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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. There should be included:
(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.
(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.
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 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 Government. Should a complaint not be mailed or otherwise filed within 30 days, appellant's claim and appeal shall be deemed to set forth its complaint and the Government shall be so notified.
Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, the Government 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.
(3) Amendment of pleadings.
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 Rule 6, 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.
The Board may entertain the following motions:
(a) To dismiss for lack of jurisdiction;
To dismiss the appeal for failure by the contractor to state a claim for which relief can be granted;
(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.
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.
8. Hearing election.
Upon receipt of the Government's answer, appellant promptly shall advise the Board whether it desires a hearing, as prescribed in Rule 17, or whether in the alternative it elects to submit its case on the record without a hearing, as prescribed in Rule 11. In appropriate cases, the appellant also shall elect whether it desires the optional accelerated procedure prescribed in Rule 12. 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.
9. 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 Rule 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 arranged.
10. Prehearing conference.
Whether the case is to be submitted pursuant to Rule 11, or heard pursuant to Rule 17, 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 consider:
(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 agreements 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 shall be reduced to writing by the presiding Board member, and this writing shall thereafter constitute part of the record.
11. 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.
12. Optional accelerated procedure.
(a) An appeal involving sums not in excess of $10,000 shall be handled under this rule at the written request of the appellant and upon concurrence of the Board.
(b) The appeal will be decided on the basis of the available record as furnished by the parties unless a hearing has been requested by either party, or unless the Board orders a hearing.
(c) With the concurrence of the Government, the appeal shall be decided by the chairman of the panel to which the appeal has been assigned. For this purpose, the chairman of the panel is vested with all the authority and power of the full Board to hear, consider, and decide the appeal. At the discretion of the panel chairman, the panel shall participate in the decision.
(d) Under this accelerated procedure, the decision will be issued on an expedited basis, without regard to its normal position on the docket, and will be rendered in summary form unless other action appears indicated.
13. Closing of the record.
(1) Time of submission for decision.
A case submitted on the record pursuant to Rule 11 or Rule 12 shall be ready for decision when the parties are so notified by the Board. A case which is heard shall be ready for decision upon receipt of transcript, or upon receipt of briefs when briefs are ordered to be submitted by the Board.
(2) Record bases for decision.
The record shall consist of the appeal file described in Rule 5(1), and any additional material, pleadings, briefs, records of conferences, depositions,
interrogatories and answers, admissions, transcripts of hearing, and hearing exhibits.
(3) Availability of record.
This record will at all times be available for inspection by the parties at the office of the Board. In the interest of convenience, prior arrangements for inspection of the file should be made with the Clerk of the Board. Copies of material in the record may, if practicable, be furnished to appellant at the cost of reproduction.
After an appeal has been docketed, the Board may, upon motion of either party filed with the Board, with notice thereof to the other party, upon 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.
(2) Orders on depositions .
The time, place, and manner of taking depositions shall be governed by order of the Board.
No testimony taken by deposition 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. Testimony will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. In such instance, however, the deposition may be used to contradict or impeach the testimony of the witness given at the hearing. In cases otherwise decided on the record, the Board may, on motion of either party and in its discretion, receive depositions as evidence in supplementation of that record.
All expenses of taking the deposition of any person shall be borne by the party taking that deposition, except that the other party shall be entitled to copies of the transcript of the deposition upon paying therefor.
Interrogatories to parties, production and inspection of documents.
(1) Interrogatories to parties.
After an appeal has been filed with the Board, a party may serve on the other party written interrogatories to be answered separately in writing,