     Use of Technical Advisers by Board of Contract Appeals

A governm ental decisionm aking body, including an agency board o f co n tra ct appeals,
 m ay em ploy technical advisers to analyze and make recom m endations on the technical
 aspects o f evidence. W here a decisionm aker properly uses technical advisers, their
  reports and recom m endations need not be disclosed to the parties to the proceedings;
 how ever, w here the advice o f technical advisers adds new facts to th e record o r
 constitutes evidence in itself, a co u rt m ay require that it be disclosed.

                                                                            February 27, 1981
        M EM ORANDUM OPIN IO N FOR T H E CHAIRM AN,
      G E N E R A L SERVICES A D M IN ISTR A TIO N BOARD OF
                       CO N TRA CT A PPEA LS

  This responds to your inquiry concerning the proposal of the General
Services Administration Board of Contract Appeals (Board) to hire
technical staff members with engineering and technical experience who
would be full-time employees of the Board. Their function would be to
respond to technical inquiries of the Board members in connection with
cases pending before the Board and to explain to them technical aspects
of the evidence where needed. We understand that it is intended to
model the relationship between the technical advisers and the Board
members after the one prevailing between the Court o f Claims and its
auditors and that it is not intended to make the reports of the technical
advisers available to the parties.1
  The functions and powers of your Board may be briefly described as
follows: According to Section 6(a) of the Contract Disputes Act of
1978 (Act), 41 U.S.C. § 605(a), all disputes arising from government
procurement contracts are to be submitted to a contracting officer. The
agency boards o f contract appeals, established pursuant to § 8(a) of the
Act, 41 U.S.C. § 607(a), have jurisdiction to hear and determine appeals
from the decisions of the contracting officers. The boards may grant
the same relief that is available to a litigant asserting a contract claim in
the Court of Claims. Section 8(d) of the Act, 41 U.S.C. § 607(d). The
ruling of the boards may be appealed to the Court of Claims. Section
10(a)(1) of the Act, 41 U.S.C. § 609(a)(1). In that court the decisions of
the boards on any question of law are not final or conclusive, “but the

    1   In this context we recommend that you examine the pertinent rules and internal regulations of the
Court of Claims and of the Court of Customs and Patent Appeals and adapt them to the requirements
o f your Board.

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decision on any question o f fact shall be final and conclusive and shall
not be set aside unless the decision is fraudulent, or arbitrary, or
capricious, or so grossly erroneous as to necessarily imply bad faith, or
if such decision is not supported by substantial evidence.” Section 10(b)
of the A ct, 41 U.S.C. § 609(b). Section 10(a)(1) of the Act, 41 U.S.C.
§ 609(a)(1), permits a contractor dissatisfied with the decision of a
contracting officer to bypass the board and to bring an action directly
in the Court of Claims.
   Your inquiry raises two questions. First, whether a decisionmaking
body may use assistants w ho will explain to it technical aspects of the
evidence, and, second, w hether those explanations may be withheld
from the parties to the proceedings. The first question can be confi­
dently answered in the affirmative. As to the second one, it is our
conclusion that basically the technical explanations of the type outlined
in your letters need not be disclosed to the parties. As a practical
matter, how ever, the line o f demarcation between technical advice and
the introduction o f new facts or o f opinion evidence may be very
narrow and may depend on the form in which the explanation or
advice has been given and the perspective in which the court chooses
to evaluate it. Consequently, there may be situations in which a party
to the proceedings will be able to obtain disclosure of the technical
explanation.

                                                    I.

  It has been established, at least since Morgan v. United States, 298
U.S. 468, 481 (1936) (Morgan I), that a decisionmaker may utilize
assistants to sift and analyze the evidence and to prepare summaries and
to make recommendations.2 In Richardson v. Perales, 402 U.S. 389
(1971) the Court saw nothing “reprehensible” in the employment by the
Social Security Administration of medical advisers who were to explain
medical problems and evidence to the lay administrative law judges in a
manner very similar to that envisaged by your Board. 402 U.S., at 408.
In Perales, however, the medical adviser was called as a witness and
was cross-examined. Id. at 396. The case therefore does not resolve the
second issue raised by your inquiry.3
  Hence, if the Board has the necessary budgetary authority to employ
technical advisers and in th e absence of any other statutory prohibition,
there appears to be no objection to their employment. This initial

   2 See also, e.g., B raniff Airways, Inc. v. CAB, 379; F 2d 453, 461 (D.C. Cir., 1967), Montrose Chemical
Corp. o f California v. Train, 491 F.2d 63, 68 (D.C. Cir., 1974); K F C National Management Corp. v.
N L R B . 497 F.2d 298, 304-5 (2d Cir., 1974), cert, denied, 423 U.S. 1087 (1976).
   3 A n analogous situation arose in McDaniel v. Celebrezze, 331 F.2d 426 (4th Cir., 1964). There the
administrative agency did not use a technical adviser for the explanation o f technical terms, but
utilized medical texts to “expand and explain" medical reports and opinions. Id. at 427-28 The court
upheld the practice because claimant was given an opportunity to challenge and contradict the
publications used by the agency Id. at 428-29.

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conclusion, however, does not mean in itself that the advice given, or
explanations made, by the technical advisers may be withheld from the
participants to the proceedings.
                                                   II.
   According to Morgan v. United States, 304 U.S. 1, 18 (1938) (Morgan
II) and United States v. Morgan, 313 U.S. 409, 422 (1941) (Morgan IV),
it is not the function of the courts to probe the mental processes by
which a decisionmaker reached his conclusion. From this the courts
have deduced that where a decisionmaker properly uses assistants as
authorized by Morgan I, supra, and in the absence of a prima facie
showing of misconduct,4 the summaries, reports, or recommendations of
the assistant based on the evidence and utilized by the decisionmaker
need not be disclosed to the parties to the proceedings, for to do so
would impermissibly probe the mental processes leading to the decision.
See, e.g., Montrose, supra, 491 F.2d at 69-70; South Terminal Corp. v.
EPA, 504 F.2d 646, 675 (1st Cir., 1974); Kent Corp. v. NLRB, 530 F.2d
612, 620-21 (5th Cir., 1976), cert, denied 429 U.S. 920 (1976). This
immunity from disclosure, however, presupposes, as is sometimes im­
plied and occasionally spelled out in these court decisions, that the
advice or explanation is based exclusively on the record, and does not
add any new facts or constitute evidence in itself. Thus, in tw o cases
the denial o f access to advice received by a decisionmaker was specifi­
cally predicated on the circumstance that the advice was based exclu­
sively on the evidence in the record and did not constitute evidence.
Montrose, supra, 491 F.2d at 65, 70; Coppenbarger v. Federal Aviation
Administration, 558 F.2d 836, 840 (7th Cir., 1977).
   The crux in this area is that it is frequently difficult to determine
whether the advice or explanation given by a technical adviser is
indeed based exclusively on the facts contained in the record; whether
it utilizes extraneous facts, or otherwise constitutes opinion evidence or
the taking of official notice, which generally must be made available to
the participants. The ultimate decision therefore frequently depends on
the evaluation o f the advice by the courts and on the form in which it
was given.
   In Doe v. Hampton, 566 F.2d 265 (D.C. Cir., 1977), an employee had
appealed her dismissal to the Civil Service Commission. The record
before the Commission indicated that the employee was schizophrenic.
Id., at 268. During the review of the record, the Civil Service Commis­
sion Appeal Examining Office asked a doctor employed by the Com­
mission whether the diagnosis contained in the record would make the
employee a hazard to herself or others. The doctor replied that “suicide

   4See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U S. 402, 420 (1971); Singer Sewing Machine’
Co. v. N LR B , 329 F.2d 200, 208 (4th C ir., 1964); KFC National Management Corp. v. N LR B, supra,
497 F.2d at 305; Abbott Laboratories v. Harris. 481 F Supp. 74, 78 (N .D . 111., 1979).


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and homicide are of danger in schizophrenia, and it is a most difficult
assessment to make as to the possibility or probability of their being a
hazard to themselves or others.” Id. at 270. The court described the
Office’s inquiry and the doctor’s advice to the effect that the Office
sought and received a doctor’s “additional medical opinion.” Id. The
court concluded that the Appeal Examining Office had introduced
further medical opinion evidence in the record, and rejected the argu­
m ent that the Office had merely obtained assistance in evaluating exist­
ing record evidence. Id. at 276. Consequently, it held that the dis­
charged employee had the right to see and comment on the doctor’s
“opinion.” Id. at 277. It may be suggested that the doctor’s response
properly could have been characterized as an explanation to the lay
officials in the Appeal Examining Office of the existing record evi­
dence, in particular, of the technical term “schizophrenia” and of its
normal implications to doctors.5
   Ralpho v. Bell, 569 F.2d 607 (D.C. Cir., 1977), rehearing denied, 569
F.2d 636 (1977), indicates the importance o f the form in which the
advice is given. That case sought the review of a damage award by the
M icronesian Claims Commission. It involved, like many other proceed­
ings pending before the Commission, the valuation of property de­
stroyed in Micronesia during the hostilities of W orld W ar II. Since the
proceedings before the Commission took place about 30 years after the
damages had been suffered, that valuation was complicated by the
passage of time. Additional problems were presented by the primitive,
non-monetary economy prevailing in Micronesia while it was under
Japanese domination between the tw o W orld Wars. The court de­
scribed the Commission’s method of dealing with those difficulties as
follows:
          T o facilitate disposition of claims, then, the Commission
          conducted interviews and examined records of various
          sorts in order to get a composite picture of the average
          wartim e values of goods and services in Micronesia. The
          results of this survey were assembled in a guide about 40
          pages in length, resembling a price list, which was fre­
          quently updated and expanded as the need arose. In its
          1973 annual report, the Commission explained that the
          study was consulted “in the absence of better evidence”
          on the issue of value and that sparse presentations by
          claimants often made such consultation necessary.


   0 Significantly* the court held that th e failure to make the doctor's advice available to the claimant
was not prejudicial error, because the evidence generated by that advice was “merely cumulative.” Id.
at 277-78.' This ultimate disposition o f the case suggests strongly that the doctor’s advice was
essentially an explanation of existing technical evidence, rather than additional opinion evidence.

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Id. at 614 (footnote omitted). The court concluded that the value study
constituted evidence; hence, that the claimant should have been af­
forded the opportunity to inspect and comment on it. Id. at 628.
   It is suggested that a procedure could have been developed under
which the Commission would have received from technical advisers
explanations of the evidence on the record regarding the value of the
claimant’s property and that a court could have considered those expla­
nations to be the Commission’s internal work product to which the
parties to the proceeding are not entitled under the Morgan cases, supra,
and their progeny.

                                                III.
   We finally reach the question whether, if your proposal were
adopted, there would be a serious risk of a judicial ruling to the effect
 that the litigants have the right to inspect and to rebut or comment on
 the technical staff members’ advice. To begin with, the decisions o f
 your Board are reviewable in the Court of Claims,6 and we believe it is
unlikely that that court will disapprove a procedure patterned after the
one prevailing in it, provided, o f course, that the Board will indeed
follow that procedure.
   There is, of course, the possibility that a litigant will seek the infor­
mation through discovery or a request filed under the Freedom o f
 Information Act. Still, in view of the presumption of administrative
 regularity, Singer Sewing Machine Co., supra, 329 F.2d at 208, a litigant
is not generally entitled to the disclosure of the information absent a
prima facie showing of irregularity or misconduct. Singer Sewing M a­
chine Co., ibid; K F C National Management Corp., supra, 497 F.2d at 305;
South Terminal Corp. v. EPA, supra, 504 F.2d at 675.7 Hence, the
litigant, being unable to get access to, or being unaware of, the staff
member’s advice,8 will not normally be able to make the required prima
facie showing that the advice was irregular or tainted with misconduct.
 Nevertheless, we believe that we have to advise you that the employ­
 ment of the technical staff members in the manner envisaged by your
 Board involves a limited, but still not inconsequential, litigation risk.
                                                             L   arry   L . S im m s
                                                   Acting Assistant Attorney General
                                                        Office o f Legal Counsel


   ®Contract Disputes A ct of 1978, § 8(g), 41 U.S.C. § 607(g).
   ’ Exemption 5 to the Freedom of Information Act, 5 U.S.C. § 552(b)(5) (internal memoranda), does
not state in express terms that it is inapplicable where the internal communication is tainted with
irregularity or misconduct Montrose, supra, however, suggests strongly that the court would not have
applied the exemption in that case if the advice given to the agency had included facts that were not
on the record. See also Kent Corp. v. NLR B, supra, 530 F.2d at 621, n.2I.
   8 In some cases the parties were alerted to the existence of the advice by a reference to it in the
agency’s decision or elsewhere See, e.g., Hampton, supra. 566 F.2d at 270; Ralpho, supra, 569 F.2d at
614.
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