hearing unless otherwise ordered by the Board.

§ 4.29 Remands from courts.

Whenever any matter is remanded from any court for further proceedings, and to the extent the court's directive and time limitations will permit, the parties shall be allowed an opportunity to submit to the appropriate Appeals Board a report recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and enter special orders governing the handling of matters remanded to it for further proceedings by any court.

§ 4.30 Information required by forms. Whenever a regulation of the Office of Hearings and Appeals requires a form approved or prescribed by the Director, the Director may in that form require the submission of any information which he considers to be necessary for the effective administration of that regulation. Subpart C-Special Rules Applicable to Contract Appeals

AUTHORITY: The provisions of this Subpart C also issued under authority of 5 U.S.C. sec. 301.

[Cross reference: See Subpart A for the authority, jurisdiction and membership of the Board of Contract Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before the Board of Contract Appeals as well as the other Appeals Boards of the Office of Hearings and Appeals, see Subpart B.]

(a) 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 hear, consider, and decide all questions of law necessary for the complete adjudication of the issue.

(b) Emphasis is placed upon the sound administration of the rules in this subtitle in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The 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 of relevant and material facts, and to discourage unwarranted surprise. 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. Where it has authority to extend time limitations, the Board may extend them 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 led with the Board. RULES

PRELIMINARY PROCEDURES

§ 4.101 Who may appeal.

Any contractor may appeal to the Board of Contract Appeals, Office of Hearings and Appeals, from decisions of contracting officers of any bureau or office of the Department of the Interior, or their authorized representatives or other authorities, on disputed questions, under contract provisions requiring the determination of such appeals by the head of the agency or his duly authorized representative or Board.

§ 4.102 Appeals; how taken.

(a) Notice of appeal. Notice of an appeal must be in writing (a suggested form of

notice appears herein following § 4.128). 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.

(b) Contents of notice of appeal. A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract (by number), the Department's bureau or office cognizant of the dispute, 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 authorized 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 § 4.107

may be filed with the notice of appeal, or the contractor may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

§ 4.103 Action by the contracting officer.

(a) Transmittal of appeal. 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 the notice was otherwise conveyed) and within 5 days shall forward said notice of appeal to the Board by certified mail. At the same time, he shall notify the Department's Office of the Solicitor, in accordance with instructions of the Solicitor, that the appeal has been received in order that a Department counsel may be appointed.

(b) Compilation and transmittal of appeal file. Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly, and in any event within 35 days, compile and transmit to the Board the appeal file (copies of all documents pertinent to the appeal). The contracting officer shall forward a duplicate copy of the appeal file to the Department Counsel.

(1) The appeal file shall include the following:

(i) 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;

(ii) The contract, and pertinent plans, specifications, amendments, and change orders;

(iii) Correspondence between the parties and other data pertinent to the appeal;

(iv) 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;

(v) Such additional information as may be considered material.

(c) Providing appellant opportunity to comment on appeal file. At the time of transmittal of the appeal file to the Board, the contracting officer shall notify the appellant, provide him with a listing of its contents, and allow him to ex

amine the file at the office of the contracting officer, at the office of the Board, or at a suitable alternative departmental office, for the opportunity of satisfying himself as to its contents, and furnishing any additional documentation he deems pertinent to the appeal. With his transmittal to the Board, the contracting officer shall certify that the appellant has been provided with the abovedescribed listing.

§ 4.104 Board action upon receipt of appeal file.

Upon receipt by the Board of the notice of appeal (whether from the contracting officer or appellant), the Board will promptly advise the contractor of receipt and docketing of the notice of appeal and the Board will furnish the contractor a copy of the rules in this part. In the event the Board receives a notice of appeal which was not filed with the contracting officer, a copy shall be promptly transmitted to the latter by the Board. § 4.105 Dismissal for lack of jurisdiction.

Any motion challenging the jurisdiction of the Board shall be filed promptly. 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 has authority to raise at any time and on its own motion the issue of its jurisdiction to conduct a proceeding and may afford the parties an opportunity to be heard thereon.

§ 4.106 Appearance by counsel for the Government.

Department counsel designated by the Solicitor of the Department to represent the agencies, bureaus, and offices cognizant of the disputes brought before the Board shall file notices of appearance with the Board and shall notify the appellant or his attorney that they represent the Government.

§ 4.107 Pleadings.

(a) Complaint. Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and one copy 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. Letter size paper should be used for the complaint and for all other papers filed with the Board. A copy of the complaint will be served by the appellant upon the Department counsel, or if the latter's identity and address are not yet known, upon the Solicitor, U.S. Department of the Interior, C between 18th and 19th Streets NW., Washington, DC 20240, and service shall be in accordance with § 4.117. Should the complaint not be received within 30 days, appellant's claim and appeal documents 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 Department counsel shall be so notified.

(b) Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, the Department counsel shall prepare and file with the Board an original and one copy of an answer thereto, setting forth simple, concise, and direct statements of the Government'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. One copy of the answer will be served by the Department counsel upon the appellant in accordance with § 4.117. 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.

§ 4.108 Amendments of pleadings or record.

(a) The Board may, in its discretion, upon its own initiative or upon application by a party, order a party to make a more definite statement of the complaint or answer, or to reply to an answer.

(b) The Board may, in its discretion, and within the proper scope of the 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 appeal file described in § 4.103 (b) (1) are tried by express or implied consent of the parties, or by permission of the Board, they shall be treated in all respect 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 said appeal file (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.

[36 F.R. 7186, Apr. 15, 1971; 36 F.R. 7588, Apr. 22, 1971] § 4.109

Hearing-election.

Within 15 days after the Government's answer has been served upon the appellant, or within 20 days of the date upon which the Board enters a general denial on behalf of the Government, notification as to whether one or both of the parties desire an oral hearing on the appeal should be given to the Board. In the event either party requests an oral hearing, the Board will schedule the same as hereinafter provided. In the event both parties waive an oral hearing, the Board, unless it directs an oral hearing, will decide the appeal on the record before it, supplemented as it may permit or direct. A party failing to elect an oral hearing within the time limitations specified in this section may be deemed to have submitted its case on the record. § 4.110

Prehearing briefs.

Based on an examination of the appeal file, 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 prehearing briefs in any case in which a hearing has been elected pursuant to § 4.109. 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 prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished

Whether the case is to be submitted without a hearing, or heard pursuant to §§ 4.118 through 4.123, the Board may upon its own initiative or upon the application of either party, call upon the parties to appear before a member or examiner of the Board for a conference to consider:

(a) The simplification or clarification of the issues;

(b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;

(c) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;

(d) The possibility of agreement disposing of all or any of the issues in dispute;

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

Any conference results that are not reflected in a transcript shall be reduced to writing by the Board member or the Board examiner. This writing shall thereafter constitute part of the record.

§ 4.112 Submission without a hearing.

Either party may elect to waive a hearing and to submit his case upon the Board record, as settled pursuant to § 4.114. Such waiver shall not affect the other party's rights under § 4.109. In the event of such election (see the time limitations for election in § 4.109), the submission may be supplemented by oral argument (transcribed if requested) and by briefs.

§ 4.113 Accelerated procedure.

When a very strong showing is made that there is a reason (e.g., hardship to the contractor) for utilization of an accelerated procedure, the Board will undertake to issue an appeal decision on an expedited basis, without regard to the normal position of the appeal on the

docket. Under this accelerated procedure, the case will be further expedited if the parties elect to waive pleadings and elect to waive a hearing, thus submitting the matter for decision on the record. In all other respects these rules will apply. § 4.114 Settling of the record.

(a) A case submitted on the record pursuant to § 4.112 shall be ready for decision when the parties are so notified by the Board. A case which is heard shall be ready for decision upon receipt of transcript, or upon receipt of briefs when briefs are to be submitted. At any time prior to the date that a case is ready for decision, either party, upon notice to the other, may supplement the record with documents and exhibits deemed relevant and material by the Board. The Board upon its own initiative may call upon either party, with appropriate notice to the other, for evidence deemed by it to be relevant and material. The weight to be attached to any evidence of record will rest within the sound discretion of the Board. Either party may at any stage of the proceeding, on notice to the other party, raise objection to material in the record or offered into the record, on the grounds of relevancy and materiality.

(b) The Board record shall consist of the appeal file described in § 4.103(b) (1) and any additional material, pleadings, prehearing briefs, record of prehearing, or presubmission conferences, depositions, interrogatories, admissions, transcripts of hearing, hearing exhibits, and posthearing briefs, as may thereafter be developed pursuant to these rules. In deciding appeals the Board in addition to considering the Board record may take official notice of facts within general knowledge.

(c) This record will at all times be available for inspection by the parties at an appropriate time and place. In the interest of convenience, prior arrangements for inspection of the file should be made with the Recorder of the Board. Copies of material in the record may be furnished to appellant as provided in part 2 of this subtitle.

upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for the purpose of discovery. The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.

(b) Orders on depositions. The time, place, and manner of taking depositions shall be governed by orders of the Board.

(c) Use as evidence. 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 if the deponent is present and can testify personally at the hearing. In such instance, however, the deposition 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 to supplement the record.

(d) Expenses. 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. § 4.116 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 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 just and prompt determination of appeals.

§ 4.120

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 will proceed and the case will be regarded as submitted by the absent party as provided in § 4.112. The Board shall advise the absent party of the content of the proceedings had and that he has 5 days from the receipt of such notice within which to show cause why the appeals should not be decided on the record made.

§ 4.121 Nature of hearings.

Hearings shall be as informal as may be reasonable and appropriate in the circumstances. Appellant and respondent may offer at a hearing on the merits such relevant evidence as they deem appropriate and as would be admissible under the generally accepted rules of evidence