(d) Settlement or denial of any claim under this part is final for the Department of Commerce.

(e) No action with respect to any tort claim regardless of amount shall be taken without prior legal review and approval by the General Counsel of the Department or his designee.

§ 2.4 Procedure for filing claims.

(a) The procedure for filing and the contents of claims shall be pursuant to §§ 14.2, 14.3, and 14.4 of the Regulations (28 CFR Part 14).

(b) Claims shall be filed with the Assistant Secretary for Administration, Department of Commerce, Washington, D.C. 20230.

(c) If a claim is filed elsewhere in the Department, it shall immediately be recorded and transmitted to the Assistant Secretary for Administration.

§ 2.5 Adjudication and settlement of

claims.

(a) Upon receipt of a claim, the time and date of receipt shall be recorded. If such claim involves a unit other than one for which the Assistant Secretary for Administration is responsible under paragraph (a) of § 2.3, he shall, after recording of such claim, transmit it to the head of such unit, who shall in turn transmit it to the appropriate official of his unit. The appropriate official shall prepare a file, make or cause such investigation to be made, and obtain such information as necessary. If the investigative facilities of the unit are insufficient for a proper and complete investigation, such unit shall consult with the departmental Office of Investigations and Security with a view to (1) having such office conduct the investigation or (2) requesting another Federal agency to conduct such investigation as necessary, pursuant to § 14.8 of the Regulations (28 CFR Part 14), all on a reimbursable basis.

(b) If the amount of the proposed award exceeds $25,000 (in which case, approval by the Attorney General is required), or if consultation with the Department of Justice is desired or required pursuant to § 14.6 of the Regulations, the unit involved will prepare and compile the material required by the Department of Justice under § 14.7 of the Regulations (28 CFR Part 14) and submit such material to the General Counsel of the Department for consultation with or referral to the Department of Justice.

(c) Denial of a claim shall be communicated as provided by $ 14.9 of the Regulations (28 CFR Part 14).

(d) Designees hereunder are responsible for the control over and expeditious handling of claims, bearing in mind the applicable statutory time limitations for adjudications of claims.

§ 2.6 Payment of claims.

When an award is made, the fille on the case shall be transmitted to the appropriate fiscal office for payment by the Department or for transmittal for payment as prescribed by § 14.10 of the Regulations (28 CFR Part 14). Prior to payment appropriate releases shall be obtained, as provided in said section.

Designees hereunder shall compile a report for their respective areas covering the preceding fiscal year, describing actions, including denials, taken under this part, name of claimant, amount claimed, amount of any award, and a brief description of the claim. The report shall be filed by August 15 of each year, one copy to be submitted to the Assistant Secretary for Administration and one to the General Counsel of the Department.

§ 2.8 Supplementary regulations.

(a) The Assistant Secretary for Administration may from time to time issue such supplementary regulations or instructions as he deems appropriate to carry out the purpose of this part.

(b) Any designee mentioned in paragraph (a) of § 2.3 may issue regulations or instructions covering his area of responsibility hereunder which are consistent with this part and with those issued under paragraph (a) of this section, such regulations and instructions to be approved by the Assistant Secretary for Administration and the General Counsel. APPENDIX A-PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT ACCRUING ON OR BEFORE JANUARY 17, 1967

A. Purpose:

The purpose of this Appendix A to Part 2, is to delegate authority to settle claims for personal injury or property damage under the Federal Tort Claims Act (28 U.S.C. 267180) and to establish procedures for the adjudication of such claims accruing on or before January 17, 1967.

B. Provisions of law:

1. Title 28 U.S.C., section 2672, provides: "(a) The head of each Federal agency, or his designee for the purpose, acting on be

half of the United States, may consider, ascertain, adjust, determine, and settle any claim for money damages of $2,500 or less against the United States accruing on and after January 1, 1945, for injury or loss of property or personal injury or death caused by the negligent wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

"(b) Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud.

"(c) Any award made pursuant to this section, and any award, compromise, or settlement made by the Attorney General pursuant to section 2677 of this title, shall be paid by the head of the Federal agency concerned out of appropriations available to such agency.

"(d) The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter."

2. Under Title 28, section 2401(b), it is provided in part that a claim not exceeding $2,500 must be presented in writing within 2 years after the claim accrues.

3. Title 28, Section 2678, of the act provides in part as follows:

"the head of the Federal agency or his designee making an award pursuant to section 2672 of this title may, as a

part of such judgment, award, or settlement, determine and allow reasonable attorney fees, which, if the recovery is $500 or more, shall not exceed 10 per centum of the amount recovered under section 2672 of this title * to be paid out of but not in addition to the amount of judgment, award, or settlement recovered, to the attorneys representing the claimant."

C. Delegation of authority for adjudication and settlement of claims:

1. The head of each primary operating unit is hereby authorized to exercise with respect to claims authorized to be considered, ascertained, adjusted, determined, and settled under sections 2672 and 2678 of Title 28, in accordance with sections D and E of this Appendix, all authority vested in the Secretary of Commerce by said sections. The General Counsel of the Department of Commerce is authorized to exercise such authority with respect to claims arising out of the wrongful acts or omissions of any employees of the constituent units of the Office of the Secretary.

2. The authority delegated under paragraph 1 of this section may be redelegated

to such officers of the primary operating units and of the Office of the General Counsel as the heads thereof may deem appropriate.

3. The adjudication and settlement of any claim in accordance with the provisions of this Appendix constitutes final action in the case insofar as the Department of Commerce is concerned and no further review in the Department may be obtained.

D. Procedure for making claims:

1. Claims may be filed with the primary operating unit involved or in any of its field offices, or with the Office of the General Counsel where a constituent unit of the Office of the Secretary is involved.

2. A claim may be filed by the individual or firm sustaining injury or damages in his or its own right or by an attorney.

3. Claims shall be filed on Standard Form No. 95, "Claim for Damage or Injury." The file in each claim should also include a statement of the employee involved and statements of any witnesses. This evidence should be supported by any other documentary evidence that will be helpful in adjudicating the claims.

E. Adjudication and settlement of claims: 1. Upon receipt of a claim the date of receipt shall be made a matter of record. After recording, the claim will be forwarded to appropriate legal counsel for review of the evidence and recommended disposition, including amount of award, if any, and attorneys' fees. When deemed necessary, additional evidence or investigation of the facts in any given case may be requested. Claims involving unusual or novel questions of law may be submitted to the General Counsel of the Department for consideration and recommendation.

2. The officer to whom authority is delegated to settle tort claims shall make the final determination as to whether or not an award shall be made in each case, and, if an award is to be made, the amount of the award, and the amount to be allowed for attorneys' fees.

F. Payment of claims:

When an award is made, the file on the case will be transmitted to the appropriate fiscal office for payment out of funds appropriated, or to be appropriated, for the purpose. Prior to the payment of any claim which is administratively settled, there shall be obtained from the claimant or claimants a release stating that the award or settlement is final and conclusive and constitutes a complete release by the claimant of any claim against the United States and against the employee of the Government arising out of the circumstances which resulted in the claim.

G. Annual report:

An annual report shall be submitted by each primary operating unit, and the General Counsel to the Office of Administrative Services by August 15 of each year covering the preceding fiscal year and showing, with respect to each claim settled, the name of each claimant, the amount claimed, and the

3.15 Optional accelerated procedure. 3.16 Extensions of time.

AUTHORITY: The provisions of this Part 3 issued under R.S. 161; 5 U.S.C. 301, Department Order No. 106 (Revised), 25 F.R. 2603, 3-26-60.

SOURCE: The provisions of this Part 3 appear at 29 F.R. 19095, Dec. 30, 1964, unless otherwise noted.

§3.1 Scope and authority.

(a) The standard forms of construction, supplies and services contracts used within the Department of Commerce contain provisions to the effect that disputes arising thereunder and not disposed of by agreement shall be decided by the contracting officer, subject to appeal by the contractor to the head of the Department, i.e., the Secretary of Commerce. This is a contractual method of resolving disagreement and can be invoked only where and to the extent a contract so provides.

(b) Pursuant to Revised Statutes, section 161 (5 U.S.C. 22) and sections 2 and 4 of Reorganization Plan No. 5 of 1950 (5 U.S.C. 133z-15), the Secretary has established an Appeals Board (Department Order No. 106 (R) 25 F.R. 2603, 3-26-60), within the Office of the Assistant Secretary for Administration, and has delegated to this Board authority to consider and decide disputes under contracts entered into by the several bureaus (other than the Maritime Administration) within the Department. no further administrative appeal within the Department of Commerce from decisions of the Board. (The Secretary has also authorized the Board to consider

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There is

appeals from the public in respect to certain specified administrative and regulatory actions within the Department, e.g., under the Export Control Act, Parts 382 and 383 of this title, Defense Production Act, Regs. 5 under Chap. VI of Title 32A, and Surplus Property Disposal Act, § 401.13, Chap. IV of Title 44.)

(c) The Appeals Board consists of full-time Chairman and fifteen (15) to twenty (20) departmental officials specially qualified to serve as members and designated as such by the Secretary. The Chairman is the administrative head of the Board and is authorized to assign each matter on appeal to a panel of three (3) Board members. The Chairman may serve as a member of each panel, but in the event of his absence or unavailability for any other reason he may designate another Board member to serve in that capacity.

It is the purpose of these procedures to provide for impartial, inexpensive, and expeditious handling of contract appeals, consistent with the contract terms and other requirements of law, the orderly conduct of the proceeding, and the necessity for making a complete record. § 3.3 How to begin an appeal.

(a) An appeal from the findings of fact and determination of the contracting officer shall be made by notice in writing in the manner and within the time specified in the contract.

(b) The notice of appeal shall indicate that an appeal is intended, identify the contract and the contracting officer, and the particular findings of fact and determination from which the appeal is taken. It shall be signed by appellant personally, if an individual, or if not, by an authorized officer of the appellant organization or by the appellant's attorney. The supporting statement of claim referred to in § 3.7 may be filed with the notice of appeal or it may be filed as set forth in § 3.7.

§ 3.4 Duties of Contracting Officer and Government Counsel.

(a) Promptly upon receipt of a copy of the notice of appeal, the contracting officer shall notify and request the legal adviser of the agency administering the contract involved to designate a Government counsel to represent the interests of the Government. The Government counsel shall promptly file notice of appearance with the Appeals Board.

(b) Within thirty (30) days after receipt of the notice of appeal, the contracting officer shall compile and transmit to the Government counsel an appeal file consisting of:

(1) The findings of fact and determination and all documents upon which his decision was based;

(2) The invitation for bids, the contract, and all plans and specifications, amendments, change orders, directives, supplemental agreements, and work order records related to the dispute;

(3) Substantive correspondence between the parties;

(4) Map or other descriptive material of the subject matter.

will

(c) The Government counsel forward the appeal file to the Board, and so advise the appellant and that it may be examined at the office of the Board or the contracting officer.

§ 3.5

Duties of Board upon receipt of notice of appeal.

Upon receipt of notice of appeal, the Appeals Board shall docket the case by giving it an appropriate number and shall send a notice of receipt and the docket number to the Government counsel, the appellant and his attorney. A copy of the Board rules of procedure will also be sent to appellant and his attorney.

§ 3.6 Service of papers.

A copy of all statements, pleadings, briefs and any other documents and data of whatever nature, except the appeal file, shall be served on the other party at the time of filing with the Appeals Board. § 3.7 Appellant's statement of claim.

Within thirty (30) days after the mailing or filing of a notice of appeal appellant shall file with the Appeals Board a concise and detailed statement of the nature and amount of each claim, the reasons why the contracting officer's determination in respect thereto is deemed erroneous, and any documentation upon which he relies.

§ 3.8 Answer.

(a) Within thirty (30) days after receipt of the appellant's statement of claim, Government counsel shall prepare and file with the Appeals Board an answer setting forth the Government's position on each claim and the reasons therefor.

(b) Upon request made within ten (10) days, the Board shall afford the appellant a reasonable opportunity to file a state

ment in rebuttal of the Government's answer.

§ 3.9 Prehearing conference.

The Appeals Board may consider reparties to appear for a conference to consider agreement and simplification of the issues, possible stipulations as to facts and documents, limitation of the number of expert and other witnesses, and any other matters that may assist in the disposition of the appeal.

§ 3.10 Depositions, interrogatories, production of documents.

The Appeals Board may require the quests for permission to take the testimony of any person by deposition, to serve written interrogatories upon the opposing party, and to produce and permit the inspection of designated documents. Such requests shall be approved only to the extent and upon such conditions as the Board in its discretion considers to be consistent with the objective of securing a fair, expeditious and inexpensive determination of the dispute on appeal.

(a) The Appeals Board will provide an oral hearing unless waived by both parties, and will give the parties at least thirty (30) days' notice of the time and place of the hearing. Hearings will be held in Washington, D.C., unless there is, in the Board's judgment, a special and substantial justification for holding the hearing elsewhere.

(b) Witnesses at hearings will not be required to testify under oath. However, the president officer will call to the attention of each witness that his statements are subject to the provisions of Federal law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any Government department or agency. All witnesses may be examined or cross-examined by the Board members, the parties or their representatives.

(a) All decisions of the Appeals Board shall be based solely on the record made before it, and the Board may decide all questions of fact and law arising under the provisions of the contract in question. Under the provisions of the socalled Wunderlich Act, 68 Stat. 81 (1954), 41 U.S.C. sections 321 and 322, a departmental decision on a question of fact arising under a contract disputes clause is declared to be final and conclusive and not subject to judicial review "unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence." Board decision on a question of law, on the other hand, is subject to full judicial review.

A

4.10

Requests for reconsideration may be made by either party within thirty (30) days from the date of receipt of its copy of the Board's decision. Such requests will be considered only upon a showing of significant error or on the basis that new and material evidence has been discovered. The other party will be afforded a reasonable time to oppose such request for reconsideration, and the Board will as soon as practicable thereafter rule on the request. Failure to request reconsideration shall not be deemed to be a failure to exhaust administrative remedies.

§3.15 Optional accelerated procedure. If the amount involved in an appeal is relatively small or the appeal otherwise

4.11

Availability of materials for inspection and copying.

Requests for identifiable records.

Agency determinations of availability of records.

Fees and charges.

Arrangements for public inspection and copying of disclosable agency records.

Requests for reconsideration of nonavailability.

Subpoena or other compulsory proc

ess.

AUTHORITY: The provisions of this Part 4 issued under 5 U.S.C. 301, 552, 553; 32 F.R 9734.

SOURCE: The provisions of this Part 4 appear at 32 F.R. 9643, July 4, 1967, unles otherwise noted.

§ 4.1 Scope and purpose.

(a) This part contains the rules whereby the materials specified in 5 U.S.C. 552(a)(2), and the identifiable records requested under 5 U.S.C. 552(a) (3), are to be made publicly available by the following organizations in the Department of Commerce and organizations associated with the Department of Commerce:

(1) Organizations in the Department of Commerce:

(i) All components of the Office of the Secretary of Commerce.

(ii) The Office of Business Economics. (iii) The U.S. Travel Service.

(iv) The National Bureau of Standards.

(v) The Bureau of Domestic Commerce.

(vi) The Bureau of International Commerce.