§ 954.10 Intervention or other participation.

To intervene or otherwise participate in a proceeding, any person may file a timely application in accordance with § 954.8(a). A timely application is one which will not unduly delay the proceeding. The application shall state whom the potential intervenor represents, his interest, the extent to which he desires to participate, and the evidence he seeks to introduce. The presiding officer shall fix the time within which the parties shall answer the application. The presiding officer shall grant or deny the application on such terms and conditions as he deems appropriate. In so doing the presiding officer will consider, among other things, whether intervention or other participation is consistent with the timely and proper adjudication of the rights of the original parties.

[31 F.R. 5198, Mar. 31, 1966. Redesignated at 31 F.R. 16270, Dec. 20, 1966]

§ 954.11 Hearings.

Hearings are held in Room 5241, Post Office Department, Washington, D.C. 20260, or other locations designated by the presiding officer.

§ 954.12 Change of place of hearing.

Not later than the date fixed for the filing of the answer, a party may file a request that a hearing be held to receive evidence in his behalf at a place other than that designated for hearing in the notice. He shall support his request with a statement setting forth:

(a) The evidence to be offered in such place;

(b) The names and addresses of the witnesses who will testify;

(c) The reasons why such evidence cannot be produced at Washington, D.C. The presiding officer shall give consideration to the convenience and necessity of the parties and the relevancy of the evidence to be offered.

(c) An attorney representing a publisher or intervenor shall file a written authorization from the publisher or intervenor before he may participate in the proceeding. The publisher or intervenor must promptly file a notice of change of attorneys.

(d) When a publisher or intervenor is represented by an authorized attorney all subsequent pleadings shall be served upon the attorney.

§ 954.14 Presiding officers.

(a) The Chief Hearing Examiner shall assign a case to a Hearing Examiner, so far as practical in rotation, to preside over the hearing. The Hearing Examiner shall be qualified pursuant to the Administrative Procedure Act (5 U.S.C.

1010).

(b) The presiding officer shall have authority to:

(1) Administer oaths and affirmations;

(2) Examine witnesses;

(3) Rule upon matters of evidence and procedure;

(4) Order any pleading amended upon motion of a party at any time prior to the close of the hearing;

(5) Maintain discipline and decorum and exclude from the hearing any person acting in an indecorous manner;

(6) Require the filing of briefs on any matter upon which he is required to rule;

(7) Order prehearing conferences for the settlement or simplification of issues by consent of the parties;

(8) Order the proceeding reopened at any time prior to his decision for the receipt of additional evidence;

(9) Render an initial decision.

§ 954.15 Judicial Officer.

The Judicial Officer is authorized (a) to act as presiding officer at hearings and (b) to render a final Departmental Decision for the Postmaster General. On appeal from an Initial Decision of a Hearing Examiner, the Judicial Officer will consider the entire record including the initial decision and the exceptions to that decision. Before any final agency decision has been rendered, the Judicial Officer may order the hearing reopened for the presiding officer to take additional evidence.

the courts of the United States apply. The rules may be relaxed to the extent that the presiding officer may deem proper to insure an adequate and fair hearing. The presiding officer may exclude irrelevant or repetitious evidence.

(b) Subpoenas. The Post Office Department is not authorized to issue subpoenas.

(c) Fees. The Post Office Department does not pay fees and expenses for witnesses of, or depositions requested by, the publisher or intervenor.

(d) Depositions. Depositions may be taken as follows:

(1) Not later than five days after the filing of Director's answer, any party may file application with the presiding officer for the taking of testimony by deposition. In support of such application the applicant shall submit under oath or affirmation a statement setting out the reasons why such testimony should be taken by deposition, the time and the place, and the name and address of the witness whose deposition is desired, the subject matter of the testimony of each witness, its relevancy, and the name and address of the person before whom the deposition is to be taken.

(2) If the application is granted, the order for the taking of the deposition will specify the time and place thereof, the name of the witness, the person before whom the deposition is to be taken and any other necessary information.

(3) Each witness testifying upon deposition shall be duly sworn by the deposition officer and the adverse party shall have the right to cross-examine. The questions and answers together with all objections, shall be reduced to writing and, unless waived by stipulation of the parties, shall be read to and subscribed by the witness in the presence of the deposition officer who shall certify it in the usual form. The deposition officer shall file the testimony taken by deposition as directed in the order. All objections made at the time of examination shall be noted by the deposition officer and the evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, a party may transmit written interrogatories to the deposition officer, who shall propound them to the witness and record the answers verbatim. jections to relevancy or materiality of testimony, or to errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the

Ob

form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, cured or removed if promptly presented, are waived unless timely objection is made at the taking of the deposition.

(4) At the hearing any part or all of the deposition may be offered in evidence by any party who was present or represented at the taking of the deposition or who had notice thereof. If the deposition is not offered and received in evidence, it shall not be considered as a part of the record in the proceeding. The admissibility of depositions or parts thereof shall be governed by the rules of evidence.

(5) The party requesting the deposition shall pay all fees required to be paid to witnesses and the deposition officer, and shall provide an original and one copy of the deposition for the official record, and shall serve one copy upon the opposing party.

(6) Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions may be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held; within a foreign country, depositions may be taken before a secretary of an embassy or legation, consul general, vice consul or consular agent of the United States, or any other person designated in the order for the taking of a deposition.

(7) Depositions may also be taken and submitted on written interrogatories in substantially the same manner as depositions taken by oral examination. When a deposition is taken upon written interrogatories and cross-interrogatories, none of the parties shall be present or represented, and no person, other than the witness, a stenographic reporter, and the deposition officer shall be present at the examination of the witness, which fact shall be certified by the officer, who shall propound the interrogatories and cross-interrogatories to the witness in their order and reduce the testimony to writing in the witness' own words. § 954.17

Transcript.

(a) A contract reporter of the Post Office Department under the supervision of the presiding officer shall report hearings. The reporter shall supply the parties with copies of the tran

script at rates not to exceed those fixed by contract between the Department and the reporter.

(b) Changes in the official transcript may be made only when they involve substantial errors. A party may file a motion for correction of the official transcript within 10 days after his receipt of the transcript or any part thereof. Other parties shall, within such time as may be specified by the presiding officer, notify the presiding officer in writing if they object to the requested corrections. Failure of a party to interpose timely objection to a proposed correction may be considered by the presiding officer to be concurrence. The presiding officer shall then specify the corrections to be made in the transcript. He may on his own initiative order corrections in the transcript after notice to the parties subject to their objection.

§ 954.18 Proposed findings and conclusions.

(a) A party to a proceeding may submit proposed findings of fact and conclusions of law to the presiding officer. The presiding officer shall determine whether they shall be oral or written. The presiding officer may require parties to a proceeding to submit proposed findings of fact and conclusions of law with supporting reasons. When the proposed findings and conclusions are not submitted orally they shall be filed within 15 days after delivery of the official transcript to the Docket Clerk. The Docket Clerk shall notify the parties of the filing date which shall be the same for both parties. If not submitted by that date, the findings and conclusions will not be considered or included in the record.

(b) Except when presented orally, proposed findings of fact and conclusions of law shall be set forth in numbered paragraphs and shall state with particularity all evidentiary facts in the record with appropriate citations to the transcript or exhibits relied upon to support the conclusions proposed. Each proposed conclusion shall be separately stated.

sires an oral initial decision he shall notify the presiding officer and the opposing party at least 5 days prior to the date set for hearing. Parties may then submit proposed findings and conclusions orally or in writing at the conclusion of the hearing.

(b) If an oral initial decision is not rendered, the presiding officer shall render a written initial decision with all due speed after the parties have submitted all post-hearing material. The initial decision shall become the final Departmental Decision unless it is appealed.

(c) The initial decision shall include findings upon all material issues of fact and law presented on the record and the reasons for those findings.

§ 954.20

Appeal and final decision.

(a) A party may appeal to the Judicial Officer from an initial decision by filing exceptions in a brief on appeal within 15 days from the receipt of a written or oral initial decision.

(b) Upon receipt of the appeal brief the Judicial Officer shall set the date for the filing of the reply brief. No additional briefs shall be received unless requested by the Judicial Officer.

(c) Appeal briefs shall contain the following matter in the order indicated: (1) A subject index of the matters presented with page references;

(2) A table of cases alphabetically arranged;

(3) A list of statutes and texts cited with page references;

(4) A concise abstract or statement of the case;

(5) Numbered exceptions to the findings and conclusions of the presiding officer and the reasons for the exceptions. § 954.21 Motion for reconsideration.

Within 10 days from the date thereof, or such longer period as may be fixed by the Judicial Officer, either party may file a motion for reconsideration of a final Departmental decision.

§ 954.22 Continuances.

For good cause shown, continuances or extensions may be granted by the presiding officer. Similar action may be taken by the Judicial Officer when the proceeding is on appeal.

§ 954.23 Computation of time.

A designated period of time under these rules excludes the day the period begins, and includes the last day of the

§ 955.3 Membership.

The Board of Contract Appeals consists of three members: (a) The Judicial Officer of the Post Office Department who is the Chairman; (b) the Chief Hearing Examiner; and (c) one of the hearing examiners assigned to the Department to be designated by the Judicial Officer. An alternate may be appointed by the Deputy Postmaster General for any absent or disqualified member. No member of the Board may consider an appeal if he has participated in the formulation or administration of, or has any interest, directly or indirectly, in the contract in dispute.

The Office of the Board of Contract Appeals shall be in the Office of the Judicial Officer in the Post Office Department Building, Washington 25, D.C. A suitable docket of contract appeals cases shall be maintained for public inspection at that office.

§ 955.5 Jurisdiction of the Board.

As the duly authorized representative of the Postmaster General, the Board is authorized to exercise the full authority of the Postmaster General in all cases in which, by the terms of a contract, the contractor may appeal from findings of fact or decisions of a Contracting Officer to the Postmaster General or his representative. The Board has the authority to conduct hearings, dismiss proceedings, and take official notice of facts within general knowledge and decide all questions of fact and law raised by the appeal. There is no further administrative appeal from the decision of the Board. The Chairman of the Board may assign or reassign an appeal to one or more members for all purposes, except that any final decision must be by a majority of the Board. (§ 955.19)

§ 955.6 Appealable decisions.

Questions of the appealability of decisions of Contracting Officers are for determination by the Board. The Board, generally, considers appeals from written decisions of Contracting Officers. The Board may dismiss an appeal or remand an appeal to the Contracting Officer in any appropriate case including those in which (a) the Contracting Officer's decision has not been served upon the contractor; (b) the Contracting Officer's decision does not state that it

is final; (c) the contractor is not advised that he has 30 days from the date of the receipt of the Contracting Officer's decision in which to file his notice of appeal; and (d) the Contracting Officer does not decide every material fact in dispute or matter deemed necessary by the Board for a proper disposition of the appeal.

§ 955.7 Appeal.

(a) Notice. An appeal from a finding of fact or decision of the Contracting Officer must be made by notice of appeal in writing, addressed to the Postmaster General within 30 days from the date of receipt of the written decision of the Contracting Officer unless otherwise provided in the contract. The notice shall be mailed or otherwise furnished to the Contracting Officer and shall identify the contract and the Contracting Officer and specify the portion of the findings of fact or decision from which the appeal is taken. The notice shall be signed by the contractor or his attorney.

(b) Petition. A petition in support of the appeal shall be filed by the Appellant with the Board within 30 days after the filing with the Board of the notice of appeal or within such longer period as the Board may allow. The petition shall have numbered paragraphs and should set forth:

(1) A copy of the decision of the Contracting Officer from which the appeal is taken.

(2) A simple, concise and direct statement of each claim upon which the contractor relies and the reasons why the findings or decision are deemed errone

ous.

(3) Documentary evidence when applicable in support of claims as exhibits to the petition.

(c) Reply. The contractor may file a reply within 15 days after receipt of the answer of Department Counsel provided in § 955.9 (b).

(d) Motions to dismiss. Defenses which go to the jurisdiction of the Board may be raised by motion. Filing of motions to dismiss for lack of jurisdiction shall not be unreasonably delayed. The Board, however, has the right at any time to recognize its lack of authority to proceed in a particular case. Motions to dismiss for lack of jurisdiction shall, on application of either party, be heard and determined before oral hearing on the merits unless the Board orders that determination of the motion be deferred

pending oral hearing on both the merits and the motion.

(e) Failure to state a case. In the event, after filing of the petition and answer, the Board finds that Appellant has failed to state a case on which any relief could be granted by the Board, the Board may give notice to Appellant to show cause why the appeal should not be dismissed on the ground that no useful purpose would be served by considering the case on the merits. Appellant, in such event, will be afforded the opportunity to be heard orally for the purpose of showing cause why the appeal should not be dismissed on that ground, and if Appellant so desires to move to amend the complaint, within the proper scope of the appeal. If the Board thereafter finds Appellant has failed to show cause, and finds that the complaint, with such amendments as may be offered by Appellant, fails to state a case on which the Board could grant relief, the appeal shall be dismissed.

§ 955.8 Contracting Officer.

(a) Duties. The Contracting Officer shall forward any notice of appeal received by him immediately to the Chairman of the Board. In any case in which the original notice of appeal is filed directly with the Board, the Chairman shall immediately forward two copies to the Contracting Officer. Within 15 days from the date of receipt of the notice of appeal or copies thereof, the Contracting Officer shall furnish one copy of the notice of appeal to the General Counsel for use of the Department Counsel together with an appeal file consisting of: (1) The decision from which the appeal is taken; (2) any and all findings of fact that may have been made in connection with the dispute; (3) all documents relied upon in making findings or decision; (4) the contractor's claim in connection with the dispute; (5) a copy of the contract and pertinent plans, specifications, amendments and change orders; (6) all correspondence between the parties relating to the dispute; (7) transcripts of any testimony taken in connection with the dispute in addition to any affidavits or statements of any witnesses that were made prior to the notice of appeal; and (8) any other information which the Contracting Officer may consider material. True copies may be substituted for originals in this file.

(b) Reconsideration by the Contracting Officer. The Contracting Officer