[Title 4 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 4
Accounts
Revised as of January 1, 2018
Containing a codification of documents of general
applicability and future effect
As of January 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 4:
Chapter I--Government Accountability Office 3
Finding Aids:
Table of CFR Titles and Chapters........................ 103
Alphabetical List of Agencies Appearing in the CFR...... 123
List of CFR Sections Affected........................... 133
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 4 CFR 2.1 refers to
title 4, part 2, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2018
[[Page ix]]
THIS TITLE
Title 4--Accounts is composed of one volume. This volume contains
chapter I--Government Accountability Office (GAO). The contents of this
volume represent all current regulations codified under this title of
the CFR as of January 1, 2018.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 4--ACCOUNTS
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Part
chapter i--Government Accountability Office................. 2
[[Page 3]]
CHAPTER I--GOVERNMENT ACCOUNTABILITY OFFICE
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Editorial Note: Nomenclature changes to chapter I appear at 70 FR
17583, Apr. 7, 2005.
SUBCHAPTER A--PERSONNEL SYSTEM
Part Page
1 [Reserved]
2 Purpose and general provision............... 5
3 Employment.................................. 7
4 Employee performance and utilization........ 8
5 Compensation................................ 9
6 Attendance and leave........................ 11
7 Personnel relations and services............ 11
8 Insurance and annuities..................... 16
9 Senior Executive Service.................... 16
11 Recognition of attorneys and other
representatives......................... 17
SUBCHAPTER B--GENERAL PROCEDURES
21 Bid protest regulations..................... 19
22 Rules of procedure of the Government
Accountability Office Contract Appeals
Board................................... 27
25 Conduct in the Government Accountability
Office building and on its grounds...... 44
27 Government Accountability Office Personnel
Appeals Board; Organization............. 47
28 Government Accountability Office Personnel
Appeals Board; Procedures applicable to
claims concerning employment practices
at the Government Accountability Office. 48
[[Page 4]]
29 [Reserved]
SUBCHAPTERS C-D [RESERVED]
SUBCHAPTER E--STANDARDIZED FISCAL PROCEDURES
75 Certificates and approvals of basic vouchers
and invoices............................ 83
SUBCHAPTER F--RECORDS
81 Public availability of Government
Accountability Office records........... 84
82 Furnishing records of the Government
Accountability Office in judicial
proceedings............................. 88
83 Privacy procedures for personnel records.... 88
SUBCHAPTER G [RESERVED]
84-199 [Reserved]
[[Page 5]]
SUBCHAPTER A_PERSONNEL SYSTEM
PART 1 [RESERVED]
PART 2_PURPOSE AND GENERAL PROVISION--Table of Contents
Sec.
2.1 Purpose, scope, and applicability.
2.2 References.
2.3 GAO Personnel Appeals Board.
2.4 Merit system principles.
2.5 Prohibited personnel practices.
2.6 Veterans' preference.
Authority: 31 U.S.C. 732.
Source: 45 FR 68375, Oct. 15, 1980, unless otherwise noted.
Sec. 2.1 Purpose, scope, and applicability.
(a) This regulation establishes and sets forth the basic policy for
the Government Accountability 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.
Sec. 2.2 References.
(a) Subchapters III and IV of Chapter 7 of Title 31 U.S.C.
(b) Title 5, United States Code.
[45 FR 68375, Oct. 15, 1980, as amended at 47 FR 56979, Dec. 22, 1982]
Sec. 2.3 GAO Personnel Appeals Board.
The Government Accountability 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.
[47 FR 56979, Dec. 22, 1982]
Sec. 2.4 Merit system principles.
(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.
[[Page 6]]
(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 not improve their
performance to meet required standards.
(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.
Sec. 2.5 Prohibited personnel practices.
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) Discrimination. GAO employees shall not discriminate for or
against any employee or applicant for employment--
(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) Recommendations or statements. GAO employees shall not solicit
or consider any recommendation or statement, oral or written, with
respect to any individual who requests or is under consideration for any
personnel action unless such recommendation or statement is based on the
personal knowledge or records of the person furnishing it and consists
of--
(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) Political activity. GAO employees shall not coerce the political
activity of any person (including the providing of any political
contribution or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal of any person to
engage in such political activity.
(d) Compete for employment. GAO employees shall not deceive or
willfully obstruct any person with respect to such person's right to
compete for employment.
(e) Influencing competition. GAO employees shall not influence any
person to withdraw from competition for any position for the purpose of
improving or injuring the prospects of any other person for employment.
(f) Preference or advantage. GAO employees shall not grant any
preference or advantage not authorized by law, rule, or regulation to
any employee or applicant for employment (including defining the scope
or manner of competition or the requirements for any position) for the
purpose of improving or injuring the prospects of any particular person
for employment.
(g) Relatives. GAO employees who are serving as public officials (as
defined in section 3110(a)(2) of title 5, United States Code) shall not
appoint, employ, promote, advance, or advocate for appointment,
employment, promotion, or advancement, in or to a GAO position any
individual who is a relative (as defined in section 3110(a)(3) of title
5, U.S. Code) of such employee.
(h) Reprisals. GAO employees shall not take or fail to take a
personnel action with respect to any employee or
[[Page 7]]
applicant for employment as a reprisal for--
(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) Reprisals for appeals. GAO employees shall not take or fail to
take any personnel action against any employee or applicant for
employment as a reprisal for the exercise of any appeal right granted by
any law, rule, or regulation.
(j) Discrimination for conduct. GAO employees shall not discriminate
for or against any employee or applicant for employment on the basis of
conduct which does not adversely affect the performance of the employee
or applicant or the performance of others; except that nothing in this
paragraph shall prohibit an agency from taking into account in
determining suitability or fitness any conviction of the employee or
applicant for any crime under the laws of any State, or the District of
Columbia, or of the United States.
(k) Other personnel actions. GAO employees shall not take or fail to
take any other personnel action if the taking of or failure to take such
action violates any law, rule or regulation implementing, or directly
concerning, the merit system principles described in Sec. 2.4.
(l) Information to the Congress. Nothing in this section shall be
construed to authorize the withholding of information from the Congress
or the taking of any personnel action against an employee who discloses
information to the Congress.
Sec. 2.6 Veterans' preference.
(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.
PART 3_EMPLOYMENT--Table of Contents
Sec.
3.1 Appointment, promotion, and assignment.
3.2 Oath of office.
3.3 Assignments to and from States.
Authority: 31 U.S.C. 732.
Source: 45 FR 68376, Oct. 15, 1980, unless otherwise noted.
Sec. 3.1 Appointment, promotion, and assignment.
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.
Sec. 3.2 Oath of office.
The provisions of subchapter II of chapter 33 of title 5, U.S. Code,
and Office of Personnel Management implementing regulations apply to
Government Accountability Office employees.
Sec. 3.3 Assignments to and from States.
The provisions of subchapter VI of chapter 33 of title 5, U.S. Code,
and Office of Personnel Management implementing regulations apply to
Government Accountability Office employees.
[[Page 8]]
PART 4_EMPLOYEE PERFORMANCE AND UTILIZATION--Table of Contents
Sec.
4.1 Training.
4.2 Performance appraisal.
4.3 Removal for unacceptable performance.
4.4 Incentive awards.
Authority: 31 U.S.C. 732.
Source: 45 FR 68376, Oct. 15, 1980, unless otherwise noted.
Sec. 4.1 Training.
The provisions of chapter 41, of title 5, United States Code, and
Office of Personnel Management implementing regulations apply to
Government Accountability Office employees.
Sec. 4.2 Performance appraisal.
(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.
Sec. 4.3 Removal for unacceptable performance.
GAO may reduce in grade/pay level or remove an employee for
unacceptable performance in accordance with the provisions of this
section.
(a) Employee entitlement. A GAO employee whose reduction in grade/
pay level or removal is proposed under this section is entitled to--
(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) Decisions to retain, reduce in grade/pay level or remove. The
decision to retain, reduce in grade or remove a GAO employee--
(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) Performance improvement. If because of performance improvement
by the employee during the notice period,
[[Page 9]]
the employee is not reduced in grade/pay level or removed, and the
employee's performance continues to be acceptable for 1 year from the
date of advance written notice, any records shall be retained only as
prescribed by other recordkeeping requirements, such as grievances,
adverse action appeals, or discrimination complaints. In these
circumstances any entry or notation of unacceptable performance shall be
removed from the employee's official personnel folder and maintained in
separate files to be used only in connection with an employee initiated
complaint.
(d) Appeals. A GAO employee who has been reduced in grade/pay level
or removed under this section is entitled to appeal the action to the
GAO Personnel Appeals Board.
(e) Nonapplicability. This section does not apply to--
(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.
Sec. 4.4 Incentive awards.
The provisions of chapter 45 of title 5, United States Code and
Office of Personnel Management implementing regulations apply to
Government Accountability Office employees.
PART 5_COMPENSATION--Table of Contents
Sec.
5.1 Pay.
5.2 Grade and pay retention.
5.3 Merit pay.
5.4 Pay administration.
5.5 Travel, transportation, and subsistence.
5.6 Allowances.
Authority: 31 U.S.C. 732.
Source: 45 FR 68377, Oct. 15, 1980, unless otherwise noted.
Sec. 5.1 Pay.
(a) Pay principles. Pay of the employees of GAO shall be fixed by
the Comptroller General consistent with the principles that--
(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) Pay rates. (1) The Comptroller General shall publish a schedule
of pay rates which shall apply to GAO employees. Except as provided in
paragraph (b) (2) of this section, and regulations for the GAO Senior
Executive Service, the highest rate under such schedule shall not exceed
the highest rate of basic pay payable for grade GS-15 under the General
Schedule.
(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.
[45 FR 68377, Oct. 15, 1980, as amended at 47 FR 56979, Dec. 22, 1982]
Sec. 5.2 Grade and pay retention.
(a) Change of positions. Any GAO employee who is placed in a lower
grade position as a result of a reduction-in-force may be entitled to
the retained grade of the higher position he or she previously held. The
employee receives this entitlement (which is for a period of 2 years) if
he or she has served for at least 52 consecutive weeks in one or more
positions at a grade or grades higher than the new position. The 2-year
period begins on the date of placement to the lower grade position.
(b) Reclassification. Any GAO employee who is in a position which is
reduced in grade is entitled to have the grade of such position before
reduction
[[Page 10]]
be treated as the retained grade of such employee for the 2-year period
beginning on the date of reduction in grade. However, this section shall
not apply to any reduction in the grade of a position which had not been
classified at the higher grade for a continuous period of at least 1
year immediately before such reduction.
(c) Retained grade. For the 2-year period referred to in paragraphs
(a) and (b) of this section, the retained grade of GAO employees shall
be treated as the grade of the employee's position for all purposes
(including pay and pay administration, retirement, life insurance and
eligibility for training and promotion) except--
(1) For purposes of Sec. 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) Termination of retained grade. The foregoing provisions of this
section shall cease to apply to any GAO employee who--
(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) Pay retention. (1) Any GAO employee: who ceases to be entitled
to a retained grade by reason of the expiration of the 2-year period; or
who (but for this paragraph) would be subject to a reduction in pay
under circumstances prescribed by the Comptroller General by regulation
to warrant the application of this paragraph is entitled to--
(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) ``Allowable former rate of basic pay.'' This means the lower
of--
(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) Termination of retained pay. The pay retention provisions in
Sec. 5.2(e) shall cease to apply to a GAO employee who--
(1) Has a break in service of 1 workday or more.
(2) Is entitled by operation of Sec. Sec. 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
Sec. 5.2(e); or
(3) Is demoted for personal cause or at the employee's request.
(h) Remedial actions. Under regulations prescribed by the
Comptroller General, Personnel shall--
(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) Appeals. In the case of the termination of any benefits to a GAO
employee under this section on the grounds that such employee declined a
reasonable offer of a position the grade or pay of which was equal to or
greater than their retained grade or pay, after administrative remedies
have been exhausted, such termination may be appealed to the GAO
Personnel Appeals Board under procedures prescribed by the Board.
[[Page 11]]
Sec. 5.3 Merit pay.
The Comptroller General may promulgate regulations establishing a
merit pay system for such employees of the Government Accountability
Office as the Comptroller General considers appropriate. The merit pay
system shall be designed to carry out purposes consistent with those set
forth in section 5401(a) of title 5, United States Code, which
provides--
Sec. 5401. Purpose
(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.
Sec. 5.4 Pay administration.
The provisions of chapter 55 of title 5, U.S. Code and the Office of
Personnel Management implementing regulations apply to Government
Accountability Office employees.
Sec. 5.5 Travel, transportation, and subsistence.
The provisions of chapter 57 of title 5, U.S. Code and the
implementing regulations for the Executive Branch apply to Government
Accountability Office employees.
Sec. 5.6 Allowances.
The provisions of chapter 59 of title 5, U.S. Code and the
implementing regulations for the Executive Branch apply to Government
Accountability Office employees.
PART 6_ATTENDANCE AND LEAVE--Table of Contents
Authority: 31 U.S.C. 732.
Sec. 6.1 Applicable law and regulations.
The provision of subpart E, title 5, United States Code and the
Office of Personnel Management implementing regulations regarding
``Attendance and Leave'' apply to Government Accountability Office
employees. This includes hours of work, annual leave, sick leave, and
other paid leave.
[45 FR 68378, Oct. 15, 1980, as amended at 47 FR 56979, Dec. 22, 1982]
PART 7_PERSONNEL RELATIONS AND SERVICES--Table of Contents
Sec.
7.1 Labor management relations.
7.2 Equal employment opportunity.
7.3 Political activities.
7.4 Employment limitations, foreign gifts and decorations, and
misconduct.
7.5 Adverse actions: Suspensions for 14 days or less.
7.6 Adverse actions: Removal, suspension for more than 14 days, reduced
in grade, reduced in pay or furloughed for 30 days or less.
7.7 Other appeals and grievances.
7.8 Services to employees.
Authority: 31 U.S.C. 732.
Source: 45 FR 68378, Oct. 15, 1980, unless otherwise noted.
Sec. 7.1 Labor management relations.
(a) Policy. Each employee of GAO has the right, freely and without
fear of penalty or reprisal, to form, join, or assist an employee
organization, or to refrain from such activity.
(b) Labor relations program. A labor relations program consistent
with chapter 71 of title 5, United States Code will be developed for the
Government Accountability Office.
Sec. 7.2 Equal employment opportunity.
(a) Policy. All personnel actions affecting employees or applicants
for employment in GAO shall be taken without regard to race, color,
religion, age, sex, national origin, political affiliation, marital
status or handicapping condition.
(b) Equal opportunity recruiting program. GAO shall conduct
continuing programs for the recruitment of members of minorities and
women for positions in GAO in a manner designed to eliminate
underrepresentation of minorities and women in the various categories of
employment in GAO. Special efforts will be directed at recruiting in
[[Page 12]]
minority communities, in educational institutions, and from other
sources from which minorities can be recruited. GAO will conduct a
continuing program of evaluation and oversight of such recruiting
programs to determine their effectiveness in eliminating minority and
women underrepresentation.
(c) Statutory rights and remedies. Nothing in this order shall be
construed to abolish or diminish any right or remedy granted to
employees of or applicants for employment in GAO--
(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) Authorities granted thereunder to the Equal Employment
Opportunity Commission, Office of Personnel Management, the Merit
Systems Protection Board, or any other agency in the executive branch
concerning oversight and appeals shall be exercised by the GAO Personnel
Appeals Board. Other responsibilities shall be exercised by the
Comptroller General.
Sec. 7.3 Political activities.
(a) In this section:
(1) Contribution means any gift, subscription, loan, advance,
deposit of money, allotment of money, or anything of value given or
transferred by one person to another, including in cash, by check, by
draft, through a payroll deduction or allotment plan, by pledge or
promise, whether or not enforceable, or otherwise.
(2) Election includes a primary, special, and general election.
(3) Employee means an individual who occupies a position in the
Government Accountability Office.
(4) Employer or employing authority means the Comptroller General,
his principals, or an employee's supervisor.
(5) Federal workplace means any place, site, installation, building,
room, or facility in which any department or agency conducts official
business, including, but not limited to, office buildings, forts,
arsenals, navy yards, post offices, vehicles, ships, and aircraft.
(6) Nonpartisan election means--
(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) Partisan when used as an adjective refers to a political party.
(8) Political fund means any fund, organization, political action
committee, or other entity that, for purposes of influencing in any way
the outcome of any partisan election, receives or expends money or
anything of value or transfers money or anything of value to any other
fund, political party, candidate, organization, political action
committee, or other entity.
(9) Political party means a national political party, a state
political party, and an affiliated organization.
(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;
[[Page 13]]
(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
[[Page 14]]
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 who is the employer or employing authority of the person making
the contribution for any political party, political fund, or other
partisan recipient; and
(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:
In Maryland
Annapolis
Anne Arundel County
Berwyn Heights
Bethesda
Bladensburg
Bowie
Brentwood
Capitol Heights
Cheverly
Chevy Chase, sections 1, 2, 3, and 4 Martin's Additions 1, 2, 3, and 4
to Chevy Chase
Chevy Chase View
College Park
Cottage City
District Heights
Edmonston
Fairmont Heights
Forest Heights
Garrett Park
Glendarden
Glen Echo
Greenbelt
Howard County
Hyattsville
Kensington
Landover Hills
Montgomery County
Morningside
Mount Rainier
New Carrollton
North Beach
North Brentwood
North Chevy Chase
Northwest Park
Prince Georges County
Riverdale
Rockville
Seat Pleasant
Somerset
Takoma Park
University Park
Washington Grove
In Virginia
Alexandria
Arlington County
Clifton
Fairfax County
Town of Fairfax
Falls Church
Herndon
Loudoun County
Manassas
Manassas Park
Portsmouth
Prince William County
Stafford County
Vienna
Other Municipalities
Anchorage, AK
Benicia, CA
Bremerton, WA
Centerville, GA
Crane, IN
District of Columbia
Elmer City, WA
Huachuca City, AZ
New Johnsonville, TN
Norris, TN
Port Orchard, WA
[[Page 15]]
Sierra Vista, AZ
Warner Robins, GA
(j) An employee who resides in a municipality or political
subdivision listed in paragraph (i) of this section may take an active
part in political management and political campaigns in connection with
partisan elections for local offices of the municipality or political
subdivision, subject to the following limitations:
(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.
[53 FR 26421, July 13, 1988]
Sec. 7.4 Employment limitations, foreign gifts and decorations,
and misconduct.
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.
Sec. 7.5 Adverse actions: Suspensions for 14 days or less.
(a) Policy. A GAO employee may be suspended for 14 days or less for
such cause as will promote the efficiency of GAO (including discourteous
conduct to the public confirmed by an immediate supervisor's report of
four such instances within any 1-year period or any other pattern of
discourteous conduct). Suspension means placing an employee, for
disciplinary reasons, temporarily in a status without duties and pay.
(b) Employee entitlement. An employee against whom a suspension for
14 days or less is proposed is entitled to--
(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) Documentation. Copies of the notice of proposed action, the
answer of the employee if written, a summary thereof if made orally, the
notice of decision and reasons therefor, and any order effecting the
suspension, together with any supporting material, shall be maintained
by Personnel and shall be furnished to the employee affected upon the
employee's request.
(d) Nonapplicability. This section is not applicable to--(1) An
employee who is serving a trial period under an initial appointment in
GAO or who has not completed 1 year of current continuous employment in
the same or similar positions in GAO under other than a temporary
appointment limited to 1 year or less.
(2) A suspension in the interest of national security.
Sec. 7.6 Adverse actions: Removal, suspension for more than 14 days,
reduced in grade, reduced in pay or furloughed for 30 days or less.
(a) Policy. A GAO employee may be removed, suspended for more than
14 days, reduction in grade or pay, or furlough for 30 days or less for
such cause as will promote the efficiency of GAO. Furloughed means
placing an employee in a temporary status without duties and pay because
of lack of work or funds or other nondisciplinary reasons.
(b) Employee entitlement. An employee against whom an action is
proposed under this section is entitled to--
(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.
[[Page 16]]
(c) Appeals. After administrative remedies have been exhausted, an
employee against whom an action is taken under this section is entitled
to appeal to the GAO Personnel Appeals Board.
(d) Documentation. Copies of the notice of proposed action, the
answer of the employee if written, a summary thereof when made orally,
the notice of decision and reasons therefor, and any order affecting an
action covered by this section, together with any supporting material,
shall be maintained by Personnel and shall be furnished to the GAO
Personnel Appeals Board upon its request and to the employee affected
upon the employee's request.
(e) Nonapplicability. This section does not apply to--
(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.
Sec. 7.7 Other appeals and grievances.
The personnel system shall provide procedures for the processing of
complaints and grievances which are not otherwise provided for.
Sec. 7.8 Services to employees.
The provisions of chapter 79 of title 5, United States Code, and the
Office of Personnel Management implementing regulations apply to
Government Accountability Office employees.
PART 8_INSURANCE AND ANNUITIES--Table of Contents
Authority: 31 U.S.C. 732.
Sec. 8.1 Applicable law and regulations.
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 Government Accountability
Office employees.
[45 FR 68380, Oct. 15, 1980, as amended at 47 FR 56979, Dec. 22, 1982]
PART 9_SENIOR EXECUTIVE SERVICE--Table of Contents
Authority: 31 U.S.C. 733.
Sec. 9.1 GAO Senior Executive Service.
(a) The Comptroller General may promulgate regulations establishing
a Government Accountability Office Senior Executive Service which meets
the requirements set forth in section 3131 of title 5, United States
Code, which provides--
Sec. 3131 The GAO Senior Executive Service
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;
[[Page 17]]
(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).
[45 FR 68380, Oct. 15, 1980, as amended at 47 FR 56979, Dec. 22, 1982]
PART 11_RECOGNITION OF ATTORNEYS AND OTHER REPRESENTATIVES--
Table of Contents
Sec.
11.1 Right to representation before the Government Accountability
Office.
11.2 Practice by attorneys.
11.3 Authority to represent in payment cases.
11.4 Authority to represent in other cases.
11.5 Revocation of authority to represent.
Authority: 31 U.S.C. 711.
Source: 41 FR 35155, Aug. 20, 1976, unless otherwise noted.
Redesignated at 45 FR 68374, Oct. 15, 1980.
Sec. 11.1 Right to representation before the Government
Accountability Office.
Each person having a claim or other rights assertable in the
Government Accountability Office may pursue such claim or right
individually or through an attorney or other representative.
Sec. 11.2 Practice by attorneys.
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
Government Accountability Office.
Sec. 11.3 Authority to represent in payment cases.
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.
Sec. 11.4 Authority to represent in other cases.
When an attorney acting in a representative capacity appears in
person or signs a document submitted to the Government Accountability
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.
Sec. 11.5 Revocation of authority to represent.
Prior to the conclusion of action by the Government Accountability
Office on a matter in which a principal is represented by another person
whose authority to act is established under either Sec. 11.3 or Sec.
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 Government
Accountability Office. Upon notification of the death of the principal
during the
[[Page 18]]
pendency of any matter involving representation of the principal by an
attorney or other party, the Government Accountability Office will
consider the representative's authority to have been automatically
revoked.
[[Page 19]]
SUBCHAPTER B_GENERAL PROCEDURES
PART 21_BID PROTEST REGULATIONS--Table of Contents
Sec.
21.0 Definitions.
21.1 Filing a protest.
21.2 Time for filing.
21.3 Notice of protest, submission of agency report, and time for filing
of comments on report.
21.4 Protective orders.
21.5 Protest issues not for consideration.
21.6 Withholding of award and suspension of contract performance.
21.7 Hearings.
21.8 Remedies.
21.9 Time for decision by GAO.
21.10 Express options, flexible alternative procedures, accelerated
schedules, summary decisions, and status and other
conferences.
21.11 Effect of judicial proceedings.
21.12 Distribution of decisions.
21.13 Nonstatutory protests.
21.14 Request for reconsideration.
Authority: 31 U.S.C. 3551-3556.
Source: 61 FR 39042, July 26, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 21 appear at 73 FR
32429, June 9, 2008.
Sec. 21.0 Definitions.
(a)(1) Interested party means an actual or prospective bidder or
offeror whose direct economic interest would be affected by the award of
a contract or by the failure to award a contract.
(2) In a public-private competition conducted under Office of
Management and Budget Circular A-76 regarding performance of an activity
or function of a Federal agency, or a decision to convert a function
performed by Federal employees to private sector performance without a
competition under OMB Circular A-76, interested party also means
(A) The official responsible for submitting the Federal agency
tender, and
(B) Any one individual, designated as an agent by a majority of the
employees performing that activity or function, who represents the
affected employees.
(b)(1) Intervenor means an awardee if the award has been made or, if
no award has been made, all bidders or offerors who appear to have a
substantial prospect of receiving an award if the protest is denied.
(2) If an interested party files a protest in connection with a
public-private competition conducted under OMB Circular A-76 regarding
an activity or function of a Federal agency, the official responsible
for submitting the Federal agency tender, or the agent representing the
Federal employees as described in paragraph (a)(2)(B) of this section,
or both, may also be intervenors.
(c) Federal agency or agency means any executive department or
independent establishment in the executive branch, including any wholly
owned government corporation, and any establishment in the legislative
or judicial branch, except the Senate, the House of Representatives, and
the Architect of the Capitol and any activities under his direction.
(d) Days are calendar days. In computing any period of time
described in Subchapter V, Chapter 35 of Title 31, United States Code,
including those described in this part, the day from which the period
begins to run is not counted, and when the last day of the period is a
Saturday, Sunday, or Federal holiday, the period extends to the next day
that is not a Saturday, Sunday, or Federal holiday. Similarly, when the
Government Accountability Office (GAO), or another Federal agency where
a submission is due, is closed for all or part of the last day, the
period extends to the next day on which the agency is open.
(e) Adverse agency action is any action or inaction by an agency
that is prejudicial to the position taken in a protest filed with the
agency, including a decision on the merits of a protest; the opening of
bids or receipt of proposals, the award of a contract, or the rejection
of a bid or proposal despite a pending protest; or contracting agency
acquiescence in continued and substantial contract performance.
(f) A document is filed on a particular day when it is received by
GAO by 5:30 p.m., Eastern Time, on that day. Protests and other
documents may be filed
[[Page 20]]
by hand delivery, mail, commercial carrier, facsimile transmission (202-
512-9749), or e-mail ([email protected]). Please check GAO's Web site
(http://www.gao.gov/legal/bidprotest.html) for current filing
information. Hand delivery and other means of delivery may not be
practicable during certain periods due, for example, to security
concerns or equipment failures. The filing party bears the risk that the
delivery method chosen will not result in timely receipt at GAO.
(g) Alternative dispute resolution encompasses various means of
resolving cases expeditiously, without a written decision, including
techniques such as outcome prediction and negotiation assistance.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002;
70 FR 19681, Apr. 14, 2005; 73 FR 32429, June 9, 2008]
Sec. 21.1 Filing a protest.
(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, Government Accountability Office, 441 G Street, NW.,
Washington, DC 20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, street address, electronic mail address, and
telephone and facsimile numbers of the protester,
(2) Be signed by the protester or its representative,
(3) Identify the 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 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 after
issuing a decision on the protest, in accordance with GAO's rules at 4
CFR part 81. 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.
[[Page 21]]
(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.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002;
73 FR 32430, June 9, 2008]
Sec. 21.2 Time for filing.
(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 date offered to the protester, but shall be filed not later
than 10 days after the date on which the debriefing is held.
(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 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 an 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.
Sec. 21.3 Notice of protest, submission of agency report, and time
for filing of comments on report.
(a) GAO shall notify the 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 agency and an
acknowledgment to the protester. The 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
substantial prospect of receiving an award. The 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 agency and to other participating
parties. All protest communications shall be sent by means reasonably
calculated to effect expeditious delivery.
(b) A 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 agency shall file a report on the protest with GAO within 30
days
[[Page 22]]
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 respond to the request for documents in
writing. The agency's response shall, at a minimum, identify whether the
requested documents exist, which of the requested documents or portions
thereof the agency intends to produce, which of the requested documents
or portions thereof the agency intends to withhold, and the basis for
not producing any of the requested documents or portions thereof. 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
cases, a party may request that another party produce relevant
documents, or portions of documents, that are not in the agency's
possession.
(e) Subject to any protective order issued in the protest pursuant
to Sec. 21.4, the 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 agency may request an extension of time for the submission
of the list of documents to be provided by the agency pursuant to Sec.
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 agency not later than 2 days
after their existence or relevance is known or should have been known,
whichever is earlier. The 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 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 agency and
other participating parties. The protest shall be dismissed unless the
protester files comments within the 10-day period, except where GAO has
granted an extension or has established a shorter period in accordance
with Sec. 21.10(e). Extensions will be granted on a case-by-case basis.
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.
(j) GAO may request or permit the submission of additional
statements by the parties and by other parties participating in the
protest as may be necessary for the fair resolution of the protest. The
agency and other parties must receive GAO's approval before submitting
any additional statements.
[[Page 23]]
GAO reserves the right to disregard material submitted without prior
approval.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002;
73 FR 32430, June 9, 2008]
Sec. 21.4 Protective orders.
(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 that would ordinarily be
subject to a protective order. GAO will review in camera all information
not released to the parties.
(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,
restricting the individual's practice before GAO, prohibition from
participation in the remainder of the protest, or dismissal of the
protest.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002;
73 FR 32430, June 9, 2008]
Sec. 21.5 Protest issues not for consideration.
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 need be filed; where
specific protest allegations are dismissed, an agency report shall be
filed on the remaining allegations. Among the protest bases that shall
be dismissed are the following:
(a) Contract administration. The administration of an existing
contract is within the discretion of the agency. Disputes between a
contractor and the agency are resolved pursuant to the disputes clause
of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-
613.
(b) Small Business Administration issues--(1) Small business size
standards and North American Industry Classification System (NAICS)
standards. Challenges of established size standards or the size status
of particular firms, and challenges of the selected NAICS code may be
reviewed solely by the Small Business Administration. 15 U.S.C.
637(b)(6).
(2) Small Business Certificate of Competency Program. Referrals made
to the Small Business Administration (SBA) pursuant to sec. 8(b)(7) of
the Small Business Act, or the issuance of, or refusal to issue, a
certificate of competency under that section will generally not be
reviewed by GAO. The exceptions, which GAO will interpret narrowly out
of deference to the role of the SBA in this area, are protests that show
possible bad faith on the part of government officials, or that present
allegations that the SBA failed to follow its own published regulations
or failed to consider vital information
[[Page 24]]
bearing on the firm's responsibility due to the manner in which the
information was presented to or withheld from the SBA by the procuring
agency. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under
that section, since contracts are entered into with the Small Business
Administration at the contracting officer's discretion and on such terms
as are agreed upon by the procuring agency and the Small Business
Administration, the decision to place or not to place a procurement
under the 8(a) program is not subject to review absent a showing of
possible bad faith on the part of government officials or that
regulations may have been violated. 15 U.S.C. 637(a).
(c) Affirmative determination of responsibility by the contracting
officer. Because the determination that a bidder or offeror is capable
of performing a contract is largely committed to the contracting
officer's discretion, GAO will generally not consider a protest
challenging such a determination. The exceptions are protests that
allege that definitive responsibility criteria in the solicitation were
not met and those that identify evidence raising serious concerns that,
in reaching a particular responsibility determination, the contracting
officer unreasonably failed to consider available relevant information
or otherwise violated statute or regulation.
(d) Procurement integrity. For any Federal procurement, GAO will not
review an alleged violation of subsections (a), (b), (c), or (d) of sec.
27 of the Office of Federal Procurement Policy Act, 41 U.S.C. 423, as
amended by sec. 4304 of the National Defense Authorization Act for
Fiscal Year 1996, Public Law 104-106, 110 Stat. 186, February 10, 1996,
where the protester failed to report the information it believed
constituted evidence of the offense to the Federal agency responsible
for the procurement within 14 days after the protester first discovered
the possible violation.
(e) Protests not filed either in GAO or the agency within the time
limits set forth in Sec. 21.2.
(f) Protests which lack a detailed statement of the legal and
factual grounds of protest as required by Sec. 21.1(c)(4), or which
fail to clearly state legally sufficient grounds of protest as required
by Sec. 21.1(f).
(g) Procurements by agencies other than Federal agencies as defined
by sec. 3 of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 472. Protests of procurements or proposed procurements
by agencies such as the U.S. Postal Service, the Federal Deposit
Insurance Corporation, and nonappropriated fund activities are beyond
GAO's bid protest jurisdiction as established in 31 U.S.C. 3551-3556.
(h) Subcontract protests. GAO will not consider a protest of the
award or proposed award of a subcontract except where the agency
awarding the prime contract has requested in writing that subcontract
protests be decided pursuant to Sec. 21.13.
(i) Suspensions and debarments. Challenges to the suspension or
debarment of contractors will not be reviewed by GAO. Such matters are
for review by the agency in accordance with the applicable provisions of
the Federal Acquisition Regulation.
(j) Competitive range. GAO will not consider protests asserting that
the protester's proposal should not have been included or kept in the
competitive range.
(k) Decision whether or not to file a protest on behalf of Federal
employees. GAO will not review the decision of an agency tender official
to file a protest or not to file a protest in connection with a public-
private competition.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79835, Dec. 31, 2002;
70 FR 19681, Apr. 14, 2005; 73 FR 32430, June 9, 2008]
Sec. 21.6 Withholding of award and suspension of contract
performance.
Where a protest is filed with GAO, the 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); GAO does not administer the
requirements to stay award or suspend contract performance under CICA at
31 U.S.C. 3553(c) and (d).
[73 FR 32430, June 9, 2008]
[[Page 25]]
Sec. 21.7 Hearings.
(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 or other electronic means.
(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, each party shall file comments with GAO
within 5 days after the hearing was held or as specified by GAO. If the
protester has not filed comments by the due date, 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.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79836, Dec. 31, 2002]
Sec. 21.8 Remedies.
(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
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 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
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 agency decides to take corrective action in response to a
protest, GAO may recommend that the agency pay the protester the
reasonable costs of filing and pursuing the protest, including
attorneys' fees and consultant and expert witness fees. The protester
[[Page 26]]
shall file any request that GAO recommend that costs be paid within 15
days of the date on which the protester learned (or should have learned,
if that is earlier) that GAO had closed the protest based on the
agency's decision to take corrective action. The protester shall furnish
a copy of its request to the 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 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 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 agency shall issue a decision on the claim for costs as soon
as practicable after the claim is filed. If the protester and the 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 agency pay the protester the costs of pursuing the claim for
costs before GAO.
(3) The 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.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79836, Dec. 31, 2002]
Sec. 21.9 Time for decision by GAO.
(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
Sec. 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 Sec. 21.10.
Sec. 21.10 Express options, flexible alternative procedures,
accelerated schedules, summary decisions, and status and other
conferences.
(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 Sec. 21.3 and Sec. 21.7:
(1) The 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) 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, on its own initiative or upon request by the parties, may
use flexible alternative procedures to promptly and fairly resolve a
protest, including alternative dispute resolution, 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
[[Page 27]]
development and resolution of the protest.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79836, Dec. 31, 2002]
Sec. 21.11 Effect of judicial proceedings.
(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 case where the matter involved is the
subject of litigation before, or 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 (Sec.
21.3(c)), filing comments on the report (Sec. 21.3(i)), holding a
hearing and filing comments (Sec. 21.7), and issuing a decision (Sec.
21.9) shall apply.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79836, Dec. 31, 2002]
Sec. 21.12 Distribution of decisions.
(a) Unless it contains protected information, a copy of a decision
shall be provided to the protester, any intervenors, and the agency
involved; a copy also shall be made available to the public. A copy of a
decision containing protected information shall be provided only to the
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 may be distributed to the parties, and are available
from GAO, by electronic means.
[61 FR 39042, July 26, 1996, as amended at 67 FR 79836, Dec. 31, 2002;
73 FR 32430, June 9, 2008]
Sec. 21.13 Nonstatutory protests.
(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
Sec. 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 Sec. 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.
Sec. 21.14 Request for reconsideration.
(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. To
obtain reconsideration, the requesting party must show that our prior
decision contains errors of either fact or law, or must present
information not previously considered that warrants reversal or
modification of our decision; GAO will not consider a request for
reconsideration based on repetition of arguments previously raised.
[61 FR 39042, July 26, 1996, as amended at 73 FR 32430, June 9, 2008]
PART 22_RULES OF PROCEDURE OF THE GOVERNMENT ACCOUNTABILITY OFFICE
CONTRACT APPEALS BOARD--Table of Contents
Sec.
22.1 Applicability of Rules [Rule 1].
22.2 Board Consideration [Rule 2].
22.3 Appeals--How Taken [Rule 3].
22.4 Appeal File [Rule 4].
22.5 Pleadings [Rule 5].
[[Page 28]]
22.6 Motions, Briefs, and Other Statements [Rule 6].
22.7 Copies and Service Thereof [Rule 7].
22.8 General Discovery Procedures [Rule 8].
22.9 Subpoenas [Rule 9].
22.10 Sanctions [Rule 10].
22.11 Depositions [Rule 11].
22.12 Interrogatories [Rule 12].
22.13 Requests for Admission [Rule 13].
22.14 Production of Documents, Electronically Stored Information, Other
Tangible Things, or Entry Onto Land [Rule 14].
22.15 Conferences and Orders [Rule 15].
22.16 Hearings [Rule 16].
22.17 Submission on the Record Without a Hearing [Rule 17].
22.18 Closing the Record [Rule 18].
22.19 Findings and Decisions of the Board [Rule 19].
22.20 Mistakes and Corrections [Rule 20].
22.21 Motion for Reconsideration [Rule 21].
22.22 Accelerated and Small Claims Procedures [Rule 22].
22.23 Suspension of Proceedings [Rule 23].
22.24 Alternative Dispute Resolution [Rule 24].
22.25 Protective Orders and In Camera Review [Rule 25].
22.26 Representation of the Parties [Rule 26].
22.27 Ex Parte Communications [Rule 27].
22.28 Time [Rule 28].
22.29 Inspection of the Record [Rule 29].
Authority: Sec. 1501, Public Law 110-161, 121 Stat. 2249.
Source: 73 FR 36258, June 26, 2008, unless otherwise noted.
Sec. 22.1 Applicability of Rules [Rule 1].
The Government Accountability Office Contract Appeals Board is
authorized to hear appeals from decisions of contracting officers with
respect to any contract entered into by a legislative branch agency.
These rules shall apply to all appeals filed with the Board on or after
October 1, 2007.
Sec. 22.2 Board Consideration [Rule 2].
(a) Offices. The office of the Board shall be at the Government
Accountability Office, 441 G Street, NW., Washington, DC 20548, or in
such other place as may from time to time hereafter be assigned for its
use. All files and records of the Board shall be kept at such office.
All communications, pleadings, and/or documents addressed to the Board
shall be addressed or delivered to the Board at the Government
Accountability Office, 441 G Street, NW., Room 7182, Washington, DC
20548; Telephone: 202-512-3342; Facsimile: 202-512-9749; E-mail:
[email protected].
(b) Three member panel. Generally, all appeals will be assigned to a
panel of three members of the Board appointed by the Chairman of the
Board; said panel may or may not include the Chairman of the Board as a
member. Each panel will include a presiding member who is responsible
for case management, including scheduling, and who may, without
participation of the other panel members, rule on non-dispositive
motions and resolve procedural disputes. Hearings on appeals may be held
by one or more of the panel members of the Board. Appeals resolved under
the Board's small claims or accelerated procedures (see Sec. 22.22 of
this part [Rule 22]) may be decided by a single member of the Board.
Requests for consideration of a matter by all members of the Contract
Appeals Board will not be granted in any appeal filed under these rules.
(c) Absence or disability of Chairman. The activities of the Board
shall be performed under the supervision of the Chairman of the Board.
In the absence of, or during the disability of, the Chairman, the Vice
Chairman of the Board shall act as the Chairman.
Sec. 22.3 Appeals--How Taken [Rule 3].
(a) Form. An appeal by the contractor shall be filed with the Board
in the form of a written notice of appeal. The notice shall identify the
contract by number, the name of the government agency and/or department
against which the claim is asserted, the contracting officer for the
subject dispute, the decision from which the appeal is taken, an
estimate of the amount of money in controversy, if any, and shall be
signed personally by the appellant (the contractor making the appeal) or
by his representative or attorney. The complaint referred to in Sec.
22.5(a) of this part [Rule 5(a)] may be filed with the notice of appeal
or the appellant may designate the notice of appeal as a complaint if it
otherwise fulfills the requirements of a complaint. The appellant shall
promptly provide a copy of the appeal and complaint to the contracting
officer.
(b) Timeliness. (1) For claims where a contracting officer has
issued a final
[[Page 29]]
decision, the contractor may file an appeal no later than 90 days after
it receives the contracting officer's final decision.
(2) For certified claims submitted to the contracting officer in
excess of $50,000 where the contracting officer has not issued a final
decision within a reasonable time, taking into account such factors as
the size and complexity of the claim, the contractor may file a notice
of appeal citing the failure of the contracting officer to issue a
decision.
(3) For claims submitted to the contracting officer in the amount of
$50,000 or less where the contracting officer has not issued a final
decision within 60 days of the contractor's request that a final
decision be issued within that time, the contractor may file a notice of
appeal citing the failure of the contracting officer to issue a
decision.
(4) In lieu of a notice of appeal filed under paragraphs (b)(2) or
(b)(3) of this section [Rules 3(b)(2) or 3(b)(3)], the contractor may
request that the Board direct a contracting officer to issue a decision
within a specified period of time, as determined by the Board, in the
event of undue delay by the contracting officer in issuing a decision.
(5) An appeal filed with the Board will be deemed ``filed'' on the
date actually received by the Board if received by 5:30 p.m. local time
in Washington, DC, or on the next business day if received after 5:30
p.m.
(c) Service of the appeal; copies. An original plus 3 copies of the
appeal shall be filed with the Board by hand delivery, express or
priority mail, approved commercial carrier (e.g., UPS or FedEx),
facsimile, or e-mail, although e-mail is the preferred method of
delivery in all Board matters. The use of first class or parcel post
mail is strongly discouraged because the delivery delays and screening
process for government mail could result in untimely filed appeals. If
filed by e-mail or facsimile, the appellant shall provide the original
plus 3 copies to the Board by hand delivery or commercial carrier within
2 business days of the e-mailed or facsimile transmitted filing. The
appellant shall furnish a copy of the appeal to the contracting officer
from whose decision, or failure to issue the decision, the appeal is
taken using the same method or service as for the Board, or an equal or
more expeditious method of service. For service of documents once an
appeal has commenced, see Sec. 22.7(b) of this part [Rule 7(b)].
(d) Docketing. When the Board receives a notice of appeal from the
appellant, the Board will promptly docket the appeal and provide written
notice of docketing to all parties, or their counsel, with a copy of
these rules.
(e) Consolidation. The Board, in its discretion, may consolidate
cases involving common issues of law or fact.
[73 FR 36258, June 26, 2008, as amended at 73 FR 60610, Oct. 14, 2008]
Sec. 22.4 Appeal File [Rule 4].
(a) Duties of the Contracting Officer. (1) Within 30 days after
receipt of the complaint, or within such other period of time as may be
established by the Board, the contracting officer shall assemble and
transmit to the Board an appeal file consisting of all documents
pertinent to the appeal, including:
(i) The decision from which the appeal is taken;
(ii) The contract, including relevant specifications, amendments,
plans, and drawings;
(iii) All correspondence between the parties relevant to the appeal,
including the letter or letters of claim in response to which the
decision was issued;
(iv) All documents and other tangible things on which the
contracting officer relied in making the decision, and any
correspondence relating thereto;
(v) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the matter
in dispute made prior to the filing of the notice of appeal with the
Board; and
(vi) Any additional information or evidence considered relevant to
the appeal.
(2) Within the same time specified above, the contracting officer
shall furnish the appellant a copy of each document he or she transmits
to the Board, except those in paragraph (a)(1)(ii) of this section [Rule
4(a)(1)(ii)]. As to the latter, a list furnished to the appellant
[[Page 30]]
indicating specific contractual documents transmitted will suffice.
Documents filed under this rule, and any supplements, shall be organized
and filed in accordance with paragraph (d) of this section [Rule 4(d)].
(b) Duties of the appellant. Within 30 days after receipt of a copy
of the appeal file provided pursuant to paragraph (a) of this section
[Rule 4(a)], or within such other period of time as may be established
by the Board, the appellant shall transmit to the Board for inclusion in
the appeal file any documents not contained therein which the appellant
considers to be relevant to the appeal. Within the same period of time,
the appellant shall furnish a copy of such documents to the contracting
officer or counsel for the government. Documents filed under this rule
shall be organized and filed in accordance with paragraph (d) of this
section [Rule 4(d)].
(c) Continuing duty to supplement the record. All parties have a
continuing duty to supplement the record with relevant documents and
tangible things, and the appeal file may be supplemented by any party at
any time before the closing of the record. In cases where a hearing is
requested, these supplements shall be provided well in advance of the
pre-hearing conference so that objections to admissibility may be heard
and resolved, to the maximum extent possible, in advance of the hearing.
All supplements to the appeal file shall be organized and filed in
accordance with paragraph (d) of this section [Rule 4(d)].
(d) Organization of appeal file. Only relevant documents and
tangible things should be provided as part of the appeal file. Appeal
file documents may be originals or true, legible, and complete copies or
facsimiles. The appeal file shall be arranged in chronological order
with the earliest documents first; bound in a 3-ring binder (or binders)
or similar loose-leaf binder(s) no larger than 4 inches in width, except
where size or shape makes such binding impracticable; numbered; tabbed;
and indexed. Numbering of pages shall be consecutive and continuous from
one page to the next (i.e., ``Bates'' numbered), so that the complete
file, including any supplements, will consist of one set of
consecutively numbered pages. Preceding each Bates number shall be a
designation ``A'' for appellant or ``R'' for respondent, indicating
which party provided the document. Multiple binders shall be
consecutively numbered and include references on the outside cover and
binding that state the range of tab numbers and Bates numbers contained
therein. Within each binder, tabs shall separate each document; multiple
documents shall not be placed behind a single tab, unless each document
is separated by a divider. The appeal file shall include an index
identifying each document included in the appeal file by date, brief
description of the document, and the tab and Bates numbers where the
document can be located in the appeal file. The Board may, in its
discretion or upon request of a party, order an alternative organization
of the appeal file. If an alternative organization of the appeal file is
permitted, such as by document type or topic, documents within that
grouping must be presented in chronological order to the extent
possible. The Board may impose special requirements on the production of
electronic documents and, if any portion of the Sec. 22.4 [Rule 4] file
or supplement contains electronic documents, the party submitting such
documents shall contact the Board before submission for guidance.
(e) Submissions on order of the Board. The Board may, at any time
during the pendency of the appeal, require any party to file documents
or tangible things as additional exhibits. The Board may also require a
party to file printed versions of electronic records or, conversely, may
require electronic versions of printed documents.
(f) Status of documents in the record. Documents contained in the
appeal file are considered, without further action by the parties, as
part of the record upon which the Board will render its decision.
However, a party may object to consideration of a particular document or
documents by filing a written objection. Such objections shall be raised
by motion pursuant to Sec. 22.6 of this part [Rule 6] and shall be
filed as early as necessary to allow the Board, to the maximum extent
possible, to resolve the objection in advance of a
[[Page 31]]
scheduled hearing, or before the record is closed if no hearing is held.
Sec. 22.5 Pleadings [Rule 5].
(a) Complaint. Within 15 days after receipt of the docketing notice
from the Board, or within such other period of time as may be
established by the Board, the appellant will file with the Board, if not
previously filed with the notice of appeal, a complaint setting forth
simple, concise, and direct statements of each of its claims showing
that it is entitled to relief; identifying the contract provision or
provisions under which relief is claimed; and stating the amount in
controversy or an estimate thereof, if known, and/or the relief
requested. The complaint shall be limited to those requests for relief
which have been presented to the contracting officer and were either
denied or not ruled upon by the contracting officer in accordance with
Sec. 22.3 of this part [Rule 3]. No technical form is required, but
each claim should be separately identified. In the event that the
complaint is not filed within the time stated above, the appeal may be
dismissed by the Board for lack of prosecution.
(b) Answer. Within 30 days after receipt of the complaint, or within
such other period of time as may be established by the Board, the
contracting officer or counsel for the government shall prepare and file
with the Board an answer thereto. The answer shall set forth simple,
concise, and direct statements of the government's defenses to each
claim asserted by the appellant. Each defense shall be stated with as
much particularity as is practicable. Defenses which go to the Board's
jurisdiction may be included in the answer, or may be raised by motion
pursuant to the provisions of Sec. 22.6 of this part [Rule 6]. Motions
in lieu of an answer may be filed only with the advance permission of
the Board.
(c) Small claims and accelerated procedures. When an appellant
elects to use the small claims or accelerated procedures described in
Sec. 22.22 of this part [Rule 22], the Board may shorten the time for
filing the complaint and answer.
(d) Amendment of pleadings. At any time before a hearing on the
merits, or before the closing of the record when a hearing is not held,
the Board in its discretion may permit a party to amend its complaint or
answer concerning matters that are within the proper scope of the
appeal, upon conditions that are just to both parties. The Board, upon
its own initiative or upon application by a party, may in its discretion
order a party to make a more definite statement of its complaint or
answer, or to reply to an answer. When issues within the proper scope of
the appeal, but not raised by the complaint and answer, are determined
by express or implied consent of the parties as having been raised, they
shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the complaint and answer as may be
necessary to cause them to conform to the evidence may be made upon
motion at any time, but failure to so amend does not affect the result
of the hearing of these issues. If evidence is objected to at the
hearing on the ground that it is not within the issues raised by the
complaint and answer, the Board may allow the pleadings to be amended
within the proper scope of the appeal and shall do so freely when the
presentation of the merits of the action will be served thereby and the
objecting party fails to satisfy the Board that the admission of such
evidence would prejudice it in maintaining its appeal or defense on the
merits. The Board may, however, grant a continuance to enable the
objecting party to respond to such evidence.
Sec. 22.6 Motions, Briefs, and Other Statements [Rule 6].
(a) Motions, generally. Motions shall be made in writing, indicate
the relief sought and include the grounds therefor, and be filed with
the Board as soon as practicable after the grounds therefor are known
and as early as necessary to allow the Board to rule on the motion in
advance of a scheduled hearing. Except for motions submitted under
paragraph (d) of this section [Rule 6(d)], any party may respond to a
motion by submitting a written response to the motion within 10 days of
receipt of the motion, and the moving party may reply to the response
within 5 days of receipt of the response, except
[[Page 32]]
that the Board, in its discretion, may shorten or lengthen the time for
the response and reply based on the nature of the motion, the nature and
timing of the case, and the scheduling needs of the Board. The Board may
request additional submissions from the parties and may decide motions
on the written submissions without oral argument. The Board shall decide
all motions before the hearing on the merits unless the Board determines
that a ruling be deferred pending a hearing on both the merits and the
motion. Jurisdictional and procedural defenses may be raised at any time
by motion, but should be raised as soon as the grounds therefor are
known; and the Board, at any time and on its own initiative, may raise
an issue of jurisdiction and may decline to proceed with an appeal in
which it lacks authority to decide the issues. All motions, responses,
replies, and additional submissions required by the Board shall be filed
in accordance with paragraphs (b) and (c) of this section [Rules 6(b)
and 6(c)].
(b) Briefs and citations. In addition to submissions required by
these rules, the Board may require the parties to file legal or factual
briefs concerning any matter that may aid in the disposition of the
appeal. When such briefs or submissions are required (by rule or by the
Board), the brief or submission shall contain citations to the record
and legal authority as appropriate, and follow such other format as may
be directed by the Board. Citations to the record must be specific
(i.e., to Bates number or other similar designation) so that the Board
can locate the exact proposition or matter to which the party is
referring. The parties should not expect the Board to search the record
for evidence in support of either party's position. Briefs and
submissions that are not submitted in the required format, or which do
not contain adequate citations to the record or legal authority, may be
rejected by the Board or returned to the party with an order that the
party resubmit the brief or submission with appropriate revisions.
(c) Declarations, affidavits, or other statements. Any declaration,
affidavit, or other statement that is submitted to explain the record
must, to the maximum extent possible, include citations to the record in
support of the statement, argument, or analysis made. Citations to the
record must be specific (i.e., to Bates number or similar designation).
Declarations, affidavits, or other statements containing inadequate
citations may be returned to the party with an order that the party
resubmit the statement with appropriate revisions.
(d) Motions for summary judgment--(1) Generally. Motions for summary
judgment or partial summary judgment shall be filed only when a party
believes, based on uncontested material facts, that it is entitled to
relief, in whole or in part, as a matter of law. Such motions shall be
filed as soon as practicable to allow the Board to rule on the motion in
advance of a scheduled hearing. In considering a motion, or partial
motion, for summary judgment, the Board will consider the pleadings,
depositions, answers to interrogatories, admissions of record, and
affidavits provided, and will grant such motion if there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law. In deciding motions for summary judgment, the Board will
look to Rule 56 of the Federal Rules of Civil Procedure for guidance.
(2) Requirements. Where both parties agree that disposition by
summary judgment or partial summary judgment is appropriate, they shall
file a stipulation of all material facts necessary for the Board to rule
on the motion. Otherwise, the moving party shall file with its motion a
``Statement of Undisputed Material Facts'' setting forth the claimed
undisputed material facts in separately numbered paragraphs, each of
which shall be supported by citations to the Sec. 22.4 [Rule 4] file or
other evidence establishing the facts. The non-moving party shall file a
``Statement of Genuine Issues of Material Facts,'' responding to each
numbered paragraph, demonstrating the existence of genuine issues of
material facts where appropriate, and including for each fact citations
to the Sec. 22.4 [Rule 4] file or other evidence in support. A fact
properly proposed by one party may be accepted by the Board as
undisputed unless the opposing party
[[Page 33]]
properly responds and establishes that the fact is in dispute. An
opposing party may not rely on mere allegations or denials in its
pleadings to demonstrate the existence of a genuine issue of material
fact. Either party may rely on affidavits, depositions, answers to
interrogatories, or admissions of record to establish the existence of,
or to dispute, a material fact. The moving party and non-moving party
each shall submit a memorandum of law supporting or opposing summary
judgment, and the moving party may file a reply to the non-moving
party's opposition of the motion.
(3) Time. Generally, the non-moving party shall file its opposition
to a motion for summary judgment or partial summary judgment within 20
days of receipt of the motion, and the moving party's reply is due
within 10 days of receipt of the opposition, except that the Board, in
its discretion, may shorten or lengthen the time for opposition and
reply based on the nature of the motion, the nature and timing of the
case, and the scheduling needs of the Board.
(4) Citations. All motions for summary judgment, oppositions to such
motions, briefs, and statements in support of the motions or opposition
to the motions shall be filed in conformance with paragraphs (b) and (c)
of this section [Rules 6(b) and 6(c)].
Sec. 22.7 Copies and Service Thereof [Rule 7].
(a) Rule 4 file. For documents provided pursuant to Sec. 22.4 of
this part [Rule 4], the original and one copy shall be provided to the
Board, and one copy shall be provided to each party. Documents shall be
provided by hand delivery, express or priority mail, or approved
commercial carrier (e.g., UPS or FedEx); first class and parcel post
mail are not permitted unless authorized by the Board.
(b) Other submissions filed with the Board. Except as otherwise
authorized by the Board, all correspondence and submissions, other than
documents provided pursuant to Sec. 22.4 of this part [Rule 4] and
appeals filed under Sec. 22.3(c) of this part [Rule 3(c)], shall be
provided to the Board by e-mail at [email protected], with a courtesy copy of
the submission provided by e-mail to each of the members of the Board.
All e-mails to [email protected] must identify the case name and docket number
in the subject line of the e-mail. In addition, unless the Board directs
otherwise, the original plus 3 copies of the e-mailed submission also
shall be provided to the Board by hand delivery, express or priority
mail, or approved commercial carrier (e.g., UPS or FedEx) within 2
business days of the e-mailed filing (except that the original and one
copy are required for appeals involving small claims or using
accelerated procedures). Delivery to the Board by first class or parcel
post mail is not permitted. However, the Board may at any time modify
the number of copies required or authorize alternative methods of
delivery to the Board.
(c) Service on parties. All correspondence and submissions to the
Board must be provided to all other parties using the same method of
service as used for the Board, or an equal or more expeditious method of
service. Except for documents provided pursuant to Sec. 22.4 of this
part [Rule 4], e-mail service is preferred. However, where the parties
agree to other methods of service, such other methods of service to
parties are permitted.
(d) Proof of service. A party sending a document to the Board must
represent to the Board that a copy has been sent to the other parties,
identify the date on which service was made, and identify the method of
delivery used. This may be done by certificate of service, by notation
of a photostatic copy (cc:), or by any other means that can reasonably
be expected to show the Board that the other party has been provided a
copy, the date on which the copy was provided, and the method of
delivery used to provide the copy. Proof of service must be provided to
the Board at the time of filing. If proof of service is not provided,
the Board may decline to consider the document in the appeal.
Sec. 22.8 General Discovery Procedures [Rule 8].
(a) General policy and methods of discovery. The parties are
encouraged to engage in voluntary discovery procedures and may obtain
discovery by one
[[Page 34]]
or more of the following methods: Depositions; written interrogatories;
requests for admissions; and requests for production of documents,
electronically stored information, other tangible things, or entry onto
land.
(b) Scope of discovery. Except as otherwise limited by order of the
Board, the parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involving the
pending appeal, whether it relates to a claim or defense of a party,
including the existence, description, nature, custody, condition, and
location of any books, documents, electronically stored information, or
other tangible things, and the identity and location of persons having
knowledge of any discoverable matter. It is not a ground for objection
that the information sought will be inadmissible if the information
sought appears reasonably calculated to lead to the discovery of
admissible evidence.
(c) Discovery plan, conferences, and orders. Within 30 days of the
initial filing of documents in accordance with Sec. 22.4(a) of this
part [Rule 4(a)], the parties shall confer and file with the Board a
proposed discovery plan, which shall include estimated time frames and
proposed dates for completing discovery and when the parties anticipate
that a hearing can be scheduled. Upon request of a party or on its own
initiative, the Board may at any time hold an informal meeting or
telephone conference with the parties to identify outstanding issues
relating to discovery; establish a plan and schedule for discovery; set
limitations on discovery; compel compliance with discovery; and issue
such orders or determine such other matters as are necessary for the
proper management of discovery, including imposing sanctions on the
parties as may be appropriate.
(d) Discovery limits. On motion or on its own initiative, the Board
may make any order necessary to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense. Such
order may impose limitations on the scope, method, time and place for
discovery, and include provisions for protecting the secrecy of
confidential information or documents.
(e) Discovery objections. Unless otherwise ordered by the Board, any
objection to a discovery request must be filed with the Board within 15
days of receipt of the request. Objections must be filed in writing and
state with specificity the grounds therefor. Upon receipt, the Board
will establish a schedule for resolving the objections, which may
include additional briefing by the parties or oral argument, and will
determine the extent to which discovery will be permitted. A party shall
fully respond to any discovery request to which it does not file a
timely objection, in accordance with paragraph (f) of this section [Rule
8(f)]. The parties are required to make a good faith effort to resolve
objections to discovery requests informally prior to seeking relief from
the Board.
(f) Discovery responses. Unless otherwise ordered by the Board, a
party is required to respond to written interrogatories, requests for
admission, and requests for production of documents, electronically
stored information, other tangible things, or entry onto land within 30
days of receipt.
(g) Duty to supplement discovery responses. A party that has
responded to written interrogatories, requests for admission, or
requests for production of documents, electronically stored information,
or other tangible things, upon becoming aware of deficiencies or
inaccuracies in its original responses, or upon acquiring additional
information or documents relevant thereto, shall, as quickly as
practicable, and as often as necessary, supplement its responses to the
requesting party with correct and sufficient additional information and
such additional documents as are necessary to give a complete and
accurate response to the request.
(h) Voluntary cooperation. Each party is expected to cooperate by
making available witnesses and evidence under its control when requested
by another party, and to secure the voluntary attendance of third-party
witnesses and production of evidence by third parties, when practicable.
(i) Motions to compel discovery. If a party refuses to comply with a
discovery request, or a party's response to a discovery request is
incomplete or entirely absent, any other party may
[[Page 35]]
file a motion to compel a response. However, such motion must include a
representation that the moving party has tried in good faith, prior to
filing the motion, to resolve the matter informally. The motion to
compel shall include a copy of each discovery request at issue and the
response, if any.
(j) Sanctions. If, after being properly served with such discovery
request, a party fails to appear for deposition, respond to
interrogatories or requests for admissions, or respond to a request for
production of documents, electronically stored information, other
tangible things, or entry onto land, the party seeking discovery may
move the Board to impose sanctions under Sec. 22.10 of this part [Rule
10].
(k) Discovery motions, timing. All motions concerning discovery,
including motions to compel discovery, shall be filed on or before the
scheduled end date of discovery to the maximum extent practicable.
Motions that are filed after the end date of discovery will not be
considered except for good cause shown.
[73 FR 36258, June 26, 2008, as amended at 73 FR 60610, Oct. 14, 2008]
Sec. 22.9 Subpoenas [Rule 9].
(a) Issuance. Upon the written request of any party, or on the
initiative of the Board, a subpoena may be issued that commands the
person to whom it is directed to attend and give testimony at a
deposition or hearing, and/or produce documents or electronically stored
information (including writings, papers, books, accounts, photographs,
drawings, graphs, charts, recordings, and other data or data
compilations) or other tangible things designated in the subpoena, or to
permit entry onto designated premises for inspection or other purposes.
Requests for subpoenas shall identify the Board and state the name and
docket number of the appeal; identify the name of the person to whom the
subpoena is directed; command the person to whom the subpoena is
directed to, at a specific place and time, appear and testify, or
produce designated documents, electronically stored information, or
other tangible things, or permit the inspection of designated premises;
and state the scope and relevance of the requested testimony or evidence
to the appeal. All requests for subpoenas shall be filed at least 15
days before the testimony or evidence is to be provided, except that the
Board may, in its discretion, honor requests for subpoenas not made
within this time limitation.
(b) Service. The party requesting the subpoena shall cause the
subpoena to be served upon the person named in the subpoena as soon as
practicable after the subpoena has been issued and shall provide proof
of service to the Board. Service shall be made by any person who is not
a party and not less than 18 years of age by personal delivery to the
person named in the subpoena, and shall include tender of the fees for
one day attendance and the mileage allowed by 28 U.S.C. 1821 or other
applicable law; however, where the subpoena is issued on behalf of the
government, money payments need not be tendered in advance of
attendance.
(c) Motions to quash. Upon written motion of the person named in the
subpoena or a party, the Board may quash or modify the subpoena if it is
unreasonable and oppressive or for other good cause shown, or the Board
may require the party in whose behalf the subpoena was issued to advance
the reasonable costs of producing subpoenaed evidence. Motions to quash
or modify a subpoena must be filed within 10 days of service of the
subpoena or by the date and time specified in the subpoena for
compliance, whichever is earlier.
(d) Contumacy. In the case of contumacy or refusal to obey a
subpoena by a person who resides, is found, or transacts business within
the jurisdiction of a United States district court, the Board may apply
to the court through the Attorney General of the United States for an
order requiring the person to appear before the Board to give testimony,
produce evidence, or both.
Sec. 22.10 Sanctions [Rule 10].
(a) Standards. All parties and their representatives, attorneys, and
any experts/consultants retained by them or their attorneys, must obey
directions and orders prescribed by the Board and adhere to standards of
conduct applicable to such parties and persons. As to an attorney, the
standards include the
[[Page 36]]
rules of professional conduct and ethics of the jurisdictions in which
an attorney is licensed to practice, to the extent that those rules are
relevant to conduct affecting the integrity of the Board, its process,
and its proceedings. The Board will also look to professional guidelines
in evaluating an individual's conduct.
(b) Imposition of sanctions. (1) When a party or its representative
or attorney or any expert/consultant fails to comply with any direction
or order issued by the Board (including an order to provide or permit
discovery), or engages in misconduct affecting the Board, its process,
or its proceedings, the Board may make such orders as are just,
including the imposition of appropriate sanctions. The sanctions may
include:
(i) Taking the facts pertaining to the matter in dispute to be
established for the purpose of the appeal in accordance with the
contention of the party submitting the discovery request;
(ii) Forbidding challenge of the accuracy of any evidence;
(iii) Refusing to allow the noncompliant party to support or pose
designated claims or defenses;
(iv) Prohibiting the noncompliant party from introducing in evidence
designated documents or items of testimony;
(v) Striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed;
(vi) Dismissing the appeal or any part thereof; and/or
(vii) Imposing such other sanctions as the Board deems appropriate.
(2) Prior to imposing sanctions, the Board will provide the
noncompliant party with notice and an opportunity to be heard on the
issue of whether sanctions should be imposed. The opportunity to be
heard does not mean that the party is entitled to a hearing; the
opportunity to provide written argument shall satisfy this requirement.
(c) Disciplinary proceedings. In addition to the above procedures,
the Board may discipline individual party representatives, attorneys,
and experts/consultants for a violation of any Board order or direction
or standard of conduct applicable to such individual where the violation
affects the integrity of the Board's process or proceedings. Sanctions
may be public or private and may include admonishment, disqualification
from a particular matter, referral to an appropriate licensing
authority, or such other action as circumstances may warrant. The Board,
in its discretion, may suspend an individual from appearing before the
Board as a party representative, attorney, or expert/consultant if,
after affording such individual notice and an opportunity to be heard, a
majority of all members of the Contact Appeals Board determines that
such sanction is warranted.
Sec. 22.11 Depositions [Rule 11].
(a) When depositions may be taken. After an appeal has been docketed
by the Board and a complaint has been filed, either party may take the
testimony of any person by deposition upon oral examination or written
questions, for the purpose of discovery or for use as evidence in the
appeal proceedings, or for both purposes.
(b) Time, place, and manner of taking. The time, place, and manner
of taking depositions shall be as mutually agreed to by the parties or,
failing such agreement, be governed by order of the Board.
(c) Limits. The number of depositions taken shall not be limited
except as the Board may require to protect a party from annoyance,
burden, or harassment.
(d) Use as evidence. No testimony taken by deposition shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at the
hearing. Depositions ordinarily will not be received in evidence if the
deponent is present and can testify personally at the hearing; however,
depositions may be used to contradict or impeach the testimony of a
deponent as a witness. If only a part of a deposition is offered in
evidence by a party, an adverse party may require the offering party to
introduce any other part which in fairness ought to be considered with
the part introduced. In any case, the Board, upon the agreement of the
parties, may permit the introduction of relevant portions of depositions
as designated by the parties. If
[[Page 37]]
no hearing has been conducted and the appeal has been submitted on the
record pursuant to Sec. 22.17 of this part [Rule 17], the Board, in its
discretion, may receive depositions in evidence to supplement the
record.
Sec. 22.12 Interrogatories [Rule 12].
(a) When interrogatories may be served. After an appeal has been
docketed by the Board and a complaint has been filed, a party may serve
on an adverse party written interrogatories to be answered by the party
served or, if the party served is a public or private corporation or a
partnership or association, by any officer or agent who shall furnish
such information as is available to the party.
(b) Answers. The interrogatories shall be answered separately and
fully in writing, signed under oath by the person answering them, and
served on the party submitting the interrogatories. Objections to the
interrogatories shall be signed by counsel for the party responding to
the interrogatories. An interrogatory is not necessarily objectionable
merely because an answer to the interrogatory may involve an opinion or
contention that relates to fact or the application of law to fact;
however, the Board may order that such interrogatory need not be
answered until after discovery has been completed or some other event
has occurred.
(c) Scope and use as evidence. Interrogatories may relate to any
matters which can be inquired into under Sec. 22.11 of this part [Rule
11] (Depositions), and the answers may be used to the same extent as
provided for the use of the deposition of a party.
(d) Limits. The number of interrogatories or sets of interrogatories
to be served shall not be limited except as the Board may require to
protect a party from annoyance, burden, or harassment.
(e) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon which the interrogatory has been served, and the burden
of deriving or ascertaining the answer is substantially the same for the
party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the record(s) from
which the answer may be derived or ascertained and to afford the party
serving the interrogatory a reasonable opportunity to examine, audit, or
inspect such records and to make copies thereof. Such specification
shall be in sufficient detail to permit the interrogating party to
locate and to identify, as readily as can the party served, the
record(s) from which the answer may be ascertained.
Sec. 22.13 Requests for Admission [Rule 13].
(a) When requests for admission may be served. (1) After an appeal
has been docketed by the Board and a complaint has been filed, a party
may serve on the opposing party a written request for the admission by
the latter of the genuineness of any relevant documents described in and
exhibited with the request, or of the truth of any relevant matters of
fact set forth in the request. Each of the matters for which an
admission is requested shall be deemed admitted unless, within the
period designated in Sec. 22.8(c) and Sec. 22.8(f) of this part [Rules
8(e) and 8(f)] for responding to discovery requests, the party to whom
the request is directed serves upon the party requesting the admission
either:
(i) A sworn statement denying specifically the matters for which an
admission is requested or setting forth in detail the reasons why he or
she cannot truthfully admit or deny those matters, or
(ii) Written objections on the ground that some or all of the
requested admissions are privileged or irrelevant or that the request is
otherwise improper in whole or in part.
(2) If written objections to a part of the request are made, the
remainder of the request shall be answered within the period designated
in Rule 8(f). A denial shall fairly meet the substance of the requested
admission and, when good faith requires that a party deny only a part of
a matter for which an admission is requested, he or she shall specify so
much of it as is true and deny only the remainder.
(b) Limits. The number of requests for admissions served shall not
be limited except as the Board may require to
[[Page 38]]
protect a party from annoyance, burden, or harassment.
(c) Use as evidence. Any matter admitted is conclusively established
for the purpose of the pending action, unless the Board, on motion,
permits withdrawal or amendment of the admission.
[73 FR 36258, June 26, 2008, as amended at 73 FR 60610, Oct. 14, 2008]
Sec. 22.14 Production of Documents, Electronically Stored Information,
Other Tangible Things, or Entry Onto Land [Rule 14].
(a) When documents, electronically stored information, other
tangible things, or entry onto land may be requested. After an appeal
has been docketed by the Board and a complaint has been filed, any party
may serve on any other party a request--
(1) To produce and permit the inspection, copying, or photographing
of any designated documents or electronically stored information
(including writings, papers, books, accounts, photographs, drawings,
graphs, charts, recordings, and other data or data compilations), or
other tangible things, not privileged, which are in his, her, or its
possession, custody, or control and which are within the scope of
discovery as described in Sec. 22.8(b) of this part [Rule 8(b)]; or
(2) To permit entry onto designated land or other property in his or
its possession or control for the purpose of inspecting, measuring,
surveying, filming, or photographing the property or any designated
object or operation thereon which is within the scope of discovery as
described in Sec. 22.8(b) of this part [Rule 8(b)].
(b) Time, place, and manner. The request shall specify the time,
place, and manner of making the inspection and taking the copies and
photographs. The Board may make an order that the inspection, copying,
measuring, surveying, filming, or photographing shall be limited to
certain matters; or the Board may make any other order which, in its
discretion, it deems appropriate to protect the party from annoyance,
burden, or harassment.
Sec. 22.15 Conferences and Orders [Rule 15].
(a) Initial status conference. As soon as practicable after the
filing of the complaint and answer, the Board shall schedule an initial
status conference to discuss the issues of the case, the procedures
available under the Board's rules of resolution of the case, and a
tentative schedule for such resolution, including the plan for possible
discovery required by Rule 8(c), the possibility of alternative dispute
resolution (see Rule 24), and the possibility of dispositive motions.
(b) Status conferences and reports. At any time during the appeal,
the Board, upon its own initiative or upon the request of one of the
parties, may call upon the parties or their attorneys or representatives
to appear before the Board (or one or more members thereof) for a status
conference to consider or report on whatever matters are necessary to
aid in the disposition of the appeal. Such matters may include, for
example, the simplification or clarification of issues, the necessity or
desirability of amendments to the pleadings, agreements and rulings to
facilitate discovery, progress reports during discovery, and pre-hearing
procedures and scheduling. Status conferences may be conducted in person
or by telephone, and the Board generally will make an order which
recites the action taken at the conference(s). From time to time, the
Board also may require one or more of the parties, either jointly or
individually, to provide status reports concerning any matter that aids
in the disposition of the appeal.
(c) Rulings, orders, and directions. The Board may make such rulings
and issue such orders and directions as are necessary to secure the
informal, expeditious, and inexpensive resolution of every case before
the Board. Any ruling, order, or direction that the Board may make or
issue pursuant to the rules of this Board may be made on the motion of
any party or on the initiative of the Board. The Board may also amend,
alter, or vacate a ruling, order, or direction upon such terms as it
deems appropriate. In making rulings and issuing orders and directions,
the Board will take into consideration those Federal Rules of Civil
Procedure
[[Page 39]]
and Federal Rules of Evidence which address matters not specifically
covered herein.
[73 FR 60610, Oct. 14, 2008]
Sec. 22.16 Hearings [Rule 16].
(a) Election of hearing or record submission. Each party shall
inform the Board, in writing, whether it elects a hearing or submission
of the case on the record pursuant to Sec. 22.17 of this part [Rule
17]. Such election shall occur no later than 15 days after the
conclusion of discovery, unless the Board directs otherwise. In the
event that only one party waives a hearing and submits its case on the
record, the Board shall proceed with a hearing attended by the remaining
parties.
(b) Pre-hearing schedule. (1) Within 30 days of the conclusion of
discovery, the parties shall meet and confer and provide the Board with
a joint proposed schedule for pre-hearing and hearing disclosures,
submissions, and key events. In the absence of agreement, each party
shall submit its own proposed schedule. The schedule shall address, at a
minimum, deadlines for submitting the following:
(i) Dispositive motions, motions for summary judgment, and motions
in limine, which allow sufficient time for the Board to resolve the
motions before the hearing;
(ii) Pre-hearing briefs or statements of the case;
(iii) The identification of lay and expert witnesses for hearing,
the general substance of testimony to be offered by each witness, and
any depositions that will be used in lieu of witness testimony;
(iv) The exchange of expert reports and statements (if not done
during discovery);
(v) Proposed stipulations of fact;
(vi) The exchange of hearing exhibit books;
(vii) The production of any additional documents to be used at the
hearing that are not already part of the Sec. 22.4 [Rule 4] file;
(viii) Objections to proposed evidence or Sec. 22.4 [Rule 4] file
submissions;
(ix) Date for conducting a pre-hearing conference;
(x) Dates and duration of the hearing; and
(xi) Any other matter necessary for resolution before the hearing.
(2) As soon as practicable after receipt of the parties' proposed
schedule(s), the Board will issue an order establishing a schedule for
pre-hearing submissions and events, taking into account the parties'
proposed schedule, the nature of the case, and the scheduling needs of
the Board.
(c) Pre-hearing conference. Prior to the hearing, the Board will
conduct a pre-hearing conference to discuss such matters as may be
necessary to conduct an orderly and efficient hearing. Objections to
evidence may be resolved during the pre-hearing conference or at such
other time as established by the Board.
(d) Pre-hearing briefs. At least 20 days before a scheduled hearing,
each party shall file, in accordance with Sec. 22.6(b) of this part
[Rule 6(b)], a pre-hearing statement of the case, which shall include
the party's legal and factual analysis of the relevant issues, and how
the party intends to prove its case.
(e) Location of hearing. Hearings will be held at 441 G Street, NW.,
Washington, DC 20548, unless otherwise ordered by the Board. The Board
will consider a request for a hearing at another location if compelling
reasons are timely presented.
(f) Notice of hearing. The parties, or their counsel, will be given
at least 15 days notice of the time and place of a hearing on the
merits, provided that the parties may, with the approval of the Board,
waive notice and fix a mutually satisfactory time for the hearing.
Continuances will not be granted except upon written request and for
good cause.
(g) Nature of hearing. Hearings may be held by one or more of the
panel members of the Board and shall be as informal as may be reasonable
and appropriate under the circumstances. Each party may offer the
testimony of witnesses, who shall be subject to cross-examination by the
opposing party, and such relevant and material evidence as they deem
appropriate and as would be admissible under paragraph (h) of this
section [Rule 16(h)], subject, however, to the sound discretion of the
presiding Board member in supervising the extent and manner of
[[Page 40]]
presentation of such evidence. Stipulations of fact agreed upon by the
parties must be in writing, must be filed with the Board, and may be
used as evidence at the hearing. The parties may also stipulate to the
testimony that would be given by a witness if the witness were present.
The Board may at any time during the hearing require evidence or
argument in addition to that put forth by the parties.
(h) Admissibility and weight of evidence. In general, any relevant
and material evidence that would be admissible under the Federal Rules
of Evidence will be admitted to the record. However, evidence which may
not be admissible under the Federal Rules of Evidence, including
hearsay, may be admitted at the discretion of the presiding Board
member. The Board may also exclude evidence to avoid unfair prejudice,
confusion of the issues, undue delay, waste of time, or needless
presentation of cumulative evidence. The weight to be attached to
evidence and credibility to be accorded witnesses will be determined by
the Board, in its discretion.
(i) Examination of witnesses. Witnesses before the Board will be
examined orally under oath or affirmation, unless the facts are
stipulated or the Board shall otherwise order. If the testimony of a
witness is not given under oath, the Board may warn the witness that his
or her statements may be subject to the provisions of title 18, United
States Code, secs. 287 and 1001, and any other provisions of law
imposing penalties for knowingly making false representations in
connection with claims against the United States or in any matter within
the jurisdiction of any department or agency thereof.
(j) Availability of witnesses, documents, and other tangible things.
It is the responsibility of a party desiring to call any witness, or to
use any document or other tangible thing as an exhibit in the course of
a hearing, to ensure that whoever it wishes to call and whatever it
wishes to use is available at the hearing. In the event that a witness
does not appear or refuses to answer a question, or evidence requested
by the Board is not produced, the Board may draw an adverse inference of
the fact in question against the party responsible for providing the
witness or evidence.
(k) Issues not raised by the pleadings. If evidence is objected to
at a hearing on the ground that it is not within the issues raised by
the pleadings, it may nevertheless be admitted by the Board, in its
discretion, if it is within the proper scope of the appeal. If such
evidence is admitted, the pleadings may be amended to conform to the
evidence. The Board may also grant the objecting party a continuance to
enable it to respond to the evidence.
(l) Delay by the parties. If the Board determines that the hearing
is being unreasonably delayed by the failure of a party to produce
evidence, or by the undue prolongation of the presentation of evidence,
it may, by written order or by ruling from the bench, prescribe a time
or times within which the presentation of evidence must be concluded,
establish time limits on the direct or cross-examination of witnesses,
and enforce such order or ruling by appropriate sanctions.
(m) Exhibits. Unless otherwise directed by the Board, each party
shall prepare (jointly or individually) hearing exhibit books for use
during the hearing, and shall provide such books to the Board and
opposing counsel at least 3 days before the hearing commences. The books
shall consist of documents (or relevant excerpts from documents) placed
in a 3-ring binder or similar loose-leaf binder bound on the left
margin, separated by numbered tabs, with an index of the documents in
the front of each binder. The index shall identify the document by name
and, where applicable, the Sec. 22.4 [Rule 4] file citation (tab and
Bates numbers). Each document page included in the exhibit books must be
marked with the corresponding Bates number or applicable numerical
markings used in the Sec. 22.4 [Rule 4] file. Documents not contained
within the hearing books shall be marked by the Board during the
hearing. Documents contained in the hearing book that are not admitted
into evidence during the hearing will not become part of the record
unless already part of the Sec. 22.4 [Rule 4] file, or unless their
inclusion in the record is requested by the presenting party and
permitted by the Board.
[[Page 41]]
(n) Copies. Copies of documents may be offered and received into
evidence as exhibits, provided that they are of equal legibility and
quality as the originals, and such copies shall have the same force and
effect as if they were the originals. If the Board so directs, the party
offering a copy of a document as an exhibit shall have the original
available at the hearing for examination by the Board and any other
party. When the original of a document has been received in evidence, an
accurate copy thereof may be substituted in evidence for the original by
leave of the Board at any time.
(o) Absence of parties or counsel. The unexcused absence of a party
or his authorized representative at the time and place set for the
hearing will not be occasion for delay. In such event, the hearing will
proceed and the case will be regarded as submitted by the absent party
unless he or she appears before the conclusion of the hearing and offers
additional evidence.
(p) Transcripts. Unless the Board orders otherwise, all hearings
will be stenographically or electronically recorded and transcribed.
Other conferences and proceedings may be recorded or transcribed by
order of the Board. Generally, the Board will arrange for the
stenographer to record and transcribe the proceeding. Each party is
responsible for purchasing its own copy of the transcript(s) or
recording(s). Waiver of recordation and transcription may be especially
suitable for appeals resolved under the small claims procedure
prescribed in Sec. 22.22(c) of this part [Rule 22(c)].
(q) Post-hearing briefs. The Board may require the submission of
post-hearing briefs. In such case, briefs shall be filed within 30 days
after receipt of the transcript of the hearing, and reply briefs shall
be filed within 15 days after receipt of the initial post-hearing
briefs, unless such other time period has been established by the Board.
Post-hearing briefs shall be filed in accordance with the requirements
of Sec. 22.6(b) of this part [Rule 6(b)].
(r) Post-hearing evidence. No evidence shall be submitted by any
party after the hearing has concluded, including but not limited to
post-hearing declarations, unless authorized by the Board in its
discretion.
[73 FR 36258, June 26, 2008, as amended at 73 FR 60610, Oct. 14, 2008]
Sec. 22.17 Submission on the Record Without a Hearing [Rule 17].
(a) General requirements. Pursuant to Sec. 22.16(a) of this part
[Rule 16(a)], either party may elect to submit its case on the record
without a hearing. Submission of a case without a hearing does not
relieve the parties from the necessity of proving the facts supporting
their claims or defenses.
(b) Conference in lieu of hearing. If neither side desires a
hearing, either party may request that a conference be held in lieu of a
hearing with one or more members of the panel designated to decide the
appeal, and such request may be granted at the discretion of the Board.
The purpose of the conference is not to introduce new matters or
evidence, but to permit explanations and argument of matters of record.
If any new matter is introduced at the conference by either party,
consideration of the appeal will be deferred until the opposing party
has been apprised thereof and has had an opportunity to reply. Both
parties will be afforded the right to be present at any such conference.
At the request of a party, or on the Board's initiative, the conference
may be stenographically or electronically recorded and transcribed
pursuant to Sec. 22.16(p) of this part [Rule 16(p)].
(c) Statement of the case. The Board, at its discretion, may order a
party that submits its case on the record without a hearing to submit a
written statement of the case, including a legal and factual analysis of
the relevant issues, within such period of time as the Board allows. The
Board may also order parties to submit reply briefs. Briefs will be
filed in accordance with the requirements of Sec. 22.6(b) of this part
[Rule 6(b)].
Sec. 22.18 Closing the Record [Rule 18].
(a) Closing the record. The record will be closed on a date
announced by the Board by written notice.
(b) Supplementing the record after the record is closed. Except as
the Board may otherwise order in its discretion, no evidence shall be
received after the
[[Page 42]]
record is closed. However, at any time after the closing of the record
and prior to a decision of the appeal by the Board, at the request of a
party or upon its own initiative, the Board may reopen the record for
the purpose of receiving newly discovered evidence or for such other
reason as may appear to the Board to be appropriate.
Sec. 22.19 Findings and Decisions of the Board [Rule 19].
(a) Generally. All proceedings shall be concluded and appeals
disposed of as expeditiously as possible, commensurate with sound
adjudicatory procedure. The findings and decision in each appeal shall
be made by the members of the panel which considered that appeal, and
the findings and decision of the majority thereof shall constitute the
findings and decision of the Board. The absence or withdrawal of one
member of the panel which considered that appeal shall not invalidate
the proceedings, and the decision of the remaining panel members shall
constitute the decision of the Board. All decisions and findings of the
Board shall be made in writing and copies thereof shall be forwarded to
the parties or their counsel.
(b) Record upon which findings and decisions are based. (1) The
record upon which any decision of the Board will be rendered consists of
the following:
(i) Notice of appeal;
(ii) Pleadings, motions, written briefs and statements, and
responses thereto;
(iii) Rule 4 file and any supplements other than those to which an
objection has been sustained;
(iv) Hearing exhibits other than those to which an objection has
been sustained;
(v) Orders, rulings, and directions to the parties issued by the
Board;
(vi) Written transcripts and electronic recordings of proceedings;
(vii) Stipulations, party admissions, depositions or parts thereof
received in evidence, and written interrogatories and responses received
in evidence;
(viii) Anything else that the Board may designate.
(2) All other documents and electronically stored information are
part of the administrative record of the proceedings and are not
included in the record upon which the Board's decision will be rendered.
Sec. 22.20 Mistakes and Corrections [Rule 20].
(a) To decisions and orders. Clerical mistakes in decisions or
orders of the Board may be corrected at any time on the Board's own
initiative or upon motion of a party, except that if an appeal has been
filed with another tribunal, such mistakes may be corrected only with
leave of that tribunal.
(b) To the official transcript. Corrections to an official
transcript of a hearing will be made only when they involve errors
affecting its substance. The Board may order such corrections on motion
or on its own initiative and only after notice to the parties giving
them an opportunity to object. Such corrections will ordinarily be made
either by hand with pen and ink or by the appending of an errata sheet,
or the Board may require that the reporter provide substitute or
additional pages.
Sec. 22.21 Motion for Reconsideration [Rule 21].
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain the
motion, and shall be filed within 15 days of receipt of a copy of the
Board's decision. Mere disagreement with a decision, re-argument of
points already made, or the presentation of new evidence that could have
been presented during the appeal but was not, are not sufficient grounds
for reconsideration. A motion pending under Sec. 22.21 [Rule 21] does
not affect the finality of a decision or suspend its operation.
Sec. 22.22 Accelerated and Small Claims Procedures [Rule 22].
(a) Variation from standard proceedings. The ultimate purpose of any
Board proceeding is to resolve fairly and expeditiously any dispute
properly before the Board. The Board may at any time during an appeal
modify the procedures contained in these rules if it is deemed feasible
and furthers the resolution of the issue(s) in controversy.
(b) Accelerated procedure. The accelerated procedure is available
solely at
[[Page 43]]
the appellant's election, and only when the monetary amount in dispute
is $100,000 or less. Such election shall be made no later than 15 days
after receipt of the government's answer to the complaint, unless the
Board enlarges the time for good cause shown. Promptly after receiving a
timely filed election, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, discovery and other pre-hearing activities
may be restricted or eliminated, and the appeal may be decided by a
single member of the Board. Either party's failure to adhere to the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault. Whenever possible, the Board shall
resolve an appeal under this procedure within 180 days from the Board's
receipt of the election.
(c) Small claims procedure. The small claims procedure is available
solely at the appellant's election, and only when the monetary amount in
dispute is $50,000 or less (or in the case of a small business concern
is $150,000 or less). Such election shall be made no later than 15 days
after receipt of the government's answer to the complaint, unless the
Board enlarges the time for good cause shown. Promptly after receiving a
timely filed election, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, discovery and other pre-hearing activities
may be restricted or eliminated, and the appeal may be decided by a
single member of the Board. Either party's failure to adhere to the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault. Whenever possible, the Board shall
resolve an appeal under this procedure within 120 days from the Board's
receipt of the election.
Sec. 22.23 Suspension of Proceedings [Rule 23].
At any time, the Board may suspend the proceedings by agreement of
the parties for settlement discussions, or for good cause shown.
Sec. 22.24 Alternative Dispute Resolution [Rule 24].
(a) Docketed appeals. The Board considers Alternative Dispute
Resolution (ADR) to be an efficient way to timely resolve many contract
disputes, and therefore encourages the parties to use ADR as an
effective means to resolve their contract dispute. ADR with Board
participation is available at the initiative of the Board or upon the
joint motion of both parties. Guidelines, procedures, and requirements
for implementing ADR will be prescribed by agreement of the parties and
the Board. Ordinarily, ADR will be performed by a Board member,
designated by the Chairman of the Board, that is not one of the three
panel members deciding the dispute.
(b) Other matters. Upon request and in the Board's discretion, the
Board can make an ADR neutral available for an ADR proceeding, even if
the contracting officer's decision has not been issued or is not
contemplated. Such a request should be directed to the Chairman of the
Board.
Sec. 22.25 Protective Orders and In Camera Review [Rule 25].
(a) Protective orders. Upon motion of any party, or on the Board's
initiative, the Board may issue a protective order to hold materials
under conditions that would limit access to them on the ground that such
documents are privileged or confidential, or sensitive in some other
way. Any motion filed under this rule must state with specificity the
grounds for such limited access. The manner in which such materials will
be held, the persons that shall have access to them, and the conditions
under which such access will be allowed will be specified in an order of
the Board.
(b) In camera review. Generally, all documents and evidence provided
to the Board must also be provided to all other parties to the appeal or
their legal counsel or representative. However, in limited
circumstances, such as in deciding matters of privilege, it may be
appropriate for the Board to review documents or evidence in camera. In
camera review may be requested upon motion to the Board, or on the
Board's initiative. Any motion filed under this
[[Page 44]]
rule must state with specificity the grounds for seeking in camera
review.
Sec. 22.26 Representation of Parties [Rule 26].
(a) The appellant. Any appellant may appear before the Board
represented by an attorney duly licensed in any State, Commonwealth,
Territory, or in the District of Columbia. An individual appellant may
appear before the Board in person; a corporation may be represented by
an officer thereof; a partnership or joint venture may be represented by
a member thereof. Under special circumstances, the Board may authorize a
contractor to appear before the Board represented by a duly authorized
representative other than those mentioned herein for the purposes of
that appeal only.
(b) The respondent. The respondent may appear before the Board
represented by an attorney duly licensed in any State, Commonwealth,
Territory, or in the District of Columbia. Such attorney shall be
designated with authority to represent the government's interests before
the Board. Alternatively, if not otherwise prohibited, the respondent
may appear before the Board represented by the contracting officer or
the contracting officer's authorized representative.
(c) Others. The Board may, on motion, in its discretion, permit a
special or limited appearance, such as by amicus curiae. Permission to
appear, if granted, will be for such purposes and in such manner as
established by the Board.
(d) Notice of appearance. An attorney or other duly authorized
representative representing a party before the Board shall file a notice
of appearance. Such notice shall provide the person's name, address,
direct dial telephone number, fax number, and e-mail address. If
multiple attorneys or law firms represent a party, the contact
information for each attorney shall be provided to the Board. In such
instances, the party shall designate a single attorney or individual as
the primary point of contact for the party. Notices of appearance shall
be filed at the commencement of the appeal and shall be updated as
necessary during the appeal.
Sec. 22.27 Ex Parte Communications [Rule 27].
No member of the Board shall entertain, nor shall any person
directly or indirectly involved in an appeal submit to the Board, any
evidence, explanation, analysis, or advice, whether written or oral,
regarding any matter at issue in an appeal without the knowledge and
consent of the adverse party. This provision does not apply to
consultation among Board members or to ex parte communications
concerning the Board's administrative functions or procedures.
Sec. 22.28 Time [Rule 28].
In computing any period of time described in these rules, ``days''
refer to calendar days, unless otherwise specified in these rules. The
first day from which the period begins to run is not counted, and when
the last day of the period is Saturday, Sunday, or a Federal holiday,
the period extends to the next day that is not a Saturday, Sunday, or a
Federal holiday. Documents shall be deemed ``filed'' on the date and
time received by the Board if received before 5:30 p.m. local time in
Washington, DC, or the next business day if received after 5:30 p.m.
[73 FR 60610, Oct. 14, 2008]
Sec. 22.29 Inspection of the Record [Rule 29].
The notice of appeal, the complaint, the answer, the documents
required to be filed therewith pursuant to Sec. 22.4 of this part [Rule
4], all papers filed by the parties with the Board pursuant to these
rules, and all correspondence exchanged between the Board and the
parties or their attorneys shall be available for inspection at the
offices of the Board. Prior arrangements for inspection of the file
should be made with a member of the Board.
PART 25_CONDUCT IN THE GOVERNMENT ACCOUNTABILITY OFFICE BUILDING
AND ON ITS GROUNDS--Table of Contents
Sec.
25.1 Applicability and governing laws.
25.2 Inspection.
25.3 Admission to the GAO building.
[[Page 45]]
25.4 Preservation of property.
25.5 Conformity with signs and directions.
25.6 Disturbances.
25.7 Gambling.
25.8 Alcoholic beverages and narcotics.
25.9 Soliciting, vending, and debt collection.
25.10 Posting and distributing materials.
25.11 Photographs for news, advertising, or commercial purposes.
25.12 Dogs and other animals.
25.13 Vehicular and pedestrian traffic.
25.14 Weapons and explosives.
25.15 Nondiscrimination.
25.16 Penalties.
Authority: 31 U.S.C. 783.
Source: 55 FR 2359, Jan. 24, 1990, unless otherwise noted.
Sec. 25.1 Applicability and governing laws.
These rules and regulations, and the laws of the United States and
the District of Columbia, apply to the Government Accountability 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.
Sec. 25.2 Inspection.
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.
Sec. 25.3 Admission to the GAO building.
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.
Sec. 25.4 Preservation of property.
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 any kind from or at the GAO Building, or the
climbing on any part of the GAO Building, is prohibited.
Sec. 25.5 Conformity with signs and directions.
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.
Sec. 25.6 Disturbances.
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.
Sec. 25.7 Gambling.
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
[[Page 46]]
District of Columbia and authorized by section 2(a)(5) of the Randolph-
Sheppard Act (20 U.S.C. 107, et seq.).
Sec. 25.8 Alcoholic beverages and narcotics.
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.
Sec. 25.9 Soliciting, vending, and debt collection.
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).
Sec. 25.10 Posting and distributing materials.
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 rules and
regulations or when such displays are conducted as part of authorized
government activities. Distribution of materials, such as pamphlets,
handbills or flyers is prohibited, unless conducted as part of
authorized government activities. Any person or organization proposing
to post or distribute materials in any part of the GAO Building or on
its grounds shall first obtain a permit from the Comptroller General or
his designee and shall conduct the posting or distribution in accordance
with the guidelines provided by the Comptroller General or his designee.
Failure to comply with those guidelines is a violation of these
regulations.
Sec. 25.11 Photographs for news, advertising, or commercial purposes.
Photographs may be taken in the GAO Building only with the approval
or authorization of the Comptroller General or his designee.
Sec. 25.12 Dogs and other animals.
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.
Sec. 25.13 Vehicular and pedestrian traffic.
(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;
[[Page 47]]
(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.
Sec. 25.14 Weapons and explosives.
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.
Sec. 25.15 Nondiscrimination.
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.
Sec. 25.16 Penalties.
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.
PART 27_GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD;
ORGANIZATION--Table of Contents
Sec.
27.1 The Board.
27.2 The Chair, Vice Chair.
27.3 The General Counsel.
Authority: 31 U.S.C. 753.
Source: 58 FR 61992, Nov. 23, 1993, unless otherwise noted.
Sec. 27.1 The Board.
The Government Accountability 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 part 28, 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 review by the Board.
[64 FR 15125, Mar. 30, 1999, as amended at 68 FR 69297, Dec. 12, 2003]
Sec. 27.2 The Chair, Vice Chair.
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.
Sec. 27.3 The General Counsel.
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
[[Page 48]]
the Board, and otherwise assist the Board in carrying out its functions.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69297, Dec. 12, 2003]
PART 28_GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES
AT THE GOVERNMENT ACCOUNTABILITY OFFICE--Table of Contents
Subpart A_Purpose, General Definitions, and Jurisdiction
Sec.
28.1 Purpose and scope.
28.2 Jurisdiction.
28.3 General definitions.
28.4 Computation of time.
Subpart B_Procedures
28.8 Informal procedural advice.
28.9 Procedures; general.
28.10 Notice of petition rights.
28.11 Filing a charge with the Office of General Counsel.
28.12 General Counsel Procedures.
28.13 Special procedure for Reduction in Force.
Hearing Procedures for Cases Before the Board--General
28.15 Scope and policy.
28.16 Revocation, amendment or waiver of rules.
28.17 Internal petitions of Board employees.
28.18 Filing a petition with the Board.
28.19 Content of response by charged party.
28.20 Number of pleadings, service and response.
28.21 Amendments to petitions and motions practice.
28.22 Administrative judges.
28.23 Disqualification of administrative judges.
28.24 Sanctions.
Parties, Practitioners and Witnesses
28.25 Representation.
28.26 Witness fees.
28.27 Intervenors.
28.28 Substitution.
28.29 Consolidation or joinder.
Discovery
28.40 Statement of purpose.
28.41 Explanation, scope and methods.
28.42 Discovery procedures and protective orders.
28.43 Compelling discovery.
28.44 Taking of depositions.
28.45 Admissions of facts and genuineness of documents.
Subpoenas
28.46 Motion for subpoena.
28.47 Motion to quash.
28.48 Service.
28.49 Return of service.
28.50 Enforcement.
Hearings
28.55 Scheduling the hearing.
28.56 Hearing procedures, conduct and copies of exhibits.
28.57 Public hearings.
28.58 Transcript.
28.59 Official record.
28.60 Briefs.
28.61 Burden and degree of proof.
28.62 Decision on the record.
28.63 Closing the record.
Evidence
28.65 Service of documents.
28.66 Admissibility.
28.67 Production of statements.
28.68 Stipulations.
28.69 Judicial notice.
Interlocultory Appeals
28.80 Explanation.
28.81 Procedures and criteria for certification.
Board Decisions, Attorney's Fees and Judicial Review
28.86 [Reserved]
28.87 Board procedures; initial decisions.
28.88 Board procedures; enforcement.
28.89 Attorney's fees and costs.
28.90 Board procedures; judicial review.
Subpart C_Oversight Procedures
28.91 General.
28.92 Oversight of GAO EEO program.
Subpart D_Special Procedures; Equal Employment Opportunity (EEO) Cases
28.95 Purpose and scope.
28.96 Applicability of general procedures.
28.97 Class actions in EEO cases.
28.98 Individual charges in EEO cases.
28.99 Petitions to the Board in EEO cases.
28.100 [Reserved]
28.101 Termination of Board proceedings when suit is filed in Federal
District Court.
Subpart E_Special Procedures; Representation Proceedings
28.110 Purpose.
[[Page 49]]
28.111 Scope.
28.112 Who may file petitions.
28.113 Contents of representation petitions.
28.114 Pre-investigation proceedings.
28.115 Processing petitions.
28.116 Conduct of elections.
Subpart F_Special Procedures; Unfair Labor Practices
28.120 Authority of the Board.
28.121 Unfair labor practices; Board procedures.
28.122 Negotiability issues.
28.123 Standards of conduct for labor organizations.
28.124 Review of arbitration awards.
Subpart G_Corrective Action, Disciplinary and Stay Proceedings
28.130 General authority.
28.131 Corrective action proceedings.
28.132 Disciplinary proceedings.
28.133 Stay proceedings.
Subpart H_Appeals by Members of the Senior Executive Service
28.140 Personnel actions involving SES members.
28.141 Performance based actions.
Subpart I_Ex Parte Communications
28.145 Policy.
28.146 Explanation and definitions.
28.147 Prohibited communications.
28.148 Reporting of communications.
28.149 Sanctions.
Subpart J_Statements of Policy or Guidance
28.155 Statement of policy or guidance.
Subpart K_Access to Records
28.160 Request for records.
28.161 Denial of access to information--Appeals.
Authority: 31 U.S.C. 753.
Source: 58 FR 61992, Nov. 23, 1993, unless otherwise noted.
Editorial Note: Nomenclature changes to part 28 appear at 76 FR
76873, Dec. 9, 2011.
Subpart A_Purpose, General Definitions, and Jurisdiction
Sec. 28.1 Purpose and scope.
(a) The regulations in this part implement the Board's authority
with respect to employment practices within the Government
Accountability Office (GAO), pursuant to the General Accounting Office
Personnel Act of 1980 (GAOPA), 31 U.S.C. 751-755.
(b) The purpose of the rules in this part is to establish the
procedures to be followed by:
(1) The GAO, in its dealings with the Board;
(2) Employees of the GAO or applicants for employment with the GAO,
or groups or organizations claiming to be affected adversely by the
operations of the GAO personnel system;
(3) 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, United States Code; and
(4) The Board, in carrying out its responsibilities under
Subchapters III and IV of chapter 7 of title 31, United States Code.
(c) The scope of the Board's operations encompasses the
investigation and 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.
[59 FR 59105, Nov. 16, 1994, as amended at 68 FR 69297, Dec. 12, 2003]
Sec. 28.2 Jurisdiction.
(a) The Board has jurisdiction to hear and decide the following:
(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
[[Page 50]]
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 petition 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) The appropriateness of a 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) Special jurisdictional rules where matters are covered by a
negotiated grievance procedure. If a GAO employee is covered by a
collective bargaining agreement containing a negotiated grievance
procedure that permits the employee to grieve matters that would
otherwise be appealable to the Board, the following special rules apply:
(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 Sec. 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) Matters involving prohibited personnel practices. If the
negotiated grievance procedure permits the employee to grieve an
appealable action involving a prohibited personnel practice other than
prohibited discrimination (as defined in Sec. 28.95), such an action
may be raised under either, but not both, of the following procedures:
(A) The Board's procedures; or
(B) The negotiated grievance procedure.
The employee will be deemed to have elected the Board's procedures
if the employee files a timely charge with the Board's Office of General
Counsel before filing a timely grievance.
(3) 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 paragraphs (c)(1) or (c)(2) of
this section, then those matters may only be raised under the negotiated
grievance procedure and not before the Board.
(4) 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 Sec. 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 the Clerk of the Board within 20 days of
receipt of the final decision of the negotiated grievance procedure. The
Board will not review any final decisions of the negotiated grievance
procedure other than those where prohibited discrimination was raised as
an issue in the grievance.
(d) Except for actions involving prohibited discrimination (under
Sec. 28.95) or any other prohibited personnel practice, any appealable
action that is excluded from the application of the negotiated grievance
procedure may be raised only under the Board's procedures.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69298, Dec. 12, 2003;
76 FR 76873, Dec. 9, 2011]
Sec. 28.3 General definitions.
In this part--
[[Page 51]]
Administrative judge means any individual designated by the Board to
preside over a hearing conducted on matters within its jurisdiction. An
administrative judge may be a member of the Board, an employee of the
Board, or any individual qualified by experience or training to conduct
a hearing who is appointed to do so by the Board. When a panel of
members or the full Board is hearing a case, the Chair shall designate
one of the members to exercise the responsibilities of the
administrative judge in the proceedings.
Appeal means a request filed with the full Board for review of an
initial decision.
Board means the Government Accountability Office Personnel Appeals
Board as established by 31 U.S.C. 751 and explained in 4 CFR 27.1.
Charge means any request filed with the PAB Office of General
Counsel to investigate any matter within the jurisdiction of the Board,
under the provisions of Subchapter IV of chapter 7 of Title 31, United
States Code.
Charging Party means any person filing a charge with the PAB Office
of General Counsel for investigation.
Clerk of the Board means the Clerk of the Personnel Appeals Board.
Comptroller General means the Comptroller General of the United
States.
Days means calendar days.
Director of EEO Oversight means the Personnel Appeals Board Director
of EEO Oversight.
Executive Director means the Executive Director of the Personnel
Appeals Board.
GAO means the Government Accountability Office.
General Counsel means the General Counsel of the Board, as provided
for under 31 U.S.C. 752.
Initial Decision means the adjudicatory statement of a case that is
issued by an administrative judge who is a member of or appointed by the
Board.
Notice of Appeal means a pleading requesting that the full Board
review an initial decision.
Person means an employee, an applicant for employment, a former
employee, a labor organization or the GAO.
Petition means any request filed with the Board for action to be
taken on matters within the jurisdiction of the Board, under the
provisions of Subchapter IV of Chapter 7 of title 31, United States
Code.
Petitioner means any person filing a petition for Board
consideration.
Pleading means a document that initiates a cause of action before
the Board, responds to a cause of action, amends a cause of action,
responds to an amended cause of action, requests reconsideration of a
decision, responds to such a request, requests appellate review by the
full Board or responds to such a request.
Reduction in Force (RIF) means the release of an employee from a job
group by separation, demotion, reassignment requiring displacement, or
furlough for more than 30 days when the cause of action is lack of work,
shortage of funds, insufficient personnel ceiling, reorganization or
realignment, an individual's exercise of reemployment or reinstatement
rights, correction of skills imbalances, or reduction of high-grade
supervisory, or managerial positions.
Request for Reconsideration means a request, filed with the
administrative judge who rendered the initial decision, to reconsider
that decision in whole or part.
Solicitor means the attorney appointed by the Board to provide
advice and assistance to the Board in carrying out its adjudicatory
functions and to otherwise provide assistance as directed by the Board.
[68 FR 69298, Dec. 12, 2003]
Sec. 28.4 Computation of time.
(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
[[Page 52]]
be added when a document is served by express mail or other form of
expedited delivery.
(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.
(d) No written submission shall be accepted by the Clerk of the
Board after 4 p.m., Monday through Friday.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69298, Dec. 12, 2003]
Subpart B_Procedures
Sec. 28.8 Informal procedural advice.
(a) Persons may seek informal advice on all aspects of the Board's
procedures by contacting the Board's Executive Director, Director of EEO
Oversight, Solicitor, General Counsel or the Clerk of the Board.
(b) Informal procedural advice will be supplied within the limits of
available time and staff.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69298, Dec. 12, 2003]
Sec. 28.9 Procedures; general.
(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\1/2\x11).
Sec. 28.10 Notice of petition rights.
(a) The GAO shall be responsible for ensuring that employees are
routinely advised of their rights to petition 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 rights to
petition 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 filing a petition with 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69298, Dec. 12, 2003]
Sec. 28.11 Filing a charge with the Office of General Counsel.
(a) Who may file. (1) Any person claiming to be affected adversely
by GAO action or inaction which is within the Board's jurisdiction under
Subchapter IV of Chapter 7 of Title 31, United States Code, may file a
charge with the General Counsel.
(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 Sec. 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 Sec.
28.121(a)).
(b) When to file. (1) Charges relating to adverse and performance-
based actions must be filed within 30 days after the effective date of
the action.
(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 Sec.
28.98.
(4) Charges relating to continuing violations may be filed at any
time.
(c) How to file. Charges may be filed with the Office of General
Counsel by
[[Page 53]]
personal delivery (including commercial carrier) or by mail.
(1) A charge may be filed by personal delivery at the Office of
General Counsel, Personnel Appeals Board, Room 1562, 441 G Street NW.,
Washington, DC 20548.
(2) A charge may be filed by mail addressed to the Office of General
Counsel, Personnel Appeals Board, Room 1562, 441 G Street NW.,
Washington, DC 20548. When filed by mail, the postmark shall be the date
of filing for all submissions to the Office of General Counsel.
(d) What to file. The charging party should include in any charge
the following information:
(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 Office of General Counsel
investigate;
(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 Office of General Counsel, the General Counsel
shall transmit the charge to the Board for processing under Sec. Sec.
28.18 through 28.88 as a petition.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994;
61 FR 36810, July 15, 1996; 68 FR 69298, Dec. 12, 2003; 77 FR 15233,
Mar. 15, 2012]
Sec. 28.12 General Counsel Procedures.
(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 Office of General Counsel shall
provide the charging party with a Right to Petition 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)(1) 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 Office of
General Counsel.
(2) 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. The charging party may nonetheless
file a petition with the Board in accordance with Sec. 28.18.
(3) 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
[[Page 54]]
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
Office of General Counsel has not completed the investigation and issued
a Right to Petition Letter, the charging party may bring his or her case
directly to the Board by filing a petition in accordance with Sec.
28.18. If a charging party exercises this option to file a petition with
the Board without waiting for the completion of the investigation, the
Office of 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 Office of General Counsel
shall close the investigation of the charge upon being notified by the
Clerk of the Board that the charging party has filed a petition with the
Board under this paragraph (g).
(h) Office of General Counsel settlement: Where the General Counsel
under paragraph (a) of this section transmits a settlement which has
been agreed to by the parties, the settlement agreement shall be the
final disposition of the case.
(i) Confidentiality: (1) It is the Office of General Counsel's
policy to protect against the disclosure of documents obtained during
the investigation, as a means of ensuring that Office's continuing
ability to obtain all relevant information. However, if the Office of
General Counsel files a petition with the Personnel Appeals Board on
behalf of a charging party pursuant to this section, that Office may
disclose the identity of witnesses and a synopsis of their expected
testimony. Documents to be offered into evidence at the hearing may be
disclosed as required by the prehearing disclosure requirements of Sec.
28.56.
(2) Unless so ordered by a court of competent jurisdiction, no
employee of the Personnel Appeals Board Office of General Counsel shall
produce or disclose any information or records acquired as part of the
performance of his/her official duties or because of his/her official
status. Before producing or disclosing such information or records
pursuant to court order, an employee shall notify the General Counsel.
[58 FR 61992, Nov. 23, 1993, as amended at 65 FR 80280, Dec. 21, 2000;
68 FR 69299, Dec. 12, 2003]
Sec. 28.13 Special procedure for Reduction in Force.
In the event of a Reduction in Force (RIF) resulting in an
individual's separation from employment, an aggrieved employee may
choose to file a petition directly with the Personnel Appeals Board,
without first filing the charge with the PAB's Office of General Counsel
pursuant to Sec. 28.11. Pursuant to Sec. 28.98, individuals raising
discrimination issues in connection with a RIF action need not file a
complaint with GAO's Office of Opportunity and Inclusiveness before
pursuing a RIF challenge alleging discrimination, either by filing
directly with the PAB or by filing a charge with the Board's Office of
General Counsel.
[68 FR 69299, Dec. 12, 2003]
Hearing Procedures for Cases Before the Board--General
Sec. 28.15 Scope and policy.
The rules in this subpart apply to actions brought by any person,
except as otherwise provided in Sec. 28.17 (concerning internal
petitions 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69299, Dec. 12, 2003]
Sec. 28.16 Revocation, amendment or waiver of rules.
(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
[[Page 55]]
Federal Register. Notice of publication in the Federal Register must be
published throughout GAO.
(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.
Sec. 28.17 Internal petitions of Board employees.
(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 bring this matter to the attention of the Board's Executive
Director or General Counsel. If the matter cannot be resolved within 10
days, the Executive Director shall notify the employee of his or her
right to file an EEO complaint. The employee may consult with either the
Board's Solicitor or General Counsel and seek advice with regard to
procedural matters concerning the filing of an EEO charge. The employee
shall have 20 days from service of this notice to file an EEO charge
with the PAB Office of General Counsel. Upon receipt of an EEO charge,
the General Counsel shall arrange with the Executive Director 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 petition 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 with the Executive Director for processing in accordance with
paragraph (b) of this section. If the challenged action is a RIF-based
separation from employment, the employee may choose to expedite the
procedures by filing a petition directly with the Board.
(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 Office of Special Counsel 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 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 neither the MSPB nor the EEOC agrees 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 cases. The
decision of the administrative law judge, administrative judge or
arbitrator shall be a final decision of the Board. The procedure
[[Page 56]]
for judicial review of the decision shall be the same as that described
in Sec. 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) Informal Step. The employee must discuss the complained of
incident with his or her supervisor as soon as possible after the
complained of incident.
(2) Step 1. If the supervisor is unable to resolve the matter
informally to the satisfaction of the employee, then the employee may
file a formal grievance with the supervisor. The formal grievance must
be filed by the employee with the supervisor within 20 days after the
complained of incident. The supervisor must respond to the employee in
writing within 10 days.
(3) Step 2. (i) If the employee is not satisfied with the
supervisor's response, the employee has 10 days in which to appeal to
the Chair. In this appeal, the employee must forward to the Chair the
formal grievance, the supervisor's response and a brief statement from
the employee explaining why the supervisor's response is not
satisfactory.
(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) Step 3. Within 10 days after service of the Chair's resolution
or within 60 days after initiating step 2, whichever occurs first, the
employee may request that the full Board review the grievance. The
decision of the full Board is the final decision in the matter.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994;
61 FR 36810, July 15, 1996; 68 FR 69299, Dec. 12, 2003]
Sec. 28.18 Filing a petition with the Board.
(a) Who may file. Any person who is claiming to be affected
adversely by GAO action or inaction that is within the Board's
jurisdiction under subchapter IV of chapter 7 of title 31, United States
Code, or who is alleging that GAO or a labor organization engaged or is
engaging in an unfair labor practice, may file a petition if one of the
following is met:
(1) The person has received a Right to Petition Letter from the
Board's Office of General Counsel; or
(2) At least 180 days have elapsed from the filing of the charge
with the Board's Office of General Counsel and that Office has not
issued a Right to Petition Letter; or
(3) The person was separated due to a Reduction in Force and chooses
to file a petition directly with the Board, without first filing with
the Board's Office of General Counsel, as provided in Sec. 28.13.
(b) When to file. (1) Petitions filed pursuant to paragraph (a)(1)
of this section must be filed within 30 days after receipt by the
charging party of the Right to Petition Letter from the Board's Office
of General Counsel.
(2) Petitions 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 Office of General Counsel, provided that that
Office has not issued a Right to Petition Letter concerning the charge.
(3) Petitions 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) How to file. (1) A petition may be filed by hand delivery to the
office of the Personnel Appeals Board, Room 1566, 441 G Street NW.,
Washington, DC 20548. It must be received by 4 p.m., Monday through
Friday, on the date that it is filed.
(2) A petition may be filed by mail addressed to the Personnel
Appeals Board, Room 1566, 441 G Street NW., Washington, DC 20548. When
filed by mail, the postmark shall be the date of filing for all
submissions to the Board.
(d) What to file. The petition shall include the following
information:
(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;
[[Page 57]]
(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. Failure to raise a claim or
defense in the petition shall not bar its submission later unless to do
so would prejudice the rights of the other parties or unduly delay the
proceedings.
(f) Non-EEO class actions. One or more persons may file a petition
as representatives of a class in any matter within the Board's
jurisdiction. For the purpose of determining whether it is appropriate
to treat a petition as a class action, the administrative judge will be
guided, but not controlled, by the applicable provisions of the Federal
Rules of Civil Procedure. See Sec. 28.97 for EEO class actions.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994;
61 FR 9090, Mar. 7, 1996; 61 FR 36810, July 15, 1996; 65 FR 80280, Dec.
21, 2000; 68 FR 69300, Dec. 12, 2003; 77 FR 15233, Mar. 15, 2012]
Sec. 28.19 Content of response by charged party.
(a) Within 20 days after service of a copy of a petition, 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
allegation set forth therein, including admissions, denials or
explanations. If the petition contains numbered paragraphs, the
responses should reference the paragraph numbers. If the petition does
not contain numbered paragraphs, the responses should quote or otherwise
clearly identify the specific allegations of the petition.
(2) Any other defenses to the petition.
(3) 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69300, Dec. 12, 2003]
Sec. 28.20 Number of Pleadings, service and response.
(a) Number. One original and seven copies of all pleadings (see
definition in Sec. 28.3) must be filed with the Board. However, when
before a single administrative judge, one original and three copies will
be adequate unless informed otherwise.
(b) Service. (1) The Board will serve copies of a petition upon the
parties to the proceeding by mail and/or by facsimile. The Board will
attach a service list indicating the names and addresses of the parties
to the proceeding or their designated representatives. The Board will
not serve copies of any pleadings, motions, or other submissions by the
parties after the initial petition.
(2) The parties shall serve on each other one copy of all pleadings
other than the initial petition. Service shall be made by mailing, by
facsimile or by delivering personally a copy of the pleading to each
party on the service list previously provided by the Board. Each
pleading must be accompanied by a certificate of service specifying how
and when service was made. It shall be the duty of all parties to notify
the Board and one another in writing of any changes in the names or
addresses on the service list.
(c) Time limitations for response to pleadings. Unless otherwise
specified by the administrative judge or this subpart, a party shall
file a response to a pleading within 20 days of the service of that
pleading upon the party.
(d) Size limitations are set forth at Sec. 28.9(b).
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69300, Dec. 12, 2003]
Sec. 28.21 Amendments to petitions and motions practice.
(a) Amendments to petitions. The Board, at its discretion, may allow
amendments to a petition as long as all
[[Page 58]]
persons who are parties to the proceeding have adequate notice to
prepare for the new allegations and if to do so would not prejudice the
rights of the other parties or unduly delay the proceedings.
(b) Motions practice. (1) When an action is before an administrative
judge, motions of the parties shall be filed with the Clerk of the Board
and shall be in writing except for oral motions made during the hearing.
An original and 3 copies of written motions shall be filed with the
Clerk of the Board. An original and 3 copies of responses in opposition
to written motions must be filed with the Clerk of the Board within 20
days of service of the motion unless the administrative judge requires a
shorter time.
(2) When an action is before the full Board, an original and 7
copies of any motion shall be filed with the Clerk of the Board. An
original and 7 copies of any responses in opposition to motions must be
filed with the Clerk of the Board within 20 days of service of the
motion unless the Board requires a shorter time.
(3) A party filing a motion for extension of time, a motion for
postponement of a hearing, or any other procedural motion must first
contact the other party to determine whether there is any objection to
the motion and must state in the motion whether the other party has any
objection.
(4) No motions, responses or other submissions will be accepted for
filing by the Clerk of the Board after 4 p.m., Monday through Friday.
All written submissions shall be served simultaneously upon the other
parties to the proceeding. A certificate of service must be attached
showing service by mail, facsimile or personal delivery of the
submission to the other parties. Further submissions by either party may
be filed only with the approval of the administrative judge or full
Board.
(5) All written motions and responses thereto shall include a
proposed order, where applicable.
(6) Motions for extension of time will be granted only upon a
showing of good cause.
(7) Oral argument. The administrative judge may allow oral argument
on the motion at his or her discretion.
(c) Motions for summary judgment. (1) Either party may move for
summary judgment by filing a written motion no later than 14 days prior
to the commencement of the hearing or as otherwise ordered by the
administrative judge.
(2) Motions for summary judgment must be accompanied by a statement
of material facts for which there is no genuine dispute and a statement
of reasons in support of the motion. The motion may be supported by
documents, affidavits, or other evidence.
(3) Summary judgment will be granted if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, if any, and other
documents show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.
(4) A party moving for summary judgment must make a showing
sufficient to establish the existence of each element essential to that
party's cause of action and for which that party bears the burden of
proof.
(5) When a party moves for summary judgment, the Board will evaluate
the motion on its own merits, resolving all reasonable inferences
against the moving party.
[68 FR 69300, Dec. 12, 2003]
Sec. 28.22 Administrative judges.
(a) Exercise of authority. Administrative judges may exercise
authority as provided in paragraph (b) of this section upon their own
initiative or upon the motion of a party, as appropriate.
(b) Authority. Administrative judges shall conduct fair and
impartial hearings and take all necessary action to avoid delay in the
disposition of all proceedings. They shall have all powers necessary to
that end unless otherwise limited by law, including, but not limited to,
the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas in accordance with Sec. 28.46;
(3) Rule upon offers of proof and receive relevant evidence;
(4) Rule upon discovery issues as appropriate under Sec. Sec. 28.42
through 28.45;
(5) Convene a hearing as appropriate, regulate the course of the
hearing,
[[Page 59]]
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 Sec. 28.24 of this part;
(11) Hold prehearing conferences for the settlement and
simplification of issues; and
(12) Issue initial decisions, as appropriate.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.23 Disqualification of administrative judges.
(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.
Sec. 28.24 Sanctions.
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) Failure to comply with an order or subpoena. When a party fails
to comply with an order or subpoena (including an order for the taking
of a deposition, for the production of evidence within the party's
control, for an admission, or for production of witnesses), the
administrative judge may:
(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 or subpoena
from introducing, or otherwise relying upon, evidence 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) Failure to prosecute or defend. If a party fails to prosecute or
defend a petition, the administrative judge may dismiss the action with
prejudice or rule for the petitioner.
(c) Failure to make timely filing. The administrative judge may
refuse to consider any motion or other action which is not filed in a
timely fashion in compliance with this subpart.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Parties, Practitioners and Witnesses
Sec. 28.25 Representation.
(a) All parties to a petition may be represented in any matter
relating to the petition. The parties shall designate their
representatives, if any, in the petition 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
the Board's regulations to be served upon the party shall instead be
served upon the representative.
[[Page 60]]
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.26 Witness fees.
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
Sec. 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.
Sec. 28.27 Intervenors.
(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, where
the case is being heard en banc, that the requestor will be affected
directly by the outcome of the proceeding. Denial of a motion for
intervention may be appealed to the full 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
[[Page 61]]
full parties to the hearing and will have the same rights and duties as
a party with two exceptions:
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.28 Substitution.
(a) If a petitioner dies or is otherwise unable to pursue the
petition, 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.29 Consolidation or joinder.
(a) Explanation. (1) Consolidation may occur where two or more
parties have cases which should be united because they contain identical
or similar issues or in such other circumstances as justice requires.
(2) Joinder may occur where one person has two or more petitions
pending and they are united for consideration. For example, a single
petitioner who has one petition pending challenging a 30-day suspension
and another petition pending challenging a subsequent dismissal might
have the cases joined.
(b) Action by administrative judge. An administrative judge may
consolidate or join cases on his or her own initiative or on the motion
of a party if to do so would expedite processing of the cases and not
adversely affect the interests of the parties.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Discovery
Sec. 28.40 Statement of purpose.
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.
Sec. 28.41 Explanation, scope and methods.
(a) Explanation. Discovery is the process apart from the hearing
whereby a party may obtain relevant information from another person,
including a party, which has not otherwise been provided. Relevant
information includes information which appears reasonably calculated to
lead to the discovery of admissible evidence. This information is
obtained for the purpose of assisting the parties in developing,
preparing, and presenting their cases. The Federal Rules of Civil
Procedure may be used as a general guide for discovery practices in
proceedings before the Board, except as to matters specifically covered
by these regulations. The Federal Rules of Civil Procedure shall be
interpreted as instructive rather than controlling.
(b) Scope. Any person may be examined pursuant to paragraph (c) of
this section regarding any nonprivileged matter which is relevant to the
issue under review, including the existence, description, nature,
custody, condition and location of documents or other tangible things,
and the identity and location of persons having knowledge of relevant
facts. The information sought must appear reasonably calculated to lead
to the discovery of admissible evidence.
(c) Methods. Discovery may be obtained by one or more of the methods
provided under the Federal Rules of Civil Procedure, including written
interrogatories, depositions, production of documents or things for
inspection or copying, and requests for admission addressed to parties.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.42 Discovery procedures and protective orders.
(a) Discovery from a party. A party seeking discovery from another
party
[[Page 62]]
shall initiate the process by serving a request for discovery on the
other party. For purposes of discovery under these regulations, a party
includes an intervenor.
(1) Each request for discovery shall state the time limit for
responding, as prescribed in paragraph (d) of this section.
(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) Discovery from a nonparty. Parties are encouraged to attempt to
obtain voluntary discovery from nonparties whenever possible. A party
seeking discovery from a nonparty may initiate the process by serving a
request for discovery on that nonparty and on all other parties to the
proceeding. When a party is unable to obtain voluntary cooperation, the
party may request that the administrative judge issue a subpoena by
following the procedures set forth in Sec. 28.46.
(c) Responses to discovery requests. (1) A party shall answer a
discovery request within the time provided by paragraph (d)(2) of this
section either by furnishing to the requesting party the information or
testimony requested or agreeing to make deponents available to testify
within a reasonable time, or by stating an objection to the particular
request and the reasons for objection, or by requesting a protective
order.
(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) Time limits. (1) Requests for discovery shall be served within
30 days after the service list is served by the Board on all parties.
(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
[[Page 63]]
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 service of the
notice of filing of a petition. A later date may be set by the
administrative judge after due consideration of the particular situation
including the dates set for hearing and closing of the case record.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.43 Compelling discovery.
(a) Motion for an order compelling discovery. Motions for orders
compelling discovery shall be submitted to the administrative judge as
set forth at Sec. 28.42(c)(2) and (d)(4) above.
(b) Content of order. Any order issued may include, where
appropriate:
(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 Sec. 28.24.
Sec. 28.44 Taking of depositions.
Depositions may be taken before any person not interested in the
outcome of the proceedings who is authorized by law to administer oaths.
Sec. 28.45 Admission of facts and genuineness of documents.
(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 Sec. 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.
Subpoenas
Sec. 28.46 Motion for subpoena.
(a) Authority to issue subpoenas. Any member of the Board may issue
subpoenas requiring the attendance and testimony of witnesses and the
production of documentary or other evidence from any place in the United
States or any territory or possession thereof, the Commonwealth of
Puerto Rico, or the District of Columbia. Any member of the Board may
order the taking of depositions or order responses to written
interrogatories.
(b) Motion. (1) A motion for the issuance of a subpoena requiring
the attendance and testimony of witnesses or the production of documents
or other evidence under Sec. 28.46(a) shall be submitted to the
administrative judge at least 15 days in advance of the date scheduled
for the commencement of the hearing.
(2) If the subpoena is sought as part of the discovery process, the
motion shall be submitted to the administrative judge at least 15 days
in advance of the date set for the attendance of the witness at a
deposition or the production of documents.
(c) Forms and showing. Motions for subpoenas shall be submitted in
writing to the administrative judge and shall specify with particularity
the books, papers, or testimony desired and
[[Page 64]]
shall be supported by a showing of general relevance and reasonable
scope and a statement of the facts expected to be proven thereby.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.47 Motion to quash.
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.
Sec. 28.48 Service.
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.
Sec. 28.49 Return of service.
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.
Sec. 28.50 Enforcement.
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.
Hearings
Sec. 28.55 Scheduling the hearing.
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.
Sec. 28.56 Hearing procedures, conduct and copies of exhibits.
(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. Multiple exhibits shall be indexed and tabbed.
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
[[Page 65]]
Sec. 28.57 Public hearings.
(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 forth the reasons for the
administrative judge's decision. Any objections thereto shall be made a
part of the record.
(b) At the hearing, the petitioner, the petitioner's representative,
GAO's legal representative, and a GAO management representative, who is
not expected to testify, each have a right to be present. The Agency
management representative shall be designated prior to the hearing.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69301, Dec. 12, 2003]
Sec. 28.58 Transcript.
(a) Preparation. A verbatim record made under supervision of the
administrative judge shall be kept of every hearing and shall be the
sole official record of the proceeding. Upon request, a copy of a
transcript of the hearing shall be made available to each party.
Additional copies of the transcript shall be made available to a party
upon payment of costs. Exceptions to the payment requirement may be
granted for good cause shown. A motion for an exception shall be made in
writing and accompanied by an affidavit setting forth the reasons for
the request and shall be granted upon a showing of good cause. Requests
for copies of transcripts shall be directed to the Clerk of the Board.
The Clerk of the Board may, by agreement with the person making the
request, make arrangements with the official hearing reporter for
required services to be charged to the requester.
(b) Corrections. Corrections to the official transcript will be
permitted. Motions for correction must be submitted within 30 days of
service of the transcript upon the party. Corrections of the official
transcript will be permitted only when errors of substance are involved
and only upon approval of the administrative judge. The administrative
judge may make changes at any time with notice to the parties.
Sec. 28.59 Official record.
The transcript of testimony and the exhibits, together with all
papers and motions filed in the proceedings, shall constitute the
exclusive and official record.
Sec. 28.60 Briefs.
(a) Length. Principal briefs shall not exceed 60 pages and reply
briefs 30 pages, exclusive of tables and pages limited only to
quotations of statutes, rules, and the like. Motions to file extended
briefs shall be granted only for good cause shown. Briefs in excess of
10 pages shall include an index and a table of authorities.
(b) Format. Every brief must be easily readable. Pages must be 8\1/
2\ x 11 inches with margins at least one inch on all sides. Typewritten
briefs must have double spacing between each line of text, except for
quoted texts which may be single spaced.
(c) Number of copies. An original and 3 copies of each brief shall
be filed with the administrative judge and one copy served on each party
separately represented. When an action is before the full Board, an
original and seven copies of each brief must be filed with the Board and
one copy served on each party separately represented.
Sec. 28.61 Burden and degree of proof.
(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 shall 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.
[[Page 66]]
(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:
Harmful error means error by the agency in the application of its
procedures which, in the absence or cure of the error, might have caused
the agency to reach a conclusion different from the one reached.
Preponderance of the evidence means that degree of relevant evidence
which a reasonable person, considering the record as a whole, would
accept as sufficient to support a conclusion that the matter asserted is
more likely to be true than not true.
Substantial evidence means that degree of relevant evidence which a
reasonable person, considering the record as a whole, might accept as
adequate to support a conclusion, even though other reasonable persons
might disagree. This is a lower standard of proof than preponderance of
the evidence.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69302, Dec. 12, 2003]
Sec. 28.62 Decision on the record.
(a) The parties may agree to forego a hearing and request that the
matter be decided by the presiding administrative judge based upon the
record submitted.
(b) If the parties agree to forego a hearing under this subpart, the
record will close on the date that the administrative judge sets as the
final date for the receipt or filing of submissions of the parties. Once
the record closes, no additional evidence or argument will be accepted
unless the party seeking to submit it demonstrates that the evidence was
not available before the record closed.
(c) In matters submitted for decision on the record under this
section, the parties bear the same burdens of proof set forth in Sec.
28.61.
(d) A decision obtained under this section is a decision on the
merits of the case and is appealable as if the matter had been
adjudicated in an evidentiary hearing.
[68 FR 69302, Dec. 12, 2003]
Sec. 28.63 Closing the record.
(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.
[58 FR 61992, Nov. 23, 1993. Redesignated at 68 FR 69302, Dec. 12, 2003]
Evidence
Sec. 28.65 Service of documents.
Any document submitted with regard to any pleading, motion, or brief
shall be served upon all parties to the proceeding.
Sec. 28.66 Admissibility.
Evidence or testimony may be excluded from consideration by the
administrative judge if it is irrelevant, immaterial, unduly repetitious
or protected by privilege. The administrative judge is not bound by
formal evidentiary rules but may rely on the Federal Rules of Evidence
for guidance.
[68 FR 69302, Dec. 12, 2003]
Sec. 28.67 Production of statements.
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
[[Page 67]]
may draw an adverse inference from the failure to produce or may exclude
the relevant evidence given by the individual from consideration.
Sec. 28.68 Stipulations.
The parties may stipulate as to any matter of fact. Such a
stipulation will satisfy a party's burden of proving the fact alleged.
Sec. 28.69 Judicial notice.
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 matter of common knowledge;
or a matter 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.
[68 FR 69302, Dec. 12, 2003]
Interlocutory Appeals
Sec. 28.80 Explanation.
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.
Sec. 28.81 Procedures and criteria for certification.
(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.
[[Page 68]]
Board Decisions, Attorney's Fees and Judicial Review
Sec. 28.86 [Reserved]
Sec. 28.87 Board procedures; initial decisions.
(a) When a case is heard in the first instance by a single Board
member, a panel of members, or a non-member appointed by the Board, an
initial decision shall be issued by that member, panel or individual and
served upon the parties.
(b) An aggrieved party may seek reconsideration of or may appeal the
initial decision in the following manner:
(1) 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.
(2) Within 15 days of the service of the initial decision, such a
party may appeal to the full Board by filing and serving a notice of
appeal to the Board.
(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
Board's notice and the parties shall be provided an opportunity to brief
them prior to the Board's decision.
(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.
[[Page 69]]
(g) In conducting its examination of the initial decision, the Board
may substitute its own findings of fact and conclusions of law, but the
Board generally will defer to demeanor-based credibility determinations
made in the initial decision. 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69302, Dec. 12, 2003]
Sec. 28.88 Board procedures; enforcement.
(a) All decisions and orders of the Board shall be complied with
promptly. Whenever a Board decision or order requires a person or party
to take any action, the Board may require such person or party to
provide the Board and all parties with a compliance report.
(b) When the Board does not receive a report of compliance in
accordance with paragraph (a) of this section, the Solicitor shall make
inquiries to determine the status of the compliance report and shall
report upon the results of the inquiry 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. Apart
from remedies available to the parties, the Board may seek judicial
enforcement of a decision or order issued pursuant to a show cause
proceeding.
(e) If the parties enter into a settlement agreement that has been
reviewed and approved by the administrative judge, the Board retains
jurisdiction to enforce the terms of such settlement agreement.
(f) Any party to a settlement agreement over which the Board retains
jurisdiction may petition the Board for enforcement of the terms of such
settlement agreement.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69302, Dec. 12, 2003]
Sec. 28.89 Attorney's fees and costs.
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 Sec. 28.87(d), the petitioner, if he or she is the
prevailing party, may submit a request for the award of reasonable
attorney's fees and costs. GAO may file a response within 20 days after
service of the request. Motions for attorney's fees shall be filed in
accordance with Sec. 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 Sec. 28.87.
[68 FR 69302, Dec. 12, 2003]
Sec. 28.90 Board procedures; judicial review.
(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
[[Page 70]]
of a Board rule or of the GAO Personnel Act.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994]
Subpart C_Oversight Procedures
Sec. 28.91 General.
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.
Sec. 28.92 Oversight of GAO EEO program.
(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 Sec. 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.
Subpart D_Special Procedures; Equal Employment Opportunity (EEO) Cases
Sec. 28.95 Purpose and scope.
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, as amended (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) Title I of the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.) and 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).
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69302, Dec. 12, 2003]
Sec. 28.96 Applicability of general procedures.
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.
Sec. 28.97 Class actions in EEO cases.
(a) Prior to invoking the Board's procedures in a case alleging
prohibited discrimination on behalf of a class of
[[Page 71]]
GAO employees or applicants for employment, a complaint must first be
filed with GAO in accordance with GAO Order 2713.2.
(b) An appeal from 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 EEO class actions, employees shall not file charges with the
Board's Office of General Counsel and that Office shall not undertake an
independent investigation of a class complaint that has been filed with
GAO. 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) An appeal of a GAO disposition of an EEO class complaint shall
be decided by the Board based upon a review of the administrative
record, including any recommended findings and conclusions, developed in
the GAO class complaint process. In such cases, the Board will employ
the same standards of review set forth in Sec. 28.87.
(e) The parties to an EEO class complaint do not have a right to a
de novo evidentiary hearing before the Board. However, either the class
representative or GAO may file a motion requesting an evidentiary
hearing, rather than having the Board decide the case upon review of the
administrative record already developed by GAO. The Board, in its
discretion, may grant such motion or, upon its own review of the
administrative record, may direct that a new hearing be conducted. If
the Board orders a new evidentiary hearing, the class representative
shall file a petition on behalf of the class and the case shall be
adjudicated before an administrative judge of this Board pursuant to the
procedures applicable to an individual EEO complaint processed under
Sec. 28.98 of these regulations. For the purpose of determining whether
it is appropriate to treat a petition as a class action, the
administrative judge will be guided, but not controlled, by the
applicable provisions of the Federal Rules of Civil Procedure.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.98 Individual charges in EEO cases.
(a) Except as provided in paragraph (c) of this section, a charge
alleging prohibited discrimination (as defined in Sec. 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) Special rules for adverse and performance based actions. Where
an employee is affected by a removal, suspension for more than 14 days,
reduction in grade or pay, or furlough of not more than 30 days (whether
due to disciplinary, performance-based or other reasons), and the
employee wishes to allege that such action was due in whole or part to
prohibited discrimination (as defined in Sec. 28.95), the employee may
elect to do either (but not both) of the following:
(1) File a charge directly with the Board's General Counsel within
30 days of the effective date of the personnel
[[Page 72]]
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) Special rules for RIF based actions. An individual alleging
discrimination issues in connection with a RIF-based separation may
follow the procedures outlined above in paragraph (c) of this section
for adverse and performance based actions, or may choose instead a third
option. In accordance with the provisions of Sec. 28.13, such an
individual may challenge that action by filing directly with the PAB,
thus bypassing both the Office of Opportunity and Inclusiveness and the
Board's Office of General Counsel.
(e)(1) The charging party shall file the charge with the Board's
Office of General Counsel in accordance with Sec. 28.11. That Office
shall investigate the charge in accordance with Sec. 28.12.
(2) A charging party challenging a RIF action by filing directly
with the PAB shall follow the procedures prescribed in Sec. 28.13 and
Sec. 28.18.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994;
61 FR 36811, July 15, 1996; 68 FR 69303, Dec. 12, 2003]
Sec. 28.99 Petitions to the Board in EEO cases.
(a) The provisions of Sec. Sec. 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 Agency 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.100 [Reserved]
Sec. 28.101 Termination of Board proceedings when suit is filed in
Federal District Court.
Any proceeding before the Board shall be terminated when an employee
or applicant who is alleging violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000e-16, Title I of the Americans
with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., the Age
Discrimination in Employment Act, 29 U.S.C. 633a, or the Rehabilitation
Act, 29 U.S.C. 791, files suit in Federal District Court on the same
cause of action pending before the Personnel Appeals Board.
[68 FR 69303, Dec. 12, 2003]
Subpart E_Special Procedures; Representation Proceedings
Sec. 28.110 Purpose.
The procedures in this subpart relate to the Board's duty under 31
U.S.C.
[[Page 73]]
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''.
Sec. 28.111 Scope.
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.
Sec. 28.112 Who may file petitions.
(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 that a majority
of employees in the bargaining unit wish to be represented by the labor
organization which is currently the exclusive representative of those
employees;
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.113 Contents of representation petitions.
(a) The contents of representation petitions filed under Sec.
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 excluded, and the number
of employees involved;
(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;
[[Page 74]]
(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. 1001), 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 support the petition of the labor
organization, or similar evidence acceptable to the Board, showing that
at least 30 percent of the employees in the proposed unit support the
representation petition.
(b) The contents of petitions filed under Sec. 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 Sec.
28.112(a)(2) shall include evidence satisfactory to the Board that at
least 30 percent of the employees in the unit support the petition to
determine whether the employees wish to continue to be represented by
the labor organization currently having bargaining rights.
(c) The contents of petitions filed under Sec. 28.112(a)(3) 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 Sec. 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 Sec. 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003;
76 FR 76874, Dec. 9, 2011]
Sec. 28.114 Pre-investigation proceedings.
(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
[[Page 75]]
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.
Sec. 28.115 Processing petitions.
(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.
Sec. 28.116 Conduct of elections.
(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 labor organization as the exclusive collective bargaining agent, or
withdraw such a designation;
(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.
[[Page 76]]
(i) Runoff election. The Board may order a runoff election where one
or more of the labor organizations on the ballot has received the vote
of at least 30 percent of the employees eligible to vote, but none has
gained a majority of the votes cast. The runoff election will be between
the two choices receiving the largest and the second largest number of
votes in the original election.
(ii) Additional election. The Board may order an additional election
where there is a tie vote between all of the choices on the ballot or
where a runoff election is not feasible because there is a tie between
the choices receiving the second most votes in the original election.
The additional election will include all the choices that appeared on
the original ballot.
Subpart F_Special Procedures; Unfair Labor Practices
Sec. 28.120 Authority of the Board.
(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)).
Sec. 28.121 Unfair labor practices; Board procedures.
(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
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 15e of GAO Order
2711.1, or more than 9 months before the filing of a charge with the
Office of 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.122 Negotiability issues.
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.
[[Page 77]]
(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 Sec. 28.87.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.123 Standards of conduct for labor organizations.
(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.
(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 Employment Standards 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.124 Review of arbitration awards.
(a) Filing an exception. (1) Either party to arbitration, conducted
pursuant to a grievance procedure under a collective bargaining
agreement, may file with the Board an exception to the arbitrator's
award rendered pursuant to the arbitration.
(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.
[[Page 78]]
(4) A copy of the exception and any opposition shall be served on
the other party.
(b) Content of exception. An exception must be a dated, self-
contained document which sets forth in full:
(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) Grounds for review. (1) The Board will review an arbitrator's
award to which an exception has been filed to determine if the award is
deficient--
(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) Board decision. The Board shall issue its decision and order
taking such action and making such recommendations concerning the award
as it considers necessary, consistent with applicable laws, rules, or
regulations.
Subpart G_Corrective Action, Disciplinary and Stay Proceedings
Sec. 28.130 General authority.
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.
Sec. 28.131 Corrective action proceedings.
(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 Board's Office of General Counsel may file a
petition with the Board. Such petition shall be processed in accordance
with Sec. Sec. 28.19 through 28.25.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69303, Dec. 12, 2003]
Sec. 28.132 Disciplinary proceedings.
(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, together with a
statement of the supporting facts, and present the complaint and the
statement to the employee and the Board in accordance with paragraphs
(b) and (c) of this section.
[[Page 79]]
(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) 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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69304, Dec. 12, 2003]
Sec. 28.133 Stay proceedings.
(a) Prior to the effective date of any proposed personnel action,
the Board's General Counsel may request, ex parte, the issuance of an
initial stay of the proposed personnel action for a period not to exceed
30 days if the General Counsel believes that the proposed personnel
action arises out of a prohibited personnel practice. The request shall
be in writing and shall specify the nature of the action to be stayed
and the basis for the General Counsel's belief. The Board's Office of
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 the request
unless that Board member determines that the request either:
(1) Fails to satisfy the requirements of this paragraph or
(2) On its face, conclusively establishes that the proposed
personnel action did not arise out of an alleged prohibited personnel
practice as specified by the General Counsel.
(b) The Board's General Counsel may request the issuance of either:
(1) Further temporary stays for the purpose of allowing additional
time to pursue its investigation or
(2) A permanent stay for the purpose of staying the proposed
personnel action until a final decision is rendered.
(c) Requests for stays under paragraph (b) of this section shall be
received by both the Board and the GAO no less than 10 days before the
expiration of any stay then in effect. Any response from GAO to the
request shall be received by both the Board and the Board's Office of
General Counsel no less than three days before the expiration of any
stay then in effect. Any request for stay under this paragraph shall be
decided by the Board member who issued the prior stay under paragraph
(a) of this section, unless the Board Chair determines that it should be
decided by the Board en banc. The Board member, or Board en banc, may
require further briefing, oral argument, submission of affidavits or
other documentary evidence, or may conduct an evidentiary hearing before
rendering a decision. Any stay then in effect may be extended, sua
sponte, for a period not to exceed 30 days to enable the Board member,
or Board en banc, a reasonable opportunity to render a decision.
(d) A temporary stay under paragraph (b)(1) of this section may be
issued if the Board member, or Board en banc, determines that under all
of the circumstances the interests of justice would be served by
providing more time for the Board's Office of General Counsel to pursue
the investigation.
[[Page 80]]
However, the duration of any single temporary stay shall not exceed the
amount of time reasonably necessary to acquire sufficient information to
support a request for a permanent stay in the exercise of a high degree
of diligence and, in no event, shall any single temporary stay exceed 60
days except as provided under paragraph (c) of this section for the
purpose of allowing time to render a decision.
(e) In determining whether a permanent stay under paragraph (b)(2)
of this section should be issued, the Board member, or Board en banc,
shall:
(1) Assess the evidence adduced by each side as to whether the
proposed personnel action arises out of an alleged prohibited personnel
practice as specified by the Board's General Counsel;
(2) Assess the nature and gravity of any harm that could inure to
each side if the request for permanent stay is either granted or denied;
and
(3) Balance the assessments conducted under paragraphs (e)(1) and
(2) of this section.
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69304, Dec. 12, 2003]
Subpart H_Appeals by Members of the Senior Executive Service
Sec. 28.140 Personnel actions involving SES members.
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.
Sec. 28.141 Performance based actions.
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.
Subpart I_Ex Parte Communications
Sec. 28.145 Policy.
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.
Sec. 28.146 Explanation and definitions.
(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. The only ex parte communications that are
prohibited are those that involve the merits of the case or those that
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
[[Page 81]]
the method for transmitting evidence to the Board. Such communications
should be directed to the Clerk of the Board. Parties may not inquire
about such matters as what defense they should use or whether their
evidence is adequate, make a submission orally which is required to be
in writing, or otherwise inquire as to the merits of a pending case.
(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.
[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69304, Dec. 12, 2003]
Sec. 28.147 Prohibited communications.
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.
Sec. 28.148 Reporting of communications.
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.
Sec. 28.149 Sanctions.
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.
Subpart J_Statement of Policy or Guidance
Sec. 28.155 Statement of policy or guidance.
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.
Subpart K_Access to Records
Source: 68 FR 69304, Dec. 12, 2003, unless otherwise noted.
Sec. 28.160 Request for records.
(a) Individuals may request access to records pertaining to them
that are maintained as described in 4 CFR part 83, by addressing inquiry
to the PAB General Counsel either by mail or by appearing in person at
the Personnel Appeals Board Office of General Counsel, Room 1562, 441 G
Street NW., Washington, DC 20548, during business hours
[[Page 82]]
on a regular business day. Requests in writing should be clearly and
prominently marked ``Privacy Act Request.'' Requests for copies of
records shall be subject to duplication fees set forth in 4 CFR 83.17.
(b) Individuals making a request in person shall be required to
present satisfactory proof of identity, preferably a document bearing
the individual's photograph. Requests by mail or submitted other than in
person should contain sufficient information to enable the General
Counsel to determine with reasonable certainty that the requester and
the subject of the record are one and the same. To assist in this
process, individuals should submit their names and addresses, dates and
places of birth, social security number, and any other known identifying
information such as an agency file number or identification number and a
description of the circumstances under which the records were compiled.
(c) Exemptions from disclosure. The Personnel Appeals Board General
Counsel and the Personnel Appeals Board, in deciding what records are
exempt from disclosure, will follow the policies set forth in 4 CFR part
83.
[68 FR 69304, Dec. 12, 2003, as amended at 77 FR 15233, Mar. 15, 2012]
Sec. 28.161 Denial of access to information--Appeals.
(a) If a request for access to information under Sec. 28.160 is
denied, the General Counsel shall give the requester the following
information:
(1) The General Counsel's name and business mailing address;
(2) The date of the denial;
(3) The reasons for the denial, including citation of appropriate
authorities; and
(4) The individual's right to appeal the denial as set forth in
paragraphs (b) and (c) of this section.
(b) Any individual whose request for access to records of the PAB
General Counsel has been denied in whole or in part by the General
Counsel may, within 30 days of receipt of the denial, challenge that
decision by filing a written request for review of the decision with the
Personnel Appeals Board, Room 1566, 441 G Street NW., Washington, DC
20548.
(c) The appeal shall describe:
(1) The initial request made by the individual for access to
records;
(2) The General Counsel's decision denying the request; and
(3) The reasons why that decision should be modified by the Board.
(d) The Board, en banc, may in its discretion render a decision
based on the record, may request oral argument, or may conduct an
evidentiary hearing.
[68 FR 69304, Dec. 12, 2003, as amended at 77 FR 15233, Mar. 15, 2012]
PART 29 [RESERVED]
SUBCHAPTERS C D [RESERVED]
[[Page 83]]
SUBCHAPTER E_STANDARDIZED FISCAL PROCEDURES
PART 75_CERTIFICATES AND APPROVALS OF BASIC VOUCHERS AND INVOICES
--Table of Contents
Authority: 31 U.S.C. 711 and 3511.
Sec. 75.1 Contractors' and vendors' certificates.
(a) The Government Accountability 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.
[22 FR 10906, Dec. 28, 1957, as amended at 47 FR 50843, Nov. 10, 1982;
47 FR 56980, Dec. 22, 1982]
[[Page 84]]
SUBCHAPTER F_RECORDS
PART 81_PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE
RECORDS--Table of Contents
Sec.
81.1 Purpose and scope of part.
81.2 Administration.
81.3 Definitions.
81.4 Requests for identifiable records.
81.5 Records originating outside GAO, records of interviews, or records
involving work in progress.
81.6 Records which may be exempt from disclosure.
81.7 Fees and charges.
81.8 Public reading facility.
Authority: 31 U.S.C. 711.
Source: 68 FR 33832, June 6, 2003, unless otherwise noted.
Sec. 81.1 Purpose and scope of part.
(a) This part implements the policy of the U.S. Government
Accountability Office (GAO) with respect to the public availability of
GAO records, except as set forth in paragraph (b) of this section. 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.
(b) GAO published testimonies, reports, decisions, special
publications, or listings of publications are not included within the
scope of this part. These documents may be obtained from the GAO Web
site, http://www.gao.gov, or by telephone at 202-512-6000, TDD 202-512-
2537, or 1-866-801-7077 (toll free). These publications may be
downloaded free of charge from the GAO Web site. Paper copies requested
from GAO are subject to a printing, shipping, and handling fee.
(c) Requests for all other GAO records are within the scope of this
part and should be submitted to GAO as directed in paragraph (a) of
Sec. 81.4.
[68 FR 33832, June 6, 2003, as amended at 76 FR 12550, Mar. 8, 2011]
Sec. 81.2 Administration.
(a) GAO's Chief Quality Officer administers this part and may
promulgate such supplemental rules or regulations as may be necessary.
(b) Requests for records of GAO's Office of Inspector General (OIG)
shall be processed by the Counsel to the Inspector General in accordance
with this part. The Inspector General shall decide any administrative
appeals of decisions of the Counsel to the Inspector General concerning
such requests. However, if any of the requested records of the OIG
originated in GAO, the Counsel to the Inspector General shall refer the
requester to GAO's Chief Quality Officer for processing of the request
for those records in accordance with this part. With regard to any
public request to inspect or copy records of the OIG, other than records
that originated in GAO, in this part the term ``Counsel to the Inspector
General'' is to be substituted for ``Chief Quality Officer'' and the
term ``Inspector General'' is to be substituted for ``Comptroller
General''. All requests to inspect or obtain a copy of an identifiable
record of the OIG must be submitted in writing to the Counsel to the
Inspector General, U.S. Government Accountability Office, Suite 1808,
441 G Street NW., Washington, DC 20548 or emailed to
[email protected].
[76 FR 12550, Mar. 8, 2011, as amended at 82 FR 51753, Nov. 8, 2017]
Sec. 81.3 Definitions.
As used in this part:
(a) Identifiable means a reasonably specific description of a
particular record sought, such as the date of the record, subject
matter, agency or person involved, etc., which will permit location or
retrieval of the record.
(b) Records includes all books, papers, manuals, maps, photographs,
reports, and other documentary materials, regardless of physical form or
characteristics, including electronically created or maintained
materials, under the control of GAO in pursuance of law or in connection
with the transaction of public business. As used in this part,
[[Page 85]]
the term ``records'' is limited to an existing record under GAO's
control and does not include compiling or procuring records, library or
museum material made, acquired, or preserved solely for reference or
exhibition purposes, or extra copies of documents preserved only for
convenience of reference.
(c) Records available to the public means records which may be
examined or copied or of which copies may be obtained, in accordance
with this part, by the public or representatives of the press regardless
of interest and without specific justification.
(d) Disclose or disclosure means making available for examination or
copying, or furnishing a copy.
(e) Person includes an individual, partnership, corporation,
association, or public or private organization other than a Federal
agency.
(f) Compelling need means that a failure to obtain requested records
on an expedited basis could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual, or the records
are needed urgently, with respect to a request made by a person
primarily engaged in disseminating information, for the requester to
inform the public concerning actual or alleged Federal Government
activity.
Sec. 81.4 Requests for identifiable records.
(a) A request to inspect or obtain a copy of an identifiable record
of GAO must be submitted in writing to the Chief Quality Officer, U.S.
Government Accountability Office, 441 G Street, NW., Washington, DC
20548. Requests also may be emailed to [email protected]. The Chief
Quality Officer will either acknowledge or honor the request within 20
days of receipt.
(b) The Chief Quality Officer will honor requests for expedited
processing before all other requests in cases in which the person
requesting the records demonstrates a compelling need. A demonstration
of compelling need shall be made by a statement certified by the
requester to be true and correct to the best of the requester's
knowledge and belief.
(c) In the event of an objection or doubt as to the propriety of
providing the requester with a copy of the record sought, every effort
will be made to resolve such problems as quickly as possible, including
consultation with appropriate GAO elements. If it is determined that the
record should be withheld, the Chief Quality Officer shall inform the
requester in writing that the request has been denied, shall identify
the material withheld, and shall explain the basis for the denial.
(d) A person whose request is denied in whole or part may
administratively appeal the denial within 60 days after the date of the
denial by submitting a letter to the Comptroller General of the United
States at the address listed in paragraph (a) of this section,
explaining why the denial of the request was unwarranted.
[68 FR 33832, June 6, 2003, as amended at 76 FR 12550, Mar. 8, 2011]
Sec. 81.5 Records originating outside GAO, records of interviews,
or records involving work in progress.
(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) It is the policy of GAO that prior to the release of a record of
interview created by GAO in connection with an audit, evaluation, or
investigation of a program, activity, or funding of a government entity,
GAO will notify the agency from which an interview was obtained of the
request. GAO will provide that agency with a reasonable opportunity to
indicate whether the record of interview or portions thereof should be
exempt from disclosure and the reason(s) for the exemption. The public
disclosure of a record of interview remains within the discretion of
GAO's Chief Quality Officer, but GAO will consider the views of the
agency and the exemptions provided for under Sec. 81.6 or any other law
or regulation in deciding whether to release all or portions of a record
of interview.
[[Page 86]]
(c) 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 Sec. 81.6.
[68 FR 33832, June 6, 2003, as amended at 72 FR 50643, Sept. 4, 2007]
Sec. 81.6 Records which may be exempt from disclosure.
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 Chief Quality Officer may
nevertheless release records within these categories.
(a) Records relating to work performed in response to a
congressional request (unless authorized by the congressional
requester), congressional correspondence, 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 12958,
Classified 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, and
records concerning an agency's security practices or procedures.
(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 that are 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 compiled for law enforcement purposes that originate in
another agency, or records prepared for referral to and/or provided by
GAO or the OIG to another agency for law enforcement purposes.
(h) Records having information contained in or related to
examination, operation, or condition reports prepared by, on behalf of,
or for the use of an agency responsible for the regulation or
supervision of financial institutions.
(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 decision making.
(k) Records in addition to those described in paragraph (j) of this
section
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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) Records GAO has obligated itself not to disclose, including but
not limited to, records for which GAO officials have made a pledge of
confidentiality, and records the release of which would adversely impact
significant property interests or negatively affect public safety.
(m) Unsolicited records containing information submitted by any
person to GAO in confidence. Records obtained by the GAO Forensic Audits
and Special Investigations (GAO FraudNet) are an example of records that
could contain information covered by this exemption.
[68 FR 33832, June 6, 2003, as amended at 72 FR 50644, Sept. 4, 2007; 76
FR 12550, Mar. 8, 2011; 82 FR 51753, Nov. 8, 2017]
Sec. 81.7 Fees and charges.
(a) No fee or charge will be made for:
(1) Records provided under this part when the direct costs involve
less than one hour of search time and 50 pages of photocopying.
(2) Staff-hours spent in resolving any legal or policy questions
pertaining to the request.
(3) Copies of records, including those certified as true copies,
furnished for official use to a federal government officer or employee.
(4) Copies of pertinent records furnished to a party having a direct
and immediate interest in a matter pending before GAO, when necessary or
desirable to the performance of a GAO function.
(b) The fees and charges described below will be assessed for the
direct costs of search, review, and reproduction of records available to
the public under this part.
(1) The cost for reproduction per page shall be 20 cents.
(2) The cost for a certification of authenticity shall be $10 for
each certificate.
(3) Manual search and review for records by office personnel will be
assessed at $12, $25, or $45 per hour, depending on the rate of pay of
the individual actually conducting the search or review, and the
complexity of the search.
(4) Other direct costs related to the request may be charged for
such items as computer searches.
(5) Except as noted immediately below, requesters generally will be
charged only for document duplication. However, there may be times when
a search charge will be added, for example, if records are not described
with enough specificity to enable them to be located within one hour.
Requesters seeking records for commercial use will be charged for
document duplication, search, and review costs. Additionally,
representatives of the news media, in support of a news gathering or
dissemination function, and education or noncommercial scientific
institutions not seeking records for commercial use will be charged only
for document duplication, unless such request requires extraordinary
search or review.
(c) GAO shall notify the requester if an advance deposit is
required.
(d) Fees and charges shall be paid by check or money order payable
to the U.S. Government Accountability Office.
(e) The Chief Quality Officer may waive or reduce the fees under
this section upon a determination that disclosure of the records
requested is in the public interest, is likely to contribute
significantly to public understanding of the operations or activities of
the government, and is not primarily in the commercial interest of the
requester. Persons seeking a waiver or fee reduction may be required to
submit a statement setting forth the intended purpose for which the
records are requested, 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.
Sec. 81.8 Public reading facility.
GAO maintains a public reading facility in the Law Library at the
Government Accountability Office Building, 441 G Street, NW.,
Washington, DC. To determine if a record is part of the public reading
facility collection and
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to schedule an appointment to visit the facility, contact the Library
reference desk at 202-512-2585. The facility is open to the public from
8:30 a.m. to 4 p.m. except Saturdays, Sundays, and Federal holidays.
[68 FR 33832, June 6, 2003, as amended at 76 FR 12550, Mar. 8, 2011]
PART 82_FURNISHING RECORDS OF THE GOVERNMENT ACCOUNTABILITY OFFICE
IN JUDICIAL PROCEEDINGS--Table of Contents
Sec.
82.1 Court subpoenas or requests.
82.2 Fees and charges.
Authority: 31 U.S.C. 711, 713, 714, 718, 3523, 2524, 2526, and 3529.
Sec. 82.1 Court subpoenas or requests.
(a) A subpoena or request from a court for records of the Government
Accountability 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 Government Accountability 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).
[33 FR 358, Jan. 10, 1968, as amended at 45 FR 84955, Dec. 24, 1980; 47
FR 56980, Dec. 22, 1982]
Sec. 82.2 Fees and charges.
The provisions of Sec. 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.
[33 FR 358, Jan. 10, 1968, as amended at 47 FR 56980, Dec. 22, 1982]
PART 83_PRIVACY PROCEDURES FOR PERSONNEL RECORDS--Table of Contents
Sec.
83.1 Purpose and scope of part.
83.2 Administration.
83.3 Definitions.
83.4 Conditions of disclosure.
83.5 Specific disclosure of information.
83.6 Accounting of certain disclosures.
83.7 GAO policy and requirements.
83.8 Standards of conduct.
83.9 Social Security number.
83.10 First Amendment rights.
83.11 Official Personnel Folder.
83.12 Procedures for individual access to records.
83.13 Inquiries.
83.14 Denial of access requests.
83.15 Request for amendment of record.
83.16 Administrative review of request for amendment of record.
83.17 Fees.
83.18 Rights of legal guardians.
83.19 Government contractors.
83.20 Mailing lists.
83.21 Exemptions.
Appendix I to Part 83--Memorandum of Understanding
Authority: 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. Government
Accountability Office; 4 CFR part 81; 5 CFR parts 294-297; and 31 U.S.C.
731, et seq.
Source: 50 FR 13162, Apr. 3, 1985, unless otherwise noted.
Sec. 83.1 Purpose and scope of part.
This part describes the policy and prescribes the procedures of the
U.S. Government Accountability 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
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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.
This part applies to all systems of personnel records (as defined in
Sec. 83.3(g)) for which GAO is responsible.
Sec. 83.2 Administration.
The administration of this part is the duty and responsibility of
the Director, Personnel, U.S. Government Accountability 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.