8.15 Optional accelerated procedure. 3.16 Extensions of time. AUTHORITY: The provisions of this Part 8 issued under R.S. 161; 5 U.S.C. 301, Department Order No. 106 (Revised), 25 F.R. 2603, 3-26-60. SOURCE: The provisions of this Part 3 appear at 29 F.R. 19095, Dec. 30, 1964, unless otherwise noted. §3.1 Scope and authority. (a) The standard forms of construction, supplies and services contracts used within the Department of Commerce contain provisions to the effect that disputes arising thereunder and not disposed of by agreement shall be decided by the contracting officer, subject to appeal by the contractor to the head of the Department, i.e., the Secretary of Commerce. This is a contractual method of resolving disagreement and can be invoked only where and to the extent a contract so provides. (b) Pursuant to Revised Statutes, sec(5 U.S.C. 133z-15), the Secretary has 4 of Reorganization Plan No. 5 of 1950 tion 161 (5 U.S.C. 22) and sections 2 and established an Appeals Board (Department Order No. 106 (R) 25 F.R. 2603, 3-26-60), within the Office of the Assistant Secretary for Administration, and has delegated to this Board authority to consider and decide disputes under contracts entered into by the several bureaus (other than the Maritime Administration) within the Department. no further administrative appeal within the Department of Commerce from decisions of the Board. (The Secretary has also authorized the Board to consider There is 25 appeals from the public in respect to certain specified administrative and regulatory actions within the Department, e.g., under the Export Control Act, Parts 382 and 383 of this title, Defense Production Act, Regs. 5 under Chap. VI of Title 32A, and Surplus Property Disposal Act, § 401.13, Chap. IV of Title 44.) (c) The Appeals Board consists of a full-time Chairman and fifteen (15) to twenty (20) departmental officials specially qualified to serve as members and designated as such by the Secretary. The Chairman is the administrative head of the Board and is authorized to assign each matter on appeal to a panel of three (3) Board members. The Chairman may serve as a member of each panel, but in the event of his absence or unavailability for any other reason he may designate another Board member to serve in that capacity. § 3.2 Purpose. It is the purpose of these procedures to provide for impartial, inexpensive, and expeditious handling of contract appeals, consistent with the contract terms and other requirements of law, the orderly conduct of the proceeding, and the necessity for making a complete record. § 3.3 How to begin an appeal. (a) An appeal from the findings of fact and determination of the contracting officer shall be made by notice in writing in the manner and within the time specified in the contract. (b) The notice of appeal shall indicate that an appeal is intended, identify the contract and the contracting officer, and the particular findings of fact and determination from which the appeal is taken. It shall be signed by appellant personally, if an individual, or if not, by an authorized officer of the appellant organization or by the appellant's attorney. The supporting statement of claim referred to in § 3.7 may be filled with the notice of appeal or it may be filed as set forth in § 3.7. § 3.4 Duties of Contracting Officer and Government Counsel. (a) Promptly upon receipt of a copy of the notice of appeal, the contracting officer shall notify and request the legal adviser of the agency administering the contract involved to designate a Government counsel to represent the interests of the Government. The Government counsel shall promptly file notice of appearance with the Appeals Board. (b) Within thirty (30) days after receipt of the notice of appeal, the contracting officer shall compile and transmit to the Government counsel an appeal file consisting of: (1) The findings of fact and determination and all documents upon which his decision was based; (2) The invitation for bids, the contract, and all plans and specifications, amendments, change orders, directives, supplemental agreements, and work order records related to the dispute; (3) Substantive correspondence between the parties; (4) Map or other descriptive material of the subject matter. (c) The Government counsel will forward the appeal file to the Board, and so advise the appellant and that it may be examined at the office of the Board or the contracting officer. § 3.5 Duties of Board upon receipt of notice of appeal. Upon receipt of notice of appeal, the Appeals Board shall docket the case by giving it an appropriate number and shall send a notice of receipt and the docket number to the Government counsel, the appellant and his attorney. A copy of the Board rules of procedure will also be sent to appellant and his attorney. § 3.6 Service of papers. A copy of all statements, pleadings, briefs and any other documents and data of whatever nature, except the appeal file, shall be served on the other party at the time of filing with the Appeals Board. § 3.7 Appellant's statement of claim. Within thirty (30) days after the mailing or filing of a notice of appeal appellant shall file with the Appeals Board a concise and detailed statement of the nature and amount of each claim, the reasons why the contracting officer's determination in respect thereto is deemed erroneous, and any documentation upon which he relies. ment in rebuttal of the Government's answer. § 3.9 Prehearing conference. The Appeals Board may consider reparties to appear for a conference to consider agreement and simplification of the issues, possible stipulations as to facts and documents, limitation of the number of expert and other witnesses, and any other matters that may assist in the disposition of the appeal. § 3.10 Depositions, interrogatories, production of documents. The Appeals Board may require the quests for permission to take the testimony of any person by deposition, to serve written interrogatories upon the opposing party, and to produce and permit the inspection of designated documents. Such requests shall be approved only to the extent and upon such conditions as the Board in its discretion considers to be consistent with the objective of securing a fair, expeditious and inexpensive determination of the dispute on appeal. (a) The Appeals Board will provide an oral hearing unless waived by both parties, and will give the parties at least thirty (30) days' notice of the time and place of the hearing. Hearings will be held in Washington, D.C., unless there is, in the Board's judgment, a special and substantial justification for holding the hearing elsewhere. (b) Witnesses at hearings will not be required to testify under oath. However, the president officer will call to the attention of each witness that his statements are subject to the provisions of Federal 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 Government department or agency. All witnesses may be examined or cross-examined by the Board members, the parties or their representatives. (a) All decisions of the Appeals Board shall be based solely on the record made before it, and the Board may decide all questions of fact and law arising under the provisions of the contract in question. Under the provisions of the socalled Wunderlich Act, 68 Stat. 81 (1954), 41 U.S.C. sections 321 and 322, a departmental decision on a question of fact arising under a contract disputes clause is declared to be final and conclusive and not subject to judicial review "unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence." Board decision on a question of law, on the other hand, is subject to full judicial review. A Requests for reconsideration may be made by either party within thirty (30) days from the date of receipt of its copy of the Board's decision. Such requests will be considered only upon a showing of significant error or on the basis that new and material evidence has been discovered. The other party will be afforded a reasonable time to oppose such request for reconsideration, and the Board will as soon as practicable thereafter rule on the request. Failure to request reconsideration shall not be deemed to be a failure to exhaust administrative remedies. §3.15 Optional accelerated procedure. If the amount involved in an appeal is relatively small or the appeal otherwise Appendix A-Department Administrative Or- Appendix C-Officials Having Authority to AUTHORITY: 5 U.S.C. 552, as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950. SOURCE: 40 FR 11553, Mar. 12, 1975, unless otherwise noted. § 4.1 Scope and purpose. (a) This part revises the rules of the Department of Commerce whereby the Department and its organizational units are to make publicly available the materials and indexes specified in 5 U.S.C. 552(a) (2) and the records requested under 5 U.S.C. 552(a) (3). This revision is to conform the rules to the requirements of the Freedom of Information Act (5 U.S.C. 552), as amended by Pub. L. 93– 502, 88 Stat. 1561, effective February 19, 1975. (b) These rules supplement Department Administrative Order 205-12, which contains policies, delegations of authority, and other rules implementing 5 U.S.C. 552. DAO 205-12 is attached as Appendix A to this part. (c) Certain units of the Department other than those identified in paragraph 4.4(d) of this section have, pursuant to delegated authority and for appropriate reasons, established their own facilities for the public inspection and copying of records. The units have provided for separate places to which requests for records are to be made and received. These facilities and places are identified in Appendix B to this part. The units may publish supplementary rules in addition to but not inconsistent with this part, DAO 205-12, and the law in their respective chapters of the Code of Federal Regulations or otherwise in the FEDERAL REGISTER. All of such rules shall be maintained in the central public reference facility identified in § 4.4(c), where information about them may be obtained. § 4.2 Policies. (a) Department Administrative Order 205-12 contains the basic policies and other criteria to be considered in issuing and administering these rules. To the extent that these policies and criteria are not specified in this part or in any supplemental rules of units, they are incorporated by reference. (b) Requests for records made under 5 U.S.C. 552(a) (3) apply only to existing records, and the Department is not required, in response to a request, to create records by combining or compiling information contained in existing records, or otherwise to prepare new records. However, Departmental officials may, upon request, provide or create new information in record form pursuant to user charge statutes, such as 15 U.S.C. 1525-1527, or in accord with authority otherwise provided by law. (a) All terms used in this Part which are defined in 5 U.S.C. 551 shall have the same meaning herein. (b) As used in this part, "Act" means the "Freedom of Information Act", as amended, 5 U.S.C. 552. (c) The terms "Office of the Secretary" and "operating unit" are defined in Department Organization Order 1-1, "Mission and Organization of the Department of Commerce" (35 FR 19704, December 27, 1970). (d) The term "unit" as used in this part means (1) an operating unit of the Department, and (2) each Secretarial officer and the persons and the Departmental officers under each. § 4.4 Availability of materials for inspection and copying; indexes. (a) The Assistant Secretary for Administration has established and maintains a central public reference facility available to units of the Department, at which place the following materials of those units utilizing the facility shall be made available for public inspection and copying: (1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (2) Those statements of policy and interpretations which have been adopted by the participating organizations and are not published in the FEDERAL REGISTER; (3) Administrative staff manuals and instructions to staff that affect a member of the public; (4) Current indexes providing identifying information for the public as to any matter which was issued, adopted, or promulgated after July 4, 1967, and is required by 5 U.S.C. 552 (a) (2) to be made available or published; (5) Records of the final votes of each member in every proceeding of an agency comprised of more than one member; (6) Rules and decisions denying requests for records which otherwise implement or relate to the Act; and (7) Materials published in the FEDERAL REGISTER pursuant to 5 U.S.C. 552 (a) (1) and such other materials which each unit may consider desirable and practical to make available for the convenience of the public. (b) The Secretary of Commerce has determined (DAO 205-12, subparagraph 5.02a.5.) that it is unnecessary and impracticable to publish quarterly or more frequently and distribute (by sale or otherwise) copies of each index and supplements thereto, as provided in 5 U.S.C. 552(a) (2). Upon request, copies of such indexes shall be provided at the public reference facility at a cost not to exceed the direct cost of duplication. (c) The central facility established by the Assistant Secretary for Administration is the Central Reference and Records Inspection Facility, Room 7043, Department of Commerce Building, 14th Street between Constitution Avenue and E Street, N.W., Washington, D.C. 20230. This facility is open to the public Monday through Friday of each week, except on official holidays of the Federal Gov ernment, between the hours of 9 a.m. and 4:30 p.m. There are no fees or formal requirements for inspection of materials. Coin-operated equipment for making copies of these materials is available for use by the public. Copies of various Commerce Department materials regularly available for sale by the Department may be purchased at the facility or information about them obtained. Correspondence concerning materials available at the facility or information about the rules implementing the Act may be sent to the above address. The telephone number of the facility is Area Code 202, 967-2161. (d) The following facilities of the Department are participating in the use of this central facility: (1) All components of the Office of the Secretary of Commerce. (2) United States Travel Service. (3) Office of Minority Business Enterprise. (4) Office of Product Standards. (5) Office of Telecommunications. (6) National Fire Prevention and Control Administration. (e) Other units of the Department which have established separate public reference facilities, listed in Appendix B to this part, shall publish rules applicable to the services provided therein, not inconsistent with this part, for public inspection and copying of materials. [40 FR 11553, Mar. 12, 1975, as amended at 40 FR 24721, June 10, 1975] (a) A request for a record of the Department (or information contained therein) which is not customarily made available to the public as part of the Department's regular informational services, or which is not available in a public reference facility described in § 4.4 (c) or Appendix B to this part, shall be made in writing, with the envelope and the letter clearly marked "Freedom of Information Request" or "Request for Records" or the equivalent, to distinguish it from other mail to the Department. Each such request, so marked, shall be addressed to the unit of the Department identified in Appendix B to this part which the requester knows or has reason to believe is responsible for the records requested. If the requester is not sure which is the responsible addressee unit, it shall address the request to the central facility identified in § 4.4(c), or obtain advance information from that facility as to which is the responsible addressee unit. (b) Any request for records which is not marked and addressed as specified in paragraph (a) of this section will be so marked and addressed by Department personnel and forwarded immediately to the responsible unit having possession or control of the records requested or having primary concern with such records. A request which is improperly addressed by the requester will not be deemed to have been "received" for purposes of the time period for a request for records set forth in 5 U.S.C 552(a) (6), until the earlier of the time that (1) forwarding of the request to the responsible unit has been effected, or (2) such forwarding would have been effected with the exercise of due diligence by Department personnel. In each instance when a request is forwarded, the responsible unit receiving it shall notify the requester that its request was improperly addressed and of the date the request was received by the unit. (c) A request for records shall sufficiently identify the records requested to enable Department personnel familiar with the subject matter to locate them with a reasonable amount of effort. The requester shall, to the extent possible, furnish specific description information regarding dates and place the records were made, the file descriptions, subject matter, persons involved, and other pertinent details that will help identify the records. If the request relates to a matter in pending litigation, the court, location and case shall be identified. When more than one record is requested, the request shall clearly describe each specific record, and the specific information requested which is contained in a record, so that its availability may be separately determined. Employees at a facility or at a specific address listed in Appendix B will assist the public to a reasonable extent in framing a request. § 4.6 Initial determinations of availability of records. (a) The responsible unit which receives a request for records shall promptly log the receipt of the request, and within ten days of its receipt (excepting Saturdays, Sundays, and legal public holidays) shall initially determine: (1) Whether the request is for records under the Act, is for materials available |