[Code of Federal Regulations]

[Title 24, Volume 1]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR20.10]



[Page 232-241]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

PART 20_BOARD OF CONTRACT APPEALS--Table of Contents

 

Subpart B_Rules of the Department of Housing and Urban Development Board 

                           of Contract Appeals

 

Sec.  20.10  Rules.



    Source: 50 FR 45912, Nov. 5, 1985, unless otherwise noted.





    (a) These rules govern the procedure in all matters before the 

Department of Housing and Urban Development Board of Contract Appeals, 

unless otherwise provided by applicable law or regulation. The Federal 

Rules of Civil Procedure may be applied where procedures are not 

otherwise provided in these rules. For applications and proceedings 

involving award of attorney fees and other expenses, the rules set forth 

in 24 CFR part 14 shall apply.

    (b) Filing Requirements. A party shall file with the Board one 

original of any pleading or motion. That party shall simultaneously 

serve upon the other party of record one copy of that pleading or motion 

filed with the Board. Filings may be transmitted to the Board



[[Page 233]]



via facsimile. However, the original of any document transmitted to the 

Board by facsimile shall simultaneously be mailed to the Board.

    (c) Alternative Disputes Resolution. The Administrative Dispute 

Resolution Act authorizes and encourages Federal agencies to use 

mediation, conciliation, arbitration, and other techniques for the 

prompt and informal resolution of disputes. With the mutual consent of 

the parties, the Board may assist in the resolution of disputes by 

Alternative Dispute Resolution (ADR) procedures. The utilization of ADR 

procedures shall not relieve the parties from the filing requirements or 

other orders of the Board relating to a contract appeal duly docketed 

before the Board.

    (d) Equal Access to Justice Act. The Equal Access to Justice Act 

provides that agencies which conduct adversary adjudications ``shall 

award, to a prevailing party other than the United States, fees and 

other expenses incurred by that party in connection with that 

proceeding, unless the adjudicative officer of the agency finds that the 

position of the agency was substantially justified or that special 

circumstances make an award unjust.'' 5 U.S.C. Sec.  504. Prevailing 

parties in proceedings before the Board may apply for an award under the 

Act following the issuance by the Board of its final decision in the 

appeal.



                         Preliminary Procedures



                       Rule 1. Appeals, how taken.



    (a) General. Notice of an appeal shall be in writing and mailed or 

otherwise furnished to the Board within 90 days from the date of receipt 

of a final written decision of the contracting officer.

    (b) Contracting officer's failure to act-claim of $100,000 or less. 

Where the contractor has submitted a claim of $100,000 or less to the 

contracting officer and has requested a written decision within 60 days 

from receipt of the request, and the contracting officer has not issued 

the decision, the contractor may file a notice of appeal as provided in 

paragraph (a) of this section, citing the failure of the contracting 

officer to issue a decision.

    (c) Contracting officer's failure to act-claim in excess of 

$100,000. Where the contractor has submitted a claim in excess of 

$100,000 to the contracting officer and the contracting officer has 

failed, within 60 days of submission of the claim, to issue a final 

written decision, or to advise the contractor of a date when the final 

written decision will be issued, the contractor may file a notice of 

appeal as provided in paragraph (a) of this section, citing the failure 

to issue a decision.

    (d) Unreasonable delay by contracting officer. A contractor may 

request the Board to direct a contracting officer to issue a final 

written decision within a specified period of time, as determined by the 

Board, in the event of an unreasonable delay on the part of the 

contracting officer.

    (e) Stay of proceedings. Upon docketing of appeals filed under 

paragraph (b) or (c) of this section, the Board may stay further 

proceedings pending issuance of a final decision by the contracting 

officer within the period of time determined by the Board.



                 Rule 2. Notice of appeal, contents of.



    A notice of appeal shall indicate that an appeal is being taken and 

shall identify the contract (by number), the department and agency 

involved in the dispute, the final written decision from which the 

appeal is taken, and the amount in dispute, if known. The notice of 

appeal shall be signed by the appellant (the contractor making the 

appeal), or by the appellant's duly authorized representative or 

attorney. The complaint referred to in Rule 6 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 a complaint. A 

notice of appeal from a final written decision of a contracting officer 

involving a claim in excess of $100,000 shall state that certification 

has been made as required under section 6(c)(1) of the Contract Disputes 

Act of 1978 [41 U.S.C. 606(c)(1)].



                      Rule 3. Docketing of appeals.



    When a notice of appeal in any form has been received by the Board, 

it shall be docketed promptly. A written notice of docketing shall be 

transmitted to the appellant with a copy of these rules, to the 

contracting officer, and to HUD's Office of General Counsel.



 Rule 4. Preparation, content, organization, forwarding, and status of 

                              appeal file.



    (a) Duties of contracting officer. Within 30 days of receipt of 

notice from the Board that an appeal has been docketed, the contracting 

officer shall assemble and transmit to the Board (through HUD's Office 

of General Counsel) three copies of an appeal file consisting of all 

documents relevant to the appeal, including:

    (1) The decision from which the appeal is taken;

    (2) The contract including specifications and relevant amendments, 

plans, and drawings;

    (3) All correspondence between the parties relevant to the appeal, 

including the appellant's letter or letters of claim;



[[Page 234]]



    (4) Transcripts of any testimony 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; and

    (5) Any additional information considered relevant to the appeal.



Upon receipt of the appeals file, the Board shall furnish the appellant 

and HUD's Office of General Counsel with true and exact copies of the 

appeal file.

    (b) Duties of appellant. Within 30 days after receipt of a copy of 

the appeal file assembled by the contracting officer, the appellant 

shall transmit to the Board any documents not contained in the appeal 

file which are relevant to the appeal, and furnish two copies of these 

documents to the government trial attorney.

    (c) Organization of appeal file. Documents in the appeal file may be 

originals, legible facsimiles, or authenticated copies, and shall be 

arranged in chronological order where practicable, numbered 

sequentially, tabbed, and indexed to identify the contents of the file.

    (d) Unusual documents. Upon request by either party, the Board may 

waive the requirement to furnish to the other party copies of bulky, 

lengthy, or out-of-size documents in the appeal file when inclusion 

would be burdensome. At the time a party files with the Board a document 

for which waiver has been granted, he or she shall notify the other 

party that the document or a copy is available for inspection at the 

offices of the Board or of the party filing the document.

    (e) Status of documents in appeal file. Documents contained in the 

appeal file are, without further action by the parties, part of the 

record upon which the Board will render its decision. However, a party 

may object, for reasons stated, to consideration of a particular 

document or documents within 30 days of receipt, unless good cause is 

shown for later objection. If an objection is made, the Board shall 

remove the document or documents from the appeal file and permit the 

party offering the document to move its admission as evidence in 

accordance with Rules 13 and 20.

    (f) Waiver of filing of documents. Notwithstanding the foregoing, 

the filing of the Rule 4 (a) and (b) documents may be dispensed with by 

the Board either upon request of the appellant in the notice of appeal 

or thereafter upon stipulation of the parties.



               Rule 5. Dismissal for lack of jurisdiction.



    Any motion addressed to the jurisdiction of the Board shall be 

promptly filed. Hearing on the motion shall be afforded on application 

of either party. However, the Board may defer its decision on the motion 

pending hearing on both the merits and the motion. The Board may at any 

time raise the issue of its jurisdiction to proceed with a particular 

case by an appropriate order, affording the parties an opportunity to be 

heard on the issue.



                           Rule 6. Pleadings.



    (a) Appellant. Within 30 days after receipt of notice of docketing 

of the appeal, the appellant shall file a complaint with the Board. The 

complaint shall set forth simple, concise and direct statements of each 

of the appellant's claims. Appellant shall also set forth the basis, 

with appropriate reference to contract provisions, of each claim and the 

dollar amount claimed, to the extent known. This pleading shall fulfill 

the generally recognized requirements of a complaint, although no 

particular form is required. Should the complaint not be received within 

30 days, appellant's notice of appeal may, if in the opinion of the 

Board the issues before the Board are sufficiently defined, be deemed 

its complaint and the Government shall be so notified.

    (b) Government. Within 30 days from receipt of the complaint, the 

Government shall file an answer with the Board. The answer shall set 

forth simple, concise and direct statements of Government's defenses to 

each claim asserted by appellant, including any affirmative defenses 

available.



               Rule 7. Amendments of pleadings or record.



    The Board, upon its own initiative or upon application by a party, 

may order a party to make a more definite statement of the complaint or 

answer, or to reply to an answer. The Board may, within the proper scope 

of the appeal, permit either party to amend its pleading upon conditions 

fair to both parties. When issues within the proper scope of the appeal, 

but not raised by the pleadings, are tried by express or implied consent 

of the parties, with the permission of the Board, they shall be treated 

in all respects as if they have been raised in the pleadings. 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, 

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 it to meet this evidence.



                  Rule 8. Hearing election and motions.



    (a) Hearing election. After the filing of the Government's answer or 

notice from the Board that it has entered a general denial on behalf of 

the Government, each party shall advise whether it desires a hearing as 

prescribed in Rules 17 through 25, or whether it elects to submit its 

case on the record without a hearing, as prescribed in Rule 11.

    (b) Motions. (1) The Board may entertain any timely motion for an 

appropriate order.



[[Page 235]]



Application to the Board for an order shall be by motion which, unless 

made during a hearing, shall be made in writing, shall state with 

particularity the grounds for the motion and shall set forth the relief 

or order sought.

    (2) The Board may, on its own motion, initiate any action by notice 

to the parties.

    (3) Unless otherwise specified by the Board, a party who receives a 

motion shall file any answering material within 20 days after the date 

of receipt of the motion. The Board may require the presentation of 

briefs or arguments. The Board shall issue a decision on each motion 

that is appropriate and just to the parties.

    (4) Affidavits in support of motions shall set forth such facts as 

would be admissible in evidence and shall show affirmatively that the 

affiant is competent to testify to the matters stated in the affidavit. 

When a motion is made and supported as provided in this rule, a party 

opposing the motion who is represented by counsel may not rest upon the 

mere allegations or denials of his pleading; his response, by affidavits 

or as otherwise provided in this rule, must show that there is a genuine 

issue of fact or of law for decision. Should it appear from the 

affidavits of a party opposing the motion that for reasons stated he 

cannot present by affidavit facts essential to justify his opposition, 

the Board may deny the motion or may order a continuance to permit 

affidavits to be obtained or discovery to be had or may make such order 

as is just.



                       Rule 9. Prehearing briefs.



    Based on an examination of the pleadings, and its determination of 

whether the arguments and authorities addressed to the issues are 

adequately set forth in the pleadings, the Board may require the parties 

to submit prehearing briefs. If the Board does not require prehearing 

briefs, either party may 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 so as to be 

received by the Board at least 15 days prior to the date set for 

hearing, and a copy shall simultaneously be furnished to the other 

party.



            Rule 10. Prehearing or presubmission conference.



    (a) Conference. Whether the case is to be submitted under Rule 11, 

or heard under Rules 17 through 25, the Board may upon its own 

initiative, or upon the application of either party, arrange a telephone 

conference or call upon the parties to appear before an Administrative 

Judge for a conference to consider:

    (1) Simplification, clarification, or severing of the issues;

    (2) The possibility of obtaining stipulations, admissions, 

agreements and rulings on admissibility of documents, understandings on 

matters already on record, or similar agreements that will avoid 

unnecessary proof;

    (3) Agreements and rulings to facilitate discovery;

    (4) Limitation of the number of expert witnesses or avoidance of 

cumulative evidence;

    (5) The possibility of agreement disposing of any or all of the 

issues in dispute; and

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

    (b) Results of conference. The Administrative Judge shall make such 

rulings and orders as may be appropriate to achieve settlement by 

agreement of the parties or to aid in the disposition of the appeal. The 

results of the conference, including any rulings and orders, shall be 

reduced to writing by the Administrative Judge or the conference shall 

be transcribed. The writing or the transcript shall constitute a part of 

the record.



                 Rule 11. Submission without a hearing.



    Either party may elect to waive its right to appear at a hearing and 

to submit its case upon the record before the Board, as settled under 

Rule 13. Submission of a case without hearing does not relieve the 

parties from the necessity of proving the facts supporting their 

allegations or defenses. Affidavits, depositions, admissions, answers to 

interrogatories, and stipulations may be employed to supplement other 

documentary evidence in the record. The Board may permit submissions to 

be supplemented by oral argument, which may be transcribed if requested, 

and by briefs in accordance with Rule 9 or Rule 23.



 Rule 12. Optional small claims (expedited) and accelerated procedures. 

     (These procedures are available solely at the election of the 

                               appellant.)



Rule 12.1 Elections to utilize small claims (expedited) and accelerated 

                               procedure.



    (a) Election-dispute involving $50,000 or less. In appeals where the 

amount in dispute is $50,000 or less, the appellant may elect to have 

the appeal processed under a Small Claims (Expedited) procedure 

requiring decision of the appeal, whenever possible, within 120 days 

after the Board receives written notice of the appellant's election. The 

details of this procedure appear in section 12.2 of this Rule.

    (b) Election-dispute involving $100,000 or less. In appeals where 

the amount in dispute is $100,000 or less, the appellant may elect to 

have the appeal processed under an Accelerated procedure requiring 

decision of the appeal, whenever possible, within 180 days after



[[Page 236]]



the Board receives written notice of the appellant's election. The 

details of this procedure appear in section 12.3 of this Rule.

    (c) Notice of election. The appellant's election of either the Small 

Claims (Expedited) procedure or the Accelerated procedure may be made by 

written notice within 60 days after receipt of notice of docketing the 

appeal unless this period is extended by the Board for good cause. The 

election may not be withdrawn except with permission of the Board and 

for good cause.

    (d) Determination of amount in dispute. In deciding whether the 

Small Claims (Expedited) procedure or the Accelerated procedure is 

applicable to a given appeal, the Board shall determine the amount in 

dispute.



            Rule 12.2 The small claims (expedited) procedure.



    (a) Document submission and prehearing conference. In cases 

proceeding under the Small Claims (Expedited) procedure, the following 

time periods shall apply: (1) Within ten days from the Government's 

first receipt from either the appellant or the Board of a copy of the 

appellant's notice of election of the Small Claims (Expedited) 

procedure, the Government shall send the Board a copy of the contract, 

the contracting officer's final decision, and the appellant's letter or 

letters of claim, if any; remaining documents required under Rule 4 

shall be submitted in accordance with times specified in that rule 

unless the Board otherwise directs;

    (2) Within 15 days after the Board has acknowledged receipt of 

appellant's notice of election, the assigned Administrative Judge shall 

take the following actions, if feasible, in an informal meeting or a 

telephone conference with both parties: (i) Identify and simplify the 

issues; (ii) establish a simplified procedure appropriate to the 

particular appeal; (iii) determine whether the appellant wants a 

hearing, and if so, fix a time and place for the hearing; (iv) require 

the Government to furnish all the additional documents relevant to the 

appeal, and (v) establish an expedited schedule for resolution of the 

appeal.

    (b) Pleadings, discovery and other prehearing activity. Pleadings, 

discovery and other prehearing activity will be allowed only as 

consistent with the requirement to conduct the hearing on the date 

scheduled, or if no hearing is scheduled, to close the record on a date 

that will allow decisions within the 120-day limit. The Board may impose 

shortened time periods for any actions prescribed or allowed under these 

rules, as necessary to enable the Board to decide the appeal within the 

120-day limit, allowing whatever time, up to 30 days, that the Board 

considers necessary for the preparation of the decision after closing 

the record and the filing of briefs, if any.

    (c) Decision. The written decision by the Board in cases processed 

under the Small Claims (Expedited) procedure will be short and contain 

only summary findings of fact and conclusions. Decisions will be 

rendered for the Board by a single Administrative Judge. If there has 

been a hearing, the Administrative Judge presiding at the hearing may at 

the conclusion of the hearing and after entertaining oral arguments as 

deemed appropriate, render on the record oral summary findings of fact, 

conclusions, and a decision of the Appeal. Whenever an oral decision is 

rendered, the Board will subsequently furnish the parties a typed copy 

of the oral decision (or a copy of the transcript of the hearing) for 

record and payment purposes and to establish the starting date for the 

period for filing a motion for reconsideration under Rule 29.

    (d) Effect of decision. A decision issued under the Small Claims 

(Expedited) procedure shall have no value as precedent and, in the 

absence of fraud shall be final and conclusive and may not be appealed 

or set aside.



                  Rule 12.3 The accelerated procedure.



    (a) Waiver of pleadings, discovery and briefs. In cases proceeding 

under the Accelerated procedure, the parties are encouraged, to the 

extent possible consistent with adequate presentation of their factual 

and legal positions, to waive pleadings, discovery, and briefs.

    (b) Pleadings, discovery, and other prehearing activity. Pleadings, 

discovery and other prehearing activity will be allowed only as 

consistent with the requirement to conduct the hearing on the dates 

scheduled or, if no hearing is scheduled, to close the record on a date 

that will allow decision within the 180-day limit. The Board may shorten 

time periods for any actions prescribed or allowed under these rules, as 

necessary to enable the Board to decide the appeal within the 180-day 

limit, and may reserve up to 30 days for preparation of the decision.

    (c) Decision. Written decisions by the Board in cases processed 

under the Accelerated procedure will normally be short and contain only 

summary findings of fact and conclusions. In cases where the amount in 

dispute is $50,000 or less where the Accelerated procedure has been 

elected and where there has been a hearing, the single Administrative 

Judge presiding at the hearing may, with the concurrence of both 

parties, at the conclusion of the hearing and after entertaining such 

oral arguments as deemed appropriate, render on the record oral summary 

findings of fact, conclusions, and a decision of the appeal. Whenever an 

oral decision is rendered, the Board will subsequently furnish the 

parties a typed copy of the oral decision (or a copy of the transcript 

of the hearing) for



[[Page 237]]



record and payment purposes, and to establish the starting date for the 

period for filing a motion for reconsideration under Rule 29.



         Rule 12.4 Motions for reconsideration in Rule 12 cases.



    Motions for Reconsideration of cases decided under either the Small 

Claims (Expedited) procedure or the Accelerated procedure need not be 

decided within the original 120-day or 180-day limit, but all such 

motions shall be processed and decided rapidly to fulfill the intent of 

this Rule.



                      Rule 13. Settling the record.



    (a) Contents of record. The record upon which the Board's decision 

will be rendered consists of the documents in the appeal file furnished 

under Rule 4 or 12 (unless removed by the Board) and the following 

items, if any: Pleadings, prehearing conference memoranda or orders, 

prehearing briefs, depositions or interrogatories admitted into 

evidence, admissions, stipulations, transcripts of conferences and 

hearings, exhibits admitted into evidence, posthearing briefs, orders of 

the Board, and documents which the Board has specifically designated to 

be made a part of the record. The record will, at all reasonable times, 

be available for inspection by the parties at the office of the Board.

    (b) Closing of record. Except as the Board may otherwise order, no 

proof shall be received in evidence after completion of an oral hearing 

or, in cases submitted on the record, after notification by the Board 

that the case is ready for decision.

    (c) Weight of evidence. The weight to be attached to any evidence of 

record will rest within the sound discretion of the Board. The Board may 

in any case require either party, with appropriate notice to the other 

party, to submit additional evidence on any matter relevant to the 

appeal.



                    Rule 14. Discovery--depositions.



    (a) General policy and protective orders. The parties are encouraged 

to engage in voluntary discovery procedures. In connection with any 

discovery procedure under this rule or rule 15, the Board may make any 

order required to protect a party or person from annoyance, 

embarrassment, or undue burden or expense. Those orders may include 

limitations on the scope, method, time and place for discovery, and 

provisions for protecting the secrecy of confidential information or 

documents.

    (b) When depositions permitted. After an appeal has been docketed 

and complaint filed, the parties may mutually agree to, or the Board 

may, upon application of either party, order the taking of testimony of 

any person by deposition upon oral examination or written 

interrogatories before any officer authorized to administer oaths at the 

place of examination.

    (c) Orders on depositions. The time, place, and manner of taking 

depositions shall be as mutually agreed by the parties, or failing such 

agreement, governed by order of the Board.

    (d) Use as evidence. No testimony taken by depositions shall be 

considered as part of the evidence in the hearing of an appeal until the 

testimony is offered and received in evidence at the hearing. It will 

not ordinarily be received in evidence if the deponent is present and 

can testify at the hearing. In these instances, however, the deposition 

may be used to contradict or impeach the testimony of the deponent given 

at the hearing. In cases submitted on the record, the Board may receive 

depositions to supplement the record.

    (e) Expenses. Each party shall bear its own expenses associated with 

the taking of any depositions.



Rule 15. Interrogatories to parties, admission of facts, and production 

                      and inspection of documents.



    After an appeal has been docketed and complaint filed with the 

Board, a party may serve on the other party: (a) Written interrogatories 

to be answered separately in writing, signed under oath and answered or 

objected to within 30 days; (b) a request for the admission of specified 

facts or the authenticity of any documents, to be answered or objected 

to within 30 days after service; the factual statements and the 

authenticity of the documents to be deemed admitted upon failure of a 

party to respond to the request; and (c) a request for the production, 

inspection and copying of any documents or objects not privileged, which 

reasonably may lead to the discovery of admissible evidence.



       Rule 16. Filing and service of papers other than subpoenas.



    Papers shall be considered filed with the Board when mailed or 

otherwise furnished to the Board. Papers shall be served upon parties 

personally or by mail, addressed to the party upon whom service is to be 

made. Timely filing and service by facsimile transmission (telecopier) 

is permissible provided that the original telecopied document is 

promptly mailed or served thereafter in the manner specified by this 

rule. Except as provided in rule 4(a), the party filing any paper with 

the Board shall simultaneously serve a copy of the paper upon the 

opposing party, and shall file a certificate of service with the Board 

indicating that a copy has been so served. Subpoenas shall be served as 

provided in rule 21.



[[Page 238]]



                                Hearings



                      Rule 17. Where and when held.



    Hearings will be held at places determined by the Board to best 

serve the interest of the parties and the Board. Hearings will be 

scheduled at the discretion of the Board with due consideration to the 

regular order of appeals, Rule 12 requirements, the convenience of the 

parties, the requirement for just and inexpensive determination of 

appeals without necessary delay, and other pertinent factors. On request 

or motion by either party and for good cause, the Board may adjust the 

date of a hearing.



                      Rule 18. Notice of hearings.



    Parties shall be given not less than 20 days notice of the time and 

place for hearing, unless otherwise agreed. The notice of hearing shall 

be sent by certified mail (return receipt requested).



                 Rule 19. 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. Notwithstanding the provisions 

of Rule 31, in the event of an unexcused absence: (a) The appeal will be 

dismissed with prejudice for want of prosecution; or (b) the hearing 

will proceed and the case will be regarded as submitted on the record by 

the absent party.



          Rule 20. Hearings: conduct; examination of witnesses.



    (a) Conduct of hearings. Hearings shall be as informal as may be 

reasonable and appropriate under the circumstances. Appellant and the 

Government may offer such evidence as would be admissible under the 

Federal Rules of Evidence or as otherwise determined to be reliable and 

relevant by the presiding Administrative Judge. Stipulations of fact 

agreed upon by the parties may be regarded and used as evidence at the 

hearing. The parties may stipulate the testimony that would be given by 

a witness if the witness were present. The Board may require evidence in 

addition to that offered by the parties.

    (b) Examination of witnesses. Oral testimony before the Board shall 

generally be given under oath or affirmation. However, if the testimony 

of a witness is not given under oath or affirmation, the Board shall 

advise the witness that his statements may be subject to the provisions 

of title 18 U.S.C., sections 287 and 1001, and any other provision of 

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 department or agency.



                           Rule 21. Subpoenas.



    (a) General. Upon written request of either party filed with the 

Board or on the Administrative Judge's initiative, the Administrative 

Judge to whom a case is assigned or who is otherwise designated by the 

Chairman may issue a subpoena requiring:

    (1) Testimony at a deposition--the deposing of a witness in the city 

or county where he or she resides, is employed or transacts business in 

person, or at another location convenient for the witness that is 

specifically determined by the Board;

    (2) Testimony at a hearing--the attendance of a witness for the 

purpose of taking testimony at a hearing; and

    (3) Production of books and papers--the production by the witness at 

the deposition or hearing of books and papers designated in the 

subpoena.

    (b) Voluntary cooperation. Each party is expected (1) to cooperate 

and make available witnesses and evidence under its control as requested 

by the other party, without issuance of a subpoena, and (2) to secure 

voluntary attendance of desired third-party witnesses and production of 

desired third-party books, papers, documents, or tangible things 

whenever possible.

    (c) Requests for subpoenas. (1) A request for a subpoena shall 

normally be filed at least:

    (i) 15 days before a scheduled deposition where the attendance of a 

witness at a deposition is sought;

    (ii) 30 days before a scheduled hearing where the attendance of a 

witness at a hearing is sought.

    In its discretion the Board may honor requests for subpoenas not 

made within these time limitations.

    (2) A request for a subpoena shall state the reasonable scope and 

general relevance to the case of the testimony and of any books and 

papers sought.

    (d) Requests to quash or modify. Upon written request by the person 

subpoenaed or by a party, made within 10 days after service but in any 

event not later than the time specified in the subpoena for compliance, 

the Board may (1) quash or modify the subpoena if it is unreasonable and 

oppressive or for other good cause shown, or (2) require the person in 

whose behalf the subpoena was issued to advance the reasonable cost of 

producing subpoenaed books and papers. Where circumstances require, the 

Board may act upon such a request at any time after a copy of the 

request has been served upon the opposing party.

    (e) Form; issuance. (1) Every subpoena shall state the name of the 

Board and the title of the appeal, and shall command each person to whom 

it is directed to attend and give testimony, and if appropriate, to 

produce specified books and papers at the time and place



[[Page 239]]



specified in the subpoena. In issuing a subpoena to a requesting party, 

the Administrative Judge shall sign the subpoena and may, in his 

discretion, enter the name of the witness and otherwise leave it blank. 

The party to whom the subpoena is issued shall complete the subpoena 

before service.

    (2) Where the witness is located in a foreign county, a letter 

rogatory or subpoena may be issued and served under the circumstances 

and in the manner provided in 28 U.S.C. 1781-1784.

    (f) Service. (1) The party requesting issuance of a subpoena shall 

be responsible for service.

    (2) A subpoena requiring the attendance of a witness at a deposition 

or hearing may be served (i) by sending a copy of the subpoena by 

certified mail (return receipt requested) to the last known address of 

the party named in the subpoena, or (ii) by personal delivery of a copy 

of the subpoena to the party named in the subpoena, by a United States 

marshal or deputy marshal, or by any other person who is not a party and 

not less than 18 years of age. Service shall include the tender of the 

fees for one day's attendance and the mileage provided by 28 U.S.C. 1821 

or other applicable law; however, where the subpoena is issued on behalf 

of the Government, money payments need not be tendered in advance of 

attendance.

    (3) The party at whose instance a subpoena is issued shall be 

responsible for the payment of fees and mileage of the witness and for 

the costs of service of the subpoena.

    (g) Contumacy or refusal to obey subpoena. In case of contumacy or 

refusal to obey a subpoena by a person who resides, is found, or 

transacts business within the jurisdiction of a United States District 

Court, the Board will apply to the Court through the Attorney General of 

the United States for an order requiring the person to appear before the 

Board or a member of the Board to give testimony or produce evidence or 

both.



                       Rule 22. Copies of papers.



    When books, records, papers, or documents have been received in 

evidence, a true copy of this evidence or a copy of any material or 

relevant part of this evidence may be substituted during or at the 

conclusion of the hearing.



                      Rule 23. Posthearing briefs.



    The presiding Administrative Judge may order the parties to submit 

post hearing briefs to the Board.



                   Rule 24. Transcript of proceedings.



    Testimony and argument at hearings shall be reported verbatim, 

unless the Board otherwise orders. Extra transcripts or copies of the 

proceedings in the possession of the board may be supplied to the 

parties. Otherwise, the parties may obtain transcripts or copies of the 

proceedings from the hearing reporter.



                    Rule 25. Withdrawal of exhibits.



    After a decision has become final the Board may, upon request and 

after notice to the other party, permit the withdrawal of original 

exhibits, or any part of original exhibits by the party entitled to the 

exhibits. The subsitution of true copies of exhibits or any part of 

exhibits may be required by the Board as a condition of granting 

permission for the withdrawal.



                             Representation



                           Rule 26. Appellant.



    An individual appellant may appear before the Board in person; a 

corporation by one of its duly authorized officers; and a partnership or 

joint venture by one of its duly authorized members; or any of these by 

an attorney at law duly licensed in any State, commonwealth, territory, 

the District of Columbia, or in a foreign country. An attorney 

representing an appellant shall file a written notice of appearance with 

the Board.



                          Rule 27. Government.



    Government counsel may, in accordance with their authority, 

represent the interests of the Government before the Board. They shall 

file notices of appearance with the Board. This notice of appearance 

will be given appellant or appellant's attorney in the form specified by 

the Board from time to time. Whenever an appellant and the Government 

are in agreement as to disposition of the controversy, the Board may 

suspend further processing of the appeal. However, if the Board is 

advised by either party that the controversy has not been disposed of by 

agreement, the case shall be restored to the Board's calendar without 

loss of position.



                                Decisions



                           Rule 28. Decisions.



    Decisions of the Board shall be made in writing. Copies of the 

decision shall be forwarded simultaneously to both parties. The rules of 

the Board and all final orders and decisions (except those required for 

good cause to be held confidential and not cited as precedents) shall be 

open for public inspection at the offices of the Board in Washington, 

DC. Decisions of the Board shall be made solely upon the record, as 

described in Rule 13. Oral decisions shall be rendered in accordance 

with Rules 12.2(c) and 12.3(c).



[[Page 240]]



                       Motion for Reconsideration



                  Rule 29. Motion for reconsideration.



    A motion for reconsideration may be filed by either party. It shall 

set forth specifically the grounds relied upon to sustain the motion. 

The motion shall be filed within 30 days from the date of the receipt of 

a copy of the decision of the Board by the party filing the motion.



                         Dismissals and Defaults



                  Rule 30. Dismissal without prejudice.



    In certain cases, appeals docketed before the Board are required to 

be placed in a suspended status and the Board is unable to proceed with 

disposition for reasons not within the control of the Board. Where the 

suspension has continued, or may continue, for an inordinate length of 

time, the Board may dismiss such appeals from its docket without 

prejudice to their restoration to the docket when the cause of 

suspension has been removed. Unless either party or the Board acts 

within three years to reinstate any appeal dismissed without prejudice, 

the dismissal shall be considered to be with prejudice.



    Rule 31. Dismissal or default for failure to prosecute or defend.



    Whenever a record discloses the failure of either party to file 

documents required by these rules, respond to notices or correspondence 

from the Board, comply with orders of the Board, or otherwise indicates 

an intention not to continue the prosecution or defense of an appeal, 

the Board may, in the case of such a default by the appellant, issue an 

order to show cause why the appeal should not be dismissed with 

prejudice or, in the case of a default by the Government, issue an order 

to show cause why the Board should not act under Rule 33. If good cause 

is not shown, the Board may take appropriate action.



                                 Remand



                       Rule 32. Remand from court.



    Whenever any court remands a case to the Board for further 

proceedings, each of the parties shall, within 20 days of the remand, 

submit a report to the Board recommending procedures to be followed to 

comply with the court's order. The Board shall consider any timely filed 

reports and enter special orders governing the handling of the remanded 

case. To the extent the court's directive and time limitations permit, 

these orders shall conform to these rules.



                                Sanctions



                           Rule 33. Sanctions.



    If any party fails or refuses to obey an order issued by the Board, 

the Board may then make such order as it considers necessary to the just 

and expeditious conduct or dismissal of the appeal.



                        Miscellaneous Procedures



                         Rule 34. Applicability.



    These rules shall apply to all appeals relating to contracts entered 

into on or after March 1, 1979, and, to appeals relating to earlier 

contracts, with respect to claims pending before the contracting officer 

on March 1, 1979 or initiated thereafter, if the contractor elects to 

proceed under the Act.



               Rule 35. Time, computation, and extensions.



    (a) General. Where possible, procedural actions should be taken in 

less time than the maximum time allowed. Where appropriate and 

justified, extensions of time shall be granted. All requests for 

extensions of time shall be in writing and shall be filed before the due 

date, unless excused.

    (b) Computation. In computing any period of time, the day of the 

event from which the designated period of time begins to run shall not 

be included, but the last day of the period shall be included unless it 

is a Saturday, Sunday, or a legal holiday, in which event the period 

shall run to the end of the next business day.



                    Rule 36. Ex parte communications.



    (a) Definition. An ex parte communication is any communication with 

a member of the Board, direct or indirect, oral or written, concerning 

the merits of matters in issue of any pending proceeding which is made 

by a party in the absence of any other party. Ex parte communications do 

not include communications where:

    (1) The purpose and content of the communication have been disclosed 

in advance or simultaneously to all parties;

    (2) The communication is a request for information concerning the 

status of the case; or

    (3) The communication involves the Board's administrative functions 

or procedures.

    (b) Prohibition of ex parte communications. Ex parte communications 

are prohibited.

    (c) Procedure after receipt of ex parte communications. Any member 

of the Board who receives an ex parte communication that the member of 

the Board knows or has reason to believe is unauthorized shall promptly 

place the communication, or its substance, in all files and shall 

furnish copies to all parties. Unauthorized ex parte communications 

shall



[[Page 241]]



not be taken into consideration in deciding any matter in issue.



[50 FR 45912, Nov. 5, 1985, as amended at 52 FR 27130, July 17, 1987; 57 

FR 20201, May 12, 1992; 61 FR 13280-13281, Mar. 26, 1996]