§ 703.1 - Scope and purpose.

(a) The establishment of the Department of Energy (DOE) and the transfer to it of functions previously assigned to other agencies, including those discharged by the Board of Contract Appeals of the Atomic Energy Commission, led to a newly reorganized Board of Contract Appeals in DOE. All decisions rendered by this Board become the final decisions of the Agency.

(b) The reorganization of the Board, its scope of functions and authorities, including the authority to establish and issue rules of procedure not inconsistent with its charter and the change in organization from one composed of two full-time, permanent members augmented by a panel of part-time “consultant” members, to its present composition of three full-time, permanent, lawyer members, is more fully set forth in DOE Manual Chapter 0114; published for convenience as appendix A to this part.

(c) Several factors were taken into consideration in reorganizing the Board, primary of which was the desire to establish an organization more like that of other agency boards, and to establish procedures that would conform to a more common practice before boards of contract appeals. This was in keeping with the recommendation of the Commission on Government Procurement and the Office of Federal Procurement Policy, and with the need of DOE for prompt, fair, and inexpensive resolution of contract disputes as part of an effective agency-contractor relationship.

(d) Consistent with this policy, the Uniform Rules of Practice of Boards of Contract Appeals, as proposed by the National Conference of Boards of Contract Appeals Members, have been adopted herein in major part. However, some provisions differ from the uniform rules, particularly in those areas in which earlier Agency practice had proven successful in expediting the appeal process. For example, the new rules call for the filing of a notice of appeal directly with the contracting officer, and that officer is then required toascertain identification shown by experience to be effective in expediting the appeal process. Another rule with a similar purpose permits direct appeal by a subcontractor in disputes arising under a subcontract entered into by a cost-type prime contractor in which a dispute provision has been included. The earlier practice of providing for direct service of pleadings and papers between parties, simultaneously with their filing before the Board, similarly expedites the appeal and is adopted.

(e) The new rules also require that items in the appeal file be offered into evidence rather than the entire appeal file automatically becoming part of the evidence, subject to objection, at the time the appeal file is transmitted. This practice encourages the submission of relevant documentation only. The provisions in the uniform rules relating to depositions and discovery are consolidated and amended to clarify the use of depositions as one form of discovery, and to provide for apportionment of expenses within the discretion of the Board in cases of hardship associated with discovery.

(f) The use of the optional accelerated procedure is expanded beyond that contemplated in the uniform rules to recognize equitable considerations as well as a monetary ceiling for purposes of greater flexibility as reflected in earlier Agency practice. Thus, accelerated procedure is made available, in the sound discretion of the Board, in certain cases additional to those meeting a monetary limitation. The provision for final decision to be rendered by the entire Board in every case, including those processed under accelerated procedure, complements this practice.

(g) Some provisions have no corresponding basis in the uniform rules. For example, the revised rules include provisions for the use of subpoenas, and for security requirements, as provided by the enabling authorization; the Board is authorized to decide applications for extraordinary relief involving contractual fairness sitting as the Contract Adjustment Board. However, as to the later provisions, it should be noted that each case brought before the Contract Adjustment Board is judged solely on its merits under the criteria of Public Law 85-804 and Executive Order 10789, as amended, and decisions made pursuant thereto may not be cited as precedent in other matters brought before the Board.

(h) Throughout the revised rules emphasis is placed on flexibility and the exercise of broad discretion as primary means of effecting the resolution of appeals in an orderly, impartial and expeditious manner. Emphasis is likewise placed upon the sound administration of these rules in as informal a manner as possible, consistent with the need to provide due process and to develop an adequate record for Board action and judicial review.