96-27683. Board of Contract Appeals; Contract Appeals  

  • [Federal Register Volume 61, Number 211 (Wednesday, October 30, 1996)]
    [Proposed Rules]
    [Pages 55932-55937]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-27683]
    
    
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    DEPARTMENT OF ENERGY
    
    10 CFR Parts 703 and 1023
    
    RIN 1901-AA30
    
    
    Board of Contract Appeals; Contract Appeals
    
    AGENCY: Board of Contract Appeals, Department of Energy.
    
    ACTION: Notice of proposed rulemaking.
    
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    SUMMARY: The Department of Energy is proposing to amend its regulations 
    concerning proceedings and functions of the Board of Contract Appeals. 
    This action is necessary to update the rules and to reorganize and 
    supplement the existing rules to provide the public with a better 
    understanding of the Board and its functions. The proposed rules would 
    add an overview of the Board's organization, authorities, and various 
    functions, enunciate longstanding policies favoring the use of 
    Alternative Dispute Resolution (ADR) and confirm the Board's authority 
    to engage in ADR and to provide an array of ADR neutral services, 
    modify the Rules of Practice for Contract Disputes Act (CDA) appeals to 
    implement changes made to the CDA by the Federal Acquisition 
    Streamlining Act (FASA), and remove unnecessary and obsolete rules 
    related to the Board's non-CDA appeals and Contract Adjustment Board 
    functions.
    
    DATES: Comments must be received by December 30, 1996.
    
    ADDRESSES: Interested persons may submit written comments to: E. 
    Barclay Van Doren, Chair, Department of Energy, Board of Contract 
    Appeals, Room 1006, Webb Building, 4040 N. Fairfax Drive, Arlington, VA 
    22203.
    
    FOR FURTHER INFORMATION CONTACT: E. Barclay Van Doren, Chair, 
    Department of Energy, Board of Contract Appeals, (703) 235-2700.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
        A. Discussion
        B. Section-by-Section Analysis
    II. Procedural Requirements
        A. Review under Executive Order 12866
        B. Review under Executive Order 12778
        C. Review under the Regulatory Flexibility Act
        D. Review under the Paperwork Reduction Act
        E. Review under the National Environmental Policy Act
        F. Review under Executive Order 12612
    III. Public Comments
    
    I. Background
    
    A. Discussion
    
        This Rulemaking has several purposes. First, it would set out a 
    statement of the organization, functions, and authorities of the Board 
    of Contract Appeals (Board or EBCA) of the Department of Energy (DOE). 
    The Board has functions other than the resolution of disputes brought 
    under the Contract Disputes Act (CDA), yet the current rules do not 
    list and describe these functions and their associated authorities in 
    any single place. This has proven confusing to some who were unfamiliar 
    with the Board. The proposed rules, in one place, describe and cross-
    reference all of the standing functions and rules of the Board. This 
    proposed change should help those unfamiliar with the Board to 
    understand its several functions and the limits of its authority, and 
    to assist potential appellants to determine whether the Board is the 
    proper forum for the resolution of a dispute. Moreover, the rule will 
    provide, for informational purposes, the Board's delegated general 
    authorities, which are set forth in a delegation order from the 
    Secretary of Energy.
        Second, this Rulemaking would enunciate the Board's and DOE's 
    policy favoring the use of ADR. The current rules are outdated and 
    neither recognize ADR nor summarize the Board and its members' 
    authority to employ and participate in ADR procedures. The Board has a 
    longstanding policy to encourage the consensual resolution of disputes 
    and, thus, decrease the instances where parties must resort to 
    litigation. The proposed rules contain an explicit statement of the 
    Board's and DOE's policy regarding ADR.
        Third, the Federal Acquisition Streamlining Act (FASA) modified the 
    CDA with respect to matters involving claim certification and 
    availability of certain appeal procedures. This Rulemaking would update 
    the Board's rules of procedure to implement these changes. The 
    Streamlining Act increased the threshold for CDA claim certification to 
    $100,000, from $50,000. The Act also increased the amounts under which 
    a claim is eligible for either accelerated procedures or small claims 
    procedures. Claims under $100,000 (previously $50,000) will be eligible 
    for accelerated procedures and claims under $50,000 (previously 
    $10,000) will be, at the contractor's election, resolved under the 
    small claims procedures.
        Fourth, this Rulemaking proposes to remove the rules of practice 
    for contract and subcontract appeals which are not governed by the CDA 
    (10 CFR Part 703) (non-CDA appeals) and the rules of the Contract 
    Adjustment Board (10 CFR Part 1023, subpart B). No pre-CDA appeals have 
    been filed with the Board for more than eight years and separate rules 
    no longer appear to be necessary. The Board proposes that the existing 
    rules of practice for CDA appeals, with modifications (such as 
    disregarding inapplicable rules related solely to CDA claim 
    certification) determined by the Board to be appropriate, be made 
    applicable to both CDA appeals and non-CDA appeals from contracting 
    officer decisions and to any subcontractor disputes over which the 
    Board has jurisdiction. Regulatory authority for appeals to the 
    Contract Adjustment Board no longer exists and the rules of the 
    Contract Adjustment Board would be removed.
        Finally, the proposed Rulemaking would renumber the rules of 
    practice for contract appeals to the Board to allow for the inclusion 
    of the Statement of Organization, Functions, and Authorities and minor 
    conforming changes would be made to the Rules of Practice.
    
    B. Section-By-Section Analysis
    
        The following analysis provides additional explanatory information 
    regarding the intended effect of these rules if adopted as proposed. 
    The proposed rules add an Overview which consists of sections 1023.1-
    1023.9. This Overview would reorganize and supplement the information 
    contained in the current sections 1023.2-1023.6.
    
    [[Page 55933]]
    
    Overview: Organization, Functions and Authorities
    
    Section 1023.1  Introductory Material on the Board and Its Functions
    
        This section is self-explanatory. It describes the various standing 
    functions performed by the Board and cross-references authorities and 
    rules codified in other parts of Title 10, Code of Federal Regulations.
    
    Section 1023.2  Organization and Location of the Board
    
        This section is self-explanatory. It states the current location of 
    the Board. It also outlines the basic makeup of Board personnel.
    
    Section 1023.3  Principles of General Applicability
    
        Paragraph (a) emphasizes that the Board is a neutral adjudicatory 
    body which is to hear and decide all cases independently, fairly, and 
    impartially. It further states that decisions shall be based 
    exclusively upon the record, and would expressly proscribe 
    consideration of any matter which might come to the attention of the 
    Board by any means other than those provided by the various rules of 
    practice. Paragraph (a) also reiterates a longstanding position of the 
    Department that Board decisions, pursuant to the Contract Disputes Act 
    or pursuant to a delegation of authority (provided the delegation does 
    not provide otherwise), constitute final agency decisions and are not 
    subject to administrative review.
        Paragraph (b) would confirm the authority of the Board and its 
    members and personnel to perform ADR related functions. It would also 
    require adherence to a standard of procedural fairness, integrity, and 
    diligence in activities related to ADR. The paragraph would permit 
    limited ex parte communications related to ADR procedures until the 
    parties enter into an approved ADR agreement, at which point, all 
    communications would be controlled by that agreement. The paragraph 
    would emphasize the obligation of Board personnel to maintain the 
    confidentiality of ADR matters.
    
    Section 1023.4  Authorities
    
        This section would set forth duties and authorities provided by the 
    CDA or delegated to the Board by the Secretary of Energy.
        Paragraph (a) is self-explanatory. However, it recognizes that 
    parties may agree to employ alternative procedures for dispute 
    resolution under the CDA.
        Paragraph (b) sets forth the Board's general powers.
        Paragraph (c) sets forth delegated authorities which are set forth 
    in a delegation order. Among these duties is the duty to hear and 
    decide non-CDA appeals as provided by the provisions of acquisition and 
    other contracts of the Department or by the authorized provisions of 
    subcontracts under DOE contracts. Authorized activities include the 
    adjudication of facts related to proposed debarments when referred to 
    the Board by the Deputy Assistant Secretary for Procurement and 
    Assistance Management.
    
    Section 1023.5  Duties and Responsibilities of the Chair
    
        The position title ``Chairman'' would be changed to the gender-
    neutral ``Chair.'' The duties and responsibilities of the Chair would 
    be strengthened and expanded to enable the Chair to improve the 
    efficiency and timeliness of Board proceedings. Additionally, the Chair 
    would be granted new express authorities with respect to ADR, such as 
    arranging third party neutral participation. To the extent the 
    described authorities are authorities granted by statute to the Board, 
    all members of the Board concur in their exercise by the Chair and have 
    delegated their authority to the Chair.
    
    Section 1023.6  Duties and Responsibilities of Board Members and Staff
    
        Paragraph (a) would establish the supplemental conduct guidelines 
    for Board judges and staff which are in addition to existing laws and 
    rules of general and specific applicability.
        Paragraph (b) would authorize any administrative judge or Board 
    employee to perform any authorized ADR responsibility or function.
        Paragraph (c) would make explicit existing policies regarding ex 
    parte communications in all Board judicial functions. It would also 
    establish a permanent bar against disclosing Board deliberations.
    
    Section 1023.7  Board Decisions; Assignment of Judges
    
        This section would retain the existing general rule that cases are 
    decided by a majority vote of a panel of not less than three 
    Administrative Judges (or Hearing Officers) and would provide Presiding 
    Judges and Officers with broad authority to act for the Board on all 
    but dispositive matters. However, in a change from the existing rule, 
    it would no longer be necessary for all members of a panel to 
    participate in a decision if a concurring majority exists. This 
    paragraph contains additional provisions which would allow the Board to 
    respond to variable circumstances and requirements of the parties. It 
    also would establish the Chair's authority to assign an additional 
    judge to a panel in case of a tie vote.
    
    Section 1023.8  Alternative Dispute Resolution (ADR)
    
        This section would state that it is the policy of the DOE and the 
    Board to encourage voluntary ADR proceedings, where appropriate, in an 
    effort to resolve disputes in the most expeditious and inexpensive 
    manner. Settlement discussions and mediation efforts have long been 
    aspects of judicial decision- making. It is the Department's intention 
    that alternative dispute resolution before the Board be recognized as a 
    core judicial function of the Board. As such, Board personnel are 
    involved in a judicial function and are entitled to judicial immunity 
    as accorded by law.
    
    Section 1023.9  General Guidelines
    
        Paragraph (a) would carry forward the current Board authority to 
    provide for circumstances not contemplated by the rules. It would also 
    recognize that the Federal Rules of Civil Procedure may be looked to as 
    a source of guidance, but that Board proceedings are required to be as 
    informal, efficient and inexpensive as practicable, and thus the Board 
    is not bound by them.
        Paragraph (b) would provide explicit authority to a Presiding Judge 
    or Hearing Officer to issue prehearing orders varying the procedures 
    and limitations set forth in the various Rules of Practice and Rules of 
    Procedure. This authority would explicitly authorize judges to tailor 
    procedural schedules to the circumstances and requirements of 
    individual cases.
    
    Section 1023.20  Rules of Practice
    
        This section would be redesignated as Sec. 1023.120.
    Subpart A--Rules of the Board of Contract Appeals
    
    Section 1023.101  Scope and Purpose
    
        This section would state the scope of the rules contained in 
    Subpart A. It should be noted that this Rulemaking would rescind 10 CFR 
    Part 703, which currently contains the rules of practice for pre-CDA 
    contract appeals and certain subcontract appeals to the Board. This 
    section would provide that the rules contained in this subpart would 
    not only be applicable to CDA proceedings, but also to pre-CDA and 
    other non-CDA contract appeals, as well as subcontractor appeals, with 
    such modifications determined by the Board
    
    [[Page 55934]]
    
    to be appropriate to the nature of the dispute.
    
    Section 1023.102  Effective Date
    
        This section details the effective date of the rules and also the 
    effective date of the modifications to the rules made in compliance 
    with the Federal Acquisition Streamlining Act (FASA), Pub. L. 103-355 
    (1994).
    
    Section 1023.120  Rules of Practice
    
        This section is the existing section 1023.20. Modifications would 
    be made to this section to reflect changes to the CDA made by FASA.
        Rule 1 would be modified by substituting ``$100,000'' wherever 
    ``$50,000'' is found. Rule 6 would be modified by substituting 
    ``$100,000'' for ``$50,000'' and substituting ``$50,000'' where 
    ``$10,000'' appears. Rule 13 would substitute ``$50,000'' for 
    ``$10,000'' and Rule 14 would substitute ``$100,000'' for ``$50,000.''
    Subpart B
        All sections under this subpart would be removed and the subpart 
    reserved for future use.
    
    II. Procedural Requirements
    
    A. Review under Executive Order 12866
    
        This regulatory action has been determined not to be a 
    ``significant regulatory action'' under Executive Order 12866, 
    ``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
    Accordingly, this action was not subject to review under the Executive 
    Order by the Office of Information and Regulatory Affairs.
    
    B. Review Under Executive Order 12988
    
        With respect to the review of existing regulations and the 
    promulgation of new regulations, section 3(a) of Executive Order 12988, 
    ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
    Executive agencies the general duty to adhere to the following 
    requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
    regulations to minimize litigation; and (3) provide a clear legal 
    standard for affected conduct rather than a general standard and 
    promote simplification and burden reduction. With regard to the review 
    required by section 3(a), section 3(b) of Executive Order 12988 
    specifically requires that Executive agencies make every reasonable 
    effort to ensure that the regulation: (1) Clearly specifies the 
    preemptive effect, if any; (2) clearly specifies any effect on existing 
    Federal law or regulation; (3) provides a clear legal standard for 
    affected conduct while promoting simplification and burden reduction; 
    (4) specifies the retroactive effect, if any; (5) adequately defines 
    key terms; and (6) addresses other important issues affecting clarity 
    and general draftsmanship under any guidelines issued by the Attorney 
    General. Section 3(c) of Executive Order 12988 requires Executive 
    agencies to review regulation in light of applicable standards in 
    sections 3(a) and 3(b) to determine whether they are met or it is 
    unreasonable to meet one or more of them. DOE has completed the 
    required review and determined that, to the extent permitted by law, 
    the proposed regulations meet the relevant standards of Executive Order 
    12988.
    
    C. Review under the Regulatory Flexibility Act
    
        The proposed rules were reviewed under the Regulatory Flexibility 
    Act of 1980, 5 U.S.C. 601, et seq., which requires preparation of an 
    initial regulatory flexibility analysis for any proposed rule which is 
    likely to have a significant economic impact on a substantial number of 
    small entities. The DOE certifies that the proposed rules will not have 
    a significant economic impact on a substantial number of small 
    entities; therefore, no regulatory flexibility analysis has been 
    prepared.
    
    D. Review under the Paperwork Reduction Act
    
        The DOE has determined that the proposed rules are exempt from the 
    requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et 
    seq.) by virtue of 44 U.S.C. 3518(c)(1)(B), which provides that the 
    Paperwork Reduction Act does not apply to the collection of information 
    during the conduct of an administrative action involving an agency 
    against specific individuals or entities.
    
    E. Review under the National Environmental Policy Act
    
        The DOE has concluded that promulgation of these rules would not 
    represent a major Federal action having significant impact on the human 
    environment under the National Environmental Policy Act (NEPA) of 1969 
    (42 U.S.C. 4321, et seq.), or the Council on Environmental Quality 
    Regulations (40 CFR parts 1500-08), and the DOE guidelines (10 CFR part 
    1021), and, therefore, does not require an environmental impact 
    statement or an environment assessment pursuant to NEPA.
    
    F. Review under Executive Order 12612
    
        Executive Order 12612, 52 FR 41685 (October 30, 1987), requires 
    that regulations, rules, legislation, and any other policy actions be 
    reviewed for any substantial direct effects on States, on the 
    relationship between the national government and the States, and in the 
    distribution of power and responsibilities among various levels of 
    government. If there are sufficient substantial direct effects, then 
    the Executive Order requires preparation of a federalism assessment to 
    be used in all decisions involved in promulgating and implementing a 
    policy action.
        These proposed rules, when finalized, will revise certain policy 
    and procedural requirements. However, the DOE has determined that none 
    of the revisions will have a substantial direct effect on the 
    institutional interests or traditional functions of States.
    
    III. Public Comments
    
        Interested persons are invited to participate in this Rulemaking by 
    submitting data, views, or arguments with respect to the proposed rules 
    set forth in this notice. Comments should be submitted to the address 
    for the DOE Board of Contract Appeals given at the beginning of this 
    notice. All comments received on or before the date specified in the 
    beginning of this notice, and all other relevant information, will be 
    considered by the Board before taking final action on the proposed 
    rules.
        This notice of proposed Rulemaking does not involve any substantial 
    issues of law or fact and the proposed rules should not have 
    substantial impact on the nation's economy or large numbers of 
    individuals or businesses. Accordingly, pursuant to Pub. L. 95-91, the 
    DOE Organization Act, and the Administrative Procedure Act (5 U.S.C. 
    553), the DOE does not plan to hold a public hearing on these proposed 
    rules.
    
    List of Subjects in 10 CFR Parts 1023 and 703
    
        Administrative practice and procedure, Government contracts, 
    Government procurement.
    
        Issued in Washington, D. C. on October 23, 1996.
    E. Barclay Van Doren,
    Chair, Department of Energy, Board of Contract Appeals.
    
        For the reasons set forth in the Preamble, Parts 703 and 1023 of 
    Title 10 of the Code of Federal Regulations are proposed to be amended 
    as set forth below:
    
    PART 703--CONTRACT APPEALS
    
        1. Part 703 is removed.
    
    [[Page 55935]]
    
    PART 1023--CONTRACT APPEALS
    
        2. The authority citation is revised to read as follows:
    
        Authority: 42 U.S.C. Secs. 2201, 5814, 7151, 7251; 5 U.S.C. 
    Sec. 301; 41 U.S.C. Secs. 321, 322, 601-613; 5 U.S.C. Secs. 571-583; 
    9 U.S.C. Secs. 1-16.
    
        3. Part 1023 is proposed to be amended by adding an Overview before 
    subpart A consisting of sections 1023.1 through 1023.9:
    
    PART 1023--CONTRACT APPEALS
    
    Overview: Organization, Functions and Authorities
    
    Sec.
    Sec. 1023.1  Introductory Material on the Board and Its Functions.
    Sec. 1023.2  Organization and Location of the Board.
    Sec. 1023.3  Principles of General Applicability.
    Sec. 1023.4  Authorities.
    Sec. 1023.5  Duties and Responsibilities of the Chair.
    Sec. 1023.6  Duties and Responsibilities of Board Members and Staff.
    Sec. 1023.7  Board Decisions; Assignment of Judges.
    Sec. 1023.8  Alternative Dispute Resolution (ADR).
    Sec. 1023.9  General Guidelines.
    
    
    Sec. 1023.1  Introductory material on the Board and its functions.
    
        (a) The Energy Board of Contract Appeals (``EBCA'' or ``Board'') 
    functions as a separate quasi-judicial entity within the Department of 
    Energy (DOE). The Secretary has delegated to the Board's Chair the 
    appropriate authorities necessary for the Board to maintain its 
    separate operations and decisional independence.
        (b) The Board's primary function is to hear and decide appeals from 
    final decisions of DOE contracting officers on claims pursuant to the 
    Contract Disputes Act of 1978 (CDA), 41 U.S.C. 601 et seq. The Board's 
    Rules of Practice for these appeals are set forth in subpart A of this 
    part. Rules relating to recovery of attorney fees and other expenses 
    under the Equal Access to Justice Act are set forth in subpart C of 
    this part.
        (c) In addition to its functions under the CDA, the Secretary in 
    Delegation Order 0204-162 has authorized the Board to:
        (1) Adjudicate appeals from agency contracting officers' decisions 
    not taken pursuant to the CDA (non-CDA disputes) under the Rules of 
    Practice set forth in subpart A of this part;
        (2) Perform other quasi-judicial functions that are consistent with 
    the Board members' duties under the CDA as directed by the Secretary.
        (3) Serve as the Energy Financial Assistance Appeals Board to hear 
    and decide certain appeals by the Department's financial assistance 
    recipients as provided in 10 CFR 600.22, under Rules of Procedure set 
    forth in 10 CFR part 1024;
        (4) Serve as the Energy Invention Licensing Appeals Board to hear 
    and decide appeals from license terminations, denials of license 
    applications and petitions by third-parties for license terminations, 
    as provided in 10 CFR part 781, under Rules of Practice set forth in 
    subpart A of this part, modified by the Board as determined to be 
    necessary and appropriate with advance notice to the parties; and
        (5) Serve as the Energy Patent Compensation Board to hear and 
    decide, as provided in 10 CFR part 780, certain applications and 
    petitions filed under authority provided by the Atomic Energy Act of 
    1954, ch. 1073, 68 Stat. 919 (1954), and the Invention Secrecy Act, 35 
    U.S.C. 181-188, including:
        (i) Whether a patent is affected with the public interest;
        (ii) Whether a license to a patent affected by the public interest 
    should be granted and equitable terms therefor; and
        (iii) Whether there should be allotment of royalties, award, or 
    compensation to a party contributing to the making of certain 
    categories of inventions or discoveries, or an owner of a patent within 
    certain categories, under Rules of Practice set forth in subpart A of 
    this part, modified by the Board as determined to be necessary and 
    appropriate, with advance notice to the parties.
        (d) The Board provides alternative disputes resolution neutral 
    services and facilities, as agreed between the parties and the Board, 
    for:
        (1) Disputes related to the Department's prime contracts and to 
    financial assistance awards made by the Department.
        (2) Disputes related to contracts between the Department's cost-
    reimbursement contractors, including Management and Operating 
    Contractors (M&Os) and Environmental Remediation Contractors (ERMCs), 
    and their subcontractors. Additionally, with the consent of both the 
    responsible prime DOE cost-reimbursement contractor and the cognizant 
    DOE contracting officer, the Board may provide neutral services and 
    facilities for disputes under second tier subcontracts where the costs 
    of litigating the dispute might be ultimately charged to the DOE as 
    allowable costs through the prime contract.
        (3) Other matters involving DOE procurement and financial 
    assistance, as appropriate.
    
    
    Sec. 1023.2  Organization and location of the Board.
    
        (a) The Board is located in the Washington, D.C. metropolitan area 
    and its address is Energy Board of Contract Appeals, Room 1006, 4040 
    North Fairfax Drive, Arlington, Virginia, 22203. The Board's telephone 
    numbers are (703) 235-2700 (voice) and (703) 235-3566 (facsimile).
        (b) As required by the CDA, the Board consists of a Chair, a Vice 
    Chair, and at least one other member. Members are designated 
    Administrative Judges. The Chair is designated Chief Administrative 
    Judge and the Vice Chair, Deputy Chief Administrative Judge.
    
    
    Sec. 1023.3  Principles of general applicability.
    
        (a) Adjudicatory functions. The following principles shall apply to 
    all adjudicatory activities whether pursuant to the authority of the 
    CDA, authority delegated under this part, or authority of other laws, 
    rules, or directives.
        (1) The Board shall hear and decide each case independently, 
    fairly, and impartially.
        (2) Decisions shall be based exclusively upon the record 
    established in each case. Written or oral communication with the Board 
    by or for one party is not permitted without participation or notice to 
    other parties. Except as provided by law, no person or agency, directly 
    or indirectly involved in a matter before the Board, may submit off the 
    record to the Board or the Board's staff any evidence, explanation, 
    analysis, or advice (whether written or oral) regarding any matter at 
    issue in an appeal, nor shall any member of the Board or of the Board's 
    staff accept or consider ex parte communications from any person. This 
    provision does not apply to consultation among Board members or staff 
    or to other persons acting under authority expressly granted by the 
    Board with notice to parties. Nor does it apply to communications 
    concerning the Board's administrative functions or procedures, 
    including ADR.
        (3) Decisions of the Board shall be final agency decisions and 
    shall not be subject to administrative appeal or administrative review.
        (b) Alternative Dispute Resolution (ADR) functions. (1) Board 
    judges and personnel shall perform ADR related functions impartially, 
    with procedural fairness, and with integrity and diligence.
    
    [[Page 55936]]
    
        (2) Ex parte communications with Board staff and judges limited to 
    the nature, procedures, and availability of ADR through the Board are 
    permitted and encouraged. Once parties have agreed to engage in ADR and 
    have entered into an ADR agreement accepted by the Board, ex parte 
    communications by Board neutrals, support staff and parties shall be as 
    specified by any applicable agreements or protocols and as is 
    consistent with law, integrity, and fairness.
        (3) Board-supplied neutrals and support personnel shall keep ADR 
    matters confidential and comply with any confidentiality requirements 
    of ADR agreements accepted by the Board. Board personnel may not 
    disclose any confidential information unless permitted by the parties 
    or required to do so by law.
    
    
    Sec. 1023.4  Authorities.
    
        (a) Contract Disputes Act authorities. The CDA imposes upon the 
    Board the duty, and grants it the powers necessary, to hear and decide, 
    or to otherwise resolve through agreed procedures, appeals from 
    decisions made by agency contracting officers on contractor claims 
    relating to contracts entered into by the DOE or relating to contracts 
    of another agency, as provided in Section 8(d) of the CDA, 41 U.S.C. 
    607(d). The Board may issue rules of practice or procedure for 
    proceedings pursuant to the CDA. The CDA also imposes upon the Board 
    the duty, and grants it powers necessary, to act upon petitions for 
    orders directing contracting officers to issue decisions on claims 
    relating to such contracts. 41 U.S.C. 605(c)(4). The Board may apply 
    through the Attorney General to an appropriate United States District 
    Court for an order requiring a person, who has failed to obey a 
    subpoena issued by the Board, to produce evidence or to give testimony, 
    or both. 41 U.S.C. 610.
        (b) General powers and authorities. The Board's general powers 
    include, but are not limited to, the powers to:
        (1) Manage its cases and docket; issue procedural orders; conduct 
    conferences and hearings; administer oaths; authorize and manage 
    discovery, including depositions and the production of documents or 
    other evidence; take official notice of facts within general knowledge; 
    call witnesses on its own motion; engage experts; dismiss actions with 
    or without prejudice; decide all questions of fact or law raised in an 
    action; and make and publish rules of practice and procedure;
        (2) Exercise, in proceedings to which it applies, all powers 
    granted to arbitrators by the Federal Arbitration Act, 9 U.S.C. 1-14, 
    including the power to issue summonses.
        (c) In addition to its authorities under the CDA, the Board has 
    been delegated by Delegation Order 0204-162 issued by the Secretary of 
    Energy, the following authorities:
        (1) Issue rules, including rules of procedure, not inconsistent 
    with this section and departmental regulations;
        (2) Issue subpoenas under the authority of section 161(c) of the 
    Atomic Energy Act of 1954, 42 U.S.C. 2201(c), as applicable;
        (3) Such other authorities as the Secretary may delegate.
    
    
    1023.5   Duties and responsibilities of the Chair.
    
        The Chair shall be responsible for the following:
        (a) The proper administration of the Board;
        (b) Assignment and reassignment of cases, including alternative 
    dispute resolution (ADR) proceedings, to administrative judges, hearing 
    officers, and decision panels;
        (c) Monitoring the progress of individual cases to promote their 
    timely resolution;
        (d) Appointment and supervision of a Recorder;
        (e) Arranging for the services of masters, mediators, and other 
    neutrals;
        (f) Issuing delegations of Board authority to individual 
    administrative judges, panels of judges, commissioners, masters, and 
    hearing officers within such limits, if any, which a majority of the 
    members of the Board shall establish;
        (g) Designating an acting chair during the absence of both the 
    Chair and the Vice Chair;
        (h) Designating a member of another Federal board of contract 
    appeals to serve as the third member of a decision panel if the Board 
    is reduced to less than three members because of vacant positions, 
    protracted absences, disabilities or disqualifications;
        (i) Authorizing and approving ADR arrangements for Board cases; 
    obtaining non-Board personnel to serve as settlement judges, third-
    party neutrals, masters and similar capacities; authorizing the use of 
    Board-provided personnel and facilities in ADR capacities, for matters 
    before the Board, and for other matters when requested by officials of 
    the DOE; and entering into arrangements with other Federal 
    administrative forums for the provision of personnel to serve in ADR 
    capacities on a reciprocal basis;
        (j) Recommending to the Secretary the selection of qualified and 
    eligible members. New members shall, upon selection, be appointed to 
    serve as provided in the CDA;
        (k) Determining whether member duties are consistent with the CDA; 
    and
        (l) Reporting Board activities to the Secretary not less often than 
    biennially.
    
    
    Sec. 1023.6   Duties and responsibilities of Board members and staff.
    
        (a) As is consistent with the Board's functions, Board members and 
    staff shall perform their duties with the highest integrity and 
    consistent with the principles set forth in Sec. 1023.3.
        (b) Members of the Board and Board attorneys may serve as 
    commissioners, magistrates, masters, hearing officers, arbitrators, 
    mediators, and neutrals and in other similar capacities.
        (c) Except as may be ordered by a court of competent jurisdiction, 
    members of the Board and its staff are permanently barred from ex parte 
    disclosure of information concerning any Board deliberations.
    
    
    Sec. 1023.7   Board decisions; Assignment of judges.
    
        (a) In each case, the Chair shall assign an administrative judge as 
    the Presiding Administrative Judge to hear a case and develop the 
    record upon which the decision will be made. A Presiding Judge has 
    authority to act for the Board in all non-dispositive matters, except 
    as otherwise provided in this part. This paragraph shall not preclude 
    the Presiding Administrative Judge from taking dispositive actions as 
    provided in this part or by agreement of the parties. Other persons 
    acting as commissioners, magistrates, masters, or hearing officers 
    shall have such powers as the Board shall delegate.
        (b) Except as provided by law, rule, or agreement of the parties, 
    contract appeals and other cases are assigned to a deciding panel 
    established by the Board Chair consisting of two or more administrative 
    judges.
        (c) The concurring votes of a majority of a deciding panel shall be 
    sufficient to decide an appeal. All members assigned to a panel shall 
    vote unless unavailable. The Chair will assign an additional member if 
    necessary to resolve tie votes.
    
    
    Sec. 1023.8   Alternative Dispute Resolution (ADR).
    
        (a) Statement of policy. It is the policy of the DOE and of the 
    Board to facilitate consensual resolution of disputes and to employ ADR 
    in all of the Board's functions when agreed to by the parties. ADR is a 
    core judicial function performed by the Board and its judges.
        (b) ADR for docketed cases. Pursuant to the agreement of the 
    parties, the Board, in an exercise of discretion, may approve either 
    the use of Board-annexed
    
    [[Page 55937]]
    
    ADR (ADR which is conducted under Board auspices and pursuant to Board 
    order) or the suspension of the Board's procedural schedule to permit 
    the parties to engage in ADR outside of the Board's purview. While any 
    form of ADR may be employed, the forms of ADR commonly employed using 
    Board judges as neutrals are: case evaluation by a settlement judge 
    (with or without mediation by the judge); arbitration; mini-trial; 
    summary (time and procedurally limited) trial with one-judge, summary 
    binding (non-appealable) bench decision; and fact- finding.
        (c) ADR for non-docketed disputes. As a general matter the earlier 
    a dispute is identified and resolved, the less the financial and other 
    costs incurred by the parties. When a contract is not yet complete 
    there may be opportunities to eliminate tensions through ADR and to 
    confine and resolve problems in a way that the remaining performance is 
    eased and improved. For these reasons, the Board is available to 
    provide a full range of ADR services and facilities before, as well as 
    after, a case is filed with the Board. A contracting officer's decision 
    is not a prerequisite for the Board to provide ADR services and such 
    services may be furnished whenever they are warranted by the overall 
    best interests of the parties. The forms of ADR most suitable for mid-
    performance disputes are often the non-dispositive forms such as 
    mediation, facilitation and fact-finding, mini-trials, or non-binding 
    arbitration, although binding arbitration is also available.
        (d) Availability of information on ADR. Parties are encouraged to 
    consult with the Board regarding the Board's ADR services at the 
    earliest possible time. A handbook describing Board ADR is available 
    from the Board upon request.
    
    
    Sec. 1023.9   General guidelines.
    
        (a) The principles of this Overview shall apply to all Board 
    functions unless a specific provision of the relevant rules of practice 
    applies. It is, however, impractical to articulate a rule to fit every 
    circumstance. Accordingly, this part, and the other Board Rules 
    referenced in it, will be interpreted and applied consistent with the 
    Board's responsibility to provide just, expeditious, and inexpensive 
    resolution of cases before it. When Board rules of procedure do not 
    cover a specific situation, a party may contend that the Board should 
    apply pertinent provisions from the Federal Rules of Civil Procedure. 
    However, while the Board may refer to the Federal Rules of Civil 
    Procedure for guidance, such Rules are not binding on the Board absent 
    a ruling or order to the contrary.
        (b) The Board is responsible to the parties, the public, and the 
    Secretary for the expeditious resolution of cases before it. 
    Accordingly, subject to the objection of a party, the procedures and 
    time limitations set forth in rules of procedure may be modified, 
    consistent with law and fairness. Presiding judges and hearing officers 
    may issue prehearing orders varying procedures and time limitations if 
    they determine that purposes of the CDA or the interests of justice 
    would be advanced thereby and provided both parties consent. Parties 
    should not consume an entire period authorized for an action if the 
    action can be sooner completed. Informal communication between parties 
    is encouraged to reduce time periods whenever possible.
        (c) The Board shall conduct proceedings in compliance with the 
    security regulations and requirements of the Department or other agency 
    involved.
        3a. Subpart A is amended by removing Secs. 1023.1 through 1023.6, 
    redesignating Sec. 1023.20 as 1023.120 and adding Secs. 1023.101 and 
    1023.102, reading as follows:
    
    
    Sec. 1023.101  Scope and purpose.
    
        The rules of the Board of Contract Appeals are intended to govern 
    all appeal procedures before the Department of Energy Board of Contract 
    Appeals (Board) which are within the scope of the Contract Disputes Act 
    of 1978 (41 U.S.C. 601 et seq.). Those rules, with modifications 
    determined by the Board to be appropriate to the nature of the dispute, 
    also apply to all other contract and subcontract related appeals which 
    are properly before the Board.
    
    
    Sec. 1023.102  Effective date.
    
        The rules of the Board of Contract Appeals shall apply to all 
    proceedings filed on or after [30 days after publication of the final 
    rule], except that Rule 1(a) and (b) of Sec. 1023.120 shall apply only 
    to appeals filed on or after [the effective date of 48 CFR 33.211].
    
    
    Sec. 1023.120  [Amended]
    
        4. Newly designated section 1023.120 is amended by revising 
    ``$50,000'' to read ``$100,000'' in the following paragraphs:
        Rule 1, paragraph (b)
        Rule 1, paragraph (c)
        Rule 6, paragraph (b)
        Rule 14, paragraph (a)
        5. Newly designated section 1023.120 is amended by revising 
    ``$10,000'' to read ``$50,000'' in the following paragraphs:
        Rule 6, paragraph (b)
        Rule 13, paragraph (a)
    
    Subpart B--[Removed and Reserved]
    
        6. Subpart B is removed and reserved.
    
    
    Sec. 1023.327  [Amended]
    
        7. Section 1023.327 of Subpart C is amended by revising ``10 CFR 
    1023.20'' to read ``10 CFR 1023.120.''
    
    [FR Doc. 96-27683 Filed 10-29-96; 8:45 am]
    BILLING CODE 6450-01-P
    
    
    

Document Information

Published:
10/30/1996
Department:
Energy Department
Entry Type:
Proposed Rule
Action:
Notice of proposed rulemaking.
Document Number:
96-27683
Dates:
Comments must be received by December 30, 1996.
Pages:
55932-55937 (6 pages)
RINs:
1901-AA30: Energy Board of Contract Appeals; Organization, Functions, and Authorities; Rules of Practice
RIN Links:
https://www.federalregister.gov/regulations/1901-AA30/energy-board-of-contract-appeals-organization-functions-and-authorities-rules-of-practice
PDF File:
96-27683.pdf
CFR: (15)
10 CFR 1023.20''
10 CFR 301
10 CFR 1023.1
10 CFR 1023.2
10 CFR 1023.3
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