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in Rules 17 through 25, or whether in the the case will be further expedited if the alternative he elects to submit his case on parties elect to waive pleadings and/or elect the record without a hearing, as prescribed to waive the hearing and submit on the in Rule 11. In appropriate cases, the appel. record. In all other respects, these rules will lant shall also elect whether he desires the apply. optional accelerated procedure prescribed in
13. Settling of the record. A case subRule 12.
mitted on the record pursuant to Rule 11 9. Prehearing briefs. Based on an exam
shall be ready for decision when the parties ination of the documentation described in
are so notified by the Board. A case which Rule 4, the pleadings, and a determination
is heard shall be ready for decision upon of whether the arguments and authorities
receipt of transcript, or upon receipt of briefs addressed to the issues are adequately set
when briefs are to be submitted. At any forth therein, the Board may in its discretion
time prior to the date that a case is ready require the parties to submit prehearing
for decision, either party upon notice to the briefs in any case in which a hearing has been
other. may supplement the record with docuelected pursuant to Rule 8. In the absence
ments and exhibits deemed relevant and maof a Board requirement therefor, either party
terial by the Board. The Board upon its own may in its discretion, and upon appropriate
initiative may call upon either party, with and sufficient notice to the other party, fur
appropriate notice to the other, for evidence nish a prehearing brief to the Board. In any
deemed by it to be relevant and material. case where a prehearing brief is submitted,
The weight to be attached to any evidence it shall be furnished so as to be received by
of record will rest within the sound discrethe Board at least 15 days prior to the date
tion of the Board. Either party may at any set for hearing, and a copy shall simultane
stage of the proceeding, or notice to the ously be furnished to the other party as
other party, raise objection to material in previously arranged.
the record or offered into the record, on the 10. Prehearing or presubmission confer
grounds of relevancy and materiality. ence. Whether the case is to be submitted
The Board record shall consist of documenpursuant to Rule 11 or heard pursuant to
tation described in Rule 4, and any addiRules 17 through 25, the Board may upon
tional material, pleadings, prehearing briefs, its own initiative or upon the application of
record of prehearing or presubmission coneither party, call upon the parties to appear
ferences, depositions, interrogatories, admisbefore a member or examiner of the Board
sions, transcripts of hearing, hearing exhibits, for a conference to consider;
and post-hearing briefs, as may thereafter be (a) The simplification or clarification of developed pursuant to these rules. the issues;
This record will at all times be available (b) The possibility of obtaining stipula
for inspection by the parties at the office of tions, admissions, agreements on documents,
the Board. In the interest of convenience, understandings on matters already of record,
prior arrangements for inspection of the file or similar agreements which will avoid un
should be made with the Recorder of the necessary proof;
Board. Copies of material in the record may, (c) The limitation of the number of expert
if practicable, be furnished to appellant at witnesses, or avoidance of similar cumulative
the cost of reproduction. evidence, if the case is to be heard;
14. Depositions-(a) When depositions may (d) The possibility of agreement disposing
be taken. After an appeal has been docketed, of all or any of the issues in dispute;
the Board may, upon application of either (e) Such other matters as may aid in the
party or upon agreement, by the parties, perdisposition of the appeal.
mit the taking of the testimony of any perThe results of the conference shall be reduced son, by deposition upon oral examination or to writing by the Board member or examiner
written interrogatories, for use as evidence in the presence of the parties, and this writ
in the appeal proceedings. Leave to take a ing shall thereafter constitute part of the
deposition will not ordinarily be granted unrecord.
less it appears that it is impracticable to 11. Submission without a hearing. Either present the deponent's testimony at the hearparty may elect to waive a hearing and to
ing of the appeal, or unless a hearing has submit his case upon the Board record. as been waived and the case submitted pursuant settled pursuant to Rule 13. In the event of
to Rule 11. such election to submit, the submissions may
(b) Before whom taken. Depositions to be supplemented by oral argument (tran
be offered in evidence before the Board may scribed if requested), and/or by briefs, ar
be taken before and authenticated by any ranged in accordance with Rules 18 and 23.
person authorized by the laws of the United 12. Optional accelerated procedure, Should
States, or by the laws of the place where an appeal involve $5,000 in amount or less,
the deposition is taken, to administer oaths. it may at the option of the appellant be proc
(c) By oral examinations. When either essed under this rule. In the event of such party desires to take the testimony OI any election, the Board will undertake to issue a person by deposition upon oral examination, decision on the appeal on an expedited basis. the moving party shall give the opposite party without regard to its normal position on the at least 15 days written notice of the time docket. Under this accelerated procedure, and place where such deposition is proposed
to be taken; the name, address, and title of the person before whom it is proposed to be taken; and the name and address of the witness. This notice is unnecessary in any case where the deposition has been scheduled by mutual agreement. If the party so served finds it impracticable to appear at the taking of the deposition, in person or by counsel, he shall promptly so notify the moving party who shall make available to him a copy of the evidence given at the deposition. Within 15 days after receipt of such copy, the party so served may serve cross-interrogatories upon the moving party, and the proceedings shall be had thereon as provided in the next succeeding subparagraph (d) herein.
(d) By written interrogatories. When either party desires to take the testimony of any person by deposition upon written interrogatories, the moving party shall serve them upon the opposite party with a notice stating the name and address of the person who is to answer them and the name, address, and title of the person before whom the deposition is to be taken. Within 15 days thereafter, the party so served may serve cross-interrogatories upon the moving party. A copy of the notice and copies of all interrogatories served shall be delivered by the moving party to the person before whom the deposition is to be taken, and the latter shall proceed promptly to take the testimony of the witness in response to the interrogatories.
(e) Form and return of deposition. Each deposition shall show the docket number and the caption of the proceedings, the place and date of taking, the name of the witness, and the names of all persons present. The person taking the deposition shall certify thereon that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness, and he shall enclose the original deposition and exhibits in a scaled prepaid package and forward same to the Recorder, Armed Services Board of Contract Appeals.
(f) Introduction in 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 the hearing. It will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. In such case it can, however, be utilized to contradict or impeach the testimony of the deponent as a witness. If the opportunity to be heard has been waived and the case submitted pursuant to Rule 11, the deposition shall be deemed to be part of the record before the Board.
15. Interrogatories to parties; inspection of documents; admission of facts. Under appropriate circumstances, but not as a matter of course, the Board will entertain applications for permission to serve written interrogatories upon the opposing party, applications for an order to produce and permit the inspection of designated documents, and
applications for permission to serve upon the opposing party a request for th of specified facts. Such applications shall be reviewed and approved only to the extent and upon such terms as the Board in its discretion considers to be consistent with the objective of securing just and inexpensive determination of appeals without unnecessary delay, and essential to the proper pursuit of that objective in the particular case.
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 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.
HEARINGS 17. 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 hearings 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.
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 hearing shall be promptly acknowledged by the parties. A party failing to acknowledge a notice of hearing shall be deemed to have submitted his case upon the Board record as provided in Rule 11.
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.
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 thev 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 member or examiner 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, or other evidence in its discretion permit the withdrawal of not ordinarily admissible under the generally original exhibits, or any part thereof, by the accepted rules of evidence, may be admitted
party entitled thereto. The substitution of in the discretion of the presiding member
true copies of exhibits or any part thereof or examiner. The weight to be attached to
may be required by the Board in its discreevidence presented in any particular form
tion as a condition of granting permission will be within the discretion of the Board, for such withdrawal. 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 hear
REPRESENTATION ing. The parties may stipulate the testimony that would be given by a witness if the wit 26. The Appellant. An individual appelness were present. The Board may in any lant may appear before the Board in person, case require evidence in addition to that a corporation by an officer thereof, a partneroffered by the parties.
ship or joint venture by a member thereof, 21. Examination of witnesses. Witnesses or any of these by an attorney at law duly before the Board will be examined orally licensed in any state, Commonwealth, Terunder oath or affirmation, unless the facts ritory, or in the District of Columbia. are stipulated, or the Board member or ex- 27. The Respondent. Government counaminer shall otherwise order. If the testi- sel designated by the various departments to mony of a witness is not given under oath represent the departments, agencies, directhe Board may, if it seems expedient, warn torates, and bureaus cognizant of the disthe witness that his statements may be sub- putes brought before the Board, may in acject to the provisions of Title 18, United cordance with their authority represent the States Code, sections 287 and 1001, and any interests of the Government before the other provisions of law imposing penalties Board. They shall file notices of appearfor knowingly making false representations ance with the Board, and notice thereof will in connection with claims against the United be given appellant or his attorney in the form States or in any matter within the jurisdic. specified by the Board from time to time. tion of any department or agency thereof. Whenever at any time it appears that ap
22. Copies of papers. When books, rec- pellant and Government counsel are in agreeords, papers, or documents have been re- ment as to disposition of the controversy, ceived in evidence, a true copy thereof or of the Board may suspend further processing of such part thereof as may be material or rel the appeal in order to permit reconsideration evant may be substituted therefor, during by the contracting oficer: Provided, however, the hearing or at the conclusion thereof. That if the Board is advised thereafter by
23. Posthearing briefs. Posthearing briefs either party that the controversy has not may be submitted upon such terms as may been disposed of by agreement, the case shall be agreed upon by the parties and the presid be restored to the Board's calendar without ing member or examiner at the conclusion of loss of position. the hearing. Ordinarily they will be simul 28. Decisions of the Board will be made in taneous briefs, exchanged within 20 days writing and authenticated copies thereof will after receipt of transcript.
be forwarded simultaneously to both parties. 24. Transcript of proceedings. Testimony The rules of the Board and all final orders and argument at hearings shall be reported and decisions (except those required for good verbatim, unless the Board otherwise orders. cause to be held confidential and not cited Transcripts of the proceedings shall be sup- as precedents) shall be open for public inplied to the parties at such rates as may be spection at the offices of the Board in Washfixed by contract between the Board and the ington, D.C. In accordance with paragraph reporter. If the proceedings are reported by 3 of the Charter, decisions of the Board will an employee of the Government, the appel- be made upon the record, as described in lant may receive transcripts upon payment Rule 13. to the Government at the same rates as those 29. A motion for reconsideration, if filed set by contract between the Board and the by either party, shall set forth specifically the independent reporter.
ground or grounds relied upon to sustain the 25. Withdrawal of exhibits. After a deci- motion, and shall be filed within 30 days from sion has become final the Board may, upon the date of receipt of a copy of the decision request and after notice to the other party of the Board by the party filing the motion.
DISMISSAL WITHOUT PREJUDICE 30. 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.
EFFECTIVE DATE AND APPLICABILITY 31. These revised rules shall take effect on the first day of the month following the month in which they are approved by the Assistant Secretary of Defense (Installations and Logistics) and the Assistant Secretaries of the Military Departments responsible for procurement. Except as otherwise directed by the Board, these rules shall not apply to appeals which have been docketed prior to their effective date.
CHAPTER 8—VETERANS ADMINISTRATION
8-1 General. 8-2 Procurement by formal advertising. 8–3 Procurement by negotiation. 84 Special types and methods of procurement. 8–5 Special and directed sources of supply. [Reserved] 8–6 Foreign purchases. 8–7 Contract clauses. 8–8 Termination of contracts. 8–10 Bonds and insurance. 8–11 Federal, State, and local taxes. 8–12 Labor. [Reserved] 8–14 Inspection and acceptance. 8–15 Contract cost principles and procedures. 8–16 Procurement forms. 8–19 Transportation. 8–30 Contract financing. 8–51 Authority and responsibilities. 8–52 Contract administration. 8–75 Delegations of authority. 8–95 Loan guaranty and vocational rehabilitation and education programs.