Adminis. to be fully exhausted if the action detration, Washington, D.C. 20546.
scribed can be accomplished in a lesser (b) The Board consists of a Chair period. These time limitations are man and two other members, all of similarly eligible for extension in apwhom shall be attorneys at law duly li. propriate circumstances, on good censed by any state or the District of cause shown. Columbia, and who have significant (2) Except as otherwise provided by experience in Government procure- law, in computing any period of time ment law. In general, the appeals are prescribed by these rules or by any assigned to a panel of at least two order of the Board, the day of the members of the Board. If a panel of event from which the designated two members is unable to agree upon a period of time begins to run shall not decision, the Chairman may assign a be included, but the last day of the third member to consider the appeal. period shall be included unless it is a The Chairman is designated as Chief Saturday, Sunday, or a legal holiday, Administrative Judge and the other in which event the period shall run to Board members are designated as Ad the end of the next business day. ministrative Judges.
(3) Requests for extensions of time
from either party shall be mde in writ8 1241.13 Decisions on questions of law.
ing and stating good cause therefor. When an appeal is taken pursuant to a Disputes clause in a contract which
PRELIMINARY PROCEDURES limits appeals to disputes concerning questions of fact, the Board may, in its
8 1241.101 Appeals, how taken. discretion, hear, consider, and decide Notice of an appeal must be in writall questions of law necessary for the ing and the original, together with two complete adjudication of the issue. In copies, may be filed with the contractthe consideration of an appeal should ing officer from whose decision the it appear that a claim is involved appeal is taken. The notice of appeal which is not cognizable under the must be mailed or otherwise filed terms of the contract, the Board may within the time specified therefor in make findings of fact with respect to the contract or allowed by applicable such a claim without expressing an provision of directive or law. opinion on the question of liability.
8 1241.102 Notice of appeal, contents of. 8 1241.14 Board of Contract Appeals pro A notice of appeal should indicate cedure.
that an appeal is thereby intended and (a) Rules. Appeals referred to the should identify the contract (by Board are handled in accordance with number), and the final decision of the the rules of the Board.
contracting officer from which the (b) Administration and interpreta- appeal is taken. The notice of appeal tion of rules. Emphasis is placed upon should be signed personally by the apthe sound administration of these pellant (the contractor making the rules in specific cases, because it is im- apppeal), or by an officer of the appelpracticable to articulate a rule to fit lant corporation or member of the appellant firm, or by the contractor's transmitted will suffice, and those duly authorized representative or at stated in 8 1241.104(d). torney. The complaint referred to in (b) Duties of the appellant. Within 1241.106 may be filed with the notice
30 days after receipt of a copy of the of appeal, or the appellant may desig appeal file assembled by the contractnate the notice of appeal as a com
ing officer, the appellant shall supple. plaint, if it otherwise fulfills the re
ment the same by transmitting to the quirements of a complaint.
Board any documents not contained
therein which he considers pertinent 8 1241.103 Forwarding of appeals.
to the appeal, and furnishing two When a notice of appeal in any form copies of such documents to the Govhas been received by the contracting ernment trial attorney. officer, he shall endorse thereon the
(c) Organization of the appeal file. date of mailing (or date of receipt, if
Documents in the appeal file may be otherwise conveyed) and within 10
originals or legible fascimile or audays shall forward said notice of
thenticated copies thereof, and shall appeal to the Board. Following receipt
be arranged in chronological order by the Board of the original notice of
where practicable, numbered sequenan appeal (whether through the con
tially, tabbed and indexed to identify tracting officer or otherwise), the con
the contents of the file. tractor and contracting officer will be promptly advised of its receipt and the
(d) Lengthy documents. The Board contractor will be furnished a copy of
may waive the requirement of furnishthese rules.
ing to the other party copies of bulky,
lengthy, or out-of-size documents in 8 1241.104 Preparation, contents, organi the appeal file when a party has
zation, forwarding and status of appeal shown that doing so would impose an file.
undue burden. At the time a party (a) Duties of Contracting Officer.
files with the Board a document as to Within 30 days of receipt of an appeal,
which such a waiver has been granted, or advice that an appeal has been
he shall notify the other party that filed, the contracting officer shall as
the same or a copy is available for insemble and transmit to the Board an spection at the offices of the Board or appeal file consisting of all documents
of the party filing same. pertinent to the appeal, including:
(e) Status of documents in appeal (1) The decision and findings of fact file. Documents contained in the from which appeal is taken;
appeal file are considered, without fur(2) The contract including specifica ther action by the parties, as part of tions and pertinent amendments, the record upon which the Board will plans and drawings;
render its decision, unless a party ob(3) All correspondence between the jects to the consideration of a particuparties pertinent to the appeal, includ lar document in advance of hearing or ing the letter or letters of claim in re of settling the record in the event sponse to which decision was issued; there is no hearing on the appeal. If
(4) Transcripts of any testimony objection to a document is made, the taken during the course of proceed Board will rule upon its admissibility ings, and affidavits or statements of into the record as evidence in accordany witnesses on the matter in dispute ance with 88 1241.113 and 1241.120. made prior to the filing of the notice of appeal with the Board; and
8 1241.105 Dismissal for lack of jurisdic(5) Any additional information con tion. sidered pertinent.
Any motion addressed to the jurisWithin the same time specified above, diction of the Board shall be promptly the contracting officer shall furnish filed. Hearing on the motion shall be the appellent a copy of each document afforded on application of either he transmits to the Board, except party, unless the Board determines those stated in 8 1241.104(a)(2), as to that its decision on the motion will be which a list furnished appellant indi- deferred pending hearing on both the cating specific contractual documents merits and the motion. The Board shall have the right at any time and tion, and within the proper scope of on its own motion to raise the issue of the appeal, permit either party to its jurisdiction to proceed with a par amend his pleading upon conditions ticular case, and shall do so by an ap- just to both parties. When issues propriate order, affording the parties within the proper scope of the appeal, an opportunity to be heard thereon. but not raised by the pleadings or the
documentation described in $ 1241.104, 8 1241.106 Pleadings.
are tried by express or implied consent (a) Appellant. Within 30 days after of the parties, or by permission of the receipt of notice of docketing of the Board, they shall be treated in all reappeal, the appellant shall file with spects as if they had been raised therethe Board an original and two copies in. In such instances, motions to of a complaint setting forth simple, amend the pleadings to conform to the concise and direct statements of each proof may be entered, but are not reof his claims, alleging the basis, with quired. If evidence is objected to at a appropriate reference to contract pro hearing on the ground that it is not visions, for each claim, and the dollar within the issues raised by the pleadamount claimed. This pleading shall ings or the Š 1241.104 documentation fulfill the generally recognized re
(which shall be deemed part of the quirements of a complaint, although
pleadings for this purpose), it may be no particular form or formality is re admitted within the proper scope of quired. Upon receipt thereof, the
the appeal, provided, however, that Board shall serve a copy upon the re
the objecting party may be granted a spondent. Should the complaint not be
continuance if necessary to enable him received within 30 days, appellant's
to meet such evidence. claim and appeal may, if in the opinion of the Board the issues before the 81241.108 Hearing election.
Board are sufficiently defined, be Ideemed to set forth his complaint and
Upon receipt of respondent's answer | the respondent shall be so notified.
or the notice referred to in the last į (b) Respondent. Within 30 days from
sentence of $ 1241.106(b), appellant receipt of said complaint, or the afore
shall advise whether he desires a hearĮ said notice from the Board, respond
ing as prescribed in $$ 1241.117 ent shall prepare and file with the
through 1241.125, or whether, in the Board an original and two copies of an
alternative, he elects to submit his answer thereto, setting forth simple,
case on the record without a hearing, i concise, and direct statements of re
as prescribed in $ 1241.111. In approį spondent's defenses to each claim as
priate cases, the appellant shall also | serted by appellant. This pleading
elect whether he desires the optional | shall fulfill the generally recognized
accelerated procedure prescribed in į requirements of an answer, and shall
$ 1241.112. 1 set forth any affirmative defenses or counter-claims as appropriate. Upon
8 1241.109 Prehearing briefs. Į receipt thereof, the Board shall serve Based on an examination of the doc; a copy upon appellant. Should the umentation described in 8 1241.104, i answer not be received within 30 days, the pleadings, and a determination of Į the Board may, in its discretion, enter whether the arguments and authori| a general denial on behalf of the Gov. ties addressed to the issues are ade
ernment, and the appellant shall be so quately set forth therein, the Board notified.
may, in its discretion, require the par
ties to submit prehearing briefs in any 8 1241.107 Amendments of pleadings or
case in which a hearing has been electrecord.
ed pursuant to $ 1241.108. In the abThe Board upon its own initiative or sence of a Board requirement thereupon application by a party may, in its for, either party may, in its discretion discretion, order a party to make a and upon appropriate and sufficient more definite statement of the com- notice to the other party, furnish a plaint or answer, or to reply to an prehearing brief to the Board. In any answer. The Board may, in its discre- case where a prehearing brief is sub
tions 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 by briefs arranged in accordance with $ 1241.123.
mitted, 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. 8 1241.110 Prehearing or presubmission
conference. (a) Whether the case is to be submitted pursuant to $ 1241.111, or heard pursuant to $ 1241.117 through $ 1241.125, the Board may upon its own initiative or upon the application of either party, call upon the parties to appear before an Administrative Judge 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; and
(5) Such other matters as may aid in the disposition of the appeal.
(b) Conference record. The results of the conference shall be reduced to writing by the Board member within 5 calendar days after the close of the conference. Copies shall be duly served on the parties who may, within 10 calendar days from receipt of the written record, file objection, comment, request for correction, or other motion pertaining to that record of prehearing conference. The record of prehearing conference, together with any objection, comment, request for correction, or other motion made by the parties shall become a part of the Board record.
81241.112 Optional accelerated procedure.
(a) 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 sustains such objection. In cases proceeding under this rule, parties are encouraged, to the extent possible consistent with ade. quate 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.
(c) Except as herein modified, these rules otherwise apply in all respects. 8 1241.113 Settling the record.
(a) The record upon which the Board's decision will be rendered consists of the appeal file described in
8 1241.111 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 $ 1241.113. Submission of a case without hearing does not relieve the parties from the necessity of prov. ing the facts supporting their allega
81241.104 and, to the extent the fol- whether the purpose of the deposition lowing items have been filed, plead is discovery or for use as evidence. ings, prehearing conference memoran (c) Orders on depositions. The time, da or orders, prehearing briefs, deposi. place, and manner of taking depositions or interrogatories received in evi tions shall be as mutually agreed by dence, admissions, stipulations, tran the parties, or failing such agreement, scripts of conferences and hearings, governed by order of the Board. hearing exhibits, posthearing briefs, (d) Use as evidence. No testimony and documents which the Board has taken by depositions shall be considspecifically designated be made a part ered as part of the evidence in the of the record. The record will at all hearing of an appeal unless and until reasonable times be available for in such testimony is offered and received spection by the parties at the office of in evidence at such hearing. It will not the Board.
ordinarily be received in evidence if (b) Except as the Board may other. the deponent is present and can testiwise order in its discretion, no proof fy personally at the hearing. In such shall be received in evidence after instances, however, the deposition completion of an oral hearing or, in may be used to contradict or impeach cases submitted on the record, after the testimony of the witness given at notification by the Board that the the hearing. In cases submitted on the case is ready for decision.
record, the Board may, in its discre(c) The weight to be attached to any tion, receive depositions as evidence in evidence of record will rest within the supplementation of that record. sound discretion of the Board. The (e) Expenses. Each party shall bear Board may in any case require either its own expenses associated with the party, with appropriate notice to the taking of any deposition. other party, to submit addditional evi. dence on any matter relevant to the 81241.115 Interrogatories to parties, adappeal.
mission of facts, and production and
inspection of documents. 8 1241.114 Discovery-depositions.
(a) Interrogatories to parties. After (a) General policy and protective an appeal has been filed with the orders. The parties are encouraged to Board, a party may serve on the other engage in voluntary discovery proce party written interrogatories to be andures. In connection with any deposi- swered separately in writing, signed tion or other discovery procedure, the under oath and returned within 30 Board may make any order which jus- days. Upon timely objection by the tice requires to protect a party or party, the Board will determine the person from annoyance, embarrass- extent to which the interrogatories ment, oppression, or undue burden or will be permitted. expense, and those orders may include (b) Admission of facts. After an limitations on the scope, method, time appeal has been filed with the Board, and place for discovery, and provisions a party may serve upon the other for protecting the secrecy of confiden party a request for the admission of tial information or documents.
specified facts. Within 30 days after (b) When depositions permitted. service, the party served shall answer After an appeal has been docketed and each requested fact or file objections complaint filed, the parties may mutu- thereto. The factual propositions set ally agree to, or the Board may, upon out in the request shall be deemed adapplication of either party and for mitted upon the failure of a party to good cause shown, order the taking of respond to the request for admission. testimony of any person by deposition (c) Production and inspection of upon oral examination or written in documents. Upon motion of any party terrogatories before any officer au- showing good cause therefor, and thorized to administer oaths at the upon notice, the Board may order the place of examination, for use as evi- other party to produce and permit the dence or for purpose of discovery. The inspection and copying or photographapplication for order shall specifying of any designated documents or