Note: The Department of Labor Board of Contract Appeals issued its last decision on January 5, 2007.
Effective January 7, 2007, the Labor BCA and seven other civilian BCAs were consolidated under a new
Civilian Board of Contract Appeals. See Section 847 of the FY 2006 Defense Authorization Act (Pub. L. No. 109-63).
These regulations are no longer printed in the Code of Federal Regulations,
but may have some limited applicability. SeeHistory of DOL's
BCA Rules for additional explanation. See alsoGlengarry, Inc., 2001-BCA-1 (LBCA Aug. 29, 2001).
PART 29-60-PROCEDURES FOR SETTLING CONTRACT DISPUTE
APPEALS
Sec.
29-60.000 Scope of part.
Subpart 29-60.1 - General Policy; Establishment and Functions
of the Board of Contract Appeals
29-60.100 Designation and
establishment. 29-60.101 Organization and location of the
Board. 29-60.102 Jurisdiction for considering
appeals. 29-60.103 Powers of the Board. 29-60.104 Board of Contract Appeals
procedure. 29-60.104-1 Rules. 29-60.104-2 Administration and
interpretation of rules. 29-60.104-3 Preliminary procedures. 29-60.104-4 Delegation of authority. 29-60.104-5 Time, computation, and
extensions. 29-60.104-6 Representation of parties.
Subpart 29-60.2 - Rules of the Department of
Labor Board of Contract Appeals
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
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.
(a) The Board is located in Washington, D.C.
(b) The Board consists of the Chief Administrative Law Judge and
other Administrative Law Judges employed by the U.S. Department
of Labor as provided in 5 U.S.C. 5108 and qualified to preside at
hearings pursuant to 5 U.S.C. 556. The Chief Administrative Law
Judge shall be the Chairman of the Board. The appeals are
assigned to a panel of at least three members of the Board by the
Chairman who shall designate one panel member as Chairman of the
panel. The decision of a majority of the panel constitutes the
decision of the Board.
(c) In the event the Chief Administrative Law Judge is
temporarily unavailable to serve as Chairman of the Board he
shall designate one associate member to serve for the duration of
his absence.
(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.
(b) The authority of the Board does not apply to any matters
arising from disputes relating to equal employment opportunity
and labor standards.
(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-
graph (a) of § 29-60.102, including but not limited to:
(1) The power to administer oaths and affirmations;
(2) The power to conduct hearings, examine and cross-examine
witnesses and to call witnesses;
(3) The power to rule upon offers of proof and admissibility
of evidence;
(4) The power to regulate the course of hearings and the
conduct of the parties and their representatives therein;
(5) The power to rule upon all motions;
(6) The power to grant or order oral argument before the
Board or its designated panel at any stage of the proceeding,
(7) The power to make decisions in conformity with this
part;
(8) The power to hold conferences for the settlement,
clarification and simplification of issues; and
(9) The power and authority pursuant to 5 U.S.C. 304, to
apply to the appropriate U.S. District Court for the issuance of
a subpoena to compel the attendance of a witness at a board
hearing or for the purpose of obtaining the formal testimony of
such witness or to compel the production of other evidentiary
material necessary for a proper adjudication of the case.
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.
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.
(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.
(b) Except as otherwise provided by law, in computing any period
of time prescribed by these rules or by any order of the Board,
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.
(c) Except for the period prescribed for filing notices of
appeal and requests for reconsideration, an extension of time may
be granted by the Board upon written motion by the requesting
party stating good cause for such an extension.
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.
Subpart 29-60.2 - Rules of the Department of Labor Board of
Contract Appeals
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.
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.
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:
(a) The decision from which the appeal is taken and any findings
of fact made in connection therewith and the letter or letters or
other documents of claim in response to which the decision was
issued;
(b) The contract and pertinent plans, specifications,
amendments, and change orders;
(c) Correspondence between the parties and other data pertinent
to the appeal;
(d) 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; and
(e) Such additional information may be considered material.
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.
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:
(a) To dismiss for lack of jurisdiction;
(b) To dismiss the appeal for failure by the contractor to state
a claim for which relief can be granted;
(c) To dismiss the appeal for failure of the contractor to
prosecute;
(d) To grant the appeal for failure of the Government to
prosecute its defense; or
(e) Such other motions as may be appropriate.
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.
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.
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:
(a) The simplification or clarification of the issues;
(b) The possibility of obtaining stipulations, admissions,
agreements on documents, understandings on matters already of
record, or similar agreements which will avoid unnecessary
proof;
(c) The limitation of the number of expert witnesses, or
avoidance of similiar cumulative evidence, if the case is to be
heard;
(d) The possibility of agreement disposing of all or any of the
issues in dispute; and
(e) Such other matters as may aid the disposition of the appeal.
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.
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.
(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.
(b) The appeal will be decided on basis of the available record
as furnished by the parties unless a hearing has been requested
by either party, or unless the Board orders a hearing.
(c) With the concurrence of the Government, the appeal shall be
decided by the chairman of the panel to which the appeal has been
assigned. For this purpose, the chairman of the panel is vested
with all the authority and power of the full Board to hear,
consider, and decide the appeal. At the discretion of the panel
chairman, the panel shall participate in the decision.
(d) Under this accelerated procedure, the decision will be
issued on an expedited basis, without regard to its normal
position on the docket, and will be rendered in summary form
unless other action appears indicated.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(a) All documents offered in evidence at a hearing must be
submitted in triplicate.
(b) 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.