(c) ATOMIC ENERGY COMMISSION

TITLE 10-ATOMIC ENERGY

CHAPTER I-ATOMIC ENERGY COMMISSION

PART 3-RULES OF PROCEDURE IN CONTRACT APPEALS

1. Statement of consideration. On November 10, 1964, the Commission established a Board of Contract Appeals and revised its Rules of Procedure in Contract Appeals to simplify and make more flexible the procedures pertaining to the disposition of contract appeals. The Board and the rules under which it operates have now been in existence for approximately 5 years. During this time the Board has been able to operate in accordance with the mandate of the Commission to dispose of contract appeals in an orderly, impartial, fair and expeditious manner.

2. However, new developments in the Government contracts field as well as the experience gained under the rules of procedure indicate that a revision to the rules is appropriate at this time. This revision conforms the Rules of Procedure to the Uniform (Model) Rules drafted by the Chairmen of the various Boards of Contract Appeals in one area in which there is a substantial difference-Discovery and adopts the Uniform (Model) Rules relating to the unexcused absence of a party. The complaint and answer provisions of the Uniform (Model) Rules have not been adopted inasmuch as the currently used statement of fact and argument procedure has worked well and provides a less formalized atmosphere during the preliminary stages of a proceeding. The revision also provides greater clarity in those areas in which the experience of the Board indicates that clarification is needed.

3. This revision to the rules in no way affects the basic precepts upon which the Board was established. In fact, the Preface to the Rules which was published in 29 F.R. 12829 (Sept. 11, 1964) remains in most part as valid today as it was in 1964. For this reason the 1964 Preface to the Rules, with the exception of those portions which are no longer applicable, is restated here to assure its application to this revised set of rules:

4. These rules are designed to revise simplify and make more flexible the procedures pertaining to the disposition of contract appeals. Further, these procedures are designed to dispose of contract appeals under disputes clauses in an orderly, impartial, fair, and expeditious manner. The principal features of the rules are the use of less formal procedures; the use of a mandatory conference prior to hearing; the use of an accelerated procedure for small claims and for other good causes; and the establishment of a Board which will sit in three member panels to consider, hear, and finally dispose of all appeals on behalf of the Commission.

5. The rules of procedure seek to recognize the real nature of the contract appeals process, namely, a means by which an agency can take a second, top level, independent look at the disputed actions of its authorized agents and effect any necessary revision of such actions dictated by justice and fairness. The rules make clear that the disputes procedure is a contractual method of resolving disagreements and can be invoked only when a contract so provides.

6. The rules emphasize informality in order to facilitate the accomplishment of a just and inexpensive determination of an appeal without unnecessary delay. Because it is impossible to articulate a rule to fit every circumstance which could be encountered, emphasis is placed on the sound administration of these rules in specific cases. 7. The use of a Board as the authorized representative of the Commission to decide contract appeals is expected to provide a significant safeguard against the possibility of individual error. The inclusion of nonlawyers on the Board should afford a balanced forum with a fresh and broad insight and will tend to reduce the necessity to remand cases for resolution of technical problems.

8. The Chairman of the Board is responsible for assuring that the Board's operations are conducted in an orderly and expeditious manner. Adequate performance by the Board depends on the active and continuing leadership of the Chairman without impinging on the freedom of the members. The Chairman is expected to use ingenuity to effectuate management improvements in Board operations either by action of the Board itself where appropriate, or by recommendation to the Commission. In addition the Chairman is responsible for maintaining a continuing high level of decisionary consistency.

9. The rules set forth the Commission's intent to vest in the Board the broadest of powers in order to enable the Board to make full and final administrative disposition of the appeal. The rules give the Board sufficient flexibility to decide appeals finally in an orderly, impartial, fair and expeditious manner. The powers specifically enumerated are not intended to be exclusive. The manner in which the Board's powers are exercised is left to the discretion of the Board. The full Board has authority to establish additional rules which would implement and supplement the rules in Part 3. Rules established by the Board will be reduced to writing and published in the Federal Register.

10. Ex parte communications with the Board are prohibited except to the extent that such communications relate to the Board's administrative functions.

11. The pleading requirements do not provide for a complaint and answer and substitute therefor statements of position and, at the option of each party, an argument in the form of a brief. The elimination of formal procedural requirements has simplified the administrative process and served to concentrate attention on the merits of a case rather than procedural matters.

12. The rules assure that the appellant has access to all papers in the appeal file. The Commission wishes to emphasize the need to make all papers in the appeal file readily available to the appellant, subject to the Commission's requirements for the protection of classified and privileged information.

13. An important requirement is the emphasis on a mandatory conference. The conference procedure, while having many of the attri

butes of a prehearing conference, is intended to be broader in scope than a prehearing conference. The purpose of the mandatory conference is to bring the parties together informally to consider the possibility of disposing of the appeal by agreement. The conference gives the parties an opportunity to discuss the case with the Board and the Board has an active opportunity to make inquiries and attempt to narrow the issues in dispute.

14. The accelerated procedure may be utilized to expedite small claims and in other cases in which good cause is shown. The use of this procedure has resulted in the expeditious handling of cases with a concomitant savings to both the appellant and the Government.

15. Hearings before the Board are conducted by a full panel in order to assure that throughout the proceeding the decision-makers will have heard the entire case. In the conduct of hearings, informality and Board flexibility are emphasized consistent with the need to provide an appropriate record for judicial review.

16. Because these rules relate solely to agency practice or procedure, the Commission has found that notice of proposed rule making and public procedures thereon are unnecessary.

17. Accordingly, the following revised 10 CFR Part 3, "Rules of Procedure in Contract Appeals," is published as a document subject to codification, to be effective upon publication in the Federal Register:

SUBPART A-CREATION AND CHARTER OF THE ATOMIC ENERGY COMMISSION BOARD OF CONTRACT APPEALS

3.100 Establishment and membership of the Board.

3.101 Authority of the Board.

3.102 Chairman.

3.103 Ex parte communications.

SUBPART B-RULES OF PROCEDURE IN CONTRACT APPEALS

3.200 Notice of appeal.

3.201 Answer.

3.202 Responsibilities of the contracting officer.

3.203 Dismissal for lack of jurisdiction.

3.204 Conference.

3.205 Accelerated procedure.

3.206 Depositions.

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

3.208 Request for hearing.

3.209 Notice of hearing.

3.210 Conduct of hearing.

3.211 Posthearing briefs.

3.212 Service of papers.

3.213 Decisions.

3.214 Reconsideration.

3.215 Remands from Courts.

3.216 Extensions of time.

3.217 Representation.

3.218 Security.

3.219 Sanctions.

3.220 Unexcused absence of a party.

AUTHORITY: The provisions of this Part 3 issued under sec. 161, 68 Stat. 948,

as amended; 42 U.S.C. 2201.

§3.1 Scope.

(a) This part establishes a Board of Contract Appeals and prescribes the functions and rules of procedure of such Board in considering and deciding appeals from a decision of an AEC contract officer: (1) In a dispute arising under

(i) Any AEC prime contract containing a disputes provision requiring an AEC contracting officer's decision and providing for an appeal therefrom to the Commission, and

(ii) Any subcontract entered into by a cost-type prime contractor in which such a dispute provision has been included in accordance with AECPR 9-59.003; and

(2) Assessing liquidated damages pursuant to section 104 (c) of the Contract Work Hours Standards Act (40 U.S.C. sec. 327-332).

(b) The Board, sitting in panels as provided in § 3.100(c) shall conduct debarment hearings and decide for the Commission debarment cases. The rules of procedure provided in this part shall apply to debarment proceedings conducted by the Board to the extent determined by the Board to be appropriate.

§3.2 Purpose.

(a) The purpose of this part is to provide for the orderly, impartial, fair, and expeditious handling of contract appeals in an informal manner, consistent with the requirements of law, the regulations of this part, the orderly conduct of the proceedings, and the necessity for preserving the record.

(6) Emphasis is placed upon the sound administration of the provisions of this part in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The provisions of this part will be interpreted so as to secure a just and inexpensive determination of proceedings without unnecessary delay.

SUBPART A-CREATION AND CHARTER OF THE ATOMIC ENERGY COMMISSION BOARD OF CONTRACT APPEALS

§ 3.100 Establishment and membership of the Board.

(a) There is hereby established within the Atomic Energy Commission the "Atomic Energy Commission Board of Contract Appeals" (herein referred to as the Board, abbreviated AECBCA) which shall be the authorized representative of the Commission for the purpose of considering and deciding proceedings within the scope of this part. Decisions of the Board are final decisions of the Commission.

(b) The Board shall be composed of members appointed by the Commission. The Commission shall designate one member of the Board as Chairman and another member as Vice Chairman. The Chairman and Vice Chairman shall be full-time employees of the Commission and attorneys admitted to practice before the highest court of any State, Territory, or the District of Columbia.

(c) For the purpose of considering and deciding an appeal, the Board shall consist of a panel of three members, one of whom shall be the Chairman or Vice Chairman. The Chairman or Vice Chairman shall preside over the panel's activities. The composition of a panel shall be established by the Chairman within ten (10) days after receipt of the

1 Appendix A of this part contains an excerpt of the AECPR.

appeal file. The decision of the panel shall be the decision of the Board.

(d) Should the appellant elect to have his appeal considered under the accelerated procedures of §3.205, the Board shall consist of the Chairman or, at the designation or in the absence of the Chairman, the Vice Chairman. The decision of the Chairman (or Vice Chairman) shall be the decision of the Board.

(e) In the absence of the Chairman, the Vice Chairman shall have all the powers and duties of the Chairman.

(f) Two of the three members on a panel shall constitute a quorum for the conduct of the panel's business. The presiding member of a panel shall designate one of the remaining members to preside in his absence.

(g) The Board members, including the Chairman and Vice Chairman, are subject to the laws relating to conflict of interest and the implementing AEC policies published in AEC Manual Chapter 4124, Part 0 of this chapter.

§ 3.101 Authority of the Board.

(a) The Board shall have all powers necessary for the performance of its duties including but not limited to the authority to conduct hearings, call witnesses, dismiss appeals, order the production of documents and other evidence, administer oaths and affirmations, issue subpoenas, order depositions to be taken, take official notice of facts within general knowledge, and decide all questions of fact and law. Decisions on questions of law are subject to 68 Stat. 81 (1954), 41 U.S.C. secs. 321 and 322 (1964 Ed.) relating to finality.

(b) A majority of the full Board shall have the power to establish additional rules not inconsistent with the rules contained in this Part 3.

§ 3.102 Chairman.

(a) The Chairman shall be responsible directly to the Commission. (b) The Chairman shall have all powers necessary for assuring the proper functioning of the Board, including but not limited to the following:

(1) Assuring the orderly, fair, impartial, and expeditious handling of proceedings;

(2) Acting on procedural matters before the Board including the issuance of subpoenas;

(3) Taking all actions necessary for the conduct of proceedings before the Board prior to the designation of a panel;

(4) Exercising the proper control of the docket.

§ 3.103 Ex parte communications.

(a) No member of the Board or of the Board's staff shall entertain off the record, except from another member of the Board or of the Board's staff, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral regarding any substantive matter at issue in the appeal.

(b) This section does not apply to ex parte communications authorized by law or concerning the Board's administrative functions.