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propounded to the witness by forwarding them to the officer designated to take the deposition and simultaneously forwarding a copy to the other party.
(e) Each deposition shall show the docket number and caption of the proceedings, the place and date of taking, the name of the witness, and the names of all persons present. The person taking the deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness, and shall enclose the original deposition and exhibits in a sealed packed with postage and other transportation prepaid and forward same to the Board.
(f) A deposition taken under the provisions of this section may be offered by either party to the appeal. Depositions will not be considered as evidence until they have been offered and received as such. All objections made at the time of the taking of the deposition will be passed on at the hearing by the Board which may exclude any part determined to be irrelevant, immaterial, or otherwise not admissible as evidence in the proceedings. The entire deposition must be offered unless otherwise stipulated by the parties or directed by the Board. § 18–60.114 Stipulations.
The parties may stipulate in writing to any facts that are relevant and material to the issues involved, and to those documents or facts which may be received in evidence without formal proof. $ 18–60.115 Prehearing conference.
(a) The Board, upon its own initiative or upon application of one of the parties, may direct the parties or their attorneys to appear before the Board or a member designated by the Chairman at a specified time and place for a conference to consider:
(1) Simplification of the issues;
(2) The possibility of obtaining stipulations as to admissions of fact and introduction of documents which will avoid unnecessary proof;
(3) The limitation of the number of expert witnesses, if a hearing is to be held; and
(4) Such other matters as may aid in the disposition of an appeal.
(b) The results of the conference shall be reduced to writing by the Board or the
member designated by the Chairman and made part of the record. $ 18–60.116 Settlement.
A dispute may be settled at any time by the contractor filing written notice withdrawing his appeal or by written stipulation between the contractor and the Government counsel approved by the Board settling either the entire dispute or any part thereof. If only part of the dispute is settled, the appeal shall continue as to any issues remaining in dispute. § 18–60.117 Filing of papers.
The parties shall file with the Board an original and two copies of all papers, subsequent to the petition and answer. Upon receipt thereof, the Board shall forward a copy to the opposing party. § 18–60.118 Hearing.
(a) The contractor may submit the case on the record or request a hearing. The Board shall, at the request of either party within 15 days after the answer is filed, grant a hearing. The parties shall be given at least 15 days' notice of the time and place of hearing.
(b) Hearings will be held at NASA Headquarters, Washington, D.C., unless otherwise ordered by the Board.
(c) Hearings shall be as informal as may be reasonably allowable and appropriate under all the circumstances. Both parties may offer oral and written evidence, subject to the exclusion by the Chairman of any irrelevant, immaterial, or repetitious evidence. The general procedures as to the introduction of evidence and the calling of witnesses shall be in the discretion of the Chairman.
(d) Testimony shall be under oath or affirmation, unless the facts are stipulated or the Chairman shall otherwise order. Attention of witnesses shall be invited to the provisions of 18 U.S.C. 1621 relating to false testimony under oath. If the testimony of a witness is not given under oath the Board shall invite the attention of the witness to the provisions of 18 U.S.C. 287,1001; section 18 of the Contract Settlement Act of 1944 (41 U.S.C. 119), 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.
(e) The Board shall make provision for a verbatim transcript of the hearing.
(f) After a decision has become final, the Board may, upon request and after notice to the other party, 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. § 18–60.119 Representation of the con
tractor. 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 by an attorney at law duly licensed in any State, Commonwealth, Territory, or in the District of Columbia. In special cases, the Board may authorize contractors to be represented by persons other than those mentioned. § 18–60.120 Decisions.
Decisions of the Board shall be made in writing and reflect the opinion of a majority of the members. Copies of the decision shall be forwarded simultaneously to both parties. All final orders and decisions (except those required for good cause to be held confidential) shall be available for public inspection at the offices of the Board, NASA Headquarters, Washington, D.C. § 18–60.121 Reconsideration.
A request for reconsideration by the Board may be filed within 30 days after the date of the decision. Such request shall set forth specifically the ground or grounds relied upon to sustain the request. § 18–60.122 Pending appeals.
Except as directed by the Board with the contractor's consent, procedure set forth herein shall not apply to any contract appeal filed with the NASA prior to the effective date of this part. § 18–60.190 Suggested form of Notice
of Appeal. Board of Contract Appeals, National Aeronautics and Space
Administration, 1520 H Street NW., Washington 25, D.C.
Date Appeal of
(Name of Contractor)
PROCEDURE Sec. 18-61.100 Scope. 18-61.101 Authority. 18-61.102 General policy. 18-61.103 Standards for deciding cases. 18-61.104 Limitations upon deciding cases. 18–61.105 Procedures for filing requests. 18-61.106 Disposition of cases. 18-61.107 Records and reports. 18-61.108 Interdepartmental coordination.
AUTHORITY: $$ 18-61.100 to 18-61.108 issued under 42 U.S.C. 2473(b) (1).
SOURCE: $$ 18-61.100 to 18-61.108 appear at 24 F.R. 7639, Sept. 23, 1959. § 18–61.100 Scope.
This part establishes standards and procedures for the disposition of requests for extraordinary contractual adjustments by contractors of the National Aeronautics and Space Administration (hereinafter referred to as “NASA” or the “Administration”). It does not extend to advance payments or the socalled “residual powers" under the Act of August 28, 1958 (50 U.S.C. 1431-35) (hereinafter referred to as "the Act") and Executive Order No. 10789, November 14, 1958 (23 F.R. 8897) (hereinafter referred to as “the Executive Order”). § 18–61.101 Authority.
(a) The Act empowers the President to authorize departments and agencies exercising functions in connection with ühe national defense to enter into contracts or into amendments or modifications of contracts and to make advance
payments, without regard to other pro
other cases where the Board determines visions of law relating to the making,
that the circumstances warrant action. performance, amendment, or modifica
(b) Amendments without consideration of contracts, whenever he deems
tion. (1) Where an actual or threatened that such action would facilitate the
loss under a Government contract, hownational defense.
ever caused, will impair the productive (b) The Executive Order authorizes the Administrator of NASA (hereinafter
ability of a contractor whose continued referred to as “the Administrator”),
operation as a source of supply is found under regulations prescribed by him, to
to be essential to the national defense, exercise the authority conferred by the
the contract may be adjusted but only Act.
to the extent necessary to avoid such (C) NASA General Management In
impairment to the contractor's produc
tive ability. (See $ 18–61.105(b) and (c) struction No. 2-4-4, September 23, 1959,
for form of request.) (14 CFR Part 1209) establishes the Contract Adjustment Board (hereinafter
(2) Where a contractor suffers a loss referred to as “the Board”) to dispose of (not merely a diminution of anticipated requests for extraordinary contractual profits) on a Government contract as a adjustments by NASA contractors.
result of Government action, the char
acter of the Government action will gen$ 18–61.102 General policy.
erally determine whether any adThe authority conferred by the Act justment in the contract will be made shall be utilized primarily as an aid to and its extent. Where the Government procurement but shall not be utilized so action is directed primarily at the conas to encourage carelessness and laxity tractor and is taken by the Government on the part of contractors nor be relied in its capacity as the other contracting upon by NASA where other adequate party, the contract may be adjusted if legal authority exists. The actions au- fairness so requires; thus, where such thorized under the Act shall be processed Government action, although not creatas expeditiously as practicable but with ing any liability on its part, increases the care, restraint, and sound judgment the cost of performance, considerations appropriate to the exercise of such of fairness may make appropriate some extraordinary authority.
adjustment in the contract. (See § 18
61.105 (b) and (d) for form of request.) $ 18–61.103 Standards for deciding
(c) Mistakes. A contract may be
amended or modified to correct or miti(a) General. The mere fact that gate the effect of a mistake, including losses occur under a Government con- the following examples: tract is not, by itself, a sufficient basis (1) A mistake or ambiguity which confor the exercise of the authority con- sists of the failure to express or express ferred by the Act. Whether, in a par- clearly in a written contract the agreeticular case, appropriate action such as ment as both parties understood it; amendment without consideration, cor
(2) A mistake on the part of the conrection of a mistake or ambiguity in a
tractor which is so obvious that it was contract, or formalization of an informal
or should have been apparent to the commitment, will facilitate the national
contracting officer; and defense is a matter of sound judgment to be made on the basis of all of the facts
(3) A mutual mistake as to a material of such case. Although it is obviously
fact. impossible to predict or enumerate all Amending contracts to correct mistakes types of cases with respect to which with the least possible delay normally action may be appropriate, examples of will facilitate the national defense by cases or types of cases where action may expediting the procurement program and be proper are set forth in paragraphs by giving contractors proper assurance (b), (c), and (d) of this section. Even that such mistakes will be corrected exif all of the factors contained in any of peditiously and fairly. (See § 18–61.105 the examples are present, other factors (b) and (e) for form of request.) or consideration in a particular case may (d) Informal commitments. Informal result in a denial of the request. These
commitments may be formalized under examples are not intended to exclude certain circumstances to permit pay
ment to persons who have taken action
$ 18–61.105 Procedures for filing rewithout a formal contract; for example,
quests. where any person, pursuant to written or oral instructions from an official of
(a) Filing requests. Any contractor NASA and relying in good faith upon
seeking an adjustment under the stand
ards set forth may file a request in duthe apparent authority of the official to issue such instructions, has arranged
plicate with the cognizant contracting to furnish or has furnished property or
officer or his duly authorized representaservices to NASA or to a Government
tive. If such filing is impracticable, recontractor or subcontractor without for
quests will be deemed to be properly mal contractual coverage for such prop
filed if filed with the Board or the erty or services. Formalization of com
Administrator. mitments under such circumstances nor- (b) Form of requests in general. A mally will facilitate the national defense request shall normally consist of a stateby assuring such persons that they will ment and exhibits covering all of the be treated fairly and paid expeditiously. contractor's allegations and evidence. (See § 18–61.105 (b) and (f) for form (1) Statements. A statement, dated of request.)
and signed by the contractor, should § 18–61.104 Limitations upon deciding
consist of the following: cases.
(i) A chronological narrative of the
essential facts, showing in detail the (a) The Act is not authority for:
chain of events leading up to the request; (1) The use of the cost-plus-a-per
(ii) The contractor's conclusions centage-of-cost system of contracting;
based on such facts, showing in terms of (2) Any contract in violation of exist- the standards set forth in § 18–61.103 ing law relating to limitation of profit and the limitations set forth in or fees;
§ 18–61.104, why the contractor considers (3) The negotiation or purchases of itself entitled to the adjustment reor contracts for property or services re- quested; and quired by law to be procured by formal (iii) The precise adjustment readvertising and competitive bidding; quested, showing how it was formulated
(4) The waiver of any bid, payment, or computed and the consequences of performance or other bond required by granting or denying the request, includlaw;
ing whether any proceeds from the re(5) The amendment of a contract ne
quest, if granted, will be subject to any gotiated under 10 U.S.C. 2304(a) (15) to
assignment or other transfer, and to
whom. increase the contract price to an amount higher than the lowest rejected bid of (2) Exhibits. Exhibits, cross-referany responsible bidder; or
enced to the statement, should consist (6) The formalization or an informal
of the following, if such matters are not commitment, unless it it found that at
fully set forth in the statement: the time the commitment was made it
(i) The best evidence available to the was impracticable to use normal pro
contractor in support of any facts alcurement procedures.
leged by the contractor, including con(b) No contract shall be entered into,
temporaneous memoranda, correspondamended or modified:
ence, affidavits, and any other material (1) Unless a finding is made that the tending to establish matters of fact; action will facilitate the national defense;
(ii) If written contracts are involved,
complete copies of or a brief description (2) Unless other legal authority in the
of the contracts, indicating the dates of Administration is deemed to be lacking
execution and amendments thereto, the or inadequate;
items being procured, the price or prices, (3) Unless the request therefor has the delivery schedule and revisions therebeen filed before all obligations have of, and such other special contractual been discharged and final payment provisions as may be relevant to the made; and
request; (4) Except within the limits of the (iii) A history of performance indiamounts appropriated and the statutory cating when work under the contracts contract authorization.
or commitments was begun, the progress
made to the present, an exact statement of the contractor's remaining obligations, and the contractor's expectations regarding completion thereof;
(iv) A statement of payments received, payments due, and payments yet to be received or to become due, including advance and progress payments, and amounts withheld by the Government, and information as to other obligations of the Government, if any, which are yet to be performed under the contract;
(v) A statement giving a detailed analysis of the monetary elements of the request, including precisely how the actual or estimated dollar amount of the request was arrived at, the effect of approval or denial on the contractor's profits before Federal income taxes, and whether the costs for which reimbursement is requested have been included as a part of its gross costs in statutory renegotiation proceedings, together with the contractor's renegotiation status for the relevant years;
(vi) If a written contract is involved, a statement of the contractor's understanding of why the subject matter of the request cannot now and could not at the time if arose be disposed of under the terms of the contract itself;
(vii) Relevant financial statements, cost analyses, or other such data, preferably certified by a certified public accountant, including such additional financial data as is necessary to explain fully and to support the monetary elements of the request for adjustment;
(viii) A list of persons (in the employ of the Government, in the employ of the contractor, or otherwise connected with the contractwho have some factual knowledge of the subject matter, including where possible the name, office or title, address and telephone number of each such person;
(ix) A statement and evidence of steps taken to mitigate loss and reduce claims to a minimum; and
(x) Such other statements or evidence as may be requested.
(1) A statement and evidence of the contractor's original breakdown of estimated costs, including contingency allowances and profit;
(2) A statement and evidence of the contractor's present estimate of total costs under the contracts involved if enabled to complete, broken down between costs accrued to date of request, and runout costs, and as between costs for which the contractor has made payment and those for which it is indebted at the time of the request;
(3) A statement and evidence of the contractor's estimate of the final price of the contracts involved giving effect to all escalation, changes, extras and the like, known or contemplated by the contractor;
(4) A statement of any claims known or contemplated by the contractor against the Government involving the contracts in question, other than those stated in response to § 18–61.105(c)(3);
(5) An estimate of the total profit or loss under the contracts involved if enabled to complete at the final contract price (see $ 18–61.105(c)(3)) broken down between profit or loss to date, and run-out profit or loss;
(6) An estimate of the total profits from other Government business, and all other sources, during the period from the date of the first contract involved to the estimated date of completion of all the contracts involved;
(7) A statement of the amount of any tax refunds and an estimate of those anticipated during or for the period from the date of the first contract involved through the estimated completion date of all the contracts involved;
(8) A statement in detail as to efforts the contractor has made to obtain funds from commercial sources to enable it to complete performance of the contracts involved;
(9) A statement of the minimum amount necessary as an amendment without consideration to enable the contractor complete performance of the contracts involved, and the detailed basis for that amount;
(10) An estimate of the time required to complete each contract if the request is granted;
(11) A statement of the factors which have caused the loss under the contracts involved;
(c) Requests under $ 18–61.103(b) (1). In addition to the matters of fact enumerated in § 18–61.105(b), where a request involves possible amendment withput consideration, and “essentiality” is a factor, the contractor may be asked to furnish: