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appeals from debarment actions under § 2400.4, an oral hearing shall be held unless waived in writing by the debarred person.
(b) Submission without hearing. In the absence of an oral hearing, the Board will make its findings of fact and render its decision based on the facts in the written record.
(c) Notice of hearing. If an oral hearing has been requested by either party or ordered by the Board on its own motion, the time shall be fixed and the place where such hearing will be conducted shall be specified and the Executive Secretary shall serve upon the parties at least 15 days' notice thereof in writing, unless the parties shall stipulate a shorter time.
(d) Place of hearing. Oral hearings, when granted, shall be held in Washington, D.C., unless otherwise directed by the Board or panel. (e) Representation before the Board. The appellant may handle his appeal without assistance or may be represented by an attorney or by any representative meeting the requirements of 7 C.F.R. 1.26.
(f) Conduct of hearings. (1) Oral hearings before the Board will be as informal as may be reasonably permitted under the circumstances. The strict rules of evidence as required in courts of law will not be applied in the conduct of the hearing. The Board will receive matter deemed material and relevant to the issues raised in the appeal but may exclude that which it considers remote, speculative, or cumulative.
(2) On appeals from debarment by the Corporation for causes specified in paragraph (a) or (b) of § 1407.5 of this title, and by the Department for causes specified in 41 CFR 4-1.605-1, the Board may accept as final on the issues involved therein a decision by a court of competent jurisdiction convicting a person of a criminal. offense or adjudging him liable to the United States or the Corporation, or a decision by an agency of the U.S. Government other than the Corporation or the Department, debarring or otherwise forbidding a person from contracting with or otherwise participating in contracts or programs administered or financed by such agency, and may exclude any evidence offered to the contrary. The Board may, however, receive evidence relevant to the question of whether such offense, basis of liability, or reason for the action taken by such other agency were sufficient cause for the debarment, and the period thereof, imposed by the Corporation, or the Department.
(3) Either party, at his own expense, may invite witnesses to appear and testify. The Board may also invite such witnesses as it deems necessary. Witnesses shall be required to testify under oath and shall be subject to cross-examination. A party shall exercise reasonable effort to make available any officer, director, official or employee of such party who resides or has his principal place of business within 100 miles of the place of the hearing and whose testimony is desired by the opposing party or by the Board. In the event of failure of a party to make such a person available at a hearing upon request of the opposing party or the Board, without an excuse or explanation satisfactory to the Board, the Board may take any action authorized in § 2400.7 which it determines just and proper.
(4) In the event of the unexcused absence of a party at the time and place set for hearing, the hearing will proceed and the appeal will be deemed as having been submitted without oral testimony or argument by that party.
§ 2400.12 Decisions.
(a) The Board shall make specific findings of fact and shall render a decision based thereon where the appeal arises under the authority of a disputes article or other article providing for an appeal in a contract or in an appeal from a debarment.
(b) A motion for reconsideration may be made to the Board within 30 days from the date of the decision. Request for reconsideration of decision, as for a hearing or rehearing, may be granted if, in the judgment of the panel with the concurrence of the Chairman, sufficient reason therefor appears.
(c) If the determination of the Board in connection with an appeal filed pursuant to § 2400.3(a) (2) results in the settlement or adjustment of a claim by or against the appellant, the Board will prepare a settlement agreement which will be executed on behalf of the Corporation by the Executive Secretary of the Board upon direction of the Board.
(d) Decisions of the Board may be examined and copied by interested persons at the Board office.
§ 2400.13 Extensions of time and stenographic reporting of hearings.
(a) Upon timely written request of either party, the Board may, in its discretion, grant an extension of the times set forth in this part except that no extension will be made of the time allowed within which to file an appeal.
(b) Hearings will be stenographically reported and transcripts thereof shall be made when deemed necessary by the Board, cost to be borne by agency involved. One copy of any such transcript will be made available to the appellant free of cost.
Effective date: Date of publication.
Signed at Washington, D.C., on January 26, 1968.
ORVILLE L. FREEMAN,
(b) DEPARTMENT OF ARMY, CORPS OF ENGINEERS
RULES OF THE CORPS OF ENGINEERS BOARD OF CONTRACT APPEALS33 CODE OF FEDERAL REGULATIONS 210.5-PREFACE TO RULES
The Corps of Engineers Board of Contract Appeals is the authorized representative of the Chief of Engineers for the purpose of hearing, considering and determining, as fully and finally as he might, appeals by contractors from decisions of contracting officers or their authorized representative or other authorities on disputed questions, taken pursuant to the provision of contracts requiring the determination of such appeals by the Chief of Engineers or his duly authorized representative or Board.
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 near, consider, and decide all questions of law necessary for the complete adjudication of the issue. In the consideration of an appeal, should it appear that a claim is involved which is not cognizable under the terms of the contract, the Board may make findings of fact with respect to such a claim without expressing an opinion on the question of liability.
Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These 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 or relevant and material facts, and to discourage unwarranted surprise. The parties are expected to cooperate and to voluntarily comply with the intent of such procedures without resort to the Board except on controversial questions.
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. These time limitations are similarly eligible for extension 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.
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.
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) 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 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 Rule 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. 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 together with a copy of the decision appealed from, to the Board. Following receipt by the Board of the papers described in the next rule (Rule 4), the contractor will be promptly advised of its receipt and that the appeal is then considered docketed, and the contractor will be furnished a copy of these rules.
4. Duties of the contracting officer. Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall compile and transmit to the Board and to the Government trial attorney copies of all documents pertinent to the appeal, including the following:
(a) 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;
(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;
(e) Such additional information as may be considered material. Upon completion of the foregoing compilation, the contracting officer shall notify the appellant, provide him with a listing of its contents; and 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.
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. 6. Pleadings. (a) Within 30 days after receipt of notice of docketing of the appeal, as provided in the last sentence of Rule 3, 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 Recorder of 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) Within 30 days from receipt of said complaint, or the aforesaid notice from the Recorder of 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 respondent's 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 counterclaims, as appropriate. Upon receipt thereof, the Recorder 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.
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 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 Rule 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 Rule 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.
8. Hearing-election.-Upon receipt of respondent's answer or the notice referred to in the last sentence of Rule 6(b), above, appellant shall advise the Board whether he desires a hearing, as prescribed in Rules 17 through 25, or whether in the alternative he elects to submit his case on the record without a hearing, as prescribed in Rule 11. In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in Rule 12.
9. Pre-hearing briefs.—Based on an examination of the documentation described in Rule 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 pre-hearing 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 pre-hearing brief to the