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As used in the contract appeal regulations in this part:
(a) "Assistant Director" means the Assistant Director for Management of the Office of Economic Opportunity.
(b) "Board" means the Board of Contract Appeals established pursuant to the regulations in this part and included individual members of the Board exercising the powers of the full Board in connection with prehearing conferences and hearings at which they have been designated to preside pursuant to § 22-60.210 or § 22-60.211.
(c) "Contracting Officer" means the contracting officer or administrative or successor contracting officer designated under an Office of Economic Opportunity contract from whose decision an appeal has been taken under the "Disputes" clause of the contract.
(d) "General Counsel" means the General Counsel of the Office of Economic Opportunity or any attorney in the General Counsel's Office who has been designated to represent the Government as respondent in connection with an appeal under the regulations in this part.
(e) "Parties," "Appellant," and "Government" include duly authorized attorneys and other representatives appearing for the parties, the appellant, or the Government in connection with an appeal under the regulations in this part. Subpart 22-60.1-Board of Contract Appeals Establishment and Functions
§ 22-60.101 Scope of subpart.
This subpart describes the establishment, membership, and functions of the Board of Contract Appeals of the Office of Economic Opportunity.
§ 22-60.102 Determination of appeals.
Determination of appeals from decisions of contracting officer shall be made by the Assistant Director after receipt of findings and recommendations by a Board, or by the Board itself pursuant to delegation of the Assistant Director in accordance with § 22-60.206(a).
§ 22-60.103 Establishment and membership of the Board.
(a) Members of the Board shall be designated by the Assistant Director and shall consist of a chairman and two associate members. At least one of the mem
bers shall be either an attorney or a qualified hearing examiner. No person shall be designated as a member of the Board if he has participated in or has any interest, direct or indirect, in the awarding or administering of the contract in dispute, if he is engaged at the time in the administration of a related or similar contract, or if he is a member of the General Counsel's Office of the Office of Economic Opportunity. When he deems appropriate, the Assistant Director may designate a person from the academic community or from industry to serve as a member of the Board.
(b) In all cases under the regulations in this part requiring action by the full Board, majority vote shall govern. A quorum of the full Board for purposes of doing business shall consist of two members.
§ 22-60.104 Functions of the Board.
(a) The Board shall perform all acts and make all orders and rulings necessary and appropriate in connection with the procedures specified in Subpart 2260.2 of this part and shall perform such other duties as may be delegated to it by the Assistant Director.
(b) The Board may in its discretion hear, consider, and make findings and recommendations on all questions which it deems appropriate for the complete adjudication of the issues involved in the appeal, including questions of law. Subpart 22-60.2-Appeal Procedures § 22-60.201 Scope of subpart.
This subpart sets forth the procedures governing the filing and disposition of an appeal.
§ 22-60.202 Notice to contractor of appeals procedures. Whenever a contractor protests a decision of the Contracting Officer made pursuant to a contract "Dispute" clause or otherwise advises the Contracting Officer of an intention to contest or appeal such a decision, the Contracting Officer shall promptly make available to the contractor (hereafter called the "appellant") a copy of the contract appeals regulations in this part.
§ 22-60.203 Filing of notice of appeal. Notice of an appeal must be in writing and signed personally by the appellant, by an officer of the appellant corporation, or member of the appellant firm, or
by the appellant's duly authorized representative or attorney. The notice shall be addressed to the Contracting Officer or the Assistant Director and shall be mailed or otherwise filed with the Contracting Officer whose decision is being disputed. The notice of appeal must be mailed or otherwise filed within the time specified in the contract.
§ 22-60.204 Form and content of notice of appeal.
The notice of appeal should indicate that an appeal is thereby intended and should include the following information:
(a) Identification of the contract involved;
(b) The specific decision of the Contracting Officer from which the appeal is taken, including the date and form of such decision;
(c) The specific portion or portions of the findings of fact or decision from which the appeal is being taken, and the reasons why such findings or decisions are deemed erroneous;
(d) The relief sought by the appellant, and
(e) Whether the appellant wishes a hearing or is willing to have the appeal decided on the basis of written submissions.
Upon receipt of the notice of appeal, the Contracting Officer shall promptly acknowledge receipt thereof in writing to the appellant, enclosing a copy of the contract appeal regulations in this part, and shall transmit a copy of such acknowledgment to the Assistant Director together with the appeal file consisting of the documents specified in § 22-60.206 and a separate listing by title and date of such documents. A copy of the acknowledgment shall be transmitted simultaneously to the General Counsel. The Contracting Officer may retain a duplicate copy of the appeal file. In any case where the notice of appeal does not specify whether a hearing is desired, the letter of acknowledgment shall specifically call the appellant's attention to the provisions of §§ 22-60.207 and 22-60.208. § 22-60.206 Designation of Board, delegation of final decision power; appeal file.
(a) After the Assistant Director has received notification of the appeal, he
shall designate the Board in accordance with the provisions of § 22-60.103 and shall transmit the appeal file to the Board Chairman. Simultaneously the Assistant Director may also delegate to the Board the power of final decision in the matter being appealed. The Board Chairman shall send a copy of the notice of designation, including any delegation of final decision power and the list of documents in the appeal file, to the appellant and to the General Counsel.
(b) The file shall consist of the original, whenever possible, or copies of all documents pertinent to the appeal, inIcluding the following:
(1) Notice of appeal.
(2) The findings of fact or decision of the Contracting Officer from which the appeal is taken.
(3) The invitation for bids or proposals, the contract, pertinent plans and specifications amendments, and change orders.
(4) All correspondence between the parties relating to or pertinent to the dispute.
(5) Transcripts of any testimony taken in connection with the dispute prior to the filing of the appeal, and affidavits or statments of any witnesses which were considered by the Contracting Officer in reaching decision being appealed.
(6) Any additional data that the Contracting Officer may consider pertinent.
(c) Upon receipt of the appeal file, the Board Chairman shall provide both the appellant and the General Counsel with a listing of the appeal file contents and shall notify them where the file may be examined. Each party may furnish or suggest additional documentation deemed pertinent to the appeal. The appeal file shall be available for examination by the parties or their counsel or representatives at the office of the Board Chairman, or at the office of the Contracting Officer.
§ 22-60.207 Optional procedure for appeals.
In order to eliminate the costs of a hearing to the contractor and to the Government on appeals involving relatively small amounts, and to expedite the decisions on such appeals, appeals may be considered without a hearing in accordance with the provisions of § 22-60.208, unless a hearing has been requested by either party within 20 days after receipt of the Contracting Officer's letter of
acknowledgment of the notice of appeal or unless the Board orders a hearing. § 22-60.208 Submission without a hearing.
Where neither party desires a hearing, and the Board does not order one, the Board's findings and recommendations will be based upon the appeal file and such written submissions (including briefs) as the parties may submit on their own initiative or at the request of the Board. In all such cases the Board shall determine the time schedule for written submissions.
§ 22-60.209 Settlement; withdrawal of appeal.
A dispute may be settled at any time before decision by written stipulation between the appellant and the Contracting Officer, or their counsel or representatives, subject to the approval of the Assistant Director (or the Board in cases where final decision has been delegated to the "Board"). If only part of the dispute is settled, the appeal shall continue as to any issues remaining in dispute. At any time prior to decision the appellant may withdraw the appeal with prejudice, by written notice to the Board. § 22-60.210 Pre-hearing conference.
(a) The Board, upon the request of either party, or in its own discretion, may call the parties to a prehearing conference to consider the following:
(1) Simplification or clarification of the issues.
(2) Possibility of obtaining stipulations, admissions of fact, and agreement respecting the introduction of documents.
(3) Limitation of the number of expert witnesses.
(4) Possibility of agreement disposing of all or any of the issues in dispute. (5) Such other matters as may aid in the disposition of the appeal.
(b) A member of the Board may be designated to conduct the prehearing conference. The results of the conference including any stipulations by the parties, shall be reduced to writing by the presiding member and shall be made part of the record.
20 days notice in writing of the time and place of the hearing. Hearings will normally be held in Washington, D.C., unless the Board is satisfied that fairness to one or both of the parties requires a different hearing place. The Board may designate one of its members to conduct the hearing and to take all actions and make all rulings in connection with the conduct of the hearing which the full Board could make pursuant to the regulations in this part. In all such cases the designated member shall be an attorney or a qualified hearing examiner. § 22-60.211-2
An appellant may appear before the Board in person, or may be represented by counsel or by any other duly authorized representative.
§ 22-60.211-3 Absence of parties.
The unexcused absence of a party or his authorized representative at the time and place set for the hearing will not be the occasion for delay of the hearing. In such event, the hearing will proceed and the case will be regarded as submitted on the record by the absent party, or the Board may, in its discretion and with the consent of the present party, cancel the hearing and treat the appeal as submitted on the written record.
§ 22-60.211-4 Nature of hearings; evidence.
Hearings will be informal and will seek to provide the Board with the pertinent facts and positions of the parties. The Board shall not be bound by formal rules of evidence. The parties shall be permitted reasonable latitude to present such relevant and trustworthy evidence and such arguments as they deem appropriate. However, the Board, in its discretion, may limit the extent and manner of presentation and may exclude repetitious material.
§ 22-60.211-5 Examination of wit
Witnesses may be excused from testifying under oath, in the discretion of the Board. All witnesses may be examined or cross-examined by the members of the Board, the parties, or their representatives.
§ 22-60.211-6 Copies of documents.
Accurate copies of documents may be accepted in evidence if submission of original documents is not practicable.
§ 22-60.211-7 Posthearing briefs.
Posthearing briefs may be submitted upon such terms as may be ordered by the Board at the conclusion of the hearing. Unless otherwise ordered by the Board, the briefs of both parties shall be served and filed within 30 days after the hearing transcript is received. § 22-60.211-8 Transcript of proceedings.
Hearings shall be reported verbatim unless the Board orders otherwise. Copies of transcripts of proceedings can be obtained by appellants by ordering same from the public reporter and paying the cost thereof.
§ 22-60.211-9 Withdrawal of exhibits. After a decision has become final, upon request and after notice to the other party, the Board may in its discretion permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of certified 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. § 22-60.212 Submission of additional information at Board's request.
The Board may request either party at any stage of an appeal proceeding to furnish any information which the Board deems necessary or desirable in connection with its consideration of the appeal. Submission thereof shall be made within a reasonable time limit to be specified by the Board.
Communications between parties and the Board; evidence of service.
(a) Copies of all briefs, pleadings, notices and other communications between a party and the Board shall be simultaneously served upon the other party, except that in the case of lengthy written material placed in the appeal file pursuant to § 22-60.206 or § 22-60.212, it shall be sufficient to serve upon the other party a description of the material in question and the date of its transmission for the file. All written communications by a party to the Board shall contain or be accompanied by evidence of simultaneous service upon the other party by means of personal delivery or by mail.
(b) Except as provided in § 22-60.2113, all communications between one party to a pending appeal and members of the
Board which relate to the merits of the appeal shall be made in the presence of the other party, if oral, or shall be served upon the other party in accordance with paragraph (a) of this section, if written. § 22–60.214 Findings, recommendations, and decision.
(a) In cases where the Board has not been delegated the power of final decision, it shall submit its written findings and recommendations to the Assistant Director. The Assistant Director may accept, modify or reject the Board's findings and recommendations, and in his discretion he may direct that copies thereof be served upon the parties and that they be given such opportunity as he may specify to comment orally or in writing prior to making his decision. The decision of the Assistant Director in such
cases shall be final and conclusive within the meaning of the Disputes clause of the contract.
(b) In cases where pursuant to § 2260.206(a) the Assistant Director has delegated to the Board the power of final decision, the Board's findings and decision shall be final and conclusive within the meaning of the "Disputes," clause of the contract.
(c) Every final decision pursuant to paragraphs (a) and (b) of this section and all findings and recommendations of the Board pursuant to paragraph (a) of this section shall be based upon substantial evidence of record.
(d) A copy of each decision shall be furnished to both parties to the appeal and shall be available for public inspection at the office of the Contracting Officer.