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| September 16, 2008 DOL Home > OALJ Home > Board of Contract Appeal |  |
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Labor Board of Contract Appeals Rules
These regulations are no longer printed in the Code of Federal Regulations, but may have some limited applicability. See History of DOL's BCA Rules for additional explanation. See also Glengarry, Inc., 2001-BCA-1 (LBCA Aug. 29, 2001). PART 29-60-PROCEDURES FOR SETTLING CONTRACT DISPUTE APPEALS
Sec.
29-60.100 Designation and
establishment.
29-60.201 Notice of appeal.
Sec. Subpart 29-60.3 - Transitional provisions 29-60.301 Appeals in progress. Authority: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263, 5 U.S.C. Appendix. Source: 37 FR 14303, June 19, 1972, unless otherwise noted.
This part establishes a permanent Department of Labor Board of Contract Appeals (referred to hereafter as the Board), delegates authority to the Board to hear and decide, pursuant to prescribed policies and procedures, appeals from formal decisions of contracting officers and other officials of the Department of Labor arising under disputes provisions of contracts awarded by the Department, and sets forth the rules of the Board. This part terminates a prior delegation (36 FR 5691) of such appellate and review functions to the General Services Administration Board of Contract Appeals, except with respect to cases currently pending before such Board. Subpart 29-60.1 - General Policy; Establishment and Functions of the Board of Contract Appeals § 29-60.100 Designation and establishment A permanent Department of Labor Board of Contract Appeals is hereby established. The Board shall be composed of members selected and appointed as provided in § 29-60.101 and is designated as the authorized representative of the Secretary of Labor to hear and decide appeals within its jurisdiction as set forth in § 29-60.102 and to perform the designated functions in connection threwith as provided in this part.
§ 29-60.101 Organization and location of the Board.
(a) The Board is located in Washington, D.C. (41 FR 35186, Aug. 20,1976)
§ 29-60.102 Jurisdiction for considering appeals.
(a) Except as stated in paragraph (b) of this section, the
Department of Labor Board of Contract Appeals (referred to herein
as "the Board") shall consider and determine appeals
from decisions of contracting officers and other officials of the
Department of Labor arising under contracts which contain
provisions requiring the determination of appeals by the head of
the agency or his duly authorized representative. The Board has
authority to determine appeals falling within the scope of its
jurisdiction as fully and finally as might the Secretary himself.
(1) When an appeal is taken pursuant to a disputes clause in a
contract which limits appeals to disputes concerning questions of
fact, the Board may in its discretion hear, consider, and decide
all questions of law necessary for the complete adjudication of
the issue.
§ 29-60.103 Powers of the Board.
(a) The Board shall have all the powers of the Secretary of
Labor necessary or appropriate to the exercise of the
jurisdiction and the performance of the duties provided in para-
§ 29-60.104 Board of Contract Appeals procedure. Appeals referred to the Board are handled in accordance with the rules of the Board (see Subpart 29-60.2).
§ 29-60.104-2 Administration and interpretation of rules. Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay.
Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise.
§ 29-60.104-4 Delegation of authority. The Chairman of the Board may authorize and direct any individual member of the Board to hold prehearing conferences and/or hearings and receive evidence and arguments in its stead, and to certify the record of the proceedings to the designated panel. The Board member acting pursuant to such authority may exercise any of the powers vested in the Board which are necessary to the proper performance of the functions assigned to him by the Chairman of the Board.
§ 29-60.104-5 Time, computation, and extensions.
(a) 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.
§ 29-60.104-6 Representation of parties. Reference to contractor, appellant, contracting officer, Government, and parties shall include respective representatives of the parties: Provided, The appropriate notices of appearance have been filed with the Board. An appellant may appear before the Board in person or may be represented by counsel or by any other duly authorized representative.
Notice of an appeal must be in writing and may be in the form of a letter to the Secretary of Labor. The original notice of appeal, together with two copies, addressed to the Secretary, shall be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract.
§ 29-60.202 Contents of notices of appeal. A notice of appeal, which may be in the form of a letter, should indicate that an appeal is thereby intended, should identify the decision and the date thereof, from which the appeal is taken, and should furnish the number of the contract in dispute. The appeal should describe the nature of the dispute involved in the decision and the relief sought, the contract provisions involved, and any other additional information or comments relating to the dispute which are considered to be important. The notice of appeal should be signed personally by the appellant (the prime 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.
§ 29-60.203 Forwarding of appeals. When a notice of appeal is received by the contracting officer, he shall transmit, directly to the Board, the original of the notice of appeal, together with the original of the envelope in which the notice of appeal was received with the date of receipt stamped thereon, and any receipt from the appellant showing the date of receipt of the decision of the contracting officer, or shall furnish information as to the date when his decision was received by the appellant. A copy of the same material shall be simultaneously furnished to the Solicitor of Labor. When the Board receives the original or copy of a notice of appeal from a source other than the contracting officer, the contracting officer shall be advised promptly, given a copy of the notice, and shall be requested to follow the same procedure as if he had received the notice directly from the appellant.
After the Board receives a notice of appeal, it will promptly acknowledge receipt thereof to the appellant, who shall be furnished a copy of these rules. The Board simultaneously willtransmit copies of appropriate documents to the contracting officer, and the Solicitor of Labor.
Following receipt of the notice of appeal, or advice that an
appeal has been filed, the contracting officer shall promptly,
and in any event within 30 days, compile and transmit to the
Board an appeal file consisting of copies of all documents
pertinent to the appeal, together with an index listing the
documents. The contracting officer shall simultaneously transmit
two copies of the appeal file to the Solicitor of Labor and shall
retain one copy in his office. There should be included:
§ 29-60.205-2 Notification to appellant. Upon receipt of the foregoing appeal file, the Board shall notify the appellant, provide him with a listing of its contents, and shall afford him an opportunity to examine the complete compilation at the office of the contracting officer, or at the office of the Board, for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. The Board also will promptly advise the parties regarding any later documentation of the appeal file. Within 30 days after receipt of notice of docketing of the appeal by the Board, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each claim, alleging the basis with appropriate reference to contract provisions for each claim, and the dollar amount claimed. Upon receipt thereof, the Board shall serve a copy upon the Solicitor of Labor. Should a complaint not be mailed or otherwise filed within 30 days, appellant's claim and notice of appeal shall be deemed to set forth its complaint and the Solicitor of Labor shall be so notified.
Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, the Solicitor of Labor shall prepare and file with the Board an original and two copies of an answer thereto, setting forth simple, concise, and direct statements of its defenses to each claim asserted by appellant. This pleading shall set forth any affirmative defenses or counterclaims, as appropriate. Upon receipt thereof, the Board shall serve a copy upon appellant.
§ 29-60.206-3 Amendment of pleadings. The Board may, in its discretion, and within the proper scope of the appeal, permit or require either party to amend its pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings or documentation described in § 29-60.206, 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 appeal file (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.
The Board may entertain the following motions:
§ 29-60.207-2 For lack of jurisdiction. Any motion addressed to the jurisdiction of the Board, and any reply thereto, shall be promptly filed. Oral argument on the motion shall be afforded an 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.
Upon receipt of the Government's answer, appellant promptly shall advise the Board whether it desires a hearing, as prescribed in § 29-60.217, or whether in the alternative it elects to submit its case on the record without a hearing, as prescribed in § 29-60.211. In appropriate cases, the appellant also shall elect whether it desires the optional accelerated procedure prescribed in § 29-60.212. The Government also shall have the right to request a hearing, and the Board may direct that a hearing be held upon its own motion.
§ 29-60.209 Prehearing briefs. Based on an examination of the documentation described in 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 prehearing briefs in any case in which a hearing has been elected pursuant to § 29-60.208. 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 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 simultaneous be furnished to the other party as arranged.
§ 29-60.210 Prehearing conference.
Whether the case is to be submitted pursuant to §
29-60.211, or heard pursuant to § 29-60.217, the Board may
upon its own initiative, or upon the application of either party,
call upon the parties to appear before a member of the Board for
a conference to consider: Such conferences shall be on the record at the discretion of the presiding Board member. The results of the conference shall be reduced to writing by the presiding Board member, and this writing or any transcript of the conference shall thereafter constitute part of the record.
§ 29-60.211 Submission without a hearing. Where neither party desires a hearing, and the Board does not require one, the Board's decision will be based upon the available record as furnished by the parties.
§ 29-60.212 Optional accelerated procedure.
(a) An appeal involving sums not excess of $10,000 shall be
handled under this rule at the written request of the appellant
and upon concurrence of the Board.
§ 29-60.213 Closing of the record.
A case submitted on the record pursuant to § 29-60.211 or § 29-60.212 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 transcript, or upon receipt of briefs when briefs ordered to be submitted by the Board.
§ 29-60.213-2 Record bases for decision The record shall consist of appeal file described in § 29-60.205-1, and any additional material, pleadings, briefs, records of conferences. depositions, interrogatories and answers, admissions, and hearing exhibits.
§ 29-60.213-3 Availability of record. This record will at all times be available for inspection by the parties at the office of the Board. In the interest of convenience, prior arrangements for inspection of the file should be made with the Clerk of the Board. Copies of material in the record may, if practicable, be furnished to appellant at the cost of reproduction.
After an appeal has been docketed, the Board may, upon motion of either party filed with the Board, with notice thereof to the other party, upon good cause shown, 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, for use as evidence or for purpose of discovery.
The time, place, and manner of taking depositions shall be governed by order of the Board.
§ 29-60.214-3 Use as evidence. No testimony taken by deposition shall be considered as part of the evidence in the hearing of an appeal unless and until such testimony is offered and received in evidence at such hearing. Testimony will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. In such instance, however, the deposition may be used to contradict or impeach the testimony of the witness given at the hearing. In cases otherwise decided on the record, the Board may, on motion of either party and in its discretion, receive depositions as evidence in supplementation of that record.
All expenses of taking the deposition of any person shall be borne by the party taking that deposition, except that the other party shall be entitled to copies of the transcript of the deposition upon paying therefor.
§ 29-60.215 Interrogatories to parties, production and inspection of documents.
After an appeal has been filed with the Board, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath and returned within 30 days from date of service. Upon timely objection by the party, the Board will determine the extent to which the interrogatories will be permitted. The scope and use of interrogatories will be controlled by § 29-60.214.
§ 29-60.215-2 Production and inspection of documents. Upon motion of any party showing good cause therefor, and upon notice, the Board may order the other party to produce and permit the inspection and copying or photographing of any designated documents or objects, not privileged, specifically identified, and their relevance and materiality to the cause or causes in issue explained, which are reasonably calculated to lead to the discovery of admissible evidence. If the parties cannot themselves agree thereon, the Board shall specify just terms and conditions of making the inspection and taking the copies and photographs.
Except where these rules specifically provide for service of documents by the Board, all motions, answers, briefs, notices, and all other papers filed with the Board shall be served by the filing party on the opposing party. Service shall be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy of the document to the opposing party or its counsel. There shall be attached to the original of each document filed with the Board a certificate of service signed by the filing party stating that service has been made.
§ 29-60.217-1 Where and when held. Hearings ordinarily will be held in Washington, D.C., except that upon request 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 or postpone a hearing.
§ 29-60.217-2 Notice of hearings. The parties shall be given at least 15 days' notice of the time and place set for hearings. In scheduling hearing dates, 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. Notice of hearing shall be acknowledged promptly by the parties. A party failing to acknowledge a notice of hearing shall be deemed to have submitted the case upon the Board record as provided in § 29-60.211.
§ 29-60.217-3 Unexcused absence of 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 § 29-60.211.
§ 29-60.217-4 Nature of hearings. Hearings will be as informal as reasonably permissible, and will seek to provide the Board with the pertinent facts and the positions of the parties as a basis for the Board's decision recommendation. The parties may offer such relevant evidence or argument as they deem appropriate; subject, however, to the exercise of reasonable discretion by the presiding member of the Board in supervising the extent and manner of presenting such evidence. The weight to be attached to any evidence presented be determined by the Board.
§ 29-60.217-5 Examination of witnesses. Witnesses before the Board may be examined orally under oath or affirmation, unless the facts are stipulated, or the presiding Board member shall otherwise order. If the testimony of a witness is not given under oath, the presiding Board member may, if he deems it expedient, warn the witness that his statements may be subject to the provisions of 18 U.S.C. 287 and 1001, and any other provisions of 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.
§ 29-60.217-6 Copies of papers.
(a) All documents offered in evidence at a hearing must be
submitted in triplicate.
§ 29-60.217-7 Posthearing submissions. Unless otherwise directed by the Board, the parties will submit simultaneous briefs within 30 days of the receipt of the transcript, and reply briefs within 20 days of receipt of the initial briefs. § 29-60.217-8 Transcript of proceedings. Testimony and argument at hearings shall be reported verbatim. Transcripts of the proceedings shall be supplied to the parties at such rates as may be fixed by contract between the Department and the reporting firm.
§ 29-60.217-9 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.
§ 29-60.218 Representation of parties.
An appellant may appear before the Board in person or may be represented by counsel or by any other duly authorized representative.
§ 29-60.218-2 Representation of Goverment. Counsel designated by the Solicitor of Labor shall represent the interests of the Department before the Board. They shall file notices 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 it appears that appellant and the Solicitor's Office 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 by either party that the controversy has not been disposed of by agreement, the case shall be restored to the Board's docket.
§ 29-60.219 Decisions of the Board. Decisions of the Board will be made in writing and a certified copy thereof will be forwarded to appellant. Copies also will be sent to the Solicitor of Labor and to the contracting officer.
§ 29-60.220 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. The opposing party shall have the right to file an answer to such motion within 30 days from the date of receipt of the motion for reconsideration, and either party shall have the right to request an oral argument. Reconsideration of a decision, which may include oral argument, may be granted if, in the judgment of the Board, sufficient reason therefor appears.
§ 29-60.221 Dismissal without prejudice. Where 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, and 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.
§ 29-60.222 Remands from courts. Whenever any matter is remanded to the Board from any court for further proceedings, each of the parties shall, within 20 days of such remand, submit a report to the Board, recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and enter special orders governing the handling of matters remanded to it for further proceedings by any court, to the extent the court's directive and time limitations will permit, such orders will conform to these rules.
§ 29-60.223 Standards of conduct. No member of the Board shall consider an appeal if he has participated in the awarding or administration of the contract in question. There shall be no communication between any party to an appeal and a Board member or Board employee concerning the merits of the appeal, unless such communication (if written) is also furnished to the other party. The Board also shall exercise care to avoid receiving, except as part of the formally established appeal record, any information having a substantial bearing upon an appeal from persons who do not represent a party in the appeal, but nonetheless have an interest in the decision to be rendered.
Subpart 29-60.3 - Transitional Provisions
All appeals pending before the General Services Administration Board of Contract Appeals on the effective date of the rules in this part (i.e., those with respect to which a notice of appeal had been properly filed before such date) shall be processed in accordance with Department of Labor appeals procedures heretofore in effect. All other appeals pending in the Department on such date shall be processed under the procedures in effect at the time the notice of appeal was filed.
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