AUTHORITY: (5 U.S.C. 301); (40 U.S.C. 486(c)); sec. 4, 62 Stat. 1070, as amended (15 U.S.C. 714b); 30 Stat. 35, as amended (16 U.S.C. 551); 50 Stat. 525, as amended (7 U.S.C. 1011(f)); secs. 9, 10, 62 Stat. 1072, 1073 (15 U.S.C. 714g, 714h).

SOURCE: 39 FR 30912, Aug. 26, 1974, unless otherwise noted.

Subpart A-Organization and Functions

§ 24.1 General.

This subpart prescribes the organization and functions of the Board of Contract Appeals, United States Department of Agriculture (referred to as the "Board"). The provisions of 5 U.S.C. 551-559 (Administrative Procedure Act, 80 Stat. 378, as amended) are not applicable to proceedings before the Board except for the requirements under 5 U.S.C. 552 (81 Stat. 54) respecting public information, agency rules, opinions, orders and records.

§ 24.2 Composition of Board.

The Board shall be composed of not less than four nor more than seven members appointed by the Secretary of Agriculture, one of whom shall be designated Chairman and one of whom shall be designated Vice-Chairman. A majority of such members shall be qualified attorneys admitted to practice law in any State or the District of Columbia. A vacancy on the Board shall not impair the powers or affect the duties of the Board. The Vice-Chairman shall act for the Chairman upon request or when the Chairman is absent or unable to act. In any case where a panel of three members is required to decide such case, and one or more of such panel members initially designated is absent or unable to act, the Chairman may designate another member or members to serve on the panel to decide such case. In any case where a single member is required to decide a case under accelerated procedures and such member is absent or unable to act, the Chairman may designate another member to decide such case.

[39 FR 30912, Aug. 26, 1974, as amended at 40 FR 32109, July 31, 1975]

§ 24.3 Presiding Officer.

The Chairman shall act as Presiding Officer or designate a member of the Board to so act in each proceeding. The have Presiding Officer shall power to:

(a) Rule upon motions and requests; (b) Adjourn the hearing from time to time and change the time and place of hearing;

(c) Administer oaths and affirmations and take affidavits;

(d) Receive evidence;

(e) Order the taking of depositions; (f) Admit or exclude evidence;

(g) Hear oral argument on facts or law;

(h) Consolidate appeals filed by two or more appellants; and

(i) Do all acts and take all measures necessary for the maintenance of order at the hearing and the efficient conduct of the proceeding.

The Presiding Officer shall be the sole member in cases designated for accelerated procedure under the rules of procedure of the Board. In all other cases, three members shall be the panel and a decision of a majority of the panel shall constitute the decision of the Board. The Chairman is hereby delegated authority to request subpoenas pursuant to 5 U.S.C. 304.

§ 24.4 Jurisdiction.

(a) Decisions of contracting officers of the Department of Agriculture and Commodity Credit Corporation. The Board shall have jurisdiction of appeals taken from decisions of contracting officers of agencies of the Department of Agriculture and Commodity Credit Corporation within the scope of the Disputes Article of contracts.

(b) Claims by or against Commodity Credit Corporation. The Board shall have jurisdiction to consider and determine, upon specific referral by the President or a Vice-President of Commodity Credit Corporation, an appeal by any person on a contract claim by or against Commodity Credit Corporation not pending in the Department of Justice or in litigation and involving doubtful or disputed questions of fact or law where claimant has been unable to effect settlement or adjustment sat

isfactory to him under other established policies and procedures.

(c) Contract Work Hours Standards Act. The Board shall have jurisdiction of appeals taken from decisions of contracting officers of the Department of Agriculture under the Contract Work Hours Standards Act (Pub. L. 87-581, August 13, 1962, 76 Stat. 357; 40 USC 327-332).

(d) Debarment. The Board shall have jurisdiction to hear and determine the issue of debarment and the period thereof, if any, on an appeal by a person debarred (1) by an authorized official of the Commodity Credit Corporation under 7 CFR 1407.6(d), or (2) by an authorized official of the Department of Agriculture, under 41 CFR 4-1.604–1(b), or (3) by an authorized official of the Farmers Home Administration, under Subpart C of Part 1918, Chapter XVIII of this title.

(e) Appeals from decisions of contracting officers of the Forest Service. The Board shall have jurisdiction of appeals from decisions of "contracting officers of the Forest Service," (see definition in § 24.10(d)), Department of Agriculture, in which the issue under appeal relates to a breach of the terms or provisions of a contract except that:

(1) Appeals subject to Board jurisdiction involving Forest Service decisions under § 24.4 (a) or (d) shall be excluded from jurisdiction under this paragraph,

(2) Appeals subject to administrative review under 36 CFR 211.2 involving management and policy decisions and not involving breach of contract shall be excluded from jurisdiction under this paragraph, and

(3) No appeal under this paragraph shall lie where the relief sought is reformation of contract, monetary damages or amendment of contract at the discretion of the Forest Service to extend the term of the contract.

Either party may appeal to the Board for a ruling on the issue of jurisdiction or lack thereof under this paragraph. Such appeal shall be filed with the Board within 30 days from the date of a decision by a Forest officer as to jurisdiction under this paragraph or under 36 CFR 211.2. The ruling of the

Board on jurisdiction or lack thereof under this paragraph may be appealed to the Secretary by either party within 30 days from the date of receipt by the appealing party of the Board's ruling. Any such appeal to the Secretary shall be filed with the Board. The decision of the Secretary on appeal of the Board's ruling shall be final as to the issue of jurisdiction. [39 FR 30912, Aug. 26, 1974; 39 FR 32004, Sept. 4, 1974, as amended at 41 FR 8354, Feb. 26, 1976]

§ 24.5 Time for filing notice of appeal.

A notice of appeal shall be filed within 30 days from the date of receipt of the decision of the contracting officer or within such different time as may be prescribed in the contract or other applicable regulation of the Department, provided, that in case of appeal under § 24.4(e), the notice of appeal shall be filed within 30 days from the date of receipt of the decision of the contracting officer of the Forest Service. The time for filing a notice of appeal shall not be extended by the Board.

§ 24.6 Board location and address.

The Board of Contract Appeals is loIcated in Washington, D.C. All correspondence and all documents to be filed with the Board should be addressed to the Board of Contract Appeals, United States Department of Agriculture, Washington, D.C. 20250.

[40 FR 32109, July 31, 1975]

§ 24.7 Public information.

The records of the Board are open to the public for inspection and copying at the office of the Board. Decisions and rulings of the Board shall be published from time to time and copies made available to the public upon request at cost of duplication except that the Board shall, in its discretion, have authority to make copies of decisions and rulings available at no charge in accordance with the Record Copying Policy and Procedures of the Department (39 FR 26050). Hearings before the Board shall be open to the public.

§ 24.8 Transfer of pending appeals under 7 CFR Part 2400 and 36 CFR Part 211. Appeals filed prior to the effective date of this Part 24 with the Board of Contract Appeals pursuant to 7 CFR 2400.1 to 2400.13 shall be carried to final disposition thereunder, and appeals filed prior to the effective date of this Part 24 pursuant to 36 CFR 211.20 to 211.37 shall be carried to final disposition thereunder, except that where the Board established under this Subpart A determines that a pending appeal is within its jurisdiction, the Board upon agreement of the parties may direct and order that further proceedings in such pending appeal shall be governed by this Part 24.

(a) "Board" means the Board of Contract Appeals established under this Subpart.

(b) "Chief" means the Chief, Forest Service, United States Department of Agriculture.

(c) "Contract" means any agreement entered into by the Department or its agencies or authorized officials with any person, including timber sale contracts, grazing permits, special use permits, cooperative agreements and other written instruments having the legal effect of contracts between the Department and a person.

(d) "Contracting officer" means any person who is designated as a contracting officer. For purposes of appeals under § 24.4(e), "contracting officer of the Forest Service" means a Forest Supervisor, Regional Forester, or the Chief, Forest Service, as the case may be, who is the person designated as the contracting officer under a contract.

(e) "Department" means the United States Department of Agriculture.

(f) "Forest Supervisor" means a Forest Supervisor having responsibility for a National Forest of the Forest Service and any officer or employee of the Forest Service to whom authority has heretofore or may hereafter be delegated to act in his stead.

(g) "Government attorney" means the attorney of the Department designated to handle a particular appeal on behalf of the contracting officer.

means

the

(h) "Hearing Clerk" Hearing Clerk, 14th & Independence, SW., United States Department of Agriculture, Washington, D.C. 20250.

(i) "Person" means any individual, partnership, public or private corporation, association, agency or other legal entity.

(j) "Presiding officer" means the member of the Board designated to preside at proceedings in a particular appeal.

(k) "Regional Forester” means a Regional Forester having responsibility for a Region of the Forest Service and where applicable a Forest and Range Experiment Station Director, Wood Products Laboratory Director, Director of the Institute of Tropical Forestry, Area Director, and any officer or employee of the Forest Service to whom authority has heretofore or may hereafter be delegated to act in their stead.

[39 FR 30912, Aug. 26, 1974, as amended at 40 FR 32109, July 31, 1975]

Subpart B-Rules of Procedure

§ 24.21 Rules of Procedure of Agriculture Board of Contract Appeals-AGBCA. (a) Preface to Rules-(1) Jurisdiction. The jurisdiction, organization and functions of the Agriculture Board of Contract Appeals-AGBCAare prescribed by the Secretary of Agriculture in Subpart A of this Part 24 (7 CFR 24.1 et seq.; 39 FR 30912, 32004, 40 FR 32109). The Board has authority to determine appeals falling within the scope of its jurisdiction as fully and finally as might the Secretary of Agriculture.

(2) Organization and location of the Board. The Board is located in Washington, D.C. and its mailing address is Board of Contract Appeals, Room 2912

South Building, United States Department of Agriculture, Washington, D.C. 20250. Its telephone number is AC 202 447-7023.

(i) The Board consists of a Chairman and three other full-time members who are qualified attorneys admitted to the practice of law together with as many as three part-time members who are employees of the Department.

(ii) The Chairman acts as the Presiding Officer or designates a Board Member as the Presiding Officer for each appeal. The Presiding Officer is primarily responsible for the handling of the case and presides at the hearing. Except in appeals handled under the accelerated procedures where the Presiding Officer is the sole deciding Member (7 CFR 24.3), decisions of the Board are rendered by a panel of three Members designated by the Chairman and the decision of the majority of the panel constitutes the decision of the Board.

(3) Decisions on questions of law. 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 issues. In the consideration of an appeal, if it appears that a claim is involved which is not cognizable under the terms of the contract, the Board may make Findings of Fact with respect to such a claim without expressing an opinion on the question of entitlement.

(4) Board of Contract Appeals procedure. Appeals referred to the Board are handled in accordance with these Rules of Procedure. 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 assure 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.

(5) Time, computation and extensions. All time limitations specified for various procedural actions are comput

ed as maximums and are not to be fully exhausted if the action described can be accomplished in a lesser period. Except as otherwise provided by law, in computing any period of time prescribed by these rules or 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. If mailing is required, the date of the postmark shall be treated as the date action was taken. Requests for extensions of time by either party shall be in writing and state good cause for the requested extension. The Board may grant such extensions on good cause shown except that the Board shall not extend the time prescribed under 7 CFR 24.5 for taking an appeal.

RULES OF PROCEDURE

DOCKETING, PLEADINGS, PRELIMINARY
PROCEDURES

Rule 1. Appeals, How taken. Notice of an appeal shall be in writing and the original, together with two copies, shall be mailed or otherwise furnished to the contracting officer from whose decision the appeal is taken, addressed to the Secretary of Agriculture, within the time specified in the contract or allowed by applicable provision of regulation or law. (See 7 CFR 24.5.)

Rule 2. Notice of Appeal, Contents of. A notice of appeal shall clearly identify the decision from which the appeal is taken, the date of the decision, the contract number, the agency or field office of the Department cognizant of the dispute and shall indicate that an appeal is thereby intended. The notice of appeal need not follow any prescribed form. It may be in the form of a letter. It should be signed personally by the appellant (the 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. The complaint referred to in Rule 4 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.

Rule 3. Forwarding of Appeals. When a notice of appeal in any form has been received by the contracting officer, the date of mailing (or date of receipt, if otherwise conveyed) shall be endorsed thereon by the contracting officer. The contracting officer

shall forward the original and one copy of the notice of appeal to the Board within 10 days through agency channels. The agency office receiving such notice of appeal shall forward the original and one copy to the Board of Contract Appeals, United States Department of Agriculture, Washington, D.C. 20250, not later than 15 days from the date of receipt from its contracting officer. Following receipt by the Board of such notice of appeal, the Board will notify the appellant (contractor) and the contracting officer of the docketing of the appeal and will furnish a copy of these rules to the appellant.

Rule 4. Complaint. A complaint shall be filed by appellant with the Board not later than the date prescribed by letter from the Board except where the Board treats the notice of appeal as the complaint. The complaint shall contain simple, concise and direct statements of each claim and the dollar amount claimed, alleging the basis for each claim with appropriate reference to contract provisions. This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form or formality is required. If a complaint is not timely filed, the Board may treat the notice of appeal as the complaint if it deems the issues to be sufficiently defined. The Board will notify the Government attorney of any such determination.

Rule 5. Appeal File-(a) Duties of contracting officer. The contracting officer shall assemble and file with the Board within the time prescribed by letter from the Board, three copies of all documents pertinent to the appeal as an appeal file including as applicable but not necessarily limited to:

(1) The decision and findings of fact from which appeal is taken;

(2) The contract including pertinent specifications, amendments, plans and drawings; (3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which decision was issued;

(4) 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 (5) Any additional information considered pertinent.

(b) Organization of appeal file. Documents in the appeal file may be originals or legible facsimile or authenticated copies thereof, and shall be arranged in chronological order, where practicable, numbered sequentially, tabed, and indexed to identify the contents of the file.

(c) Board action upon receipt of appeal file. The Board upon receipt of the appeal file from the contracting officer will send a copy thereof to appellant and to the Gov