[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

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

[CITE: 33CFR210.4]



[Page 166-173]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 210_PROCUREMENT ACTIVITIES OF THE CORPS OF ENGINEERS--Table of 

Contents

 

Sec.  210.4  Rules of the Corps of Engineers Board of Contract Appeals 

for cases not subject to the Contract Disputes Act of 1978.



    (a) Preface to rules. (1) The Corps of Engineers Board of Contract 

Appeals is the authorized representative of the Chief of Engineers for 

the purpose of hearing, considering and determining, as fully and 

finally as he might, appeals by contractors from decisions of 

contracting officers or their authorized representative or other 

authorities on disputed questions, taken pursuant to the provision of 

contracts requiring the determination of such appeals by the Chief of 

Engineers or his duly authorized representative or Board.

    (2) 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



[[Page 167]]



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.

    (3) 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.

    (4) Preliminary procedures are available to encourage full 

disclosure of relevant and material facts, and to discourage unwarranted 

surprise. The parties are expected to cooperate and to voluntarily 

comply with the intent of such procedures without resort to the Board 

except on controversial questions. The Board may order exchange of 

complicated exhibits prior to hearing in order to expedite the hearing.

    (5) 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. These time 

limitations are similarly eligible for extension in appropriate 

circumstances, on good cause shown.

    (6) 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 

filed with the Board.

    (b) Rule 1, Appeals, how taken. Notice of an appeal must be in 

writing and the original, together with two copies, may be filed with 

the contracting officer from whose decision the appeal is taken. The 

notice of appeal shall be mailed or otherwise filed within the time 

specified therefor in the contract or allowed by applicable provision of 

directive or law.

    (c) Rule 2, Notice of appeal, contents of. A notice of appeal should 

indicate that an appeal is thereby intended, and should identify the 

contract (by number) 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 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 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.

    (d) Rule 3, Forwarding of appeals. When a notice of appeal in any 

form has been received by the contracting officer, he shall endorse 

thereon the date of mailing (or date of receipt, if otherwise conveyed) 

and within 10 days shall forward said notice of appeal, together with a 

copy of the decision appealed from, to the Board. Following receipt by 

the Board of the papers described in the next rule (Rule 4), the 

contractor will be promptly advised of its receipt and that the appeal 

is then considered docketed, and the contractor will be furnished a copy 

of these rules.

    (e) Rule 4, Preparation, contents, organization, forwarding and 

status of appeal file--(1) Duties of contracting officer. Following 

receipt of a notice of appeal or advice that an appeal has been filed, 

the contracting officer shall compile and transmit to the Board and the 

government trial attorney an appeal file consisting of all documents 

pertinent to the appeal including in particular:

    (i) The decision and findings of fact from which the appeal was 

taken;

    (ii) The contract including pertinent amendments, specifications, 

plans and drawings;

    (iii) All correspondence between the parties pertinent to the 

appeal, including the letter or letters of claim in response to which a 

decision was issued;

    (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.



The contracting officer shall at the same time furnish to the appellant 

a copy of each document in the appeal file except those set forth in 

paragraph (e)(1)(ii) of this section, as to which a



[[Page 168]]



list furnished appellant indicating the specific contractual documents 

included in the file will suffice, and those set forth in paragraph 

(e)(4) of this section.

    (2) Supplementation of appeal file. Within 30 days after receipt of 

its copy of the appeal file the appellant may supplement the same by 

furnishing to the Board any document not contained therein which he 

considers pertinent to the appeal and furnishing two copies of each 

document to the government trial attorney.

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

originals or legible facsimiles or authenticated copies thereof and 

shall be arranged in chronological order, where practicable, numbered 

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

    (4) Lengthy documents. The Board, on motion of a party, may waive 

the requirement of furnishing to the other party copies of bulky, 

lengthy or out-of-size documents in the appeal file when a party has 

shown that doing so would impose an undue burden. At the time a party 

files with the Board a document as to which such a waiver has been 

granted, he shall notify the other party that the same or a copy is 

available for inspection at the office of the Board or of the party 

filing the same.

    (5) Status of documents in appeal file. Documents in the appeal file 

are considered as evidence in the case. A party to the appeal may at any 

time prior to the conclusion of a hearing or in the case of an appeal 

submitted on the record prior to the date of the notice that the case is 

ready for decision object to the inclusion of any document in the appeal 

file. The Administrative Judge hearing the case will rule on the 

objection as on any other objection to the admission of evidence.

    (f) 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, unless the 

Board determines that its decision on the motion will be deferred 

pending hearing on both the merits and the motion. The Board shall have 

the right at any time and on its own motion to raise the issue of its 

jurisdiction to proceed with a particular case, and shall do so by an 

appropriate order, affording the parties an opportunity to be heard 

thereon.

    (g) Rule 6, Pleadings. (1) Within 30 days after receipt of notice of 

docketing of the appeal, as provided in the last sentence of Rule 3, the 

appellant shall file with the Board an original and two copies 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. Upon receipt 

thereof, the Recorder of the Board shall serve a copy upon the 

respondent. Should the complaint not be received within 30 days, 

appellant's claim and appeal 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 respondent shall be so notified.

    (2) Within 30 days from receipt of said complaint, or the aforesaid 

notice from the Recorder of the Board, respondent shall prepare and file 

with the Board an original and two copies of an answer thereto, setting 

forth simple, concise and direct statements of respondent'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 counter-claims, as appropriate. Upon receipt 

thereof, the Recorder shall serve a copy upon appellant. 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.

    (h) Rule 7, Ammendments of pleadings or record. (1) The Board upon 

its own initiative or upon application by a party may, in its 

discretion, order a party to make a more definite statement of the 

complaint or answer, or to reply to an answer.

    (2) 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



[[Page 169]]



scope of the appeal, but not raised by the pleadings or the 

documentation described in Rule 4, are tried by express or implied 

consent of the parties, or by permission of the Board, they shall be 

treated in all respects 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 the rule 4 documentation (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.

    (i) Rule 8, Hearing--election. (1) Upon receipt of respondent's 

answer or the notice referred to in the last sentence of Rule 6(b), 

appellant shall advise the Board whether he desires a hearing, as 

prescribed in Rules 17 through 25, or whether in the alternative he 

elects to submit his case on the record without a hearing, as prescribed 

in Rule 11.

    (2) In appropriate cases, the appellant shall also elect whether he 

desires the optional accelerated procedure prescribed in Rule 12.

    (j) Rule 9, Pre-hearing briefs. Based on an examination of the 

documentation described in Rule 4, 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 pre-hearing briefs in any case in which a hearing 

has been elected pursuant to Rule 8. 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 pre-

hearing brief to the Board. In any case where a pre-hearing 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 as previously arranged.

    (k) Rule 10, Pre-hearing or pre-submission conference. (1) When the 

case is to be submitted pursuant to Rule 11, or heard pursuant to Rules 

17 through 25, the Board may, upon its own initiative or upon the 

application of either party, call upon the parties to appear before an 

Administrative Judge of the Board for a conference to consider:

    (i) The simplification or clarification of the issues;

    (ii) The possibility of obtaining stipulations, admissions, 

agreements on documents, understandings on matters already of record or 

similar agreements which will avoid unnecessary proof;

    (iii) The limitation of the number of expert witnesses, or avoidance 

of similar cumulative evidence, if the case is to be heard;

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

issues in dispute;

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

    (2) The results of the conference shall be reduced to writing by the 

Administrative Judge in the presence of the parties, and this writing 

shall thereafter constitute part of the record.

    (l) Rule 11, Submission without a hearing. Although both parties are 

entitled to a hearing under these rules, either party may elect to waive 

a hearing and to submit his case upon the Board record as settled 

pursuant to Rule 13. Such an election by one party shall not preclude 

the other party from requesting and obtaining a hearing. Affidavits, 

depositions, answers to interrogatories and stipulations may be employed 

to supplement other documentary evidence in the Board record. The Board 

may permit such submission to be supplemented by oral arguments, 

transcribed if requested, and by briefs arranged in accordance with Rule 

23.

    (m) Rule 12, Optional accelerated procedure. (1) In appeals 

involving $25,000 or less the appellant may elect to have the appeal 

processed under this rule. The election may be made in the notice of 

appeal, the complaint or by separate correspondence. In the event of 

such election the case will be assigned to a single Administrative Judge 

who will make every effort to render his decision within 30 days of the 

settlement of the record and without regard to the place of the appeal 

on the docket. To



[[Page 170]]



assist in expediting decisions the parties should consider waiving 

pleadings and submitting the case on the record.

    (2) In cases involving $5,000 or less where there is a hearing the 

presiding Administrative Judge may in his discretion at the conclusion 

of the hearing and after such oral argument as he deems appropriate 

render oral summary findings of fact, conclusions and a decision on the 

appeal. The Board will subsequently furnish the parties a typed copy of 

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

on which the period for filing a motion for reconsideration under Rule 

29 commences.

    (3) Except as herein modified, these rules otherwise apply in all 

respects.

    (n) Rule 13, Settling the record. (1) The record upon which a Board 

decision is rendered shall consist of the pleadings, the appeal file 

described in Rule 4, pre-hearing orders, memoranda of pre-hearing 

conferences and all evidence admitted by the Board both documentary and 

oral as appearing in the transcript. The record shall at all reasonable 

times be available for inspection by the parties at the office of the 

Board.

    (2) A case submitted on the record pursuant to Rule 11 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 the 

transcript or upon receipt of the briefs when briefs are to be 

submitted.

    (3) 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. Except as the Board may otherwise order in its 

discretion, no proof shall be received in evidence after completion of 

an oral hearing or after notification by the Board that the case is 

ready for decision in cases submitted on the record.

    (o) Rule 14, Discovery--depositions--(1) General policy. Parties may 

obtain discovery regarding any matter, not privileged, which is relevant 

to the subject matter involved in the appeal. The parties are encouraged 

to engage in voluntary discovery procedures.

    (2) When permitted. The Board may, upon timely motion filed by a 

party after the answer has been filed, order the taking of the testimony 

of any person by deposition upon oral examination or by written 

questions for the purpose of discovery or for use as evidence or for 

both.

    (3) Before who taken--time and place. Depositions shall be taken 

before a person authorized to administer oaths at the place of 

examination. The time, place and manner of taking depositions shall be 

as mutually agreed by the parties or as set forth in the order of the 

Board.

    (4) Protective orders. The Board may in connection with the taking 

of any deposition make any order which justice requires to protect a 

party from annoyance, embarrassment, oppression or undue burden or 

expense.

    (5) Use as evidence. No testimony taken by deposition shall be 

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

is offered and received as evidence at the hearing. It will not 

ordinarily be received in evidence if the deponent is present and can 

testify personally at the hearing. In such cases, however, the 

deposition may be used to contradict or impeach testimony of the witness 

given at the hearing. In cases submitted on the record the Board may in 

its discretion receive depositions as evidence.

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

taking of any deposition.

    (p) Rule 15, Interrogatories; inspection of documents; admission of 

facts. (1) The Board may upon a timely motion filed by either party 

after the filing of the answer 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 

or permit the service on a party of a request for the admission of 

facts. The Board in its order shall establish the date for responding to 

the motion.

    (2) The Board may issue protective orders as in the case of 

depositions.

    (q) Rule 16, Service of papers. Service of papers in all proceedings 

pending before the Board may be made personally, or by mailing the same 

in a sealed envelope, registered, or certified, postage prepaid, 

addressed to the party upon whom service shall be made and the date of 

delivery as shown by return



[[Page 171]]



receipt shall be the date of service. Waiver of the service of any 

papers may be noted thereon or on a copy thereof or on a separate paper, 

signed by the parties and filed with the Board.

    (r) Rule 17, Hearings--Where and when held. Hearings will ordinarily 

be held in Washington, D.C., except that, upon request reasonably made 

and upon good cause shown, the Board may in its discretion set the 

hearing at another location. Hearings will be scheduled at the 

discretion of the Board with due consideration to the regular order of 

appeals and other pertinent factors. On request or motion by either 

party and upon good cause shown, the Board may in its discretion advance 

a hearing.

    (s) Rule 18, Notice of hearings. The parties shall be given at least 

15 days notice of the time and place set for hearings. In scheduling 

hearings, the Board will give due regard to the desires of the parties, 

and to the requirement for just and inexpensive determination of appeals 

without unnecessary delay. Notices of hearings shall be promptly 

acknowledged by the parties.

    (t) 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. 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 

Rule 11.

    (u) Rule 20, Nature of hearings. Hearings shall be as informal as 

may be reasonable and appropriate under 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 applied in the courts of the United States in 

nonjury trials, subject, however, to the sound discretion of the 

presiding Administrative Judge in supervising the extent and manner of 

presentation of such evidence. In general, admissibility will hinge on 

relevancy and materiality. Letters or copies thereof, affidavits and 

other evidence not ordinarily admissible under the generally accepted 

rules of evidence may be admitted in the discretion of the presiding 

Administrative Judge. The weight to be attached to evidence presented in 

any particular form will be within the discretion of the Board, taking 

into consideration all the circumstances of the particular case. 

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 

in any case require evidence in addition to that offered by the parties.

    (v) Rule 21, Examination of witnesses. Witnesses before the Board 

will be examined orally under oath or affirmation, unless the facts are 

stipulated or the presiding administrative Judge shall otherwise order. 

If the testimony of a witness is not given under oath the Board may, if 

it seems expedient, warn the witness that his statements may be subject 

to the provisions of title 18, United States Code, sections 287 and 1001 

and any other provisions 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 thereof.

    (w) Rule 22, Copies of papers. When books, records, papers or 

documents have been received in evidence, a true copy thereof or of such 

part thereof as may be material or relevant may be substituted therefor, 

during the hearing or at the conclusion thereof.

    (x) Rule 23, Post hearing briefs--(1) General. Briefs must be 

compact, concise, logically arranged and free from burdensome, 

irrelevant, immaterial and scandalous matter. Briefs not complying with 

this rule may be disregarded by the Board.

    (2) Time of submittal. Briefs, including reply briefs, shall be 

submitted at such times and upon such terms as may be agreed to by the 

parties and the presiding Administrative Judge at the conclusion of the 

hearing.

    (3) Length of briefs. Except by permission of the Board on motion, 

principal briefs shall not exceed 100 8\1/2\ by 11 

pages typewritten double space exclusive of any table of contents and 

table of statutes, regulations and cases cited. Reply briefs shall not 

exceed 20 such pages.

    (y) Rule 24, Transcript of proceedings. Testimony and argument at 

hearings



[[Page 172]]



shall be reported verbatim, unless the Board otherwise orders. 

Transcripts of the proceedings shall be supplied to the parties at such 

rates as may be fixed by contract between the Board and the reporter. If 

the proceedings are reported by an employee of the Government, the 

appellant may receive transcripts upon payment to the Government at the 

same rates as those set by contract between the Board and the 

independent reporter.

    (z) Rule 25, Withdrawal of exhibits. After a decision has become 

final the Board may, upon request and after notice to the other party, 

in its discretion permit the withdrawal of original exhibits, or any 

part thereof, by the party entitled thereto. The substitution of true 

copies of exhibits or any part thereof may be required by the Board in 

its discretion as a condition of granting permission for such 

withdrawal.

    (aa) Rule 26, Representation--The appellant. An individual appellant 

may appear before the Board in person, a corporation by an officer 

thereof, a partnership or joint venture by a member thereof, or any of 

these by an attorney at law duly licensed in any state, Commonwealth, 

Territory or in the District of Columbia.

    (bb) Rule 27, Representation--The respondent. Government counsel 

shall be designated to represent the interests of the Government before 

the Board. They shall file notice of appearance with the Board, and 

notice thereof will be given appellant or his attorney in the form 

specified by the Board from time to time. Whenever at any time it 

appears that appellant and Government counsel are in agreement as to 

disposition of the controversy, the Board may suspend further processing 

of the appeal in order to permit reconsideration by the contracting 

officer: Provided, however, That if the Board is advised thereafter 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.

    (cc) Rule 28, Decisions. Decisions of the Board will be made in 

writing and authenticated copies thereof will 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, D.C.

    (dd) Rule 29, Motions for reconsideration. A motion for 

reconsideration, if filed by either party, shall set forth specifically 

the ground or grounds relied upon to sustain the motion, and 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.

    (ee) Rule 30, Dismissal without prejudice. In certain cases, appeals 

docketed before the Board are required to be placed in a suspense status 

and the Board is unable to proceed with disposition thereof for reasons 

not within the control of the Board. In any such case where the 

suspension has continued, or it appears that it will continue, for an 

inordinate length of time, the Board may in its discretion dismiss such 

appeals from its docket without prejudice to their restoration when the 

cause of suspension has been removed.

    (ff) Rule 31, Dismissal for failure to prosecute. Whenever a record 

discloses the failure of the appellant to file documents required by 

these rules, respond to notice or correspondence from the Board, comply 

with orders of the Board or otherwise to indicate an intention to 

continue the prosecution of an appeal filed, the Board may issue an 

order requiring appellant to show cause within thirty days why the 

appeal should not be dismissed for lack of prosecution. If the appellant 

shall fail to show such cause, the appeal may be dismissed with 

prejudice.

    (gg) Rule 32, Ex Parte communications. No Administrative Judge or 

member of the Board's staff shall entertain, 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 matter at issue in an 

appeal. This provision does not apply to consultation among Board 

members nor to ex parte communications concerning the Board's 

administrative functions or procedures.



[[Page 173]]



    (hh) Rule 33, Effective date and applicability. These revised rules 

shall take effect on January 14, 1975. They govern all proceedings in 

appeals after they take effect and also all further proceedings in 

appeals then pending, except to the extent that in the opinion of the 

Board, their application in a particular appeal pending when the Rules 

take effect would not be feasible or would work an injustice, in which 

event the former procedure applies.



[Regs., Jan. 7, 1975, DAEN]



[40 FR 2582, Jan. 14, 1975, as amended at 45 FR 19202, Mar. 24, 1980]