2011-20874. Civilian Board of Contract Appeals; Rules of Procedure of the Civilian Board of Contract Appeals-Electronic Filing of Documents

AGENCY:

Civilian Board of Contract Appeals, General Services Administration (GSA).

ACTION:

Final rule.

SUMMARY:

This document revises the rules governing proceedings before the Civilian Board of Contract Appeals (Board). The rules are amended to provide procedures for the electronic filing of documents in proceedings before the Board. Electronic filing is increasingly available in judicial and administrative tribunals to provide parties with a faster, more efficient, and less costly way to submit their documents. In addition, although electronically filed documents will be docketed as received only during Board working hours, they may be transmitted at any time from any location with Internet access. This amendment is a non-substantive change to the Rules that is intended to improve the efficiency and effectiveness of the Board's programs by providing parties with an additional option for filing their documents with the Board. It does not affect any of the other methods currently available, including the delivery of documents in person, by courier or United States Postal Service, or by facsimile transmission.

DATES:

Effective Date: August 17, 2011.

FOR FURTHER INFORMATION CONTACT:

Mr. J. Gregory Parks, Chief Counsel, Civilian Board of Contract Appeals, telephone [phone], e-mail address [e-mail] for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone]. Please cite BCA Case 2011-61-01.

SUPPLEMENTARY INFORMATION:

A. Regulatory Information

The Board is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Board finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing a NPRM would be unnecessary. This amendment is a non-substantive change to the Rules, intended to improve the efficiency and effectiveness of the Board's programs by providing parties with an additional option for filing their documents. This option of electronic filing does not affect any of the other methods currently available to parties for the delivery of documents, including in person, by United States Postal Service or other courier service, or by facsimile transmission.

B. Background

The Civilian Board of Contract Appeals was established within the General Services Administration (GSA) by Section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163 (now codified at 41 U.S.C. 7105(b)). In March 2011, the Civilian Board of Contract Appeals began accepting filings submitted by electronic mail (e-mail) under Section 6101.1(b)(5) of the Board's Rules of Procedure. However, appeal files submitted pursuant to Section 6101.4 of the Board's Rules of Procedure may not be submitted by electronic mail due to the size and complexity of these filings, and classified documents and files submitted in camera or under protective order pursuant to Section 6101.9(c) of the Board's Rules of Procedure may not be submitted by electronic mail due to the need to ensure their security. This final rule updates section 6101.1(b)(5) to include information regarding the filing of documents by e-mail and to provide direction concerning requirements for their submittal. Sections 6101.1(f), 6101.2(a)(1)(ii)(C), 6101.2(a)(1)(ii)(D), 6101.2(a)(2)(ii)(C), 6101.5(c), 6103.302(a)(1), 6103.302(b), 6104.402(a)(1)(i), 6104.402(a)(1)(ii), 6104.402(a)(3), 6105.502(a)(2)(iii)(A), 6105.502(a)(2)(iii)(B), and 6105.502(a)(2)(iv) are also amended to provide the e-mail address for receipt of filings for the Clerk of the Board and to request additional contact information for parties and their agents or representatives. Sections 6101.25(a)(1), 6103.306, 6104.406, and 6105.505 are amended to provide the current Internet address for the Board. In addition, section 6101.5(c) is amended to correct an error in printing by the Code of Federal Regulations.

C. Regulatory Flexibility Act

The General Services Administration certifies that this final rule 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., because the rule does not impose any additional costs on large or small businesses.

D. Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

E. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 6101, 6103, 6104, and 6105

• Administrative practice and procedure
• Agriculture
• Freight forwarders
• Government procurement
• Travel and relocation expenses

Dated: August 4, 2011.

Stephen M. Daniels,

Chairman, Civilian Board of Contract Appeals, General Services Administration.

Therefore, GSA amends 48 CFR parts 6101, 6103, 6104, and 6105 as set forth below:

PART 6101—CONTRACT DISPUTE CASES

1. The authority citation for 48 CFR part 6101 is revised to read as follows:

Authority: 41 U.S.C. 7101-7109.

2. Amend section 6101.1 by adding paragraph (b)(5)(iii); and by adding a new sentence at the end of paragraph (f) to read as follows:

6101.1

Scope of rules; definitions; construction; rulings, orders, and directions; panels; location and address [Rule 1].

* * * * *

(b) * * *

(5) * * *

(iii) Filings submitted by electronic mail (e-mail) are permitted, with the exception of appeal files submitted pursuant to 6101.4 (Rule 4), classified documents, and filings submitted in camera or under protective order pursuant to 6101.9(c) (Rule 9(c)). Filings by e-mail shall be submitted to: [e-mail]. Filings must be in PDF format and may not exceed 18 megabytes (MB) total. Filings that are not in PDF format or over 18 MB will not be accepted. The filing of a document by e-mail occurs upon receipt by the Board on a working day, as defined in 6101.1(b)(9) (Rule 1(b)(9)). All e-mail filings received by 4:30 p.m., Eastern Time, on a working day will be considered to be filed on that day. E-mail filings received after that time will be considered to be filed on the next working day.

* * * * *

(f) * * * The Clerk's e-mail address for receipt of filings is: [e-mail].

3. Amend section 6101.2 by revising paragraphs (a)(1)(ii)(C), (a)(1)(ii)(D), and (a)(2)(ii)(C) to read as follows:

6101.2

Filing cases; time limits for filing; notice of docketing; consolidation [Rule 2].

(a) * * *

(1) * * *

(ii) * * *

(C) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the contracting officer whose decision is appealed and the date of the decision;

(D) If the appeal is from the failure of the contracting officer to decide a claim, the name, address, telephone number, facsimile machine number, and e-mail address, if available, of the contracting officer who received the claim;

* * * * *

(2) * * *

(ii) * * *

(C) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the contracting officer whose decision is sought.

* * * * *

4. Amend section 6101.5 by revising paragraph (c) to read as follows:

6101.5

Appearances; notice of appearance [Rule 5].

* * * * *

(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, facsimile machine number, and e-mail address, if available, 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.

5. Amend section 6101.25 by adding two new sentences at the end of paragraph (a)(1) to read as follows:

6101.25

Decisions; settlements [Rule 25].

(a) * * *

(1) * * * In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is: http://www.cbca.gov.

* * * * *

PART 6103—TRANSPORTATION RATE CASES

6. The authority citation for 48 CFR part 6103 is revised to read as follows:

Authority: 31 U.S.C. 3726(i)(1); 41 U.S.C. 7101-7109; Sec. 201(o), Pub. L. 104-316, 110 Stat. 3826.

7. Amend section 6103.302 by revising paragraph (a)(1); and by adding a new sentence after the fifth sentence in paragraph (b) to read as follows:

6103.302

Filing claims [Rule 302].

(a) * * *

(1) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the claimant;

* * * * *

(b) * * * The Clerk's e-mail address for receipt of filings is: [e-mail]. * * *

* * * * *

8. Amend section 6103.306 by revising the fourth sentence to read as follows:

6103.306

Decisions [Rule 306].

* * * The Board's Internet address is: http://www.cbca.gov.

PART 6104—TRAVEL AND RELOCATION EXPENSES CASES

9. The authority citation for 48 CFR part 6104 is revised to read as follows:

Authority: Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C. 3702; 41 U.S.C. 7101-7109.

10. Amend section 6104.402 by revising paragraphs (a)(1)(i) and (a)(1)(ii); and by adding a new sentence after the fifth sentence of paragraph (a)(3) to read as follows:

6104.402

Filing claims [Rule 402].

(a) * * *

(1) * * *

(i) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the claimant;

(ii) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the agency employee who denied the claim;

* * * * *

(3) * * * The Clerk's e-mail address for receipt of filings is: [e-mail]. * * *

* * * * *

11. Amend section 6104.406 by revising the fourth sentence to read as follows:

6104.406

Decisions [Rule 406].

* * * The Board's Internet address is: http://www.cbca.gov.

PART 6105—DECISIONS AUTHORIZED UNDER 31 U.S.C. 3529

12. The authority citation for 48 CFR part 6105 is revised to read as follows:

Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 7101-7109; Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L. 104-53, 109 Stat. 535.

13. Amend section 6105.502 by revising paragraphs (a)(2)(iii)(A) and (a)(2)(iii)(B); and adding a new sentence after the fifth sentence of paragraph (a)(2)(iv) to read as follows:

6105.502

Request for decision [Rule 502].

(a) * * *

(2) * * *

(iii) * * *

(A) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the official making the request;

(B) The name, address, telephone number, facsimile machine number, and e-mail address, if available, of the employee affected by the specific payment or voucher; and

* * * * *

(iv) * * * The Clerk's e-mail address for receipt of filings is: [e-mail]. * * *

* * * * *

14. Amend section 6105.505 by revising the fourth sentence to read as follows:

6105.505

Decisions [Rule 505].

* * * The Board's Internet address is: http://www.cbca.gov.