[Federal Register Volume 61, Number 211 (Wednesday, October 30, 1996)]
[Proposed Rules]
[Pages 55932-55937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27683]
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DEPARTMENT OF ENERGY
10 CFR Parts 703 and 1023
RIN 1901-AA30
Board of Contract Appeals; Contract Appeals
AGENCY: Board of Contract Appeals, Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy is proposing to amend its regulations
concerning proceedings and functions of the Board of Contract Appeals.
This action is necessary to update the rules and to reorganize and
supplement the existing rules to provide the public with a better
understanding of the Board and its functions. The proposed rules would
add an overview of the Board's organization, authorities, and various
functions, enunciate longstanding policies favoring the use of
Alternative Dispute Resolution (ADR) and confirm the Board's authority
to engage in ADR and to provide an array of ADR neutral services,
modify the Rules of Practice for Contract Disputes Act (CDA) appeals to
implement changes made to the CDA by the Federal Acquisition
Streamlining Act (FASA), and remove unnecessary and obsolete rules
related to the Board's non-CDA appeals and Contract Adjustment Board
functions.
DATES: Comments must be received by December 30, 1996.
ADDRESSES: Interested persons may submit written comments to: E.
Barclay Van Doren, Chair, Department of Energy, Board of Contract
Appeals, Room 1006, Webb Building, 4040 N. Fairfax Drive, Arlington, VA
22203.
FOR FURTHER INFORMATION CONTACT: E. Barclay Van Doren, Chair,
Department of Energy, Board of Contract Appeals, (703) 235-2700.
SUPPLEMENTARY INFORMATION:
I. Background
A. Discussion
B. Section-by-Section Analysis
II. Procedural Requirements
A. Review under Executive Order 12866
B. Review under Executive Order 12778
C. Review under the Regulatory Flexibility Act
D. Review under the Paperwork Reduction Act
E. Review under the National Environmental Policy Act
F. Review under Executive Order 12612
III. Public Comments
I. Background
A. Discussion
This Rulemaking has several purposes. First, it would set out a
statement of the organization, functions, and authorities of the Board
of Contract Appeals (Board or EBCA) of the Department of Energy (DOE).
The Board has functions other than the resolution of disputes brought
under the Contract Disputes Act (CDA), yet the current rules do not
list and describe these functions and their associated authorities in
any single place. This has proven confusing to some who were unfamiliar
with the Board. The proposed rules, in one place, describe and cross-
reference all of the standing functions and rules of the Board. This
proposed change should help those unfamiliar with the Board to
understand its several functions and the limits of its authority, and
to assist potential appellants to determine whether the Board is the
proper forum for the resolution of a dispute. Moreover, the rule will
provide, for informational purposes, the Board's delegated general
authorities, which are set forth in a delegation order from the
Secretary of Energy.
Second, this Rulemaking would enunciate the Board's and DOE's
policy favoring the use of ADR. The current rules are outdated and
neither recognize ADR nor summarize the Board and its members'
authority to employ and participate in ADR procedures. The Board has a
longstanding policy to encourage the consensual resolution of disputes
and, thus, decrease the instances where parties must resort to
litigation. The proposed rules contain an explicit statement of the
Board's and DOE's policy regarding ADR.
Third, the Federal Acquisition Streamlining Act (FASA) modified the
CDA with respect to matters involving claim certification and
availability of certain appeal procedures. This Rulemaking would update
the Board's rules of procedure to implement these changes. The
Streamlining Act increased the threshold for CDA claim certification to
$100,000, from $50,000. The Act also increased the amounts under which
a claim is eligible for either accelerated procedures or small claims
procedures. Claims under $100,000 (previously $50,000) will be eligible
for accelerated procedures and claims under $50,000 (previously
$10,000) will be, at the contractor's election, resolved under the
small claims procedures.
Fourth, this Rulemaking proposes to remove the rules of practice
for contract and subcontract appeals which are not governed by the CDA
(10 CFR Part 703) (non-CDA appeals) and the rules of the Contract
Adjustment Board (10 CFR Part 1023, subpart B). No pre-CDA appeals have
been filed with the Board for more than eight years and separate rules
no longer appear to be necessary. The Board proposes that the existing
rules of practice for CDA appeals, with modifications (such as
disregarding inapplicable rules related solely to CDA claim
certification) determined by the Board to be appropriate, be made
applicable to both CDA appeals and non-CDA appeals from contracting
officer decisions and to any subcontractor disputes over which the
Board has jurisdiction. Regulatory authority for appeals to the
Contract Adjustment Board no longer exists and the rules of the
Contract Adjustment Board would be removed.
Finally, the proposed Rulemaking would renumber the rules of
practice for contract appeals to the Board to allow for the inclusion
of the Statement of Organization, Functions, and Authorities and minor
conforming changes would be made to the Rules of Practice.
B. Section-By-Section Analysis
The following analysis provides additional explanatory information
regarding the intended effect of these rules if adopted as proposed.
The proposed rules add an Overview which consists of sections 1023.1-
1023.9. This Overview would reorganize and supplement the information
contained in the current sections 1023.2-1023.6.
[[Page 55933]]
Overview: Organization, Functions and Authorities
Section 1023.1 Introductory Material on the Board and Its Functions
This section is self-explanatory. It describes the various standing
functions performed by the Board and cross-references authorities and
rules codified in other parts of Title 10, Code of Federal Regulations.
Section 1023.2 Organization and Location of the Board
This section is self-explanatory. It states the current location of
the Board. It also outlines the basic makeup of Board personnel.
Section 1023.3 Principles of General Applicability
Paragraph (a) emphasizes that the Board is a neutral adjudicatory
body which is to hear and decide all cases independently, fairly, and
impartially. It further states that decisions shall be based
exclusively upon the record, and would expressly proscribe
consideration of any matter which might come to the attention of the
Board by any means other than those provided by the various rules of
practice. Paragraph (a) also reiterates a longstanding position of the
Department that Board decisions, pursuant to the Contract Disputes Act
or pursuant to a delegation of authority (provided the delegation does
not provide otherwise), constitute final agency decisions and are not
subject to administrative review.
Paragraph (b) would confirm the authority of the Board and its
members and personnel to perform ADR related functions. It would also
require adherence to a standard of procedural fairness, integrity, and
diligence in activities related to ADR. The paragraph would permit
limited ex parte communications related to ADR procedures until the
parties enter into an approved ADR agreement, at which point, all
communications would be controlled by that agreement. The paragraph
would emphasize the obligation of Board personnel to maintain the
confidentiality of ADR matters.
Section 1023.4 Authorities
This section would set forth duties and authorities provided by the
CDA or delegated to the Board by the Secretary of Energy.
Paragraph (a) is self-explanatory. However, it recognizes that
parties may agree to employ alternative procedures for dispute
resolution under the CDA.
Paragraph (b) sets forth the Board's general powers.
Paragraph (c) sets forth delegated authorities which are set forth
in a delegation order. Among these duties is the duty to hear and
decide non-CDA appeals as provided by the provisions of acquisition and
other contracts of the Department or by the authorized provisions of
subcontracts under DOE contracts. Authorized activities include the
adjudication of facts related to proposed debarments when referred to
the Board by the Deputy Assistant Secretary for Procurement and
Assistance Management.
Section 1023.5 Duties and Responsibilities of the Chair
The position title ``Chairman'' would be changed to the gender-
neutral ``Chair.'' The duties and responsibilities of the Chair would
be strengthened and expanded to enable the Chair to improve the
efficiency and timeliness of Board proceedings. Additionally, the Chair
would be granted new express authorities with respect to ADR, such as
arranging third party neutral participation. To the extent the
described authorities are authorities granted by statute to the Board,
all members of the Board concur in their exercise by the Chair and have
delegated their authority to the Chair.
Section 1023.6 Duties and Responsibilities of Board Members and Staff
Paragraph (a) would establish the supplemental conduct guidelines
for Board judges and staff which are in addition to existing laws and
rules of general and specific applicability.
Paragraph (b) would authorize any administrative judge or Board
employee to perform any authorized ADR responsibility or function.
Paragraph (c) would make explicit existing policies regarding ex
parte communications in all Board judicial functions. It would also
establish a permanent bar against disclosing Board deliberations.
Section 1023.7 Board Decisions; Assignment of Judges
This section would retain the existing general rule that cases are
decided by a majority vote of a panel of not less than three
Administrative Judges (or Hearing Officers) and would provide Presiding
Judges and Officers with broad authority to act for the Board on all
but dispositive matters. However, in a change from the existing rule,
it would no longer be necessary for all members of a panel to
participate in a decision if a concurring majority exists. This
paragraph contains additional provisions which would allow the Board to
respond to variable circumstances and requirements of the parties. It
also would establish the Chair's authority to assign an additional
judge to a panel in case of a tie vote.
Section 1023.8 Alternative Dispute Resolution (ADR)
This section would state that it is the policy of the DOE and the
Board to encourage voluntary ADR proceedings, where appropriate, in an
effort to resolve disputes in the most expeditious and inexpensive
manner. Settlement discussions and mediation efforts have long been
aspects of judicial decision- making. It is the Department's intention
that alternative dispute resolution before the Board be recognized as a
core judicial function of the Board. As such, Board personnel are
involved in a judicial function and are entitled to judicial immunity
as accorded by law.
Section 1023.9 General Guidelines
Paragraph (a) would carry forward the current Board authority to
provide for circumstances not contemplated by the rules. It would also
recognize that the Federal Rules of Civil Procedure may be looked to as
a source of guidance, but that Board proceedings are required to be as
informal, efficient and inexpensive as practicable, and thus the Board
is not bound by them.
Paragraph (b) would provide explicit authority to a Presiding Judge
or Hearing Officer to issue prehearing orders varying the procedures
and limitations set forth in the various Rules of Practice and Rules of
Procedure. This authority would explicitly authorize judges to tailor
procedural schedules to the circumstances and requirements of
individual cases.
Section 1023.20 Rules of Practice
This section would be redesignated as Sec. 1023.120.
Subpart A--Rules of the Board of Contract Appeals
Section 1023.101 Scope and Purpose
This section would state the scope of the rules contained in
Subpart A. It should be noted that this Rulemaking would rescind 10 CFR
Part 703, which currently contains the rules of practice for pre-CDA
contract appeals and certain subcontract appeals to the Board. This
section would provide that the rules contained in this subpart would
not only be applicable to CDA proceedings, but also to pre-CDA and
other non-CDA contract appeals, as well as subcontractor appeals, with
such modifications determined by the Board
[[Page 55934]]
to be appropriate to the nature of the dispute.
Section 1023.102 Effective Date
This section details the effective date of the rules and also the
effective date of the modifications to the rules made in compliance
with the Federal Acquisition Streamlining Act (FASA), Pub. L. 103-355
(1994).
Section 1023.120 Rules of Practice
This section is the existing section 1023.20. Modifications would
be made to this section to reflect changes to the CDA made by FASA.
Rule 1 would be modified by substituting ``$100,000'' wherever
``$50,000'' is found. Rule 6 would be modified by substituting
``$100,000'' for ``$50,000'' and substituting ``$50,000'' where
``$10,000'' appears. Rule 13 would substitute ``$50,000'' for
``$10,000'' and Rule 14 would substitute ``$100,000'' for ``$50,000.''
Subpart B
All sections under this subpart would be removed and the subpart
reserved for future use.
II. Procedural Requirements
A. Review under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under the Executive
Order by the Office of Information and Regulatory Affairs.
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulation in light of applicable standards in
sections 3(a) and 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed regulations meet the relevant standards of Executive Order
12988.
C. Review under the Regulatory Flexibility Act
The proposed rules were reviewed under the Regulatory Flexibility
Act of 1980, 5 U.S.C. 601, et seq., which requires preparation of an
initial regulatory flexibility analysis for any proposed rule which is
likely to have a significant economic impact on a substantial number of
small entities. The DOE certifies that the proposed rules will not have
a significant economic impact on a substantial number of small
entities; therefore, no regulatory flexibility analysis has been
prepared.
D. Review under the Paperwork Reduction Act
The DOE has determined that the proposed rules are exempt from the
requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et
seq.) by virtue of 44 U.S.C. 3518(c)(1)(B), which provides that the
Paperwork Reduction Act does not apply to the collection of information
during the conduct of an administrative action involving an agency
against specific individuals or entities.
E. Review under the National Environmental Policy Act
The DOE has concluded that promulgation of these rules would not
represent a major Federal action having significant impact on the human
environment under the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321, et seq.), or the Council on Environmental Quality
Regulations (40 CFR parts 1500-08), and the DOE guidelines (10 CFR part
1021), and, therefore, does not require an environmental impact
statement or an environment assessment pursuant to NEPA.
F. Review under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the national government and the States, and in the
distribution of power and responsibilities among various levels of
government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action.
These proposed rules, when finalized, will revise certain policy
and procedural requirements. However, the DOE has determined that none
of the revisions will have a substantial direct effect on the
institutional interests or traditional functions of States.
III. Public Comments
Interested persons are invited to participate in this Rulemaking by
submitting data, views, or arguments with respect to the proposed rules
set forth in this notice. Comments should be submitted to the address
for the DOE Board of Contract Appeals given at the beginning of this
notice. All comments received on or before the date specified in the
beginning of this notice, and all other relevant information, will be
considered by the Board before taking final action on the proposed
rules.
This notice of proposed Rulemaking does not involve any substantial
issues of law or fact and the proposed rules should not have
substantial impact on the nation's economy or large numbers of
individuals or businesses. Accordingly, pursuant to Pub. L. 95-91, the
DOE Organization Act, and the Administrative Procedure Act (5 U.S.C.
553), the DOE does not plan to hold a public hearing on these proposed
rules.
List of Subjects in 10 CFR Parts 1023 and 703
Administrative practice and procedure, Government contracts,
Government procurement.
Issued in Washington, D. C. on October 23, 1996.
E. Barclay Van Doren,
Chair, Department of Energy, Board of Contract Appeals.
For the reasons set forth in the Preamble, Parts 703 and 1023 of
Title 10 of the Code of Federal Regulations are proposed to be amended
as set forth below:
PART 703--CONTRACT APPEALS
1. Part 703 is removed.
[[Page 55935]]
PART 1023--CONTRACT APPEALS
2. The authority citation is revised to read as follows:
Authority: 42 U.S.C. Secs. 2201, 5814, 7151, 7251; 5 U.S.C.
Sec. 301; 41 U.S.C. Secs. 321, 322, 601-613; 5 U.S.C. Secs. 571-583;
9 U.S.C. Secs. 1-16.
3. Part 1023 is proposed to be amended by adding an Overview before
subpart A consisting of sections 1023.1 through 1023.9:
PART 1023--CONTRACT APPEALS
Overview: Organization, Functions and Authorities
Sec.
Sec. 1023.1 Introductory Material on the Board and Its Functions.
Sec. 1023.2 Organization and Location of the Board.
Sec. 1023.3 Principles of General Applicability.
Sec. 1023.4 Authorities.
Sec. 1023.5 Duties and Responsibilities of the Chair.
Sec. 1023.6 Duties and Responsibilities of Board Members and Staff.
Sec. 1023.7 Board Decisions; Assignment of Judges.
Sec. 1023.8 Alternative Dispute Resolution (ADR).
Sec. 1023.9 General Guidelines.
Sec. 1023.1 Introductory material on the Board and its functions.
(a) The Energy Board of Contract Appeals (``EBCA'' or ``Board'')
functions as a separate quasi-judicial entity within the Department of
Energy (DOE). The Secretary has delegated to the Board's Chair the
appropriate authorities necessary for the Board to maintain its
separate operations and decisional independence.
(b) The Board's primary function is to hear and decide appeals from
final decisions of DOE contracting officers on claims pursuant to the
Contract Disputes Act of 1978 (CDA), 41 U.S.C. 601 et seq. The Board's
Rules of Practice for these appeals are set forth in subpart A of this
part. Rules relating to recovery of attorney fees and other expenses
under the Equal Access to Justice Act are set forth in subpart C of
this part.
(c) In addition to its functions under the CDA, the Secretary in
Delegation Order 0204-162 has authorized the Board to:
(1) Adjudicate appeals from agency contracting officers' decisions
not taken pursuant to the CDA (non-CDA disputes) under the Rules of
Practice set forth in subpart A of this part;
(2) Perform other quasi-judicial functions that are consistent with
the Board members' duties under the CDA as directed by the Secretary.
(3) Serve as the Energy Financial Assistance Appeals Board to hear
and decide certain appeals by the Department's financial assistance
recipients as provided in 10 CFR 600.22, under Rules of Procedure set
forth in 10 CFR part 1024;
(4) Serve as the Energy Invention Licensing Appeals Board to hear
and decide appeals from license terminations, denials of license
applications and petitions by third-parties for license terminations,
as provided in 10 CFR part 781, under Rules of Practice set forth in
subpart A of this part, modified by the Board as determined to be
necessary and appropriate with advance notice to the parties; and
(5) Serve as the Energy Patent Compensation Board to hear and
decide, as provided in 10 CFR part 780, certain applications and
petitions filed under authority provided by the Atomic Energy Act of
1954, ch. 1073, 68 Stat. 919 (1954), and the Invention Secrecy Act, 35
U.S.C. 181-188, including:
(i) Whether a patent is affected with the public interest;
(ii) Whether a license to a patent affected by the public interest
should be granted and equitable terms therefor; and
(iii) Whether there should be allotment of royalties, award, or
compensation to a party contributing to the making of certain
categories of inventions or discoveries, or an owner of a patent within
certain categories, under Rules of Practice set forth in subpart A of
this part, modified by the Board as determined to be necessary and
appropriate, with advance notice to the parties.
(d) The Board provides alternative disputes resolution neutral
services and facilities, as agreed between the parties and the Board,
for:
(1) Disputes related to the Department's prime contracts and to
financial assistance awards made by the Department.
(2) Disputes related to contracts between the Department's cost-
reimbursement contractors, including Management and Operating
Contractors (M&Os) and Environmental Remediation Contractors (ERMCs),
and their subcontractors. Additionally, with the consent of both the
responsible prime DOE cost-reimbursement contractor and the cognizant
DOE contracting officer, the Board may provide neutral services and
facilities for disputes under second tier subcontracts where the costs
of litigating the dispute might be ultimately charged to the DOE as
allowable costs through the prime contract.
(3) Other matters involving DOE procurement and financial
assistance, as appropriate.
Sec. 1023.2 Organization and location of the Board.
(a) The Board is located in the Washington, D.C. metropolitan area
and its address is Energy Board of Contract Appeals, Room 1006, 4040
North Fairfax Drive, Arlington, Virginia, 22203. The Board's telephone
numbers are (703) 235-2700 (voice) and (703) 235-3566 (facsimile).
(b) As required by the CDA, the Board consists of a Chair, a Vice
Chair, and at least one other member. Members are designated
Administrative Judges. The Chair is designated Chief Administrative
Judge and the Vice Chair, Deputy Chief Administrative Judge.
Sec. 1023.3 Principles of general applicability.
(a) Adjudicatory functions. The following principles shall apply to
all adjudicatory activities whether pursuant to the authority of the
CDA, authority delegated under this part, or authority of other laws,
rules, or directives.
(1) The Board shall hear and decide each case independently,
fairly, and impartially.
(2) Decisions shall be based exclusively upon the record
established in each case. Written or oral communication with the Board
by or for one party is not permitted without participation or notice to
other parties. Except as provided by law, no person or agency, directly
or indirectly involved in a matter before the Board, may submit off the
record to the Board or the Board's staff any evidence, explanation,
analysis, or advice (whether written or oral) regarding any matter at
issue in an appeal, nor shall any member of the Board or of the Board's
staff accept or consider ex parte communications from any person. This
provision does not apply to consultation among Board members or staff
or to other persons acting under authority expressly granted by the
Board with notice to parties. Nor does it apply to communications
concerning the Board's administrative functions or procedures,
including ADR.
(3) Decisions of the Board shall be final agency decisions and
shall not be subject to administrative appeal or administrative review.
(b) Alternative Dispute Resolution (ADR) functions. (1) Board
judges and personnel shall perform ADR related functions impartially,
with procedural fairness, and with integrity and diligence.
[[Page 55936]]
(2) Ex parte communications with Board staff and judges limited to
the nature, procedures, and availability of ADR through the Board are
permitted and encouraged. Once parties have agreed to engage in ADR and
have entered into an ADR agreement accepted by the Board, ex parte
communications by Board neutrals, support staff and parties shall be as
specified by any applicable agreements or protocols and as is
consistent with law, integrity, and fairness.
(3) Board-supplied neutrals and support personnel shall keep ADR
matters confidential and comply with any confidentiality requirements
of ADR agreements accepted by the Board. Board personnel may not
disclose any confidential information unless permitted by the parties
or required to do so by law.
Sec. 1023.4 Authorities.
(a) Contract Disputes Act authorities. The CDA imposes upon the
Board the duty, and grants it the powers necessary, to hear and decide,
or to otherwise resolve through agreed procedures, appeals from
decisions made by agency contracting officers on contractor claims
relating to contracts entered into by the DOE or relating to contracts
of another agency, as provided in Section 8(d) of the CDA, 41 U.S.C.
607(d). The Board may issue rules of practice or procedure for
proceedings pursuant to the CDA. The CDA also imposes upon the Board
the duty, and grants it powers necessary, to act upon petitions for
orders directing contracting officers to issue decisions on claims
relating to such contracts. 41 U.S.C. 605(c)(4). The Board may apply
through the Attorney General to an appropriate United States District
Court for an order requiring a person, who has failed to obey a
subpoena issued by the Board, to produce evidence or to give testimony,
or both. 41 U.S.C. 610.
(b) General powers and authorities. The Board's general powers
include, but are not limited to, the powers to:
(1) Manage its cases and docket; issue procedural orders; conduct
conferences and hearings; administer oaths; authorize and manage
discovery, including depositions and the production of documents or
other evidence; take official notice of facts within general knowledge;
call witnesses on its own motion; engage experts; dismiss actions with
or without prejudice; decide all questions of fact or law raised in an
action; and make and publish rules of practice and procedure;
(2) Exercise, in proceedings to which it applies, all powers
granted to arbitrators by the Federal Arbitration Act, 9 U.S.C. 1-14,
including the power to issue summonses.
(c) In addition to its authorities under the CDA, the Board has
been delegated by Delegation Order 0204-162 issued by the Secretary of
Energy, the following authorities:
(1) Issue rules, including rules of procedure, not inconsistent
with this section and departmental regulations;
(2) Issue subpoenas under the authority of section 161(c) of the
Atomic Energy Act of 1954, 42 U.S.C. 2201(c), as applicable;
(3) Such other authorities as the Secretary may delegate.
1023.5 Duties and responsibilities of the Chair.
The Chair shall be responsible for the following:
(a) The proper administration of the Board;
(b) Assignment and reassignment of cases, including alternative
dispute resolution (ADR) proceedings, to administrative judges, hearing
officers, and decision panels;
(c) Monitoring the progress of individual cases to promote their
timely resolution;
(d) Appointment and supervision of a Recorder;
(e) Arranging for the services of masters, mediators, and other
neutrals;
(f) Issuing delegations of Board authority to individual
administrative judges, panels of judges, commissioners, masters, and
hearing officers within such limits, if any, which a majority of the
members of the Board shall establish;
(g) Designating an acting chair during the absence of both the
Chair and the Vice Chair;
(h) Designating a member of another Federal board of contract
appeals to serve as the third member of a decision panel if the Board
is reduced to less than three members because of vacant positions,
protracted absences, disabilities or disqualifications;
(i) Authorizing and approving ADR arrangements for Board cases;
obtaining non-Board personnel to serve as settlement judges, third-
party neutrals, masters and similar capacities; authorizing the use of
Board-provided personnel and facilities in ADR capacities, for matters
before the Board, and for other matters when requested by officials of
the DOE; and entering into arrangements with other Federal
administrative forums for the provision of personnel to serve in ADR
capacities on a reciprocal basis;
(j) Recommending to the Secretary the selection of qualified and
eligible members. New members shall, upon selection, be appointed to
serve as provided in the CDA;
(k) Determining whether member duties are consistent with the CDA;
and
(l) Reporting Board activities to the Secretary not less often than
biennially.
Sec. 1023.6 Duties and responsibilities of Board members and staff.
(a) As is consistent with the Board's functions, Board members and
staff shall perform their duties with the highest integrity and
consistent with the principles set forth in Sec. 1023.3.
(b) Members of the Board and Board attorneys may serve as
commissioners, magistrates, masters, hearing officers, arbitrators,
mediators, and neutrals and in other similar capacities.
(c) Except as may be ordered by a court of competent jurisdiction,
members of the Board and its staff are permanently barred from ex parte
disclosure of information concerning any Board deliberations.
Sec. 1023.7 Board decisions; Assignment of judges.
(a) In each case, the Chair shall assign an administrative judge as
the Presiding Administrative Judge to hear a case and develop the
record upon which the decision will be made. A Presiding Judge has
authority to act for the Board in all non-dispositive matters, except
as otherwise provided in this part. This paragraph shall not preclude
the Presiding Administrative Judge from taking dispositive actions as
provided in this part or by agreement of the parties. Other persons
acting as commissioners, magistrates, masters, or hearing officers
shall have such powers as the Board shall delegate.
(b) Except as provided by law, rule, or agreement of the parties,
contract appeals and other cases are assigned to a deciding panel
established by the Board Chair consisting of two or more administrative
judges.
(c) The concurring votes of a majority of a deciding panel shall be
sufficient to decide an appeal. All members assigned to a panel shall
vote unless unavailable. The Chair will assign an additional member if
necessary to resolve tie votes.
Sec. 1023.8 Alternative Dispute Resolution (ADR).
(a) Statement of policy. It is the policy of the DOE and of the
Board to facilitate consensual resolution of disputes and to employ ADR
in all of the Board's functions when agreed to by the parties. ADR is a
core judicial function performed by the Board and its judges.
(b) ADR for docketed cases. Pursuant to the agreement of the
parties, the Board, in an exercise of discretion, may approve either
the use of Board-annexed
[[Page 55937]]
ADR (ADR which is conducted under Board auspices and pursuant to Board
order) or the suspension of the Board's procedural schedule to permit
the parties to engage in ADR outside of the Board's purview. While any
form of ADR may be employed, the forms of ADR commonly employed using
Board judges as neutrals are: case evaluation by a settlement judge
(with or without mediation by the judge); arbitration; mini-trial;
summary (time and procedurally limited) trial with one-judge, summary
binding (non-appealable) bench decision; and fact- finding.
(c) ADR for non-docketed disputes. As a general matter the earlier
a dispute is identified and resolved, the less the financial and other
costs incurred by the parties. When a contract is not yet complete
there may be opportunities to eliminate tensions through ADR and to
confine and resolve problems in a way that the remaining performance is
eased and improved. For these reasons, the Board is available to
provide a full range of ADR services and facilities before, as well as
after, a case is filed with the Board. A contracting officer's decision
is not a prerequisite for the Board to provide ADR services and such
services may be furnished whenever they are warranted by the overall
best interests of the parties. The forms of ADR most suitable for mid-
performance disputes are often the non-dispositive forms such as
mediation, facilitation and fact-finding, mini-trials, or non-binding
arbitration, although binding arbitration is also available.
(d) Availability of information on ADR. Parties are encouraged to
consult with the Board regarding the Board's ADR services at the
earliest possible time. A handbook describing Board ADR is available
from the Board upon request.
Sec. 1023.9 General guidelines.
(a) The principles of this Overview shall apply to all Board
functions unless a specific provision of the relevant rules of practice
applies. It is, however, impractical to articulate a rule to fit every
circumstance. Accordingly, this part, and the other Board Rules
referenced in it, will be interpreted and applied consistent with the
Board's responsibility to provide just, expeditious, and inexpensive
resolution of cases before it. When Board rules of procedure do not
cover a specific situation, a party may contend that the Board should
apply pertinent provisions from the Federal Rules of Civil Procedure.
However, while the Board may refer to the Federal Rules of Civil
Procedure for guidance, such Rules are not binding on the Board absent
a ruling or order to the contrary.
(b) The Board is responsible to the parties, the public, and the
Secretary for the expeditious resolution of cases before it.
Accordingly, subject to the objection of a party, the procedures and
time limitations set forth in rules of procedure may be modified,
consistent with law and fairness. Presiding judges and hearing officers
may issue prehearing orders varying procedures and time limitations if
they determine that purposes of the CDA or the interests of justice
would be advanced thereby and provided both parties consent. Parties
should not consume an entire period authorized for an action if the
action can be sooner completed. Informal communication between parties
is encouraged to reduce time periods whenever possible.
(c) The Board shall conduct proceedings in compliance with the
security regulations and requirements of the Department or other agency
involved.
3a. Subpart A is amended by removing Secs. 1023.1 through 1023.6,
redesignating Sec. 1023.20 as 1023.120 and adding Secs. 1023.101 and
1023.102, reading as follows:
Sec. 1023.101 Scope and purpose.
The rules of the Board of Contract Appeals are intended to govern
all appeal procedures before the Department of Energy Board of Contract
Appeals (Board) which are within the scope of the Contract Disputes Act
of 1978 (41 U.S.C. 601 et seq.). Those rules, with modifications
determined by the Board to be appropriate to the nature of the dispute,
also apply to all other contract and subcontract related appeals which
are properly before the Board.
Sec. 1023.102 Effective date.
The rules of the Board of Contract Appeals shall apply to all
proceedings filed on or after [30 days after publication of the final
rule], except that Rule 1(a) and (b) of Sec. 1023.120 shall apply only
to appeals filed on or after [the effective date of 48 CFR 33.211].
Sec. 1023.120 [Amended]
4. Newly designated section 1023.120 is amended by revising
``$50,000'' to read ``$100,000'' in the following paragraphs:
Rule 1, paragraph (b)
Rule 1, paragraph (c)
Rule 6, paragraph (b)
Rule 14, paragraph (a)
5. Newly designated section 1023.120 is amended by revising
``$10,000'' to read ``$50,000'' in the following paragraphs:
Rule 6, paragraph (b)
Rule 13, paragraph (a)
Subpart B--[Removed and Reserved]
6. Subpart B is removed and reserved.
Sec. 1023.327 [Amended]
7. Section 1023.327 of Subpart C is amended by revising ``10 CFR
1023.20'' to read ``10 CFR 1023.120.''
[FR Doc. 96-27683 Filed 10-29-96; 8:45 am]
BILLING CODE 6450-01-P