[Federal Register Volume 61, Number 195 (Monday, October 7, 1996)]
[Rules and Regulations]
[Pages 52347-52370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25121]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 6101 and 6102
RIN Number 3090-AF99
Board of Contract Appeals; Rules of Procedure of the General
Services Administration Board of Contract Appeals: Standard Proceedings
and Expedited Proceedings
AGENCY: Board of Contract Appeals, General Services Administration.
ACTION: Final rule.
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SUMMARY: This document contains final revisions to the rules governing
proceedings before the General Services Administration Board of
Contract Appeals (Board). It supersedes the current rules of procedure
of the Board which are contained in 48 CFR part 6101, in their
entirety. The rules governing the standard proceedings of the Board are
now contained in part 6101, while rules governing expedited
proceedings--including alternative dispute resolution (ADR)--are
contained in part 6102. The Board, by majority vote, has adopted these
revised rules pursuant to its authority contained in the Contract
Disputes Act of 1978 (41 U.S.C. 601-613). The revised rules will govern
proceedings before the Board in contract appeals (41 U.S.C. 601-613),
as well as any ADR proceedings handled by the Board pursuant to
authority delegated by the Administrator of General Services.
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Margaret S. Pfunder, Deputy Chief
Counsel, GSA Board of Contract Appeals, telephone (202) 501-0272,
Internet address Margaret.Pfunder@gsa.gov..
SUPPLEMENTARY INFORMATION:
A. Regulatory Flexibility Act
The General Services Administration certifies that these revisions
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
[[Page 52348]]
B. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose recordkeeping or information collection requirements, or the
collection of information from offerors, contractors, or members of the
public which require the approval of OMB under 44 U.S.C. 3501 et seq.
C. Effective Dates
These rules are applicable to all proceedings filed on or after
October 7, 1996. Protests and related proceedings are governed by the
rules in effect at the time the underlying protests were filed.
D. Background
On June 24, 1996, the Board published in the Federal Register (61
FR 32410) a notice inviting written comments on proposed revisions to
its rules of procedure. This notice announced the Board's intention to
revise its existing rules of procedure, 48 CFR part 6101, and explained
the purpose of the proposed revisions was to implement section 5101 of
the Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106),
which eliminated the Board's jurisdiction to hear and decide bid
protests which were filed on or after August 8, 1996, regarding
procurements of automatic data processing (ADP) equipment and services.
This final rule implements section 5101 by eliminating all references
to bid protests in the Board's rules of procedure.
This rule (Part 6102) also describes the techniques intended to
shorten and simplify, when appropriate, the formal proceedings used by
the Board to resolve contract disputes. In particular, the rules
expressly permit the use of ADR. The Board will make its services
available for ADR proceedings involving any agency in contract and
procurement matters at any stage, even if no contracting officer
decision has been issued or is contemplated. For agencies other than
GSA, The Board will provide ADR services on a reimbursable basis.
E. Summary of Comments and Changes
The Board received written comments from six commentators.
Commentators included the offices of general counsel of three federal
agencies, the office of the chief trial attorney of a federal agency,
and one private legal practitioner. The Board carefully considered each
comment, and adopted many of the suggestions made by the commentators.
The more significant comments are discussed below in a section-by-
section format.
Part 6101
Section 6101.4 (Appeal File): One commentator suggested that
Section 6101.4(a)(6) be revised to eliminate the requirement that bid
abstracts be made part of the appeal file. Abstracts are often relevant
in cases alleging a mistake in bids and in vehicle auction cases in
which the Government seeks to recover actual damages. Accordingly, the
Board revised this provision to require that the appeal file contain
the abstract of bids only ``if relevant.''
Section 6101.5 (Filing Cases; Time Limits for Filing; Docketing):
One commentator suggested that since special or limited participation
in a case is discretionary with the Board, it should be granted only
after a motion is filed. Section 6101.5(a)(4) has been revised to make
this requirement explicit.
Section 6101.6 (Appearances; Notice of Appearance): One
commentator pointed out that not all agency regulations permit an
agency to be represented before the Board by a contracting officer or
contracting officer's authorized representative. Section 6101.6(a)(2)
has been revised to permit such representation if not prohibited by
``agency regulation or otherwise.''
In accordance with the suggestion of a commentator, Section
6101.6(b) has been revised to require that attorneys representing
parties before the Board list the state bars to which they are admitted
and their state bar numbers or other bar identifiers in the notice of
appearance.
One commentator suggested that a motion for withdrawal of
appearance is unnecessary if the new attorney enters an appearance at
the time of the requested withdrawal. Section 6101.6(c) has been
revised to require a person who has filed a notice of appearance and
who wishes to withdraw from a case to file a motion which provides the
name, address, telephone number, and facsimile machine number of the
person who will assume responsibility for representation of the party
in question. If the motion is accompanied by a statement from the
successor representative that the established case schedule will be
met, the motion need not state the grounds for withdrawal.
Section 6101.7 (Pleadings in Appeals): In response to the
suggestion of one commentator, Section 6101.7(b), governing the
complaint, now provides that the Board may designate a notice of
appeal, a claim submission, or any other document as the complaint ``if
the document sufficiently states the factual basis and amount of the
claim.''
Section 6101.8 (Motions): In Section 6101.8(c), the list of
dispositive motions that may be made before the Board has been modified
at the suggestion of one commentator to include motions to dismiss
without prejudice.
Section 6101.17 (Interrogatories to Parties; Requests for
Admission; Requests for Production of Documents): One commentator
suggested eliminating the requirement that parties obtain permission of
the Board before participating in discovery, citing an appellant's
ability to use the Freedom of Information Act to obtain information.
The Board determined to retain this provision, noting that early
discovery may be requested by either party whenever needed, and that
the provision is a useful means of monitoring case development and
controlling the expenditure of effort.
Section 6101.17(c) has been revised in response to the comment that
the rule does not require that answers to requests for admission be
sworn. The last two sentences of Section 6101.7(c) now state that any
matter admitted is conclusively established for the purpose of the
pending action, unless the Board on motion permits withdrawal or
amendment of the admission, and that any admission made in the case may
not be used against the party making it in any other proceeding.
Section 6101.32 (Reconsideration; Amendment of Decision; New
hearing) and Section 6101.33 (Relief from Decision or Order): One
commentator suggested that these rules should clarify whether the
filing of an appeal of a Board decision with the United States Court of
Appeals for the Federal Circuit wrests from the Board jurisdiction to
consider motions under these two sections. Similarly, the same
commentator suggested clarifying that a motion pending under Section
6101.32(d) or Section 6101.33(d) tolls the time for filing an appeal
with the Court of Appeals for the Federal Circuit. The Board believes
that these matters are not appropriately resolved by rules of
procedure. It did not modify these rules.
``Offer of Judgment'' rule: Two commentators suggested that an
``offer of judgment'' provision similar to Federal Rule of Civil
Procedure 68 should be adopted by the Board. The commentators believe
that the rule encourages a realistic, prompt, and thorough assessment
of claims and leads to the settlement of matters in dispute between the
parties. The Board knows of no statute that would permit adoption of
such a rule, and therefore did not accept the suggestion.
[[Page 52349]]
Part 6102
Section 6102.1 (Variation from Standard Proceedings): At the
suggestion of one commentator, the Board revised this rule to clarify
that expedited proceedings other than small claims and accelerated
procedures (Sections 6102.2 and 6102.3) are used only when the parties
agree to use them, and when the Board deems such proceedings to be in
the best interest of the parties, the Board, and the resolution of
contract disputes.
Section 6102.4 (Alternative Dispute Resolution): Although strongly
supportive of the Board's efforts to make ADR services available to
parties upon request, two commentators queried whether the Board had
sufficient statutory or delegated authority for this expanded role.
They also suggested that the rule clarify whether these services were
to be provide on a reimbursable basis.
The Administrator of General Services has delegated the needed
authority to the Board. The delegation specifies that when the Board
makes ADR services available to agencies other than GSA, the services
will be provided on a reimbursable basis. The Section has been revised
to state more clearly that the Board will make its services available
for ADR proceedings involving any agency in contract and procurement
matters at any stage, even if no contracting officer decision has been
issued or is contemplated.
Section 6102.4(b)(1): At the suggestion of one commentator, Section
6102.4(b)(1) has been redrafted to clarify that, if ADR is agreed to by
the parties and the Board, the parties may request that the Board's
chairman appoint a particular judge or judges as the Neutral, or that
the chairman appoint any judge or judges as the Neutral.
Two commentators suggested that, if the ADR involves a case pending
before the Board, the parties should be allowed to choose whether a
panel chairman who serves as a Neutral be permitted to retain the case
should the ADR be unsuccessful. In response, Section 6102.4(b)(1) now
provides that, if the ADR is unsuccessful and has involved mediation,
the panel chairman shall not retain the case; if the ADR is
unsuccessful and has not involved mediation, the panel chairman shall
consider the parties' views and decide whether to retain the case.
Section 6102.4(b)(2): One commentator suggested that the Board
specify what would happen to material developed during an ADR
proceeding, which is not retained by the Board after the proceeding is
concluded or otherwise terminated. The Board does not believe that
particular procedures need be specified the rules. The Section has been
revised, however, to clarify that material created by a party for the
purpose of an ADR proceeding is to be used solely for that proceeding
unless the parties agree otherwise.
Section 6102.4(c): In accordance with the suggestion of one
commentator, this section has been revised to state that the Board will
consider the use of any ADR technique propose by the parties which is
deemed to be fair, reasonable, and in the best interest of the parties,
the Board, and the resolution of contract disputes.
One commentator suggested that a mediator be precluded from
discussing the ADR with other judges. In recognition of this concern,
Section 6102.4(c)(1) has been revised to provide that no judge who has
participated in discussions about a mediation will participate in a
Board decision of the case if the ADR is unsuccessful.
One commentator suggested that this section should specify when ADR
is most effective. Although the Board believes these considerations
need not be presented in a rule, it agrees with the commentator that
ADR is most effective as a dispute resolution technique when the
essential elements of a successful ADR environment exist. These
elements include: a genuine desire by the parties to resolve the
dispute through ADR; an agreement by the parties as to the general type
of ADR to be conducted and the rules to be used in conducting the ADR;
and a willingness by the parties to have present at a non-binding ADR
proceeding a principal with authority to agree to the settlement of the
case.
List of Subjects
48 CFR Part 6101
Administrative practice and procedure, Government procurement.
48 CFR Part 6102
Administrative practice and procedure, Government procurement.
For the reasons set out in the preamble, 48 CFR chapter 61 is
amended as follows:
1. Part 6101 is revised to read as follows:
PART 6101--RULES OF PROCEDURE OF THE GENERAL SERVICES
ADMINISTRATION BOARD OF CONTRACT APPEALS (STANDARD PROCEEDINGS)
Sec.
6101.0 Foreword.
6101.1 Scope of rules; definitions; construction; rulings and
orders; panels; situs [Rule 101].
6101.2 Time; enlargement; computation [Rule 102].
6101.3 Service of papers [Rule 103].
6101.4 Appeal file [Rule 104].
6101.5 Filing cases; time limits for filing; docketing [Rule 105].
6101.6 Appearances; notice of appearance [Rule 106].
6101.7 Pleadings in appeals [Rule 107].
6101.8 Motions [Rule 108].
6101.9 Election of hearing or record submission [Rule 109].
6101.10 Conferences; conference memorandum; prehearing order;
prehearing and presubmission briefs [Rule 110].
6101.11 Submission on the record without a hearing [Rule 111].
6101.12 Record of Board proceedings [Rule 112].
6101.13 [Reserved].
6101.14 [Reserved].
6101.15 General provisions governing discovery [Rule 115].
6101.16 Depositions [Rule 116].
6101.17 Interrogatories to parties; requests for admission;
requests for production of documents [Rule 117].
6101.18 Sanctions and other proceedings [Rule 118].
6101.19 Hearings: scheduling; notice; unexcused absences [Rule
119].
6101.20 Subpoenas [Rule 120].
6101.21 Hearing procedures [Rule 121].
6101.22 Admissibility and weight and evidence [Rule 122].
6101.23 Exhibits [Rule 123].
6101.24 Transcripts of proceedings; corrections [Rule 124].
6101.25 Briefs and memoranda of law [Rule 125].
6101.26 Consolidation; separate hearings; separate determination of
liability [Rule 126].
6101.27 Stay of suspension of proceedings; dismissals in lieu of
stay or suspension [Rule 127].
6101.28 Dismissals [Rule 128].
6101.29 Decisions: format; procedure [Rule 129].
6101.30 Full Board consideration [Rule 130].
6101.31 Clerical mistakes [Rule 131].
6101.32 Reconsideration; amendment of decisions; new hearings [Rule
132].
6101.33 Relief from decision or order [Rule 133].
6101.34 Harmless error [Rule 134].
6101.35 Award of costs [Rule 135].
6101.36 Payment of Board awards [Rule 136].
6101.37 Record on review of a Board decision [Rule 137].
6101.38 Office of the Clerk of the Board [Rule 138].
[[Page 52350]]
6101.39 Seal of the Board [Rule 139].
6101.40 Forms [Rule 140].
Appendix--Forms Nos. 1-5.
Form 1--Notice of Appeal, GSA Form 2465.
Form 2--Notice of Appearance.
Form 3--Subpoena, GSA Form 9534.
Form 4--Government Certificate of Finality.
Form 5--Appellant/Applicant Certificate of Finality.
Authority: 41 U.S.C. 601-613.
6101.0 Foreword.
(a) The General Services Administration Board of Contract Appeals
was established under the Contract Disputes Act of 1978, 41 U.S.C. 601-
613, as an independent tribunal to hear and decide contract disputes
between government contractors and the General Services Administration
(GSA) and other executive agencies of the United States.
(b) As an agency board established under the Contract Disputes Act,
the Board is required to ``provide to the fullest extent practicable,
informal, expeditious and inexpensive resolution of disputes.'' 41
U.S.C. 607(e). The rules in part 6101 represent the Board's concerted
effort to be responsive to this charge in standard proceedings. In
further response to this mandate, the Board also uses a variety of
techniques intended to shorten and simplify, when appropriate, the
proceedings normally used to resolve contract disputes. These
techniques are described in part 6102.
(c) As indicated in part 6102, the Board fully supports the use of
alternative dispute resolution (ADR) in all appropriate cases. To
encourage the prompt, expert, and inexpensive resolution of contract
disputes as promoted by the Federal Acquisition Streamlining Act of
1994, Public Law 103-355, 108 Stat. 3243, the Board will also make a
Board Neutral available for an ADR proceeding, as described in 6102.4,
either before or after the issuance of a decision by a contracting
officer of any agency if a joint written request is submitted to the
Office of the Clerk of the Board by the parties.
(d) The Board also conducts proceedings as required under other
laws. In all matters before it, the Board will act in accordance with
this part and Part 6102 and applicable standards of conduct so that the
integrity, impartiality, and independence of the Board are preserved.
6101.1 Scope of rules; definitions; construction; rulings and orders;
and panels; situs [Rule 101].
(a) Scope. The rules contained in this part and Part 6102 govern
proceedings in all cases filed with the Board on or after October 7,
1996, and all further proceedings in cases then pending, except to the
extent that, in the opinion of the Board, their use in a particular
case pending on the effective date would be infeasible or would work an
injustice, in which event the former procedure applies. The Board will
look to the rules in this part and Part 6102 for guidance in conducting
other proceedings authorized by law.
(b) Definitions--(1) Appeal; appellant. The term ``appeal'' means a
contract dispute filed with the Board. The term ``appellant'' means as
party filing an appeal.
(2) Application; applicant. The term ``application'' means a
submission to the Board of a request for award of costs, under the
Equal Access to Justice Act, 5 U.S.C. 504, pursuant to 6101.35. The
term ``applicant'' means a party filing an application.
(3) Board judge; judge. The term ``Board judge'' or ``judge''
means a member of the Board.
(4) Case. The term ``case'' means an appeal, petition, or
application.
(5) Filing. (i) Any document, other than a notice of appeal or an
application for award of costs, is filed when it is received by the
Office of the Clerk of the Board during the Board's working hours. A
notice of appeal or an application for award of costs is filed upon the
earlier of:
(A) Its receipt by the Office of the Clerk of the Board or
(B) If mailed, the date on which it is mailed. A United States
Postal Service postmark shall be prima facie evidence that the document
with which it is associated was mailed on the date thereof.
(ii) Facsimile transmissions to the Board and the parties are
permitted. Parties are expected to submit their facsimile machine
numbers with their filings. The Board's facsimile machine number is:
(202) 501-0664. The filing of a document by facsimile transmission
occurs upon receipt by the Board of the entire printed submission.
Parties are specfically cautioned that deadlines for the filing of
cases will not be extended merely because the Board's facsimile machine
is busy or otherwise unavailable at the time on which the filing is
due.
(6) Party. The term ``party'' means an appeallant, applicant,
petitioner, or respondent.
(7) Petition; petitioner. The term ``petition'' means a request
filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting
officer to issue a written decision on a claim. The term ``petitioner''
means a party submitting a petition.
(8) Respondent. The term ``respondent'' means the Government agency
whose decision, action, or inaction is the subject of an appeal,
petition, or appplication.
(9) Working day. The term ``working day'' means any date other than
a Saturday, Sunday, or federal holiday.
(10) Working hours. The Board's working hours are 8:00 a.m. to 4:30
p.m., Eastern Time, on each working day.
(c) Construction. The rules in this part and part 6102 shall be
construed to secure the just, speedy, and inexpensive resolution of
every case. The Board looks to the Federal Rules of Civil Procedure for
guidance in construing those Board rules which are similar to Federal
Rules.
(d) Rulings, orders, and directions. The Board may apply the rules
in this part and part 6102 and make such rulings and issue such orders
and directions as are necessary to secure the just, speedy, and
inexpensive resolution of every case before the Board. Any ruling,
order, or direction that the Board may make or issue pursuant to the
rules in this part and part 6102 may be made on the motion or request
of any party or on the initiative of the Board. The Board may also
amend, alter, or vacate a ruling, order, or direction upon such terms
as are just. In making rulings and issuing orders and directions
pursuant to the rules in this part and part 6102, the Board takes into
consideration those Federal Rules of Civil Procedure which address
matters not specifically covered in this part and part 6102.
(e) Panels. Each case will be assigned to a panel consisting of
three judges, with one member designated as the panel chairman, in
accordance with such procedures as may be established by the Board. The
panel chairman is responsible for processing the case, including
scheduling and conducting proceedings and hearings. In addition, the
panel chairman may, without participation by other panel members,
decide an appeal under the small claims procedure (6102.2), rule on
nondispositive motions (except for amounts in controversy under
6102.2(a)(2)), and dismiss a case if no party objects (6101.28(c)). All
other matters, except for those before the full Board under 6101.30,
are decided for the Board by a majority of the panel.
(f) Situs. The address of the Office of the Clerk of the Board is:
Room 7022, General Services Administration Building, 18th and F
Streets, NW., Washington, DC 20405. The Clerk's telephone number is:
(202) 501-0116. The Clerk's facsimile machine number is (702) 501-0664.
[[Page 52351]]
6101.2 Time: enlargement; computation [Rule 102].
(a) Time for performing required actions. All time limitations
prescribed in the rules in this part and part 6102 or in any order or
direction given by the Board are maximums, and the action required
should be accomplished in less time whenever possible.
(b) Enlarging time. Upon request of a party for good cause shown,
the Board may enlarge any time prescribed by the rules in this part and
part 6102 or by an order or direction of the Board. The exception is
the time limit for filing appeals (6101.5(b)(1)). A written request is
required, but in exigent circumstances an oral request may be made and
followed by a written request. An enlargement of time may be granted
even through the request was filed after the time for taking the
required action expired, but the party requesting the enlargement must
show good cause for its inability to make the request before that time
expired.
(c) Computing time. Except as otherwise required by law, in
computing a period of time prescribed by the rules in this part and
part 6102 or by order of the Board, the day from which the designated
period of time begins to run shall not counted, but the last day of the
period shall be counted unless that day is (1) a Saturday, a Sunday, or
a federal holiday, or (2) a day on which the Office of the Clerk of the
Board is required to close earlier than 4:30 p.m., or does not open at
all, as in the case of inclement weather, in which event the period
shall include the next working day. Except as otherwise provided in
this paragraph, when the period of time prescribed or allowed is less
than 11 days, any intervening Saturday, Sunday, or federal holiday
shall not be counted. When the period of time prescribed or allowed is
11 days or more, intervening Saturdays, Sundays, and federal holidays
shall be counted. Time for filing any document or copy thereof with the
Board expires when the Office of the Clerk of the Board closes on the
last day on which such filing may be made.
6101.3 Service of papers [Rule 103].
(a) On whom and when service must be made. When a party sends a
document to the Board it must at the same time send a copy to the other
party by mail or some other equally or more expeditious means of
transmittal. Subpoenas (6101.20) and documents filed in camera
(6101.12(h)) are exceptions to this requirement. Any papers required to
be served on a party (except requests for discovery and responses
thereto, unless ordered by the Board to be filed) shall be filed with
the Board before service or within a reasonable time thereafter.
(b) Proof of service. Except when service is not required, a party
sending a document to the Board must indicate to the Board that a copy
has also been sent to the other party. This may be done by certificate
of service, by the notation of a photostatic copy (cc:), or by any
other means that can reasonably be expected to indicate to the Board
that the other party has been provided a copy.
(c) Failure to make service. If a document sent to the Board by a
party does not indicate that a copy has been served on the other party,
the Board may return the document to the party that submitted it with
such directions as it considers appropriate, or the Board may inquire
whether a party has received a copy and note on the record the fact of
inquiry and the response, and may also direct the party that submitted
the document to serve a copy on the other party. In the absence of
proof of service a document may be treated by the Board as not properly
filed.
6101.4 Appeal file [Rule 104].
(a) Submission to the Board by the contracting officer. (1) Within
30 calendar days from receipt of notice that an appeal has been filed,
or within such time as the Board may allow, the contracting officer
shall file with the Board appeal file exhibits consisting of all
documents and other tangible things relevant to the claim and to the
contracting officer's decision which has been appealed, including:
(i) The contracting officer's decision, if any, from which the
appeal is taken;
(ii) The contract, if any, including amendments, specifications,
plans, and drawings;
(iii) All correspondence between the parties that is relevant to
the appeal, including the written claim or claims that are the subject
of the appeal, and evidence of their certification, if any;
(iv) Affidavits or statements of any witnesses on the matter in
dispute and transcripts of any testimony taken before the filing of the
notice of appeal;
(v) All documents and other tangible things on which the
contracting officer relied in making the decision, and any
correspondence relating thereto;
(vi) The abstract of bids, if relevant; and
(vii) Any additional existing evidence or information deemed
necessary to determine the merits of the appeal.
(2) The contracting officer shall serve a copy of the appeal file
on the appellant at the same time that the contracting officer files it
with the Board, except that
(i) The contracting officer need not serve on the appellant those
documents furnished the Board in camera pursuant to 6101.12(h), and
(ii) The contracting officer shall serve documents submitted under
protective order only on those individuals who have been granted access
to such documents by the Board. However, the contracting officer must
serve on the appellant a list identifying the specific documents filed
in camera or under protective order with the Board, giving sufficient
details necessary for their recognition. This list must also be filed
with the Board as an exhibit to the appeal file.
(b) Submission to the Board by the appellant. Within 30 calendar
days after filing of the respondent's appeal file exhibits, or within
such time as the Board may allow, the appellant shall file with the
Board for inclusion in the appeal file documents or other tangible
things relevant to the appeal that have not been submitted by the
contracting officer. The appellant shall serve a copy of its additional
exhibits upon the respondent at the same time as it files them with the
Board.
(c) Submissions on order of the Board. The Board may, at any time
during the pendency of the appeal, require any party to file other
documents and tangible things as additional exhibits.
(d) Organization of the appeal file. Appeal file exhibits may be
originals or true, legible, and complete copies. They shall be arranged
in chronological order within each submission, earliest documents
first; bound in a loose-leaf binder on the left margin except where
size or shape makes such binding impracticable; numbered; tabbed; and
indexed. The numbering shall be consecutive, in whole arabic numerals
(no letters, decimals, or fractions), and continuous from one
submission to the next, so that the complete file, after all
submissions, will consist of one set of consecutively numbered
exhibits. In addition, the pages within each exhibit shall be numbered
consecutively unless the exhibit already is paginated in a logical
manner. Consecutive pagination of the entire file is not required. The
index should include the date and a brief description of each exhibit
and shall indicate which exhibits, if any, have been filed with the
Board in camera or under protective order or otherwise have not been
served on every other party.
(e) Lengthy or bulky materials. The Board may waive the requirement
to furnish other parties copies or duplicates of bulky, lengthy, or
outsized
[[Page 52352]]
materials submitted to the Board as exhibits.
(f) Use of appeal file as evidence. All exhibits in the appeal
file, except for those as to which an objection has been sustained, are
part of the record upon which the Board will render its decision.
Unless otherwise ordered by the Board, objection to any exhibit may be
made at any time before the first witness is sworn or, if the appeal is
submitted on the record pursuant to 6101.11, at any time prior to or
concurrent with the first record submission. The Board may enlarge the
time for such objections and will consider an objection made during a
hearing if the ground for objection could not reasonably have been
earlier known to the objecting party. If an objection is sustained, the
Board will so note in the record.
(g) When appeal file not required. Upon motion of a party, the
Board may postpone or dispense with the submission of any or all appeal
file exhibits.
6101.5 Filing cases; time limits for filing; docketing [Rule 105].
(a) Filing cases. Filing of a case occurs as provided in
6101.1(b)(5).
(1) Notice of appeal. (i) A notice of appeal shall be in writing
and should be signed by the appellant or by the appellant's attorney or
authorized representative. If the appeal is from a contracting
officer's decision, the notice of appeal should describe the decision
in enough detail to enable the Board to differentiate that decision
from any other; the appellant can satisfy this requirement by attaching
to the notice of appeal a copy of the contracting officer's decision.
If an appeal is taken from the failure of a contracting officer to
issue a decision, the notice of appeal should describe in detail the
claim that the contracting officer has failed to decide; the appellant
can satisfy this requirement by attaching a copy of the written claim
submission to the notice of appeal.
(ii) A written notice in any form, including the one specified in
the appendix to this part and part 6102, is sufficient to initiate an
appeal. The notice of appeal should include the following information:
(A) The number and date of the contract;
(B) The name of the agency and the component thereof against which
the claim has been asserted;
(C) The name of the contracting officer whose decision or failure
to decide is appealed and the date of the decision, if any;
(D) A brief account of the circumstances giving rise to the appeal;
and
(E) An estimate of the amount of money in controversy, if any and
if known.
(iii) The appellant must send a copy of the notice of appeal to the
contracting officer whose decision is appealed or, if there has been no
decision, to the contracting officer before whom the appellant's claim
is pending.
(2) Petition. (i) A petition shall be in writing and signed by the
petitioner or by the petitioner's attorney or authorized
representative. The petition should describe in detail the claim that
the contracting officer has failed to decide; the contractor can
satisfy this requirement by attaching to the petition a copy of the
written claim submission.
(ii) The petition should include the following information:
(A) The number and date of the contract;
(B) The name of the agency and the component thereof against which
the claim has been asserted; and
(C) The name of the contracting officer whose decision is sought.
(3) Application. An application for costs shall meet all
requirements specified in 6101.35(c).
(4) Other participation. The Board may, on motion, in its
discretion, permit an entity to participate in a case in a special or
limited way, such as by filing an amicus curiae brief.
(b) Time limits for filing--(1) Appeals. (i) An appeal from a
decision of a contracting officer shall be filed no later than 90
calendar days after the date the appellant receives that decision.
(ii) An appeal may be filed with the Board should the contracting
officer fail or refuse to issue a timely decision on a claim submitted
in writing, properly certified if required.
(2) Applications. An application for costs shall be filed within 30
calendar days of a final disposition in the under-lying appeal, as
provided in 6101.35(b).
(c) Notice of docketing. Notices of appeal, petitions, and
applications will be docketed by the Office of the Clerk of the Board,
and a written notice of docketing will be sent promptly to all parties.
6101.6 Appearances; notice of appearance [Rule 106].
(a) Appearances before the Board--(1) Appellant; petitioner;
applicant. Any appellant, petitioner, or applicant may appear before
the Board by an attorney-at-law licensed to practice in a state,
commonwealth, or territory of the United States, or in the District of
Columbia. An individual appellant, petitioner, or applicant may appear
in his own behalf; a corporation, trust, or association may appear by
one of its officers or by any other authorized employee; and a
partnership may appear by one of its members or by any other authorized
employee.
(2) Respondent. The respondent may appear before the Board by an
attorney-at-law licensed to practice in a state, commonwealth, or
territory of the United States, or in the District of Columbia.
Alternatively, if not prohibited by agency regulation or otherwise, the
respondent may appear by the contracting officer or by the contracting
officer's authorized representative.
(b) Notice of appearance. Unless a notice of appearance is filed by
some other person, the person signing the notice of appeal, petition,
or application shall be deemed to have appeared on behalf of the
appellant, petitioner, or applicant, and the head of the respondent
agency's litigation office shall be deemed to have appeared on behalf
of the respondent. A notice of appearance in the form specified in the
appendix to this part and Part 6102 is sufficient. Attorneys
representing parties before the Board are required to list the state
bars to which they are admitted and their state bar numbers or other
bar identifiers.
(c) Withdrawal of appearance. Any person who has filed a notice of
appearance and who wishes to withdraw from a case must file a motion
which includes the name, address, telephone number, and facsimile
machine number of the person who will assume responsibility for
representation of the party in question. The motion shall state the
grounds for withdrawal unless it is accompanied by a representation
from the successor representative or existing co-counsel that the
established case schedule will be met.
6101.7 Pleadings in appeals [Rule 107].
(a) Pleadings required and permitted. Except as the Board may
otherwise order, the Board requires the submission of a complaint and
an answer. In appropriate circumstances, the Board may order or permit
a reply to an answer.
(b) Complaint. No later than 30 calendar days after the docketing
of the appeal, the appellant shall file with the Board a complaint
setting forth its claim or claims in simple, concise, and direct terms.
The complaint should set forth the factual basis of the claim or
claims, with appropriate reference to the contract provisions, and
should state the amount in controversy, or an estimate
[[Page 52353]]
thereof, if any and if known. No particular form is prescribed for a
complaint, and the Board may designate the notice of appeal, a claim
submission, or any other document as the complaint, either on its own
initiative or on request of the appellant, if such document
sufficiently states the factual basis and amount of the claim.
(c) Answer. No later than 30 calendar days after the filing of the
complaint or of the Board's designation of a complaint, the respondent
shall file with the Board an answer setting forth simple, concise, and
direct statements of its defenses to the claim or claims asserted in
the complaint, as well as any affirmative defenses it chooses to
assert. A dispositive motion or a motion for a more definite statement
may be filed in lieu of the answer only with the permission of the
Board. If no answer is timely filed, the board may enter a general
denial, in which case the respondent may thereafter amend the answer to
assert affirmative defenses only by leave of the Board and as otherwise
prescribed by paragraph (f) of this section. The Board will inform the
parties when it enters a general denial on behalf of the respondent.
(d) Reply to an answer. If the Board orders or permits a reply to
an answer, it shall be filed as directed by the Board.
(e) Modifications to requirement for pleadings. If the appellant
has elected the small claims procedure provided by 6102.2 or the
accelerated procedure provided by 6102.3, the submission of pleadings
shall be governed by the applicable section.
(f) Amendment of pleadings. Each party to an appeal may amend its
pleadings once without leave of the Board at any time before a
responsive pleading is filed; if the pleading is one to which no
responsive pleading is permitted, such amendment may be made at any
time within 20 calendar days after it is served or, in small claims
proceedings under 6102.2, within 10 working days after it is served.
The Board may permit the parties to amend pleadings further on
conditions fair to both parties. If a response to the unamended
pleading was required by the rules in this part or by an order of the
Board, a response to the amended pleading shall be filed no later than
30 calendar days after the filing of the amended pleading or, in small
claims proceedings, no later than 15 calendar days after the filing of
the amended pleading. 6101.12(e) concerns amendments to pleadings to
conform to the evidence.
6101.8 Motions [Rule 108].
(a) How motions are made. Motions may be oral or written. A written
motion shall indicate the relief sought and, either in the text of the
motion or in an accompanying legal memorandum, the grounds therefor. In
addition, a motion for summary relief shall comply with the
requirements of paragraph (g) of this section. 6101.25 prescribes the
form and content of legal memoranda. Oral motions shall be made on the
record and in the presence of the other party.
(b) When motions may be made. A motion filed in lieu of an answer
pursuant to 6101.7(c) shall be filed no later than the date on which
the answer is required to be filed or such later date as may be
established by the Board. Any other dispositive motion shall be made as
soon as practicable after the grounds therefor are known. Any other
motion shall be made promptly or as required by this part.
(c) Dispositive motions. The following dispositive motions may
properly be made before the Board:
(1) Motions to dismiss for lack of jurisdiction or for failure to
state a claim upon which relief can be granted;
(2) Motions to dismiss for failure to prosecute;
(3) Motions for summary relief (analogous to summary judgment); and
(4) Any other motion to dismiss.
(d) Other motions. Other motions may be made in good faith and in
proper form.
(e) Jurisdictional questions. The Board may at any time consider
the issue of its jurisdiction to decide a case. When all facts touching
upon the Board's jurisdiction are not to record, or in other
appropriate circumstances, a decision on a jurisdictional question may
be deferred pending a hearing on the merits or the filing of record
submissions.
(f) Procedure. Unless otherwise directed by the Board, a party may
respond to a written motion other than a motion pursuant to 6101.30,
6101.31, 6101.32, or 6101.33 at any time within 20 calendar days after
the filing of the motion. Responses to motions pursuant to 6101.30,
6101.31, 6101.32, or 6101.33 may be made only as permitted or directed
by the Board. The Board may permit hearing or oral argument on written
motions and may require additional submissions from any of the parties.
(g) Motions for summary relief. (1) A motion for summary relief
should be filed only when a party believes that, based upon uncontested
material facts, it is entitled to relief in whole or in part as a
matter of law. A motion for summary relief should be filed as soon as
feasible, to allow the Board to rule on the motion in advance of a
scheduled hearing date.
(2) With each motion for summary relief, there shall be served and
filed a separate document titled Statement of Uncontested Facts, which
shall contain in separately numbered paragraphs all of the material
facts upon which the moving party bases its motion and as to which it
contends there is no genuine issue. This statement shall include
references to the supporting affidavits or declarations and documents,
if any, and to the 6101.4 appeal file exhibits relied upon to support
such statement.
(3) An opposing party shall file with its opposition (or cross-
motion) a separate document titled Statement of Genuine Issues. This
document shall identify, by reference to specific paragraph numbers in
the moving party's Statement of Uncontested Facts, those facts as to
which the opposing party claims there is a genuine issue necessary to
be litigated. An opposing party shall state the precise nature of its
disagreement and give its version of the facts. This statement shall
include references to the supporting affidavits or declarations and
documents, if any, and to the 6101.4 appeal file exhibits that
demonstrate the existence of a genuine dispute. An opposing party may
also file a Statement of Uncontested Facts as to any relevant matters
not covered by the moving party's statement.
(4) When a motion for summary relief is made and supported as
provided in this section, an opposing party may not rest upon the mere
allegations or denials of its pleadings, but the opposing party's
response, by affidavits or as otherwise provided by this section, must
set forth specific facts showing that there is a genuine issue of
material fact. If the opposing party does not so respond, summary
relief, if appropriate, shall be entered against that party. For good
cause shown, if an opposing party cannot present facts essential to
justify its opposition, the Board may defer ruling on the motion to
permit affidavits to be obtained or depositions to be taken or other
discovery to be conducted, or may made such other order as is just.
(h) Effect of pending motion. Except as this part and part 6102
provide or the Board may order, a pending motion shall not excuse the
parties from proceeding with the case in accordance with this part and
part 6102 and the orders and directions of the Board.
6101.9 Election of hearing or record submission [Rule 109].
Each party shall inform the Board, in writing, whether it elects a
hearing or submission of its case on the record
[[Page 52354]]
pursuant to 6101.11. Such an election may be filed at any time unless a
time for filing is prescribed by the Board. A party electing to submit
its case on the record pursuant to 6101.11 may also elect to appear at
a hearing solely to cross-examine any witness presented by the opposing
party, provided that the Board is informed of that party's intention
within 10 working days of its receipt of notice of the election of
hearing by the other party. If a hearing is elected, the election
should state where and when the electing party desires the hearing to
be held and should explain the reasons for its choices. A hearing will
be held if either party elects one. If a party's decision whether to
elect a hearing is dependent upon the intentions of the other party, it
shall consult with the other party before filing its election. If there
is to be a hearing, it will be held at a time and place prescribed by
the Board after consultation with the party or parties electing the
hearing. The record submissions from a party that has elected to submit
its case on the record shall be due as provided in 6101.11.
6101.10 Conferences; conference memorandum; prehearing order;
prehearing and presubmission briefs [Rule 110].
(a) Conferences. The Board may convene the parties in conference,
either by telephone or in person, for any purpose. The conference may
be stenographically or electronically recorded, at the discretion of
the Board. Matters to be considered and actions to be taken at a
conference may include:
(1) Simplifying, clarifying, or severing the issues;
(2) Stipulations, admissions, agreements, and rulings to govern the
admissibility of evidence, understandings on matters already of record,
or other similar means of avoiding unnecessary proof;
(3) Plans, schedules, and rulings to facilitate discovery;
(4) Limiting the number of witnesses and other means of avoiding
cumulative evidence;
(5) Stipulations or agreements disposing of matters in dispute; or
(6) Ways to expedite disposition of the case or to facilitate
settlement of the dispute, including, if the parties and the Board
agree, the use of alternative dispute resolution techniques, as
provided in 6102.1 and 6102.4.
(b) Conference memorandum. The Board may prepare a memorandum of
the results of a conference or issue an order reflecting any actions
taken, or both. A memorandum or order so issued shall be placed in the
record of the case and sent to each party. Each party shall have 5
working days after receipt of a memorandum to object to the substance
of it.
(c) Prehearing order. The Board may issue a prehearing or
presubmission order to govern the proceedings in a case.
(d) Prehearing or presubmission briefs. A party may, by leave of
the Board, file a prehearing or presubmission brief at any time before
the hearing or upon or before the date on which first record
submissions are due.
6101.11 Submission on the record without a hearing [Rule 111].
(a) Submission on the record. (1) A party may elect to submit its
case on the record without a hearing. A party submitting its case on
the record may include in its written record submission or submissions:
(i) Any relevant documents or other tangible things it wishes the
Board to admit into evidence;
(ii) Affidavits, depositions, and other discovery materials that
set forth relevant evidence; and
(iii) A brief or memorandum of law.
(2) The Board may require the submission of additional evidence or
briefs and may order oral argument in a case submitted on the record.
(b) Time for submission. (1) If both parties have elected to submit
the case on the record, the Board will issue an order prescribing the
time for initial and, if appropriate, reply record submissions.
(2) If one party has elected a hearing and the other party has
elected to submit its case on the record, the party submitting on the
record shall make its initial submission no later than the commencement
of the hearing or at an earlier date if the Board so orders, and a
further submission in the form of a brief at the time for submission of
posthearing briefs.
(c) Objections to evidence. Unless otherwise directed by the Board,
objections to evidence (other than the appeal file and supplements
thereto) in a record submission may be made within 10 working days
after the filing of the submission. Replies to such objections, if any,
may be made within 10 working days after the filing of the objection.
The Board may rule on such objections in its opinion deciding the
merits or otherwise disposing of the case.
6101.12 Record of Board proceedings [Rule 112].
(a) Composition of the record for decision. (1) The record upon
which any decision of the Board will be rendered consists of:
(i) The notice of appeal, petition, or application;
(ii) Appeal file exhibits other than those as to which objection
has been sustained;
(iii) Hearing exhibits other than those as to which an objection
has been sustained;
(iv) Pleadings;
(v) Motions and responses thereto;
(vi) Memoranda, orders, rulings, and directions to the parties
issued by the Board;
(vii) Documents and other tangible things admitted in evidence by
the Board;
(viii) Written transcripts or electronic recordings of proceedings;
(ix) Stipulations and admissions by the parties;
(x) Depositions, or parts thereof, received in evidence;
(xi) Written interrogatories and responses received in evidence;
(xii) Briefs and memoranda of law; and
(xiii) Anything else that the Board may designate.
(2) All other papers and documents in a case are part of the
administrative record of the proceedings. The administrative record
shall include file and hearing exhibits offered but not received in
evidence in a case; it may also include correspondence with and between
the parties, and depositions, interrogatories, offers of proof
contained in the transcript, and other documents that are not part of
the record for decision.
(b) Time for entry into the record. Except as the Board may
otherwise order, nothing other than posthearing briefs will be received
into the record after a hearing is completed. In cases submitted on the
record without a hearing, nothing will be received into the record
after the time for filing of the last record submission. Briefs will be
due as provided in 6101.25(b).
(c) Closing of the record. Except as the Board may otherwise order,
no proof shall be received in evidence after a hearing is completed or,
in cases submitted on the record without a hearing, after notice by the
Board to the parties that the record is closed and that the case is
ready for decision.
(d) Notice that the case is ready for decision. The Board will give
written notice to the parties when the record is closed and the case is
ready for decision.
(e) Amendments to conform to the evidence. When issues within the
proper scope of a case, but not raised in the pleadings, have been
raised without objection or with permission of the Board at a hearing
(see 6101.21(h)) or in
[[Page 52355]]
record submissions, they shall be treated in all respects as if they
had been raised in the pleadings. The Board may formally amend the
pleadings to conform to the proof or may order that the record be
deemed to contain pleadings so amended.
(f) Enlargement of the record. The Board may at any time require or
permit enlargement of the record with additional evidence and briefs.
It may reopen the record to receive additional evidence and oral
argument at a hearing.
(g) Inspection of the record of proceedings; release of any paper,
document, or tangible thing prohibited. Except for any part thereof
that is subject to a protective order or deemed an in camera
submission, the record of proceedings in a case shall be made available
for inspection by any person. Such record shall be made available at
the Office of the Clerk of the Board during the Board's normal working
hours, as soon as practicable given the demands on the Board of
processing the subject case and other cases. Except as provided in
6101.23(c) and 6101.37(d), no paper, document, or tangible thing which
is part of the record of proceedings in a case may be released from the
offices of the Board. Copies may be obtained by any person as provided
in 6101.38(d). If such inspection or copying involves more than minimal
costs to the Board, reimbursement will be required.
(h) Protected and in camera submissions. (1) A party may by motion
request that the Board receive and hold materials under conditions that
would limit access to them on the ground that such documents are
privileged or confidential, or sensitive in some other way. The moving
party must state the grounds for such limited access. The board may
also determine on its own initiative to hold materials under such
conditions. The manner in which such materials will be held, the
persons who shall have access to them, and the conditions (if any)
under which such access will be allowed will be specified in an order
of the Board. If the materials are held under such an order, they will
be part of the record of the case. If the Board denies the motion, the
materials may be returned to the party that submitted them. If the
moving party asks, however, that the materials be placed in the
administrative record, in camera, for the purpose of possible later
review of the Board's denial, the Board will comply with the request.
(2) A party may also ask, or the Board may direct, that testimony
be received under protective order or in camera. The procedures under
paragraph (h)(1) of this section shall be followed with respect to such
request or direction.
6101.13 [Reserved].
6101.14 [Reserved].
6101.15 General provisions governing discovery [Rule 115].
(a) Discovery methods. The parties may obtain discovery by one or
more of the following methods:
(1) Depositions upon oral examination or written questions;
(2) Written interrogatories;
(3) Requests for production of documents or other tangible things;
and
(4) Requests for admission.
(b) Scope of discovery. Except as otherwise limited by order of the
Board in accordance with this part and part 6102, the parties may
obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending case, whether it
relates to the claim or defense of a party, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things, and the identity and location of
persons having knowledge of any discoverable matter. It is not a ground
for objection that the information sought will be inadmissible if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(c) Discovery limits. The Board may limit the frequency or extent
of use of the discovery methods set forth in this section if it
determines that:
(1) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity by
discovery in the case to obtain the information sought; or
(3) The discovery is unduly burdensome and expensive, taking into
account the needs of the case, the amount in controversy, limitations
on the parties' resources, and the importance of the issues at stake.
(d) Conduct of discovery. Parties may engage in discovery only to
the extent the Board enters an order which either incorporates an
agreed plan and schedule acceptable to the Board or otherwise permits
such discovery as the moving party can demonstrate is required for the
expeditious, fair, and reasonable resolution of the case.
(e) Discovery conference. Upon request of a party or on its own
initiative, the Board may at any time hold an informal meeting or
telephone conference with the parties to identify the issues for
discovery purposes; establish a plan and schedule for discovery; set
limitations on discovery, if any; and determine such other matters as
are necessary for the proper management of discovery. The Board may
include in the conference such other matters as it deems appropriate in
accordance with 6101.10.
(f) Discovery objections. (1) In connection with any discovery
procedure, the Board, on motion or on its own initiative, may make any
order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including, but not limited to, one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery be had only on specified terms and
conditions, including a designation of the time and place, or that the
scope of discovery be limited to certain matters;
(iii) That the discovery be conducted with no one present except
persons designated by the Board; and
(iv) That confidential information not be disclosed or that it be
disclosed only in a designated way.
(2) Unless otherwise ordered by the Board, any objection to a
discovery request must be filed within 15 calendar days after receipt.
A party shall fully respond to any discovery request to which it does
not file a timely objection. The parties are required to make a good
faith effort to resolve objections to discovery requests informally.
(3) A party receiving an objection to a discovery request, or a
party which believes that another party's response to a discovery
request is incomplete or entirely absent, may file a motion to compel a
response, but such a motion must include a representation that the
moving party has tried in good faith, prior to filing the motion, to
resolve the matter informally. The motion to compel shall include a
copy of each discovery request at issue and the response, if any.
(g) Failure to make or cooperate in discovery; sanctions. If a
party fails
(i) To appear for a deposition, after being served with a proper
notice;
(ii) To serve answers or objections to interrogatories submitted
under 6101.17, after proper service of interrogatories; or
(iii) To serve a written response to a request for inspection,
production, and copying of any documents and things under 6101.17, the
party seeking discovery may move the Board to impose appropriate
sanctions under 6101.18.
(h) Subpoenas. A party may request the issuance of a subpoena in
aid of
[[Page 52356]]
discovery under the provision of 6101.20.
6101.16 Depositions [Rule 116].
(a) When depositions may be taken. Upon request of a party, the
Board may order the taking of testimony of any person by deposition
upon oral examination or written questions before an officer authorized
to administer oaths at the place of examination. Attendance of
witnesses may be compelled by subpoena as provided in 6101.20, and the
Board may upon motion order that the testimony at a deposition be
recorded by other than stenographic means, in which event the order may
designate the manner of recording, preserving, and filing the
deposition and may include other provisions to ensure that the recorded
testimony will be accurate and trustworthy. If the order is made, a
party may, nevertheless, arrange to have a stenographic transcription
made at its own expense.
(b) Depositions: time; place; manner of taking. The time, place,
and manner of taking depositions, including the taking of depositions
by telephone, shall be as agreed upon by the parties or, failing such
agreement, as ordered by the Board. A deposition taken by telephone is
taken at the place where the deponent is to answer questions.
(c) Use of depositions. At a hearing on the merits or upon a motion
or interlocutory proceeding, any part or all of a deposition, so far as
admissible and as though the witness were then present and testifying,
may be used against a party who was present or represented at the
taking of the deposition or who had reasonable notice thereof, in
accordance with any of the following provisions:
(1) Any deposition may be used by a party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing agent, or a
person designated to testify on behalf of a public or private
corporation, partnership or association, or governmental agency which
is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be
used by a party for any purpose in its own behalf if the Board finds
that:
(i) The witness is dead;
(ii) The attendance of the witness at the place of hearing cannot
be reasonably obtained, unless it appears that the absence of the
witness was procured by the party offering the deposition;
(iii) The witness is unable to attend or testify because of
illness, infirmity, age, or imprisonment;
(iv) The party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(v) Upon request and notice, exceptional circumstances exist which
make it desirable in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the offering party to introduce any other
part which in fairness ought to be considered with the part introduced.
(d) Depositions pending appeal from a decision of the Board.
(1) If an appeal has been taken from a decision of the Board, or
before the taking of an appeal if the time therefor has not expired,
the Board may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings
before the Board. In such case, the party that desires to perpetuate
testimony may make a motion before the Board for leave to take the
depositions as if the action were pending before the Board. The motion
shall show:
(i) The names and addresses of the persons to be examined and the
substance of the testimony which the moving party expects to elicit
from each; and
(ii) The reasons for perpetuating the testimony of the persons
named.
(2) If the Board finds that the perpetuation of testimony is proper
to avoid a failure or a delay of justice, it may order the depositions
to be taken and may make orders of the character provided for in
6101.15 and in this section. Thereupon, the depositions may be taken
and used as prescribed in this part for depositions taken in actions
pending before the Board. Upon request and for good cause shown, a
judge may issue or obtain a subpoena, in accordance with 6101.20, for
the purpose of perpetuating testimony by deposition during the pendency
of an appeal from a Board decision.
6101.17 Interrogatories to parties; requests for admission; requests
for production of documents [Rule 117].
Upon order from the Board permitting such discovery, a party may
serve on another party written interrogatories, requests for admission,
and requests for production of documents.
(a) Written interrogatories. Written interrogatories shall be
answered separately in writing, signed under oath or accompanied by a
declaration under penalty of perjury, and answered within 30 calender
days after service. Objections shall be filed within the time limits
set forth in 6101.15(f)(2). An interrogatory otherwise proper is not
necessarily objectionable merely because an answer to the interrogatory
may involve an opinion or contention that relates to fact or the
application of law to fact, but the Board may order that such an
interrogatory need not be answered until after designated discovery has
been completed or until a conference has been held, or some other event
has occurred.
(b) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records
of the party upon which the interrogatory has been served, or from an
examination, audit, or inspection of such business records, including a
compilation, abstract, or summary thereof, and the burden of deriving
or ascertaining the answer is substantially the same for the party
serving the interrogatory as for the party served, it is a sufficient
answer to such interrogatory to specify the records from which the
answer may be derived or ascertained and to afford to the party serving
the interrogatory reasonable opportunity to examine, audit, or inspect
such records and to make copies, compilations, abstracts, or summaries
thereof. Such specification shall be in sufficient detail to permit the
interrogating party to locate and to identify, as readily as can the
party served, the records from which the answer may be ascertained.
(c) Written requests for admission. A written request for the
admission of the truth of any matter, within the proper scope of
discovery, that relates to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents,
is to be answered in writing and signed within 30 calendar days after
service. Objections shall be filed within the time limits set forth in
6101.15(f)(2). Otherwise, the matter therein may be deemed to be
admitted. Any matter admitted is conclusively established for the
purpose of the pending action, unless the Board on motion permits
withdrawal or amendment of the admission. Any admission made by a party
under this paragraph is for the purpose of the pending action only and
is not an admission for any other purpose, nor may it be used against
the party in any other proceeding.
(d) Written requests for production of documents. A written request
for the
[[Page 52357]]
production, inspection, and copying of any documents and things shall
be answered within 30 calendar days after service. Objections shall be
filed within the time limits set forth in 6101.15(f)(2).
(e) Change in time for response. Upon request of a party, or on its
own initiative, the Board may prescribe a period of time other than
that specified in this section.
(f) Responses. A party that has responded to written
interrogatories, requests for admission, or requests for production of
documents, upon becoming aware of deficiencies or inaccuracies in its
original responses, or upon acquiring additional information or
additional documents relevant thereto, shall, as quickly as
practicable, and as often as necessary, supplement its responses to the
requesting party with correct and sufficient additional information and
such additional documents as are necessary to give a complete and
accurate response to the request.
6101.18 Sanctions and other proceedings [Rule 118].
(a) Standards. All parties and their representatives, attorneys,
and any expert/consultant retained by them or their attorneys, must
obey directions and orders prescribed by the Board and adhere to
standards of conduct applicable to such parties and persons. As to an
attorney, the standards include the rules of professional conduct and
ethics of the jurisdictions in which an attorney is licensed to
practice, to the extent that those rules are relevant to conduct
affecting the integrity of the Board, its process, and its proceedings.
The Board will also look to voluntary professional guidelines in
evaluating an individual's conduct.
(b) Sanctions. When a party or its representative or attorney or
any expert/consultant fails to comply with any direction or order
issued by the Board (including an order to provide or permit
discovery), or engages in misconduct affecting the Board, its process,
or its proceedings, the Board may make such orders as are just,
including the imposition of appropriate sanctions. The sanctions
include:
(1) Taking the facts pertaining to the matter in dispute to be
established for the purpose of the case in accordance with the
contention of the party submitting the discovery request;
(2) Forbidding challenge of the accuracy of any evidence;
(3) Refusing to allow the disobedient party to support or oppose
designated claims or defenses;
(4) Prohibiting the disobedient party from introducing in evidence
designated documents or items of testimony;
(5) Striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed;
(6) Dismissing the case or any part thereof;
(7) Enforcing the protective order and disciplining individuals
subject to such other violation thereof, including disqualifying a
party's representative, attorney, or expert/consultant from further
participation in the case; or
(8) Imposing such other sanctions as the Board deems appropriate.
(c) Denial of access to protected material for prior violations of
protective orders. The Board may in its discretion deny access to
protected material to any person found to have previously violated the
Board's protective order.
(d) Disciplinary proceedings.--(1) In addition to the other
procedures in this section, the Board may discipline individual party
representatives, attorneys, and experts/consultants for a violation of
any Board order or direction or standard of conduct applicable to such
individual where the violation seriously affects the integrity of the
Board's process or proceedings. Sanctions may be public or private, and
may include admonishment, disqualification from a particular matter,
referral to an appropriate licensing authority, or such other action as
circumstances may warrant.
(2) The Board in its discretion may suspend an individual from
appearing before the Board as a party representative, attorney, or
expert/consultant if, after affording such individual notice and an
opportunity to be heard, a majority of the members of the full Board
determines such a sanction is warranted.
6101.19 Hearings: scheduling; notice; unexcused absences [Rule 119].
(a) Scheduling of hearings. Hearings will be held at the time and
place ordered by the Board and will be scheduled at the discretion of
the Board. In scheduling hearings, the Board will consider the
requirements of this part and part 6102, the need for orderly
management of the Board's caseload, and the stated desires of the
parties as expressed in their elections filed pursuant to 6101.9 or
otherwise. The time or place for hearing may be changed by the Board at
any time.
(b) Notice of hearing. Notice of hearing will be by written order
of the Board. Notice of changes in the hearing schedule will also be by
written order when practicable but may be oral in exigent
circumstances. Except as the Board may otherwise order, each party that
plans to attend the hearing shall, within 10 working days of receipt
of:
(1) A written notice of hearing or
(2) Any notice of a change in hearing schedule stating that an
acknowledgment is required, notify the Board in writing that it will
attend the hearing.
(c) Unexcused absence from hearing. In the event of the unexcused
absence of a party from a hearing, the hearing will proceed, and the
absent party will be deemed to have elected to submit its case on the
record pursuant to 6101.11.
6101.20 Subpoenas [Rule 120].
(a) Voluntary cooperation in lieu of subpoena. Each party is
expected to:
(1) Cooperate by making available witnesses and evidence under its
control, when requested by another party, without issuance of a
subpoena; and
(2) Secure voluntary attendance of third-party witnesses and
production of evidence by third parties, and when practicable, without
issuance of a subpoena.
(b) General. Upon the written request of any party filed with the
Office of the Clerk of the Board, or on the initiative of a judge, a
subpoena may be issued that commands the person to whom it is directed
to:
(1) Attend and give testimony at a deposition in a city or county
where that person resides or is employed or transacts business in
person, or at another location convenient to that person that is
specifically determined by the Board;
(2) Attend and give testimony at a hearing; and
(3) Produce the books, papers, documents, and other tangible things
designated in the subpoena.
(c) Request for subpoena. A request for a subpoena shall state the
reasonable scope and general relevance to the case of the testimony and
of any documentary evidence sought. A request for a subpoena shall be
filed at least 15 calendar days before the testimony of a witness or
documentary evidence is to be provided. The Board may, in its
discretion, honor requests for subpoenas not made within this time
limitation.
(d) Form; issuance. Every subpoena shall be in the form specified
in the appendix to this part and part 6102. Unless a party has the
approval of a judge to submit a subpoena in blank (in whole or in
part), a party shall submit to the judge a completed subpoena (save the
``Return on Service'' portion). In issuing a subpoena to a requesting
party,
[[Page 52358]]
the judge shall sign the subpoena. The party to whom the subpoena is
issued shall complete the subpoena before service.
(2) If the person subpoenaed is located in a foreign country, a
letter rotatory or a subpoena may be issued and served under the
circumstances and in the manner provided in 28 U.S.C. 1781-1784.
(e) Service. (1) The party requesting a subpoena shall arrange for
service. Service shall be made as soon as practicable after the
subpoena has been issued.
(2) A subpoena requiring the attendance of a witness at a
deposition or hearing may be served at any place. A subpoena may be
served by a United States marshal or deputy marshal, or by any other
person who is not a party and not less than 18 years of age. Service of
a subpoena upon a person named therein shall be made by personal
delivery of a copy to that person and tender of the fees for one day's
attendance and the mileage allowed by 28 U.S.C. 1821 or other
applicable law; however, where the subpoena is issued on behalf of the
Government, money payments need not be tendered in advance of
attendance.
(f) Proof of service. The person serving the subpoena shall make
proof of service thereof to the Board promptly and in any event before
the date on which the person served must respond to the subpoena. Proof
of service shall be made by completion and execution and submission to
the Board of the ``Return on Service'' portion of a duplicate copy of
the subpoena issued by a judge. If service is made by a person other
than a United States marshal or his deputy, that person shall make an
affidavit as proof by executing the ``Return on Service'' in the
presence of a notary.
(g) Motion to quash or to modify. Upon written motion by the person
subpoenaed or by a party, made within 14 calendar days after service,
but in any event not later than the time specified in the subpoena for
compliance, the Board may
(1) Quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown, or
(2) Require the party in whose behalf the subpoena was issued to
advance the reasonable cost of producing subpoenaed documentary
evidence. Where circumstances require, the Board may act upon such a
motion at any time after a copy has been served upon opposing parties.
(h) Contumacy or refusal to obey a subpoena. In a case of contumacy
or refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a United States district
court, the Board shall apply to the court through the Attorney General
of the United States for an order requiring the person to appear before
the board to give testimony, produce evidence or both. If a person
fails to obey such an order, the court may punish that person for
contempt of court.
6101.21 Hearing procedures [Rule 121].
(a) Nature and conduct of hearings. Except when necessary to
maintain the confidentiality of protected material or testimony, or
material submitted in camera, all hearings on the merits of cases shall
be open to the public and conducted insofar as is convenient in regular
hearing rooms. All other acts or proceedings may be done or conducted
by the Board either in its offices or at other places.
(b) Continuances; change of location. Whenever practicable, a
hearing will be conducted in one continuous session or a series of
consecutive sessions at a single location. However, the Board may at
any time continue the hearing to a future date and may arrange to
conduct the hearing in more than one location. The Board may also
continue a hearing to permit a party to conduct additional discovery on
conditions established by the Board. In exercising its discretion to
continue a hearing or to change its location, the Board will give due
consideration to the same elements (set forth in 6101.19(a)) that it
considers in scheduling hearings.
(c) Availability of witnesses, documents, and other tangible
things. It is the responsibility of a party desiring to call any
witness, or to use any document or other tangible thing as an exhibit
in the course of a hearing, to ensure that whoever it wishes to call
and whatever it wishes to use is available at the hearing.
(d) Enlargement of the record. The Board may at any time during the
conduct of a hearing require evidence or argument in addition to that
put forth by the parties.
(e) Examination of witnesses. Witnesses before the Board will
testify under oath or affirmation. A party or the Board may obtain an
answer from any witness to any question that is not the subject of an
objection that the Board sustains.
(f) Refusal to be sworn. If a person called as a witness refuses to
be sworn or to affirm before testifying, the Board may direct that
witness to do so and, in the event of continued refusal, the Board may
permit the taking of testimony without oath or affirmation.
Alternatively, the Board may refuse to permit the examination of that
witness, in which event it may state for the record the inferences it
draws from the witness's refusal to testify under oath or affirmation.
Alternatively, the Board may issue a subpoena to compel that witness to
testify under oath or affirmation, and in the event of the witness's
continued refusal to swear or affirm, may seek enforcement of that
subpoena pursuant to 6101.20(h).
(g) Refusal to answer. If a witness refuses to answer a question
put to him in the course of his testimony, the Board may direct that
witness to answer and, in the event of continued refusal, the Board may
state for the record the inferences if draws from the refusal to
answer. Alternatively, the Board may issue a subpoena to compel that
witness to testify and, in the event of the witness's continued refusal
to testify, may seek enforcement of that subpoena pursuant to
6101.20(h).
(h) Issues not raised by pleadings. If evidence is objected to at a
hearing on the ground that it is not within the issues raised by the
pleadings, it may nevertheless be admitted by the Board if it is within
the proper scope of the case. If such evidence is admitted, the Board
may grant the objecting party a continuance to enable it to meet such
evidence. If such evidence is admitted, the pleadings may be amended to
conform to the evidence, as provided by 6101.12(e).
(i) Delay by parties. If the Board determines that the hearing is
being unreasonably delayed by the failure of a party to produce
evidence, or by the undue prolongation of the presentation of evidence,
it may, by written order or by ruling from the bench, prescribe a time
or times within which the presentation of evidence must be concluded,
establish time limits on the direct or cross-examination of witnesses,
and enforce such order or ruling by appropriate sanctions.
6101.22 Admissibility and weight of evidence [Rule 122].
(a) Admissibility. Any relevant evidence may be received. The Board
may exclude relevant evidence to avoid unfair prejudice, confusion of
the issues, undue delay, waste of time, or needless presentation of
cumulative evidence. Hearsay evidence is admissible unless the Board
finds it unreliable or untrustworthy.
(b) Federal Rules of Evidence. As a general matter, and subject to
the other provisions of this section, the Board will base its
evidentiary rulings on the Federal Rules of Evidence.
[[Page 52359]]
(c) Weight and credibility. The Board will determine the weight to
be given to evidence and the credibility to be accorded witnesses.
(d) Submission of evidence in camera. 6101.12(h) governs
submissions in camera.
6101.23 Exhibits [Rule 123].
(a) Marking of exhibits. (1) Documents and other tangible things
offered in evidence by a party will be marked for identification by the
Board during the hearing or, if it is convenient for the Board and the
parties, before the commencement of the hearing. They will be numbered
consecutively as the exhibits of the party offering them.
(2) If a party elects to proceed on the record without a hearing
pursuant to 6101.11, documentary evidence submitted by that party will
be numbered consecutively by the Board as appeal file exhibits.
(b) Copies as exhibits. Except upon objection sustained by the
Board for good cause shown, copies of documents may be offered and
received into evidence as exhibits, provided they are of equal
legibility and quality as the originals, and such copies shall have the
same force and effect as if they were the originals. If the Board so
directs, a party offering a copy of a document as an exhibit shall have
the original available at the hearing for examination by the Board and
any other party. When the original of a document has been received into
evidence as an exhibit, an accurate copy thereof may be substituted in
evidence for the original by leave of the Board at any time.
(c) Withdrawal of documentary exhibits and other papers. With the
permission of the Board, a party may remove an exhibit during the
course of a proceeding. Otherwise, except as provided in 6101.37(d), no
withdrawal of any papers in the Board's file is permitted. Inspection
of the file at the Board's offices is permitted by 6101.12(g).
(d) Disposition of physical exhibits. Any physical (as opposed to
documentary) exhibit may be disposed of by the Board at any time more
than 90 calendar days after the expiration of the period for appeal
from the decision of the Board, unless it has been earlier withdrawn by
the party that submitted it.
6101.24 Transcripts of proceedings; corrections [Rule 124].
(a) Transcripts Except as the Board may otherwise order, all
hearings, other than those under the small claims procedure prescribed
by 6102.2, will be stenographically or electronically recorded and
transcribed. Any other hearing or conference will be recorded or
transcribed only by order of the Board. Copies or transcriptions of
stenographic or electronic recordings not ordered to be transcribed by
the Board will be furnished to the parties or other persons only on
conditions prescribed by the Board, which may include the payment of
the costs of copying or transcription. Each party is responsible for
obtaining its own copy of the transcript if one is prepared.
(b) Corrections Corrections to an official transcript will be made
only when they involve errors affecting its substance. The Board may
order such corrections on motion or on its own initiative, and only
after notice to the parties giving them opportunity to object. Such
corrections will ordinarily be made either by hand with pen and ink or
by the appending of an errata sheet, but when no other method of
correction is practicable the Board may require the reporter to provide
substitute or additional pages.
6101.25 Briefs and memoranda of law [Rule 125].
(a) Form and content of briefs and memoranda of law. Briefs and
memoranda of law shall be typewritten on standard size 8\1/2\ by 11-
inch paper. Otherwise, no particular form or organization is
prescribed. Posthearing briefs should, at a minimum, succinctly set
forth
(1) The facts of the case with citations to those places in the
record where supporting evidence can be found and
(2) Argument with citations to supporting legal authorities.
Memoranda of law should generally adhere as closely as practicable to
the form and content of briefs.
(b) Submission of posthearing briefs. Except as the Board may
otherwise order, posthearing briefs shall be filed 30 calendar days
after the Board's receipt of the transcript; reply briefs, if filed,
shall be filed 15 calendar days after the parties' receipt of the
initial posthearing briefs. The Board will notify the parties of the
date of its receipt of the transcript. In the event one party has
elected a hearing and the other party has elected to submit its case on
the record pursuant to 6101.11, the filing of record submissions in the
form of briefs shall be governed by this section.
6101.26 Consolidation; separate hearings; separate determination of
liability [Rule 126].
(a) Consolidation. When cases involving common questions of law or
fact are pending, the Board may:
(1) Order a joint hearing of any or all of the matters at issue in
the cases;
(2) Order the cases consolidated; or
(3) Make such other orders concerning the proceedings therein as
are intended to avoid unnecessary costs or delay.
(b) Separate hearings. The Board may order a separate hearing of
any case or cases or of any claims or issues or number of claims or
issues therein. The Board may enter appropriate orders or decisions
with respect to any claims or issues that are heard separately.
(c) Separate determinations of liability. The Board may:
(1) Limit a hearing to those issues of law and fact relating to the
right of a party to recover, reserving the determination of the amount
of recovery, if any, for other proceedings; and
(2) In its decision of an appeal, irrespective of whether there is
evidence in the record concerning the amount of recovery, and whether
or not a stipulation or order has been made, reserve determination of
the amount of recovery for other proceedings. In any instance in which
the Board has reserved its determination of the amount of recovery for
other proceedings, its decision on the question of the right to recover
shall be final, subject to the provisions of 6101.30 through 6101.33.
6101.27 Stay or suspension of proceedings; dismissals in lieu of stay
or suspension [Rule 127].
(a) Stay of proceedings to obtain contracting officer's decision.
The Board may in its discretion stay proceedings to permit a
contracting officer to issue a decision when an appeal has been taken
from the contracting officer's alleged failure to render a timely
decision.
(b) Suspension for other cause. The Board may suspend proceedings
in a case for good cause. The order suspending proceedings will
prescribe the duration of the suspension or the conditions on which it
will expire. The order may also prescribe actions to be taken by the
parties during the period of suspension or following its expiration.
(c) Dismissal in lieu of stay or suspension. When circumstances
beyond the control of the Board prevent the continuation of proceedings
in a case, the Board may, in lieu of issuing an order suspending
proceedings, dismiss the case without prejudice to reinstatement. Such
a dismissal may require reinstatement by a date certain or within a
certain period of time after the occurrence of a specified event. If
the order of dismissal does not otherwise provide, it will be subject
to the provisions of 6101.28(b).
[[Page 52360]]
6101.28 Dismissals [Rule 128].
(a) Generally. A case may be dismissed by the Board on motion of
either party. A case may also be dismissed for reasons cited by the
Board in a show cause order to which response has been permitted. Every
dismissal shall be with prejudice to reinstatement of the case unless a
dismissal without prejudice has been requested by a party or specified
in a show cause order.
(b) Dismissal without prejudice. When a case has been dismissed
without prejudice to its reinstatement and neither party has requested,
within the period of time specified in this paragraph, that the case be
reinstated, the case shall be deemed to have been dismissed with
prejudice as of the expiration of 180 calendar days from the date of
dismissal, or such other period as the Board may prescribe.
(c) Issuance of order. An order of dismissal shall be issued by the
panel of judges to which the case has been assigned if the motion is
contested or if the Board is acting consequent to its own show cause
order. An order of dismissal may be issued by the panel chairman alone
if the motion to dismiss is not contested.
6101.29 Decisions: format; procedure [Rule 129].
Except as provided in 6102.2 (small claims procedure), decisions of
the Board will be made in writing upon the record as prescribed in
6101.12. Each of the parties will be furnished a copy of the decision
certified by the Office of the Clerk of the Board, and the date of the
receipt thereof by each party will be established in the record.
6101.30 Full Board consideration [Rule 130].
(a) Requests. (1) A request for full Board consideration is not
favored. Ordinarily, full Board consideration will be ordered only when
(i) It is necessary to secure or maintain uniformity of Board
decisions, or
(ii) The matter to be referred is one of exceptional importance.
(2) A request for full Board consideration may be made by either
party on any date which is both
(i) After the panel to which the case is assigned has issued its
decision on a motion for reconsideration or relief from decision and
(ii) Within 10 working days after the date on which that party
receives that decision. Any party making a request for full Board
consideration shall state concisely in the motion the precise grounds
on which the request is based.
(3) The full Board on its own may initiate consideration of a
matter
(i) At any time while the case is before the Board,
(ii) No later than the last date on which any party may file a
motion for reconsideration or relief from decision or order, or
(iii) If such a motion is filed by a party, within ten days after a
panel has resolved it.
(b) Consideration. Promptly after such a request is made, a ballot
will be taken among the judges; if a majority of them favors the
request, the request will be granted. The result of the vote will
promptly be reported by the Board through an order. The concurring or
dissenting view of any judge who wishes to express such a view may
issue at the time of such order or at any time thereafter.
(c) Decisions. If full Board consideration is granted, a vote shall
be taken promptly on the pending matter. After this vote is taken, the
Board shall promptly, by order, issue its determination, which shall
include the concurring or dissenting view of any judge who wishes to
express such a view.
6101.31 Clerical mistakes [Rule 131].
Clerical mistakes in decisions, orders, or other parts of the
record, and errors arising therein through oversight or inadvertence,
may be corrected by the Board at any time on its own initiative or upon
motion of a party on such terms, if any, as the Board may prescribe.
During the pendency of an appeal to another tribunal, such mistakes may
be corrected only with leave of the appellate tribunal.
6101.32 Reconsideration; amendment of decisions; new hearings [Rule
132].
(a) Grounds. Reconsideration may be granted, a decision or order
may be altered or amended, or a new hearing may be granted, for any of
the reasons stated in 6101.33(a) and the reasons established by the
rules of common law or equity applicable as between private parties in
the courts of the United States. Reconsideration, or a new hearing, may
be granted on all or any of the issues. Arguments already made and
reinterpretations of old evidence are not sufficient grounds for
granting reconsideration. On granting a motion for a new hearing, the
Board may open the decision if one has been issued, take additional
testimony, amend findings of fact and conclusions of law, or make new
findings and conclusions and direct the entry of a new decision.
(b) Procedure. (1) Any motion under this section shall comply with
the provisions of 6101.8 and shall set forth:
(i) The reason or reasons why the Board should consider the motion;
and
(ii) The relief sought and the grounds therefor.
(2) If the Board concludes that the reasons asserted for its
consideration of the motion are insufficient, it may deny the motion
without considering the relief sought and the grounds asserted
therefor. If the Board grants the motion, it will issue an appropriate
order which may include directions to the parties for further
proceedings.
(c) Time for filing. A motion for reconsideration, to alter or
amend a decision or order, or for a new hearing shall be filed in an
appeal or petition within 30 calendar days and in an application within
7 working days after the date of receipt by the moving party of the
decision or order. Not later than 30 calendar days after issuance of a
decision or order, the Board may, on its own initiative, order
reconsideration or a new hearing or alter or amend a decision or order
for any reason that would justify such action on motion of a party.
(d) Effect of motion. A motion pending under this section does not
affect the finality of a decision or suspend its operation.
6101.33 Relief from decision or order [Rule 133].
(a) Grounds. The Board may relieve a party from the operation of a
final decision or order for any of the following reasons:
(1) Newly discovered evidence which could not have been earlier
discovered, even through due diligence;
(2) Justifiable or excusable mistake, inadvertence, surprise, or
neglect;
(3) Fraud, misrepresentation, or other misconduct of an adverse
party;
(4) The decision has been satisfied, released, or discharged, or a
prior decision upon which it is based has been reversed or otherwise
vacated, and it is no longer equitable that the decision should have
prospective application;
(5) The decision is void, whether for lack of jurisdiction or
otherwise; or
(6) Any other ground justifying relief from the operation of the
decision or order.
(b) Procedure. Any motion under this section shall comply with the
provisions of 6101.8 and 6101.32(b), and will be considered and ruled
upon by the Board as provided in 6101.32.
(c) Time for filing. Any motion under this section shall be filed
as soon as practicable after the discovery of the reasons therefor, but
in any event no later than 120 calendar days or, in appeals under the
small claims
[[Page 52361]]
procedure of 6102.2, no later than 30 calendar days after the date of
the moving party's receipt of the decision or order from which relief
is sought. In considering the timeliness of a motion filed under this
section, the Board may consider when the grounds therefor should
reasonably have been known to the moving party.
(d) Effect of motion. A motion pending under this section does not
affect the finality of a decision or suspend its operation.
6101.34 Harmless error [Rule 134].
No error in the admission or exclusion of evidence, and no error or
defect in any ruling, order, or decision of the Board, and no other
error in anything done or omitted to be done by the Board will be a
ground for granting a new hearing or for vacating, reconsidering,
modifying, or otherwise disturbing a decision or order of the Board
unless refusal to act upon such error will prejudice a party or work a
substantial injustice. At every stage of the proceedings the Board will
disregard any error or defect that does not affect the substantial
rights of the parties.
6101.35 Award of costs [Rule 135].
(a) Applications for costs. An appropriate party in a proceeding
before the Board may apply for an award of costs, including if
applicable an award of attorney fees, under the Equal Access to Justice
Act, 5 U.S.C. 504, or any other provision that may entitle that party
to such an award, subsequent to the Board's decision in the proceeding.
For purposes of this section, ``decision'' includes orders of dismissal
resulting from settlement agreements that bring to an end the
proceedings before the Board.
(b) Time for filing. A party seeking an award may submit an
application no later than 30 calendar days after a final disposition in
the underlying appeal. In the case of an appeal that is adjudicated,
the Board's decision becomes final (for purposes of this section) when
it is not appealed to the United States Court of Appeals for the
Federal Circuit within the time permitted for appeal or, if the
decision is appealed, when the time for petitioning the Supreme Court
for certiorari has expired. In the case of an appeal that is resolved
as a result of settlement, the Board's disposition becomes final (for
purposes of this section) after receipt by the applicant of the order
granting or dismissing the appeal.
(c) Application requirements. An application for costs shall:
(1) Identify the applicant and the appeal for which costs are
sought, and the amount being sought;
(2) Establish that all applicable prerequisites for an award have
been satisfied, including a succinct statement of why the applicant is
eligible for an award of costs;
(3) Be accompanied by an exhibit fully documenting any fees or
expenses being sought, including the cost of any study, analysis,
engineering report, test, project, or similar matter. The date and a
description of all services rendered or costs incurred shall be
submitted for each profession firm or individual whose services are
covered by the application, showing the hours spent in connection with
the proceeding by each individual, a description of the particular
services performed by specific date, the rate at which each fee has
been computed, any expenses for which reimbursement is sought, and the
total amount paid or payable by the applicant on account of the sought-
after costs. Except in exceptional circumstances, all exhibits
supporting applications for fees or expenses sought shall be publicly
available. The Board may require the applicant to provide vouchers,
receipts, or other substantiation for any costs claimed and/or to
submit to an audit by the Government of the claimed costs;
(4) Be signed by the applicant or an authorized officer, employee,
or attorney of the applicant;
(5) Contain or be accompanied by a written verification under oath
or affirmation, or declaration under penalty of perjury, that the
information provided in the application is true and correct;
(6) If the applicant asserts that it is a qualifying small business
concern, contain evidence thereof; and
(7) If the application requests reimbursement of attorney fees that
exceed the statutory rate, explain why an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies such fees.
(d) Proceedings. (1) Within 30 calendar days after receipt by the
respondent of an application under this section, the respondent may
file an answer. The answer shall explain in detail any objects to the
award requested and set out the legal and factual bases supporting the
respondent's position. If the respondent contends that any fees for
consultants or expert witnesses for which reimbursement is sought in
the application exceed the highest rate of compensation for expert
witnesses paid by the agency, the respondent shall include in the
answer evidence of such highest rate.
(2) Further proceedings shall be held only by order of the Board
and only when necessary for full and fair resolution of the issues
arising from the application. Such proceedings shall be minimized to
the extent possible and shall not include relitigation of the case on
the merits. A request that the Board order further proceedings under
this section shall describe the disputed issues and explain why
additional proceedings are necessary to resolve those issues.
(e) Decision. Any award ordered by the Board shall be paid pursuant
to 6101.36.
6101.36 Payment of Board awards [Rule 136].
(a) Generally. When permitted by law, payment of Board awards may
be made in accordance with 31 U.S.C. 1304. Awards by the Board pursuant
to the Equal Access to Justice Act shall be directly payable by the
respondent agency over which the applicant has prevailed in the
underlying appeal.
(b) Conditions for payment. Before a party may obtain payment of a
Board award pursuant to 31 U.S.C. 1304, one of the following must
occur:
(1) Both parties must, by execution of a Certificate of Finality,
waive their rights to relief under 6101.32 and 6101.33 and also their
rights to appeal the decision of the Board; or
(2) The time for filing an appeal must expire.
(c) Procedure for filing of certificates of finality. Whenever the
Board issues a decision or an order awarding a party any amount of
money, it will attach to the copy of the decision sent to each party
forms such as those illustrated in the appendix to this part and part
6102. The conditions for payment prescribed in paragraph (b)(1) of this
section are satisfied if each of the parties returns a completed and
duly executed copy of this form to the Board. When the form is executed
on behalf of an appellant or applicant by an attorney or other
representative, proof of signatory authority shall also be furnished.
Upon receipt of completed and duly executed Certificates of Finality
from the parties, the Board will forward a copy of each such
certificate (together with proof of signatory authority, if required)
and a certified copy of its decision to the
[[Page 52362]]
United States Department of the Treasury to be certified for payment.
(d) Procedure in absence of certificate of finality. When one or
both of the parties fails to submit a duly executed Certificate of
Finality, but the conditions for payment have been satisfied as
provided in paragraph (b)(2) of this section, the appellant or
applicant may file a written request that the Board forward its
decision to the United States Department of the Treasury for payment.
Thereupon, the Board will forward a copy of that request and a
certified copy of its decision to the United States Department of the
Treasury to be certified for payment.
(e) Stipulated award. When an appeal is settled, the parties may
file with the Board a stipulation setting forth the amount of the award
and stating
(1) That they will not seek reconsideration of, or relief from, the
Board's decision, and
(2) That they will not appeal the decision. The Board will adopt
the parties' stipulation by decision. The Board's decision under this
paragraph is an adjudication of the case on the merits.
6101.37 Record on review of a Board decision [Rule 137].
(a) Record on review. When a party has appealed a Board decision to
the United States Court of Appeals for the Federal Circuit, the record
on review shall consist of the decision sought to be reviewed, the
record before the Board as described in 6101.12, and such other
material as may be required by the Court of Appeals.
(b) Notice. At the same time a party seeking review of a Board
decision files a notice of appeal, that party shall provide a copy of
the notice to the Board.
(c) Filing of certified list of record materials. Promptly after
service upon the Board of a copy of the notice of appeal of a Board
decision, the Office of the Clerk of the Board shall file with the
Clerk of the United States Court of Appeals for the Federal Circuit a
certified list of all documents, transcripts of testimony, exhibits,
and other materials constituting the record, or a list of such parts
thereof as the parties may designate, adequately describing each. The
Board will retain the record and transmit any part thereof to the Court
upon the Court's order during the pendency of the appeal.
(d) Request by attorney of record to review record. When a case is
on appeal, an attorney of record may request permission from the Board
to sign out the record on appeal to review and copy, for a reasonable
period of time, if the attorney is unable to gain access to the record
from another source.
6101.38 Office of the Clerk of the Board [Rule 138].
(a) Open for the filing of papers. The Office of the Clerk of the
Board shall receive all papers submitted for filing, and shall be open
for this purpose from 8:00 a.m. to 4:30 p.m., Eastern Time, on each day
that is not a Saturday, Sunday, federal holiday, a day on which the
Office is required to close earlier than 4:30 p.m., or a day on which
the Office does not open at all, as in the case of inclement weather.
(b) Decisions and orders. The Office of the Clerk shall keep in
such form and manner as the Board may prescribe a correct copy of each
decision or order of the Board subject to review and any other order or
decision which the Board may direct to be kept.
(c) Docket. The Office of the Clerk shall keep a docket on which
shall be entered the title and nature of all cases brought before the
Board, the names of the persons filing such cases, the names of the
attorneys or other persons appearing for the parties, and a record of
all proceedings.
(d) Copies and certification of papers. Upon the request of any
person, copies of papers and documents in a case may be provided by the
Office of the Clerk. If making such copies involves more than minimal
costs to the Board, reimbursement will be required. When required, the
Office of the Clerk will certify copies of papers and documents as a
true record of the Board. Except as provided in 6101.23(c) and
6101.37(d), the Office of the Clerk will not release original records
in its possession to any person.
6101.39 Seal of the Board [Rule 139].
The Seal of the Board shall be a circular boss, the center portion
of which shall depict the Seal of the General Services Administration.
The outer margin of the seal shall bear the legend ``Board of Contract
Appeals.'' The Seal shall be the means of authentication of all
records, notices, orders, dismissals, opinions, subpoenas, and
certificates issued by the Board.
6101.40 Forms [Rule 140].
The forms contained in the appendix to this part and part 6102 are
sufficient under these parts and are intended to indicate the
simplicity and brevity of statement which the rules in those parts
contemplate. The subpoena form is a required form, and it may not be
altered.
Appendix to Part 6101--Form Nos. 1-5
Form 1--Notice of Appeal, GSA Form 2465
Form 2--Notice of Appearance
Form 3--Subpoena, GSA Form 9534
Form 4--Government Certificate of Finality
Form 5--Appellant/Applicant Certificate of Finality
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2. Part 6102 is added to read as follows:
PART 6102--RULES OF PROCEDURE OF THE GENERAL SERVICES
ADMINISTRATION BOARD OF CONTRACT APPEALS (EXPEDITED PROCEEDINGS)
Sec.
6102.1 Variation from standard proceedings [Rule 201].
6102.2 Small claims procedure [Rule 202].
6102.3 Accelerated procedure [Rule 203].
6102.4 Alternative dispute resolution [Rule 204].
Authority: 41 U.S.C. 601-613.
6102.1 Variation from standard proceedings [Rule 201].
The ultimate purpose of any Board proceeding is to resolve fairly
and expeditiously any dispute properly before the Board. When, during
the normal course of a Board proceeding, the parties agree that a
change in established procedure will promote this end, the Board will
make that change if it is deemed to be feasible and in the best
interest of the parties, the Board, and the resolution of contract
disputes. The following are examples of these changes:
(a) Establishing an expedited schedule of proceedings, such as by
limiting the times provided in part 6101 of this chapter for various
filings, to facilitate a prompt resolution of the case;
(b) Developing a record and rendering a decision on the issue of
entitlement prior to reviewing the issue of quantum in a party's claim;
(c) Developing a record and rendering a decision on any legal or
factual issue in advance of others when that issue is deemed critical
to resolving the case or effecting a settlement of any items in
dispute; and
(d) Developing a record regarding relevant facts through an on-the-
record round-table discussion with sworn witnesses, counsel, and the
panel chairman rather than through formal direct and cross-examination
of each of these same witnesses. This discussion shall be controlled by
the panel chairman. It may be conducted, for example, through the
presentation of narrative statements of witnesses or on an issue by
issue basis. The panel chairman may also request that the parties'
counsel or representatives present opening and/or closing statements in
lieu of written briefs.
6102.2 Small claims procedure [Rule 202].
(a) Election.--(1) The small claims procedure is available solely
at the appellant's election, and only when there is a monetary amount
in dispute and that amount is $50,000 or less. Such election shall be
made no later than 30 calendar days after the appellant's receipt of
the agency answer, unless the panel chairman enlarges the time for good
cause shown.
(2) At the request of the Government, or on its own initiative, the
Board may determine whether the amount in dispute is greater than
$50,000, such that the election is inappropriate. The Government shall
raise any objection to the election no later than 10 working days after
receipt of a notice of election.
(b) Decision. The panel chairman may issue a decision, which may be
in summary form, orally or in writing. A decision which is issued
orally shall be reduced to writing; however, such a decision takes
effect at the time it is rendered, prior to being reduced to writing. A
decision shall be final and conclusive and shall not be set aside
except in case of fraud. A decision shall have no value as precedent.
(c) Procedure. Promptly after receipt of the appellant's election
of the small claims procedure, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings, discovery, and other prehearing activities may be restricted
or eliminated.
(d) Time of decision. Whenever possible, the panel chairman shall
resolve an appeal under this procedure within 120 calendar days from
the Board's receipt of the election. The time for processing an appeal
under this procedure may be extended if the appellant has not adhered
to the established schedule. Either party's failure to abide by the
Board's schedule may result in the Board drawing evidentiary inference
adverse to the party at fault.
6102.3 Accelerated procedure [Rule 203].
(a) Election.--(1) The accelerated procedure is available solely at
the appellant's election, and only when there is a monetary amount in
dispute and that amount is $100,000 or less. Such election shall be
made no later than 30 calendar days after the appellant's receipt of
the agency answer, unless the panel chairman enlarges the time for good
cause shown.
(2) At the request of the Government, or on its own initiative, the
Board may determine whether the amount in dispute is greater than
$100,000, such that the election is inappropriate. The Government shall
raise any objection to the election no later than 10 working days after
receipt of a notice of election.
(b) Decision. Each decision shall be rendered by the panel chairman
with the concurrence of one of the other judges assigned to the panel;
in the event the two judges disagree, the third judge assigned to the
panel will participate in the decision.
(c) Procedure. Promptly after receipt of the appellant's election
of the accelerated procedure, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, and discovery and other prehearing
activities may be restricted or eliminated.
(d) Time of decision. Whenever possible, the panel chairman shall
resolve an appeal under this procedure within 180 calendar days from
the Board's receipt of the election. The time for processing an appeal
under this procedure may be extended if the appellant has not adhered
to the established schedule. Either party's failure to abide by the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault.
6102.4 Alternative dispute resolution [Rule 204].
(a) Availability of ADR procedures. The Board will make its
services available for ADR proceedings in contract and procurement
matters involving any agency, regardless of whether the agency uses the
Board to resolve its Contract Disputes Act appeals.
(1) ADR subsequent to docketing of case at the Board. Parties are
encouraged to consider the feasibility of using ADR as soon as their
case is docketed. If, however, at any time during the course of a Board
proceeding, the parties agree that their dispute may be resolved
through the use of an ADR technique, the panel chairman may suspend
proceedings for a reasonable period of time while the parties and the
Board attempt to resolve the dispute in this manner. The use of an ADR
technique will not toll any relevant statutory time limit for deciding
the case.
(2) Other ADR. Upon request, the Board will make a Board Neutral
available for an ADR proceeding involving any agency in any contract or
procurement matter at any stage of a procurement, even if no
contracting officer decision has been issued or is contemplated. To
initiate an ADR proceeding, the parties shall jointly request the ADR
in writing and direct such request to the Office of the Clerk of the
Board. For agencies other than GSA, the Board will provide ADR services
on a reimbursable basis.
(b) Conduct of ADR.--(1) Selection of Board Neutral. If ADR is
agreed to by
[[Page 52370]]
the parties and the Board, the parties may request the appointment of
one or more Board judges to act as a Board Neutral or Neutrals. The
parties may request that the Board's chairman appoint a particular
judge or judges as the Board Neutral, or ask the Board's chairman to
appoint any judge or judges as the Neutral. If, when ADR has been
requested for a case that has already been docketed with the Board, as
provided in paragraph (a)(1) of this section, the parties may request
that the panel chairman serve as the Board Neutral. In such a
situation, if the ADR is unsuccessful,
(i) If the ADR has involved mediation, the panel chairman shall not
retain the case, and
(ii) If the ADR has not involved mediation, the panel chairman,
after considering the parties' views, shall decide whether to retain
the case.
(2) Retention and confidentiality of materials. The Board will
review materials submitted by a party for an ADR proceeding, but will
not retain such materials after the proceeding is concluded or
otherwise terminated. Material created by a party for the purpose of an
ADR proceeding is to be used solely for that proceeding unless the
parties agree otherwise. Parties may request a protective order in an
ADR proceeding in the manner provided in 6101.12(h).
(c) Types of ADR. ADR is not defined by any single procedure or set
of procedures. The Board will consider the use of any technique
proposed by the parties which is deemed to be fair, reasonable, and in
the best interest of the parties, the Board, and the resolution of
contract disputes. The following are examples of available techniques:
(1) Mediation. The Board Neutral, as mediator, aids the parties in
settling their case. The mediator engages in ex parte discussions with
the parties and facilitates the transmission of settlement offers.
Although not authorized to render a decision in the dispute, the
mediator may discuss with the parties, on a confidential basis, the
strengths and weaknesses of their positions. No judge who has
participated in discussions about the mediation will participate in a
Board decision of the case if the ADR is unsuccessful.
(2) Neutral case evaluation. The parties agree to present to the
Board Neutral information on which the Board Neutral bases a non-
binding, oral, advisory opinion. The manner in which the information is
presented will vary from case to case depending upon the agreement of
the parties. Presentations generally fall between two extremes, ranging
from an informal proffer of evidence together with limited argument
from the parties to a more formal presentation of oral and documentary
evidence and argument from counsel, such as through a mini-trial.
(3) Binding decision. One or more Board judges render a decision
which, by prior agreement of the parties, is to be binding and non-
appealable. As in the non-binding evaluation of a case by a Board
Neutral, the manner in which information is presented for a binding
decision may vary depending on the circumstances of the particular
case.
(4) Other procedures. In addition to other ADR techniques,
including modifications to those listed in this section, as agreed to
by the Board and parties, the parties may use ADR techniques that do
not require direct Board involvement.
(5) Selective use of standard procedures. Parties considering the
use of ADR are encouraged to adapt for their purposes any provisions in
part 6101 which they believe will be useful. This includes but is not
limited to provisions concerning record submittals, pretrial discovery
procedures, and hearings.
Dated: September 26, 1996.
Robert W. Parker,
Vice Chairman.
[FR Doc. 96-25121 Filed 10-4-96; 8:45 am]
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