In some instances, technical defects in the record require review by a Court Case Preparation and Review Branch (CCPRB) analyst. A case must be assigned to an analyst in the following situations:

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  Hearing recording(s) are missing, inaudible, or deficient (see Hearings, Appeals and Litigation Law (HALLEX) manual HA 01410.014 C 2);

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  File(s) or exhibit(s) are missing;

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  Additional evidence was submitted on or before the date of the Appeals Council's (AC) last action that was not part of the administrative record;

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  New correspondence was received on or before the date of the AC's last action;

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  Exhibit(s) or evidence that do not relate to the claimant is found in the file(s) (see HALLEX HA 01420.020 D); or

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  A declaration is required.

If a hearing recording is certified as missing (see HALLEX HA 01310.012 and HA 01310.026), an analyst will prepare a memorandum to the Office of the General Counsel (OGC) requesting remand for a de novo hearing.

Under HALLEX HA 01410.014 C 2, the contracting officer's representative may return a hearing recording that is inaudible or deficient for further action by an analyst.

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  When the hearing recording is alleged to be completely inaudible, the analyst will spot check the recording to verify the allegation. As appropriate, the branch chief or supervisory legal assistant (SLA) may contact the hearing office to obtain a new copy of the recording(s). If the hearing recording is confirmed to be completely inaudible, the analyst will prepare a memorandum to OGC requesting remand for a de novo hearing. The analyst will send the case to their branch chief to review and approve the recommendation.

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  If a portion of the hearing recording is inaudible, the analyst must determine whether the missing portion precludes defense of the case. If the inaudible portions do not preclude defense of the case, the analyst will add a remark in the Appeals Review Processing System (ARPS) noting that the analyst reviewed the inaudible portions and that those portions do not preclude defense of the case and instruct the court legal assistant to prepare a certified administrative record (CAR). If, however, the missing portion precludes defense of the case, the analyst will complete a memorandum to OGC requesting remand for a de novo hearing. The analyst will send the case to an administrative appeals judge (AAJ) to review and approve the recommendation. As warranted, the analyst will contact the branch chief or SLA to remove the transcript with the missing portion of the hearing recording from the claim(s) file.

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  If the hearing recording is deficient, the analyst will audit the hearing recording to determine whether the extraneous sounds are verbal (e.g., words unrelated to the proceedings and which might not have been audible to the hearing participants) or nonverbal (e.g., keystrokes, ringtones, static, etc.), and whether the non-transcribed sounds preclude defense of the case. Extraneous non-verbal sounds will generally not preclude defense of the case unless they interfere with the ability to transcribe the hearing.

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    If an audit of the hearing reveals that the deficiencies do not preclude defense of the case, the analyst will add a remark in ARPS noting as much and instruct the court legal assistant to prepare a CAR.

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    If audit of the hearing recording reveals that the deficiencies preclude defense of the case, the analyst will prepare a memorandum to OGC requesting remand under sentence six for a de novo hearing and send the case to an AAJ to review and approve the recommendation. The analyst will ensure the defective transcript is not made part of the claim(s) file. As warranted, the analyst will contact the branch chief or SLA to remove the transcript of the hearing recording containing deficiencies from the claim(s) file.

If the claim(s) file cannot be located and the claim(s) information is not otherwise available, an analyst must note in any prepared remand order that the case is remanded “to locate or re-construct the record.” The analyst will send the case to a branch chief to review and approve the remand recommendation.

When one or more exhibits are missing from the record, a branch chief or SLA will attempt to obtain the missing documents from the hearing office or, if applicable, the appointed representative at the administrative level. If the branch chief or SLA cannot locate the documents, CCPRB staff will assign the case to an analyst to determine whether the missing exhibits preclude defense of the case.

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  If the analyst determines the case is not defensible, the analyst will explain the reasons in the ARPS analysis and recommend remand. The analyst will send the case to an AAJ to review and approve the remand recommendation.

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  If the analyst concludes the missing exhibits do not preclude defense of the case, the analyst will note the reasons in the ARPS analysis and send the case to an AAJ to review and approve the recommendation to defend the case. Following the AAJ's approval, the analyst will contact CCPRB staff for preparation of the CAR.

While preparing a CAR, CCPRB staff may discover additional evidence either in the file or in newly associated correspondence that the AC has not yet considered. In such instances, CCPRB staff will assign the case to an analyst to review the additional evidence.

If the AC received the additional evidence or newly associated correspondence after the AC denied the request for review, dismissed the request for review, or issued a decision, the analyst should recommend that OGC defend the case. The analyst will prepare an analysis in ARPS and a memorandum to OGC fully addressing the evidence and explaining that because the AC received it after the AC's last action it will not be included in the CAR. The analyst should submit the recommendation for an AAJ's consideration. Following the AAJ's approval, the analyst will send OGC the memorandum with a copy of the additional evidence or newly associated correspondence as necessary. For electronic claim(s) files, the analyst will note in the memorandum that the additional evidence is available in eView.

If the additional evidence or material was submitted on or before the date of the AC's last action, the analyst will assess whether the additional evidence or other materials are duplicates of documents contained in the claim(s) file or CAR. If the additional evidence or other materials are determined to be duplicates, the analyst must annotate the duplicate evidence and return the claim(s) file or CAR to the CCPRB support staff. No further evaluation of the record is necessary, and the analyst should not prepare a memorandum to OGC. However, if the claimant or the claimant's counsel submitted duplicate evidence directly to the AC in connection with a request for further consideration of the record, the analyst must prepare a memorandum to OGC identifying the evidence and asking OGC to defend the case because the duplicate evidence was previously in the record and no change to the AC's last action is warranted.

If the additional evidence submitted on or before the date of the AC's last action is not a duplicate of materials already contained in the claim(s) file or CAR, the analyst will consider the additional evidence and follow the procedures set forth in HALLEX HA 01440.025.