AUTHORITY: The provisions of this Part 11-60 are prescribed by the Secretary of the Treasury pursuant to sec. 633, 63 Stat. 545, secs. 2301-2314, 70A Stat. 127-133, as amended; 14 U.S.C. 633, 10 U.S.C. 2301-2314. Interpret or apply sec. 205 (c), 63 Stat. 390; 40 U.S.C. 486(c); and Treasury Department Orders 167-17 (20 F.R. 4976) and 167-50 (28 F.R. 530).

SOURCE: The provisions of this Part 11-60 contained in CGFR 64-69, 29 F.R. 18369, Dec. 24, 1964; CGFR 64-69, 29 F.R. 19091, Dec. 30, 1964.

Subpart 11-60.1-Introduction

§ 11-60.100 Scope of part.

This part establishes the rules, policies and procedures regarding the administrative review and determination of disputed questions arising under Coast Guard contracts.

§ 11-60.103

Creation and authority of Coast Guard Board of Contract Appeals.

(a) The Coast Guard Board of Contract Appeals, hereinafter referred to as the "Board", is hereby created and designated as the authorized representative of the Secretary of the Treasury in hearing, considering and determining, as fully and finally as might the Secretary, all appeals by contractors (hereinafter referred to as appellants), from final decisions by contracting officers (hereinafter referred to as appellees) disputed questions pursuant to the "disputes" provisions of Coast Guard contracts requiring the determination of appeals by the head of the department or his duly authorized representatives.

on

(b) The Board shall function as an independent and impartial body.

(c) The Secretary of the Treasury shall appoint and terminate appointments of the members.

(d) The Board shall have authority to establish additional rules not inconsistent with the rules contained in this part.

Subpart 11-60.2-Coast Guard Board of Contract Appeals; Organization and Procedures

§ 11-60.200 Appointment of Board members, alternate members and recorder.

(a) The Secretary of the Treasury shall appoint as members of the Board; a chairman, two regular members, either of whom shall be designated vice chairman by the chairman for a particular case; and, two alternates to serve as members in the absence of regular members. He shall also designate a recorder who shall maintain a suitable docket of contract appeal cases and shall be charged with custody of all papers, documents, exhibits, and materials relating to appeal cases. The appointees shall be officers or employees of the Coast Guard.

(b) If for any reason other than malfeasance or misconduct in office an appointment shall be terminated, such termination shall not be effective to disqualify a member to render a decision in any case being considered by him on the record in accordance with section 11-60.336 or being heard by him, except that if an appointment shall terminate by reason of retirement or resignation of a regular member, a new member shall be appointed or an alternate member shall be qualified in accordance with § 11-60.209 (c).

(c) The chairman, or, in his stead, the vice chairman for a particular case, shall preside at all hearings and executive sessions convened to deliberate on each contract appeal case referred to the Board. (d) The recorder shall not be a member of the Board.

§ 11-60.203

Function and jurisdiction.

(a) The Board shall hear, consider and determine contract appeals in accordance with the rules in this part. The Board shall, inter alia, have the authority to conduct hearings, take official notice of facts within general knowledge, dismiss proceedings and decide cases. Testimony shall be taken under oath or affirmation, except as otherwise provided in § 11-60.412. Cases shall be decided on the facts and on such questions of law as may be necessary to reach a determination.

(b) The Board shall not have jurisdiction to consider and determine claims which are not cognizable under the terms of the contract.

(a) A presiding officer (the chairman or vice chairman for a particular case) and two members shall constitute a quorum.

(b) Should any member determine that he is unable to participate in a particular case due to some disability, he shall disqualify himself and the presiding officer shall designate an alternate to serve.

(c) If for any reason an alternate is designated or if a new member is appointed to a Board convened to hear an appeal case during the course of the appeal, that part of the record of the proceedings which was not attended by the new designee or appointee shall be read by him and he shall so certify in writing, which certification shall become a part of the case record. No member or alternate member of a Board shall partcipate in the decision in a particular case unless he has attended the hearing or has read or heard the entire record of the proceedings.

§ 11-60.212

Appeals docket and public inspection of cases.

(a) The appeals docket shall be maintained in the office of the Board. Each appeal shall be assigned a number in the order of filing. Appeals shall be heard in their order on the docket unless advanced or delayed pursuant to § 11-60.400.

(b) The docket and the decisions (except those required for good cause to be held confidential) on completed cases shall be available for public inspection at the Board's offices at Coast Guard Headquarters, Washington, D.C., during regular business hours.

(c) Appeals record files will be maintained for a period of 10 years from the date of the Board's decision.

Subpart 11-60.3-General Rules

§ 11-60.300 Preliminary procedures and time limitations.

(a) Preliminary procedures shall be used to encourage full disclosure of relevant and material facts and to discourage unwarranted surprise.

(b) All time limitations specified herein for various procedural actions shall be considered as maximums. If the action described in this part can be or is accomplished in a lesser period, the Board shall take necessary action without waiting for such time period to lapse.

(c) On good cause shown, the Board shall have authority to extend the various time limits specified in this part, except that the time limit established for the filing of notices of appeals may not be extended. (See § 11-60.303.)

(a) A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract (by number), the name and duty station of the contracting officer cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant or by an officer of the appellant corporation or member of the appellant firm, or by the appellant's duly authorized representative or attorney.

(b) The complaint referred to in § 1160.318 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.

§ 11-60.309 Forwarding of appeals.

(a) 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 20 days shall forward said notice of appeal to the Board.

(b) Following receipt by the Board of the original notice of an appeal the appellant and appellee will be promptly advised of its receipt, and a copy of any Board rules governing the conduct of hearings shall be furnished to the appellant.

§ 11-60.312 Duties of the Contracting Officer (appellee).

(a) Following the filing of a notice of appeal (§ 11-60.306) the appellee shall, within sixty days, transmit to the Board all documents (or copies thereof) pertinent to the appeal including the following:

(1) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued;

(2) The contract, and pertinent plans, specifications, amendments, and change orders;

(3) Correspondence between the parties pertinent to the appeal;

(4) Transcripts of any testimony taken 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;

(5) Such additional information as may be considered material.

(b) Upon completion of the compilation of documents described in paragraph (a) of this section, and at least ten days prior to forwarding the documents to the Board, the appellee shall provide the appellant with a listing of the documents contained therein, and afford him an opportunity to examine the complete compilation at the office of the appellee, for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. Following receipt of this compilation, as it may be augmented, the Board shall promptly advise the parties of the docketing and such other information as may be necessary in the case.

§ 11-60.315 Dismissal for lack of jurisdiction.

(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.

(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