[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
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]