Subpart 29-26.4-Novation and Change of Name Agreements § 29-26.400 Scope of subpart. This subpart prescribes the policy and procedures for execution of novation agreements and change of name agreements by a single agency and novation or change of name agreements affecting more than one agency. (See also § 1-20.710 of this title on assignment of claims in case of transfers of business or corporate mergers.) § 29-26.404-50 Processing novation and change of name agreements. (a) The agency (ies) processing a proposed novation agreement shall promptly provide notice of the proposed agreement, including lists of affected contracts which are required by § 1-26.402 (c) (2) of this title, to the agencies having contracts with the contractor or contractors concerned. Such notice shall be transmitted to the addresses listed herein as appropriate: Associate Assistant Secretary for Systems Development and Administrative Services. Manpower Administration, Office of Field Direction and Management. Manpower Administration, Office of Policy, Evaluation and Research. Manpower Administration, Office of National Programs. Bureau of International Affairs, Attention: IA. Bureau of Labor Statistics, Attention: BA. (b) All novation agreements and change of name agreements, prior to execution by the Department, shall be reviewed by the Solicitor's Office for legal sufficiency. (c) If the agency (ies) does not object to the proposed novation agreement within 30 days after receipt of notice, the initiating agency shall assume acceptance of the proposed agreement. (d) When more than one agency has outstanding contracts with the contractor or contractors, a single agreement covering all such contracts shall be executed by the agency having the largest unsettled dollar balance with the contractor or contractors. (e) A signed copy of the executed novation agreement or change of name agreement shall be forwarded to the contractor; a signed copy shall be retained in the agency executing the agreement; and, where more than one agency is involved, two conformed coples of the agreement shall be prepared for each affected agency. In addition, 29-60.217-9 29-60.218 29-60.218-1 29-60.218-2 29-60.219 29-60.220 23-60.221 29-60.222 29-60.223 Withdrawal of exhibits. Standards of conduct. Subpart 29-60.3-Transitional provisions 29-60.301 Appeals in progress. AUTHORITY: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 F.R. 3174, 64 Stat. 1263, 5 U.S.C. Appendix. SOURCE: 37 FR 14303, June 19, 1972, unless otherwise noted. § 29-60.000 Scope of part. This part establishes a permanent Department of Labor Board of Contract Appeals (referred to hereafter as the Board), delegates authority to the Board to hear and decide, pursuant to prescribed policies and procedures, appeals from formal decisions of contracting officers and other officials of the Department of Labor arising under disputes provisions of contracts awarded by the Department, and sets forth the rules of the Board. This part terminates a prior delegation (36 F.R. 5691) of such appellate and review functions to the General Services Administration Board of Contract Appeals, except with respect to cases currently pending before such Board. Subpart 29-60.1-General Policy; Es tablishment and Functions of the Board of Contract Appeals § 29-60.100 Designation and establish ment. A permanent Department of Labor Board of Contract Appeals is hereby established. The Board shall be composed of members selected and appointed as provided in § 29-60.101 and is designated as the authorized representative of the Secretary of Labor to hear and decide appeals within its jurisdiction as set forth in § 29-60.102 and to perform the 66-014-76-10 connection designated functions in therewith as provided in this part. § 29-60.101 Organization and location of the Board. (a) The Board is located in Washington, D.C. (b) The Board consists of the Chief Hearing Examiner and eight Department of Labor Hearing Examiners to be appointed by the Under Secretary subject to the approval of the Secretary to serve on the Board, each for a term of 4 years, during the time they are serving under regular full-time appointments as provided in 5 U.S.C. 5108 and qualified to preside at hearings pursuant to 5 U.S.C. 556. The Chief Hearing Examiner shall be the Chairman of the Board. The appeals are assigned to a panel of at least three members of the Board by the Chairman who shall designate one panel member as Chairman of the panel. The decision of a majority of the panel constitutes the decision of the Board. (c) In the event the Chief Hearing Examiner is temporarily unavailable to serve as Chairman of the Board he shall designate one associate member to serve for the duration of his absence. § 29-60.102 Jurisdiction for considering appeals. (a) Except as stated in paragraph (b) of this section, the Department of Labor Board of Contract Appeals (referred to herein as "the Board" shall consider and determine appeals from decisions of contracting officers and other officials of the Department of Labor arising under contracts which contain provisions requiring the determination of appeals by the head of the agency or his duly authorized representative. The Board has authority to determine appeals falling within the scope of its jurisdiction as fully and filnally as might the Secretary himself. (1) When an appeal is taken pursuant to a disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board may in its discretion hear, consider, and decide all questions of law necessary for the complete adjudication of the issue. (b) The authority of the Board does not apply to any matters arising from disputes relating to equal employment opportunity and labor standards. § 29-60.103 Powers of the Board. (a) The Board shall have all the pow ers of the Secretary of Labor necessary or appropriate to the exercise of the jurisdiction and the performance of the duties provided in paragraph (a) of § 29-60.102, including but not limited to: (1) The power to administer oaths and affirmations; (2) The power to conduct hearings, examine and cross-examine witnesses, and to call witnesses; (3) The power to rule upon offers of proof and admissibility of evidence; (4) The power to regulate the course of hearings and the conduct of the parties and their representatives therein; (5) The power to rule upon all motions; (6) The power to grant or order oral argument before the Board or its designated panel at any stage of the proceeding; (7) The power to make decisions in conformity with this part; (8) The power to hold conferences for the settlement, clarification and simplification of issues; and (9) The power and authority pursuant to 5 U.S.C. 304, to apply to the appropriate U.S. District Court for the issuance of a subpoena to compel the attendance of a witness at a Board hearing or for the purpose of obtaining the formal testimony of such witness or to compel the production of other evidentiary material necessary for a proper adjudication of the case. Appeals referred to the Board are handled in accordance with the rules of the Board (see Subpart 29-60.2). § 29-60.104-2 Administration and interpretation of rules. Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay. § 29-60.104-3 Preliminary procedures. Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. § 29-60.104-4 Delegation of authority. The Chairman of the Board may authorize and direct any individual member of the Board to hold prehearing conferences and/or hearings and receive evidence and arguments in its stead, and to certify the record of the proceedings to the designated panel. The Board member acting pursuant to such authority may exercise any of the powers vested in the Board which are necessary to the proper performance of the functions assigned to him by the Chairman of the Board. § 29-60.104-5 Time, computation, and extensions. (a) All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. (b) Except as otherwise provided by law, in computing any period of time prescribed by these rules or by any order of the Board, 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. (c) Except for the period prescribed for filing notices of appeal and requests for reconsideration, an extension of time may be granted by the Board upon written motion by the requesting party stating good cause for such an extension. § 29-60.104-6 Representation parties. of decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract. § 29-60.202 Contents of notices of appeal. A notice of appeal, which may be in the form of a letter, should indicate that an appeal is thereby intended, should identify the decision and the date thereof, from which the appeal is taken, and should furnish the number of the contract in dispute. The appeal should describe the nature of the dispute involved in the decision and the relief sought, the contract provisions involved, and any other additional information or comments relating to the dispute which are considered to be important. The notice of appeal should be signed personally by the appellant (the prime contractor making the appeal) or by an officer of the appellant corporation, or member of the appellant firm, or by the contractor's duly authorized representative or attorney. § 29-60.203 Forwarding of appeals. When a notice of appeal is received by the contracting officer, he shall transmit, directly to the Board, the original of the notice of appeal, together with the original of the envelope in which the notice of appeal was received with the date of receipt stamped thereon, and any receipt from the appellant showing the date of receipt of the decision of the contracting officer, or shall furnish information as to the date when his decision was received by the appellant. A copy of the same material shall be simultaneously furnished to the Solicitor of Labor. When the Board receives the original or copy of a notice of appeal from a source other than the contracting officer, the contracting officer shall be advised promptly, given a copy of the notice, and shall be requested to follow the same procedure as if he had received the notice directly from the appellant. § 29-60.204 Acknowledgment of appeal and distribution. After the Board receives a notice of appeal, it will promptly acknowledge receipt thereof to the appellant, who shall be furnished a copy of these rules. The Board simultaneously will transmit copies of appropriate documents to the contracting officer, and the Solicitor of Labor. § 29-60.205-1 sion. Following receipt of the notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly, and in any event within 30 days, compile and transmit to the Board an appeal file consisting of copies of all documents pertinent to the appeal, together with an index listing the documents. The contracting officer shall simultaneously transmit two copies of the appeal file to the Solicitor of Labor and shall retain one copy in his office. There should be included: Preparation and submis (a) The decision from which the appeal is taken and any findings of fact made in connection therewith, and the letter or letters or other documents of claim in response to which the decision was issued; (b) The contract and pertinent plans, specifications, amendments, and change orders; (c) Correspondence between the parties and other data pertinent to the appeal; (d) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and (e) Such additional information as may be considered material. § 29-60.205-2 Notification to appellant. Upon receipt of the foregoing appeal file, the Board shall notify the appellant, provide him with a listing of its contents, and shall afford him an opportunity to examine the complete compilation at the office of the contracting officer, or at the office of the Board, for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. The Board also will promptly advise the parties regarding any later documentation of the appeal file. § 29-60.206 Pleadings. § 29-60.206-1 Complaint. Within 30 days after receipt of notice of docketing of the appeal by the Board, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each claim, alleging the basis with appropriate reference to contract provisions for each claim, and the dollar amount claimed. Upon receipt thereof, the Board shall serve a copy upon the Solicitor of Labor. Should a complaint not be mailed or otherwise filed within 30 days, appellant's claim and notice of appeal shall be deemed to set forth its complaint and the Solicitor of Labor shall be so notified. § 29-60.206-2 Answer. Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, the Solicitor of Labor shall prepare and file with the Board an original and two copies of an answer thereto, setting forth simple, concise, and direct statements of its defenses to each claim asserted by appellant. This pleading shall set forth any affirmative defenses or counterclaims, as appropriate. Upon receipt thereof, the Board shall serve a copy upon appellant. § 29-60.206-3 ings. Amendment of plead The Board may, in its discretion, and within the proper scope of the appeal, permit or require either party to amend its pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings or documentation described in § 29-60.206, are tried by express or implied consent of the parties, or by permission of the Board they shall be treated in all respects as if they had been raised therein. In such instances, motions to amend the pleadings to conform to the proof may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings or the appeal file (which shall be deemed part of the pleadings for this purpose), it may be admitted within the proper scope of the appeal: Provided, however, That the objecting party may be granted a continuance, if necessary, to enable him to meet such evidence. (c) To dismiss the appeal for failure of the contractor to prosecute; (d) To grant the appeal for failure of the Government to prosecute its defense; or (e) Such other motions as may be appropriate. § 29-60.207-2 For lack of jurisdiction. Any motion addressed to the jurisdiction of the Board, and any reply thereto, shall be promptly filed. Oral argument on the motion shall be afforded on application of either party, unless the Board determines that its decision on the motion will be deferred pending hearing on both the merits and the motion. The Board shall have the right at any time, and on its own motion, to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon. § 29-60.208 Hearing election. Upon receipt of the Government's answer, appellant promptly shall advise the Board whether it desires a hearing, as prescribed in § 29-60.217, or whether in the alternative it elects to submit its case on the record without a hearing, as prescribed in § 29-60.211. In appropriate cases, the appellant also shall elect whether it desires the optional accelerated procedure prescribed in § 2960.212. The Government also shall have the right to request a hearing, and the Board may direct that a hearing be held upon its own motion. § 29-60.209 Prehearing briefs. Based on an examination of the documentation described in the pleadings, and a determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to § 29-60.208. In the absence of a Board requirement therefor, either party may, in its discretion and upon appropriate and sufficient notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall simultaneously be furnished to the other party as arranged. |