Subpart 5-60.1-General Policy

SOURCE: The provisions of this Subpart 5-60.1 appear at 28 F.R. 1769, Feb. 26, 1963, unless otherwise noted.

§ 5-60.101 Jurisdiction for considering appeals.

(a) Except as stated in paragraph (b) of this section, the General Services Administration Board of Contract Appeals (referred to in this Part 5-60 as "the Board") shall consider and determine appeals from decisions of contracting officers and other officials of GSA arising under contracts which contain provisions requiring the determination of appeals by the head of an agency or his duly authorized representative or board, and as otherwise authorized by the Administrator. The Board has authority to determine appeals falling within the scope of its jurisdiction as fully and finally as might the Administrator himself.

(b) The Administrator reserves the right to direct that the authority of the Board shall not be exercised where he may desire or be required to render a decision on a matter in dispute. In such instances, the Administrator may request the Board to submit findings and recommendations.

§ 5-60.102 Organization and location of the Board.

(a) The Board is located in Washington, D.C., and is a part of the staff of the Administrator.

(b) The Board consists of a Chairman and four to six other members, in addition to clerical personnel. At least three members of the Board must be trained in the law. In general, the appeals are assigned to a panel of at least three members of the Board. The decision of a majority of the panel constitutes the decision of the Board. Each panel shall have one member who is a graduate of an accredited law school or has equiva

lent legal training and experience. The Chairman is the administrative head of the Board but otherwise serves on an equal status with other members.

§ 5-60.103 Receipt and reference of appeals.

When a notice of appeal in any form is received in GSA, it shall be endorsed or stamped to show the date of receipt and immediately be forwarded to the Administrator. The Administrator will forward to the Board appeals submitted under the terms of the contract and such other appeals as he determines should be submitted to the Board for decision or recommendation.

§ 5-60.104 Board of Contract Appeals procedure.

A notice of appeal must be in writing, should be addressed to the Administrator of General Services, and mailed or otherwise furnished to the contracting officer. However, where the notice of appeal is addressed to the contracting officer from whose decision the appeal is taken, or to the head of the constituent General Services Administration organization, upon referral the Board will proceed as though the appeal had been made to the Administrator. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract, or as allowed in applicable provisions of directives or law. When a notice of appeal is received the recipient shall endorse thereon the date of receipt, and, if mailed, the date of mailing. The envelope in which the notice of appeal was received (whether by mail or by hand delivery) shall be preserved and attached to the notice.

e.g., Public Buildings Service, Federal Supply Service, etc.

(3) The decision from which the appeal is taken, including any findings of fact made in connection therewith.

(4) The date of the decision. (5) The contractual provisions concerned in the dispute.

(6) The nature of the dispute, and the relief sought by the appellant.

(b) The notice of appeal shall be signed by the appellant personally, if an individual, or if not, by an authorized officer or duly authorized representative of the appellant organization. A supporting brief may be submitted with the notice of appeal, or, if the appellant prefers, may be filed with the Board within 15 days after the mailing or filing of the notice.

The contracting officer will submit to the Board through the Central Office service or staff office concerned and through the Office of the General Counsel the following documents and information (herein referred to as the "appeal file") as promptly as possible after receipt of the Board's request therefor, and in any event so as to reach the Board within 30 days after such receipt.

§ 5-60.204-2 Documents and index.

(a) The appeal file should include the originals or copies of all documents pertinent to the appeal, together with an index listing the documents. There should be included:

(1) The decision from which the appeal is taken, including any findings of fact made in connection therewith.

(2) The invitation for bids, the contract, pertinent plans, specifications, amendments, and change orders.

(3) Correspondence between the parties.

(4) Transcripts of any testimony taken during the course of any proceedings conducted on the dispute prior to the filing of the appeal.

(5) Such additional information as may be considered material.

(6) A statement of the position relied on by the Government with regard to the issues presented by the appeal.

(b) A copy of the index listing the documents in the appeal file and of the statement of position relied upon by the Government shall be furnished the appellant by the Board when the appeal file is received.

(b) Availability. The administrative record shall be available for inspection by the parties or their representatives at the Board's offices.

(c) Copies. Copies of material in the administrative record shall be available upon the same basis as that set forth in § 5-60.204-4 for copies of documents in the appeal file.

§ 5-60.204-6 Clerk of the Board.

The Board's Clerk maintains central control of all records pertaining to the Board's activities, and is prepared to handle inquiries concerning same. In the interest of convenience, prior arrangements for inspection of any appeal file at the Board's Washington office or for inspection of any administrative record and for desired copies of material in such files or records should be made with the Clerk.

§ 5-60.205 Scope of appeals.

Where an appeal is within the jurisdiction of the Board, it will, in its discretion, hear, consider, and make decisions on all questions necessary for the complete adjudication of the issues. Defenses which go to the jurisdiction of the Board will be raised by motion. Filing

of motions to dismiss for lack of jurisdiction shall not be unreasonably delayed. Normally, motions to dismiss for lack of jurisdiction shall, upon application of either party, be heard and determined before oral hearing on the merits. The Board, however, has the right at any time to determine its lack of authority to proceed in a particular case. Appeals not falling within the scope of the Board's jurisdiction will be formally dismissed.

§ 5-60.206 Untimely appeals.

Where the Government contends that a notice of appeal was not filed within the time specified, or where the Board itself decides that a question concerning timeliness of the appeal is present, the Board's initial consideration will be limited to such jurisdictional question. Accordingly, the Board shall not consider the merits of the appeal if the submission was in fact untimely. If the Board determines that a notice of appeal was filed untimely, it shall dismiss the appeal, giving appropriate notice of such action to the parties.

§ 5-60.207 Representation.

An appellant may appear before the Board in person, or may be represented by counsel or by any other duly authorized representative.

§ 5-60.208 Depositions.

(a) Upon agreement of the parties, the testimony of any person may be taken by deposition for use as evidence in the appeal proceedings. The deponent may be examined on any matter, not privileged, which is relevant to the subject of the appeal. Testimony taken by deposition shall not be considered as evidence in the appeal until such testimony is offered and received in evidence at the oral hearing. If oral hearing has been waived and the appeal is submitted on the record pursuant to the Board's rules, the deposition shall be considered in evidence before the Board, unless any objection made thereto shall have been sustained. Objection may be made at the oral hearing or on submission on the record to receiving in evidence any deposition or any part thereof on the ground that it does not qualify for admission or upon any other ground which would require the exclusion of the evidence if the witness were orally testifying before the Board. Opportunity for rebuttal of relevant evidence contained in a deposition which is received in evidence shall be accorded the adverse party.

(b) Depositions shall be taken before any person authorized to administer oaths by the laws of the United States or of the state where the examination is held. Each deposition shall show the Board's docket number and style of the proceeding, the place and date of taking, the name of the deponent and the names of all persons present. The person taking the deposition shall certify thereon that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.

(c) Depositions may be taken upon oral examinations or upon written interrogatories.

§ 5-60.209 Discovery.

(a) Upon written motion filed with the Board, appellant may move for access to official records in the custody of the General Services Administration for the inspection or production of records, not privileged, which constitute or con

tain evidence regarding any matter which is relevant to the subject matter involved in the appeal.

(b) The motion shall identify with reasonable particularity the document desired and in what respect it is relevant to the issues of the case in terms of discovery. No record furnished in response to a motion shall become evidence until offered and received in evidence. Motions for an order of discovery shall be filed with the Board prior to oral hearing.

(c) Privileged records are those (1) relating solely to internal management, (2) confidential by law, (3) security classified, and (4) whose release is otherwise not in the public interest.

(d) Records, as used in this subpart, include, but are not limited to, documents, papers, books, and letters.

§ 5-60.210 Conferences.

(a) The Board may, upon the request of either party, or in its own discretion, arrange for the holding of a conference at a time and place specified by the Board to consider the following:

(1) Simplification 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) Such other matters as may facilitate disposition of the appeal.

(b) A memorandum report by the Board member who conducted the conference shall be included in the appeal file.

§ 5-60.211 Submission without a hearing.

Where neither party desires a hearing, and the Board does not require one, the Board's decision will be based upon the available record as furnished by the parties.

§ 5-60.212 Hearings.

The Board shall grant a hearing at the request of either party, or in its own discretion may order that a hearing be held. The parties will be given a minimum of 15 days' notice in writing of the time and place of the hearing. Unless there is substantial justification shown for holding the hearing elsewhere, it will be held in the General Services Building,