If the appellant does not request a hearing in accordance with § 2-60.206 the appeal is considered on the documentary record alone. The appellant may submit any additional relevant material for the record within 30 days after the date he receives the notice to appellant, under § 2-60.203 or within such additional time as may be permitted by the Panel. The contracting officer whose decision is appealed shall submit any answering material within 30 days after the date he receives the material submitted by the appellant. The appellant must submit any material in reply within 30 days after the date he receives the material submitted by the contracting officer. Further submission of additional material by either party, and extensions of time to submit, are permitted, or directed, at the discretion of the Panel. The appellant shall furnish copies to the contracting officer at the time of submission to the Panel. The contracting officer shall furnish copies to the appellant (except copies of the file initially sent to the Panel) at the time of submission to the Panel.

§ 2-60.209 Procedure for administrative inquiry.

If the appellant requests an oral hearing as provided in § 2-60.206, the appeal is heard at an administrative inquiry, unless the appellant files, with his request for hearing, a formal petition conforming to § 2-60.210-1, and to any orders of the Panel requiring its amplification. At the administrative inquiry, the panel member presiding shall receive evidence and arguments presented by or for the appellant and the contracting officer whose decision is appealed. The panel member shall limit the presentation to matters actually in issue, and obtain admissions, stipulations and concessions through questioning the parties. The parties may offer evidence or argument without regard to the formal rules of evidence. However, the panel member

may refuse to receive any evidence or argument on matters not in issue or any repetitive, irrelevant, or improper material, and may refuse to receive any material that is not of sufficient probative weight to be considered substantial evidence. There is no right to cross-examine. The panel member may question a witness after his direct presentation, to develop any facts he considers relevant, and may at or after the hearing make such further investigation and inquiry as he feels will help him to establish the facts of the case. The appellant and the contracting officer may submit additional written evidence or argument after the hearing within a time limit fixed by the Panel. Sections 2-60.210 through 2-60.210-5 does not apply to appeals heard at administrative inquiries. § 2-60.210 hearing.

Procedure for adversary

To begin the procedure for considering an appeal upon an adversary hearing, the appellant must file a formal petition when he files his Request for Hearing under § 2-60.206 or within such time thereafter as may be allowed by the Panel. The formal petition must specify the errors in the contracting officer's decision; must set forth a short and plain statement of the facts that entitle the appellant to relief; must conform to the formal and substantive requirements for pleadings under Rules 8 through 11 of the Rules of Civil Procedures for the U.S. District Courts; and should also contain applicable citations of authority for the consideration of the Panel. The appellant must file two copies of the petition with the Panel, and one copy with the contracting officer from whose decision he has appealed.

§ 2-60.210-2 Answer.

If the appellant files a formal petition, the contracting officer shall file two copies of a formal answer thereto with the Panel, within 30 days after the date he receives the petition, unless a longer period is allowed by the Panel, and at the same time shall send one copy to the appellant. The answer must conform to the formal and substantive requirements

for the formal petition. The Panel may, in its discretion, order the appellant to reply to an answer.

§ 2-60.210-3 Amendments to petition, answer, or reply.

The Panel may, in its discretion, upon conditions just to both parties, permit or require amendments to the petition, answer, or reply, at any time before completing the record upon or after hearing, but may not allow any amendment that substantially prejudices the other party. § 2-60.210-4 Motions.

Motions by the appellant or by the contracting officer are made by filing two copies of a notice thereof, together with any supporting papers, with the Panel, and furnishing one copy to the other party. The Panel shall consider any timely motion for extension of time to file; to cure defaults; to require that a petition, answer, or reply be made more definite and certain; to dismiss for lack of jurisdiction, to dismiss or grant summary relief because the petition, answer or reply does not raise a justiciable issue; to require a prehearing conference to reopen a hearing; to take depositions; to dismiss for failure to prosecute; or to reconsider a decision. In addition, the Panel may make its own motions, by furnishing a notice thereof to the parties. A party who receives a notice of motion has 20 days after the date he receives the notice to reply and file any answering material, unless a longer time is allowed by the Panel. Motions to reconsider a decision must be made within 30 days after the date of receipt of the decision, unless for good cause snown, the Panel permits a longer period of time. On all motions the Panel shall make orders that are appropriate and are just to the parties, and upon conditions that will promote efficiency in disposing of the appeal. The Panel may, in its discretion, permit oral hearing or argument and the presentation of briefs.

§ 2-60.210-5 Hearing.

The parties present the evidence at adversary hearings. Testimony is adduced through examination and crossexamination of witnesses. The formal rules of evidence do not apply, but the panel member may, upon objection or on his own motion, exclude evidence or disallow questions, on the grounds of irrelevance, impropriety, immateriality, or

such insufficiency in probative weight as not to be considered substantial evidence. The panel member shall preside, and shall establish the general procedures for the introduction of evidence and the calling of witnesses. The panel may, in its discretion, order the submission of trial briefs before the hearing, and may order the submission of briefs at the completion of the hearings. § 2-60.211 General rules for administrative inquiries and hearings.

Administrative inquiries and adversary hearings are conducted as informally as may be reasonably allowable and appropriate under the circumstances. Testimony is not given under oath, but is considered to be representations made in connection with claims against the United States within the meaning of sections 287 and 1001 of Title 18, United States Code. The panel member shall invite the attention of witnesses to these provisions of the law. Testimony is reported verbatim, or recorded with an appropriate device. The Panel may accept true copies, so certified by the custodian thereof, in place of original exhibits. § 2-60.212 Representation of parties.

An individual appellant may prosecute his appeal in person; a corporation, by an officer, a partnership, by a member; and any appellant may be represented by an attorney. Other persons may be authorized by the Panel to represent an appellant in a particular case. The contracting officer is represented by Agency counsel.

A dispute may be settled at any time before the decision by the contractor's filing a written notice withdrawing his appeal or by written stipulation between the contractor and the contracting officer or their counsel, settling the dispute. § 2-60.214 Decisions.

The Panel shall make its decision in writing, signed by the panel members designated by the Chairman to decide the case. Copies of the decision shall be sent at the same time to both parties. All orders and decisions of the Panel (except those required for good cause to be held confidential) are available for public inspection at the offices of the Contract Appeals Panel, Federal Aviation Agency, Washington, D.C.

3-1.5105-3

mat.

Administrative change issuance format.

3-1.5105-4 Novation agreement administrative change format.

AUTHORITY: The provisions of this Part 3–1 issued under 5 U.S.C. 301; 40 U.S.C. 486 (c).

SOURCE: The provisions of this Part 3-1 appear at 34 F.R. 5159, Mar. 13, 1969, unless otherwise noted.

§ 3-1.000 Scope of part.

This part describes the method by which the Department of Health, Education, and Welfare (referred to herein as HEW) implements and supplements the Federal Procurement Regulations (referred to herein as FPR), and contains policies and procedures which implement and supplement FPR Part 1-1.

Subpart 3-1.1-Introduction

§ 3-1.101 Scope of subpart.

This subpart establishes the HEW Procurement Regulations (herein identified as HEWPR), explains their purpose, authority under which they are issued, their relationship to the FPR System, applicability, method of issuance, exclusions, and arrangement. It, also, outlines procedures for implementing, supplementing, and deviating from the FPR and the HEWPR.

§ 3-1.102

Purpose and authority.

HEWPR are issued to establish HEW uniform policies and procedures which complement the FPR. They are prescribed by the Assistant Secretary for Administration under authority of 5 U.S.C. 301 and 40 U.S.C. 486(c), delegated by the Secretary.

§ 3-1.103 Relationship to the FPR.

(a) HEWPR implement, supplement, and may deviate from, in some instances, the FPR. Implementing material is that which expands upon or indicates the manner of compliance with related FPR material. Supplementing material is that for which there is no counterpart in the FPR. Deviating material is defined in § 1-1.009 of the FPR.

(b) Material published in the FPR which has Government-wide applicability, becomes effective throughout HEW upon the effective date cited in the particular FPR material. Such material generally will not be repeated, paraphrased, or otherwise stated in HEWPR except to the extent necessary to implement or deviate from the FPR.

(c) Procurement policies and procedures which are necessary to implement, supplement, or deviate from the FPR will be issued in the HEWPR by the Office of General Services, Office of the Assistant Secretary for Administration, when necessary to accomplish HEW-wide procurement objectives.

(d) Policies and procedures which are necessary to implement and supplement the FPR and the HEWPR will be issued by the heads of operating agencies and staff offices or their designees. § 3-1.104 Applicability.

The FPR and HEWPR apply to all HEW procurement of personal property, real property by lease, and nonpersonal services (including construction). Unless specified otherwise, these regulations apply to procurements within and outside the United States.

§ 3-1.105 Method of issuance.

All HEWPR material deemed necessary for the general public to understand basic and significant HEW procurement policies and procedures will be published in the FEDERAL REGISTER as Chapter 3 of Title 41, Code of Federal Regulations. The FEDERAL REGISTER and Title 41 of

§ 3-1.107-1 General plan.

The HEWPR conform with the FPR with respect to divisional arrangement into parts, subparts, sections, subsections, and further subdivisions as necessary. § 3-1.107-2 Numbering.

(a) Material in the HEWPR which implements or deviates from related material in the FPR is captioned and numbered to correspond with such material in the FPR, except that while the first digit of the FPR number is 1, the first digit of the HEWPR number is 3. Material in the HEWPR which supplements the FPR will be assigned numbers 50 through 89 at the parts, subparts, sections, or subsections for which there is no counterpart material in the FPR. Where material in the FPR requires no implementation or deviation, there is no corresponding number in the HEWPR. Thus, there are gaps in the HEWPR sequence of numbers where the FPR, as written, are applicable to HEW procurement.

(b) Material issued by operating agencies and staff offices of HEW to implement and supplement the HEWPR will be identified by prefixes to the digit 3 part, subpart, section, and subsection. The following are the assigned prefixes: Organization

HEW

Office of the Secretary--Office of Field Coordina

tion

Individual Regional Office_. Consumer Protection and Environmental Health

Service

Prefix (None.) OS.

OFC. (Roman No.)

CPE.

§ 3-1.107-3

Citation.

The HEWPR will be cited in the same manner as the FPR are cited. Thus, this section, in referring to divisions of the FPR System, should be cited as "Section 3-1.107-3 of Chapter 3." When the Official Code of Federal Regulations citation is used, this section should be cited as "41 CFR 3-1.107-3." Any section of the HEWPR may be identified informally, for purposes of brevity, as "HEWPR” followed by the section number, such as "HEWPR 3-1.107-3."

In the interest of establishing and maintaining uniformity to the greatest extent feasible, deviations from either the FPR or HEWPR shall be kept to a minimum and controlled as follows:

(a) The head of each operating agency and staff office or the official he has designated to act for him in authorizing a deviation from procurement regulations shall authorize a deviation from the FPR or HEWPR only after he obtains the Assistant Secreary for Administration's aproval. Deviation requests are to be submitted to the Assistant Secretary through the Director, Division of Procurement and Supply Management, OASA-OGS.

(b) When an agency or staff office determines that a deviation is needed, it shall normally request the deviation in writing as far as possible in advance of need. In an exigency, an agency or staff office can request a deviation verbally but it will confirm the request in writing as soon as circumstances permit.

(c) A deviation request shall set forth clearly and precisely:

(1) Nature of the needed deviation; (2) Identification of the FPR or HEWPR from which deviation is needed; (3) Circumstances under which the deviation would be used;

(4) Intended effect of the deviation;
(5) Time-frame; and

(6) Reasons which will contribute to complete understanding and support of the requested deviation. Copies of pertinent background papers, such as, forms, clauses, or contractor's request should accompany the deviation request.