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alteration, or repair, of buildings or works, (2) the purchase of supplies, equipment, materials, or services, and (3) the purchase of commodities pursuant to section 32 of Public Law 320, 74th Congress, as amended, and section 6 of the National School Lunch Act, as amended, if such contracts provide either that such appeals may be made to the Administrator, Consumer and Marketing Service, or to the head of the Department or his duly authorized representative.
(c) Work Hours Standards Act. The Board is authorized to consider and determine appeals from decisions of contracting officers under the Contract Work Hours Standards Act in accordance with the provisions of section 104 (c) of that Act.
(d) Finality of decisions. No person shall be required to seek an appeal or to appeal to the Board in cases which may be or are cognizable under paragraph (a) (2) of this section for the purpose of exhausting his administrative remedy before recourse to the courts unless a contractual provision provides for such an appeal. The decisions of the Board on all matters falling within its jurisdiction shall constitute the final administrative determination within the U.S. Department of Agriculture (hereinafter referred to as the Department). Determinations of fact by the Board on appeals from findings of fact of a Contracting Officer of the Corporation or the Department pursuant to a disputes article or other provision in a contract providing for appeal shall be final and conclusive for all purposes, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious or so grossly erroneous as necessarily to imply bad faith or not supported by substantial evidence.
(e) Adjudication. (1) 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. When, in the consideration of an appeal, it appears that a claim is involved which is not otherwise cognizable by the Board, it may insofar as the evidence permits make findings of fact with respect to such claim without expressing an opinion or making a finding on the question of liability.
(2) The term "persons" for the purpose of these rules means an individual or any form of business entity, e.g., a proprietorship, partnership, corporation, association, or cooperative.
(3) Proceedings before the Board will be suspended in connection with any case which has been referred to the Department of Justice, or which the Office of the General Counsel informs the Board will be referred to that Department for consideration of possible criminal violations or civil false claims. Such suspension will be lifted if the Department of Justice so requests, completes action on the case, or informs this Department that the Department of Justice has no objection to further proceedings before the Board.
§ 2400.4 Debarment.
(a) The Board has jurisdiction and the authority to hear and determine the issue of debarment and the period thereof, if any, on an appeal by a person debarred under the regulations (1) of the Commodity Credit Corporation relating to Suspension and Debarment (Part 1407 of this title) and (2) of the Department of Agriculture relating to Debarred, Suspended and Ineligible Bidders (41 CFR 41.605.1).
(b) Any person, upon written notice of debarment by the Corproation or the Department, may appeal such debarment to the Board and obtain a hearing on the issue of debarment and the period thereof. The appeal shall be filed with the Executive Secretary of the Board. (c) (1) On receipt of an appeal from such a debarred person, the Executive Secretary of the Board shall acknowledge receipt of the appeal and inform the appellant that an answer in writing to the notice of debarment shall be filed with the Board within such period of time as may be specified by the Board. Such answer shall:
(i) Admit or deny each of the factual allegations contained in the notice of debarment;
(ii) State any affirmative defenses on which the appellant intends to rely in the proceedings before the Board.
(2) On receipt of such answer, the Board shall schedule the matter for a hearing before it and shall notify appellant, and the appropriate representatives of the Corporation or the Department, of the time, place and date set for such hearing.
(d) The proceedings before the Board on such appeal shall be conducted to the maximum extent practicable in the same manner as appeals to the Board on contract disputes.
(e) On completion of the hearing and following determination of the issue of debarment by the Board, the appellant shall be given written notice of the Board's findings and decision. The decision of the Board in the proceedings under this section, shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith or not supported by substantial evidence.
§ 2400.5 Manner of filing appeals.
(a) An appeal by any person from the decision of a contracting officer, claims officer, or other officer of the Corporation or Department or from debarment action by an authorized official of the Corporation or the Department, shall be in writing, and need not be under oath. An original and five copies of the appeal should be filed with the Executive Secretary of the Board. The appeal must be submitted to the Board within the time provided by the contract or the regulations governing suspension and debarment, whichever is applicable. Where the appeal is addressed to the Corporation or the Department and delivered to the contracting officer or an agency, the recipient shall certify the date of receipt and such date shall be considered as the date of filing with the Board. Within ten (10) days after receipt, the appeal shall be forwarded to the Board. If no time for appeal is so provided, the person may file his appeal at any time prior to the claim being barred under the applicable statutory period of limitation.
(b) Each appeal shall clearly identify the decision from which the appeal is taken. The appeal need not follow any prescribed form. It may be in the form of a letter and should contain a full statement of the exact nature of the dispute, the specific relief sought by the appellant, the pertinent facts and reasons in support of the appellant's contentions and, if the appellant desires an oral hearing, a request that a hearing be held: Provided, however, That, in the case of an appeal from debarment action, the appeal shall be taken in the manner provided in § 2400.4(b) and the appellant shall be deemed to have requested an oral hearing unless the appellant has specifically waived
his right thereto, in writing, prior to the date set therefor. Additional information supporting the appeal may be incorporated in the appeal or be submitted within such period of time as may be specified by the Board in writing.
$2400.6 Procedure on appeal.
(a) Upon receipt of an appeal, the Executive Secretary of the Board shall furnish a copy of the appeal to the official of the Corporation or of the Department from whose decision the appeal is taken, or his designee, who shall compile and submit to the Board an appeal file consisting of five (5) copies of all documents pertinent to the appeal, including, but not limited to the following as applicable: (1) Findings of fact and the decision from which the appeal is taken; (2) applicable contractual instruments; (3) correspondence between the parties; and (4) such additional information as relates to the contract or the appeal.
(b) The Executive Secretary of the Board shall afford the appellant an opportunity to examine such information and material in the appeal file as may be made available under regulations of the Department for the purpose of satisfying himself of the contents and furnishing or suggesting any additional documentation deemed pertinent to the appeal. Such examination shall be made at the office of the Board or such other place as the Board may direct. The Executive Secretary of the Board shall furnish a copy of such appeal file to the contracting officer or debarring official, or his designee, as the case may be. Within 30 days after receipt of the appeal file, the contracting officer or debarring official, or his designee, shall file with the Board five (5) copies of an answer to the appeal setting forth, in concise statements, the Corporation's or Department's defenses with respect to each claim asserted. The answer shall set forth any affirmative defenses and may set forth any counterclaims, as appropriate. The Executive Secretary to the Board shall serve a copy of the answer of the contracting officer, or debarring official, on the appellant.
(c) Defenses which go to the jurisdiction of the Board shall ordinarily be raised by motion. Motions to dismiss for lack of jurisdiction should be filed without unreasonable delay. The Board, however, may dismiss the appeal at any time if it determines it lacks jurisdiction.
(d) The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend his appeal papers upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the written appeal or the documentation contained in the appeal file 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 in the written appeal or documentation. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the written appeal of the appeal file, it may be received if within the proper scope of the appeal: Provided, however, That the objecting party shall be granted a continuance if necessary to enable him to meet such evidence.
(e) Either party may furnish, or the Board may in its discretion require, the parties to submit pre-hearing briefs in any case in which a hearing is to be held. In any case where a pre-hearing brief is submitted, it shall be furnished in quadruplicate so as to be received by the Board within such period of time prior to the date set for
hearing as the Board may direct, and a copy shall be furnished to the other party by the Executive Secretary of the Board.
(f) The Chairman or Presiding Officer may order, or permit upon request, briefs to be filed by each party after the conclusion of the hearing within such period of time as the Chairman or Presiding Officer may allow.
§ 2400.7 Discovery: motion for production of documents, written interrogatories and oral examinations.
(a) At any stage of an appeal, upon motion of either party filed with the Board and notice thereof to the other party, and upon good cause shown therefor if requested by the opposing party or by the Board, the Board may request the other party to produce, for inspection and copying or photographing, any documents, papers, records, letters, photographs, or other tangible things, not privileged, relevant to the issues in the appeal, which are in the other party's possession, custody, or control. The Board, upon its own motion, may, at any time prior to rendering its decision, make a request upon either party to the proceeding for production of material or information, not privileged, relevant to the appeal or to obtain additional material or information from other sources, if available.
(b) After an appeal has been acknowledged by the Board and prior to oral hearing, either party, in accordance with the following procedures, may take testimony of any person by oral examination or written interrogatories for use as evidence in the appeal proceedings:
(1) If either party desires to take the testimony of any person by written interrogatories, such party shall file such interrogatories in quadruplicate with the Executive Secretary of the Board who shall serve a copy upon the opposing party and upon the person to whom the interrogatories are directed if he is not a party. Within such time as may be fixed by the Board, the opposing party may file cross-interrogatories in quadruplicate with the Executive Secretary of the Board, who shall serve a copy upon the other party and upon the person to whom the interrogatories are directed if he is not a party.
(2) When either party desires to take the testimony of any person upon oral examination such party shall file written notice in quadruplicate with the Executive Secretary, who shall serve a copy upon the opposing party and upon the person to be examined if he is not a party. The opposing party shall be given at least 20 days notice, unless otherwise stipulated by the parties or directed by the Board, of the time and place where the oral examination will be conducted and the name and address of the witness. The witness shall testify under oath, and the reporter taking the oral testimony shall certify that the record is a true record of the testimony given by the witness.
(3) The party desiring to take testimony by deposition of any person by oral examination or written interrogatories shall be responsible for assuring that the witness answers the written interrogatories and cross-interrogatories, or that he appears and furnishes testimony in answer to the questions submitted on oral examination, except that where the witness is a party or an officer, director, official, or employee of a party, such party shall be responsible for assuring that the witness answers the interrogatories and cross-interrogatories or questions submitted on oral examination. The party desiring to take the testimony of any person by written interrogatories or upon oral examination,
shall pay the cost of the reporter and the transcript of the oral examination or any cost of answering written interrogatories. The party desiring to take the testimony of any person upon oral examination shall pay the cost of travel and other expenses of the witness if the parties and the witness agree to take his testimony at a place other than his usual place of residence or business.
(c) The Board, upon motion seasonably made by any party, by the person to be examined or to whom written interrogatories are addressed or upon its own motion, may, upon notice and for good cause, refuse to permit any proceedings to be conducted under paragraphs (a) and (b) of this section or the Board may direct that such proceedings be conducted only under, and in accordance with, such limitations as to documents, persons, time, place, and scope as it deems necessary and appropriate.
(d) In the event of failure of a party to comply with a request of the Board for production under paragraph (a) of this section, or failure of a party to make available an officer, director, official, or employee of such party, for answering written interrogatories or questions on oral examination under paragraph (b) of this section, without showing an excuse or explanation for such failure satisfactory to the Board, the Board may (1) decide the fact or issue relating to the material which the Board has requested to be produced, or the subject matter of the probable testimony of the witness, in accordance with the claim of the other party or in accordance with other evidence available to the Board; (2) dismiss the appeal if the appellant is the disobedient party; or (3) make such other ruling as the Board determines is just and proper.
§ 2400.8 Lack of prosecution.
Where the appellant does not, within a reasonable time, take the necessary action to prosecute his appeal in accordance with this subpart, the Board may, upon reasonable notice, dismiss the appeal for lack of prosecution.
§ 2400.9 Settlement.
A dispute may be settled at any time by filing with the Board (a) a written notice by the appellant withdrawing his appeal, or (b) a written stipulation between the parties settling either the entire dispute or any part thereof. The appeal shall continue as to any issues remaining in dispute.
§ 2400.10 Prehearing arrangements.
(a) The Board may direct the parties to appear at a specified time and place for a conference to consider or otherwise provide for the following:
(1) Simplification of issues,
(2) Possibility of obtaining stipulations or admissions of fact and of documents, and
(3) Such other matters as may aid in the disposition of the appeal. (b) The results of the cor.ference shall be reduced to writing by the Board and this writing shall thereafter constitute a part of the record. § 2400.11 Hearings.
(a) Opportunity for hearing. Upon written request by either party, or upon motion of the Board, the Board shall afford an opportunity for an oral hearing before it: Provided, however, That, in the case of