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comprised of a comprehensive contract file which the contracting officer is required to submit, and which includes all records and documents in his possession that are relevant to the dispute; the pleadings and any briefs filed by the parties; interlocutory motions, and decisions on them; and all correspondence relating to the appeal. Where a hearing is held, the record also includes a record of the prehearing conference, and any matters that have been stipulated to; a verbatim transcript of the hearing, and all exhibits, documents, depositions, or interrogatories introduced into evidence at the hearing; posthearing briefs, if filed; and finally, the Board's decision on the appeal, and anything relating to a motion for reconsideration.
Prior to any hearing, or decision on the record, both parties are given the opportunity to examine the record, and to object to anything in it which they may consider not relevant to the appeal. Upon the request of either party, the Board will ordinarily furnish a copy of anything included in the record which has not already been provided to that party, or will permit him to make a copy. The Board bases its decision solely on the record as it stands at the time. After a decision, the record is maintained intact by the Board, so that it will be available in its entirety if the contractor should subsequently carry his claim to a court.
One final point on which I should like to comment involves the question which is fundamental to the system of settling disputes administratively through boards of contract appeals-that is, whether such a board, when located within an Agency, can act independently and impartially in deciding contractors' appeals arising from that Agency's own contracts. On the basis of my own five years of experience on the NASA Board, my answer to this would be an emphatic yes. The NASA Board is and has always been wholly free from any influence or intervention by procurement officers or other NASA officials. I believe we are also able to be entirely objective in deciding appeals for one reason, because we feel certain that in entrusting responsibility to the Board, the Administrator of NASA wants us and expects us to act fairly and impartially as between the Appellant and the Contracting Officer, and not in any sense to favor the Government's side, just because it is the Government.
Another aspect of this question of the independence of the NASA Board arises from such factors as that the Board is located administratively within the Office of the General Counsel; that, with one exception, Board members have always been members of the immediate staff of the General Counsel; and that the General Counsel also has the ultimate responsibility for prosecuting the Government's side of an appeal. Whatever appearance of conflicting interests or divided loyalties might be created from this situation, within NASA they do not in fact exist. In my capacity as Chairman of the Board, I have a responsibility to the General Counsel, as the administrator's representative for this purpose, only for insuring that appeals are handled as expeditiously as possible, and for consulting with him about any administrative problems arising from the work of the Board. Beyond this, as a matter of common understanding between us, we do not go. Mr. Chairman, this completes my prepared statement. I know there are other matters relating to the operation of Government Boards of Contract Appeals which are of interest to the subcommittee, and
I should be glad to give my views on them or to answer any questions the subcommittee may have.
(The biographical information on members of the NASA Board of Contract Appeals, submitted by Mr. Shafer, is as follows:)
BIOGRAPHICAL INFORMATION ON MEMBERS OF THE
NASA BOARD OF CONTRACT APPEALS
E. M. SHAFER, CHAIRMAN
Born in Chicago, Ill. Received an A.B. degree from Oberlin College in 1941, and an LL.B. from the Harvard Law School in 1948. Served on active duty in the U.S. Naval Reserve from November 1941 through January 1946. He was a member of the staff of the General Counsel of the Department of Defense from 1948 to 1958; between 1954 and 1958 was assigned as Counsel to the Defense Advisor, U.S. Mission to NATO, in Paris, France. From 1958 to 1959, he served as a full-time consultant in the Office of the Director of Defense Research and Engineering, Office of the Secretary of Defense. He joined the staff of the General Counsel of NASA in 1959, and was designated an Assistant General Counsel in December 1963. Appointed to serve on the NASA Board of Contract Appeals in March 1961, and named Chairman on January 1, 1965. Admitted to practice before the U.S. district court and the U.S. Court of Appeals, District of Columbia. Member, Federal Bar Association.
JAMES E. RILEY, VICE CHAIRMAN
Born on June 3, 1926, in New Haven, Conn. Received an A.B. degree, magna cum laude, from Wesleyan University, Middletown, Conn., in June 1949, and an LL.B. from Yale Law School in June 1952. Admitted to the Connecticut Bar in 1952 and to the District of Columbia Bar in 1963. From 1953 through 1958, employed as an Assistant Counsel in the Office of General Counsel, Department of the Navy, in Washington, D.C. From 1958 through 1962, employed as an attorney with the Collins Radio Co. in Cedar Rapids, Iowa. Served as assistant general attorney for Collins and counsel for its Cedar Rapids division from 1961 through 1962. In December 1962, he joined the staff of the General Counsel of NASA, and has served since that time in Washington as Counsel to the Office of Manned Space Flight. Appointed vice chairman of the NASA Board of Contract Appeals in January 1965.
DONALD W. FRENZEN
Born in Oak Park, Ill., in 1930. Received an A.B. degree from Beloit College in 1952, an M.A. from the University of Chicago in 1957, and a J.D. from the University of Chicago Law School in 1958. Served with the 1st Cavalry Division in Japan in 1953 and 1954. Employed by the University of Chicago Law School in a study of commercial arbitration for a period of 1 year following law school graduation in 1958. Following this, he joined the staff of the General Counsel of NASA in January 1959. Appointed to serve on the NASA Board of Contract Appeals in October 1963.
Born in Hamburg, Germany, August 18, 1930. Went to England in 1939, where in 1947 he was awarded the University of London General School Certificate with two distinctions. Came to the United States in 1948 and became a U.S. citizen in 1955. Awarded an A.B. degree by Columbia University in 1954 and an LL.B. degree by the University of Michigan Law School in 1958. Admitted to the District of Columbia Bar in 1958, and subsequently admitted to the U.S. Court of Appeals, D.C., and the U.S. Supreme Court bars. Following 9 months of employment as a management intern by Headquarters, U.S. Air Force, he joined the staff of the General Counsel of NASA in early 1959. Served as a legislative and fiscal attorney until November 1963, when he was assigned to serve as associate counsel to the Office of Manned Space Flight, NASA. Appointed to serve on the NASA Board of Contract Appeals in November 1961.
CHARLES M. KEARNEY
Born in Dixon, Ill. Received an A.B. degree from the University of Notre Dame in 1942, and an LL.B. from Duke University Law School in 1948. Served on active duty with the U.S. Naval Reserve between 1942 and 1946. Engaged in private law practice in Dixon, Ill., from 1948 to 1951. In 1951, joined the legal staff of the Division Engineer, Army Corps of Engineers, in Chicago, Ill., and served there and in Milwaukee, Wis., until 1955. In 1955, became an attorney-advisor in the Procurement Law Branch, Legal Division, of the Chief Signal Officer, Washington, D.C.; promoted to Chief of the Procurement Law Branch in 1957. In 1960, joined the staff of the Goddard Space Flight Center, NASA, as Chief Counsel. Appointed to serve on the NASA Board of Contract Appeals in March 1966. Admitted to the bars of Illinois, Wisconsin, and the District of Columbia. Member, Phi Delta Phi_Legal Fraternity, Illinois Bar Association, Wisconsin Bar Association and Federal Bar Association.
Senator MONTOYA. Thank you, Mr. Shafer.
I want to say that I fully appreciate the fact that you have to assign other duties to these members because the caseload is not sufficient to occupy them full time, but will you, for the purpose of completing the record state what the duties of each particular member of the Board are, in addition to exercising their functions as members of this particular Board?
Mr. SHAFER. Yes, sir. I am an assistant general counsel. My primary assignment is to work in the field of international programs. I also spend a considerable amount of time on problems involving NASA's relationships with the Communications Satellite Corp., for whom we launch communications satellites.
I have a variety of what might be called housekeeping type assignments. I have two attorneys working for me. Together we carry out a variety of duties.
Mr. Riley, the vice chairman, is assigned to the assistant general counsel for procurement matters. In that capacity, he works with the review and, to some degree, the drafting of contracts. Mr. Riley is also assigned to the Office of Manned Space Flight as its Counsel.
Mr. Frenzen also is assigned to the assistant general counsel for procurement, and, in general, again, he is concerned with the review of contracts.
Mr. Haber is assigned to the assistant general counsel for fiscal matters. His principal work is in connection with fiscal matters, and legislation.
Mr. Kearney, the fifth member of the Board, was appointed only very recently. He is the Chief Counsel at the Goddard Space Flight Center. As such, he has substantial responsibilities in the field of procurement, but he is, overall, the General Counsel for the Goddard Space Flight Center.
Now, we have appointed Mr. Kearney for the reasons that the is unusually well qualified, and that he was very interested in getting an assignment of this kind. We felt that there was no reason why we should not do it. Goddard is close enough that it does not create any special problems in connection with his availability.
We have agreed that, if any contract which comes before the Board is a Goddard contract, Mr. Kearney will disqualify himself, even though he need not necessarily have had anything at all to do with that particular contract. We want to lean over backwards to insure that there is no criticism on this score.
Senator MONTOYA. Do you also aid in the preparation of the contracts entered into by NASA with contractors?
Mr. SHAFER. I personally do a certain amount of contract work in connection with the Communications Satellite Corporation, which is a very specialized thing. Actually, it is procurement in reverse. We are doing something for the Corporation rather than the Corporation doing something for us.
Senator MONTOYA. Have you had any disputes arising?
Mr. SHAFER. No, sir.
Senator MONTOYA. Do you also assist in the writing of contracts with respect to other activities of NASA?
Mr. SHAFER. Mr. Riley and I together have been working recently on some contracts which are again of a rather specialized nature. NASA is going to procure satellite communications services from the COMSAT Corporation as well as from three other communications carriers. Because the problems are somewhat special, and because I have had a rather close relationship to all the matters which relate to communications satellites for about the past 4 years, I was drawn into that, as well as Mr. Riley.
Senator MONTOYA. Now, in addition to that, Mr. Shafer, do you participate in the formulation of other contracts within the Department, since you are part of the General Counsel's office?
Mr. SHAFER. No, sir; I do not.
Senator MONTOYA. I understood you say that Mr. Riley has those functions.
Mr. SHAFER. Mr. Riley and Mr. Frenzen, two members of the Board, do work in the office of the Assistant General Counsel for Procurement Matters. As such, their duties, by and large, relate to contracts or procurement matters.
However, the procurement function in NASA is very largely decentralized and almost all procurement is done from the field, and it is only when contracts above a certain amount are sent in for review by headquarters that they get into them. They do not normally participate in the negotiation of contracts, or the drafting or policymaking that go into contracts.
Senator MONTOYA. But their duties call for them to be available to draft contracts with respect to any activity, and there is no inhibition imposed upon them in any way whatsoever, is there, when they are called upon to do certain things?
Mr. SHAFER. There is no inhibition imposed on their participation in contract matters, but there is in our charter a prohibition that if they have had anything to do in the making or the administration of any contract, they must disqualify themselves from participating in the consideration of an appeal involving that contract.
Senator MONTOYA. Now, who defends these contract claims for NASA?
Mr. SHAFER. There is a Government counsel appointed for each appeal.
Senator MONTOYA. Out of what office?
Mr. SHAFER. More often than not, in the past year or 18 months, the Government's counsel has been appointed from the field center out of which the contract and the appeal come.
Senator MONTOYA. The field counsel are under the General Counsel of the Department; is that correct?
Mr. SHAFER. They are regarded as being under the General Counsel, professionally. Their administrative responsibility is not to the General Counsel. They do not report to the General Counsel in any
Senator MONTOYA. Who hires these people, the General Counsel's office; is that right?
Mr. SHAFER. They are hired through the normal personnel processes at a field center. The General Counsel ordinarily will make an effort to find out who they are and determine whether they are professionally qualified for the job. He has, in effect, a veto power, on professional grounds only.
Senator MONTOYA. Now, you mentioned that when and if a certain Board member has done work with respect to a contract involved in an appeal, he disqualifies himself from participation in the adjudication of the dispute.
Mr. SHAFER. That is correct.
Senator MONTOYA. Do some of these disputes arise out of the construction or wording in a particular contract?
Mr. SHAFER. They may well do so.
Senator MONTOYA. Now, supposing that this particular Board member has, with respect to other contracts, been the author of the specific language in dispute and he has developed a fixed opinion as to its meaning and its construction.
Have you ever concerned yourself with the possibility that this member is passing, although on another contract, but upon language of which he is the original author or, say, advocate, as to its meaning?
Mr. SHAFER. I think, Senator, that normally Government contracts consist very extensively of what are known as boilerplate clauses. Senator MONTOYA. What do you call them?
Mr. SHAFER. Boilerplate clauses.
Senator MONTOYA. What is that? I am a country lawyer. I do not understand that language.
Mr. SHAFER. The changes article, and I suppose the disputes article itself, are examples of boilerplate clauses. They are on printed standard forms, and make up very largely what are called the general provisions of the contract, and in the trade, I guess, are referred to as boilerplate clauses. Those clauses have been evolved over a period of many, many years, and they have had many, many authors. I think that it is this kind of clause which is, generally speaking, the sort of thing you would get into in a dispute. Now, where clauses are common to a number of contracts, I don't think there is any problem. I do not think you would reach a situation where one man would say "I wrote that clause, and it was adopted."
Senator MONTOYA. I grant you that, Mr. Shafer, but in preparing a Government contract, in addition to the boilerplate as you referred to it, there has to be a little bit of creativity as to some of the other provisions; isn't that correct?
That is the area about which I speak.
Mr. SHAFER. The so-called statement of work of a contract would generally be written with reference to that particular contract. It may well be that you would adapt language from one statement of