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man. Simultaneously the Assistant Director may also delegate to the Board the power of final decision in the matter being appealed. The Board Chairman shall send a copy of the notice of designation, including any delegation of final decision power and the list of documents in the appeal file, to the appellant and to the General Counsel. (b) The file shall consist of the original, whenever possible, or copies of all documents pertinent to the appeal, including the following: (1) Notice of appeal.

(2) The findings of fact or decision of the Contracting Officer from which the appeal is taken.

(3) The invitation for bids or proposals, the contract, pertinent plans and specifications amendments, and change orders.

(4) All correspondence between the parties relating to or pertinent to the dispute.

(5) Transcripts of any testimony taken in connection with the dispute prior to the filing of the appeal, and affidavits or statements of any witnesses which were considered by the Contracting Officer in reaching decision being appealed.

(6) Any additional data that the Contracting Officer may consider pertinent.

(c) Upon receipt of the appeal file, the Board Chairman shall provide both the appellant and the General Counsel with a listing of the appeal file contents and shall notify them where the file may be examined. Each party may furnish or suggest additional documentation deemed pertinent to the appeal. The appeal file shall be available for examination by the parties or their counsel or representatives at the office of the Board Chairman, or at the office of the Contracting Officer.

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§ 22-60.207 Optional procedure for appeals.

In order to eliminate the costs of a hearing to the contractor and to the Government on appeals involving relatively small amounts, and to expedite the decisions on such appeals, appeals may be considerered without a hearing in accordance with the provisions of § 22-60.208, unless a hearing has been requested by either party within 20 days after receipt of the Contracting Officer's letter of acknowledgment of the notice of appeal or unless the Board orders a hearing.

§ 22-60.208 Submission without a hearing.

Where neither party desires a hearing, and the Board does not order one, the Board's findings and recommendations will be based upon the appeal file and such written submissions (including briefs) as the parties may submit on their own initiative or at the request of the Board. In all such cases the Board shall determine the time schedule for written submissions.

§ 22-60.209 Settlement; withdrawal of appeal.

A dispute may be settled at any time before decision by written stipulation between the appellant and the Contracting Officer, or their counsel or representatives, subject to the approval of the Assistant Director (or the Board in cases where final decision has been delegated to the "Board"). If only part of the dispute is settled, the appeal shall continue as to any issues remaining in dispute. At any time prior to decision the appellant may withdraw the appeal with prejudice, by written notice to the Board.

§ 22-60.210 Pre-hearing conference.

(a) The Board upon the request of either party, or in its own discretion, may call the parties to a prehearing conference to consider the following:

(1) Simplification or clarification of the issues.

(2) Possibility of obtaining stipulations, admissions of fact, and agreement respecting the introduction of documents.

(3) Limitation of the number of expert witnesses.

(4) Possibility of agreement disposing of all or any of the issues in dispute.

(5) Such other matters as may aid in the disposition of the appeal. (b) A member of the Board may be designated to conduct the prehearing conference. The results of the conference including any stipulations by the parties, shall be reduced to writing by the presiding member and shall be made part of the record.

§ 22-60.211 Hearings.

§ 22-60.211-1 Notice and where held.

In cases where a hearing has been requested or has been ordered by the Board, the parties will be given a minimum of 20 days notice in writing of the time and place of the hearing. Hearings will normally be held in Washington, D.C., unless the Board is satisfied that fairness to one or both of the parties requires a different hearing place. The Board may designate one of its members to conduct the hearing and to take all actions and make all rulings in connection with the conduct of the hearing which the full Board could make pursuant to the regulations in this part. In all such cases the designated member shall be an attorney or a qualified hearing examiner.

§ 22-60.211-2 Representation.

An appellant may appear before the Board in person, or may be represented by counsel or by any other duly authorized representative. § 22-60.211-3 Absence of parties.

The unexcused absence of a party or his authorized representative at the time and place set for the hearing will not be the occasion for delay of the hearing. In such event, the hearing will proceed and the case will be regarded as submitted on the record by the absent party, or the Board may, in its discretion and with the consent of the present party, cancel the hearing and treat the appeal as submitted on the written record.

§ 22-60.211-4 Nature of hearings; evidence.

Hearings will be informal and will seek to provide the Board with pertinent facts and positions of the parties. The Board shall not bẹ bound by formal rules of evidence. The parties shall be permitted reasonable latitude to present such relevant and trustworthy evidence and such arguments as they deem appropriate. However, the Board, in its discretion, may limit the extent and manner of presentation and may exclude repetitious material.

§ 22-60.211-5 Examination of witnesses.

Witnesses may be excused from testifying under oath, in the discretion of the Board. All witnesses may be examined or cross-examined by the members of the Board, the parties, or their representatives.

§ 22-60.211-6 Copies of documents.

Accurate copies of documents may be accepted in evidence if submission of original documents is not practicable.

§ 22-60.211-7 Posthearing briefs.

Posthearing briefs may be submitted upon such terms as may be ordered by the Board at the conclusion of the hearing. Unless otherwise ordered by the Board, the briefs of both parties shall be served and filed within 30 days after the hearing transcript is received.

§ 22-60.211-8 Transcript of proceedings.

Hearings shall be reported verbatim unless the Board orders otherwise. Copies of transcripts of proceedings can be obtained by appellants by ordering same from the public reporter and paying the cost thereof. § 22-60.211-9 Withdrawal of exhibits.

After a decision has become final, upon request and after notice to the other party, the Board may in its discretion permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of certified true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.

§ 22-60.212 Submission of additional information at Board's request.

The Board may request either party at any stage of an appeal proceeding to furnish any information which the Board deems necessary or desirable in connection with its consideration of the appeal. Submission thereof shall be made within a reasonable time limit to be specified by the Board.

§ 22-60.213 Communications between parties and the Board; evidence of service.

(a) Copies of all briefs, pleadings, notices and other communications between a party and the Board shall be simultaneously served upon the other party, except that in the case of lengthy written material placed in the appeal file pursuant to §22-60.206 or 822-60.212, it shall be sufficient to serve upon the other party a description of the material in question and the date of its transmission for the file. All written communications by a party to the Board shall contain or be accompanied by evidence of simultaneous service upon the other party by means of personal delivery or by mail.

(b) Except as provided in 822-60.211-3, all communications between one party to a pending appeal and members of the Board which relate to the merits of the appeal shall be made in the presence of the other party, if oral, or shall be served upon the other party in accordance with paragraph (a) of this section, if written.

§ 22-60.214 Findings, recommendations, and decision.

(a) In cases where the Board has not been delegated the power of final decision, it shall submit its written findings and recommendations to the Assistant Director. The Assistant Director may accept, modify or reject the Board's findings and recommendations, and in his discretion he may direct that copies thereof be served upon the parties and that they be given such opportunity as he may specify to comment orally or in writing prior to making his decision. The decision of the

Assistant Director in such cases shall be final and conclusive within the meaning of the Disputes clause of the contract.

(b) In cases where pursuant to § 22-60.206 (a) the Assistant Director has delegated to the Board the power of final decision, the Board's findings and decision shall be final and conclusive within the meaning of the "Disputes," clause of the contract.

(c) Every final decision pursuant to paragraphs (a) and (b) of this section and all findings and recommendations of the Board pursuant to paragraph (a) of this section shall be based upon substantial evidence of record.

(d) A copy of each decision shall be furnished to both parties to the appeal and shall be available for public inspection at the office of the Contracting Officer.

(m) DEPARTMENT OF TRANSPORTATION

TITLE 41-PUBLIC CONTRACTS AND PROPERTY
MANAGEMENT

CHAPTER 12-DEPARTMENT OF TRANSPORTATION

PART 12-60-CONTRACT APPEALS

Title 41 of the Code of Federal Regulations is amended by the addition of a new Chapter 12 consisting of Part 12-60 and reading as follows:

Sec.

12-60.000 Scope of part.

12-60.101

SUBPART 12-60.1-CONTRACT APPEALS BOARD

Establishment.

12-60.102 Qualifications of members.

12-60.103

Authority and duties of the Board and its members. 12-60.104 Authority and duties of the chairman.

12-60.201

SUBPART 12-60.2-CONTRACT APPEAL PROCEDURES

General.

12-60.202 Notice of appeal.

12-60.203 Forwarding of appeals.

12-60.204 Duties of the contracting officer.

12-60.205 Appellant's election as to procedure.

Procedure for submission on written record.
Conference hearing procedure.

12-60.206

12-60.207

12-60.208

Pleadings.

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AUTHORITY: The provisions of this Part 12-60 issued under 80 Stat. 931 et seq. § 12-60.000 Scope of part.

This part establishes the Department of Transportation Contract Appeals Board, prescribes its functions and procedures, provides for the appointment of a chairman and members of the Board and authorizes the members of the Board to act.

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