« PreviousContinue »
PART 11-60—CONTRACT DISPUTE AUTHORITY: The provisions of this part
11-60 are prescribed by the Secretary of the APPEALS
Treasury pursuant to sec. 633, 63 Stat. 545,
secs. 2301-2314, 70A Stat. 127–133, as amendSubpart 11-60.1—Introduction
ed; 14 U.S.C. 633, 10 U.S.C. 2301-2314. InSec.
terpret or apply sec. 205(c), 63 Stat. 390; 40 11-60.100 Scope of part.
U.S.C. 486(c); and Treasury Department 11-60.103 Creation and authority of Coast Orders 167–17 (20 F.R. 4976) and 167–50 (28
Guard Board of Contract Ap- F.R. 530).
peals. 11-60.106 Establishment and purpose.
SOURCE: The provisions of this Part 11-60 11-60.109 Effective date and applicability. contained in CGFR 64-69, 29 F.R. 18369,
Dec. 24, 1964; CGFR 64–69, 29 F.R. 19091, Subpart 11-60.2-Coast Guard Board of Con
Dec. 30, 1964. tract Appeals; Organization and Procedures 11-60.200 Appointment of Board members,
alternate members and recorder. 11-60.203 Function and jurisdiction. 11-60.206 Authority to call witnesses. 11-60.209 Quorum. 11-60.212 Appeals docket and public inspection of cases.
Subpart 11-60.1- Introduction Subpart 11-60.3—General Rules
§ 11-60.100 Scope of part. 11-60.300 Preliminary procedures and time This part establishes the rules, policies limitations.
and procedures regarding the adminis11-60.303 Appeals, how taken.
trative review and determination of dis11-60.306 Notice of appeal, contents of.
puted questions arising under Coast 11-60.309 Forwarding of appeals. 11-60.312 Duties of the Contracting Officer
Guard contracts. (appellee).
§ 11-60.103 Creation and authority of 11-60.315 Dismissal for lack of jurisdiction. Coast Guard Board of Contract Ap11-60.318 Pleadings.
peals. 11-60.321 Amendments of pleadings or record.
(a) The Coast Guard Board of Con11-60.324 Election between hearing and tract Appeals, hereinafter referred to as submission on the record.
the “Board”, is hereby created and desig11-60.327 Pre-hearing briefs.
nated as the authorized representative of 11-60.330 Preliminary review by Board.
the Secretary of the Treasury in hearing, 11-60.333 Response to notification of results
considering and determining, as fully and of prehearing review. 11-60.336 Submission without a hearing.
finally as might the Secretary, all ap11-60.339 Settling of the record.
peals by contractors (hereinafter re11-60.342 Depositions.
ferred to as appellants), from final 11-60.345 Interrogatories to parties; inspec decisions by contracting officers (here
tion of documents; admission of inafter referred to as appellees) on facts.
disputed questions pursuant to 11-60.348
the Service of papers.
"disputes" provisions of Coast Guard Subpart 11-60.4—Appeals Hearings contracts requiring the determination of 11-60.400 Where and when held.
appeals by the head of the department or 11-60.403 Notice of hearings.
his duly authorized representatives. 11-60.406 Unexcused absence of a party.
(b) The Board shall function as an 11-60.409 Nature of hearings.
independent and impartial body. 11-60.412 Examination of witnesses.
(c) The Secretary of the Treasury 11-60.415 Copies of papers.
shall appoint and terminate appoint11-60.418 Post-hearing briefs. 11-60.421 Transcript of proceedings.
ments of the members. 11-60.424 Withdrawal of exhibits.
(d) The Board shall have authority to 11-60.427 Representation of parties.
establish additional rules not inconsist11-60.430 Decisions.
ent with the rules contained in this 11-60.433 Motion for reconsideration.
§ 11-60.106 Establishment and pur
pose. (a) The rules in this part shall govern the appeals procedure and the respective rights and duties of the Board and the parties, i.e., the appellants and appellees.
(b) Except as otherwise provided in a specific contract, any dispute concerning a question of fact arising under a contract, which is not disposed of by agreement between the contractor and the contracting oficer, shall be decided by the contracting officer. In each instance the contracting officer shall reduce his decision to writing, state in the document that it is his final decision and forward it together with a copy of this part (Part 11-60) to the contractor. Should the contractor appeal that decision, the issues raised thereby shall be determined by the Board in an impartial manner con. sistent with principles of fairness and the rules in this part.
(c) It is the purpose of the rules in this part to facilitate resolution of disputes arising out of government contracts. It is impracticable to articulate a rule to fit every possible circumstance which may be encountered. Therefore, the rules will be interpreted so as to secure just and inexpensive determination of appeals without unnecessary delay.
(d) Whenever reference is made to the contractor or appellant, contracting of ficer or appellee, or parties, this shall include their respective counsel. & 11-60.109 Effective date and applica
bility. (a) The regulations in this part become effective on the 30th day following the date of publication in the FEDERAL REGISTER and shall apply to all contract “dispute" cases wherein appeal from the contracting officer's decision is taken on and after such effective date. The superseded regulations, i.e., the regulations in effect prior to the effective date of the regulations in this part, shall be applicable to all cases pending prior to said effective date except to the extent that the Board determines that the regulations in this part shall apply.
1 Regulations published as 41 CFR Part 1160, containing 88 11-60.000 to 11-60.117, in. clusive, in the FEDERAL REGISTER of May 26, 1964 (29 F.R. 6856, et seq.).
Subpart 11-60.2—Coast Guard Board (c) Decisions of the Board shall be by
of Contract Appeals; Organization a majority of the members. The Board's and Procedures
decision shall constitute the final ad
ministrative action in each case, except § 11-60.200 Appointment of Board that those decisions may be reconsidered
members, alternate members and re upon motion therefor pursuant to corder.
§ 11-60.433. (a) The Secretary of the Treasury § 11-60.206 Authority to call witnesses. shall appoint as members of the Board;
(a) Either party, at his own expense, a chairman, two regular members, either may invite witnesses to attend a. of whom shall be designated vice chair
tesitify. man by the chairman for a particular (b) The Board may also invite such case; and, two alternates to serve as
witnesses as it deems necessary. members in the absence of regular members. He shall also designate a recorder
8 11-60.209 Quorum. who shall maintain a suitable docket of contract appeal cases and shall be
(a) A presiding officer (the chairman charged with custody of all papers, docu
or vice chairman for a particular case) ments, exhibits, and materials relating
and two members shall constitute a to appeal cases. The appointees shall
quorum. be officers or employees of the Coast (b) Should any member determine Guard.
that he is unable to participate in a (b) If for any reason other than mal particular case due to some disability, feasance or misconduct in office an ap he shall disqualify himself and the prepointment shall be terminated, such siding officer shall designate an alternate termination shall not be effective to dis- to serve. qualify a member to render a decision (c) If for any reason an alternate is in any case being considered by him on designated or if a new member is apthe record in accordance with section pointed to a Board convened to hear an 11-60.336 or being heard by him, except appeal case during the course of the apthat if an appointment shall terminate peal, that part of the record of the proby reason of retirement or resignation ceedings which was not attended by the of a regular member, a new member shall new designee or appointee shall be read be appointed or an alternate member by him and he shall so certify in writing, shall be qualified in accordance with which certification shall become a part $ 11-60.209(c).
of the case record. No member or al(c) The chairman, or, in his stead, the ternate member of a Board shall partcivice chairman for a particular case, shall pate in the decision in a particular case preside at all hearings and executive ses unless he has attended the hearing or sions convened to deliberate on each con has read or heard the entire record of the tract appeal case referred to the Board. proceedings. (d) The recorder shall not be a mem
$ 11-60.212 Appeals docket and public ber of the Board.
inspection of cases. § 11-60.203 Function and jurisdiction.
(a) The appeals docket shall be main(a) The Board shall hear, consider tained in the office of the Board. Each and determine contract appeals in ac appeal shall be assigned a number in cordance with the rules in this part. the order of filing. Appeals shall be The Board shall, inter alia, have the heard in their order on the docket unless authority to conduct hearings, take offi advanced or delayed pursuant to cial notice of facts within general knowl § 11-60.400. edge, dismiss proceedings and decide (b) The docket and the decisions (excases. Testimony shall be taken under cept those required for good cause to be oath or affirmation, except as otherwise held confidential) on completed cases provided in § 11-60.412. Cases shall be
shall be available for public inspection decided on the facts and on such ques
at the Board's offices at Coast Guard tions of law as may be necessary to reach
Headquarters, Washington, D.C., during a determination. (b) The Board shall not have jurisdic
regular business hours. tion to consider and determine claims (c) Appeals record files will be mainwhich are not cognizable under the tained for a period of 10 years from the terms of the contract.
date of the Board's decision.
Subpart 11-60.3—General Rules form has been received by the contract
ing oficer, he shall endorse thereon the § 11-60.300 Preliminary procedures date of mailing (or date of receipt, if and time limitations.
otherwise conveyed) and within 20 days (a) Preliminary procedures shall be shall forward said notice of appeal to the used to encourage full disclosure of Board. relevant and material facts and to dis (b) Following receipt by the Board of courage unwarranted surprise.
the original notice of an appeal the ap(b) All time limitations specified here pellant and appellee will be promptly in for various procedural actions shall advised of its receipt, and a copy of any be considered as maximums. If the ac Board rules governing the conduct of tion described in this part can be or is hearings shall be furnished to the apaccomplished in a lesser period, the pellant. Board shall take necessary action with
$ 11-60.312 Duties of the Contracting out waiting for such time period to lapse.
Officer (appellee). (c) On good cause shown, the Board shall have authority to extend the
(a) Following the filing of a notice of various time limits specified in this part,
appeal (f 11-60.306) the appellee shall, except that the time limit established within sixty days, transmit to the Board for the filing of notices of appeals may all documents (or copies thereof) pernot be extended. (See § 11-60.303.) tinent to the appeal including the fol
lowing: f 11-60.303 Appeals, how taken.
(1) The findings of fact and the de(a) Notice of an appeal must be in
cision from which the appeal is taken,
and the letter or letters or other docuwriting, and the original, together with four copies, shall be filed with the office
ments of claim in response to which the of the contracting officer from whose
decision was issued;
(2) The contract, and pertinent plans, decision the appeal is taken. (b) The notice of appeal must be
specifications, amendments, and change mailed or otherwise filed within 30 days
orders; of receipt of the contracting officer's de
(3) Correspondence between the parcision unless otherwise required by the
ties pertinent to the appeal;
(4) Transcripts of any testimony takcontract or any provision of law.
en and affidavits or statements of any f 11-60.306 Notice of appeal, contents witnesses on the matter in dispute made
prior to the filing of the notice of appeal (a) A notice of appeal should indicate
with the Board; that an appeal is thereby intended, and
(5) Such additional information as should identify the contract (by num may be considered material. ber), the name and duty station of the
(b) Upon completion of the compilacontracting officer cognizant of the dis
tion of documents described in parapute, and the decision from which the graph (a) of this section, and at least appeal is taken. The notice of appeal ten days prior to forwarding the docushould be signed personally by the ap ments to the Board, the appellee shall pellant or by an officer of the appellant provide the appellant with a listing of corporation or member of the appellant the documents contained therein, and firm, or by the appellant's duly author afford him an opportunity to examine ized representative or attorney.
the complete compilation at the office of (b) The complaint referred to in § 11 the appellee, for the purpose of satis60.318 may be filed with the notice of fying himself as to the contents, and appeal, or the appellant may designate furnishing or suggesting any additional the notice of appeal as a complaint, if documentation deemed pertinent to the it otherwise fulfills the requirements of a appeal. Following receipt of this comcomplaint.
pilation, as it may be augmented, the
Board shall promptly advise the parties § 11-60.309 Forwarding of appeals.
of the docketing and such other infor(a) When a notice of appeal in any mation as may be necessary in the case.
§ 11-60.315 Dismissal for lack of juris.
diction. (a) 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 should be deferred pending hearing on both the merits and the motion.
(b) 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. $ 11-60.318 Pleadings.
(a) Within 30 days after the date of the notice of docketing of the appeal, the appellant shall file with the Board an original and four 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 counsel for the appellee. Should the complaint not be received within 30 days, and if in the opinion of the Board the appellant's claims are sufficiently defined, the counsel for the appellee and the appellant shall be so notified.
(b) Within 45 days from receipt of said complaint, or the aforesaid notice from the Recorder of the Board, the counsel for the appellee shall prepare and file with the Board an original and four copies of an answer thereto, setting forth simple, concise, and direct statements of any 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 counterclaims, as appropriate. Upon receipt thereof, the Recorder shall serve a copy upon appellant. Should the answer not be received within 45 days, it will be deemed that a general denial on behalf of the appellee has been entered and the appellant shall be so notified.
§ 11-60.321 Amendments of pleadings
or record. (a) 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.
(b) 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 scope of the appeal, but not raised by the pleadings or the documentation described in § 11-60.312 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 $ 11-60.312 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.
§ 11-60.324 Election between hearing
and submission on the record. (a) Upon receipt of appellee's answer or the notice referred to in the last sentence of $ 11-60.318(b), appellant shall advise whether he desires a hearing, as prescribed in Subpart 11-60.4 of this part, or whether in the alternative he elects to submit his case on the record without a hearing, as prescribed in § 11-60.336. § 11-60.327 Pre-hearing briefs.
(a) Based on an examination of the documentation described in § 11-60.312 and the pleadings, 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 $ 11-60.324. 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