[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Proposed Rules]
[Pages 7782-7788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3120]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Chapter 2
Defense Federal Acquisition Regulation Supplement; Rules of the
Armed Services Board of Contract Appeals
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is issuing a proposed rule to update the Rules of the
Armed Services Board of Contract Appeals (ASBCA). The proposed rule
implements statutory increases in the thresholds relating to the
submission and processing of contract appeals and updates statutory
references and other administrative information.
DATES: Comment date: Interested parties should submit comments in
writing to the address shown below on or before March 14, 2011.
ADDRESSES: You may submit comments, identified by ``DFARS ASBCA
Rules'', using any of the following methods:
[cir] Regulations.gov:http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by inputting ``DFARS ASBCA Rules''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS
ASBCA Rules.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS ASBCA Rules'' on your attached document.
[cir] E-mail: dfars@osd.mil. Include DFARS ASBCA Rules in the
subject line of the message.
[cir] Fax: 703-681-8535
[cir] Mail: Armed Services Board of Contract Appeals, Attn:
Catherine Stanton, Skyline Six, Room 703, 5109 Leesburg Pike, Falls
Church, VA 22041-3208.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment, please check http://www.regulations.gov approximately two to three days after submission to
verify posting (except allow 30 days for posting of comments submitted
by mail.
FOR FURTHER INFORMATION CONTACT: Catherine Stanton, Executive Director,
ASBCA, 703-681-8503, Internet address: catherine.stanton@asbca.mil; or
David Houpe, Chief Counsel, ASBCA, 703-681-8510, Internet address:
david.houpe@asbca.mil.
SUPPLEMENTARY INFORMATION:
I. Background
The rule is being issued on behalf of Mr. Paul Williams, Chairman,
Armed Services Board of Contract Appeals. It proposes to amend DFARS
Appendix A, Armed Services Board of Contract Appeals, Part 2--Rules, to
update thresholds related to requirements for contractor claims and to
update information as follows:
[cir] The Preface, section II(a), is amended to update the Board's
address and telephone number.
[cir] In Rule 1, subsections (b) and (c) implement section 2351(b)
of Public Law 103-355, 108 Stat. 3322 (1994). Section 2351(b) amended
41 U.S.C. 605(c) to increase, from $50,000 to $100,000, the threshold
relating to certification, decision, and notification requirements for
contractor claims.
[cir] Rule 12.1, subsection (a), and Rule 12.3, subsection (b),
implement section 2351(d) of Public Law 103-355, 108 Stat. 3322 (1994).
Section 2351(d) amended 41 U.S.C. 608(a) to increase, from $10,000 to
$50,000, the threshold for applicability of small claims procedures for
disposition of appeals.
[cir] Rule 12.1, subsection (a) implements section 857 of Public
Law 109-364, 120 Stat. 2349 (2006). Section 857 amended 41 U.S.C.
608(a) to insert after ``$50,000 or less'' the following language:
``or, in the case of a small business concern (as defined in the Small
Business Act and regulations under that Act), $150,000 or less.''
[cir] Rule 12.1, subsection (b), implements section 2351(c) of
Public Law 103-355, 108 Stat. 3322 (1994). Section 2351(c) amended 41
U.S.C. 607(f) to increase, from $50,000 to $100,000, the threshold for
applicability of accelerated procedures for disposition of appeals.
[cir] Rule 28, subsection (b), implements section 4322(b)(7) of
Public Law 104-106, 110 Stat. 677 (1996). Section 4322(b)(7) amended 41
U.S.C. 612 to update statutory references relating to payment of
claims. Rule 28, subsection (b), also contains changes for consistency
with the judgment fund certification process specified in the Treasury
Financial Manual, Financial Management Service, Department of the U.S.
Treasury.
[cir] Minor changes were made throughout the Rules to ensure
uniformity and to correct typographical errors.
II. Executive Order 12866
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993. This rule is not
a major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD does not expect this rule to 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
implements current statutory provisions relating to the submission and
processing of contract appeals, primarily adjusting current dollar
limits affecting the processing of contract appeals to keep pace with
inflation. Therefore, the adjustment of thresholds just maintains the
status quo. Accordingly, DoD has not performed an initial regulatory
flexibility analysis. DoD invites comments from small businesses and
other interested parties on the expected impact of this rule on small
entities.
IV. Paperwork Reduction Act
The rule does not impose any information collection requirements
that require the approval of the Office of Management and Budget under
the
[[Page 7783]]
Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR, Appendix A, Part 2
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR chapter 2 is amended as follows:
1. The authority citation for 48 CFR chapter 2 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Chapter 2--Defense Acquisition Regulations System, Department of
Defense
2. Appendix A to Chapter 2 is amended by revising, Part 2--Rules to
read as follows:
Appendix to Chapter 2 --Armed Services Board of Contract Appeals
* * * * *
Part 2--Rules
Revised [DATE]
RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS
PREFACE
I. JURISDICTION FOR CONSIDERING APPEALS
The Armed Services Board of Contract Appeals (referred to herein
as the Board) has jurisdiction to decide any appeal from a decision
of a contracting officer, pursuant to the Contract Disputes Act of
1978, 41 U.S.C. 601-613, or its Charter, relative to a contract made
by--
(a) the Department of Defense, the Department of the Army, the
Department of the Navy, and the Department of the Air Force or the
National Aeronautics and Space Administration or
(b) any other department or agency, as permitted by law.
II. LOCATION AND ORGANIZATION OF THE BOARD
(a) The Board's address is Skyline Six, Room 703, 5109 Leesburg
Pike, Falls Church, VA 22041-3208, telephone 703-681-8500
(receptionist), 703-681-8502 (Recorder).
(b) The Board consists of a Chairman, two or more Vice Chairmen,
and other members, all of whom are attorneys at law duly licensed by
a State, commonwealth, territory, or the District of Columbia. Board
members are designated Administrative Judges.
(c) There are a number of divisions of the Armed Services Board
of Contract Appeals, established by the Chairman of the Board in
such manner as to provide for the most effective and expeditious
handling of appeals. The Chairman and a Vice Chairman of the Board
act as members of each division. Appeals are assigned to the
divisions for decision without regard to the military department or
other procuring agency which entered into the contract involved.
Hearings may be held by a designated member (Administrative Judge),
or by a duly authorized examiner. Except for appeals processed under
the expedited or accelerated procedure, the decision of a majority
of a division constitutes the decision of the Board, unless the
Chairman refers the appeal to the Board's Senior Deciding Group
(consisting of the Chairman, Vice Chairmen, and all division heads),
in which event a decision of a majority of that group constitutes
the decision of the Board. Appeals referred to the Senior Deciding
Group are those of unusual difficulty or significant precedential
importance, or which have occasioned serious dispute within the
normal division decision process. For decisions of appeals processed
under the expedited or accelerated procedure, see Rules 12.2(c) and
12.3(b).
TABLE OF CONTENTS
RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS
PRELIMINARY PROCEDURES
Rule 1 Appeals, How Taken
Rule 2 Notice of Appeal, Contents of
Rule 3 Docketing of Appeals
Rule 4 Preparation, Content, Organization, Forwarding, and Status of
Appeal File
Rule 5 Motions
Rule 6 Pleadings
Rule 7 Amendments of Pleadings or Record
Rule 8 Hearing Election
Rule 9 Prehearing Briefs
Rule 10 Prehearing or Presubmission Conference
Rule 11 Submission Without a Hearing
Rule 12 Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures
Rule 13 Settling the Record
Rule 14 Discovery--Depositions
Rule 15 Interrogatories to Parties, Admission of Facts, and
Production and Inspection of Documents
Rule 16 Service of Papers Other than Subpoenas
HEARINGS
Rule 17 Where and When Held
Rule 18 Notice of Hearings
Rule 19 Unexcused Absence of a Party
Rule 20 Hearings: Nature, Examination of Witnesses
Rule 21 Subpoenas
Rule 22 Copies of Papers
Rule 23 Post-Hearing Briefs
Rule 24 Transcript of Proceedings
Rule 25 Withdrawal of Exhibits
REPRESENTATION
Rule 26 The Appellant
Rule 27 The Government
DECISIONS
Rule 28 Decisions
MOTION FOR RECONSIDERATION
Rule 29 Motion for Reconsideration
SUSPENSIONS, DISMISSALS, DEFAULTS, REMANDS
Rule 30 Suspensions; Dismissal Without Prejudice
Rule 31 Dismissal or Default for Failure to Prosecute or Defend
Rule 32 Remand from Court
TIME, COMPUTATION, AND EXTENSIONS
Rule 33 Time, Computation, and Extensions
EX PARTE COMMUNICATIONS
Rule 34 Ex parte Communications
SANCTIONS
Rule 35 Sanctions
EFFECTIVE DATE AND APPLICABILITY
Rule 36 Effective Date
RULES
PRELIMINARY PROCEDURES
Rule 1. Appeals, How Taken
(a) Notice of an appeal shall be in writing and mailed or
otherwise furnished to the Board within 90 days from the date of
receipt of a contracting officer's decision. A copy thereof shall be
furnished to the contracting officer from whose decision the appeal
is taken.
(b) Where the contractor has submitted a claim of $100,000 or
less to the contracting officer and has requested a written decision
within 60 days from receipt of the request, and the contracting
officer has not provided one within the period required, the
contractor may file a notice of appeal as provided in subparagraph
(a) hereof, citing the failure of the contracting officer to issue a
decision.
(c) Where the contractor has submitted a properly certified
claim over $100,000 to the contracting officer or has requested a
decision by the contracting officer which presently involves no
monetary amount pursuant to the Disputes clause, and the contracting
officer has failed to issue a decision within a reasonable time,
taking into account such factors as the size and complexity of the
claim, the contractor may file a notice of appeal as provided in
subparagraph (a) hereof, citing the failure of the contracting
officer to issue a decision.
(d) Upon docketing of appeals filed pursuant to (b) or (c)
hereof, the Board may, at its option, stay further proceedings
pending issuance of a final decision by the contracting officer
within such period of time as is determined by the Board.
(e) In lieu of filing a notice of appeal under (b) or (c)
hereof, the contractor may request the Board to direct the
contracting officer to issue a decision in a specified period of
time, as determined by the Board, in the event of undue delay on the
part of the contracting officer.
Rule 2. Notice of Appeal, Contents of
A notice of appeal should indicate that an appeal is being taken
and should identify the contract (by number), the department and/or
agency involved in the dispute, the decision from which the appeal
is taken, and the amount in dispute, if known. The notice of appeal
should be signed personally by the appellant (the contractor taking
the appeal), or by the appellant's duly authorized representative or
attorney. The complaint referred to in Rule 6 may be filed with the
notice of appeal, or the appellant may
[[Page 7784]]
designate the notice of appeal as a complaint, if it otherwise
fulfills the requirements of a complaint.
Rule 3. Docketing of Appeals
When a notice of appeal in any form has been received by the
Board, it shall be docketed promptly. Notice in writing shall be
given to the appellant with a copy of these Rules, and to the
contracting officer.
Rule 4. Preparation, Content, Organization, Forwarding, and Status
of Appeal File
(a) Duties of Contracting Officer--Within 30 days of receipt of
an appeal, or notice that an appeal has been filed, the contracting
officer shall assemble and transmit to the Board an appeal file
consisting of all documents pertinent to the appeal, including-
(1) The decision from which the appeal is taken;
(2) The contract, including pertinent specifications,
amendments, plans, and drawings;
(3) All correspondence between the parties relevant to the
appeal, including the letter or letters of claim in response to
which the decision was issued;
(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 the filing of the notice of appeal
with the Board; and
(5) Any additional information considered relevant to the
appeal.
Within the same time specified hereof, the contracting officer shall
furnish the appellant a copy of each document the contracting
officer transmits to the Board, except those in subparagraph (a)(2)
hereof. As to the latter, a list furnished the appellant indicating
specific contractual documents transmitted will suffice.
(b) Duties of the Appellant--Within 30 days after receipt of a
copy of the appeal file assembled by the contracting officer, the
appellant shall transmit to the Board any documents not contained
therein which the appellant considers relevant to the appeal, and
furnish two copies of such documents to the Government trial
attorney.
(c) Organization of Appeal File--Documents in the appeal file
may be originals or legible facsimiles or authenticated copies, and
shall be arranged in chronological order, where practicable,
numbered sequentially, tabbed, and indexed to identify the contents
of the file.
(d) Lengthy Documents--Upon request by either party, the Board
may waive the requirement to furnish to the other party copies of
bulky, lengthy, or out-of-size documents in the appeal file when
inclusion would be burdensome. At the time a party files with the
Board a document for which such a waiver has been granted, the party
shall notify the other party that the document or a copy is
available for inspection at the offices of the Board or of the
filing 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. However, a party may object, for reasons stated, to
consideration of a particular document or documents reasonably in
advance of hearing or, if there is no hearing, of settling the
record. If such objection is made, the Board shall remove the
document or documents from the appeal file and permit the party
offering the document to move its admission as evidence in
accordance with Rules 13 and 20.
(f) Notwithstanding the foregoing, the filing of the Rule 4(a)
and (b) documents may be dispensed with by the Board either upon
request of the appellant in its notice of appeal or thereafter upon
stipulation of the parties.
Rule 5. Motions
(a) Any motion addressed to the jurisdiction of the Board shall
be promptly filed. Hearing on the motion shall be afforded on
application of either party. However, the Board may defer its
decision on the motion pending hearing on both the merits and the
motion. The Board shall have the right, at any time and on its own
initiative, to raise the issue of its jurisdiction to proceed with a
particular appeal, and shall do so by an appropriate order,
affording the parties an opportunity to be heard thereon.
(b) The Board may entertain and rule upon other appropriate
motions.
Rule 6. Pleadings
(a) Appellant--Within 30 days after receipt of notice of
docketing of the appeal, the appellant shall file with the Board an
original and two copies of a complaint setting forth simple,
concise, and direct statements of each of its claims. The appellant
shall also set forth the basis, with appropriate reference to
contract provisions, of each claim and the dollar amount claimed, to
the extent known. This pleading shall fulfill the generally
recognized requirements of a complaint, although no particular form
is required. Upon receipt of the complaint, the Board shall serve a
copy of it upon the Government unless a copy has been provided
directly by the appellant. Should the complaint not be received
within 30 days, the appellant's claim and appeal may, if in the
opinion of the Board the issues before the Board are sufficiently
defined, be deemed to set forth its complaint and the Government
shall be so notified.
(b) Government--Within 30 days from receipt of the complaint, or
the aforesaid notice from the Board, the Government shall prepare
and file with the Board an original and two copies of an answer
thereto. The answer shall set forth simple, concise, and direct
statements of the Government's defenses to each claim asserted by
the appellant, including any affirmative defenses available. Upon
receipt of the answer, the Board shall serve a copy upon the
appellant. Should the answer not be received within 30 days, the
Board may, in its discretion, enter a general denial on behalf of
the Government, and the appellant shall be so notified.
(c) A party who intends to raise an issue concerning the law of
a foreign country shall give notice in its pleadings or other
reasonable written notice. The Board, in determining foreign law,
may consider any relevant material or source, including testimony,
whether or not submitted by a party or admissible under Rules 11,
13, or 20. The determination of foreign law shall be treated as a
ruling on a question of law.
Rule 7. Amendments of Pleadings or Record
The Board, upon its own initiative or upon application by a
party, may order a party to make a more definite statement of the
complaint or answer, or to reply to an answer. The Board may, in its
discretion, and within the proper scope of the appeal, permit either
party to amend its pleading upon conditions fair to both parties.
When issues within the proper scope of the appeal, but not raised by
the pleadings, are tried by express or implied consent of the
parties, or by permission of the Board, they shall be treated in all
respects as if they had been raised therein. In such instances,
motions to amend the pleadings to conform to the proof may be
entered, but are not required. If evidence is objected to at a
hearing on the ground that it is not within the issues raised by the
pleadings, it may be admitted within the proper scope of the appeal,
provided however, that the objecting party may be granted a
continuance, if necessary, to enable it to meet such evidence.
Rule 8. Hearing Election
After filing of the Government's answer or notice from the Board
that it has entered a general denial on behalf of the Government,
each party shall advise whether it desires a hearing as prescribed
in Rules 17 through 25, or whether it elects to submit its case on
the record without a hearing, as prescribed in Rule 11.
Rule 9. Prehearing Briefs
Based on an examination of the pleadings, and its 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 Rule 8. If the Board does not
require prehearing briefs, 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 simultaneously be furnished to the other party as previously
arranged.
Rule 10. Prehearing or Presubmission Conference
(a) Whether the case is to be submitted pursuant to Rule 11, or
heard pursuant to Rules 17 through 25, the Board may, upon its own
initiative, or upon the application of either party, arrange a
telephone conference or call upon the parties to appear before an
Administrative Judge or examiner of the Board for a conference to
consider--
(1) Simplification, clarification, or severing of the issues;
(2) The possibility of obtaining stipulations, admissions,
agreements, and rulings on admissibility of documents,
understandings on matters already of record,
[[Page 7785]]
or similar agreements that will avoid unnecessary proof;
(3) Agreements and rulings to facilitate discovery;
(4) Limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence;
(5) The possibility of agreement disposing of any or all of the
issues in dispute; and
(6) Such other matters as may aid in the disposition of the
appeal.
(b) The Administrative Judge or examiner of the Board shall make
such rulings and orders as may be appropriate to aid in the
disposition of the appeal. The results of pre-trial conferences,
including any rulings and orders, shall be reduced to writing by the
Administrative Judge or examiner, and this writing shall thereafter
constitute a part of the record.
Rule 11. 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 Rule 13.
Submission of a 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 Board record. The Board may permit
such submissions to be supplemented by oral argument (transcribed if
requested), and by briefs arranged in accordance with Rule 23.
Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED
Procedures (These procedures are available solely at the election
of the appellant.)
12.1 Elections to Utilize SMALL CLAIMS (EXPEDITED) and ACCELERATED
Procedures
(a) In appeals where the amount in dispute is $50,000 or less,
or in the case of a small business concern (as defined in the Small
Business Act and regulations under that Act), $150,000 or less, the
appellant may elect to have the appeal processed under a SMALL
CLAIMS (EXPEDITED) procedure requiring decision of the appeal,
whenever possible, within 120 days after the Board receives written
notice of the appellant's election to utilize this procedure. The
details of this procedure appear in section 12.2 of this Rule. An
appellant may elect the ACCELERATED procedure rather than the SMALL
CLAIMS (EXPEDITED) procedure for any appeal where the amount in
dispute is $50,000 or less.
(b) In appeals where the amount in dispute is $100,000 or less,
the appellant may elect to have the appeal processed under an
ACCELERATED procedure requiring decision of the appeal, whenever
possible, within 180 days after the Board receives written notice of
the appellant's election to utilize this procedure. The details of
this procedure appear in section 12.3 of this Rule.
(c) The appellant's election of either the SMALL CLAIMS
(EXPEDITED) procedure or the ACCELERATED procedure may be made by
written notice within 60 days after receipt of notice of docketing,
unless such period is extended by the Board for good cause. The
election, once made, may not be withdrawn except with permission of
the Board and for good cause.
12.2 The SMALL CLAIMS (EXPEDITED) Procedure
(a) In appeals proceeding under the SMALL CLAIMS (EXPEDITED)
procedure, the following time periods shall apply:
(1) Within 10 days from the Government's first receipt from
either the appellant or the Board of a copy of the appellant's
notice of election of the SMALL CLAIMS (EXPEDITED) procedure, the
Government 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; remaining documents required under Rule 4
shall be submitted in accordance with times specified in that rule
unless the Board otherwise directs.
(2) Within 15 days after the Board has acknowledged receipt of
the appellant's notice of election, the assigned Administrative
Judge shall take the following actions, if feasible, in an informal
meeting or a telephone conference with both parties:
(i) identify and simplify the issues;
(ii) establish a simplified procedure appropriate to the
particular appeal involved;
(iii) determine whether either party wants a hearing, and if so,
fix a time and place therefor;
(iv) require the Government to furnish all the additional
documents relevant to the appeal; and
(v) establish an expedited schedule for resolution of the
appeal.
(b) Pleadings, discovery, and other prehearing activity will be
allowed only as consistent with the requirement to conduct the
hearing on the date scheduled, or if no hearing is scheduled, to
close the record on a date that will allow decisions within the 120-
day limit. The Board, in its discretion, may impose shortened time
periods for any actions prescribed or allowed under these Rules, as
necessary to enable the Board to decide the appeal within the 120-
day limit, allowing whatever time, up to 30 days, that the Board
considers necessary for the preparation of the decision after
closing the record and the filing of briefs, if any.
(c) Written decision by the Board in appeals processed under the
SMALL CLAIMS (EXPEDITED) procedure will be short and will contain
only summary findings of fact and conclusions. Decisions will be
rendered for the Board by a single Administrative Judge. If there
has been a hearing, the Administrative Judge presiding at the
hearing may, in the judge's discretion, at the conclusion of the
hearing and after entertaining such oral arguments as are deemed
appropriate, render on the record oral summary findings of fact,
conclusions, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the
parties a typed copy of such oral decision for record and payment
purposes and to establish the starting date for the period for
filing a motion for reconsideration under Rule 29.
(d) A decision against the Government or the appellant shall
have no value as precedent, and in the absence of fraud, shall be
final and conclusive and may not be appealed or set aside.
12.3 The ACCELERATED Procedure
(a) In appeals proceeding under the ACCELERATED procedure, the
parties are encouraged, to the extent possible consistent with
adequate presentation of their factual and legal positions, to waive
pleadings, discovery, and briefs. The Board, in its discretion, may
shorten time periods prescribed or allowed elsewhere in these Rules,
including Rule 4, 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, and may reserve 30
days for preparation of the decision.
(b) Written decision by the Board in appeals 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 Administrative Judge with the concurrence
of a Vice Chairman, or by a majority among these two and the
Chairman in case of disagreement. Alternatively, in an appeal where
the amount in dispute is $50,000 or less as to which the ACCELERATED
procedure has been elected and in which there has been a hearing,
the single Administrative Judge presiding at the hearing may, with
the concurrence of both parties, at the conclusion of the hearing
and after entertaining such oral arguments as are deemed
appropriate, render on the record oral summary findings of fact,
conclusions, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the
parties a typed copy of such oral decision for record and payment
purposes, and to establish the starting date for the period for
filing a motion for reconsideration under Rule 29.
12.4 Motions for Reconsideration in Rule 12 Appeals
Motions for reconsideration of appeals decided under either the
SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need
not be decided within the original 120-day or 180-day limit, but all
such motions shall be processed and decided rapidly so as to fulfill
the intent of this Rule.
Rule 13. Settling the Record
(a) The record upon which the Board's decision will be rendered
consists of the documents furnished under Rules 4 and 12, to the
extent admitted in evidence, and the following items, if any:
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 to be made a part of the record. The
record will, at all reasonable times, be available for inspection by
the parties at the office of 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.
[[Page 7786]]
(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.
Rule 14. Discovery--Depositions
(a) General Policy and Protective Orders--The parties are
encouraged to engage in voluntary discovery procedures. In
connection with any deposition or other discovery procedure, the
Board may make any order required to protect a party or person from
annoyance, embarrassment, or undue burden or expense. 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) 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, 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.
(c) 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.
(d) Use as Evidence--No testimony taken by depositions shall be
considered as part of the evidence in the hearing of an appeal until
such testimony is offered and received in evidence at such hearing.
It will not ordinarily be received in evidence if the deponent is
present and can testify at the hearing. In such instances, however,
the deposition may be used to contradict or impeach the testimony of
the deponent given at the hearing. In cases submitted on the record,
the Board may, in its discretion, receive depositions to supplement
the record.
(e) Expenses--Each party shall bear its own expenses associated
with the taking of any deposition.
(f) Subpoenas--Where appropriate, a party may request the
issuance of a subpoena under the provisions of Rule 21.
Rule 15. Interrogatories to Parties, Admission of Facts, and
Production and Inspection of Documents
After an appeal has been docketed and complaint filed with the
Board, a party may serve on the other party--
(a) written interrogatories to be answered separately in
writing, signed under oath and answered or objected to within 45
days after service;
(b) a request for the admission of specified facts and/or of the
authenticity of any documents, to be answered or objected to within
45 days after service; the factual statements and/or the
authenticity of the documents to be deemed admitted upon failure of
a party to respond to the request; and
(c) a request for the production, inspection, and copying of any
documents or objects not privileged, which reasonably may lead to
the discovery of admissible evidence, to be answered or objected to
within 45 days after service.
The Board may allow a shorter or longer time. Any discovery
engaged in under this Rule shall be subject to the provisions of
Rule 14(a) with respect to general policy and protective orders, and
of Rule 35 with respect to sanctions.
Rule 16. Service of Papers Other Than Subpoenas
Papers shall be served personally or by mail, addressed to the
party upon whom service is to be made. Copies of complaints,
answers, and briefs shall be filed directly with the Board. The
party filing any other paper with the Board shall send a copy
thereof to the opposing party, noting on the paper filed with the
Board that a copy has been so furnished. Subpoenas shall be served
as provided in Rule 21.
HEARINGS
Rule 17. Where and When Held
Hearings will be held at such places determined by the Board to
best serve the interests of the parties and the Board. Hearings will
be scheduled at the discretion of the Board with due consideration
to the regular order of appeals, Rule 12 requirements, and other
pertinent factors. On request or motion by either party and for good
cause, the Board may, in its discretion, adjust the date of a
hearing.
Rule 18. Notice of Hearings
The parties shall be given at least 15 days notice of the time
and place set for hearings. In scheduling hearings, the Board will
consider the desires of the parties and the requirement for just and
inexpensive determination of appeals without unnecessary delay.
Notices of hearings shall be promptly acknowledged by the parties.
Rule 19. 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 Rule 11.
Rule 20. Hearings: Nature, Examination of Witnesses
(a) Nature of Hearings--Hearings shall be as informal as may be
reasonable and appropriate under the circumstances. The appellant
and the Government may offer such evidence as they deem appropriate
and as would be admissible under the Federal Rules of Evidence or in
the sound discretion of the presiding Administrative Judge or
examiner. Stipulations of fact agreed upon by the parties may be
regarded and used 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 require evidence in addition to
that offered by the parties.
(b) Examination of Witnesses--Witnesses before the Board will be
examined orally under oath or affirmation, unless the presiding
Administrative Judge or examiner shall otherwise order. If the
testimony of a witness is not given under oath, the Board may advise
the witness that his or her statements may be subject to the
provisions of Title 18, United States Code, sections 287 and 1001,
and any other provision 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.
Rule 21. Subpoenas
(a) General--Upon written request of either party filed with the
Recorder, or on his or her own initiative, the Administrative Judge
to whom an appeal is assigned or who is otherwise designated by the
Chairman 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 location convenient for the
witness that is specifically determined by the Board;
(2) testimony at a hearing--the attendance of a witness for the
purpose of taking testimony at a hearing; and
(3) production of books and papers--in addition to (1) or (2)
hereof, the production by the witness at the deposition or hearing
of books and papers (including electronically stored information and
other tangible 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 and production of desired third-party books, papers,
documents, or tangible things whenever possible.
(c) Requests for Subpoena--
(1) A request for 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; or
(ii) 30 days before a scheduled hearing where the attendance of
a witness at a hearing is sought.
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
and papers 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 producing subpoenaed books and
papers. Where circumstances
[[Page 7787]]
require, the Board may act upon such a request at any time after a
copy of the request 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 if appropriate, to
produce specified books and papers at a time and place therein
specified. In issuing a subpoena to a requesting party, the
Administrative Judge shall sign the subpoena and may, in his or her
discretion, 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 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 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
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; however, where the subpoena is issued on
behalf of the Government, money payments need not be tendered in
advance of attendance.
(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 books or
papers 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 United
States 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.
Rule 22. Copies of Papers
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.
Rule 23. Posthearing Briefs
Posthearing briefs may be submitted upon such terms as may be
directed by the presiding Administrative Judge or examiner at the
conclusion of the hearing.
Rule 24. Transcript of Proceedings
Testimony and argument at hearings shall be reported verbatim,
unless the Board otherwise orders. Waiver of transcript may be
especially suitable for hearings under Rule 12.2. Transcripts of the
proceedings shall be supplied to the parties at such rates as may be
established by contract between the Board and the reporter, provided
that ordinary copy of transcript shall be supplied to the appellant
at an amount no greater than the cost of duplication.
Rule 25. Withdrawal of Exhibits
After a decision has become final, the Board may, upon request
and after notice to the other party, in its discretion 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.
REPRESENTATION
Rule 26. The Appellant
An individual appellant may appear before the Board in person; a
corporation by one of its officers; and a partnership or joint
venture by one of its members; or any of these by an attorney at law
duly licensed in any State, commonwealth, territory, the District of
Columbia, or in a foreign country. An attorney representing an
appellant shall file a written notice of appearance with the Board.
Rule 27. The Government
Government counsel may, in accordance with their authority,
represent the interest of the Government before the Board. They
shall file notices of appearance with the Board, and notice thereof
will be given the appellant or the appellant's attorney in the form
specified by the Board from time to time.
DECISIONS
Rule 28. Decisions
(a) Decisions of the Board will be made in writing and
authenticated copies of the decision will be forwarded
simultaneously to both parties. The Rules of the Board and all final
orders and decisions (except those required for good cause to be
held confidential and not cited as precedents) shall be open for
public inspection at the offices of the Board. Decisions of the
Board will be made solely upon the record, as described in Rule 13.
(b) Any monetary award to a contractor by the Board shall be
promptly paid in accordance with the procedures provided by 31
U.S.C. 1304, as amended. To assure prompt payment, the Recorder will
forward the required forms to each party with the decision. If the
parties do not contemplate an appeal or motion for reconsideration,
they will execute the waiver forms which so state. The Government
agency will forward the waiver and other forms with a copy of the
decision to the Department of the Treasury for certification of
payment.
MOTION FOR RECONSIDERATION
Rule 29. Motion for Reconsideration
A motion for reconsideration may be filed by either party. It
shall set forth specifically the grounds relied upon to sustain the
motion. The motion 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.
SUSPENSIONS, DISMISSALS, DEFAULTS, REMANDS
Rule 30. Suspensions; Dismissal Without Prejudice
The Board may suspend the proceedings by agreement of counsel
for settlement discussions, or for good cause shown. 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.
Where the suspension has continued, or may 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 to be
with prejudice.
Rule 31. Dismissal or Default for Failure to Prosecute or Defend
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, in the case of a default by the
appellant, issue an order to show cause why the appeal should not be
dismissed or, in the case of a default by the Government, issue an
order to show cause why the Board should not act thereon pursuant to
Rule 35. If good cause is not shown, the Board may take appropriate
action.
Rule 32. Remand from Court
Whenever any court remands a case to the Board for further
proceedings, each of the parties shall, within 20 days of such
remand, submit a report to the Board recommending procedures to be
followed so as to comply with the court's order. The Board shall
consider the reports and enter special orders governing the handling
of the remanded case. To the extent the court's directive and time
limitations permit, such orders shall conform to these Rules.
TIME, COMPUTATION, AND EXTENSIONS
Rule 33. Time, Computation, and Extensions
(a) Where possible, procedural actions should be taken in less
time than the maximum time allowed. Where appropriate and justified,
however, extensions of time will be granted. All requests for
extensions of time shall be in writing.
(b) In computing any period of time, the day of the event from
which the designated period of time begins to run shall not be
[[Page 7788]]
included, but the last day of the period shall be included unless it
is a Saturday, Sunday, or a Federal legal public holiday, in which
event the period shall run to the end of the next business day.
EX PARTE COMMUNICATIONS
Rule 34. 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 or to ex parte
communications concerning the Board's administrative functions or
procedures.
SANCTIONS
Rule 35. Sanctions
If any party fails or refuses to obey an order issued by the
Board, the Board may then make such order as it considers necessary
to the just and expeditious conduct of the appeal.
EFFECTIVE DATE AND APPLICABILITY
Rule 36. Effective Date
These Rules shall apply--
(a) mandatorily, to all appeals relating to contracts entered
into on or after 1 March 1979, and
(b) at the contractor's election, to appeals relating to earlier
contracts, with respect to claims pending before the contracting
officer on 1 March 1979 or initiated thereafter.
Paul Williams,
Chairman, Armed Services Board of Contract Appeals.
[FR Doc. 2011-3120 Filed 2-10-11; 8:45 am]
BILLING CODE 5001-08-P