« PreviousContinue »
(e) Computation of time for filing and service. Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document, the day upon which the decision or document to be appealed from or answered was served or the day of any other event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in which event the period runs until the end of the next day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays and other nonbusiness days shall be excluded in the computation.
(f) Extensions of time. (1) The time for filing or serving any document may be extended by the Appeals Board or other officer before whom the proceeding is pending, except for the time for filing a notice of appeal and except where such extension is contrary to law or regulation.
(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document and must be filed in the same office in which the document in connection with which the extension is requested must be filed.
Sec. 4.23 Transcript of hearings.
Hearings will be recorded verbatim and transcripts thereof shall be made when requested by interested parties, costs of transcripts to be borne by the requesting parties. Fees for transcripts prepared from recordings by Office of Hearings and Appeals employees will be at rates which cover the cost of manpower, machine use and materials, plus 25 percent, adjusted to the nearest 5 cents. If the reporting is done pursuant to a contract between the reporter and the Department of the Interior agency or office which is involved in the proceeding, or the Office of Hearings and Appeals, fees for transcripts will be at rates established by the contract.
Sec. 4.24 Basis of decision.
(a) Record. (1) The record of a hearing shall consist of the transcript of testimony or summary of testimony and exhibits together with all papers and requests filed in the hearing.
(2) If a hearing has been held on an appeal pursuant to instructions of an Appeals Board, this record shall be the sole basis for decision insofar as the referred issues of fact are involved except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.
(3) Where a hearing has been held in other proceedings, the record made shall be the sole basis for decision except to the extent that official notice may be taken of a fact as provided in paragraph (b)
of this section.
(4) In any case, no decision on appeal or after a hearing shall be based upon any record, statement, file or similar document which is not open to inspection by the parties to the appeal or hearing.
(b) Official notice. Official notice may be taken of the public records of the Department of the Interior and of any matter of which the courts may take judicial notice.
Sec. 4.25 Oral argument.
The Director or an Appeals Board may, in their discretion, grant an opportunity for oral argument.
Sec. 4.26 Subpoena power and witness provisions generally.
(a) Compulsory attendance of witnesses.
his own motion, or on written application of a party, is authorized to issue subpoenas requiring the attendance of witnesses at hearings to be held before him or at the taking of depositions to be held before himself or other officers. Subpoenas will be issued on a form approved by the Director. A subpoena may be served by any person who is not a party and is not less than 18 years of age, and the original subpoena bearing a certificate of service shall be filed with the examiner. A witness may be required to attend a deposition or hearing at a place not more than 100 miles from the place of service.
(b) Application for subpoena. Where the file has not yet been transmitted to the examiner, the application for a subpoena may be filed in the office of the officer who made the decision appealed from, or in the office of the Bureau of Land Management, in which the complaint was filed, in which cases such offices will forward the application to the examiner.
(c) Fees payable to witnesses.
(1) Witnesses subpoenaed by
any party shall be paid the same fees and mileage as are paid for like services in the District Courts of the United States. The witness fees and mileage shall be paid by the party at whose instance the witness appears.
(2) Any witness who attends any hearing or the taking of any deposition at the request of any party to the controversy without having been subpoenaed to do so shall be entitled to the same mileage and attendance fees, to be paid by such party, to which he would have been entitled if he had been first duly subpoenaed as a witness on behalf of such party. This paragraph does not apply to Government employees who are called as witnesses by the Government.
Sec. 4.27 Standards of conduct.
(a) Inquiries. All inquiries with respect to any matter pending before the Office of Hearings and Appeals shall be directed to the Director, the Chief Hearing Examiner, or the Chairman of the appropriate Board.
(b) Ex parte communications.
There shall be no communica
tion between any party and a member of the Office of Hearings and Appeals concerning the merits of a proceeding, or an appeal unless such communication (if written) is also furnished to the other party, or (if oral) is made in the presence of the other party. The Board shall refuse to receive, except as part of the appeals record, any information having a substantial bearing upon an appeal from persons who do not represent a party in the appeal but have an interest in the decision to be rendered.
(c) Disqualification. An examiner or Board member shall withdraw from a case if he deems himself disqualified under the recognized canons of judicial ethics. If, prior to a decision of an examiner or an Appeals Board, there is filed in good faith by a party an affidavit of personal bias or disqualification with substantiating facts, and the examiner or Board member concerned does not withdraw, the Board or the Director, as appropriate, shall determine the matter of disqualification.
Sec. 4.28 Interlocutory appeals.
There shall be no interlocutory appeal from a ruling of an examiner unless permission is first obtained from an Appeals Board and an examiner has certified the interlocutory ruling or abused his discretion in refusing a request to so certify. Permission will not be granted except upon a showing that the ruling complained of involves a controlling question of law and that an immediate appeal therefrom may materially advance the final decision. An interlocutory appeal shall not operate to suspend the hearing unless otherwise ordered by the Board.
Sec. 4.29 Remands from courts.
Whenever any matter is remanded from any court for further proceedings, and to the extent the court's directive and time limitations will permit, the parties shall be allowed an opportunity to submit to the appropriate Appeals Board a report recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and enter special orders governing the handling of matters remanded to it for further proceedings by any court.
Sec. 4.30 Information required by forms.
Whenever a regulation of the Office of Hearings and Appeals requires a form approved or prescribed by the Director, the Director may in that form require the submission of any information which he considers to be necessary for the effective administration of that regulation.
Subpart C--Special Rules Applicable to Contract Appeals
Authority: The provisions of this Subpart C also issued under
authority of 5 U.S.C. sec. 301.
See Subpart A for the authority, jurisdic
tion and membership of the Board of Contract Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before the Board of Contract Appeals as well as the other Appeals Boards of the Office of Hearings and Appeals, see Subpart B.7
Sec. 4.100 Guidelines.
(a) 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) Emphasis is placed upon the sound administration of the rules in this subtitle in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay. Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. 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. Where it has authority to extend time limitations, the Board may extend them in appropriate circumstances, on good cause shown. Whenever reference is made to contractor, appellant, contracting officer, respondent and parties, this shall include respective counsel for the parties as soon as appropriate notices of appearance have been filed with the Board.
Sec. 4.101 Who may appeal.
Any contractor may appeal to the Board of Contract Appeals, Office of Hearings and Appeals, from decisions of the contracting officers of any bureau or office of the Department of the Interior, or their authorized representatives or other authorities, on disputed questions, under contract provisions requiring the determination of such appeals by the head of the agency or his duly authorized representative or Board.
Sec. 4.102 Appeals; how taken.
(a) Notice of appeal. Notice of an appeal must be in writing (a suggested form of notice appears herein following Sec. 4.128). 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.
(b) Contents of notice of appeal. A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract (by number), the Department's bureau or office cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant (the contractor making the appeal), or by an authorized officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in Sec. 4.107 may be filed with the notice of appeal, or the contractor may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.
Sec. 4.103 Action by the contracting officer.
(a) Transmittal of appeal. When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or the date of receipt, if the notice was otherwise conveyed) and within 5 days shall forward said notice of appeal to the Board by certified mail. At the same time, he shall notify the Department's Office of the Solicitor, in accordance with instructions of the Solicitor, that the appeal has been received in order that a Department counsel may be appointed.
(b) Compilation and transmittal of appeal file. Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly, and in any event within 35 days, compile and transmit to the Board the appeal file (copies of all documents pertinent to the appeal). The contracting officer shall forward a duplicate copy of the appeal file to the Department Counsel.
(1) The appeal file shall include the following:
(i) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued;
(ii) The contract, and pertinent plans, specifications, amendments, and change orders;
(iii) Correspondence between the parties and other data pertinent to the appeal;
(iv) 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;