31 U.S.C. 732.
(a) This regulation establishes and sets forth the basic policy for the General Accounting Office (GAO) personnel system. Personnel management is a primary responsibility of all who plan, direct, or supervise the work of employees. The objective of personnel management is to contribute to the effective accomplishment of GAO's mission through proper acquisition, development, fair treatment, motivation, compensation and productive utilization f employees.
(b) Nothing in this regulation prohibits or restricts any lawful effort to achieve equal employment opportunity through affirmative action.
(a) Subchapters III and IV of Chapter 7 of Title 31 U.S.C.
(b) Title 5, United States Code.
The General Accounting Office Personnel Appeals Board is established by 31 U.S.C. 751. This board will promulgate regulations providing for employee appeals and establishing its operating procedures.
(a) Merit personnel systems are based on the principle that an organization is best served by motivated, competent, honest and productive workers. In a merit system, employees are hired, promoted, rewarded, and retained on the basis of individual ability and fitness for employment without regard to race, color, sex, religion, age, or national origin. Central to this principle is the protection of employees from discrimination, improper political influence and personal favoritism.
(b) Equal employment opportunity is an integral part of every merit system. Affirmative action plans, designed to provide a work force reflective of the Nation's diversity, must assure that both in operation and results the merit system reflects equal opportunity at every step of the personnel process.
(c) GAO personnel systems shall embody the following merit system principles:
(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
(3) Equal pay should be provided for work of substantially equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
(5) The work force should be used efficiently and effectively.
(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will
(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
(8) Employees should be protected against arbitrary action, personal favoritism, or coercion from partisan political purposes and prohibited from using their official authority or influence for the purpose of interfering with or affecting the results of an election or a nomination for election.
(9) Employees should be protected against reprisal for the lawful disclosure of information which the employee reasonably believes evidences: a violation of any law, rule or regulation; or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Any GAO employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority engage in the following prohibited personnel practices.
(a)
(1) On the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000 e-16);
(2) On the basis of age, as prohibited under section 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
(3) On the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(4) On the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
(5) On the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.
(b)
(1) An evaluation of the work performance, ability, aptitude, or general qualifications of such individual, or
(2) An evaluation of the character, loyalty, or suitability of such individual.
(c)
(d)
(e)
(f)
(g)
(h)
(1) A disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
(i) A violation of any law, rule, or regulation, or
(ii) Mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
(2) A disclosure to the General Counsel of the GAO Personnel Appeals Board of information which the employee or applicant reasonably believes evidences—
(i) A violation of any law, rule, or regulation, or
(ii) Mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(i)
(j)
(k)
(l)
(a) GAO will provide preference, for any individual who would be a preference eligible in the executive branch, in a manner and to an extent consistent with preference eligibles in the executive branch.
(b) Appeals from preference decisions will be heard by the GAO Personnel Appeals Board.
31 U.S.C. 732.
Employees of GAO shall be appointed, promoted and assigned solely on the basis of merit and fitness, but without regard to the provisions of title 5, United States Code, governing appointments and other personnel actions in the competitive service.
The provisions of subchapter II of chapter 33 of title 5, U.S. Code, and Office of Personnel Management implementing regulations apply to General Accounting Office employees.
The provisions of subchapter VI of chapter 33 of title 5, U.S. Code, and Office of Personnel Management implementing regulations apply to General Accounting Office employees.
31 U.S.C. 732.
The provisions of chapter 41, of title 5, United States Code, and Office of Personnel Management implementing regulations apply to General Accounting Office employees.
(a) The GAO shall develop one or more performance appraisal systems which provide for periodic appraisals of job performance of employees; encourages employee participation in establishing performance standards; and uses the results of performance appraisal as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees.
(b) Each performance appraisal system shall provide for—
(1) Establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of job-related criteria (which may include the extent of courtesy demonstrated to the public) for each GAO employee.
(2) As soon as practicable, but not later than October 1, 1981, with respect to initial appraisal periods, and thereafter at the beginning of each following appraisal period, communicating to reach GAO employee the performance standards and the critical elements of the employee's position.
(3) Annually evaluating each employee during the appraisal period on such standards.
(4) Recognizing and rewarding employees whose performance so warrants.
(5) Assisting employees in improving unacceptable performance.
(6) Reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.
GAO may reduce in grade/pay level or remove an employee for unacceptable performance in accordance with the provisions of this section.
(a)
(1) An advance written notice of the proposed action which identifies—
(i) Specific instances of unacceptable performance by the employee on which the proposed action is based; and
(ii) The critical elements of the employee's position involved in each instance of unacceptable performance.
(2) Be represented by an attorney or other representative.
(3) A reasonable time to answer orally and in writing.
(4) A written decision which—
(i) Specifies the instances of unacceptable performance by the employee on which the reduction in grade/pay level or removal is based.
(ii) Unless proposed by the Comptroller General or by a senior manager (e.g., the Deputy Comptroller General, an Assistant Comptroller General, or a Division or Office Director) has been concurred in by an employee who is in a higher position than the employee who proposed the action.
(b)
(1) Shall be made within 30 days after the date of expiration of the notice period, and
(2) In the case of reduction in grade/pay level or removal, may be based only on those instances of unacceptable performance by the employee—
(i) Which occurred during the 1-year period ending on the date of the notice of the proposed action.
(ii) For which the notice and other requirements of this section are complied with.
(c)
(d)
(e)
(1) The reduction to the grade/pay level previously held of a supervisor or manager who has not completed the trial period.
(2) The reduction in grade/pay level or removal of a GAO employee who is serving a trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less.
(3) Employees in the GAO Senior Executive Service.
The provisions of chapter 45 of title 5, United States Code and Office of Personnel Management implementing regulations apply to General Accounting Office employees.
31 U.S.C. 732.
(a)
(1) There be equal pay for work of substantially equal value.
(2) Pay distinctions be maintained in keeping with work and performance distinctions.
(3) Pay rates be comparable with private enterprise pay rates for the same levels of work.
(4) Pay levels be interrelated to the General Schedule.
(b)
(2) Such schedule may provide for rates which do not exceed the maximum rate payable for grade GS-18 of the General Schedule for up to one hundred employees, reduced by the number of employees who are in the GAO Senior Executive Service, other than those in such service pursuant to 31 U.S.C. 733(c).
(c) Pay adjustments. Except as provided in regulations for the GAO Senior Executive Service and the Merit Pay System, the pay of GAO employees shall be adjusted at the same time and to the same extent as rates of basic pay are adjusted for the General Schedule.
(a)
(b)
(c)
(1) For purposes of § 5.2(a).
(2) For purposes of applying any reduction-in-force procedures.
(3) For purposes of determining whether the employee is covered by a merit pay system.
(4) For such other purposes as the Comptroller General may provide by regulation.
(d)
(1) Has a break in service of 1 workday or more;
(2) Is demoted for personal cause or at the employee's request;
(3) Is placed in, or declines, a reasonable offer of, a position the grade of which is equal or higher than the retained grade; or
(4) Elects in writing to have the benefits of this chapter terminate.
(e)
(2) Basic pay at a rate equal to the employee's allowable former rate of basic pay, plus 50 percent of the amount of each increase in the maximum rate of basic pay payable for the employee's position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade.
(f) “
(1) The rate of basic pay payable to the employee immediately before the reduction in pay; or
(2) 150 percent of the maximum rate of basic pay payable for the grade of the employee's position immediately after such reduction in pay.
(g)
(1) Has a break in service of 1 workday or more.
(2) Is entitled by operation of §§ 5.1, 5.2, and 5.3 to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the rate to which the employee is entitled under § 5.2(e); or
(3) Is demoted for personal cause or at the employee's request.
(h)
(1) Obtain and make available to employees receiving benefits under this section, information on vacancies in other Federal agencies.
(2) Take such steps as may be appropriate to assure employees receiving benefits under this section have the opportunity to obtain necessary qualifications for the selection to positions which would minimize the need for the application of this section; and
(3) Establish a program under which employees receiving benefits under this section are given priority in the consideration for or placement in positions which are equal to their retained grade or pay.
(i)
The Comptroller General may promulgate regulations establishing a merit pay system for such employees of the General Accounting Office as the Comptroller General considers appropriate. The merit pay system shall be
(a) It is the purpose of this chapter to provide for—
(1) A merit pay system which shall—
(A) Within available funds, recognize and reward quality performance by varying merit pay adjustments;
(B) Use performance appraisals as the basis for determining merit pay adjustments;
(C) Within available funds, provide for training to improve objectivity and fairness in the evaluation of performance; and
(D) Regulate the costs of merit pay by establishing appropriate control techniques; and
(2) A cash award program which shall provide cash awards for superior accomplishment and special service.
The provisions of chapter 55 of title 5, U.S. Code and the Office of Personnel Management implementing regulations apply to General Accounting Office employees.
The provisions of chapter 57 of title 5, U.S. Code and the implementing regulations for the Executive Branch apply to General Accounting Office employees.
The provisions of chapter 59 of title 5, U.S. Code and the implementing regulations for the Executive Branch apply to General Accounting Office employees.
31 U.S.C. 732.
The provision of subpart E, title 5, United States Code and the Office of Personnel Management implementing regulations regarding “Attendance and Leave” apply to General Accounting Office employees. This includes hours of work, annual leave, sick leave, and other paid leave.
31 U.S.C. 732.
(a)
(b)
(a)
(b)
(c)
(1) By section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(2) By sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
(3) By section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(4) By sections 501 and 505 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794a); or
(5) By any other law prohibiting discrimination in Federal employment on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status or handicapping condition.
(d)
(a) In this section:
(1)
(2)
(3)
(4)
(5)
(6)
(i) An election at which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for presidential elector received votes in the last preceding election at which presidential electors were selected; and
(ii) An election involving a question or issue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or issue of a similar character.
(7)
(8)
(9)
(b) All employees are free to engage in political activity to the widest extent consistent with the restrictions imposed by law and this section. Each employee retains the right to—
(1) Register and vote in any election;
(2) Express his opinion as an individual privately and publicly on political subjects and candidates;
(3) Display a political picture, sticker, badge, or button;
(4) Participate in the nonpartisan activities of a civic, community, social, labor, or professional organization, or of a similar organization;
(5) Be a member of a political party or other political organization and participate in its activities to the extent consistent with law;
(6) Attend a political convention, rally, fund-raising function, or other political gathering;
(7) Sign a political petition as an individual;
(8) Make a financial contribution to a political fund, political party, or organization;
(9) Take an active part, as an independent candidate, or in support of an independent candidate in a partisan election covered by paragraphs (h), (i), and (j) of this section;
(10) Take an active part, as a candidate or in support of a candidate, in a nonpartisan election;
(11) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance or any other question or issue of a similar character;
(12) Serve as an election judge or clerk, or in a similar position to perform nonpartisan duties as prescribed by state or local law; and
(13) Otherwise participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his/her efficiency or integrity as an employee or the neutrality, efficiency, or integrity of the agency.
(c) Paragraph (b) of this section does not authorize an employee to engage in political activity in violation of law, while on duty. The Comptroller General may prohibit or limit the participation of an employee or class of employees in an activity permitted by paragraph (b) of this section, if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests.
(d) An employee may not use his/her official authority or influence for the purpose of interfering with or affecting the result of an election.
(e) An employee may not take an active part in political management or in a political campaign, except as permitted by this section.
(f) Activities prohibited by paragraph (e) of this section include but are not limited to—
(1) Serving as an officer of a political party, a member of a national, state, or local committee of a political party, an officer or member of a committee of a partisan political club, or being a candidate for any of these positions;
(2) Organizing or reorganizing a political party organization or political club;
(3) Directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a partisan political purpose;
(4) Organizing, selling tickets to, promoting, or actively participating in a fund-raising activity of a candidate in a partisan election or of a political party, or political club;
(5) Taking an active part in managing the political campaign of a candidate for public office in a partisan election or a candidate for political party office;
(6) Becoming a candidate for, or campaigning for, an elective public office in a partisan election;
(7) Soliciting votes in support of or in opposition to a candidate for public office in a partisan election or a candidate for political party office;
(8) Acting as recorder, watcher, challenger, or similar officer at the polls on behalf of a political party or a candidate in a partisan election;
(9) Driving voters to the polls on behalf of a political party or a candidate in a partisan election;
(10) Endorsing or opposing a candidate for public office in a partisan election or a candidate for political party office in a political advertisement, a broadcast, campaign, literature, or similar material;
(11) Serving as a delegate, alternate, or proxy to a political party convention;
(12) Addressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political party office;
(13) Initiating or circulating a partisan nominating petition;
(14) Soliciting, collecting, or receiving a contribution at or in the federal workplace from any employee for any political party, political fund, or other partisan recipient;
(15) Paying a contribution at or in the federal workplace to any employee
(16) Soliciting, paying, collecting, or receiving a contribution at or in the federal workplace from any employee for any political party, political fund, or other partisan recipient.
(g) Paragraph (f) of this section does not apply to—
(1) The Comptroller General or the Deputy Comptroller General;
(2) An employee who resides in a municipality or other political subdivision designated under paragraph (i), subject to the conditions of paragraphs (i) and (j) of this section; or
(3) An employee who works on an irregular or occasional basis, on the days that he/she performs no services.
(h) Paragraph (f) of this section does not prohibit activity in political management or in a political campaign by an employee in connection with—
(1) A nonpartisan election, or
(2) Subject to the conditions and limitations established by the Comptroller General, an election held in a municipality or political subdivision designated under paragraph (i) of this section.
(i) For the purpose of paragraph (h)(2) of this section, the Comptroller General may designate a municipality or political subdivision in Maryland or Virginia in the immediate vicinity of the District of Columbia or a municipality in which the majority of voters are employed by the Government of the United States, when the Comptroller General determines that, because of special or unusual circumstances, it is in the domestic interest of employees to participate in local elections. The following municipalities and political subdivisions have been designated:
(j) An employee who resides in a municipality or political subdivision listed in paragraph (i) of this section may
(1) Participation in politics shall be as an independent candidate or on behalf of, or in opposition to, an independent candidate.
(2) Candidacy for, and service in, an elective office shall not result in neglect of or interference with the performance of the duties of the employee or create a conflict, or apparent conflict, of interests.
The provisions of subchapters II, IV, and V of chapter 73 of title 5, United States Code and implementing regulations thereunder continue to apply to this office.
(a)
(b)
(1) An advance written notice stating the specific reasons for the proposed action;
(2) A reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
(3) Be represented by an attorney or other representative; and
(4) A written decision and the specific reasons therefore at the earliest practicable date.
(c)
(d)
(2) A suspension in the interest of national security.
(a)
(b)
(1) At least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action,
(2) A reasonable time to answer orally and in writing and to furnish affidavits and other documents in support of the answer.
(3) Be represented by an attorney or other representative; and
(4) A written decision and the specific reasons therefor at the earliest practicable date.
(c)
(d)
(e)
(1) Employees who are serving a trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less.
(2) A suspension or removal of an employee in the interests of national security.
(3) A reduction in force.
(4) The reduction in grade of a supervisor or manager who has not completed the probationary period.
(5) A reduction in grade or removal for unacceptable performance under part 4.
(6) An action ordered by the GAO Personnel Appeals Board.
The personnel system shall provide procedures for the processing of complaints and grievances which are not otherwise provided for.
The provisions of chapter 79 of title 5, United States Code, and the Office of Personnel Management implementing regulations apply to General Accounting Office employees.
31 U.S.C. 732.
The provisions of subpart G, title 5, United States Code and implementing regulations for the Executive Branch covering compensation for work injuries, retirement, unemployment compensation, life insurance, and health insurance apply to General Accounting Office employees.
31 U.S.C. 733.
(a) The Comptroller General may promulgate regulations establishing a General Accounting Office Senior Executive Service which meets the requirements set forth in section 3131 of title 5, United States Code, which provides—
The Senior Executive Service shall be administered so as to—
(1) Provide for a compensation system, including salaries, benefits, and incentives, and for other conditions of employment, designed to attract and retain highly competent senior executives;
(2) Ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work or service, cost efficiency, and timeliness of performance and success in meeting equal employment opportunity goals);
(3) Assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under them;
(4) Recognize exceptional accomplishment;
(5) Enable the head of an agency to reassign senior executives to best accomplish the agency's mission;
(6) Provide for severance pay, early retirement, and placement assistance for senior executives who are removed from the Senior Executive Service for nondisciplinary reasons;
(7) Protect senior executives from arbitrary or capricious actions;
(8) Provide for program continuity in the management of GAO programs;
(9) Maintain a merit personnel system free of prohibited personnel practices;
(10) Ensure accountability for honest, economical, and efficient Government;
(11) Ensure compliance with all applicable personnel laws, rules, and regulations, including those related to equal employment opportunity, political activity, and conflicts of interest;
(12) Provide for the initial and continuing systematic development of highly competent senior executives;
(13) Provide for an executive system which is guided by the public interest and free from improper political interference; and
(14) Appoint career executives to fill Senior Executive Service positions to the extent practicable, consistent with the effective and efficient implementation of agency policies and responsibilities.
(b) Requirements for positions included in the GAO Senior Executive System. The GAO Senior Executive Service may include—
(1) The 100 positions authorized by 31 U.S.C. 732(c)(4);
(2) The position of the General Counsel authorized by 31 U.S.C. 731(c);
(3) The 5 positions authorized by 31 U.S.C. 731(d); and
(4) The 10 positions authorized by 31 U.S.C. 731(e)(2).
31 U.S.C. 711.
Each person having a claim or other rights assertable in the General Accounting Office may pursue such claim or right individually or through an attorney or other representative.
Any person who is a member in good standing of the bar of the Supreme Court of the United States or of the highest court of any State, territory, or the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law, may represent others before the General Accounting Office.
In the prosecution of claims involving payments to be made by the United States, a proper power of attorney is required before an attorney or other representative may be recognized. A power of attorney from the principal may also be requested in other cases.
When an attorney acting in a representative capacity appears in person or signs a document submitted to the General Accounting Office in connection with a matter other than one involving a payment to be made by the United States, his personal appearance or signature shall constitute a representation that he is authorized and qualified to represent the particular party in whose behalf he acts. In the case of representatives other than attorneys, a simple written declaration from the principal will be accepted as evidence of the authority of the representative to act on behalf of the principal.
Prior to the conclusion of action by the General Accounting Office on a matter in which a principal is represented by another person whose authority to act is established under either § 11.3 or § 11.4, the principal may revoke the authority of his representative. Such revocation is not effective unless it is in writing and signed by the principal and until the written revocation is received by the General Accounting Office. Upon notification of the death of the principal during the pendency of any matter involving representation of the principal by an attorney or other party, the General Accounting Office will consider the representative's authority to have been automatically revoked.
31 U.S.C. 3551-3556.
(a)
(b)
(c)
(d)
(e)
(f)
(g) A document is
(a) An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General Counsel, General Accounting Office, 441 G Street, NW., Washington, DC 20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, address, and telephone and facsimile numbers of the protester,
(2) Be signed by the protester or its representative,
(3) Identify the contracting agency and the solicitation and/or contract number,
(4) Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents,
(5) Set forth all information establishing that the protester is an interested party for the purpose of filing a protest,
(6) Set forth all information establishing the timeliness of the protest,
(7) Specifically request a ruling by the Comptroller General of the United States, and
(8) State the form of relief requested.
(d) In addition, a protest filed with GAO may:
(1) Request a protective order,
(2) Request specific documents, explaining the relevancy of the documents to the protest grounds, and
(3) Request a hearing, explaining the reasons that a hearing is needed to resolve the protest.
(e) The protester shall furnish a complete copy of the protest, including all attachments, to the individual or location designated by the contracting agency in the solicitation for receipt of protests, or if there is no designation, to the contracting officer. The designated individual or location (or, if applicable, the contracting officer) must receive a complete copy of the protest and all attachments not later than 1 day after the protest is filed with GAO. The protest document must indicate that a complete copy of the protest and all attachments are being furnished within 1 day to the appropriate individual or location.
(f) No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged, and should clearly state legally sufficient grounds of protest. Protests of different procurements should be separately filed.
(g) Unless precluded by law, GAO will not withhold material submitted by a protester from any party outside the government. If the protester believes that the protest contains information which should be withheld, a statement advising of this fact must be on the front page of the submission. This information must be identified wherever it appears, and the protester must file a redacted copy of the protest which omits the information with GAO and the agency within 1 day after the filing of its protest with GAO.
(h) Parties who intend to file documents containing classified information should notify GAO in advance to obtain advice regarding procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of the requirements of this section, except for the items in paragraph (d) of this section. In addition, a protest shall not be dismissed for failure to comply with paragraph (e) of this section where the contracting officer has actual knowledge of the basis of protest, or the agency, in the preparation of its report, was not prejudiced by the protester's noncompliance.
(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation.
(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing
(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO filed within 10 days of actual or constructive knowledge of initial adverse agency action will be considered, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (a)(2) of this section, unless the contracting agency imposes a more stringent time for filing, in which case the agency's time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to a contracting agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.
(b) Protests untimely on their face may be dismissed. A protester shall include in its protest all information establishing the timeliness of the protest; a protester will not be permitted to introduce for the first time in a request for reconsideration information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.
(a) GAO shall notify the contracting agency by telephone within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly send a written confirmation to the contracting agency and an acknowledgment to the protester. The contracting agency shall immediately give notice of the protest to the contractor if award has been made or, if no award has been made, to all bidders or offerors who appear to have a reasonable prospect of receiving an award. The contracting agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO. All parties shall furnish copies of all protest communications to the contracting agency and to other participating parties. All protest communications shall be sent by means reasonably calculated to effect expeditious delivery.
(b) A contracting agency or intervenor which believes that the protest or specific protest allegations should be dismissed before submission of an agency report should file a request for dismissal as soon as practicable.
(c) The contracting agency shall file a report on the protest with GAO within 30 days after the telephone notice of the protest from GAO. The report provided to the parties need not contain documents which the agency has previously furnished or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall provide to all parties and GAO a list of those documents, or portions of documents, which the agency has released to the protester or intends to produce in its report, and of the documents which the agency intends to withhold from the protester and the reasons for the proposed withholding. Any objection to the scope of the agency's proposed disclosure or nondisclosure of documents must be filed with GAO and the other parties within 2 days of receipt of this list.
(d) The report shall include the contracting officer's statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate
(e) Subject to any protective order issued in the protest pursuant to § 21.4, the contracting agency shall simultaneously furnish a copy of the report to the protester and any intervenors. The copy of the report filed with GAO shall list the parties who have been furnished copies of the report. Where a protester does not have counsel admitted to a protective order and documents are withheld from the protester in accordance with this part, the agency shall provide documents adequate to inform the protester of the basis of the agency's position.
(f) The contracting agency may request an extension of time for the submission of the list of documents to be provided by the agency pursuant to § 21.3(c) or for the submission of the agency report. Extensions will be granted on a case-by-case basis.
(g) The protester may request additional documents after receipt of the agency report when their existence or relevance first becomes evident. Except when authorized by GAO, any request for additional documents must be filed with GAO and the contracting agency not later than 2 days after their existence or relevance is known or should have been known, whichever is earlier. The contracting agency shall provide the requested documents, or portions of documents, and a list to GAO and the other parties within 2 days or explain why it is not required to produce the documents.
(h) Upon the request of a party, GAO will decide whether the contracting agency must provide any withheld documents, or portions of documents, and whether this should be done under a protective order. When withheld documents are provided, the protester's comments on the agency report shall be filed within the original comment filing period unless GAO determines that an extension is appropriate.
(i) Comments on the agency report shall be filed with GAO within 10 days after receipt of the report, with a copy provided to the contracting agency and other participating parties. The protest shall be dismissed unless the protester files comments or a written statement requesting that the case be decided on the existing record, or requests an extension of time within the 10-day period. Unless otherwise advised by the protester, GAO will assume the protester received the agency report by the due date specified in the acknowledgment of protest furnished by GAO. Upon a showing that the specific circumstances of a protest require a period longer than 10 days for the submission of comments, GAO will set a new date for the submission of comments. Extensions will be granted on a case-by-case basis.
(j) GAO may request or permit the submission of additional statements by the parties and by other parties not participating in the protest as may be necessary for the fair resolution of the protest. The agency and other parties shall not submit any additional statements unless the statements are specifically requested by GAO or submitted after permission has been granted by GAO.
(a) At the request of a party or on its own initiative, GAO may issue a protective order controlling the treatment of protected information. Such information may include proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms. The protective order shall establish procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. Because a protective order serves to facilitate the pursuit of a protest by a protester through counsel, it is the responsibility of protester's counsel to request that a protective order be issued and to submit timely applications for admission under that order.
(b) If no protective order has been issued, the agency may withhold from the parties those portions of its report which would ordinarily be subject to a protective order. GAO will review in
(c) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the order by submitting an application to GAO, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. Objections to an applicant's admission shall be raised within 2 days after receipt of the application, although GAO may consider objections raised after that time.
(d) Any violation of the terms of a protective order may result in the imposition of such sanctions as GAO deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the individual's practice before GAO.
GAO shall summarily dismiss a protest or specific protest allegations that do not state a valid basis for protest, are untimely (unless considered pursuant to § 21.2(c)), or are not properly before GAO. A protest or specific protest allegations may be dismissed any time sufficient information is obtained by GAO warranting dismissal. Where an entire protest is dismissed, no agency report shall be filed; where specific protest allegations are dismissed, an agency report shall be filed on the remaining allegations. Among the protest bases which shall be dismissed are the following:
(a)
(b)
(2)
(3)
(c)
(d)
(e) Protests not filed either in GAO or the contracting agency within the time limits set forth in § 21.2.
(f) Protests which lack a detailed statement of the legal and factual grounds of protest as required by § 21.1(c)(4), or which fail to clearly state legally sufficient grounds of protest as required by § 21.1(f).
(g)
(h)
Where a protest is filed with GAO, the contracting agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553 (c) and (d).
(a) At the request of a party or on its own initiative, GAO may conduct a hearing in connection with a protest. The request shall set forth the reasons why a hearing is needed to resolve the protest.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to discuss and resolve matters such as the procedures to be followed, the issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable after receipt by the parties of the agency report and relevant documents. Although hearings ordinarily will be conducted at GAO in Washington, DC, hearings may, at the discretion of GAO, be conducted at other locations, or by telephone.
(d) All parties participating in the protest shall be invited to attend the hearing. Others may be permitted to attend as observers and may participate as allowed by GAO's hearing official. In order to prevent the improper disclosure of protected information at the hearing, GAO's hearing official may restrict attendance during all or part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a recording and/or transcript is made, any party may obtain copies at its own expense.
(f) If a witness whose attendance has been requested by GAO fails to attend the hearing or fails to answer a relevant question, GAO may draw an inference unfavorable to the party for whom the witness would have testified.
(g) If a hearing is held, no separate comments on the agency report should be submitted unless specifically requested by GAO. Each party shall file with GAO, within 5 days after the hearing was held or as specified by GAO, a single document expressing any comments on both the hearing and agency report, with copies furnished to the other parties. By the due date, if the protester has not filed comments or a written statement requesting that the case be decided on the existing record, GAO shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all testimony and admissions in the hearing record that they consider relevant, providing specific citations to the testimony and admissions referenced.
(a) If GAO determines that a solicitation, cancellation of a solicitation, termination of a contract, proposed award, or award does not comply with statute or regulation, it shall recommend that the contracting agency implement any combination of the following remedies:
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall, except as specified in paragraph (c) of this section, consider all circumstances surrounding the procurement or proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the cost to the government, the urgency of the procurement, and the impact of the recommendation(s) on the contracting agency's mission.
(c) If the head of the procuring activity determines that performance of the contract notwithstanding a pending protest is in the government's best interest, GAO shall make its recommendation(s) under paragraph (a) of this section without regard to any cost or disruption from terminating, recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award does not comply with statute or regulation, it may recommend that the contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid within 15 days after being advised that the contracting agency has decided to take corrective action. The protester shall furnish a copy of its request to the contracting agency, which may file a response within 15 days after receipt of the request, with a copy furnished to the protester.
(f)(1) If GAO recommends that the contracting agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of GAO's recommendation that the agency pay the protester its costs. Failure to file the claim within that time may result in forfeiture of the protester's right to recover its costs.
(2) The contracting agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed. If the protester and the contracting agency cannot reach agreement within a reasonable time, GAO may, upon request of the protester, recommend the amount of costs the agency should pay in accordance with 31 U.S.C. 3554(c). In such cases, GAO may also recommend that the contracting agency pay the protester the costs of pursuing the claim for costs before GAO.
(3) The contracting agency shall notify GAO within 60 days after GAO recommends the amount of costs the agency should pay the protester of the action taken by the agency in response to the recommendation.
(a) GAO shall issue a decision on a protest within 100 days after it is filed.
(b) In protests where GAO uses the express option procedures in § 21.10, GAO shall issue a decision on a protest within 65 days after it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely supplemental protest adding one or more new grounds to an existing protest, or a timely amended protest, within the time limit established in paragraph (a) of this section for decision on the initial protest. If a supplemental or an amended protest cannot be resolved within that time limit, GAO may resolve the supplemental or amended protest using the express option procedures in § 21.10.
(a) At the request of a party or on its own initiative, GAO may decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and received in GAO not later than 5 days after the protest or supplemental/amended protest is filed. GAO will promptly notify the parties whether the case will be handled using the express option.
(d) When the express option is used, the following schedule applies instead of those deadlines in § 21.3 and § 21.7:
(1) The contracting agency shall file a complete report with GAO and the parties within 20 days after it receives notice from GAO that the express option will be used.
(2) Comments on the agency report shall be filed with GAO and the other parties within 5 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report under paragraph (d)(2) of this section should be submitted unless specifically requested by GAO. Consolidated comments on the agency report and hearing shall be filed within 5 days after the hearing was held or as specified by GAO.
(4) Where circumstances demonstrate that a case is no longer suitable for resolution using the express option, GAO shall establish a new schedule for submissions by the parties.
(e) GAO may use flexible alternative procedures to promptly and fairly resolve a protest, including establishing an accelerated schedule and/or issuing a summary decision.
(f) GAO may conduct status and other conferences by telephone or in person with all parties participating in a protest to promote the expeditious development and resolution of the protest.
(a) A protester must immediately advise GAO of any court proceeding which involves the subject matter of a pending protest and must file with GAO copies of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the subject of litigation before a court of competent jurisdiction, or where the matter involved has been decided on the merits by a court of competent jurisdiction. GAO may, at the request of a court, issue an advisory opinion on a bid protest issue that is before the court. In these cases, unless a different schedule is established, the times provided in this part for filing the agency report (§ 21.3(c)), filing comments on the report (§ 21.3(i)), holding a hearing and filing comments (§ 21.7), and issuing a decision (§ 21.9) shall apply.
(a) Unless it contains protected information, a copy of a decision shall be provided to the protester, any intervenors, the head of the contracting activity responsible for the protested procurement, and the senior procurement executive of each Federal agency involved; a copy shall also be made available to the public. A copy of a decision containing protected information shall be provided only to the contracting agency and to individuals admitted to any protective order issued in the protest. A public version omitting the protected information shall be prepared wherever possible.
(b) Decisions are available from GAO by electronic means.
(a) GAO will consider protests concerning awards of subcontracts by or for a Federal agency, sales by a Federal agency, or procurements by agencies of the government other than Federal agencies as defined in § 21.0(c) if the agency involved has agreed in writing to have protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory protests except for the provision of § 21.8(d) pertaining to recommendations for the payment of costs. The provision for the withholding of award and the suspension of contract performance, 31 U.S.C. 3553(c) and (d), also does not apply to nonstatutory protests.
(a) The protester, any intervenor, and any Federal agency involved in the protest may request reconsideration of a bid protest decision. GAO will not consider a request for reconsideration that does not contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall be filed, with copies to the parties who participated in the protest, not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that fails to state a valid basis for reconsideration or is untimely. The filing of a request for reconsideration does not require the withholding of award and the suspension of contract performance under 31 U.S.C. 3553 (c) and (d).
31 U.S.C. 783.
These rules and regulations, and the laws of the United States and the District of Columbia, apply to the General Accounting Office (GAO) Building and its grounds, 441 G Street NW., in the District of Columbia, and to all persons while in the building or while entering or leaving it.
Packages, briefcases, and other containers as well as vehicles and their contents are subject to inspection while in or when being brought into, or when being removed from the GAO Building. A full search of a person may accompany an arrest or apprehension.
A person may be admitted to the GAO Building after presentation of personal identification to conduct lawful business with GAO, its employees, or other tenants of the GAO Building and for any other purposes authorized by the Comptroller General or his designee. During normal working hours, the GAO Building shall be open to the public unless specific circumstances require it to be closed to the public to ensure the orderly conduct of government business. Outside of normal working hours, the GAO Building shall be closed to the public unless the Comptroller General or his designee has approved the after-normal-working-hours use of the Building or portions thereof. When the Building, or a portion thereof, is closed to the public, admission will be restricted to authorized persons who shall register upon entry and exit, and shall, when requested, display government or other identifying credentials to the guards, security staff, or other authorized individuals. Failure to comply with such a request is a violation of these regulations.
The improper disposal of rubbish in the GAO Building or on its grounds, the willful destruction of or damage to the GAO Building or to its grounds or fixtures, the theft of property, the creation of any hazard to persons or things in the GAO Building or on its grounds, the throwing of articles of
Persons in the GAO Building or on its grounds shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the direction of the guards, security staff, or other authorized individuals.
Loitering, disorderly conduct, or other conduct in the GAO Building or on its grounds which creates loud or unusual noise or a nuisance; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, escalators, stairways, or parking areas; which otherwise impedes or disrupts the performance of official duties by government employees; or which prevents the general public from obtaining the administrative services provided in the GAO Building in a timely manner, is prohibited.
Participating in games for money or other personal property or operating gambling devices, conducting a lottery or pool, or selling or purchasing numbers tickets in the GAO Building or on its grounds is prohibited. This prohibition shall not apply to the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a law of the District of Columbia and conducted by the District of Columbia and authorized by section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107,
Operating a motor vehicle while in the GAO Building, its grounds or on its entry ramps by a person under the influence of alcoholic beverages, narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines is prohibited. It is prohibited for anyone to enter or be in the GAO Building or to be on its grounds while under the influence of, or using, possessing, selling or distributing any narcotic drug, hallucinogen, marijuana, barbiturate, or amphetamine. This prohibition shall not apply in cases where the drug is being used as prescribed for a patient by a licensed physician. It is prohibited for anyone to enter the GAO Building or its grounds, or be on the premises while under the influence of alcoholic beverages. The use of alcoholic beverages in the GAO Building is prohibited except when specifically authorized by the Comptroller General or his designee for a particular event. The Comptroller General or his designee shall be advised of such events and shall inform the guards and other security staff of the time and precise locations of these events.
Soliciting alms, commercial or political soliciting, and vending of all kinds, displaying or distributing commercial advertising, or collecting private debts in the GAO Building is prohibited. This rule does not apply to:
(a) National or local drives for funds for welfare, health, or other purposes as authorized by the “Manual on Fund Raising Within the Federal Service,” issued by the U.S. Office of Personnel Management;
(b) Concessions or personal notices posted by employees on authorized bulletin boards;
(c) Solicitation of labor organization membership or dues authorized by occupant agencies under the Civil Service Reform Act of 1978 (Pub. L. 95-454) or the General Accounting Office Personnel Act of 1980, Public Law 96-191 (31 U.S.C. sec. 732(e));
(d) Occupants of space leased for commercial purposes, or made available for cultural, educational, or recreational use under section 1 of Public Law 100-545, October 28, 1988, 102 Stat. 2727, 2728 (31 U.S.C. 782).
Posting or affixing materials, such as pamphlets, handbills or flyers, on bulletin boards or elsewhere in the GAO Building or on its grounds is prohibited, except as authorized by these
Photographs may be taken in the GAO Building only with the approval or authorization of the Comptroller General or his designee.
Dogs and other animals, except seeing eye dogs or other guide dogs, shall not be brought into the GAO Building or on its grounds for other than official purposes.
(a) Drivers of all vehicles entering, leaving or while on GAO property or in the GAO Building shall drive in a careful and safe manner at all times and shall comply with all posted traffic signs and with the signals and directions of the guards, security staff, or other authorized individuals;
(b) The blocking of entrances, driveways, walks, loading platforms or fire hydrants on GAO property is prohibited; and
(c) Except in emergencies, parking on GAO property or in the GAO Building is not allowed without a permit. Parking in unauthorized locations or in locations reserved for other persons, or parking contrary to the direction of posted signs or instructions of guards is prohibited. Vehicles parked in violation of posted restrictions or warning signs shall be subject to removal at the owners’ risk and expense.
(d) The Comptroller General or his designee may supplement this paragraph from time to time by issuing and posting such specific traffic directives as may be required. When issued and posted, such directives shall have the same force and effect as if made a part hereof. Proof that a motor vehicle was parked in violation of these regulations or directives may be taken as prima facie evidence that the registered owner was responsible for the violation.
No person while entering or in the GAO Building or on its grounds shall carry or possess firearms, other dangerous or deadly weapons, explosives or items intended to be used to fabricate an explosive or incendiary device, either openly or concealed, except for official purposes.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, creed, sex, color, or national origin in furnishing or by refusing to furnish the use of any facility of a public nature, including all services, privileges, accommodations and activities provided in the GAO Building.
Whoever shall be found guilty of violating any rule or regulation governing the GAO Building is subject to a fine of not more than $500, or imprisonment for not more than 6 months, or both. Nothing in these rules and regulations shall be construed to abrogate any other Federal laws applicable to the GAO Building.
31 U.S.C. 753.
The General Accounting Office Personnel Appeals Board, hereinafter the Board, is composed of five members appointed by the Comptroller General, in accordance with the provisions of 31 U.S.C. 751. For purposes of the regulations in this part and 4 CFR parts 28 and 29, a simple majority of the Board shall constitute a quorum and a majority of a quorum may act for the Board. The Board may designate a panel of its members or an individual Board member to take any action within the scope of the Board's authority, subject to later reconsideration by the Board.
The members of the Board shall select from among its membership a Chairperson, hereinafter the Chair, who shall serve as the chief executive and administrative officer of the Board. The Members of the Board may select from among its membership a Vice Chairperson, hereinafter the Vice Chair, who shall serve in the absence of the Chair and in other matters delegated by the Chair.
The Chair shall select an individual and the Comptroller General shall appoint the individual selected by the Chair to serve as the General Counsel of the Board. The General Counsel, at the request of the Board, shall investigate matters under the jurisdiction of the Board, and otherwise assist the Board in carrying out its functions, unless to do so would create a conflict of interest for the General Counsel.
31 U.S.C. 753.
(a) The regulations in this part implement the Board's authority with respect to employment practices within the General Accounting Office (GAO), pursuant to the General Accounting Office Personnel Act of 1980, 31 U.S.C. 751-755. Regulations implementing the Board's authority with respect to employment practices within the Architect of the Capitol, pursuant to the Architect of the Capitol Human Resources Act, Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994), appear in 4 CFR part 29.
(b) The purpose of the rules in this part is to establish the procedures to be followed:
(1) By the GAO, in its dealings with the Board;
(2) By employees of the GAO or applicants for employment with the GAO, or by groups or organizations claiming to be affected adversely by the operations of the GAO personnel system;
(3) By employees or organizations petitioning for protection of rights or extension of benefits granted to them under Subchapters III and IV of Chapter 7 of Title 31, U.S.C.; and
(4) By the Board, in carrying out its responsibilities under Subchapters III and IV of Chapter 7 of Title 31, U.S.C.
(c) The scope of the Board's operations encompasses the investigation and, where necessary, adjudication of cases arising under 31 U.S.C. 753. In addition, the Board has authority for oversight of the equal employment opportunity program at GAO. This includes the review of policies and evaluation of operations as they relate to EEO objectives and, where necessary, the ordering of corrective action for violation of or inconsistencies with equal employment opportunity laws.
(d) In considering any procedural matter not specifically addressed in these rules, the Board will be guided, but not bound, by the Federal Rules of Civil Procedure.
(a) The Board has jurisdiction to hear and decide the following actions brought by the General Counsel:
(1) Proceedings in which the General Counsel seeks to stay a personnel action based upon an alleged prohibited personnel practice that has occurred or is about to occur;
(2) Proceedings in which the General Counsel seeks corrective action for an alleged prohibited personnel practice; and
(3) Proceedings in which the General Counsel seeks discipline for a GAO employee who has allegedly committed a prohibited personnel practice or who has engaged in prohibited political activity.
(b) The Board has jurisdiction to hear any action brought by any person or group of persons in the following subject areas:
(1) An officer or employee appeal involving a removal, suspension for more than 14 days, reduction in grade or pay, or furlough of not more than 30 days;
(2) A prohibited personnel practice under 31 U.S.C. 732(b)(2);
(3) A decision of an appropriate unit of employees for collective bargaining;
(4) An election or certification of a collective bargaining representative;
(5) A matter appealable to the Board under the labor-management relations program under 31 U.S.C. 732(e), including an unfair labor practice under 31 U.S.C. 732(e)(1);
(6) An action involving discrimination prohibited under 31 U.S.C. 732(f)(1); and
(7) An issue about GAO personnel which the Comptroller General by regulation decides the Board shall resolve.
(c)
(1) Matters involving discrimination, performance-based reduction in grade or removal, or adverse action. If the negotiated grievance procedure permits the employee to grieve matters involving prohibited discrimination (as defined in § 28.95), performance-based reduction in grade or removal (as described in 5 U.S.C. 4303) or an adverse action (as described in 5 U.S.C. 7512), then the employee may elect to raise the matter either under the negotiated grievance procedure or under the Board's procedures, but not both. The employee will be deemed to have elected the Board's procedures if the employee files a timely charge with the Board's General Counsel or files a timely written EEO complaint with GAO before filing a timely written grievance.
(2) Other matters. If the negotiated grievance procedure permits the employee to grieve any matters which would otherwise be appealable to the Board, other than those listed in paragraph (c)(1) of this section, then those matters may only be raised under the negotiated grievance procedure and not before the Board.
(3) Board review of final decisions from the negotiated grievance procedure involving discrimination. If an employee elects to pursue a matter involving prohibited discrimination (as defined in § 28.95) through the negotiated grievance procedure, the employee may ask the Board to review the final decision of the negotiated grievance procedure as it relates to the issue of discrimination. A petition seeking such review shall be filed with
In this part—
(a) To compute the number of days for filing under these rules, the first day shall be the day after the event from which the time period begins to run and the last day for filing shall be included in the computation. When the last day falls on a Saturday, Sunday or federal government holiday, then the filing deadline will be the next regular federal government workday.
(b) Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served by mail, five (5) days shall be added to the prescribed period. Only two (2) days shall be added when a document is served by
(c) Except as otherwise provided by law, whenever an act is required or allowed to be done at or within a specified period of time, the time fixed or the period of time prescribed may for good cause be extended or shortened by the Board or administrative judge.
(a) Persons may seek informal advice on all aspects of the Board's procedures by contacting the Board's Solicitor, the Board's General Counsel or the Clerk of the Board.
(b) Informal procedural advice will be supplied within the limits of available time and staff.
(a) The procedures described in this subpart are generally applicable to the processing of all matters presented for consideration by the Board. Where special procedures are to be followed, they will be prescribed in those subsequent subparts to which they are particularly applicable.
(b) No pleading, motion or supporting memorandum filed with the Board shall exceed 60 pages, exclusive of attachments. The Board or the administrative judge may waive this limitation for good cause shown. Pleadings, motions and supporting memoranda, and attachments thereto, shall be on standard letter-size paper (8
(a) The GAO shall be responsible for ensuring that employees are routinely advised of their appeal rights to the Board and that employees who are the object of an adverse or performance-based action are, at the time of the action, adequately advised of their appeal rights to the Board. The notice in adverse or performance-based actions must be accompanied by proof of service.
(b) The notice in adverse or performance-based actions shall include:
(1) Time limits for appealing to the Board and the address of the Board;
(2) A copy of the Board's regulations; and
(3) Notice of the right to representation, and the availability of a hearing before the Board where factual issues are in dispute.
(a)
(2) Non-EEO class actions. One or more persons may file a charge as representative of a class in any matter within the Board's jurisdiction. See § 28.97 for EEO class actions.
(3) Unfair labor practice proceedings. Any person may file a charge alleging that the GAO or a labor organization has engaged or is engaging in an unfair labor practice. (The types of allegations which may be included in an unfair labor practice charge are discussed at § 28.121(a)).
(b)
(2) Charges relating to other personnel actions must be filed within 30 days after the effective date of the action or 30 days after the charging party knew or should have known of the action.
(3) Charges which include an allegation of prohibited discrimination shall be filed in accordance with the special rules set forth in § 28.98.
(4) Charges relating to continuing violations may be filed at any time.
(c)
(1)
(2)
(d)
(1) Name of the charging party or a clear description of the group or class of persons on whose behalf the charge is being filed;
(2) The names and titles of persons, if any, responsible for actions the charging party wishes to have the General Counsel review;
(3) The actions complained about, including dates, reasons given, and internal appeals taken;
(4) The charging party's reasons for believing the actions to be improper;
(5) Remedies sought by the charging party;
(6) Name and address of the representative, if any, who will act for the charging party in any further stages of the matter; and
(7) Signature of the charging party or the charging party's representative.
(e) The General Counsel shall not represent a petitioner when the only issue is attorney fees. When attorney fees are the only issue raised in a charge to the General Counsel, the General Counsel shall transmit the charge to the Board for processing under §§ 28.18 through 28.88 as a petition for review.
(a) The General Counsel shall serve on the GAO or other charged party a copy of the charge, investigate the matters raised in a charge, refine the issues where appropriate, and attempt to settle all matters at issue.
(b) The General Counsel's investigation may include gathering information from the GAO or other charged party, and interviewing and taking statements from witnesses. Employees of GAO who are requested by the General Counsel to participate in any investigation under these Rules shall be on official time.
(c) Following the investigation, the General Counsel shall provide the charging party with a Right to Appeal Letter. Accompanying this letter will be a statement of the General Counsel advising the charging party of the results of the investigation. This statement of the General Counsel is not subject to discovery and may not be introduced into evidence before the Board.
(d) If, following the investigation, the General Counsel determines that there are not reasonable grounds to believe that the charging party's rights under Subchapters III and IV of Chapter 7 of Title 31, United States Code, have been violated, then the General Counsel shall not represent the charging party. If the General Counsel determines that there are reasonable grounds to believe that the charging party's rights under Subchapters III and IV of Chapter 7 of Title 31, United States Code, have been violated, then the General Counsel shall represent the charging party, unless the charging party elects not to be represented by the General Counsel. Any charging party may represent him or herself or obtain other representation.
(e) When the charging party elects to be represented by the General Counsel, the General Counsel is to direct the representation in the charging party's case. The charging party may also retain a private representative in such cases. However, the role of a private representative is limited to assisting the General Counsel as the General Counsel determines to be appropriate.
(f) When the General Counsel is not participating in a case, the General Counsel may request permission to intervene with regard to any issue in which the General Counsel finds a significant public interest with respect to the preservation of the merit system.
(g) If 180 days have elapsed since the filing of the charge, and the General Counsel has not completed the investigation and issued a Right to Appeal Letter, the charging party may bring his or her case directly to the Board by filing a petition for review in accordance with § 28.18. If a charging party exercises this option to file a petition for review with the Board without waiting for the completion of the investigation, the General Counsel shall not represent the charging party in proceedings before the Board. The charging party may represent him- or herself or obtain other representation. The General
In the event of a Reduction in Force resulting in an individual's separation from employment, an aggrieved employee may choose to file an appeal directly with the Personnel Appeals Board, without first filing the charge with the PAB's Office of General Counsel pursuant to § 28.11. This option is available to individuals raising discrimination issues in connection with a RIF action. Pursuant to § 28.98, such individuals need not file a complaint with GAO's Civil Rights Office before pursuing a RIF challenge alleging discrimination, either by filing directly with the PAB or by filing a charge with the PAB's Office of General Counsel.
The rules in this subpart apply to actions brought by any person, except as otherwise provided in § 28.17 (concerning internal appeals of Board employees). These rules also apply to actions brought by the General Counsel, except as otherwise provided in subpart G (concerning corrective action, disciplinary and stay proceedings). It is the policy of the Board that these rules shall be applied in a manner which expedites the processing of each case, but with due regard to the rights of all parties.
(a) The Board may revoke or amend these regulations by publishing proposed changes within GAO and providing for a comment period of not less than 30 days. Following the comment period, any changes to the rules are final once they are published in the
(b) An administrative judge or the Board may waive a Board regulation in an individual case for good cause shown if application of the regulation is not required by statute.
(a) The provisions of the GAO Personnel Act, its implementing regulations, and the Board's procedural rules apply in the same manner to employees of the Board as they do to other GAO employees, with the following exceptions.
(1) The General Counsel serves at the pleasure of the Chair. The General Counsel may not bring any complaint or charge concerning his or her own employment except to allege that he or she has been the victim of prohibited discrimination or a prohibited personnel practice as defined in 31 U.S.C. 732 (b)(2) or (f)(1).
(2) When an employee of the Board believes that he or she has been denied his or her right to equal employment opportunity, the employee shall consult either with the Solicitor or with the General Counsel and seek advice on filing an EEO complaint. If the matter cannot be resolved within 10 days, the Solicitor or General Counsel shall notify the employee of his or her right to file an EEO complaint. The employee shall have 20 days from service of this notice to file an EEO complaint with the General Counsel. Upon receipt of an EEO complaint, the General Counsel shall arrange for processing in accordance with paragraph (b) of this section. If the EEO allegations involve challenge to a RIF-based separation, the employee may choose to expedite the procedures by filing a charge directly with the Board.
(3) When an employee of the Board wishes to raise any other issue that would be subject to the Board's jurisdiction, the employee shall file a charge with the General Counsel and the General Counsel shall arrange for processing in accordance with paragraph (b) of this section. If the challenged action is a RIF-based separation from employment, the employee may
(b) The responsibilities and functions of the Board's General Counsel will be assumed by an attorney who is not a current or former employee of the Board or the GAO. The services of that attorney, who shall be knowledgeable in federal personnel matters, will be paid for by the Board. The attorney will be selected by an impartial body as described below.
(1) If agreed to by the Special Counsel of the Merit Systems Protection Board (MSPB) (or the EEOC, as appropriate), that body will appoint and detail a person from among its attorneys to perform the functions of the General Counsel.
(2) If the MSPB Special Counsel (or the EEOC) does not agree to such a procedure, an appointment of an attorney will be sought from the Federal Mediation and Conciliation Service (FMCS).
(3) In any event, whoever is so appointed shall possess all of the powers and authority possessed by the General Counsel in employee appeal cases.
(c) The adjudication responsibilities and functions of the Board will be assumed by a person who is not a current or former employee of the Board or the GAO. The services of that person, who shall be knowledgeable in federal personnel matters, will be paid for by the Board. The person will be selected by an impartial body as described below.
(1) If agreed to by the MSPB (or the EEOC, as appropriate), that body will appoint and detail one of its administrative law judges (ALJ) or administrative judges (AJ) to perform the Board's adjudicative functions.
(2) If the MSPB (or the EEOC) does not agree to such a procedure, an appointment of an arbitrator will be sought from the FMCS.
(3) In any event, whoever is so appointed shall possess all of the powers and authority possessed by the Board in employee appeals cases. The decision of the administrative law judge, administrative judge or arbitrator shall be a final decision of the Board, in the same manner as if rendered by the Board under § 28.86(e). The procedure for judicial review of the decision shall be the same as that described in § 28.90.
(d) Any employee of the Board (other than the General Counsel) who believes that he or she is aggrieved by any personnel matter that is not reviewable by the Board under 31 U.S.C. 753(a) may file a grievance as follows:
(1)
(2)
(3)
(ii) The Chair or another member designated by the Chair, shall meet with the employee and discuss the matter of concern within 10 days after service of the step 2 appeal. The Chair or designee shall issue a written resolution of the grievance.
(4)
(a)
(1) The person has received a Right to Appeal Letter from the Board's General Counsel; or
(2) At least 180 days have elapsed from the filing of the charge with the Board's General Counsel and the General Counsel has not issued a Right to Appeal Letter; or
(3) The person was separated due to a Reduction in Force and chooses to file an appeal directly with the Board, without first filing with the Board's General Counsel, as provided in § 28.13.
(b)
(2) Petitions for review filed pursuant to paragraph (a)(2) of this section may be filed at any time after 180 days have elapsed from the filing of the charge with the Board's General Counsel, provided that the General Counsel has not issued a Right to Appeal Letter concerning the charge.
(3) Petitions for review filed pursuant to paragraph (a)(3) of this section must be filed within 30 days after the effective date of the separation due to a Reduction in Force.
(c)
(1)
(2)
(d)
(1) Name of the petitioner or a clear description of the group or class of persons on whose behalf the petition is being filed;
(2) The names and titles of persons, if any, responsible for actions the petitioner wishes to have the Board review;
(3) The actions being complained about, including dates, reasons given and internal appeals taken;
(4) Petitioner's reasons for believing the actions to be improper;
(5) Remedies sought by the petitioner;
(6) Name and address of the representative, if any, who will act for the petitioner in any further stages of the matter; and
(7) Signature of the petitioner or petitioner's representative.
(e) Failure to raise a claim or defense in the petition for review shall not bar its submission later unless to do so would prejudice the rights of the other parties or unduly delay the proceedings.
(f)
(a) Within 20 days after service of a copy of a petition for review, the GAO or other charged party shall file a response containing at least the following:
(1) A statement of the position of the charged party on each of the issues raised by the petitioner, including admissions, denials or explanations of each allegation made in the petition and any other defenses to the petition.
(2) Designation of, and signature by, the representative authorized to act for the charged party in the matter.
(b) Failure to raise a claim or defense in the response shall not bar its submission later unless to do so would prejudice the rights of the other parties or unduly delay the proceedings.
(a)
(b)
(2)
(c)
(d) Size limitations are set forth at § 28.9(b).
(a)
(b)
(c)
(d)
(a)
(b)
(1) Administer oaths and affirmations;
(2) Issue subpoenas in accordance with § 28.46;
(3) Rule upon offers of proof and receive relevant evidence;
(4) Rule upon discovery issues as appropriate under §§ 28.42 through 28.45;
(5) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum and exclude from the hearing any disruptive persons;
(6) Exclude from the hearing any witness, except the petitioner(s), whose later testimony might be colored by testimony of other witnesses, or any persons whose presence might have a chilling effect on a testifying witness;
(7) Rule on all motions, witness and exhibit lists and proposed findings;
(8) Require the filing of memoranda of law and the presentation of oral argument with respect to any question of law;
(9) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material and not repetitious;
(10) Impose sanctions as provided under § 28.24 of this part;
(11) Hold prehearing conferences for the settlement and simplification of issues; and
(12) File recommended or initial decisions, as appropriate.
(a) In the event that an administrative judge considers himself or herself disqualified, he or she shall withdraw from the case, stating on the record the reasons therefor, and shall immediately notify the Board of the withdrawal.
(b) Any party may file a motion requesting the administrative judge to withdraw on the basis of personal bias or other disqualification and specifically setting forth the reasons for the request. This motion shall be filed as soon as the party has reason to believe there is a basis for disqualification.
(c) The administrative judge shall rule on the withdrawal motion. If the motion is denied, the party requesting withdrawal may take an appeal to the full Board. The notice of appeal, together with a supporting brief, shall be filed within 15 days of service of the denial of the motion. Upon receipt of the appeal, the Board will determine whether a response from the other party or parties is required, and if so, will fix by order the time for the filing of the response.
The administrative judge may impose sanctions upon the parties as necessary to serve the ends of justice, including but not limited to the instances set forth in this section.
(a)
(1) Draw an inference in favor of the requesting party on the issue related to the information sought.
(2) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought.
(3) Permit the requesting party to introduce secondary evidence concerning the information sought.
(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(b)
(c)
(a) All parties to an appeal may be represented in any matter relating to the appeal. The parties shall designate their representatives, if any, in the petition for review or responsive pleading. Any subsequent changes in representation shall also be in writing, and submitted to the administrative judge and served upon the other parties. Once a party has designated a representative, all documents required by
(b) A party may choose any representative so long as the person is willing and available to serve. However, the other party or parties may challenge the representative on the grounds of conflict of interest or conflict of position. This challenge must be made by motion to the administrative judge within 10 days of service of the notice of designation, and shall be ruled upon by the administrative judge prior to any further proceeding in the case. These procedures apply equally to original and subsequent designations of representatives. In the event the selected representative is disqualified, the party affected shall be given a reasonable time to obtain another representative.
(c) The administrative judge, on his or her own motion, may disqualify a party's representative on the grounds described in paragraph (b) of this section.
The costs involved in the appearance of witnesses in any Board proceeding shall be allocated as follows:
(a) Persons employed by the GAO shall, upon request by the administrative judge to GAO, be made available to participate in the hearing and shall be in official duty status for this purpose and shall not receive witness fees. Payment of travel and per diem expenses shall be governed by applicable laws and regulations.
(b) Employees of other federal agencies called to testify at a Board hearing shall, at the request of the administrative judge and with the approval of the employing agency, be in official duty status during any period of absence from their normal duties caused by their testimony, and shall not receive witness fees. Payment of travel and per diem expenses shall be governed by applicable laws and regulations. A party planning to call an employee of another federal agency as a witness shall promptly notify the administrative judge of the need to submit to the federal agency a request that the employee be granted official duty status. In the event that the employing agency refuses the request to release the employee-witness in an official duty status, the employee-witness may be paid a witness fee in accordance with paragraph (c) of this section.
(c) Witnesses who are not covered by paragraphs (a) or (b) of this section are entitled to the same witness fees as those paid to subpoenaed witnesses under 28 U.S.C. 1821. The fees shall be paid, in the first instance, by the party requesting the appearance of the witness, subject to a subsequent decision otherwise in accordance with § 28.89, concerning the award of attorneys fees and costs. Such fees shall be tendered to the witness at the time the subpoena is served, or, when the witness appears voluntarily, at the time of appearance. A federal agency or corporation is not required to tender witness fees in advance. Payment of travel and per diem expenses shall be governed by applicable law and regulation.
(d) When the General Counsel is the petitioner or is representing the petitioner, the General Counsel shall pay the witness fees and arrange for the travel and per diem expenses that are required by paragraph (c) of this section.
(a) Intervenors are persons who are allowed to participate in a proceeding because the proceeding, or its outcome, may affect their rights or duties.
(b) Any person may, by motion to the administrative judge, request permission to intervene. The motion shall state the reasons why the person should be permitted to intervene. A person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may request permission to intervene under this section.
(c) A motion for permission to intervene will be granted where a determination is made by the administrative judge or the Board that the requestor will be affected directly by the outcome of the proceeding. Denial of a motion for intervention may be appealed to the Board. Such an appeal shall be filed within 10 days of service of the denial of the motion to intervene.
(d) Intervenors who are granted permission to intervene will be considered
(1) Intervenors will not have an independent right to a hearing.
(2) Intervenors may participate in Board proceedings only on the issues affecting them, as determined by the administrative judge or Board.
(a) If a petitioner dies or is otherwise unable to pursue the appeal, the action may be completed upon substitution of a proper party.
(b) A motion for substitution shall be filed by the proper party within 90 days after the death of the petitioner or other disabling event.
(a)
(2) Joinder may occur where one person has two or more appeals pending and they are united for consideration. For example, a single appellant who has one appeal pending challenging a 30-day suspension and another appeal pending challenging a subsequent dismissal might have the cases joined.
(b)
Proceedings before the Board shall be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed for presentation of the party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. The parties are expected to initiate and complete needed discovery with a minimum of Board intervention.
(a)
(b)
(c)
(a)
(1) Each request for discovery shall state the time limit for responding, as
(2) In the case of a request for deposition of a party, reasonable notice in writing shall be given to every party to the action. The notice shall:
(i) Specify the time and place of the taking of the deposition; and
(ii) Be served on the person to be deposed.
(3) When a request for discovery is directed to an officer or employee of GAO, the agency shall make the officer or employee available on official time for the purpose of responding to the request and shall assist the officer or employee as necessary in providing relevant information that is available to the agency.
(b)
(c)
(2) Upon failure or refusal of a party to respond in full to a discovery request, the requesting party may file with the administrative judge a motion to compel discovery. The time limits applicable to a motion to compel are set forth in paragraph (d)(4) of this section. A copy of the motion shall be served on the other parties. The motion shall be accompanied by:
(i) A copy of the original request served on the party from whom discovery was sought and a statement showing the relevancy and materiality of the information sought; and
(ii) A copy of the objections to discovery or, where appropriate, a verified statement that no response has been received.
(3) The party from whom discovery was sought shall respond to the motion to compel within the time limits set forth in paragraph (d)(4) of this section.
(d)
(2) A party or nonparty shall respond to a discovery request within 20 days after service of the request on the party or nonparty. Any discovery requests following the initial request shall be served within 10 days of the date of service of the prior response, unless otherwise directed. Deposition witnesses shall give their testimony at the time and place stated in the notice of deposition-taking or in the subpoena, unless the parties agree otherwise.
(3) In responding to a discovery request, a party or nonparty shall respond as fully as possible, except to the extent that the party or nonparty objects to the discovery or requests a protective order. Any objection or request for a protective order shall be filed within the time limits set forth in paragraph (d)(2) of this section. Any objection shall be addressed to the party requesting discovery and shall state the particular grounds for the objection. Any request for a protective order shall state the grounds for the protective order and shall be served on the administrative judge and any other parties to the action. The administrative judge shall rule on the request for a protective order.
(4) Motions for an order compelling discovery shall be filed with the administrative judge within 10 days of the service of objections or within 10 days of the expiration of the time limits for response when no response or an alleged inadequate response is received. Opposition to a motion to compel must be filed with the administrative judge within 10 days of the date of service of the motion.
(5) Discovery shall be completed by the time designated by the administrative judge, but no later than 65 days after the filing of the appeal. A later
(a)
(b)
(1) Provision for notice to the person to be deposed as to the time and place of such deposition.
(2) Such conditions or limitations concerning the conduct or scope of the proceedings or the subject matter as may be necessary to prevent undue delay or to protect any party or deponent from undue expense, embarrassment or oppression.
(3) Limitations upon the time for conducting depositions, answering written interrogatories, or producing documentary evidence.
(4) Other restrictions upon the discovery process as determined by the administrative judge.
(c) Failure to comply with an order compelling discovery may subject the noncomplying party to sanctions under § 28.24.
Depositions may be taken before any person not interested in the outcome of the proceedings who is authorized by law to administer oaths.
(a) Any party may be served with requests for the admission of the genuineness of any relevant documents identified within the request or the truth of any relevant matters of fact or application of law to the facts as set forth in the request.
(b) Within the time period prescribed by § 28.42(d)(2), the party on whom the request is served must submit to the requesting party:
(1) A sworn statement specifically denying, admitting, or expressing a lack of knowledge after making reasonable inquiry regarding the specific matters on which an admission is requested; and/or
(2) An objection to the request for an admission, in whole or in part, on the grounds that the matters contained therein are privileged, irrelevant, or otherwise improper.
(c) Upon a failure or refusal of a party to respond to a request for admissions within the prescribed time period, the request shall be deemed admitted.
(a)
(b)
(c)
(d)
Any person against whom a subpoena is directed may file a motion to quash or limit the subpoena setting forth the reasons why the subpoena should not be complied with or why it should be limited in scope. This motion shall be filed with the administrative judge within 20 days after service of the subpoena.
Service of a subpoena may be made by a United States Marshal or Deputy Marshal or by any person who is over 18 years of age and not a party to the proceeding.
When service of a subpoena is effected by a person other than a United States Marshal or Deputy Marshal, that person shall certify on the return of service that service was made either:
(a) In person,
(b) By registered or certified mail, or
(c) By delivery to a responsible person (named) at the residence or place of business (as appropriate) of the person to be served.
If a person has been served with a Board subpoena but fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the administrative judge or make an oral motion for enforcement while on record at a hearing. The party shall present the return of service and, except where the witness was required to appear before the administrative judge, shall submit affidavit evidence of the failure or refusal to obey the subpoena. The Board may then request the appropriate United States district court to enforce the subpoena.
The notice of initial hearing shall fix the date, time and place of hearing. GAO, upon request of the administrative judge, shall provide appropriate hearing space. Motions for postponement by either party shall be made in writing, shall set forth the reasons for the request and shall be granted only upon a showing of good cause. When the parties agree on postponement, motions may be made orally and shall be granted only upon a showing of good cause.
(a) The Board may designate one or more administrative judges to conduct hearings on appropriate matters.
(b) The hearing will be conducted as an administrative proceeding and, ordinarily, the rules of evidence will not be strictly followed.
(c) Parties will be expected to present their cases in a concise manner limiting the testimony of witnesses and submission of documents to relevant matters.
(d) Any party to a hearing offering exhibits into the record shall submit the original of each such exhibit to the court reporter, two copies to the administrative judge, plus one copy for each opposing party that is separately represented.
(e) Each party to a proceeding shall be responsible for bringing the proper number of copies of an exhibit to the hearing.
(f) Multipage exhibits shall be paginated in the lower right hand corner and the first page shall indicate the total number of pages in the exhibit.
(g) No later than the commencement of the hearing, each party shall submit to the administrative judge, to the court reporter, and to the opposing party: (1) A typed list of the witnesses expected to be called to testify; and (2) a typed list of the acronyms (with definitions) expected to be used by the witnesses.
(a) Hearings shall be open to the public. However, the administrative judge at his or her discretion, may order a hearing or any part thereof closed, where to do so would be in the best interests of the petitioner, a witness, the public, or other affected persons. Any order closing the hearing shall set
(b) Regardless of whether a hearing is open or closed, the GAO technical representative, who is not expected to testify, the GAO representative, the petitioner and the petitioner's representative each has a right to be present at the hearing.
(a)
(b)
The transcript of testimony and the exhibits, together with all papers and motions filed in the proceedings, shall constitute the exclusive and official record.
(a)
(b)
(c)
(a) In appealable actions, as defined by 5 U.S.C. 7701(a), agency action must be sustained by the Board if:
(1) It is a performance-based action and is supported by substantial evidence; or
(2) It is brought under any other provision of law, rule, or regulation as defined by 5 U.S.C. 7701(a) and is supported by a preponderance of evidence.
(b) Notwithstanding paragraph (a) of this section, the agency's decision may not be sustained if the petitioner:
(1) Shows harmful error in the application of the agency's procedures in arriving at such decision;
(2) Shows that the decision was based on any prohibited personnel practice described in 4 CFR 2.5; or
(3) Shows that the decision was not in accordance with law.
(c) In any other action within the Board's jurisdiction, the petitioner shall have the responsibility of presenting the evidence in support of the action and shall have the burden of proving the allegations of the appeal by a preponderance of the evidence.
(d) Definitions. For purposes of this section, the following definitions shall apply:
(a) When there is a hearing, the record shall be closed at the conclusion of the hearing. However, when the administrative judge allows the parties to submit argument, briefs or documents previously identified for introduction into evidence, the record shall be left open for such time as the administrative judge grants for that purpose.
(b) Once the record is closed, no additional evidence or argument shall be accepted into the record except upon a showing that new and material evidence has become available which was not available despite due diligence prior to the closing of the record. However, the administrative judge shall make part of the record any motions for attorney fees, any supporting documentation, and determinations thereon, and any approved correction to the transcript.
Any document submitted with regard to any pleading, motion, or brief shall be served upon all parties to the proceeding.
Evidence or testimony may be excluded from consideration by the administrative judge if it is irrelevant, immaterial, or unduly repetitious.
After an individual has given evidence in a proceeding, any party may request a copy of any prior signed statement made by that individual which is relevant to the evidence given. If the party refuses to furnish the statement, the administrative judge may draw an adverse inference from the failure to produce or may exclude the relevant evidence given by the individual from consideration.
The parties may stipulate as to any matter of fact. Such a stipulation will satisfy a party's burden of proving the fact alleged.
The administrative judge on his or her own motion or on motion of a party, may take judicial notice of a fact which is not subject to reasonable dispute because it is either: (a) A matter of common knowledge; or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Judicial notice taken of any fact satisfies a party's burden of proving the fact noticed.
An interlocutory appeal is an appeal to the Board of a ruling made by an administrative judge during the course of a proceeding. This appeal may be permitted by the administrative judge if he or she determines that the issue presented is of such importance to the proceeding that it requires the Board's immediate attention. The Board makes a decision on the issue and the administrative judge acts in accordance with that decision.
(a) Interlocutory review by the Board of a ruling by the administrative judge during the course of the proceeding is disfavored and will be permitted only in circumstances where:
(1) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and
(2) An immediate review of the ruling by the Board will materially advance the completion of the proceeding, or denial will cause undue harm to a party or the public.
(b) The administrative judge may, on motion of a party or on his or her own motion, certify an interlocutory ruling to the Board for its immediate consideration. Any such certification shall explain the basis on which the administrative judge concluded that the standards for interlocutory review have been met. If the Board nevertheless determines that the certification does not meet those standards it may decline to accept the certification.
(c) A motion for certification to the Board of an interlocutory ruling by the administrative judge shall be filed within 10 days after service of the ruling upon the parties. The motion shall include arguments in support of both the certification and the determination to be made by the Board. Responses, if any, shall be filed within 10 days after service of the motion.
(d) The grant or denial of a motion for certification of an interlocutory ruling shall not be appealable. The administrative judge shall promptly bring a denial of such a motion, and the reasons therefor, to the attention of the Board. If, upon its consideration of the motion and the underlying record, the Board believes that interlocutory review is warranted, it may grant the motion sua sponte.
(e) Upon its acceptance of a ruling of the administrative judge for interlocutory review, the Board shall issue an order setting forth the procedures that will be followed in the conduct of that review.
(f) Unless otherwise directed by the Board, the stay of any proceedings during the pendency of either a motion for certification or an interlocutory review itself shall be within the discretion of the administrative judge.
(g) The denial of a motion for certification does not affect the right of the parties to challenge interlocutory rulings in the course of the review by the Board of initial or recommended decisions.
(a)
(b) Exceptions to the recommended decision shall be filed within 30 days from service of the decision. Exceptions may be filed by hand delivery or by mail. Please note that the address to be used differs for the two kinds of filing.
(1)
(2)
(c) Regardless of whether exceptions to a recommended decision are filed with the Board, the Board shall review the recommended decision. In reviewing the recommended decision, the Board shall review the record as though it were making the initial decision. The Board may adopt, reverse, remand, modify or vacate the recommended decision, in whole or in part. Where no party files exceptions to a recommended decision and the Board
(1) Issue a single decision which decides the case;
(2) Hear oral arguments;
(3) Require the filing of briefs;
(4) Remand the proceedings to the administrative judge to take further testimony or evidence or make further findings or conclusions; or
(5) Take any other action necessary for final disposition of the case.
(d) The Board shall reject a recommended decision, in whole or in part, on the basis of its own motion or on the basis of exceptions filed by the parties, when the Board finds that:
(1) New and material evidence is available that, despite due diligence, was not available when the record was closed;
(2) The recommended decision is based on an erroneous interpretation of statute or regulation;
(3) The recommended decision is arbitrary, capricious or an abuse of discretion, or otherwise not consistent with law;
(4) The recommended decision is not made consistent with required procedures and results in harmful error; or
(5) The recommended decision is unsupported by evidence required by the requisite burden of proof as set forth at § 28.61.
(e) The decision of the Board shall be final and subject to judicial review pursuant to § 28.90.
(a) When a case is heard in the first instance by a single Board member, or a panel of members, an initial decision shall be issued by that member or panel and served upon the parties.
(b) An aggrieved party may seek review or reconsideration of the initial decision in the following manner:
(1) Within 15 days of the service of the initial decision, such a party may seek review by the full Board by filing and serving a notice of appeal to the Board.
(2) Within 10 days of the service of the initial decision, such a party may file and serve a request for reconsideration with the administrative judge or panel rendering that decision. Filing of the request for reconsideration shall toll the commencement of the 15 day period for filing a notice of appeal with the full Board, pending disposition of the request for reconsideration by the administrative judge or panel. The administrative judge or panel shall determine if a response is required, and if so, will fix by order the time for the filing of the response. A motion for reconsideration will not be granted without providing an opportunity for response.
(c) Within 25 days following the filing of a notice of appeal to the full Board, the appellant shall file and serve a supporting brief. That brief shall identify with particularity those findings or conclusions in the initial decision that are challenged and shall refer specifically to the portions of the record and the provisions of statutes or regulations that assertedly support each assignment of error. Within 25 days following the service of the appellant's brief, the appellee may file and serve a responsive brief. Within 10 days following the service of the appellee's responsive brief, the appellant may file and serve a reply brief.
(d) In the absence of a timely appeal, the initial decision shall become the final decision of the Board 30 days following its issuance or the date of the administrative judge's or panel's disposition of a request for reconsideration (whichever comes later) unless, prior to the expiration of the 30 day period, the parties are notified in writing that the full Board intends to review the initial decision in whole or in part on its own motion. Such review sua sponte will normally be conducted only if a majority of the Board concludes that one or more issues of law addressed in the initial decision are of such importance as to warrant consideration by the full Board notwithstanding the absence of appeal. Issues so qualifying shall be identified in the
(e) Oral argument on an appeal or in connection with a sua sponte review shall be held in the discretion of the Board. Any party may request that the Board exercise its discretion in that regard.
(f) Upon appeal or following its review sua sponte, the Board may affirm, reverse, modify or vacate the initial decision in whole or in part. If deemed warranted, the Board may remand the proceeding to the single member or panel for further action, including the reopening of the record for the taking of additional evidence. Unless the full Board expressly retains jurisdiction, the single member or panel shall render, on completion of the remand, a supplemental initial decision which shall be subject to appellate review in the same manner and to the same extent as provided for initial decisions in paragraphs (b), (d) and (g) of this section. If the Board does expressly retain jurisdiction at the time of remand, the single member or panel shall instead render a report to the Board on the remanded matters. Upon receipt of the report, the Board shall determine whether the views of the parties on the content of the report should be obtained in writing and, where necessary, shall fix by order the time for the submission of those views. A decision of the full Board disposing of the proceeding without a remand or, where the Board has expressly retained jurisdiction, following completion of the remand shall be the final decision of the Board and subject to judicial review.
(g) In conducting its examination of the initial decision, the Board may review the record as though it were making the initial decision itself. As a general matter, however, the Board will not overturn a finding of fact contained in the initial decision unless that finding is unsupported by substantial evidence in the record viewed as a whole. In determining whether some action other than affirmance of the initial decision is required, the Board will also consider whether:
(1) New and material evidence is available that, despite due diligence, was not available when the record was closed;
(2) The initial decision is based on an erroneous interpretation of statute or regulation;
(3) The initial decision is arbitrary, capricious or an abuse of discretion, or otherwise not consistent with law;
(4) The initial decision is not made consistent with required procedures and results in harmful error.
(h) Initial decisions that become final without review by the full Board shall not be binding precedent in any other case.
(a) A person required to take any action under the terms of a Board decision or order shall carry out its terms promptly, and shall, within 30 days after the decision or order becomes final, provide the Board and all parties to the proceeding with a compliance report specifying:
(1) The manner in which compliance with the provisions of the decision or order has been accomplished;
(2) The reasons why compliance with any provisions of the Board's order has not been fully accomplished; and
(3) The steps being taken to ensure full compliance.
(b) When the Board does not receive a notice of compliance in accordance with paragraph (a) of this section, the Solicitor shall make inquiries to determine the status of the compliance report. When the Solicitor establishes that a complete compliance report is not forthcoming, the Solicitor shall report the failure to file a complete compliance report to the Board.
(c) Any person and/or the General Counsel may petition the Board for enforcement of a final decision of the Board. The petition shall specifically set forth the reasons why the petitioner believes there is non-compliance.
(d) Upon receipt of a non-compliance report from its Solicitor or of a petition for enforcement of a final decision, the Board may issue a notice to any person to show cause why there was non-compliance. Following a show cause proceeding, the Board may seek
Within 20 days after service of a final decision by the Board, or within 20 days after the date on which an initial decision becomes final pursuant to § 28.87(d), the petitioner, if he or she is the prevailing party, may submit to the administrative judge who heard the case initially a request for the award of reasonable attorney fees and costs. GAO may file a response within 20 days after service of the request. Motions for attorney fees shall be filed in accordance with § 28.21 of these regulations. Rulings on attorney's fees and costs shall be consistent with the standards set forth at 5 U.S.C. 7701(g). The decision of the administrative judge concerning attorney's fees and costs shall be subject to review and shall become final according to the provisions of §§ 28.86-28.87.
(a) A final decision by the Board under 31 U.S.C. 753(a) (1), (2), (3), (6), (7) or (9) may be appealed to the United States Court of Appeals for the Federal Circuit within 30 days after the petitioner receives notice of the Board's decision.
(b) The Board may designate the Solicitor, the General Counsel or any other qualified individual to represent it in any judicial proceeding involving a Board decision or the interpretation of a Board rule or of the GAO Personnel Act.
Pursuant to section 732(f) of Title 31, U.S.C., the Board is authorized to conduct oversight of GAO employment regulations, procedures and practices as they relate to laws prohibiting discrimination in employment on the basis of race, color, religion, national origin, political affiliation, age, sex, marital status, or disability.
(a) When requested by the Board in the exercise of its oversight responsibility, GAO shall provide:
(1) Such plans, procedures and regulations as GAO may develop in order to eliminate and prevent employment discrimination on the bases enumerated in § 28.95;
(2) Reports regarding its efforts to publicize to its employees the procedures to be followed for receiving advice and for filing complaints regarding the enforcement of laws prohibiting discrimination in employment;
(3) Quarterly statistical reports of pre-complaint counseling and of pending complaints, in a manner prescribed by the Board;
(4) An annual report on its equal employment opportunity affirmative action program and its Federal Equal Employment Opportunity Recruitment Program; and
(5) Any other information regarding equal employment opportunity within the GAO that may be required by the Board, in the time frame and format established by the Board after consultation with the Comptroller General or his or her designee.
(b) The Board shall review and evaluate the regulations, procedures and practices of the GAO, including the information filed with it in accordance with paragraph (a) above, and shall:
(1) Require the GAO to make any changes the Board determines are needed due to violations of or inconsistencies with Subchapters III and IV of Chapter 7 of Title 31, U.S.C. or equal employment opportunity laws, and
(2) Report to the Congress on the overall progress being made in effectuating the purposes of Subchapters III and IV of Chapter 7 of Title 31, U.S.C.
The procedures in this subpart relate to charges filed against any GAO policies or specific actions which are alleged to involve prohibited discrimination. Prohibited discrimination is defined as any action in violation of:
(a) Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting discrimination based on race, color, religion, sex or national origin;
(b) Sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a) prohibiting discrimination on account of age;
(c) Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d), prohibiting discrimination in wages on the basis of sex;
(d) Sections 501 and 505 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794a) prohibiting discrimination on the basis of disability; or
(e) Any other law prohibiting discrimination in Federal employment on the basis of race, color, religion, age, sex, national origin or disability. 31 U.S.C. 732(f)(2).
Except where a different procedure is provided for in this subpart, the procedures to be followed by all parties in cases arising under this subpart shall be the general procedures as prescribed in subpart B of this part.
(a) Prior to invoking the Board's procedures in a case alleging prohibited discrimination on behalf of a class of GAO employees or applicants for employment, a complaint must first be filed with GAO in accordance with GAO Order 2713.2.
(b) A petition for review of GAO's disposition of any EEO class complaint may be submitted to the Board at the following times:
(1) Within 20 days of receipt of a GAO determination rejecting or canceling the class complaint;
(2) Within 20 days of receipt of a GAO determination accepting the class action, but with modifications that are not satisfactory to the agent of the class;
(3) When a period of more than 180 days has elapsed since the formal class complaint was filed and the GAO has not issued a final decision; or
(4) Within 20 days of receipt of a final GAO decision resolving the complaint if that decision, in whole or in part, has not satisfied the agent for the class.
(c) In class actions in EEO cases, no charge shall be filed or investigated by the General Counsel prior to filing a petition for review with the Board. However, the General Counsel may request permission to intervene with regard to any issue in which the General Counsel finds a significant public interest with respect to the preservation of the merit system.
(d) The parties shall not have a right to a hearing on a petition for review in class actions under this section. Upon a showing of good cause as to why an evidentiary hearing is necessary, the Board may order such a hearing. Alternatively, the Board may, after a review of the administrative record and on its own motion, order a hearing for the purpose of gathering additional evidence. If no hearing is ordered, the Board's decision shall be based upon a review of the administrative record developed in the GAO class complaint process.
(e) Standards. For the purpose of determining whether it is appropriate to treat an appeal as a class action, the administrative judge will be guided, but not controlled, by the applicable provisions of the Federal Rules of Civil Procedure.
(a) Except as provided in paragraph (c) of this section, a charge alleging prohibited discrimination (as defined in § 28.95) shall not be filed with the Board's General Counsel unless the charging party has first filed a complaint of discrimination with GAO in accordance with GAO Order 2713.2.
(b) A charge relating to GAO's disposition of any individual EEO complaint may be filed with the Board's General Counsel at the following times:
(1) Within 30 days from the receipt by the charging party of a GAO decision rejecting the complaint in whole or part;
(2) Whenever a period of more than 120 days has elapsed since the complaint was filed, and the GAO has not issued a final decision; or
(3) Within 30 days from the receipt by the charging party of a final GAO decision concerning the complaint of discrimination.
(c)
(1) File a charge directly with the Board's General Counsel within 30 days of the effective date of the personnel action and raise the issue of discrimination in the course of the proceedings before the Board; or
(2) File a complaint of discrimination with the GAO pursuant to GAO Order 2713.2. If the employee elects to file a complaint of discrimination with GAO, he or she may still seek Board review of the matter by filing a charge with the Board's General Counsel at the times authorized in paragraph (b) of this section. Where a complaint of discrimination filed with GAO relates to non-EEO issues that are within the Board's jurisdiction in addition to EEO-related allegations, the subsequent charge filed with the Board's General Counsel under paragraph (b) of this section shall be considered a timely appeal of the non-EEO issues. An employee will be deemed to have elected the EEO complaint process if the employee files a timely written complaint of discrimination with GAO before filing a charge with the Board's General Counsel. Consultation with an EEO counselor, without filing a written complaint of discrimination, does not constitute an election of the EEO complaint process.
(d)
(e)(1) The charging party shall file the charge with the General Counsel in accordance with § 28.11. The General Counsel shall investigate the charge in accordance with § 28.12.
(2) A charging party challenging a RIF action by filing directly with the PAB shall follow the procedures prescribed in § 28.13 and § 28.18.
(a) The provisions of §§ 28.18 through 28.90, inclusive, shall govern the Board's procedures in processing petitions filed under this subpart.
(b) Remedial action provided in Board orders in these cases may include:
(1) Provision for offers of employment, re-employment or promotion, with or without back pay, when the Board decides such action is required to make whole the individual found to have been discriminated against.
(2) Notification to all GAO employees of the action ordered to be taken to expunge the effect of the discrimination;
(3) Correction of GAO personnel records, as necessary, to reflect the purpose of the Board order; and,
(4) Any other action the Board believes proper to correct the effect of the discrimination found to have occurred.
Any proceeding before the Board shall be terminated when an employee
The procedures in this subpart relate to the Board's duty under 31 U.S.C. 753(a) (4) and (5) to determine appropriate units of GAO employees for collective bargaining, to conduct elections in order to determine whether the employees in any such units wish to select a labor organization to represent them in collective bargaining, and, thereafter, to certify labor organizations so selected as the designated exclusive bargaining representative. They are referred to in these regulations as “representation proceedings”.
The Board shall consider, decide and order corrective action (as appropriate) in cases arising from the determination of appropriate units of employment for collective bargaining and cases arising from elections and certifications of collective bargaining representatives. Board decisions in these matters will be made with due regard for relevant provisions of GAO Orders and with the objective of insuring that the GAO labor relations program is consistent with Chapter 71 of Title 5, United States Code, which prescribes the standards for the labor relations program in the executive branch.
(a) Representation petitions may be filed by:
(1) A labor organization which wishes to be designated as the exclusive representative for collective bargaining by the GAO employees in an appropriate unit, or by a labor organization which desires to replace another currently having that status;
(2) An employee or a group of employees (or an individual on his, her or their behalf) desiring a new election to determine whether a labor organization has ceased to represent a majority of employees in a unit;
(3) The GAO if it has a good faith reason to doubt the continued desire of a group of its employees to be represented by a labor organization which is currently the exclusive representative of the employees in an appropriate unit;
(4) The GAO or a labor organization currently recognized as an exclusive representative desiring the Board to clarify an earlier unit determination or certification;
(5) Any person seeking clarification of, or an amendment to, a certification then in effect or any other matter relating to representation.
(b) Notwithstanding the provisions of paragraph (a) of this section, no petition may be filed which seeks representation rights for employees in a unit—
(1) Where an election has been held within the previous 12 calendar months and in such election a majority of the employees voting chose a labor organization for certification as the unit's exclusive representative, or
(2) Where an existing collective bargaining agreement having a term of three years or less is in effect, unless the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration of the collective bargaining agreement, or
(3) Where an existing collective bargaining agreement having a term of more than three years is in effect, unless the petition for recognition is filed not more than 105 days and not less than 60 days before the third anniversary or any subsequent anniversary of the collective bargaining agreement.
(a) The contents of representation petitions filed under § 28.112(a)(1) (by a labor organization seeking to be designated as or replace an exclusive bargaining representative) shall consist of:
(1) A detailed identification of the unit of employees to which the petition applies, and their geographical location within the GAO, the classifications of employees to be included and
(2) Names, addresses and officers of any other labor organizations known by the petitioner to be interested in representing employees covered by the petition, including a labor organization which is party to a current collective bargaining agreement covering any employees in the unit;
(3) Name, address, affiliation, if any, and telephone number of the petitioning organization;
(4) A copy of the constitution and bylaws of the organization, a roster of the organization's officers and representatives, and a statement of the organization's objectives, together with a statement that these documents have also been supplied to the GAO;
(5) A declaration by the signer of the petition, under penalties of the Criminal Code (18 U.S.C. 1101), that the petition's contents are true and correct, to the best of his or her knowledge and belief;
(6) The signature of the representative of the petitioner, including title and telephone number; and
(7) Membership cards, dues records, or signed statements by employees indicating their desire to be represented by the labor organization, or similar evidence acceptable to the Board, showing that at least 30 percent of the employees in the proposed unit wish to be represented by the petitioner.
(b) The contents of petitions filed under § 28.112(a)(2) (by an employee or group of employees seeking an election to determine if a labor organization still represents a majority of employees in a unit) shall conform to those provided for in paragraph (a) of this section, except that the information required by paragraphs (a)(4) and (a)(7) of this section need not be supplied. Additionally, a petition under § 28.112(a)(2) shall include evidence satisfactory to the Board that at least 30 percent of the employees in the unit no longer wish to be represented by the labor organization currently having bargaining rights.
(c) The contents of petitions filed under § 28.112(a)(3) (by GAO raising good faith doubts about the continued desire of a group of its employees to be represented by a labor organization) shall conform to those provided in petitions under paragraph (a) of this section except that the information required by paragraphs (a)(4) and (a)(7) of this section need not be supplied. Additionally, such a petition shall include a detailed statement giving the objective considerations which support the GAO's good faith reason for doubting the labor organization's continued status as the exclusive representative.
(d) The contents of petitions filed under § 28.112(a)(4) (by GAO or a labor organization seeking clarification of a certification) shall include the information required under paragraph (a) of this section, with the exception of the information required by paragraphs (a)(4) and (a)(7) of this section. Also, instead of the information required in paragraph (a)(1) of this section, the petition shall identify the existing unit and the date the organization was recognized by the GAO or certified as the exclusive representative, and shall explain the changes desired in the unit and the reasons therefor.
(e) Petitions under § 28.112(a)(5) (by any person seeking clarification or amendment of a certification, or raising any other representation matter) shall be filed on forms to be supplied by the Board upon request.
(a) Upon the filing of a valid petition, the General Counsel may request GAO to notify employees as to the existence of the petition by posting a notice for at least 10 days in locations appropriately selected to reach all employees in the unit covered by the petition. The notice shall include a request that the Board's General Counsel be notified of the existence of any other interested parties.
(b) GAO shall supply the General Counsel with any information in its possession concerning other potentially interested labor organizations, copies of relevant correspondence, and copies of existing or recently expired agreements covering any employees in the unit. The GAO shall also provide a list of employees it believes should be included in the unit together with their classifications and the names and classifications of those employees it proposes to exclude from the unit.
(c) All interested parties shall meet as soon as possible after the expiration of the 10-day posting period and shall attempt to resolve any issues in controversy.
(d) A labor organization may become an intervenor in any representation proceeding by submitting to the General Counsel, within the 10-day period, evidence that it represents at least 10 percent of the employees in the proposed unit or that it is the exclusive representative of the employees involved. Denial of a request to intervene may be appealed to the Board. Such an appeal must be filed within 10 days of service of the General Counsel's determination.
(a) Upon the expiration of the 10-day posting period, and after the General Counsel considers an appropriate period has elapsed for consultation among the parties to resolve or identify issues, the General Counsel shall prepare a report to the Board which may recommend:
(1) Approval of any agreement entered into by the parties during their consultations including an agreement on the appropriate units, on the withdrawal of the petition, or on a joint request to conduct an election to determine which labor organization, if any, the employees select to be their exclusive bargaining representative;
(2) Dismissal of the petition as being without merit; or
(3) Issuance of a notice of hearing for the purpose of disposing of the remaining issues raised in the petition.
(b) The General Counsel's report shall be supplied to all interested parties, and, unless all parties agree to a shorter period, they shall have 15 days during which to file any response with the Board.
(c) The Board, as expeditiously as feasible after the expiration of the period specified in paragraph (b) of this section, but no later than 30 days thereafter, shall either approve the report and order appropriate steps to carry out its recommendations, or remand it to the General Counsel with further instructions.
(d) Where a hearing is ordered, an administrative judge shall be designated by the Board. The report of the administrative judge shall include Findings of Fact and Recommendations.
(e) After receiving the report from the administrative judge, and after providing the parties with an opportunity for comment, the Board shall issue a Decision and Order determining the appropriate unit, directing an election, dismissing the petition or making some other appropriate disposition of the matter.
(f) Final Decisions and Orders issued by the Board based on hearings held in accordance with paragraphs (d) and (e) of this section shall not be considered final decisions subject to appeal before the Circuit Courts of Appeal.
(a) The Board shall supervise any election it orders to be conducted, but may delegate ministerial functions relating to an election to any qualified independent organization; to members of the Board's full-time staff; or to temporary employees hired for this purpose.
(b) Appropriate notices setting forth details of the election shall be posted by GAO as directed by the Board.
(c) The Board shall, through its agents chosen to conduct the election:
(1) Provide the opportunity for all qualified voters to indicate their choices in secrecy;
(2) Offer qualified voters the opportunity to vote for any labor organization on the ballot, or to reject all labor organizations;
(3) Permit all parties to observe all aspects of the election procedure other than any which would interfere with the secrecy of the ballot;
(4) Provide for all parties to challenge the eligibility of any voters, and to impound the ballots of such voters, subject to later determination of eligibility should the number of challenges potentially affect the results;
(5) Certify to all parties the results of the election.
(d) Upon receiving a report of the results of the election, the Board shall:
(1) If necessary rule on the challenges and adjust the results accordingly;
(2) Formally announce the results and, where appropriate, designate a
(3) Order a runoff or an additional election, if the Board deems it appropriate, where the results of the original election are inconclusive because no choice on the ballot has secured a majority of the valid votes cast. Not more than one additional and one runoff election may be held.
(i)
(ii)
(a) The procedures in this subpart relate in part to the Board's function, under 31 U.S.C. 753(a)(6), to “consider and order corrective or disciplinary action in a case arising from * * * a matter appealable to the Board under the labor-management relations program under (31 U.S.C. 732(e)(2)) including a labor practice prohibited under (31 U.S.C. 732(e)(1)).”
(b) The system so established by the Comptroller General is required to provide that each employee of the GAO has the right to form, join or assist, or not form, join or assist an employee organization, freely and without penalty or reprisal, and for a labor-management relations program consistent with Chapter 71 of Title 5, U.S.C. (31 U.S.C. 732(e)).
(a) Unfair labor practices are defined at GAO Order 2711.1. An allegation that a provision of GAO Order 2711.1 is inconsistent with Chapter 71 of Title 5, United States Code, and thereby denies to an employee or labor organization rights comparable to those granted by Chapter 71 of Title 5, United States Code, may also be raised under the unfair labor practice procedure.
(b) An allegation that unfair labor practices have been committed shall be subject to the procedures appearing in subpart B of this part for the filing of charges, investigation by the General Counsel, and the Board's disposition, except as set forth in paragraphs (c) and (d) of this section.
(c) Except as provided in paragraph (d) of this section, no petition for review may be filed based on any alleged unfair labor practice which occurred more than 6 months before the filing of an unfair labor practice charge with the charged party, as provided in paragraph 14b of GAO Order 2711.1, or more than 9 months before the filing of a charge with the General Counsel.
(d) If the Board determines that the charging party was prevented from filing the charge during the 6-month period referred to in paragraph (c) of this section by reason of:
(1) Any failure of the charged party to perform a duty owed to the charging party; or
(2) Any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period; the charge will be considered timely filed, provided it was filed with the charged party during the 6-month period beginning on the day of the discovery of the alleged unfair labor practice by the charging party.
Where the GAO and an exclusive bargaining representative disagree on whether a matter is subject to negotiation as part of the requirement to bargain in good faith, the matter shall be appealable to the Board under the following procedures:
(a) When, in connection with negotiations, a proposal is declared nonnegotiable, the party submitting the proposal shall, prior to the close of negotiations, submit to the other party a Request for Formal Negotiability Determination reciting the proposal in question. The party declaring the proposal nonnegotiable shall, within ten (10) days, deliver to the other party a Formal Negotiability Determination stating the basis for the Determination.
(b) A Formal Negotiability Determination may be appealed to the Board within 20 days of its service by filing a Petition for Review with the Board. A complete statement of argument from the petitioner should accompany the Petition for Review.
(c) The Board shall serve the Respondent with a copy of the Petition for Review and accompanying argument. Respondent shall reply to the Petition for Review within 20 days of its service upon respondent.
(d) One or more members of the Board shall review the arguments, hold a hearing if the administrative judge deems it necessary, and issue a decision.
(e) The decision shall become final in accordance with §§ 28.86-28.87.
(a) The GAO shall only accord recognition to labor organizations that are free from corrupt influences and from influences opposed to basic democratic principles. An organization is not required to prove it is free from such influence if it is subject to governing requirements calling for the maintenance of:
(1) Democratic procedures;
(2) Freedom from totalitarian influence;
(3) Independence on the part of its agents and officers from any business or financial interests which represent conflicts of interest or potential conflicts of interest; and
(4) Fiscal integrity, including provision for the dissemination of regular financial reports to its members.
(b) A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Board and comply with trusteeship and election standards.
(c) A labor organization which has or seeks recognition under these Rules shall adhere to principles enunciated in the Regulations issued by the Assistant Secretary of Labor for Labor/Management Relations regarding standards of conduct for labor organizations in the public sector. Complaints of violations of this section shall be filed with the Board. In any matter arising under this section, the Board may require a labor organization to cease and desist from violations of this section and require it to take such actions as it considers appropriate to carry out the policies of this section.
(d) This chapter does not authorize participation in the management of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential employee, or by any employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.
(e) In the case of any labor organization which by omission or commission has willfully and intentionally called or participated in a strike, work stoppage or slowdown, or picketed in a manner which interfered with the operations of a government agency, or has condoned such activity, the Board shall, upon an appropriate finding it has made of such a violation—
(1) Revoke the recognition status of the labor organization; or
(2) Take any other appropriate disciplinary action.
(f) The General Counsel may charge a labor organization with violations of this section. The Board shall conduct proceedings with regard to such charge and may require a labor organization to take such actions as it deems necessary to carry out the policies of this section.
(a)
(2) The time limit for filing an exception to an arbitration award is 30 days from the service of the award on the filing party.
(3) An opposition to the exception may be filed by a party within 30 days after the service of the exception.
(4) A copy of the exception and any opposition shall be served on the other party.
(b)
(1) A statement of the grounds on which review is requested;
(2) Evidence or rulings bearing on the issues before the Board;
(3) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities;
(4) A legible copy of the award of the arbitrator and legible copies of other pertinent documents; and
(5) The name and address of the arbitrator.
(c)
(i) Because it is contrary to any law, rule or regulation; or
(ii) On other grounds similar to those applied by Federal courts in private sector labor-management relations.
(2) The Board will not consider an exception where:
(i) The award relates to an action based on unacceptable performance covered under 5 U.S.C. 4303;
(ii) The award relates to a removal, suspension for more than 14 days, reduction in grade, reduction in pay, or furlough of 30 days or less covered under 5 U.S.C. 7512; or
(iii) the exception is based on a GAO rule which was not introduced into the record submitted to the arbitrator.
(d)
The procedures in this subpart relate to the Board's functions “to consider, decide and order corrective or disciplinary action (as appropriate) in cases arising” from any area within the Board's jurisdiction.
(a) When information comes to the attention of the General Counsel suggesting that a prohibited personnel practice may have occurred, exists or is to be taken, the General Counsel shall investigate the matter to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists or is to be taken.
(b) If the General Counsel terminates any investigation under this section which is not also the subject of a charge, the General Counsel shall prepare and transmit to any person on whose allegation the investigation was initiated, a written statement notifying the person of the termination of the investigation and the reasons therefore.
(c) If the General Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists or is to be taken which requires corrective action and which is not also the subject of a charge, the General Counsel shall report the determination together with any findings or recommendations to the GAO.
(d) If, after a reasonable period, GAO has not taken the corrective action recommended, the General Counsel may file a petition for review with the Board. Such petition for review shall be processed in accordance with §§ 28.19 through 28.25.
(a) If the General Counsel determines after any investigation under 31 U.S.C. 752(b) that disciplinary action should be initiated against an employee, the General Counsel shall prepare a written complaint against the employee containing his or her determination,
(b) In the case of an employee in a confidential, policy making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate, the complaint and statement referred to in paragraph (a) of this section, with any response by the employee, shall be presented to the Congress for appropriate action in lieu of being presented under paragraph (d) of this section.
(c) Any employee against whom a complaint has been presented to the Board under paragraph (a) of this section is entitled to:
(1) A reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
(2) Be represented by an attorney or other representative;
(3) A hearing before the Board or a member designated by the Board;
(4) Have a transcript kept of any hearing under paragraph (c)(3) of this section; and
(5) A written decision and reasons therefor at the earliest practicable date, including a copy of a final decision ordering disciplinary action.
(d) A final order of the Board may order disciplinary action consisting of removal, reduction in grade, debarment from GAO employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of civil penalty not to exceed $1,000.
(e) There may be no administrative appeal from an order of the Board under paragraph (d) of this section. An employee subject to a final decision ordering disciplinary action under this section may obtain judicial review of the order in the U.S. Court of Appeals for the Federal Circuit in accordance with 31 U.S.C. 755.
(a) The General counsel may request the issuance of an ex parte stay, not to exceed 30 days in duration, of any proposed personnel action that, in the General Counsel's judgment, may constitute a prohibited personnel practice. Any such request shall be in writing and shall specify, among other things, the nature of the action to be stayed and the basis for the General Counsel's belief that a prohibited personnel practice may be involved. The General Counsel shall serve a copy of the request on the GAO. Within three business days of its filing, the request shall be granted by the Board member designated by the Board Chair to entertain it unless, in the opinion of that member, the request either fails to satisfy the requirements of this paragraph or, on its face, conclusively establishes the absence of a prohibited personnel practice.
(b) The General Counsel may request either a further temporary stay or a permanent stay of the proposed personnel action. Such a request shall be filed and served so as to be received by the Board and the agency no less than 10 days before the expiration of any ex parte stay issued under paragraph (a) of this section. The agency's response to the request shall be filed and served so as to be received by the Board and the General Counsel no less than three days before the expiration of the ex parte stay issued under paragraph (a) of this section.
(c) A stay request under paragraph (b) of this section will be considered and decided by the Board member who issued the ex parte stay under paragraph (a) of this section, unless the Board Chair determines that it should be considered and decided by the Board en banc.
(d) Upon initial consideration of a stay request under paragraph (b) of this section, the Board or the designated member thereof may:
(1) grant or deny the requested stay, in whole or in part, on the basis of the written submissions of the respective parties without additional briefing, oral argument, or the receipt of any documentary evidence or testimony;
(2) require further briefing of the issues presented by the request and/or call for oral argument; or
(3) conduct a hearing at which documentary evidence and testimony is received. If necessary, the ex parte stay
(e) In acting upon a stay request under paragraph (b) of this section, the Board or the designated member thereof shall consider and balance such established equitable factors as:
(1) The likelihood that the personnel action sought to be stayed involves a prohibited personnel practice; and
(2) The nature and extent of the injury that the employee and the agency likely will suffer if the requested stay is or is not issued. If a further temporary stay is granted based on a claim that the General Counsel requires additional time to conclude an investigation of the employee's complaint, the duration of that further stay shall not exceed the amount of time necessary to complete the investigation in the exercise of a high degree of diligence.
(f) Any order issued by a member of the Board granting or denying, in whole or in part, a stay request under paragraph (b) shall be subject to review by the Board en banc on the filing and service of a notice of appeal, accompanied by a supporting brief, within 10 days of the service of that order. Responsive briefs shall be filed and served within 10 days of service of the appeal.
(g) A motion to vacate a stay order may be filed at any time. A stay order issued by the Board en banc may not be vacated by a single Board member.
Members of the GAO Senior Executive Service (SES) may appeal adverse actions relating to misconduct, malfeasance or similar action to the Board in accordance with Subpart B of this part. Members of the GAO SES who allege that they have been subjected to a personnel action that constitutes a prohibited personnel practice or prohibited discrimination may appeal to the Board in accordance with subpart B or subpart D of this part respectively.
A career appointee removed from SES to a GAO position outside the SES for less than fully successful executive performance shall, upon notice of such removal, be entitled, upon request, to an informal hearing before a member of the Board designated by the Chair of the Board.
(a) At the informal hearing, the career appointee and/or a representative and the agency may appear and present documentary evidence and argument.
(b) The Board member will determine which, if any, witnesses will be allowed to testify. As a general rule, no cross-examination of witnesses will be allowed. The Board member will have discretion to allow cross-examination of witnesses in exceptional circumstances.
(c) The informal hearing shall not give the career appointee the right to initiate an action with the Board under another provision of these rules, nor need the removal action be delayed as a result of the granting of such hearing.
It is the policy of the Board to regulate strictly ex parte communications between members of the Board and their decision-making personnel and any interested party to a proceeding before the Board.
(a) Ex parte communications are oral or written communications between decision-making personnel of the Board and an interested party to a proceeding without providing the other parties to the proceeding a chance to participate. Not all ex parte communications are prohibited, however, only those which involve the merits of the case or those which violate other rules requiring submissions to be in writing. Accordingly, interested parties may make inquiries about such matters as the status of a case, when it will be heard, and the method for transmitting evidence to the Board. Such communications should be directed to the
(b) In this subpart—
(1) “Interested party” includes:
(i) Any party, including the General Counsel of the Board, or representative of a party involved in a proceeding before the Board;
(ii) Any person desiring to intervene in any proceeding before the Board; or
(iii) Any other person who might be affected by the outcome of a proceeding before the Board.
(2) “Decision-making personnel” means the Board, a panel of Board members, a Board member, an administrative judge, and/or an employee of the Board, who reasonably can be expected to participate in the decision-making process of the Board.
Ex parte communications concerning the merits of any matter before the Board for adjudication, or which would otherwise violate rules requiring written submissions, are prohibited from the time the interested party involved has knowledge that the matter may be considered by the Board until the Board has rendered a final decision on the case.
Any communication made in violation of this section shall be made part of the record in the proceeding and an opportunity for rebuttal allowed. If the communication was oral, a memorandum stating the substance of the discussion shall be placed in the record.
The following sanctions shall be available for violations of this Subpart:
(a) The Board, a panel of Board members, a Board member or an administrative judge, as necessary, may, in the interest of justice, require the offending party to show cause why his or her claim, interest, motion or petition should not be dismissed, denied or otherwise adversely affected.
(b) The Board, a panel of Board members, a Board member or an administrative judge, as necessary, may invoke such sanctions against any offending party as may be appropriate under the circumstances.
Upon petition by any person, or on its own motion, the Board may issue statements of policy or guidance. In determining whether to issue such a statement, the criteria to be considered by the Board will include, but not be limited to, the following:
(a) Whether the question presented can more appropriately be resolved by other means;
(b) Where other means are available, whether a Board statement would prevent the proliferation of cases;
(c) Whether the resolution of the question presented would have general applicability;
(d) Whether the question currently confronts the parties as part of their employee-management relationship;
(e) Whether the question is presented jointly by the parties involved; and
(f) Whether the issuance by the Board of a statement of policy or guidance would promote the purposes of the General Accounting Office Personnel Act.
31 U.S.C. 753.
(a) The purpose of this part is to implement the Board's authority under the Architect of the Capitol Human Resources Act, Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994). That act authorizes the Board to adjudicate certain claims of discrimination and retaliation brought by employees of the Architect of the Capitol. The rules contained in this part establish the procedures to be followed by:
(1) Employees of the Architect of the Capitol in pursuing discrimination and retaliation claims before the Board;
(2) The Architect of the Capitol in its dealings with the Board; and
(3) The Board in carrying out its responsibilities under the Architect of the Capitol Human Resources Act.
(b) In considering any procedural matter not specifically addressed by these rules, the Board will be guided, but not bound, by the Federal Rules of Civil Procedure.
In this part—
(a) The Board has jurisdiction to hear and adjudicate claims brought by employees of the Architect of the Capitol alleging discrimination in employment based on:
(1) Race, color, religion, sex, or national origin, within the meaning of section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16;
(2) Age, within the meaning of section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 633a; or
(3) Handicap or disability, within the meaning of section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and sections 102 through 104 of the Americans with Disabilities Act of 1990, 42 U.S.C. 12112-12114.
(b) The Board has jurisdiction to hear and adjudicate claims brought by any individual alleging that he or she was
(1) Opposed practices made unlawful by the Architect of the Capitol Human Resources Act;
(2) Filed a charge or petition for review with the Board;
(3) Utilized the internal procedures provided by the Architect of the Capitol for the resolution of claims of discrimination or reprisal including, but not limited to, the filing of a request for formal or informal advice or the filing of a formal complaint; or
(4) Participated in any proceedings before the Board or the Architect of the Capitol for the resolution of complaints of discrimination or reprisal.
For the purposes of this part, time will be computed in the manner described in 4 CFR 28.4.
Any party or member of the public may seek advice on all aspects of the Board's procedures by contacting the Board's Solicitor, the Board's General Counsel or the Clerk of the Board. Informal advice will be supplied within the limits of available time and staff.
(a)
(1) The employee receives a final decision by the Architect of the Capitol on his or her complaint of discrimination or retaliation; or
(2) 150 days have passed after the filing of an internal complaint of discrimination or retaliation and the Architect of the Capitol has not issued a final decision on the complaint.
(b)
(c)
(a) The Architect of the Capitol shall be responsible for ensuring that employees are routinely advised of their appeal rights to the Board. Any final decision on an internal complaint of discrimination shall include a notice of the complainant's right to pursue the matter before the Board including:
(1) The time limits for appealing to the Board;
(2) The address of the Board;
(3) The employee's right to representation before the Board;
(4) The availability of a hearing before the Board where factual issues are in dispute; and
(5) The employee's right to a reasonable amount of official time for the preparation and presentation of his or her appeal.
(b) A copy of the Board's regulations shall be attached to the notice required by paragraph (a) of this section. The notice shall also be accompanied by proof of service.
(a)
(b)
(1) Within 30 days after the receipt of a final decision by the Architect of the Capitol on the employee's internal complaint of discrimination or retaliation; or
(2) At any time after the passage of 150 days following the filing of an internal complaint of discrimination or retaliation, if the Architect of the Capitol has not yet issued a final decision on the internal complaint.
(c)
(1)
(2)
(d)
(1) Name, address, and telephone number of the charging party. In the case of a class action, a clear description of the class of employees on whose behalf a charge is filed;
(2) The names and titles of persons, if any, responsible for actions the charging party wishes to have the General Counsel review;
(3) The actions complained about, including dates and reason given;
(4) The charging party's reasons for believing that the actions taken constitute unlawful discrimination;
(5) Remedies sought by the charging party;
(6) Information concerning the charging party's exhaustion of administrative remedies before the Architect of the Capitol, including the date the internal complaint of discrimination was filed and, if applicable, the date on which the employee received a final decision from the Architect of the Capitol on his or her complaint of discrimination;
(7) Name and address of the representative, if any, who will act for the charging party;
(8) Signature of the charging party or the charging party's representative.
(e)
(a) The General Counsel shall serve on the Architect of the Capitol a copy of the charge, investigate the matters raised in the charge, refine the issues where appropriate, and attempt to settle all matters at issue.
(b) The General Counsel's investigation may include gathering information from the Architect of the Capitol, and interviewing and taking statements from witnesses. Employees of the Architect of the Capitol shall be on official time during the time that they are responding to any requests from the General Counsel.
(c) Following the investigation, the General Counsel shall provide the charging party with a Right to Appeal
(d) If, following the investigation, the General Counsel determines that there are not reasonable grounds to believe that the charging party has been subjected to unlawful discrimination or retaliation as described in § 29.3, then the General Counsel shall not represent the charging party. If the General Counsel determines that there are reasonable grounds to believe that the charging party has been subjected to such discrimination or retaliation, then the General Counsel shall represent the charging party, unless the charging party elects not to be represented by the General Counsel. Any charging party may represent him- or herself or obtain other representation.
(e) When the charging party elects to be represented by the General Counsel, the General Counsel is to direct the representation in the charging party's case. The charging party may also retain a private representative in such cases. However, the role of the private representative is limited to assisting the General Counsel as the General Counsel determines to be appropriate.
(f) When the General Counsel is not participating in a case, the General Counsel may request permission to intervene with respect to any issue in which the General Counsel finds a significant public interest in the enforcement of the right to be free of unlawful discrimination and retaliation in employment.
(a)
(b)
(c)
(1)
(2)
(d)
(1) The name, address, and telephone number of the petitioner. In the case of a class action, a clear description of the class of employees on whose behalf the petition is being filed;
(2) The names and titles of persons, if any, responsible for the actions the petitioner wishes to have the Board review;
(3) The actions being complained about including dates and reasons given;
(4) Petitioner's reasons for believing that the actions constituted unlawful discrimination or retaliation;
(5) Remedies sought by petitioner;
(6) Information concerning petitioner's exhaustion of administrative remedies before the Architect of the Capitol, including the date that an internal complaint of discrimination or retaliation was filed and the date, if applicable, that the petitioner received a final decision from the Architect of the Capitol;
(7) Name, address, and telephone number of the representative, if any, who will act for the petitioner;
(8) Signature of the petitioner or the petitioner's representative.
(e)
(f)
In adjudicating petitions for review filed by employees of the Architect of the Capitol, the Board will generally follow the same procedures as it does for adjudicating petitions for review filed by General Accounting Office (GAO) employees under 4 CFR part 28, subpart B. The Board specifically adopts the regulations contained in 4 CFR 28.19 through 28.90 as the procedures it will follow for petitions for review filed by Architect of the Capitol employees. The Architect of the Capitol will have the same obligations and responsibilities as are assigned to the GAO under those regulations. The regulations concerning ex parte communications, contained in 4 CFR part 28, subpart I, will also be applicable to all proceedings brought by or on behalf of employees of the Architect of the Capitol.
(a) The regulations in this part do not apply to any claim of discrimination or retaliation by an employee of the Architect of the Capitol which was pending before, or an appeal from, the Office of Senate Fair Employment Practices on the July 22, 1994, effective date of the Architect of the Capitol Human Resources Act. Any such claims shall continue to be processed pursuant to the procedures established in the Government Employee Rights Act of 1991, 2 U.S.C. 1201,
(b) The regulations in this part apply to all charges filed with the Board prior to January 23, 1996, the effective date of § 201 of the Congressional Accountability Act of 1995 (CAA), Pub. L. 104-1, 109 Stat. 3 (January 23, 1995). They also apply to any charge filed after that date pursuant to the terms of § 506(b) of the CAA.
31 U.S.C. 711 and 3511.
(a) The General Accounting Office no longer requires that a certificate as to correctness and nonpayment be executed on the bills and invoices of contractors and vendors, with the exception that carriers, or other corporations, agencies, or persons furnishing transportation and accessorial services to the Government must continue to execute the certificates as provided in chapter 101 of 41 CFR part 41. Pending the eventual elimination of the contractors’ and vendors’ certificates from all other standard voucher forms, the certificates on such other forms need no longer be executed. However, the elimination of this requirement does not dispense with the necessity for the specific certification of facts required by certain contracts.
(b) The omission of the certificate from bills or invoices submitted for payment to Government agencies does not in any manner lessen the responsibility of contractors and vendors in complying with all statutory requirements applicable to transactions with the Government, nor will it be construed as mitigating their liability for asserting false, fictitious, or fraudulent claims against the United States, penalties for which are set forth in 18 U.S.C. 287.
31 U.S.C. 711.
This part implements the policy of the U.S. General Accounting Office (GAO) with respect to the public availability of GAO records. While GAO is not subject to the Freedom of Information Act (5 U.S.C. 552), GAO's disclosure policy follows the spirit of the act consistent with its duties and functions and responsibility to the Congress. Application of this act to GAO is not to be inferred from the provisions of these regulations.
The administration of this part is the duty and responsibility of the Director, Office of Policy (OP), U.S. General Accounting Office, 441 G Street, NW., Washington, D.C. 20548, and to that end the Director shall promulgate such supplemental rules or regulations as may be necessary.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(a) A request to inspect or obtain a copy of an identifiable record of GAO must be submitted in writing to the Director, OP (see § 81.2), who will promptly acknowledge and record the request.
(b) The Director, OP, or other GAO organizational unit will promptly honor the request if no valid objection exists to the propriety of such action and the requester is willing and able to pay the prescribed fees for making the record available for inspection or copying or being provided with a copy.
(c) In the event of an objection or doubt as to the propriety of providing the requester with a copy of the record
(d) A person whose request is denied shall be informed that further consideration of his/her request may be obtained by a letter to the Comptroller General of the United States setting forth the basis for the belief that the denial of the request was unwarranted.
(a) It is the policy of GAO not to provide records from its files that originate in another agency or nonfederal organization to persons who may not be entitled to obtain the records from the originator. In such instances, requesters will be referred to the person or organization that originated the records.
(b) In order to avoid disruption of work in progress, and in the interests of fairness to those who might be adversely affected by the release of information which has not been fully reviewed to assure its accuracy and completeness, it is the policy of GAO not to provide records which are part of ongoing reviews or other current projects. In response to such requests, GAO will inform the requester of the estimated completion date of the review or project so that the requester may then ask for the records. At that time, the records may be released unless exempt from disclosure under § 81.6.
The public disclosure of GAO records contemplated by this part does not apply to records, or parts thereof, within any of the categories listed below. Unless precluded by law, the Director, OP, may nevertheless release records within these categories.
(a) Congressional correspondence and other papers relating to work performed in response to a congressional request (unless authorized by the congressional requester), and congressional contact memoranda.
(b) Records specifically required by an Executive Order to be kept secret in the interest of national defense or foreign policy. An example of this category is a record classified under Executive Order 12356, National Security Information.
(c) Records related solely to the internal personnel rules and practices of an agency. This category includes, in addition to internal matters of personnel administration, internal rules and practices which cannot be disclosed without prejudice to the effective performance of an agency function. Examples within the purview of this exemption are guidelines, and procedures for auditors, investigators, or examiners.
(d) Records specifically exempted from disclosure by statute provided that such statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(e) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential. This exemption may include, but is not limited to, business sales statistics, inventories, customer lists, scientific or manufacturing processes or development information.
(f) Personnel and medical files and similar files the disclosure of which could constitute a clearly unwarranted invasion of personal privacy. This exemption excludes from disclosure all personnel and medical files, and all private or personal information contained in other files, which, if disclosed to the public, would amount to a clearly unwarranted invasion of the privacy of any person. An example of such other files within the exemption would be files compiled to evaluate candidates for security clearance.
(g) Records and information compiled for law enforcement purposes.
(h) Records having information contained in or related to examination, operation, or condition reports prepared
(i) Records containing geological and geophysical information and data (including maps) concerning wells.
(j) Inter-agency or intra-agency memoranda, letters or other materials that are part of the deliberative process. For example, this exemption includes internal communications such as GAO or other agency draft reports, and those portions of internal drafts, memoranda and workpapers containing opinions, recommendations, advice or evaluative remarks of GAO employees. This exemption seeks to avoid the inhibiting of internal communications, and the premature disclosure of documents which would be detrimental to an agency function.
(k) Records in addition to those described in paragraph (j) of this section containing information customarily subject to protection as privileged in a court or other proceedings, such as information protected by the doctor-patient, attorney-work product, or lawyer-client privilege.
(l) Unsolicited records containing information submitted by any person to GAO in confidence and records which GAO has obligated itself not to disclose. An example of records covered by this exemption would be information obtained by the GAO Fraud Referral and Investigations Group (GAO Hotline).
(a) No fee or charge will be made for:
(1) Records provided under provisions of this part when the direct search and reproduction costs are less than $25.
(2) Records requested which are not found or which are determined to be exempt under provisions of this part.
(3) Staff-hours spent in resolving any legal or policy questions pertaining to the request.
(4) Copies of records including those certified as true copies, that are furnished for official use to any officer or employee of the federal government.
(5) When necessary or desirable to the performance of a function of GAO, copies of pertinent records furnished to a party having a direct and immediate interest in a matter pending before the Office.
(b) When costs are $25 or more, the fees and charges described below, will be assessed for the direct costs of search and reproduction of records available to the public under this part.
(1) The reproduction charge per page shall be 20 cents.
(2) Certification of authenticity shall be $10 for each certificate.
(3) Search for records by office personnel.
(i) Clerical personnel—$10 an hour.
(ii) Professional personnel—$20 an hour.
(4) Other direct costs related to the request may be charged for such items as computer searches.
(c) GAO shall notify the requester and may require an advance deposit where the anticipated fees will exceed $50.
(d) Fees and charges shall be paid by check or money order payable to the U.S. General Accounting Office.
(e) Fees established by this section may be waived or reduced upon a determination by the Director, OP, that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commerical interest of the requester. Persons seeking such waiver or reduction of fees may be required to submit a statement setting forth the intended purpose for which the records are requested or otherwise indicate how disclosure will primarily benefit the public and, in appropriate cases, explain why the volume of records requested is necessary. Determinations pursuant to this paragraph are solely within the discretion of GAO.
A public reading facility shall be maintained by the General Accounting Office at 441 G Street NW., Washington, DC. The facility, under the control of the Office of the General Counsel, shall be open to the public from 8:30 a.m. to
31 U.S.C. 711, 713, 714, 718, 3523, 2524, 2526, and 3529.
(a) A subpoena or request from a court for records of the General Accounting Office should be directed to the Comptroller General of the United States and served upon the Records Management and Services Officer, Office of Information Systems and Services.
(b) In honoring a court subpoena or request original records may be presented for examination but must not be presented as evidence or otherwise used in any manner by reason of which they may lose their identity as official records of the General Accounting Office. They must not be marked or altered, or their value as evidence impaired, destroyed, or otherwise affected. In lieu of the original -records, certified copies will be presented for evidentiary purposes since they are admitted in evidence equally with the originals (31 U.S.C. 704).
The provisions of § 81.7 of this chapter are applicable to this part; however, where the charging of fees is appropriate, they need not be collected in advance.
31 U.S.C. 711(1); Memorandum of Understanding between the U.S. Office of Personnel Management, the National Archives and Records Service of the General Services Administration and the U.S. General Accounting Office; 4 CFR part 81; 5 CFR parts 294-297; and 31 U.S.C. 731,
This part describes the policy and prescribes the procedures of the U.S. General Accounting Office (GAO) with respect to maintaining and protecting the privacy of GAO personnel records. While GAO is not subject to the Privacy Act (Act) (5 U.S.C. 552a), GAO's policy is to conduct its activities in a manner that is consistent with the spirit of the Act and its duties, functions, and responsibilities to the Congress. Application of the Privacy Act to GAO is not to be inferred from the provisions of these regulations. These regulations are designed to safeguard individuals against invasions of personal privacy by requiring GAO, except as otherwise provided by law, to—
(a) Protect privacy interests of individuals by imposing requirements of accuracy, relevance, and confidentiality for the maintenance and disclosure of personnel records;
(b) Inform individuals of the existence of systems of personnel records maintained by GAO containing personal information; and
(c) Inform individuals of the right to see and challenge the contents of personnel records containing information about them.
The administration of this part is the duty and responsibility of the Director, Personnel, U.S. General Accounting Office, 441 G Street NW., Washington, D.C. 20548. To this end, the Director, Personnel, in consultation with the Office of the General Counsel, is authorized to issue such supplemental regulations or procedural directives as may be necessary and appropriate.
(a) The Director, Personnel, shall have general responsibility and authority for implementing this part, including—
(1) Approving all systems of personnel records to be maintained by GAO (whether physically located in GAO's Office of Personnel or elsewhere), including the contents and uses of such systems, accounting methods, and security methods; and
(2) Responding to an individual's request to gain access to or amend his or her own personnel records.
(b) The Director, Personnel, may delegate within GAO any of his functions under this part.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
GAO shall not disclose any record that is contained in a system of personnel records by an means of communication to any person or organization, including another agency, without the prior written consent of the individual to whom the record pertains, unless disclosure of the record would be:
(a) To those officers and employees of GAO who have a need for the record in the performance of their duties; or
(b) Required under regulations implementing the public availability of GAO records published at part 81 of this chapter, or authorized under § 83.5; or
(c) For a routine use as defined in § 83.3(f); or
(d) To a recipient who has provided GAO with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable; or
(e) To another agency or an instrumentality of any governmental jurisdiction within or under the control of
(f) To any person pursuant to a showing of compelling circumstances affecting the health or safety of an individual (not necessarily the data subject) if upon such disclosure notification is transmitted to the last known address of the subject of the personnel record; or
(g) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee of Congress; or
(h) Pursuant to the order of a court of competent jurisdiction or in connection with any judicial or quasi-judicial proceedings; or
(i) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13, United States Code; or
(j) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value; or
(k) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).
(a) This section governs responses to a member of the public, prospective employers, and law enforcement officials, for access to information covered by this part. It does not limit in any way other disclosures of information pursuant to other provisions of this part.
(b) The following information about most present and former GAO employees is available to the public:
(1) Name;
(2) Present and past position titles;
(3) Present and past grades;
(4) Present and past salaries; and
(5) Present and past duty stations (which include room numbers, shop designations, or other identifying information regarding buildings or places of employment.
(c) Disclosure of the above information will not be made where the information requested is a list of present or past position titles, grades, salaries, and/or duty stations of Government employees which, as determined by the Director, Personnel, is:
(1) Selected in such a way as to constitute a clearly unwarranted invasion of personal privacy because the nature of the request calls for a response that would reveal more about the employees on whom information is sought than the five enumerated items; or
(2) Would otherwise be protected from mandatory disclosure under an exemption of part 81 of this title concerning the public availability of GAO records.
(d) In addition to the information that may be made available under paragraph (a) of this section, GAO may make available the following information to a prospective employer of a GAO employee or former GAO employee:
(1) Tenure of employment;
(2) Civil service status;
(3) Length of service in GAO and the Government; and
(4) When separated, the date and reason for separation shown on the required standard form.
(e) In addition to the information to be made available under paragraph (a) of this section, the home address of an employee shall be made available to a police or court official on receipt of a proper request stating that an indictment has been returned against the employee or that complaint, information, accusation, or other writ involving nonsupport or a criminal offense has been filed against the employee and the employee's address is needed for service of a summons, warrant, subpoena, or other legal process.
(f) Except as provided in paragraphs (a) through (e) of this section, and except as provided in this part, information required to be included in an Official Personnel Folder is not available to the public and is protected from disclosure by § 81.6(f) of this chapter.
(g)
(1) Confirmation of the name of the individual from whose file the information is sought and the names of the other parties concerned;
(2) The status of the case;
(3) The decision on the case;
(4) The nature of the action appealed; and
(5) With the consent of the parties concerned, other reasonably identified information from the file.
(h)
(i)
(j)
(2) GAO will not make a report of investigation or information from a report under its control available to the public or to witnesses, except as otherwise required under GAO regulations implementing the public availability of records published at part 81 of this chapter.
(a) With respect to each system of personnel records, GAO shall, except for disclosures made under §§ 83.4(a) and 83.4(b), keep an accurate accounting of—
(1) The date, nature, and purpose of disclosure of a record to any person; and
(2) The name and address of the person, agency, or organization to whom the disclosure is made.
(b) Such accounting shall be retained for at least 3 years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.
(c) Except for disclosures made under § 83.4(e), the accounting shall be available upon written request to the individual named in the record.
(a) GAO shall maintain in its personnel records only such information about an individual as is relevant and necessary to accomplish an authorized official purpose. Authority to maintain personnel records does not constitute authority to maintain information in the record merely because a need for it may develop in the future. Both Government-wide and internal agency personnel records shall contain only information concerning an individual that is relevant and necessary to accomplish GAO's personnel management objectives as required by statute, GAO internal directive, or formal agreements between GAO and other Federal agencies.
(b) GAO shall make every reasonable effort to collect information about an individual directly from that individual when the information may result in adverse determinations about the individual's rights, benefits, and privileges under Federal programs. Factors to be considered in determining whether to collect the data from the individual concerned or a third party are:
(1) The nature of the information is such that it can only be obtained from another party;
(2) The cost of collecting the information directly from the individual is unreasonable when compared with the cost of collecting it from another party;
(3) There is virtually no risk that information collected from other parties, if inaccurate, could result in a determination adverse to the individual concerned;
(4) The information supplied by an individual must be verified by another party; or
(5) Provisions are made, to the greatest extent practical, to verify information collected from another party with the individual concerned.
(c) GAO shall inform each individual whom it asks to supply information for a personnel record, on the form which it uses to collect the information or on a separate form that can be retained by the individual, of—
(1) The authority for the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for which the information is intended to be used;
(3) The routine uses which may be made of the information, as published pursuant to paragraph (d)(4) of this section; and
(4) The effects, if any, of not providing all or any part of the requested information;
(d) Subject to the provisions of paragraph (i) of this section, GAO shall publish in the
(1) The name and location(s) of each system of personnel records;
(2) The categories of individuals about whom records are maintained in each such system;
(3) The categories of records maintained in each system of personnel records;
(4) Each routine use of the records contained in each system of personnel records, including the categories of users and the purpose(s) of such use;
(5) The policies and practices of GAO regarding storage, retrievability, access controls, retention, and disposal of the records;
(6) The title and business address of the GAO official who is responsible for maintaining each system of personnel records;
(7) GAO procedures whereby an individual can ascertain whether a system of personnel records contains a record pertaining to the individual;
(8) Procedures whereby an individual can request access to any record pertaining to him contained in any system of personnel records, and how the individual may contest its content; and
(9) The categories of sources of records in each system of personnel records.
(e) GAO shall maintain all records which it uses in making any determination about any individual with such accuracy, relevancy, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;
(f) GAO shall, prior to disseminating any record about an individual to any person other than a Federal agency, make all reasonable efforts to reassure that such records are accurate, complete, timely, and relevant for GAO's purposes;
(g) GAO shall make reasonable efforts to serve notice on an individual or his authorized representative when any personnel record on such individual is being made available to any person under compulsory legal process as soon as practicable after service of the subpoena or other legal process;
(h) GAO shall establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of personnel records or files or in maintaining any
(i)(1) GAO shall establish and maintain appropriate administrative, technical and physical safeguards to ensure the security and confidentiality of personnel records. At a minimum, these controls shall require that all persons whose official duties require access to and use of personnel records be responsible and accountable for safeguarding those records and for ensuring that the records are secured whenever they are not in use or under the direct control of authorized persons. Generally, personnel records should be held, processed, or stored only where facilities and conditions are adequate to prevent unauthorized access;
(2) Except for access by the data subject, only employees whose official duties require and authorize access shall be allowed to handle and use personnel records, in whatever form or media the records might appear. To the extent feasible, entry into personnel record storage areas shall be similarly limited. Documentation of the removal of records from storage areas must be kept so that adequate control procedures can be established to assure that removed records are returned intact on a timely basis and properly controlled during such period of removal.
(3) In addition to following the above security requirements, managers of automated personnel records shall establish and maintain administrative, technical, physical, and security safeguards for data about individuals in automated records, including input and output documents, reports, punched cards, magnetic tapes, disks, and on-line computer storage. As a minimum, the safeguards must be sufficient to:
(i) Prevent careless, accidental, or unintentional disclosure, modification, or destruction of identifiable personal data;
(ii) Minimize the risk of improper access, modification, or destruction of identifiable personnel data;
(iii) Prevent casual entry by persons who have no official reason for access to such data;
(iv) Minimize the risk of unauthorized disclosure where use is made of identifiable personal data in testing of computer programs;
(v) Control the flow of data into, through, and from computer operations;
(vi) Adequately protect identifiable data from environmental hazards and unnecessary exposure; and
(vii) Assure adequate internal audit procedures to comply with these procedures.
(4) The disposal of identifiable personal data in automated files is to be accomplished in such a manner as to make the data unobtainable to unauthorized personnel. Unneeded personal data stored on reusable media, such as magnetic tapes and disks, must be erased prior to release of the media for reuse.
(j) At least 30 days prior to publication of information under paragraph (d)(4) of this section, GAO shall publish in the
(a) GAO employees whose official duties involve the maintenance and handling of personnel records shall not disclose information from any personnel record unless disclosure is part of their official duties or required by statute, regulation, or internal procedure.
(b) Any GAO employee who makes an unauthorized disclosure of personnel records or a disclosure of information derived from such records, knowing that such disclosure is unauthorized, or otherwise knowingly violates these regulations, shall be subject to appropriate disciplinary action. GAO employees are prohibited from using personnel information not available to the public, obtained through official duties, for commercial solicitation or sale, or for personal gain. Any employee who knowingly violates this prohibition shall be subject to appropriate disciplinary action.
(a) GAO may not require individuals to disclose their Social Security Number (SSN) unless disclosure would be required—
(1) Under Federal statute; or
(2) Under any statute, executive order, or regulation that authorizes any Federal, State, or local agency maintaining a system of records that was in existence and operating prior to January 1, 1975, to request the SSN as a necessary means of verifying the identity of an individual.
(b) Individuals asked to voluntarily provide their SSN shall suffer no penalty or denial of benefits for refusing to provide it.
(c) When GAO requests an individual to disclose his or her SSN, it shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
Personnel records or entries thereon describing how individuals exercise rights guaranteed by the First Amendment to the United States Constitution are prohibited, unless expressly authorized by statute or by the individual concerned, or unless pertinent to and within the scope of an authorized law enforcement activity. These rights include, but are not limited to, free exercise of religious and political beliefs, freedom of speech and the press, and freedom to assemble and to petition the Government.
(a) GAO shall establish and maintain an Official Personnel Folder for each of its employees, except as provided in the GAO/U.S. OPM/GSA Memorandum of Understanding (see subsection (b)). Except as provided for in Federal Personnel Manual (FPM) Supplement 293-31 there will be only one Official Personnel Folder maintained for each employee.
(b)
(c) GAO policy is to assure continuity and coordination of the Official Personnel Folder when a person, for whom an Official Personnel Folder has been established, separates from GAO, or transfers to or from GAO from or to a Federal agency subject to regulations of the U.S. OPM relating to Official Personnel Folders. GAO will maximize the pooling of information between itself and those Federal agencies subject to U.S. OPM rules and regulations concerning the Official Personnel Folder so that a GAO employee may transfer to and from other Federal agencies with one complete and informative Official Personnel Folder.
(d)
(2) The Official Personnel Folders of current GAO employees whose GAO employment began on or after October 1, 1980, and who have had no previous employment by an executive branch agency of the Federal government shall be under the jurisdiction and control of, and are the records of GAO. GAO shall retain jurisdiction over such records even when they are transferred to an executive branch agency.
(3) The Official Personnel Folders of current GAO employees who were employed prior to October 1, 1980, by either GAO or an executive branch agency shall be under the control of GAO, but those records established prior to October 1, 1980, by GAO, and all records established as a result of employment by an executive branch agency shall remain under the jurisdiction of, and be part of the records of, U.S. OPM.
(4) GAO will maintain those Official Personnel Folders containing records of employment by an executive branch Federal agency, or by GAO prior to October 1, 1980, in compliance with regulations of the U.S. OPM in accordance with the procedures contained in the
(e)
(f)
(1) When a person for whom an Official Personnel Folder has been established transfers from GAO to another Federal agency that maintains the Folder, GAO shall, on request, transfer the Folder to the new employing agency.
(2) Before transferring the Official Personnel Folder, GAO shall—
(i) Remove those records of a temporary nature filed on the left side of the Folder; and
(ii) Ensure that all permanent documents of the Folder are complete, correct, and present in the Folder in accordance with FPM Supplement 293-31.
(g)
(2) GAO shall remove temporary records from the Folder before it is transferred in accordance with guidelines applicable to Federal agencies which are subject to U.S. OMP regulations.
(3) If a former GAO employee is reappointed in the Federal service, the employee's Folder shall, upon request, be transferred to the new employing agency.
(h)
(a) Upon written request by any individual outside of GAO or upon written or oral request by any officer or employee of GAO to gain access to his or her record or to any information pertaining to the individual which is contained in a system of personnel records, and not otherwise exempted, GAO shall permit the individual and upon the individual's request a person of his or her own choosing to accompany him or her, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him or her, except that GAO may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence. When access to the records has been granted by a system manager or designee:
(1) Inspection in person may be made in the office designated in the system notice during the hours specified by GAO.
(2) Upon the determination of the designated GAO official, records may be transferred to a GAO office more convenient to the data subject to review.
(3) Generally, GAO will not furnish certified copies of records. Where certified copies of records are to be furnished, they may be mailed at the request of the data subject or, as determined by GAO, only after payment of any fee levied in accordance with § 83.17 is received.
(4) In no event shall original records be made available for review by the individual except in the presence of a system manager or designee.
(b) The general identifying information items that the designated GAO official may ask to be furnished before a specific inquiry is granted include:
(1) Full name, signature, and home address;
(2) Picture identification card;
(3) The current or last place and dates of Federal employment, if appropriate; and
(4) Social security number (for those systems of records retrieved by this identifier).
(c) A request or inquiry from someone other than the individual to whom the information pertains shall contain such documents or copies of documents that establish the relationship or authorize access as follows:
(1) When the requester is the parent or legal guardian of a data subject who is a minor, the requester shall identify the relationship with the data subject and furnish a certified or authenticated (e.g. notarized) copy of any document establishing parentage or appointment as legal guardian.
(2) Where the requester is the legal guardian of a data subject who has been declared incompetent by the courts, the requester shall identify the relationship with the data subject and furnish a certified or authenticated copy of the court's appointment of guardianship.
(3) Where the requester is a representative of the data subject, the requester shall identify the relationship with the data subject or the data subject's parent or legal guardian, and furnish documentation designating the representative as having the authority to act on behalf of the data subject.
(d) When the requester appears in person and cannot be identified by sight and signature, proof of identity is required as follows:
(1) When a request is from the data subject, the means of proof, in order of preference, are:
(i) A document bearing the individual's photograph and signature (for example, driver's license, passport, or military or civilian identification card); or
(ii) Two documents bearing the individual's signature (for example, Medicare card, unemployment insurance book, employer identification card, major credit card, professional, draft, or union membership card).
(2) When a request is made by the parent, legal guardian, or authorized representative of the data subject, the means of identifying the requester and his or her authority for acting on behalf of the data subject shall be as prescribed in paragraph (c) of this section. In addition, the requester shall establish the identity of the data subject by requiring the identifying information in paragraph (b) of this section.
(e) When a written inquiry or request is received from the data subject, or from the data subject's parent, legal guardian, or authorized representative, it should be signed and—
(1) For an inquiry, contain sufficient identifying information about the data subject to permit searching of the record system(s) and to permit response; and
(2) For an access request—
(i) From the data subject, contain sufficient information to locate the record and establish that the requester and the data subject are the same (e.g. matching signatures); or
(ii) From the data subject's parent, legal guardian, or authorized representative, contain sufficient information to locate the record, match identity with the data subject, and such documentation of association or authorization as is prescribed in paragraphs (c) and (d) of this section.
(f) The signed request from the data subject, or from the data subject's parent, legal guardian, or authorized representative specified in paragraph (c) of this section shall be sufficient proof of identity of the requester, unless for good cause, the system manager or designee determines that there is a need to require some notarized or certified evidence of the identity of the requester.
(a) General inquiries to request assistance in identifying which system of records may contain a record about an individual may be made in person or by mail to the Director, Personnel.
(b) An inquiry that requests GAO to determine if it has, in a given system of personnel records, a record about the
(a) If an access request is denied, the official denying the request shall give the requester the following information:
(1) The official's name, position title, and business mailing address;
(2) The date of the denial;
(3) The reasons for the denial, including citation of appropriate sections of this or any other applicable part; and
(4) The individual's opportunities for further administrative consideration, including the name, position title, and address of the GAO official (see paragraph (c) of this section) responsible for such further review.
(b) Denial of a request for access to records will be made only by the official GAO designee and only upon a determination that:
(1) The record is subject to an exemption under § 83.21 when the system manager has elected to invoke the exemption; or
(2) The record is information compiled in reasonable anticipation of a civil action or proceeding; or
(3) The data subject or authorized representative of the data subject refuses to abide by procedures for gaining access to records.
(c) A request for administrative review of a denial shall be made to the Assistant Comptroller General for Human Resources, U.S. General Accounting Office, 441 G Street, NW, Washington, D.C. 20548. The Assistant Comptroller General shall acknowledge receipt of a request for administrative review of a denial of access within 10 working days after receipt of the request. If it is not possible to reach a decision within an additional 10 working days, the requester shall be informed of the approximate date (within 30 working days) when such a decision may be expected.
(d) In reaching a decision, the Assistant Comptroller General will review the criteria prescribed in this section which were cited as the basis for denying access, and may seek additional information as deemed necessary.
(a) Individuals may request the amendment of their records in writing or in person by contacting the system manager or designee indicated in the notice of systems of records published by GAO in the
(b) A request for amendment should include the following:
(1) The precise identification of the records sought to be amended, deleted, or added.
(2) A statement of the reasons for the request, with all available documents and material that substantiate the request.
(c) GAO shall permit an individual to request amendment of a record pertaining to the individual. Not later than 10 working days after the date of receipt of such request, the designated GAO official shall acknowledge in writing such request and, promptly, either—
(1) Make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(2) Inform the individual of the refusal to amend the record in accordance with his or her request, the reason for the refusal, and the name and business address of the GAO official responsible for the refusal.
(3) The GAO offical shall permit an individual who disagrees with the refusal by the designated GAO official to amend his or her record to request review of such refusal. A request for administrative review of a denial shall be made in accordance with § 83.16.
(4) In any disclosure containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under § 83.16(d), GAO shall clearly note any portion of the record which is disputed and provide copies of a concise statement of the reasons for not
(5) Nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
(d) If necessary, the official authorized to rule on a request for amendment may seek additional information pertinent to the request to assure that a fair, equitable, and accurate decision is reached.
(e) The following criteria will be considered by the system manager or designee in reviewing initial requests for amendment of records:
(1) The sufficiency of the evidence submitted by the data subject;
(2) The factual accuracy of the information submitted and the information in the record;
(3) The relevancy, necessity, timeliness, and completeness of the information in light of the purpose for which it was collected;
(4) The degree of possibility that denial of the request could result in unfair determinations adverse to the data subject;
(5) The character of record sought to be amended;
(6) The propriety and feasibility of complying with specific means of amendment requested by the data subject; and
(7) The possible involvement of the record in a judicial or quasi-judicial process.
(a) A request for administrative review of GAO's denial to amend a record in GAO's system of personnel records shall be addressed to the Assistant Comptroller General for Human Resources, U.S. General Accounting Office, 441 G Street, NW, Washington, D.C. 20548. The Assistant Comptroller General shall acknowledge receipt of a request for administrative review of a denial of amendment within 10 working days.
(b) If a decision cannot be made within an additional 10-day period, a letter will be sent within that time explaining the delay and furnishing an expected date for the decision. A decision on the request must be made within 30 working days after receipt of the request. Only for good cause shown, and at the discretion of the Assistant Comptroller General for Human Resources can this time limit be extended. Any extension requires written notification to the requester explaining the reason for the extension and furnishing a new expected date for the decision. Generally, such extension shall be for no more than an additional 30 working days.
(c) When a request for administrative review of an amendment denial is submitted, the individual must provide a copy of the original request for amendment, a copy of the initial denial, and a statement of the specific reasons why the initial denial is believed to be in error.
(d) An individual requesting an amendment of a record has the burden of supplying information in support of the propriety and necessity of the amendment request. The decision on the request will then be rendered based on a review of the data submitted. The GAO official is not required to gather supporting evidence for the individual and will have the right to verify the evidence which the individual submits.
(e) Amendment of a record will be denied upon a determination by the system manager or designee that:
(1) The record is subject to an exemption from the provisions of this part, allowing amendment of records;
(2) The information submitted by the data subject is not accurate, relevant, or of sufficient probative value;
(3) The amendment would violate a statute or regulation;
(4) The individual refuses to provide information which is necessary to process the request to amend the record; or
(5) The record for which amendment is requested is a record presented in a judicial or quasi-judicial proceeding, or maintained in anticipation of being used in a judicial or quasi-judicial proceeding, when such record is or will become available to the individual under that proceeding.
(f) If, after review, the Assistant Comptroller General for Human Resources also refuses to amend the record in accordance with the request, the individual will be permitted to file
(a) Generally, GAO's policy is to provide the first copy of any record or portion thereof, furnished as a result of this part, at no cost to the data subject or authorized representative. However, in cases where GAO deems it appropriate (for example, where the record is voluminous), the system manager or designee in his or her discretion may charge a fee when the cost for copying the record (at a rate of 20 cents per page) would be in excess of ten dollars ($10).
(b) There shall be no fees charged or collected from a data subject for the following:
(1) Search for or retrieval of the data subject's records;
(2) Review of the records;
(3) Making a copy of a record when it is a necessary part of the process of making the record available for review;
(4) Copying at the initiative of GAO without a request from the individual;
(5) Transportation of the record; and
(6) Making a copy of an amended record to provide the individual with evidence of the amendment.
(c) Certification of authenticity shall be $10 for each certificate, which fee may be waived in the discretion of the system manager or designee.
For the purposes of this part, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.
When GAO provides by a contract for the operation by or on behalf of GAO of a system of personnel records to accomplish a function of GAO, GAO shall, consistent with its authority, cause the requirements of this part to be applied to such system. Any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section, shall be considered, for the purposes of this part, to be an employee of GAO. Contractor employees will be required to observe the confidentiality requirements of this part. Violations of this part by contractor employees may be a sufficient ground for contract termination.
An individual's name and address may not be sold or rented by GAO unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.
(a) All personnel records are exempted from §§ 83.6(c), 83.12, 83.13, 83.14, and 83.15, relating to making an accounting of disclosures available to the data subject or his authorized representative and access to and amendment of the records and other sections relating to procedural requirements of the above-cited sections if the record is:
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and is in fact classified pursuant to such Executive order.
(2) Investigatory material compiled for law enforcement purposes:
(3) Maintained in connection with providing protection services to the President of the United States or other individuals pursuant to section 3056 of Title 18, United States Code;
(4) Required by statute to be maintained and used solely as statistical records;
(5) Investigatory material compiled solely for the purposes of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of the source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an express or implied promise that the identity of the source would be held in confidence (
(6) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(7) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an express or implied promise that the identity of the source would be held in confidence.
This memorandum of understanding constitutes an agreement between the U.S. Office of Personnel Management (OPM), the National Archives and Records Service of the General Services Administration (NARS), and the U.S. General Accounting Office (GAO) concerning:
(1) The maintenance of the Official Personnel Folder (OPF) of an individual who has been employed in a position subject to the provisions of Title 5, U.S.C. and to the regulations and procedures issued by OPM to govern the Federal civil service, and also in a position subject to the GAO Personnel Act of 1980 (Pub. L. 96-191) and its implementing regulations and procedures;
(2) The exchange of personnel documents and data between the Federal civil service administered by OPM and the personnel system administered by GAO;
(3) The establishment of procedures for processing requests for access to, disclosure from, and amendment of documents in the OPF of an individual who has service under both personnel systems;
(4) The establishment of procedures to be followed by the National Personnel Records Center (NPRC) when responding to requests pertaining to separated employees in any of the following circumstances:
(a) When the OPF contains documentation resulting from employment in both systems;
(b) When a request is received for transfer of an OPF between systems;
(c) When processing a request for an OPF, and that OPF contains only records of GAO employment since October 1, 1980;
(5) The agreement of the parties to consult and cooperate in matters relating to the establishment and revision of personnel procedures which may have mutual effect so as to insure the sharing of essential information while minimizing the recordkeeping burden of all three parties.