SUBPART B-RULES OF PROCEDURE IN CONTRACT APPEALS

§ 3.200 Notice of appeal.

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(a) An appeal from the decision of a contracting officer shall be made by notice of appeal in writing, addressed to the Board, and shall be mailed to, or filed with, the contracting officer, within the time allowed by the contract. The notice of appeal shall specify the portion of the decision from which the appeal is taken, and the reasons why the decision is deemed erroneous, and shall include a request for application of the accelerated procedure under §3.205 if such is desired. (b) A statement of fact and argument in the form of a brief in support of the appeal may be submitted with the notice of appeal, or if the appellant prefers, may be mailed to or filed with the contracting officer, addressed to the Board, within fifteen (15) days after the mailing or filing of the notice. When a statement of fact and argument in the form of a brief in support of the appeal is not submitted with the notice, the contractor shall state in the notice whether such a statement of fact and argument in the form of a brief in support of the appeal will be filed.

§3.201 Answer.

(a) When a statement of fact and argument in the form of a brief in support of the appeal has been filed, an answer may be filed with the Board by the contracting officer within thirty (30) days from the date of receipt of the statement of fact and argument in the form of a brief in support of the appeal.

(b) In the event no statement of fact and argument in the form of a brief is filed by appellant, the contracting officer may file an additional statement of his position and supporting argument within thirty (30) days from the receipt of notice that no statement of fact and argument in the form of a brief in support of the appeal will be filed. §3.202 Responsibilities of the contracting officer.

(a) Immediately upon receipt of the notice of appeal, the contracting officer shall inform the Board that the appeal has been received and shall promptly but in no event later than fifteen (15) days from the date of receipt transmit the appeal file in quintuplicate (triplicate in accelerated proceedings) to the Board. The appeal file shall consist of the notice of appeal and the appellant's brief, if any, submitted therewith and of all documents on which the contracting officer has relied in making his decision, including the following:

(1) The decision of the contracting officer;

(2) The contract, specifications, pertinent drawings and plans, and modifications including change orders; and

(3) All correspondence and other data material to the appeal other than documents in the categories set forth in § 9.5(a) of this chapter.

(b) At the time the appeal file is transmitted to the Board, a copy of all papers and documents included in the appeal file and not reasonably expected by the contracting officer to be accessible to the appellant, shall be transmitted to the appellant together with an index thereof.

2 A suggested form of notice of appeal appears at the end of this part as Appendix B.

§3.233 Dismissal for lack of jurisdiction.

Any motion addressed to the jurisdiction of the Board shall be filed promptly but in no event later than fifteen (15) days prior to the date set for conference (see § 3.204). The moving party shall attach to the motion a statement setting forth the basis for the motion. A statement in opposition to the motion may be filed with the Board within ten (10) days from the date on which the motion is received by the opposing party. The Board shall have the right on its own motion at any time to recognize its lack of jurisdiction after affording the parties an opportunity to be heard thereon.

§3.204 Conference.

(a) Within sixty (60) days after receipt of the appeal file, the Chairman shall direct the parties to appear before the Board for the purpose of exploring the possibility of informally disposing of the appeal by agreement. If it becomes evident that such informal disposition of the appeal by agreement cannot be achieved, the following matters shall be considered:

(1) Jurisdiction of the Board, if the issue has been raised and not already disposed of;

(2) Simplification of issues;

(3) Possibility of obtaining stipulations, admissions of facts and other agreements which will avoid unnecessary proof;

(4) Scope of expert testimony if a hearing is to be held, including requests by the Board for the introduction of any expert testimony desired by the Board; and

(5) Such other matters as may aid in the disposition of the appeal. (b) The results of the conference shall be reduced to writing by the Board and such writing shall thereafter constitute part of the record.

(c) At the conclusion of the conference the Board may enter an order which recites the action taken at the conference. The order shall control the subsequent course of the proceeding unless modified for good cause.

§ 3.205 Accelerated procedure.

(a) If the amount involved in an appeal does not exceed $20,000, the Board (see § 3.100 (d)) will, at the request of the appellant, undertake to issue a decision on the appeal on an expedited basis, without regard to its normal position on the docket. Under this accelerated procedure, the case will be further expedited if the parties elect to waive the filing of written materials and/or elect to waive the hearing. In all other respects these rules will apply.

(b) This procedure may at the discretion of the Chairman be employed regardless of the amount involved for other good causes shown, such as financial hardship, status as small business, location of appellant in an area of concentrated unemployment or underemployment or in an area of substantial or persistent labor surplus.

(c) A request for a decision on an expedited basis under this section shall be contained in the notice of appeal.

§ 3.206 Depositions.

(a) After an appeal has been docketed, the Board may, for good cause shown, order the taking of testimony of any person or 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. The application for an order shall specify whether the purpose of the deposition is for discovery or for use as evidence. A copy of the application, and any order issued, shall be served on the other party, who shall be entitled to be represented at the taking of depositions.

(b) 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. It will not ordinarily be received in evidence except for good cause shown as to why the deponent is not present to testify personally at the hearing. The deposition of a witness may be used to contradict or impeach the testimony of the witness given at the hearing. In cases otherwise heard on the record, the Board may on motion of either party and in its discretion, receive depositions as evidence in the record.

(c) 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 only upon paying therefor.

§3.207 Interrogatories to parties; inspection of documents; admission of facts.

For good cause shown, the Board may permit a party to serve written interrogatories upon the opposing party, order a party to produce and permit inspection and copying or photographing of designated documents or other tangible items relevant to the appeal, or permit the serving on the opposing party of a request for admission of facts. Such permission will be granted and orders entered as are consistent with the objective of securing a just and inexpensive determination of proceedings without unnecessary delay, and subject to the provisions of § 9.5 of this chapter.

§ 3.208 Request for hearing.

If at the conclusion of the conference there remains a disputed question of fact, the Board shall, at the request of either party received not later than fifteen (15) days from the last day of the conference, grant a hearing. In the absence of a request, the Board may, in its discretion, require a hearing. If a hearing is not held, the Board shall decide the appeal on the record.

§3.209 Notice of hearing.

The parties will be given a minimum of fifteen (15) days' notice of the time and place of the hearing which will be held at the AEC Headquarters Office, Washington, D.C., or any other place which the Board determines will best serve the interests of the parties. §3.210 Conduct of hearing.

(a) The hearings shall be conducted by the Board.

(b) Hearings shall be as informal as may be reasonable and appropriate under the circumstances. The parties may offer such relevant evidence as they deem appropriate and as would be admissible under the generally accepted rules of evidence applied in the courts of the United States in nonjury trials, subject, however, to the sound discretion of the Board in supervising the extent and manner of presentation of such evidence. In general, admissibility will hinge on relevancy and materiality. Letters or copies thereof, affidavits, or other evidence

not ordinarily admissible under the generally accepted rules of evidence may be admitted in the discretion of the Board. The weight to be attached to evidence presented in any particular form will be within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Board may in any case require evidence in addition to that offered by the parties.

(c) Witnesses before the Board will be examined orally under oath or affirmation, unless the facts are stipulated, or the Board shall otherwise order. If the testimony of a witness is not given under oath, the Board shall invite the attention of the witness to the provisions of 18 U.S.C. sec. 287 and 1001.

(d) A verbatim transcript of the hearings shall be made. A copy of the transcript shall be available for public inspection.

§3.211 Posthearing briefs.

The Board shall fix a time not less than thirty (30) days from the conclusion of the hearing within which posthearing briefs may be filed.

§3.212 Service of papers.

(a) A copy of all statements or briefs addressed to the Board, except the appeal file, shall be served on the other party and his attorney at the time of filing with the Board. Service of written materials may be made personally or by mailing same to the other party.

(b) Five copies of all statements or briefs (three copies in accelerated proceedings) shall be filed with the Board.

§3.213 Decisions.

The opinion of a majority of a panel, or of the Chairman, or Vice Chairman in appeals decided under § 3.205 constitutes the decision of the Board. A copy of the decision shall be furnished to both parties and shall be available for public inspection.

§3.214 Reconsideration.

A request for reconsideration may be filed within thirty (30) days after receipt of the decision by either party. Reconsideration of a decision, which may include a hearing or rehearing, may be granted if, in the judgment of the Board, sufficient reason therefor appears. Failure to request reconsideration shall not be deemed to be a failure to exhaust administrative remedies.

§ 3.215 Remands from Courts.

Whenever any matter is remanded to the Board from any court for further proceedings, the Board shall treat the matter as an appeal under the Accelerated procedure provided for in § 3.205, and undertake to issue a decision thereon on an expedited basis; except that proceedings remanded from any court shall be decided by a three member panel as provided in § 3.100 (c). The Board shall afford the parties an opportunity to dispose of the dispute by agreement prior to the conference.

§ 3.216 Extensions of time.

The Chairman may grant extensions of time except with respect to the filing of the notice of appeal.

§3.217 Representation.

The parties to an appeal may appear before the Board in person, a corporation by an officer thereof, a partnership or joint venture by a member thereof, or any of these by an attorney who is admitted to practice before the courts of any State, Territory, or the District of Columbia.

§3.218 Security.

All proceedings shall be so conducted and the Board shall take such steps as necessary to insure compliance with the security regulations. and requirements of the Commission.

§3.219 Sanctions.

If any party fails or refuses to obey an order issued by the Board, the Board may make such orders in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal. §3.220 Unexcused absence of a party.

The unexcused absence of a party at the time and place set for hearing will not be occasion for delay. In the event of such absence, the hearing may proceed and the case will be regarded as submitted by the absent party on the record.

APPENDIX A

AECPR 9-59.003 provides, in part, as follows:

"89-59.003 Policies for cost-type contractor procurement. The following policies are established for cost-type contractor procurement. Within these policies it is expected that procurement systems and methods will vary according to the types and kinds of procurement to be made, the needs of the particular programs, and the experience, methods, and practices of the particular contractor. In the development of procurement systems and methods, contractors should be encouraged to make maximum utilization of their experience and initiative to the extent consistent with the requirements of this part.

"(j) Subcontracts and purchase orders for supplies and services for the AEC work normally should include provisions for resolving disputes to the same extent and in the same manner as in similar AEC direct contracts. A disputes clause which can be used to carry out this policy is set forth in § 9-7.5004-3 (b).”