[Federal Register Volume 74, Number 27 (Wednesday, February 11, 2009)]
[Proposed Rules]
[Pages 6844-6852]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2843]
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POSTAL SERVICE
39 CFR Part 955
Rules of Practice of the Postal Service Board of Contract Appeals
AGENCY: Postal Service.
ACTION: Proposed rule.
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SUMMARY: This document contains the rules of procedure of the Postal
Service Board of Contract Appeals (Board) which will govern all
proceedings before the Board. The Board was re-established by the
National Defense Authorization Act for Fiscal Year 2006, to hear and
decide contract disputes relative to a contract entered into by the
United States Postal Service or the Postal Regulatory Commission. In
addition the Board has jurisdiction over other matters assigned to it
by the Postmaster General, and over matters otherwise authorized by
applicable law. The Board intends to issue final, revised rules after
considering all comments on the proposed rules.
[[Page 6845]]
DATES: Comments must be received on or before March 13, 2009.
ADDRESSES: Judicial Officer Department, United States Postal Service,
2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.
FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro,
Board Member, (703) 812-1910.
SUPPLEMENTARY INFORMATION: The Postal Service Board of Contract Appeals
was re-established by section 847 of the National Defense Authorization
Act for Fiscal Year 2006 (Pub. L. 109-163, 119 Stat. 3136), codified at
section 8(c) of the Contract Disputes Act, 41 U.S.C. 607(c), to hear
and decide contract disputes relative to a contract entered into by the
United States Postal Service or the Postal Regulatory Commission.
These revised rules of procedure have the same general intent and
coverage as the existing rules. However, the revised rules have been
updated, are more comprehensive than the existing rules, and are
intended to reflect more precisely actual practice in proceedings
before the Board.
These revised rules will completely replace the existing rules of
practice and once adopted as a final rule, will be effective for all
appeals docketed by the Board on and after their effective date. While
the language of the proposed rules may have changed considerably to
enhance clarity and consistency, and to reflect more precisely the
practices of the Board, we here identify the most significant changes
of substance.
The proposed rules provide that the Board may consider the Federal
Rules of Civil Procedure and the Federal Rules of Evidence, where
appropriate, for guidance in construing its rules and in processing
appeals.
The proposed rules provide that requests for extensions of time
shall represent that the moving party has contacted the opposing party
about the request, and indicate whether the opposing party consents to
the extension, and if filed after the time for taking the required
action has expired, indicate the reasons for the party's failure to
have submitted the request timely.
The proposed rules require the filing party to serve complaints and
answers upon the opposing party. The only documents that should not be
served on the opposing party are simultaneous briefs. The proposed
rules also allow for filing by fax but provide that the Board may
determine not to extend a filing deadline solely because the Board's
fax machine is busy or unavailable, or the fax is incomplete or
illegible. The rules do not permit electronic filing at this time.
The proposed rules formalize Board precedent that notices of appeal
may be filed either with the contracting officer or directly with the
Board. Notices of appeal filed with the contracting officer are
required to be forwarded by the contracting officer to the Board along
with a copy of the contracting officer's final decision on which the
appeal is based.
The proposed rules require Postal Service counsel to file the
appeal file within thirty days from receipt by Postal Service counsel
of the Board's docketing notice, a change from the existing rules that
require filing within thirty days from the date the contracting officer
receives notice of an appeal. Objections to appeal file documents are
to be made at least ten days prior to a hearing or the date specified
for settling the record. The proposed rules require the appellant to
file the complaint within forty-five days after receipt of the notice
of docketing, a change from the existing rules that require filing
within thirty days after receipt of the notice of docketing. The
proposed rules also formalize Board practice that the Board may order
the Postal Service to file the complaint in appeals involving
affirmative claims by the Postal Service.
The proposed rules specifically provide for summary judgment
motions, and describe the requirements and limitations thereon.
The proposed rules formalize the Board's practices regarding
discovery and the requirements and limitations that may be prescribed
thereon. Procedures for the production of documents have been
specified. Requirements for motions to compel discovery responses have
been clarified.
The proposed rules clarify that hearings may be held at the Board's
hearing room in Arlington, Virginia, or in another location convenient
to the parties and witnesses. The proposed rules formalize the Board's
practices regarding exclusion of witnesses at hearings. The proposed
rules also provide that both parties will be provided transcripts or
copies of proceedings without charge.
The proposed rules require an attorney who has filed a notice of
appearance and who wishes to withdraw from a case to file a motion or
notice identifying the person that will assume responsibility for the
party in the appeal and the contact information therefor. The proposed
rules detail the Board's sanction powers over parties and attorneys.
List of Subjects in 39 CFR Part 955
Administrative practice and procedure, Contract Disputes Act of
1978, Postal Service.
For the reasons stated in the preamble, the Postal Service proposes
to revise 39 CFR Part 955 to read as follows:
1. Part 955 is revised to read as follows:
PART 955--RULES OF PRACTICE BEFORE THE POSTAL SERVICE BOARD OF
CONTRACT APPEALS
Sec.
955.1 Jurisdiction, procedure, service of papers.
955.2 Notice of appeals.
955.3 Contents of notice of appeal.
955.4 Forwarding of appeals.
955.5 Preparation, contents, organization, forwarding, and status of
appeal file.
955.6 Motions.
955.7 Pleadings.
955.8 Amendments of pleadings or record.
955.9 Hearing election.
955.10 Prehearing briefs.
955.11 Prehearing or presubmission conference.
955.12 Submission without a hearing.
955.13 Optional Small Claims (Expedited) and Accelerated Procedures.
955.14 Settling the record.
955.15 Discovery.
955.16 Interrogatories to parties, admission of facts, and
production and inspection of documents.
955.17 Depositions.
955.18 Hearings--where and when held.
955.19 Notice of hearings.
955.20 Unexcused absence of a party.
955.21 Nature of hearings.
955.22 Examination of witnesses.
955.23 Copies of papers, withdrawal of exhibits.
955.24 Posthearing briefs.
955.25 Transcript of proceedings.
955.26 Representation of the parties.
955.27 Withdrawal of attorney.
955.28 Suspension.
955.29 Decisions.
955.30 Motion for reconsideration.
955.31 Dismissal without prejudice.
955.32 Dismissal for failure to prosecute.
955.33 Ex parte communications.
955.34 Sanctions.
955.35 Subpoenas.
955.36 Effective Dates and Applicability.
Authority: 39 U.S.C. 204, 401; 41 U.S.C. 607, 608.
Sec. 955.1 Jurisdiction, procedure, service of papers.
(a) Jurisdiction for considering appeals. Pursuant to the Contract
Disputes Act of 1978, 41 U.S.C. 601-613, the Postal Service Board of
Contract Appeals (Board) has jurisdiction to consider and decide any
appeal from a decision of a contracting officer of the United States
Postal Service or the Postal Regulatory
[[Page 6846]]
Commission relative to a contract made by either. In addition the Board
has jurisdiction over other matters assigned to it by the Postmaster
General, and over matters otherwise authorized by applicable law.
(b) Organization and location of the Board. (1) The Board is
located at 2101 Wilson Boulevard, Suite 600, Arlington, Virginia 22201-
3078. The Board's telephone number is (703) 812-1900, and its Web site
is www.usps.gov/judicial. The Board's fax number is (703) 812-1901.
(2) The Board consists of the Judicial Officer as Chairman, the
Associate Judicial Officer as Vice Chairman, and the Judges of the
Board, as appointed by the Postmaster General in accordance with the
Contract Disputes Act of 1978, 41 U.S.C. 601-613. All members of the
Board shall meet the qualifications established in the Contract
Disputes Act. In general, appeals are assigned to a panel of at least
three members of the Board. The decision of a majority of the panel
constitutes the decision of the Board.
(c) Board procedures--(1) Rules. Appeals to the Board are handled
in accordance with the rules of the Board.
(2) Administration and Interpretation of Rules. These rules will be
interpreted so as to secure a just and inexpensive determination of
appeals without unnecessary delay. Emphasis is placed upon the sound
administration of these rules in specific cases, because it is
impracticable to articulate a rule to fit every possible circumstance
which may be encountered. The Board may consider the Federal Rules of
Civil Procedure for guidance in construing those Board rules that are
similar to Federal Rules and for matters not specifically covered
herein.
(3) Time, computation, and extensions. (i) All time limitations
specified for various procedural actions are computed as maximums, and
are not to be fully exhausted if the action described can be
accomplished in a lesser period. These time limitations are similarly
eligible for extension in appropriate circumstances.
(ii) Except as otherwise provided by law, in computing any period
of time prescribed by these rules or by any order of the Board, the day
of the event from which the designated period of time begins to run
shall not be included, but the last day of the period shall be included
unless it is a Saturday, Sunday, or a federal holiday in which event
the period shall run to the end of the next business day. Except as
otherwise provided in these rules or an applicable order, prescribed
periods of time are measured in calendar days rather than business
days.
(iii) Requests for extensions of time from either party shall be
made in writing stating good cause therefor, shall represent that the
moving party has contacted the opposing party about the request, and
shall indicate whether the opposing party consents to the extension. If
the request for extension of time is filed after the time for taking
the required action has expired, the request should indicate the
reasons for the party's failure to have submitted the request before
that time expired.
(4) Place of filings. Unless the Board otherwise directs, pleadings
and other communications shall be filed with the Recorder of the Board
at its office at 2101 Wilson Boulevard, Suite 600, Arlington, Virginia
22201-3078. Generally, and unless otherwise prescribed by law, rule or
applicable Board order, the Board considers documents filed upon the
earlier of receipt by the Recorder of the Board during the Board's
working hours or, if mailed, the date mailed to the Board. A United
States Postal Service postmark shall be prima facie evidence that the
document with which it is associated was mailed on the date of the
postmark.
(5) Service of papers. Papers shall be served personally or by
mail, addressed to the party upon whom service is to be made. Copies of
simultaneous briefs shall be filed directly with the Board for
distribution and shall not be sent directly by the parties to each
other. The party filing any other paper with the Board shall send a
copy thereof to the opposing party, by an equally or more expeditious
means of transmittal, noting on the paper filed with the Board, or on
the transmitting letter, that a copy has been so furnished. The filing
of a document by fax transmission occurs upon receipt by the Board of
the entire legible submission by fax. The Board may determine not to
extend a deadline for filing solely because the Board's fax machine is
busy or otherwise unavailable when a filing is due.
Sec. 955.2 Notice of appeals.
Notice of an appeal must be in writing, and the original, together
with two copies, may be filed with the contracting officer from whose
decision the appeal is taken, or may be filed directly with the Board.
The notice of appeal must be mailed or otherwise filed within the time
specified by applicable law.
Sec. 955.3 Contents of notice of appeal.
(a) A notice of appeal from a contracting officer's decision should
indicate that an appeal is thereby intended. It should identify the
contract by number and identify the decision from which the appeal is
taken, or it should attach 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 and/
or attach a copy of the claim that the contracting officer has failed
to decide, and explain that the contracting officer has failed to
decide the claim as required.
(b) The notice of appeal should be signed personally by the
appellant (the contractor taking the appeal), or by an officer of the
appellant corporation or member of the appellant firm, or by the
contractor's duly authorized representative or attorney. The complaint
referred to in Sec. 955.7 may be filed with the notice of appeal, or
the appellant may designate the notice of appeal as a complaint, if it
otherwise fulfills the requirements of a complaint.
Sec. 955.4 Forwarding of appeals.
Upon receipt of a notice of appeal in any form, the contracting
officer shall indicate thereon the date of mailing (or date of receipt,
if otherwise conveyed) and within 10 days shall forward said notice of
appeal to the Board, and shall include a copy of the contracting
officer's final decision if one has been issued. Following receipt by
the Board of the original notice of an appeal (whether through the
contracting officer or otherwise), the contractor and contracting
officer will be advised promptly of its receipt, and the contractor
will be furnished a copy of these rules.
Sec. 955.5 Preparation, contents, organization, forwarding, and
status of appeal file.
(a) Duties of the respondent. Within 30 days from receipt of the
Board's docketing notice, or such other period as the Board may order,
the respondent's counsel shall file with the Board an appeal file
consisting of all documents pertinent to the appeal and shall provide a
copy to the appellant. The appeal file shall include:
(1) The claim and contracting officer's final decision from which
the appeal is taken;
(2) The contract, including pertinent specifications, amendments,
plans and drawings;
(3) All correspondence between the parties pertinent to the appeal;
(4) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the
matter in dispute made prior to
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the filing of the notice of appeal with the Board; and
(5) Any additional information considered pertinent.
(b) Duties of the appellant. Within 30 days after receipt of a copy
of the appeal file, the appellant shall supplement the appeal file by
transmitting to the Board any documents not contained therein
considered to be pertinent to the appeal, and shall furnish copies of
such documents to Postal Service counsel.
(c) Organization of appeal file. Documents in the appeal file or
supplement, as applicable, may be originals or legible copies thereof,
and shall be arranged in chronological order where practicable,
numbered sequentially, tabbed, and indexed to identify the contents.
Page numbering shall be consecutive and continuous from one document to
the next, so that the complete file or supplement, as applicable, will
consist of one set of consecutively numbered pages.
(d) Lengthy documents. The Board may waive the requirement of
furnishing to the other party copies of bulky, lengthy, or out-of-size
documents in the appeal file when a party has shown that doing so would
impose an undue burden. The party filing with the Board a document as
to which such a waiver has been granted, shall notify the other party
at the time of filing that the document is available for inspection at
the offices of the Board or of the party.
(e) Status of documents in appeal file. Documents contained in the
appeal file are considered, without further action by the parties, as
part of the record upon which the Board will render its decision,
unless a party objects to the consideration of a particular document.
Unless otherwise provided by Board order, any such objection shall be
made at least 10 days prior to a hearing or the date specified for
settling the record in the event there is no hearing on the appeal. If
timely objection to a document is made, the Board will rule upon its
admissibility into the record as evidence in accordance with Sec. Sec.
955.14 and 955.21.
Sec. 955.6 Motions.
(a) Any motion addressed to the jurisdiction of the Board shall be
promptly filed. Hearing on the motion may be afforded on application of
either party. The Board may at any time and on its own motion raise the
issue of its jurisdiction to proceed with a particular case.
(b) A motion filed in lieu of an answer 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 Board order. Any other dispositive motion
shall be filed as soon as practicable after the grounds therefor are
known.
(c) Motions for summary judgment may be considered by the Board.
However, the Board may defer ruling on a motion for summary judgment,
in its discretion, until after a hearing or other presentation of
evidence. Motions for summary judgment may be filed only when a party
believes that, based upon uncontested material facts, it is entitled to
relief as a matter of law. The parties are to consider proceeding by
submission of the case without a hearing in accordance with Sec.
955.12, in lieu of a motion for summary judgment.
(1) Motions for summary judgment shall include 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 affidavits,
declarations and/or documents relied upon to support such statement.
(2) The opposing party shall file with its opposition 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 support its opposition with references to affidavits,
declarations and/or documents that demonstrate the existence of a
genuine dispute.
(3) The moving party and the non-moving party shall each submit a
memorandum of law supporting or opposing summary judgment.
(4) If, despite reasonable efforts, the 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 issue such other
order as is just. The parties should not expect the Board to search the
record for evidence in support of either party's position.
Sec. 955.7 Pleadings.
(a) Appellant. Within 45 days after receipt of notice of docketing
of the appeal, the appellant shall file with the Board a complaint
setting forth simple, concise and direct statements of each of its
claims, alleging the basis, with appropriate reference to contract
provisions, for each claim, and the dollar amount claimed, and shall
serve the respondent with a copy. This pleading shall fulfill the
generally recognized requirements of a complaint although no particular
form or formality is required. Should the complaint not be filed within
the time required, appellant's claim and appeal may, if in the opinion
of the Board the issues before the Board are sufficiently defined, be
deemed to constitute the complaint and the respondent shall be so
notified.
(b) Respondent. Within 30 days from receipt of said complaint, or
the aforesaid notice from the Board, the respondent shall prepare and
file with the Board an answer thereto, setting forth simple, concise,
and direct statements of the respondent's defenses to each claim
asserted by the appellant, and shall serve the appellant with a copy.
This pleading shall fulfill the generally recognized requirements of an
answer, and shall set forth any affirmative defenses or counterclaims
as appropriate. Should the answer not be filed within the time
required, the Board may, in its discretion, enter a general denial on
behalf of the respondent, and the appellant shall be so notified.
(c) Affirmative claims by the respondent. Where an appellant has
appealed an affirmative claim by the respondent asserted in a final
decision by a Postal Service contracting officer, such as a termination
for default or a Postal Service claim that a contractor owes the Postal
Service money under a contract, the Board may order the respondent to
file the complaint as described in Sec. 955.7(a), and the appellant to
file the answer as described in Sec. 955.7(b).
Sec. 955.8 Amendments of pleadings or record.
(a) Upon its own initiative or upon application by a party, the
Board may, in its discretion, order a party to submit a more definite
statement of the complaint or answer, or to reply to an answer.
(b) When issues within the proper scope of an appeal, but not
raised in the pleadings, have been raised without objection or with
permission of the Board at a hearing or in record submissions, they may
be treated in all respects as if they had been raised in the pleadings.
If evidence is objected to at a hearing on the ground that it is not
within the issues raised by the pleadings, in its discretion the Board
may admit the evidence and grant the objecting party a continuance or
other relief if necessary to enable it to meet such evidence.
[[Page 6848]]
Sec. 955.9 Hearing election.
As directed by Board order, each party shall inform the Board, in
writing, whether it desires a hearing as prescribed in Sec. Sec.
955.18 through 955.25, or in the alternative submission of its case on
the record without a hearing as prescribed in Sec. 955.12. If a
hearing is elected, the election should state where and when the
electing party desires the hearing to be conducted and should explain
the reasons for its choices. In appropriate cases, the appellant shall
also state whether the optional small claims (expedited) procedure or
accelerated procedure prescribed in Sec. 955.13 is elected.
Sec. 955.10 Prehearing briefs.
Based on an examination of the documentation described in Sec.
955.5, the pleadings, and a determination of whether the arguments and
authorities addressed to the issues are adequately set forth therein,
the Board may, in its discretion, require the parties to submit
prehearing briefs in any case in which a hearing has been elected
pursuant to Sec. 955.9. In the absence of a Board requirement
therefor, either party may, in its discretion and upon appropriate and
sufficient notice to the other party, furnish a prehearing brief to the
Board. In any case where a prehearing brief is submitted, it shall be
furnished so as to be received by the Board at least 15 days prior to
the date set for hearing, and a copy shall be furnished simultaneously
to the other party.
Sec. 955.11 Prehearing or presubmission conference.
(a) Whether the case is to be submitted pursuant to Sec. 955.12,
or heard pursuant to Sec. Sec. 955.18 through 955.25, the Board may
upon its own initiative or upon the application of either party,
convene a conference to consider:
(1) The simplification or clarification of the issues;
(2) The possibility of obtaining stipulations, admissions,
agreements on documents, understandings on matters already of record,
or similar agreements which will avoid unnecessary proof;
(3) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if the case is to be heard;
(4) The possibility of agreement disposing of all or any of the
issues in dispute; and
(5) Such other matters as may aid in the disposition of the appeal.
(b) The results of the conference shall be reduced to writing by
the Board and this writing shall thereafter constitute part of the
record.
Sec. 955.12 Submission without a hearing.
Either party may elect to waive a hearing and to submit its case
upon the record before the Board, as settled pursuant to Sec. 955.14.
Submission of the case without hearing does not relieve the parties
from the necessity of proving the facts supporting their allegations or
defenses. Affidavits, depositions, admissions, answers to
interrogatories, and stipulations may be employed to supplement other
documentary evidence in the record. The Board may permit such
submission to be supplemented by oral argument (transcribed if
requested), and by briefs in accordance with Sec. 955.24.
Sec. 955.13 Optional Small Claims (Expedited) and Accelerated
Procedures.
(a) The Small Claims (Expedited) Procedure. (1) The Expedited
Procedure is available solely at the election of the appellant. Such
election requires decision of the appeal, whenever possible, within 120
days after the Board receives written notice of the appellant's
election to utilize this procedure.
(2) The appellant may elect this procedure when:
(i) There is a monetary amount in dispute and that amount is
$50,000 or less, or
(ii) There is a monetary amount in dispute and that amount is
$150,000 or less and the appellant is a small business concern (as that
term is defined in the Small Business Act and regulations promulgated
under the Act).
(3) In cases proceeding under the Expedited Procedure, the
respondent shall send the Board a copy of the contract, the contracting
officer's final decision, and the appellant's claim letter or letters,
if any, within ten days from the respondent's first receipt from either
the appellant or the Board of a copy of the appellant's notice of
election of the Expedited Procedure. If either party requests an oral
hearing in accordance with Sec. 955.9, the Board shall promptly
schedule such a hearing for a mutually convenient time consistent with
administrative due process and the 120-day limit for a decision, at a
place determined under Sec. 955.18. If a hearing is not requested by
either party, the appeal shall be deemed to have been submitted under
Sec. 955.12 without a hearing.
(4) Promptly after receipt of the appellant's election of the
Expedited 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 at the Board's discretion as necessary to enable the
Board to decide the appeal within 120 days after the Board has received
the appellant's notice of election of the Expedited Procedure. In so
doing, the Board may reserve whatever time it considers necessary for
preparation of the decision.
(5) Written decisions by the Board in cases processed under the
Expedited Procedure will be short and contain only summary findings of
fact and conclusions. Decisions will be rendered for the Board by a
single Judge. If there has been a hearing, the Judge presiding at the
hearing may, in his or her discretion, at the conclusion of the hearing
and after entertaining such oral arguments as he or she deems
appropriate, render on the record oral summary findings of fact,
conclusions of law, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the parties a
printed copy of such oral decision for the record and payment purposes
and for the establishment of the commencement date of the period for
filing a motion for reconsideration under Sec. 955.30.
(6) Decisions of the Board under the Expedited Procedure will not
be published, will have no value as precedents, and in the absence of
fraud, cannot be appealed.
(b) The Accelerated Procedure. (1) The Accelerated Procedure is
available solely at the election of the appellant and shall apply only
to appeals where there is a monetary amount in dispute and the amount
in dispute is $100,000 or less. Such election requires decision of the
appeal, whenever possible, within 180 days after the Board receives
written notice of the appellant's election to utilize this procedure.
(2) 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.
The Board, in its discretion, may shorten time periods prescribed
elsewhere in these Rules as necessary to enable the Board to decide the
appeal within 180 days after the Board has received the appellant's
notice of election of the Accelerated Procedure.
(3) Written decisions by the Board in cases processed under the
Accelerated Procedure will normally be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Judge with the concurrence of the Chairman or Vice
Chairman or other designated Judge, or by a majority among these two
and an additional designated member in case of disagreement. In cases
where the
[[Page 6849]]
amount in dispute is $50,000 or less and in which there has been a
hearing, the single Judge presiding at the hearing may, with the
concurrence of both parties, convert the appeal to an Expedited
Proceeding and at the conclusion of the hearing, after entertaining
such oral arguments as he or she deems appropriate, render on the
record oral summary findings of fact, conclusions of law, and a
decision of the appeal. Whenever such an oral decision is rendered, the
Board will subsequently furnish the parties a printed copy of such oral
decision for record and payment purposes and to establish the date of
commencement of the period for filing a motion for reconsideration
under Sec. 955.30.
(c) Denial of election. At the request of the respondent, or on its
own initiative, the Board may determine whether the amount in dispute
and/or the appellant's status make the election of the Expedited
Procedure or the Accelerated Procedure inappropriate.
(d) Motions for Reconsideration in Cases Arising Under Sec.
955.13. Motions for reconsideration of cases decided under either the
Expedited Procedure or the Accelerated Procedure need not be decided
within the time periods prescribed by this Sec. 955.13 for the initial
decision of the appeal, but all such motions shall be processed and
decided rapidly so as to fulfill the intent of this section.
(e) General rule. Except as herein modified, the rules of this Part
955 otherwise apply in all aspects.
Sec. 955.14 Settling the record.
(a) The record upon which the Board's decision will be rendered
consists of the appeal file described in Sec. 955.5, and to the extent
the following items have been filed, pleadings, prehearing conference
memoranda or orders, prehearing briefs, depositions or interrogatories
received in evidence, admissions, stipulations, transcripts of
conferences and hearings, hearing exhibits, posthearing briefs, and
documents which the Board has specifically designated be made a part of
the record. The record will at all reasonable times be available for
inspection by the parties at the Board.
(b) Except as the Board may otherwise order in its discretion, no
proof shall be received in evidence after completion of an oral hearing
or, in cases submitted on the record, after notification by the Board
that the case is ready for decision.
(c) The weight to be attached to any evidence of record will rest
within the sound discretion of the Board. The Board may in any case
require either party, with appropriate notice to the other party, to
submit additional evidence on any matter relevant to the appeal.
(d) The Board may consider the Federal Rules of Evidence for
guidance regarding admissibility of evidence and other evidentiary
issues in construing those Board rules that are similar to Federal
Rules and for matters not specifically covered herein.
Sec. 955.15 Discovery.
(a) The parties are encouraged to engage in voluntary discovery
procedures. In connection with any deposition or other discovery
procedure, the Board may issue any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, and those orders may include limitations on
the scope, method, time and place for discovery, and provisions for
protecting the secrecy of confidential information or documents.
(b) The Board may limit the frequency or extent of use of discovery
methods described in these rules. In doing so, generally the Board will
consider whether: (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. The parties are required to make a good faith
effort to resolve objections to discovery requests informally. 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.
(c) If a party fails to appear for a deposition, after being served
with a proper notice, or fails to serve answers or objections to
interrogatories, requests for admission of facts, or requests for the
production or inspection of documents, after proper service, the party
seeking discovery may request that the Board impose appropriate rulings
or sanctions.
Sec. 955.16 Interrogatories to parties, admission of facts, and
production and inspection of documents.
(a) Interrogatories to parties. After an appeal has been filed with
the Board, a party may serve on the other party written interrogatories
to be answered separately in writing, signed under oath and returned
within 30 days. Upon timely objection, the Board will determine the
extent to which the interrogatories will be permitted. The scope and
use of interrogatories will be controlled by Sec. 955.15.
(b) Admission of facts. After an appeal has been filed with the
Board, a party may serve upon the other party a request for the
admission of specified facts. Within 30 days after service, the party
served shall answer each requested fact or file objections thereto. The
factual propositions set out in the request may be ordered by the Board
as deemed admitted upon the failure of a party to respond timely and
fully to the request for admissions.
(c) Production and inspection of documents. After an appeal has
been filed with the Board, a party may serve on the other party written
requests for the production, inspection, and copying of any documents,
electronically stored information, or things, to be answered within 30
days. Upon timely objection, the Board will determine the extent to
which the requests must be satisfied, and if the parties cannot
themselves agree thereon, the Board shall specify just terms and
conditions of compliance.
Sec. 955.17 Depositions.
(a) When depositions permitted. After an appeal has been docketed
and complaint filed, the parties may mutually agree to, or the Board
may, upon application of either party and for good cause shown, order
the taking of testimony of any person by deposition upon oral
examination or written interrogatories before any officer authorized to
administer oaths at the place of examination, for use as evidence or
for purpose of discovery. The application for order shall specify
whether the purpose of the deposition is discovery or for use as
evidence.
(b) Orders on depositions. The time, place, and manner of taking
depositions shall be as mutually agreed by the parties, or failing such
agreement, governed by order of the Board.
(c) Use as evidence. No testimony taken by deposition shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at such
hearing. It will not ordinarily be received in evidence if the
[[Page 6850]]
deponent is available to testify at the hearing. In such instances,
however, the deposition may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted on
the record, the Board may, in its discretion, receive depositions as
evidence in supplementation of that record.
(d) Expenses. Each party shall bear its own expenses associated
with the taking of any deposition.
Sec. 955.18 Hearings--where and when held.
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. At the discretion of the Board, hearings may be
held in the Board's hearing room in Arlington, VA or may be held at
another location with due consideration to the just, informal,
expeditious and inexpensive resolution of each case.
Sec. 955.19 Notice of hearings.
The Board shall issue an order reasonably in advance of the hearing
identifying the time and place thereof.
Sec. 955.20 Unexcused absence of a party.
The unexcused absence of a party at the time and place set for
hearing will not be occasion for delay. In the event of such absence,
the hearing will proceed and the case will be regarded as submitted by
the absent party as provided in Sec. 955.12.
Sec. 955.21 Nature of hearings.
Hearings shall be as informal as may be reasonable and appropriate
under the circumstances. The Board may exclude evidence to avoid unfair
prejudice, confusion of the issues, undue delay, waste of time, or
presentation of irrelevant, immaterial or cumulative evidence. Although
the Board will consider the Federal Rules of Evidence as described in
Sec. 955.14(d), letters or copies thereof, affidavits, or other
evidence not ordinarily admissible under the Federal Rules, may be
admitted in the discretion of the Board. The weight to be attached to
evidence presented in any particular form will be within the discretion
of the Board, taking into consideration all the circumstances of the
particular case. Stipulations of fact agreed upon by the parties may be
accepted as evidence at the hearing. The parties may stipulate the
testimony that would be given by a witness if the witness were present.
The Board may in any case require evidence in addition to that offered
by the parties.
Sec. 955.22 Examination of witnesses.
Witnesses before the Board will be examined orally under oath or
affirmation, unless the facts are stipulated, or the Board shall
otherwise order. If the testimony of a witness is not given under oath
or affirmation, the Board may warn the witness that his or her
statements may be subject to the provisions of 18 U.S.C. 287 and 1001,
and any other provisions of law imposing penalties for knowingly making
false representations in connection with claims against the United
States or in any matter within the jurisdiction of any department or
agency thereof. Upon the request of either party or if the Board deems
it advisable, the Board will exclude witnesses from the hearing room.
The Board will not exclude a party who is an individual, the properly
designated representative of a party which is an entity, a person whose
presence is essential to the presentation of a party's case, or someone
authorized by statute to be present.
Sec. 955.23 Copies of papers, withdrawal of exhibits.
(a) When books, records, papers, or documents have been received in
evidence, a true copy thereof or of such part thereof as may be
material or relevant may be substituted therefor, during the hearing or
at the conclusion thereof.
(b) After a decision has become final, upon request and after
notice to the other party, the Board in its discretion may permit the
withdrawal of original exhibits, or any part thereof, by the party
entitled thereto. The substitution of true copies of exhibits or any
part thereof may be required by the Board in its discretion as a
condition of granting permission for such withdrawal.
Sec. 955.24 Posthearing briefs.
Posthearing briefs may be submitted upon such terms as may be
ordered by the Board at the conclusion of the hearing. Ordinarily, they
will be simultaneous briefs, submitted to the Board on a date
established by the Board, following receipt of transcripts.
Sec. 955.25 Transcript of proceedings.
Testimony and argument at hearings shall be reported verbatim,
unless the Board otherwise orders. Transcripts or copies of the
proceedings will be provided to the parties by the Board.
Sec. 955.26 Representation of the parties.
(a) The term appellant means a party that has filed an appeal for
resolution by the Board. An individual appellant may appear before the
Board in his or her own behalf, a corporation may appear before the
Board by an officer thereof, a partnership or joint venture may appear
before the Board by a member thereof, or any of these may appear before
the Board by an attorney at law duly licensed in any state,
commonwealth, territory of the United States, or in the District of
Columbia. An attorney representing an appellant shall file a written
notice of appearance with the Board.
(b) The term respondent means the U.S. Postal Service. Postal
Service counsel, who shall be an attorney at law licensed to practice
in a state, commonwealth, or territory of the United States, or in the
District of Columbia, designated by the General Counsel, will represent
the interest of the Postal Service before the Board. Postal Service
counsel shall file a written notice of appearance with the Board.
(c) References to contractor, appellant, contracting officer,
respondent and parties shall include respective counsel for the
parties, as soon as appropriate notices of appearance have been filed
with the Board.
Sec. 955.27 Withdrawal of attorney.
Any attorney for either party who has filed a notice of appearance
and who wishes to withdraw from a case must file a motion or notice
which includes the name, address, telephone number, and fax machine
number of the person who will assume responsibility for representation
of the party in question.
Sec. 955.28 Suspension.
(a) Whenever at any time it appears that the parties are in
agreement as to disposition of the controversy, the Board may suspend
further processing of the appeal: Provided, however, That if the Board
is advised thereafter by either party that the controversy has not been
disposed of by agreement, the case shall be restored to the Board's
active docket.
(b) The Board may in its discretion suspend proceedings to permit a
contracting officer to issue a decision when an appeal has been taken
from the contracting officer's failure to render a timely decision, or
for other good cause.
Sec. 955.29 Decisions.
Decisions of the Board will be made in writing and sent
simultaneously to both parties. The rules of the Board and all final
orders and decisions shall be open for public inspection at the offices
of the Board, and may be made available on its official Web site and to
commercial publishers. Decisions of the Board will be made solely upon
the record, as described in Sec. 955.14.
Sec. 955.30 Motion for reconsideration.
A motion for reconsideration, if filed by either party, shall set
forth
[[Page 6851]]
specifically the ground or grounds relied upon to sustain the motion,
and shall be filed within 30 days from the date of the receipt of a
copy of the decision of the Board by the party filing the motion.
Arguments already made and reinterpretations of evidence generally are
not sufficient grounds for granting reconsideration, or for altering or
amending a decision.
Sec. 955.31 Dismissal without prejudice.
In certain cases, appeals docketed before the Board are required to
be placed in a suspense status and the Board is unable to proceed with
disposition thereof for reasons not within the control of the Board. In
any such case where the suspension has continued, or it appears that it
will continue, for an inordinate length of time, the Board may, in its
discretion, dismiss such appeals from its docket without prejudice to
their restoration when the cause of suspension has been removed. Unless
either party or the Board acts within three years to reinstate any
appeal dismissed without prejudice, the dismissal shall be deemed with
prejudice.
Sec. 955.32 Dismissal for failure to prosecute.
Whenever a record discloses the failure of either party to file
documents required by these rules, respond to notices or correspondence
from the Board, comply with orders of the Board, or otherwise indicates
an intention not to continue the prosecution or defense of an appeal,
the Board may issue an order requiring the offending party to show
cause why the appeal should not be either dismissed or granted, as
appropriate. If the offending party shall fail to show such cause, the
Board may take such action as it deems reasonable and proper under the
circumstances.
Sec. 955.33 Ex parte communications.
No member of the Board or of the Board's staff shall entertain, nor
shall any person directly or indirectly involved in an appeal submit to
the Board or the Board's staff, off the record, any evidence,
explanation, analysis, or advice, whether written or oral, regarding
any matter at issue in an appeal. This provision does not apply to
consultation among Board members nor to ex parte communications
concerning the Board's administrative functions or procedures.
Sec. 955.34 Sanctions.
(a) All parties and their attorneys must obey directions and orders
prescribed by the Board and adhere to standards of conduct applicable
to such parties and attorneys. As to an attorney, the standards include
the rules of professional conduct and ethics of the jurisdictions in
which that attorney is licensed to practice, to the extent that those
rules are relevant to conduct affecting the integrity of the Board, its
process, or its proceedings.
(b) If any party or its attorney fails to comply with any direction
or order issued by the Board, or engages in misconduct affecting the
Board, its process, or its proceedings, the Board may issue such orders
as are just, including the imposition of appropriate sanctions.
Sanctions may include:
(1) Taking the facts pertaining to the matter in dispute to be
established for the purpose of the case;
(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 testimony;
(5) Striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed;
(6) Dismissing or granting the case or any part thereof;
(7) Imposing such other sanctions as the Board deems appropriate.
(c) In addition, the Board may sanction individual attorneys 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, its process, or its 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.
Sec. 955.35 Subpoenas.
(a) General. Upon written request of either party filed with the
Recorder or on his or her own initiative, the Board may issue a
subpoena requiring:
(1) Testimony at a deposition. The deposing of a witness in the
city or county where the witness resides or is employed or transacts
business in person, or at another convenient location as determined by
the Board;
(2) Testimony at a hearing. The attendance of a witness for the
purpose of taking testimony at a hearing; or
(3) Production of books and papers. The production by a witness of
books, papers, documents, electronically stored information, and other
tangible and intangible things designated in the subpoena.
(b) Voluntary cooperation. Each party is expected (1) To cooperate
and make available witnesses and evidence under its control as
requested by the other party, without issuance of a subpoena, and (2)
To secure voluntary attendance of desired third-party witnesses, books,
papers, documents, or tangible things whenever possible.
(c) Requests for subpoenas. (1) A request for a subpoena shall
normally be filed at least:
(i) 15 days before a scheduled deposition where the attendance of a
witness at a deposition is sought, and/or where the production by a
witness of books, papers, documents, electronically stored information,
and other tangible and intangible things is sought; and
(ii) 30 days before a scheduled hearing where the attendance of a
witness at a hearing is sought; except that
(iii) In its discretion the Board may honor requests for subpoenas
not made within these time limitations.
(2) A request for a subpoena shall state the reasonable scope and
general relevance to the case of the testimony and of any books,
papers, documents, electronically stored information, and other
tangible and intangible things sought.
(d) Requests to quash or modify. Upon written request by the person
subpoenaed or by a party, made within 10 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 person
in whose behalf the subpoena was issued to advance the reasonable cost
of compliance. Where circumstances require, the Board may act upon such
a request at any time after a copy has been served upon the opposing
party.
(e) Form; issuance. (1) Every subpoena shall state the name of the
Board and the title of the appeal and shall command each person to whom
it is directed to attend and give testimony, and where appropriate, to
produce specified books, papers, documents, electronically stored
information, and other tangible and intangible things at a time and
place therein specified. In issuing a subpoena to a requesting party,
the Judge shall sign the subpoena and may enter the name of the witness
and otherwise leave it blank. The party to whom the subpoena is issued
shall complete the subpoena before service.
(2) Where the witness is located in a foreign country, a letter
rogatory or subpoena may be issued and served under the circumstances
and in the
[[Page 6852]]
manner provided in 28 U.S.C. 1781-1784.
(f) Service. (1) The party requesting issuance of a subpoena shall
arrange for service.
(2) 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 personally delivering a copy to that person and tendering
the fees for one day's attendance and the mileage provided by 28 U.S.C.
1821 or other applicable law.
(3) The party at whose instance a subpoena is issued shall be
responsible for the payment of fees and mileage of the witness and of
the officer who serves the subpoena. The failure to make payment of
such charges on demand may be deemed by the Board as a sufficient
ground for striking the testimony of the witness and the evidence the
witness has produced.
(g) Contumacy or refusal to obey a subpoena. In case of contumacy
or refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a U.S. District Court,
the Board will apply to the Court through the Attorney General of the
United States for an order requiring the person to appear before the
Board or a member thereof to give testimony or produce evidence or
both. Any failure of any such person to obey the order of the Court may
be punished by the Court as a contempt thereof.
Sec. 955.36 Effective Dates and Applicability.
These revised rules govern proceedings in all cases docketed by the
Board on or after a date determined by the Board.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E9-2843 Filed 2-10-09; 8:45 am]
BILLING CODE 7710-12-P