Nomenclature

9135-753-4637 Ib 6810-576-8438 lb 6810-812-9181 gl

335 lb drum.

1 lb jar.
53 gl drum.

Contract Appeals is authorized to act for the Administrator in hearing, considering and deciding appeals by NASA contractors from the findings of fact and final decisions of NASA contracting officers or their authorized representatives pursuant to the "Disputes" clause of a NASA contract.

§ 18-54.102 Notice of appeal.

An appeal from the findings of fact and final decision of a NASA contracting officer (or his representative if such representative has been authorized by the contracting officer to make final decisions pursuant to the "Disputes" clause) shall be made by submitting a notice in writing, addressed to the Board of Contract Appeals (hereinafter referred to as the Board), National Aeronautics and Space Administration, Washington, D.C. 20546. Such notice shall be filed within 30 days from the date of receipt of the written decision of the contracting officer or his authorized representative, unless otherwise provided in the contract. The original notice, together with two copies thereof, shall be mailed to or filed with the contracting officer from whose final decision the appeal is taken. The notice of appeal shall indicate that an appeal is thereby intended, and shall identify the contract (by number), the contracting officer, and specify the portion of the findings of fact and final decision from which the appeal is taken; however, an appeal shall not be deemed invalid if the notice expresses a desire for a review of a final adverse decision. The notice shall

be signed by the contractor or his representative. A suggested form of notice of appeal is set forth in § 18-54.123.

§ 18-54.103 Action by contracting offi

cer.

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 otherwise filed, and shall forward such notice immediately to the Chairman of the Board for docketing. Within 10 days from the date of receipt of the notice of appeal, the contracting officer shall transmit one copy of the notice of appeal to the General Counsel for use of Government counsel and one copy to the Board. The Board's copy shall be accompanied by a file consisting of:

(a) The findings of fact and the final decision from which the appeal is taken; (b) All documents relied upon in making the findings and final decision;

(c) A copy of the contract and specifications, pertinent plans, amendments, and change orders;

(d) All correspondence between the parties relating to the dispute;

(e) Transcripts of any testimony taken in connection with the dispute, and any affidavits or statements of any witnesses that were made prior to the notice of appeal; and

(f) Such additional information as the contracting officer may consider material.

True copies may be substituted for originals in this file.

§ 18-54.104 Designation of government counsel.

Upon receipt of the copy of notice of appeal from the contracting officer, the General Counsel shall promptly designate counsel to represent the interests of the Government. Government counsel shall file a notice of appearance with the Board, and notice thereof shall be given promptly to the contractor by the Board. § 18-54.105

Petition.

A petition in support of the appeal shall be filed by the appellant with the Board within 30 days after the mailing or filing of the notice of appeal or within such longer period of time as may be allowed by the Board. A supporting brief may also be filed. The petition shall set forth:

(a) A summary of the decision of the contracting officer on the dispute from which the appeal is taken; and

The contractor may file a reply within 15 days after receipt of the answer of counsel for the Government.

§ 18-54.108 Appeal file-inspection of file.

The appeal file shall consist of the notice of appeal, documents required to be filed pursuant to § 18-54.103, the petition and exhibits thereto, the answer and exhibits attached thereto, all papers filed by the parties with the Board pursuant to instructions contained herein, and all correspondence exchanged between the Board and the parties or their attorneys. The appeal file shall be available for inspection by the appellant and Government counsel at the offices of the Board or the office of the contracting officer.

At any time before oral hearing or before submission of a case by the parties without an oral hearing, the Board at its discretion may permit a party, within the proper scope of the appeal, to amend its petition or answer, upon conditions just to both parties. The Board, at its discretion or upon application by a party, may order a party to make a more definite statement of its petition or answer, or to reply to an answer. When issues within the proper scope of the appeal but not raised by the complaint and answer are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised therein. If evidence is objected to at the hearing on the ground that is not within the issues made by the petition and answer, the Board may allow the pleadings to be amended within the proper scope of the appeal and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the Board that the admission of such evidence would prejudice him in maintaining his case or defense upon the merits. The Board may, however, grant a continuance to enable the objecting party to meet such evidence.

§ 18-54.110 Trial briefs.

The Board at its discretion may order the submission of trial briefs prior to oral hearing.

§ 18-54.111 Motions to dismiss for lack of jurisdiction.

Defenses which go to the jurisdiction of the Board shall be raised by motion. However, the Board shall be deemed to have jurisdiction over any appeal, if timely filed, arising from the findings of fact and final decision of a NASA contracting officer or his authorized representative pursuant to the "Disputes" clause of a NASA contract. Filing of motions to dismiss for lack of jurisdiction shall not be unreasonably delayed. Motions to dismiss for lack of jurisdiction shall, upon application of either party, be heard and determined before oral hearing on the merits. The Board, however, has the right at any time to recognize its lack of jurisdiction to proceed in a particular case.

§ 18-54.112 Failure to state a case.

If, after completion of the pleadings, the Board finds that the appellant has failed to state a case on which any relief could be granted by the Board, the Board may give notice to the appellant to show cause why the appeal should not be dismissed on the ground that no useful purpose would be served by setting the case for oral hearing on the merits. The appellant, in such event, will be afforded an opportunity to be heard orally for the purpose of showing cause why the appeal should not be dismissed on that ground and, if the appellant so desires, to move to amend the complaint within the proper scope of the appeal. If the Board thereafter finds that the appellant has failed to show cause, and finds that the complaint, with such amendments as may be offered by the appellant, fails to state a case on which the Board could grant relief, the appeal shall be dismissed. § 18-54.113 Depositions.

(a) Depositions shall be limited to those situations where there is reason to believe that the witness will not be available for the hearing, and shall be permitted in evidence only when in fact the witness is not present at the hearing. Subject to the foregoing limitation, depositions upon oral examination or written interrogatories may be taken by either party and used as evidence at the hearing when relevant and material to the case.

(b) Depositions to be offered in evidence before the Board may be taken before and authenticated by any person authorized by the laws of the United States, or by the laws of the place where the deposition is taken, to administer oaths.

(c) The taking of a deposition shall be preceded by giving the opposite party at least 15-day notice in writing of the time and place where such deposition will be taken. The notice shall state the name and address of the witness, and the name, official title, and address of the person before whom the deposition is to be taken; and shall indicate whether the deposition will be taken on oral examination or written interrogatories. The parties may stipulate in writing the requirements of the notice, in which case no notice is required. If the deposition is to be taken on written interrogatories, two copies thereof should accompany the notice or stipulation.

(d) Within 10 days after receipt of the interrogatories, the opposing party may serve cross-interrogatories to be propounded to the witness by forwarding them to the officer designated to take the deposition and simultaneously forwarding a copy to the other party.

(e) Each deposition shall show the docket number and caption of the proceedings, the place and date of taking, the name of the witness, and the names of all persons present. The person taking the deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness, and shall enclose the original deposition and exhibits in a sealed packet with postage and other transportation prepaid and forward same to the Board.

(f) A deposition taken under the provisions of this section may be offered by either party to the appeal. Depositions will not be considered as evidence until they have been offered and received as such. All objections made at the time of the taking of the deposition will be passed on at the hearing by the Board, which may exclude any part determined to be irrelevant, immaterial, or otherwise not admissible as evidence in the proceedings. The entire deposition must be offered unless otherwise stipulated by the parties or directed by the Board.

The parties may stipulate in writing to any facts that are relevant and materail to the issues involved, and to those documents or facts which may be received in evidence without formal proof. § 18-54.115 Prehearing conference.

The Board, upon its own initative or upon application of one of the parties, may direct the parties or their attorneys to appear before the Board or a member designated by the Chairman at a specified time and place for a conference to consider:

(a) Simplification of the issues;

(b) The possibility of obtaining stipulations as to admissions of fact and introduction of documents which will avoid unnecessary proof;

(c) The limitation of the number of expert witnesses, if a hearing is to be held; and

(d) Such other matters as may aid in the disposition of the appeal.

The results of the conference shall be reduced to writing by the Board or the member designated by the Chairman and made part of the record.

§ 18-54.116 Settlement.

A dispute may be settled at any time by the contractor's filing written notice withdrawing his appeal or by written stipulation between the contractor and the Government counsel filed with the Board settling either the entire dispute or any part thereof. If only part of the dispute is settled, the appeal shall continue as to any issues remaining in dispute.

§ 18-54.117 Filing of papers.

The parties shall file with the Board an original and two copies of all papers, subsequent to the petition and answer. Upon receipt thereof, the Board shall forward a copy to the opposing party. § 18-54.118 Hearing.

(a) The contractor may submit the case on the record or request a hearing. The Board shall, at the request of either party within 15 days after the answer is filed, grant a hearing. The parties shall be given at least 15-day notice of the time and place of hearing.

(b) Hearings will be held at NASA Headquarters, Washington, D.C., unless otherwise ordered by the Board.

(c) Hearings shall be as informal as may be reasonably allowable and appropriate under all the circumstances. Both parties may offer oral and written evidence, subject to the exclusion by the Chairman of any irrelevant, immaterial, or repetitious evidence. The general procedure as to the introduction of evidence and the calling of witnesses shall be at the discretion of the Chairman.

(d) Testimony shall be under oath or affirmation, unless the facts are stipulated or the Chairman shall otherwise order. Attention of witnesses shall be invited to the provisions of 18 U.S.C. 1621 relating to false testimony under oath. If the testimony of a witness is not given under oath the Board shall invite the attention of the witness to the provisions of Title 18, United States Code, Sections 287, 1001; Section 19 of the Contract Settlement Act of 1944 (41 U.S.C. 119); and any other provisions of law imposing penalties for knowingly making false representations in connection with claims against the United States or in any mat