and except where such extension is contrary to law or regulation.

(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document and must be filed in the same office in which the document in connection with which the extension is requested must be filed.

§ 4.23 Transcript of hearings.

Hearings will be recorded verbatim and transcripts thereof shall be made when requested by interested parties, costs of transcripts to be borne by the requesting parties. Fees for transcripts prepared from recordings by Office of Hearings and Appeals employees will be at rates which cover the cost of manpower, machine use and materials, plus 25 percent, adjusted to the nearest 5 cents. If the reporting is done pursuant to a contract between the reporter and the Department of the Interior Agency or office which is involved in the proceeding, or the Office of Hearings and Appeals, fees for transcripts will be at rates established by the contract.

§ 4.24 Basis of decision.

(a) Record. (1) The record of a hearing shall consist of the transcript of testimony or summary of testimony and exhibits together with all papers and requests filed in the hearing.

(2) If a hearing has been held on an appeal pursuant to instructions of an Appeals Board, this record shall be the sole basis for decision insofar as the referred issues of fact are involved except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.

(3) Where a hearing has been held in other proceedings, the record made shall be the sole basis for decision except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.

(4) In any case, no decision on appeal or after a hearing shall be based upon any record, statement, file or similar document which is not open to inspection by the parties to the appeal or hearing.

(b) Official notice. Official notice may be taken of the public records of the Department of the Interior and of

any matter of which the courts may take judicial notice.

§ 4.25 Oral argument.

The Director or an Appeals Board may, in their discretion, grant an opportunity for oral argument.

§ 4.26 Subpoena power and witness provisions generally.

(a) Compulsory attendance of witnesses. The administrative law judge, on his own motion, or on written application of a party, is authorized to issue subpoenas requiring the attendance of witnesses at hearings to be held before him or at the taking of depositions to be held before himself or other officers. Subpoenas will be issued on a form approved by the Director. A subpoena may be served by any person who is not a party and is not less than 18 years of age, and the original subpoena bearing a certificate of service shall be filed with the administrative law judge. A witness may be required to attend a deposition or hearing at a place not more than 100 miles from the place of service.

(b) Application for subpoena. Where the file has not yet been transmitted to the administrative law judge, the application for a subpoena may be filed in the office of the officer who made the decision appealed from, or in the office of the Bureau of Land Management in which the complaint was filed, in which cases such offices will forward the application to the examin

er.

(c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party shall be paid the same fees and mileage as are paid for like service in the District Courts of the United States. The witness fees and mileage shall be paid by the party at whose instance the witness appears.

(2) Any witness who attends any hearing or the taking of any deposition at the request of any party to the controversy without having been subpoenaed to do so shall be entitled to the same mileage and attendance fees, to be paid by such party, to which he would have been entitled if he had been first duly subpoenaed as a witness on behalf of such party. This

(a) Inquiries. All inquiries with respect to any matter pending before the Office of Hearings and Appeals shall be directed to the Director, the Chief Administrative Law Judge, or the Chairman of the appropriate Board.

(b) Ex parte communication—(1) Prohibition. There shall be no communications concerning the merits of a proceeding between any party to the proceeding or any person interested in the proceeding or any representative of a party or interested person and any Office personnel involved or who may reasonably be expected to become involved in the decisionmaking process on that proceeding, unless the communication, if oral, is made in the presence of all other parties or their representatives, or, if written, is furnished to all other parties. Proceedings include cases pending before the Office, rulemakings amending Part 4 of this title that might affect a pending case, requests for reconsideration or review by the Director, and any other related action pending before the Office. The terms "interested person" and "person interested in the proceeding" include any individual or other person with an interest in the agency proceeding that is greater than the interest that the public as a whole may have. This regulation does not prohibit communications concerning case status or advice concerning compliance with procedural requirements unless the area of inquiry is in fact an area of controversy in the proceeding. Any oral communication made in violation of this regulation shall be reduced to writing in a memorandum to the file by the person receiving the communication and shall be included in the record. Any written communication made in violation of this regulation shall be included in the record. In proceedings other than informal rulemakings copies of the memorandum or communication shall be provided to all parties, who shall be given an opportunity to respond in writing.

(2) Sanctions. The administrative law judge, board, or Director who has responsibility for the matter with respect to which a prohibited communication has been knowingly made may impose appropriate sanctions on the offending person or persons, which may include requiring an offending party to show cause why its claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected; disciplining offending Office personnel pursuant to the Department's standards of conduct (43 CFR Part 20); and invoking such sanctions against other offending persons as may be appropriate under the circumstances.

(c) Disqualification. An administrative law judge or Board member shall withdraw from a case if he deems himself disqualified under the recognized canons of judicial ethics. If, prior to a decision of an administrative law judge or an Appeals Board, there is filed in good faith by a party an affidavit of personal bias or disqualification with substantiating facts, and the administrative law judge or Board member concerned does not withdraw, the Board or the Director, as appropriate, shall determine the matter of disqualification.

[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985]

§ 4.28 Interlocutory appeals.

There shall be no interlocutory appeal from a ruling of an administrative law judge unless permission is first obtained from an Appeals Board and an administrative law judge has certified the interlocutory ruling or abused his discretion in refusing a request to so certify. Permission will not be granted except upon a showing that the ruling complained of involves a controlling question of law and that an immediate appeal therefrom may materially advance the final decision. An interlocutory appeal shall not operate to suspend the hearing unless otherwise ordered by the Board.

§ 4.29 Remands from courts.

Whenever any matter is remanded from any court for further proceedings, and to the extent the court's di

rective and time limitations will permit, the parties shall be allowed an opportunity to submit to the appropriate Appeals Board, a report recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and enter special orders governing the handling of matters remanded to it for further proceedings by any court.

§ 4.30 Information required by forms.

Whenever a regulation of the Office of Hearing and Appeals requires a form approved or prescribed by the Director, the Director may in that form require the submission of any information which he considers to be necessary for the effective administration of that regulation.

Subpart C-Special Rules of Practice Before the Interior Board of Contract Appeals

AUTHORITY: 5 U.S.C. 301 and the Contract Disputes Act of 1978 (Pub. L. 95-563, Nov. 1, 1978 (41 U.S.C. 601-613)).

SOURCE: 46 FR 57499, Nov. 24, 1981, unless otherwise noted.

§ 4.100 General rules and guidelines.

(a) Effective date and applicability(1) Effective date and general applicability. These rules shall be in effect on and after March 1, 1979, and except as qualified by the provisions of paragraphs (a)(2) and (3) of this section, shall apply to all appeals brought before the Interior Board of Contract Appeals.

(2) Special applicability. The rule set forth in § 4.102(a) provides for alternative applicability, depending

upon whether the appeal involved is subject to the Contract Disputes Act of 1978, Pub. L. 95-563 (41 U.S.C. 601613). The rules set forth in §§ 4.102 (c), (d), and (e), 4.113, and 4.120 shall apply exclusively to appeals which are subject to the Contract Disputes Act of 1978.

(3) When an appeal is subject to the Contract Disputes Act of 1978. An appeal shall be subject to the Contract Disputes Act of 1978 if it involves a contract entered into on or after March 1, 1979; or, at the election of the appellant, if the appeal involves a

contract entered into before March 1, 1979, and the contracting officer's decision from which the appeal is taken is dated March 1, 1979, or thereafter.

(b) Jurisdiction for considering appeals. The Interior Board of Contract Appeals (referred to herein as the "Board") shall consider and determine appeals from decisions of contracting officers relating to contracts made by (i) the Department of the Interior or (ii) any other executive agency when such agency or the Administrator of the Office of Federal Procurement Policy has duly designated the Board to decide the appeal.

(c) Location and organization of the Board. (1) The Board's address is 4015 Wilson Boulevard, Arlington, Virginia 22203. Its telephone number is (703) 235-3813.

(2) The Board consists of a Chairman, Vice Chairman, and other members all of whom are attorneys at law duly licensed by a State, Commonwealth, Territory, or the District of Columbia. In general, the appeals are assigned to a panel of at least two members who decide the cases. However, in cases of disagreement, or unusual circumstances, a panel of three members will be assigned to decide by a majority vote. Board members are designated Administrative Judges.

(d) Time extensions and computations. (1) Where possible, procedural actions should be taken in less time than the maximum time allowed. Where appropriate and justified, however, extensions of time will be granted. All requests for extensions of time shall be in writing.

(2) In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.

(e) General guidelines-(1) Place of filings. Unless the Board otherwise directs, all notices of appeal, pleadings, and other communications shall be filed with the Board at the address indicated herein. Communications to the Board shall be addressed to Interior Board of Contract Appeals, 4015

Wilson Boulevard, Arlington, Virginia 22203.

(2) Representation of parties. Whenever in these rules reference is made to contractor, appellant, contracting officer, respondent, or parties, this shall include respective counsel for the parties, as soon as appropriate notices of appearances have been filed with the Board. In those cases where an executive agency, other than the Department of the Interior, has designated the Board to adjudicate its contract appeals, the term, "Department Counsel," shall mean Government Counsel assigned to represent such agency.

(3) Interpretation of these rules. These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay.

(4) Decisions on questions of law. When an appeal is taken pursuant to a disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board will; nevertheless, consider and decide all questions of law necessary for the complete adjudication of the issues.

(f) 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, off the record, any evidence, explanation, analysis, or advice, whether written or oral, without the knowledge and consent of the adverse party, regarding any matter at issue in that appeal. This provision does not apply to consultation among Board members or to ex parte communications concerning the Board's administrative functions or procedures.

(g) 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.

[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985]

PREHEARING PROCEDURE RULES

§ 4.101 Who may appeal.

Any contractor may appeal to the Board from decisions of contracting officers of any bureau or office of the

Department of the Interior, or of any other agency with respect to which the Board exercises contract appeals jurisdiction, on disputed questions under contract provisions requiring the determination of such appeals by the head of the agency or his duly authorized representative or Board.

§ 4.102 Appeals-how taken.

(a) Notice of appeal. Notice of an appeal must be in writing (a suggested form of notice appears as Appendix I herein following § 4.128). The original, together with two copies, may be filed with the Board or the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within 90 days from the date of receipt of the contracting officer's decision, if the appeal is subject to the Contract Disputes Act of 1978; otherwise, within the time specified therefor in the contract.

(b) Contents of notice of appeal. A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract (by number), the Department's bureau or office involved in the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant (the contractor making the appeal), or by an authorized officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in § 4.107 may be filed with the notice of appeal, or the contractor may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

(c) Failure of CO to issue decision on claims of $50,000 or less. Where the contractor has submitted a claim of $50,000 or less to the contracting officer and has requested a written decision within 60 days from receipt of the request, and the contracting officer has not complied, the contractor may file a notice of appeal as provided in paragraph (a) of this section, citing the failure of the contracting officer to issue a decision. (See § 4.100(a)(2).)

(d) Failure of CO to issue decision on claims in excess of $50,000. Where the contractor has submitted a claim in excess of $50,000 to the contracting officer and the contracting officer has failed to issue a decision within a reasonable time, the contractor may file a notice of appeal as provided in paragraph (a) of this section, citing the failure to issue a decision. (See § 4.100(a)(2).)

(e) Optional stay of proceeding. Upon docketing of appeals filed pursuant to paragraphs (c) or (d) of this section, the Board may at its option, stay further proceedings pending issuance of a final decision by the contracting officer within such period of time as is determined by the Board. (See

§ 4.100(a)(2).)

§ 4.103 Forwarding and docketing of appeals.

(a) Forwarding of appeal. When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or the date of receipt, if the notice was otherwise conveyed) and within 5 days shall forward said notice of appeal to the Board by certified mail. He shall also promptly notify the Department's Office of the Solicitor, in accordance with instructions of the Solicitor, that the appeal has been received in order that a Department counsel may be appointed.

(b) Docketing of appeals. When a notice of appeal in any form has been received by the Board, it shall be docketed promptly. Notice in writing of the fact of docketing, together with a copy of these rules, shall be mailed promptly by certified mail to the appellant. Also, a copy of such notice, together with a copy of the notice of appeal if not originally filed with the contracting officer, shall be mailed promptly by certified mail to the contacting officer. Such notice shall acknowledge receipt of the appeal and advise appellant of the appeal number assigned to the appeal.

§ 4.104 Preparation, organization, transmittal, and status of appeal file. (a) Preparation and transmittal of appeal file. Following receipt of a notice of appeal, or advice that an

appeal has been docketed, the contracting officer shall promptly, and in any event within 30 days, compile and transmit to the Board the appeal file which shall consist of copies of all documents pertinent to the appeal. Within the same time period the contracting officer shall also prepare and transmit a copy of the appeal file to the Department counsel and a copy to the appellant or appellant's counsel. (However, the obligations of this subparagraph are subject to the provisions of paragraph (e) of this section.)

(b) Composition of appeal file. The appeal file shall include the following:

(1) The findings of fact and decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued;

(2) The contract, and pertinent plans, drawings, specifications, amendments, and change orders;

(3) All correspondence between the parties pertinent to the appeal; and (4) Such additional information as may be considered pertinent and material.

(c) Organization of appeal file. Documents in the appeal file may be originals, legible facsimiles, or authenticated copies thereof, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to indentify the contents of the file, and bound. Any single document consisting of three or more pages shall be numbered sequentially for convenient reference at the hearing and in the preparation of briefs.

(d) Opportunity for appellant to supplement appeal file. The appellant shall be afforded the opportunity of supplementing the appeal file with such documentation as may be deemed pertinent to the appeal. The appellant shall be obligated, however, to furnish to Department counsel a copy of any document by which the appeal file is supplemented.

(e) Burdensome documents. The Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file if a party has shown that doing so would impose an undue burden. At the time a party