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CHAPTER 11-DEPARTMENT OF ENERGY
Part 703 706
707 708 710
287 289 299
715 725 745 760 765
328 329 338 349
780 781 782 783 800
for access to classified matter or special nuclear
tive uranium and thorium processing sites .....
missioning fund; procedures for special assess
ment of domestic utilities .......
business enterprises seeking DOE contracts and
Department of Energy nuclear sites
power from the Boulder Canyon Project
360 364 372 382 384
810 820 830 835 840 860 861 862
385 393 399 424 428 469 472 473
871 903 904
475 477 478
483 Part 905 960
Energy Planning and Management Program
fuel and/or high-level radioactive waste Byproduct material .....
Subpart A-Rules of the Board of Contract
703.134 Security requirements.
Subpart B-Rules of the Contract Adjustment Board (Reserved)
APPENDIX A-ORGANIZATION AND FUNCTIONS,
DOE MANUAL, CHAPTER 0114, OFFICE OF
THE BOARD OF CONTRACT APPEALS AUTHORITY: Sec. 105, Pub. L. 93 438, 88 Stat. 1238, 42 U.S.C. 5815; sec. 161, Pub. L. 83–703, 68 Stat. 948, 42 U.S.C. 2201; sec. 3, Pub. L. 85 804, 72 Stat. 972, 50 U.S.C. 1433.
SOURCE: 41 FR 12215, Mar. 24, 1976, unless otherwise noted.
PREFACE TO THE RULES 703.11 Jurisdiction for considering appeals. 703.12 Organization and location of board. 703.13 Decisions on questions of law. 703.14 Contract appeals procedure.
PRELIMINARY PROCEDURES 703.101 Appeals, how taken. 703.102 Notice of appeal, contents of. 703.103 Forwarding of appeals. 703.104 Preparation, contents, organization,
forwarding, and status of appeal flle. 703.105 Dismissal for lack of jurisdiction. 703.106 Pleadings. 703.107 Amendments of pleadings or record. 703.108 Hearing election. 703.109 Prehearing briefs. 703.110 Prehearing or presubmission con
ference. 703.111 Submission without a hearing. 703.112 Optional accelerated procedure. 703.113 Settling the record. 703.114 Discovery. 703.115 Subpoenas. 703.116 Service of papers, and time computation.
HEARINGS 703.117 Where and when held. 703.118 Notice of hearings. 703.119 Unexcused absence of a party. 703.120 Nature of hearings. 703.121 Examination of witnesses. 703.122 Copies of papers. 703.123 Posthearing briefs. 703.124 Transcript of proceedings. 703.125 Withdrawal of exhibits.
Subpart A-Rules of the Board of
Contract Appeals 8703.1 Scope and purpose.
(a) The establishment of the Department of Energy (DOE) and the transfer to it of functions previously assigned to other agencies, including those discharged by the Board of Contract Appeals of the Atomic Energy Commission, led to a newly reorganized Board of Contract Appeals in DOE. All decisions rendered by this Board become the final decisions of the Agency.
(b) The reorganization of the Board, its scope of functions and authorities, including the authority to establish and issue rules of procedure not inconsistent with its charter and the change in organization from one composed of two full-time, permanent members augmented by a panel of part-time "consultant” members, to its present composition of three full-time, permanent, lawyer members, is more fully set forth in DOE Manual Chapter 0114; published for convenience as appendix A to this part.
(c) Several factors were taken into consideration reorganizing the Board, primary of which was the desire to establish an organization more like that of other agency boards, and to establish procedures that would conform to a
common practice before boards of contract appeals. This was in keeping with the recommendation of the Commission on Government Procurement and the Office of Federal Procurement Policy, and with the need
REPRESENTATION 703.126 The appellant. 703.127 The respondent.
703.128 Written decisions.
MOTION FOR RECONSIDERATION 703.129 Motion for reconsideration.
DISMISSALS 703.130 Dismissal without prejudice. 703.131 Dismissal for failure to prosecute.
EX PARTE COMMUNICATIONS 703.132 Ex parte conduct.
of DOE for prompt, fair, and inexpensive resolution of contract disputes as part of an effective agency-contractor relationship.
(d) Consistent with this policy, the Uniform Rules of Practice of Boards of Contract Appeals, as proposed by the National Conference of Boards of Contract Appeals Members, have been adopted herein in major part. However, some provisions differ from the uniform rules, particularly in those areas in which earlier Agency practice had proven successful in expediting the appeal process. For example, the new rules call for the filing of a notice of appeal directly with the contracting officer, and that officer is then required to ascertain identification shown by experience to be effective in expediting the appeal process. Another rule with a similar purpose permits direct appeal by a subcontractor in disputes arising under a subcontract entered into by a cost-type prime contractor in which a dispute provision has been included. The earlier practice of providing for direct service of pleadings and papers between parties, simultaneously with their filing before the Board, similarly expedites the appeal and is adopted.
(e) The new rules also require that items in the appeal file be offered into evidence rather than the entire appeal file automatically becoming part of the evidence, subject to objection, at the time the appeal file is transmitted. This practice encourages the submission of relevant documentation only. The provisions in the uniform rules relating to depositions and discovery are consolidated and amended to clarify the use of depositions as one form of discovery, and to provide for apportionment of expenses within the discretion of the Board in cases of hardship associated with discovery.
(1) The use of the optional accelerated procedure is expanded beyond that contemplated in the uniform rules to recognize equitable considerations as well as a monetary ceiling for purposes of greater flexibility as reflected in earlier Agency practice. Thus, accelerated procedure is made available, in the sound discretion of the Board, in certain cases additional to those meeting a monetary limitation. The provision for final decision to be rendered by
the entire Board in every case, including those processed under accelerated procedure, complements this practice.
(g) Some provisions have no corresponding basis in the uniform rules. For example, the revised rules include provisions for the use of subpoenas, and for security requirements, as provided by the enabling authorization; the Board is authorized to decide applications for extraordinary relief involving contractual fairness sitting as the Contract Adjustment Board. However, as to the later provisions, it should be noted that each case brought before the Contract Adjustment Board is judged solely on its merits under the criteria of Public Law 85-804 and Executive Order 10789, as amended, and decisions made pursuant thereto may not be cited as precedent in other matters brought before the Board.
(h) Throughout the revised rules emphasis is placed on flexibility and the exercise of broad discretion as primary means of effecting the resolution of appeals in an orderly, impartial and expeditious manner. Emphasis is likewise placed upon the sound administration of these rules in as informal a manner as possible, consistent with the need to provide due process and to develop an adequate record for Board action and judicial review.
PREFACE TO THE RULES
8703.11 Jurisdiction for considering
appeals. The Department of Energy Board of Contract Appeals (Board) is the authorized representative of the Administrator to consider and determine appeals from decisions of contracting officers arising under contracts which contain provisions for resolving such disputes. The Board is also designated and authorized to function as the Contract Adjustment Board in applications for extraordinary relief pursuant to Public Law 85-804.
8703.12 Organization and location of
Board. (a) The Board is located in Washington, DC and its mailing address is: The Board of Contract Appeals, U.S. Depart
ment of Energy, Washington, DC 20545.
(b) The Board consists of a chairman and two other members all of whom shall be attorneys at law duly licensed by any State or the District of Columbia. The decision of a majority of the Board constitutes the decision of the Board. Board members are designated as Administrative Judges and the chairman is designated as Chief Administrative Judge.
8703.13 Decisions on questions of law.
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. In the consideration of an appeal, should it appear that a claim is involved which is not cognizable under the terms of the contract, the Board may make findings of fact with respect to such a claim without expressing an opinion on the question of liability. 8703.14 Contract appeals procedure.
(a) Rules. Appeals referred to the Board are handled in accordance with the rules of the Board.
(b) Administration and interpretation of rules. Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay.
(c) Preliminary procedures. Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise.
8703.102 Notice of appeal, contents of.
(a) The notice of appeal shall identify the contract by number, and shall specify the portion of the decision from which the appeal is taken, and the reasons why the decision of the contracting officer is deemed erroneous. It shall include a request for application of the accelerated procedure, if such is desired under $703.112. All papers filed after the notice of appeal should be sent directly to the Board, with concurrent service upon the other party or parties.
(b) The notice of appeal should be signed personally by the appellant (the contractor taking the appeal, or a subcontractor under a cost-type prime contract which contains a dispute provision), or by an 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 $ 703.106 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of 703.106 for a complaint.
8703.103 Forwarding of appeals.
When a notice of appeal has been received by the contracting officer, he shall, within 10 days, endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and shall forward said notice of appeal to the Board. In so notifying the Board, the contracting officer shall include the following information: Date of receipt by the appellant of the contracting officer's decision; date of receipt by the contracting officer of the appellant's notice of appeal; amount of the claim; whether appellant is a small business; whether accelerated procedure has been requested, and if so, the names, addresses, and telephone numbers if known, of any attorney or attorneys representing the appellant, the contracting officer and any other parties to the appeal. Following receipt by the Board of the original notice of an appeal, the same will be docketed and the appellant and contracting officer so advised.
$703.101 Appeals, how taken.
An appeal from a decision of a contracting officer shall be taken 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 or applicable provision of directive or law.