ployees of the constituent units of the Office of the Secretary.

2. The authority delegated under paragraph 1 of this section may be redelegated to such officers of the primary operating units and of the Office of the General Counsel as the heads thereof may deem appropriate.

3. The adjudication and settlement of any claim in accordance with the provisions of this Appendix constitutes final action in the case insofar as the Department of Commerce is concerned and no further review in the Department may be obtained.

D. Procedure for making claims:

1. Claims may be filed with the primary operating unit involved or in any of its field offices, or with the Office of the General Counsel where a constituent unit of the Office of the Secretary is involved.

2. A claim may be filed by the individual or firm sustaining injury or damages in his or its own right or by an attorney.

3. Claims shall be filed on Standard Form No. 95, "Claim for Damage or Injury." The file in each claim should also include a statement of the employee involved and statements of any witnesses. This evidence should be supported by any other documentary evidence that will be helpful in adjudicating the claims.

E. Adjudication and settlement of claims: 1. Upon receipt of a claim the date of receipt shall be made a matter of record. After recording, the claim will be forwarded to appropriate legal counsel for review of the evidence and recommended disposition, including amount of award, if any, and attorneys' fees. When deemed necessary, additional evidence or investigation of the facts in any given case may be requested. Claims involving unusual or novel questions of law may be submitted to the General Counsel of the Department for consideration and recommendation.

2. The officer to whom authority is delegated to settle tort claims shall make the final determination as to whether or not an award shall be made in each case, and, if an award is to be made, the amount of the award, and the amount to be allowed for attorneys' fees.

F. Payment of claims:

When an award is made, the file on the case will be transmitted to the appropriate fiscal office for payment out of funds appropriated, or to be appropriated, for the purpose. Prior to the payment of any claim which is administratively settled, there shall be obtained from the claimant or claimants a release stating that the award or settlement is final and conclusive and constitutes a complete release by the claimant of any claim against the United States and against the employee of the Government arising out of the circumstances which resulted in the claim.

Sec.

3.33 Sanctions.

SANCTIONS

EFFECTIVE DATE AND APPLICABILITY

3.34 Effective date and applicability.

AUTHORITY: R.S. 161; 5 U.S.C. 301, Department Organization Order 20-11 (40 FR 17771, April 22, 1975).

SOURCE: 41 FR 1584, Jan. 9, 1976, unless otherwise noted.

PRELIMINARY PROCEDURES

§3.1 Appeals, how taken.

Notice of an appeal must be in writing, and the original, together with two copies may be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract or allowed by applicable provision of directive or law.

§3.2 Notice of appeal, contents of.

A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract by number, the department and agency or bureau cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the contractor making the appeal, or by an officer of the appellant corporation or member of the appellant firm, or by the contractor's attorney. The complaint referred to in Rule 3.6 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

§ 3.3 Forwarding of appeals.

When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing, or date of receipt, if otherwise conveyed, and within 10 days shall forward said notice of appeal to the Board. Following receipt by the Board of the original notice of an appeal, whether through the contracting officer or otherwise, the contractor, the contracting officer and government counsel will be promptly advised of its receipt. The contractor

will be furnished a copy of these rules and notices of appearance will be requested.

[41 FR 1584, Jan. 6, 1976, as amended at 42 FR 37203, July 20, 1977]

§ 3.4 Preparation, contents, organization, forwarding, and status of appeal file. (a) Duties of Contracting Officer. Within 30 days of receipt of an appeal, or advice that an appeal has been filed, the contracting officer shall assemble and transmit to the Board, an appeal file consisting of all documents pertinent to the appeal, including:

(1) The decision and findings of fact from which appeal is taken; (2) The contract including specifications and pertinent amendments, plans and drawings;

(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which decision was issued;

(4) 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

(5) Any additional information considered pertinent.

Within the same time above specified, the contracting officer shall furnish the appellant a copy of each document he transmits to the Board, except those stated in paragraphs (a) (2) and (3) of this section as to which a list furnished appellant indicating documents transmitted will suffice, and those stated in paragraph (d) of this section.

(b) Duties of the Appellant. Within 30 days after receipt of a copy of the appeal file assembled by the contracting officer, the appellant shall supplement the same by transmitting to the Board any documents not contained therein which he considers pertinent to the appeal, and furnishing two copies of such documents to the Government counsel.

(c) Organization of Appeal File. Documents in the appeal file may be originals or legible facsimile or authenticated copies thereof, and shall be arranged in chronological order where practicable, numbered sequentially,

tabbed, and indexed to identify the contents of the file.

(d) Lengthy 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 when a party has shown that doing so would impose an undue burden. At the time a party files with the Board a document as to which such a waiver has been granted, he shall notify the other party that the same or a copy is available for inspection at the offices of the Board or of the party filing same.

(e) Status of Documents in Appeal File. Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Board will render its decision, unless a party objects to the consideration of a particular document in advance of hearing or of settling the record in the event there is no hearing on the appeal. If objection to a document is made, the Board will rule upon its admissibility into the record as evidence in accordance with §§ 3.13 and 3.20.

§ 3.5 Dismissal for lack of jurisdiction.

Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing 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.

§3.6 Pleadings.

(a) Appellant. Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise and direct statements of each of his claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint, although

no particular form or formality is required. Upon receipt thereof, the Board shall serve a copy upon the respondent. Should the complaint not be received within 30 days, appellant's claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth his complaint and the respondent shall be so notified.

(b) Respondent. Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, respondent shall prepare and file with the Board an original and two copies of an answer thereto, setting forth simple, concise, and direct statements of respondents defenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses or counter-claims as appropriate. Upon receipt thereof, the Board shall serve a copy upon appellant. Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified.

§ 3.7 Amendments of pleadings or record. The Board upon its own initiative or upon application by a party may, in its discretion, order a party to make a more definite statement of the complaint or answer, or to reply to an answer. The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend his pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings or the documentation described in § 3.4, 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 § 3.4 documentation (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.

§ 3.8 Hearing election.

Upon receipt of respondent's answer or the notice referred to in the last sentence of § 3.6(b), above, appellant shall advise whether he desires a hearing as prescribed in §§ 3.17 through 3.25 or whether, in the alternative, he elects to submit his case on the record without a hearing, as prescribed in §3.11. In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in § 3.12.

§ 3.9 Prehearing briefs.

Based on an examination of the documentation described in § 3.4, 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 § 3.8. 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 previously arranged.

§ 3.10 Prehearing or presubmission con

ference.

Whether the case is to be submitted pursuant to §3.11, or heard pursuant to §§ 3.17 through 3.25, the Board may upon its own initiative or upon the application of either party, call upon the parties to appear before a member of the Board for a conference to consid

er:

(a) The simplification or clarification of the issues;

(b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agree

ments which will avoid unnecessary proof;

(c) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;

(d) The possibility of agreement disposing of all or any of the issues in dispute; and

(e) Such other matters as may aid in the disposition of the appeal.

The results of the conference, except as otherwise recorded, shall be reduced to writing by the Administrative Judge or examiner and this writing shall thereafter constitute part of the record.

§3.11 Submission without a hearing.

Either party may elect to waive a hearing and to submit his case upon the record before the Board, as settled pursuant to §3.13. Submission of a case without hearing does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses. Affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the Board record. The Board may permit such submission to be supplemented by oral argument (transcribed if requested), and by briefs arranged in accordance with § 3.23.

§3.12 Optional accelerated procedure.

(a) In appeals involving $25,000 or less, either party may elect, in his notice of appeal, complaint, answer, or by separate correspondence or statement prior to commencement of hearing or settlement of the record, to have the appeal processed under a shortened and accelerated procedure. For application of this rule the amount in controversy will be determined by the sum of the amounts claimed by either party against the other in the appeal proceeding. If no specific amount of claim is stated, a case will be considered to fall within this rule if the sum of the amounts which each party represents in writing that it could recover as a result of a Board decision favorable to it does not exceed $25,000. Upon such election, a case shall then be processed under this

rule unless the other party objects and shows good cause why the substantive nature of the dispute requires processing under the Board's regular procedures and the Board sustains such objection. In cases proceeding under this section, parties are encouraged, to the extent possible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.

(b) Written decision by the Board in cases proceeding under this rule normally will be short and contain summary findings of fact and conclusions only. The Board will endeavor to render such decisions within 30 days after the appeal is ready for decision. Such decisions will be rendered for the Board by a single member with the concurrence of the Chairman or a designated member; except that in cases involving $5,000 or less where there has been a hearing, the single member presiding at the hearing, the single member presiding at the hearing may, in his discretion, at the conclusion of the hearing and after entertaining such oral arguments as he deems appropriate, render on the record oral summary findings of fact, conclusions and decision of the appeal. In the later instance, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the date from which the period for filing a motion for reconsideration §3.29 commences.

under

(c) Except as herein modified, these rules otherwise apply in all respects.

§3.13 Settling the record.

(a) The record upon which the Board's decision will be rendered consists of the appeal file described in § 3.4 and, to the extent the following items have been filed, pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, posthearing briefs, and documents which the Board has specifically designated be made a part of the record. The record will at all reasonable times be available for inspection

by the parties at the office of the Board.

(b) Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.

(c) The weight to be attached to any evidence of record will rest within the sound discretion of the Board. The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.

§3.14 Discovery-depositions.

(a) General policy and protective orders. The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, and those orders may include limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

(b)

When depositions permitted. After an appeal has been docketed and complaint filed, the parties may mutually agree to, or the Board may, upon application of either party and for good cause shown, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purpose of discovery. The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.

(c) Orders on depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or failing such agreement, governed by order of the Board.

(d) Use as evidence. No testimony taken by depositions shall be considered as part of the evidence in the hearing of an appeal unless and until such testimony is offered and received in evidence at such hearing. It will not