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objects, not privileged, specifically ceed and the case will be regarded as identified, and their relevance and ma- submitted by the absent party as proteriality to the cause or causes in issue vided in § 1241.111. explained, which are reasonably calculated to lead to the discovery of admis- 81241.120 Nature of hearings. sible evidence. If the parties cannot
Hearings shall be as informal as may themselves agree thereon, the Board shall specify just terms and conditions
be reasonable and appropriate under in making the inspection and taking
the circumstances. Appellant and rethe copies and photographs.
spondent may offer at a hearing on
the merits such relevant evidence as 8 1241.116 Service of papers.
they deem appropriate and as would Papers shall be served personally or
be admissible under the generally acby mailing the same, addressed to the
cepted rules of evidence applied in the party upon whom service is to be
courts of the United States in nonjury made. Copies of complaints, answers,
trials, subject, however, to the sound and simultaneous briefs shall be filed discretion of the presiding member in directly with the Board. The party supervising the extent and manner of filing any other paper with the Board presentation of such evidence. In genshall send a copy thereof to the oppos- eral, admissibility will hinge on reling party, noting on the paper filed evancy and materiality. Letters or with the Board, or on the letter trans- copies thereof, affidavits, or other evimitting the same, that a copy has been dence not ordinarily admissible under so furnished.
the generally accepted rules of evi.
dence, may be admitted in the discreHEARINGS
tion of the presiding member. The § 1241.117 Where and when held.
weight to be attached to evidence pre
sented in any particular form will be Hearings will ordinarily be held in
within the discretion of the Board, the Washington, D.C., area, except
taking into consideration all the cirthat upon request seasonably made and upon good cause shown, the Board
cumstances of the particular case. may set the hearing at another loca
Stipulations of fact agreed upon by tion. Hearings will be scheduled at the
the parties may be regarded and used discretion of the Board with due con
as evidence at the hearing. The parties eration to the regular order of ap. may stipulate the testimony that peals and other pertinent factors. On would be given by a witness if the witrequest or motion by either party and ness were present. The Board may in upon good cause shown, the Board amy case require evidence in addition may, in its discretion, advance a hear to that offered by the parties. ing.
8 1241.121 Examination of witnesses. 8 1241.118 Notice of hearings.
Witnesses before the Board will be The parties shall be given at least 15 examined orally under oath or affirdays notice of the time and place set mation, unless the facts are stipulated, for hearings. In scheduling hearings,
or the Board member shall otherwise the Board will give due regard to the
order. If the testimony of a witness is desires of the parties and to the re
not given under oath of affirmation, quirement for just and inexpensive de
the Board shall warn the witness that termination of appeals without unnec
his statements may be subject to the essary delay. Notices of hearing shall
provisions of 18 U.S.C. 287 and 1001, be promptly acknowledged by the par
and any other provisions of law imposties.
ing penalties for knowingly making 8 1241.119 Unexcused absence of a party. false representations in connection The unexcused absence of a party at
with claims against the United States the time and place set for hearing will
or in any matter within the jurisdicnot be occasion for delay. In the event tion of any department or agency of such absence, the hearing will pro- thereof.
8 1241.122 Copies of papers.
the Board. They shall file notices of When books, records, papers, or doc
appearance with the Board, and notice
appearance with uments have been received in evi.
received'in evi. thereof will be given appellant or his dence, a true copy thereof or of such
attorney in the form specified by the part thereof as may be material or rel
Board from time to time. Whenever at evant may be substituted therefor,
any time it appears that appellant and during the hearing or at the conclu
the government counsel are in agreesion thereof.
ment as to disposition of the contro
versy, the Board may suspend further 8 1241.123 Posthearing briefs.
processing of the apppeal: Provided, Posthearing briefs may be submitted
however, That if the Board is advised upon such terms as may be agreed
may be agreed thereafter by either party that the upon by the parties and the presiding
controversy has not been disposed of member at the conclusion of the hear
by agreement, the case shall be reing. Ordinarily, they will be simultane stored to the Board's calendar without ous briefs, exchanged within 30 days loss of position. after receipt of transcript.
DECISIONS 8 1241.124 Transcript of proceedings.
8 1241.128 Decisions. Testimony and argument at hearings shall be reported verbatim, unless
Decisions of the Board will be made the Board otherwise orders. Tran
in writing and copies thereof will be scripts or copies of the proceedings
forwarded simultaneously to both parshall be supplied to the parties at such ties. Decisions of the Board will be rates as may be fixed by contract with made solely upon the record, as dethe reporter.
scribed in g 1241.113. The rules of the
Board, all final orders and decisions, 8 1241.125 Withdrawal of exhibits.
and other records of, or before, the After a decision has become final Board shall be available for inspection the Board may, upon request, and
at its offices to the extent permitted after notice to the other party, in its
by, and subject to the exemptions of, 5
by, and subject discretion, permit the withdrawal of
U.S.C. 552. original exhibits, or any part thereof, by the party entitled thereto. The sub
MOTION FOR RECONSIDERATION titution of true copies of exhibits or
8 1241.129 Motion for reconsideration. any part thereof may be required by the board on its discretion as a condi A motion for reconsideration, if filed tion of granting permission for such by either party, shall set forth specifiwithdrawal.
cally the ground or grounds relied
upon to sustain the motion, and shall REPRESENTATION
be filed within 30 days from the date
of the receipt of a copy of the decision 8 1241.126 The appellant.
of the Board by the party filing the An individual appellant may appear motion. before the Board in person, a corporation by an officer thereof, a partner
DISMISSALS ship or joint venture by a member thereof, or any of these by an attor
8 1241.130 Dismissal without prejudice. ney at law duly licensed in any state, In certain cases, appeals docketed commonwealth, territory, or in the before the Board are required to be District of Columbia. An attorney rep- placed in a suspense status and the resenting an appellant shall file a writ- Board is unable to proceed with dispoten notice of appearance with the sition thereof for reasons not within Board.
the control of the Board. In any such
case where the suspension has contin8 1241.127 The respondent.
ued, or it appears that it will continue, Government counsel may, in accord for an inordinate length of time, the ance with their authority, represent Board may, in its discretion, dismiss the interest of the Government before such appeals from its docket without
8 1241.196 Scope.
Subpart 1241.2 prescribes the procedures for the adjudication of appeals dures for the adindication before the NASA Board of Contract Appeals (hereinafter referred to as the “Board”) which are filed pursuant to the Contract Disputes Act of 1978, Pub. L. 95-563, or, where pursuant to the Act, an appellant elects the option to proceed in accordance with the Act. [45 FR 23407, Apr. 7, 1980; 45 FR 35321, May 27, 1980)
prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice. 8 1241.131 Dismissal for failure to pros
ecute. Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party shall fail to show such cause, the Board may take such action as it deems reasonable and proper under the circumstances.
PREFACE TO THE RULES 81241.197 Jurisdiction of the Board.
The NASA Board of Contract Appeals (referred to herein as the “Board”) shall consider and determine appeals from decisions of contracting officers pursuant to the Contract Disputes Act of 1978 (Pub. L. 95-563, 41 U.S.C. 601-613) relating to contracts made by (a) the National Aeronautics and Space Administration, or (b) any other executive agency when such agency or the Administrator for Federal Procurement Policy has designated the Board to decide the appeal. The Board is authorized to grant any relief that would be available to a litigant asserting a contract claim in the Court of Claims. In addition, the Board may perform other duties as assigned by the Administrator which are not in. consistent with its statutory duties. (45 FR 23407, Apr. 7, 1980; 45 FR 35321, May 27, 1980)
EX PARTE COMMUNICATIONS
8 1241.132 Ex parte communications.
No member of the Board or of the Board's staff shall entertain, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, of the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Board members nor to ex parte communications concerning the Board's administrative functions or procedures.
8 1241.133 Sanctions.
If any party fails or refuses to obey an order issued by the Board, the Board may make such order in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal.
8 1241.198 Location and organization of
the Board. (a) The Board is located in Washing. ton, D.C., and its mailing address is the Board of Contract Appeals, Na. I tional Aeronautics and Space Administration, Washington, D.C. 20546. The telephone number of the Board is (202) 755-3481.
(b) The Board consists of a Chair. person, Vice Chairperson, and other members, all of whom are attorneys at law duly licensed by any state, como monwealth, territory, or the District of Columbia. Normally, the appeals are assigned to a panel of at least two members of the Board. If a panel of two members is unable to agree upon & decision, the Chairperson may assign &
Subpart 1241.2—General Procedures
AUTHORITY: 42 U.S.C. 2473.
SOURCE: 45 FR 23407, Apr. 7, 1980, unless otherwise noted.
third member to consider the appeal any person directly or indirectly inThe Chairperson is designated as volved in an appeal, submit to the Chief Administrative Judge and the Board or the Board's staff, off the other Board members are designated record, any evidence, explanation, as Administrative Judges.
analysis, or advice, whether written or (45 FR 23407, Apr. 7, 1980; 45 FR 35321,
oral, regarding any matter at issue in May 27, 1980)
an appeal. This provision does not
apply to consultation among Board 8 1241.199 General guidelines.
members nor to ex parte communica(a) Rules. Appeals referred to the tions concerning the Board's adminisBoard are handled in accordance with trative functions or procedures. the rules of the Board.
(45 FR 23407, Apr. 7, 1980; 45 FR 35321, (b) Administration and interpreta
May 27, 1980) tion of rules. Emphasis is placed upon the sound administration of these
PRELIMINARY PROCEDURES rules in specific cases, because it is impracticable to articulate a rule to fit 81241.201 Appeals, how taken. every possible circumstance which
(a) Notice of an appeal shall be in may be encountered. These rules will
writing and mailed or otherwise furbe interpreted so as to secure a just
nished to the Board within 90 days and inexpensive determination of ap
from the date of receipt of a contractpeals without unnecessary delay.
ing officer's decision. A copy thereof (c) Preliminary procedures. Prelimi.
shall be furnished to the contracting nary procedures are available to en
officer from whose decision the appeal courage full disclosure of relevant and
is taken. material facts, and to discourage unwarranted surprise.
(b) Where the contractor has sub(d) Time, computation and exten
mitted a claim of $50,000 or less to the sions. (1) All time limitations specified
contracting officer and has requested for various procedural actions are
a written decision within 60 days from computed as maximums, and are not
receipt of the request, and the conto be fully exhausted if the action de
tracting officer has not done so, the scribed can be accomplished in a lesser
contractor may file a notice of appeal period. These time limitations are as provided in paragraph (a) of this similarly eligible for extension in ap
section, citing the failure of the conpropriate circumstances, on good tracting officer to issue a decision. cause shown.
(c) Where the contractor has sub(2) Except as otherwise provided by mitted a claim in excess of $50,000 to law, in computing any period of time the contracting officer and the conprescribed by these rules or by any tracting officer has failed to issue a deorder of the Board, the day of the cision within a reasonable time, the event from which the designated contractor may file a notice of appeal period of time begins to run shall not as provided in paragraph (a) of this be included, but the last day of the section citing the failure to issue a deperiod shall be included unless it is a cision. Saturday, Sunday, or a legal holiday, (d) Upon docketing of appeals filed in which event the period shall run to pursuant to paragraphs (b) or (c) of the end of the next business day.
this section, the Board may, at its (3) Requests for extensions of time option, stay further proceedings pendfrom either party shall be made in
ing issuance of a final decision by the writing and stating good cause there contracting officer within such period
of time as is determined by the Board. [45 FR 23407, Apr. 7, 1980; 45 FR 35321, (e) In lieu of filing a notice of appeal May 27, 1980)
under paragraphs (b) or (c) of this sec
tion, the contractor may request the 8 1241.200 Ex parte communications. Board to direct the contracting officer
No members of the Board or the to issue a decision in a specified period Board's staff shall entertain, nor shall of time, as determined by the Board,
in the event of undue delay on the the appellant a copy of each document part of the contracting officer.
he transmits to the Board, except
those in paragraph (a)(2) of this sec8 1241.202 Notice of appeal, contents of.
tion. As to the latter, a list furnished A notice of appeal should indicate appellant indicating specific contracthat an appeal is being taken and tual documents transmitted will sufshould identify the contract (by fice. number), the decision from which the (b) Duties of the appellant. Within appeal is taken, and the amount in dis- 30 days after receipt of a copy of the pute, if known. The notice of appeal appeal file assembled by the contractshould be signed personally by the ap- ing officer, the appellant shall transpellant (the contractor taking the mit to the Board any documents not appeal), or by the appellant's duly au contained therein which he considers thorized representative or attorney. relevant to the appeal, and furnish The complaint referred to in two copies of such documents to the 8 1241.206 may be filed with the notice government trial attorney. of appeal, or the appellant may desig (c) Organization of appeal file. Docnate the notice of appeal as a com uments in the appeal file may be origi. plaint, if it otherwise fulfills the re nals or legible facsimiles or authenti. quirements of a complaint.
cated copies, and shall be arranged in
chronological order where practicable, 8 1241.203 Docketing of appeals.
numbered sequentially, tabbed, and inWhen a notice of appeal in any form dexed to identify the contents of the has been received by the Board, it file. shall be docketed promptly. Notice in (d) Lengthy documents. Upon rewritting shall be given to the appel quest by either party, the Board may lant with a copy of these rules, and to waive the requirements to furnish to the contracting officer.
the other party copies of bulky,
lengthy, or out-of-size documents in 8 1241.204 Preparation, content, organiza
the appeal file when inclusion would tion, forwarding, and status of appeal
be burdensome. At the time a party
files with the Board a document as to (a) Duties of Contracting Officer. which such a waiver has been granted Within 30 days of receipt of an appeal, he shall notify the other party that or notice that an appeal has been the document or a copy is available for filed, the contracting officer shall as inspection at the offices of the Board semble and transmit to the Board an or of the party filing same. appeal file consisting of all documents (e) Status of documents in appeal pertinent to the appeal, including:
file. Documents contained in the (1) The decision from which the appeal file are considered, without fur. appeal is taken;
ther action by the parties, as part of (2) The contract including specifica- the record upon which the Board will tions and pertinent amendments, render its decision. However, a party plans, and drawings;
may object, for reasons stated, to con(3) All correspondence between the sideration of a particular document or parties relevant to the appeal, includ documents reasonably in advance of ing the letter or letters of claim in re hearing or, if there is no hearing, of sponse to which the decision was settling the record. If such objection is issued;
made the Board shall remove the doc(4) Transcripts of any testimony ument or documents from the appeal taken during the course of proceed file and permit the party offering the ings, and affidavits or statements of document to move its admission as eviany witnesses on the matter in dispute dence in accordance with 88 1241.213 made prior to the filing of the notice and 1241.220. of appeal with the Board; and
(f) Notwithstanding the foregoing, (5) Any additional information con- the filing of the $ 1241.204 (a) and (b) sidered relevant to the appeal.
documents may be dispensed with by Within the same time above specified the Board either upon request of the the contracting officer shall furnish appellant in his notice of appeal or