[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36794-36819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3064]
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Part III
General Services Administration
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48 CFR Parts 6101, 6102, et al.
Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure of
the Civilian Board of Contract Appeals; Interim Rule
Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules
and Regulations
[[Page 36794]]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 6101, 6102, 6103, 6104, and 6105
[GSA BCA Amendment 2006-01; BCA Case 2006-61-1]
RIN 3090-AI29
Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure
of the Civilian Board of Contract Appeals
AGENCY: General Services Administration (GSA), Civilian Board of
Contract Appeals.
ACTION: Interim rule.
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SUMMARY: This document contains the rules of procedure of the Civilian
Board of Contract Appeals (Board), which will govern all proceedings
before the Board. The Board was established within GSA by section 847
of the National Defense Authorization Act for Fiscal Year 2006 to hear
and decide contract disputes between Government contractors and
Executive agencies (other than the Department of Defense, the
Department of the Army, the Department of the Navy, the Department of
the Air Force, the National Aeronautics and Space Administration, the
United States Postal Service, the Postal Rate Commission, and the
Tennessee Valley Authority) under the provisions of the Contract
Disputes Act of 1978 and regulations and rules issued thereunder.
Effective January 6, 2007, boards of contract appeals that existed at
the General Services Administration and the Departments of Agriculture,
Energy, Housing and Urban Development, Interior, Labor, Transportation,
and Veterans Affairs were terminated, and their cases were transferred
to the new Civilian Board of Contract Appeals. The Board has
jurisdiction as provided by section 8(d) of the Contract Disputes Act
of 1978, 41 U.S.C. 607(d). In addition, the Board will conduct
proceedings as required or permitted under other statutes or
regulations. The Board intends to issue final, revised rules after
considering all comments on the interim rule.
DATES: Effective Date: This interim rule is effective July 5, 2007.
Comment Date: Interested parties should submit written comments to
the Board of Contract Appeals on or before September 28, 2007, to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by CBCA Amendment 2006-01, BCA
case 2006-61-1, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for any document by first selecting the proper document types
and selecting ``General Services Administration'' as the agency of
choice. At the ``Keyword'' prompt, type in the BCA case number (for
example, BCA Case 2006-61-1) and click on the ``Submit'' button. You
may also search for any document by clicking on the ``Advanced search/
document search'' tab at the top of the screen, selecting from the
agency field ``General Services Administration'', and typing the BCA
case number in the keyword field. Select the ``Submit'' button.
Fax: 202-606-0019.
Mail: General Services Administration, Civilian Board of
Contract Appeals, ATTN: Margaret Pfunder, 1800 F Street, NW,
Washington, DC 20405.
Instructions: Please submit comments only and cite CBCA Amendment
2006-01, BCA case 2006-61-1, in all correspondence related to this
case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT Margaret S. Pfunder, Chief Counsel,
Civilian Board of Contract Appeals, telephone (202) 606-8800, internet
address [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
The Civilian Board of Contract Appeals was established within the
General Services Administration (GSA) by section 847 of the National
Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163.
Effective January 6, 2007, the boards of contract appeals that existed
at the General Services Administration and the Departments of
Agriculture, Energy, Housing and Urban Development, Interior, Labor,
Transportation, and Veterans Affairs were terminated, and their cases
were transferred to the new Civilian Board of Contract Appeals. The
Civilian Board was established to hear and decide contract disputes
between Government contractors and Executive agencies (other than the
Department of Defense, the Department of the Army, the Department of
the Navy, the Department of the Air Force, the National Aeronautics and
Space Administration, the United States Postal Service, the Postal Rate
Commission, and the Tennessee Valley Authority) under the provisions of
the Contract Disputes Act of 1978 and regulations and rules issued
thereunder. The Board will also conduct other proceedings as required
or permitted under statutes or regulations.
Such other proceedings include the resolution of disputes involving
grants and contracts under the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450, et seq. Because jurisdiction over these
disputes is vested by statue, 25 U.S.C. 450m-1(d), in the Department of
the Interior Board of Contract Appeals, section 847(e) of the National
Defense Authorization Act for Fiscal Year 2006 reassigns that
jurisdiction to the Civilian Board of Contract Appeals.
Such other proceedings also include the resolution of disputes
between insurance companies and the Department of Agriculture's Risk
Management Agency (RMA) involving actions of the Federal Crop Insurance
Corporation (FCIC) pursuant to the Federal Crop Insurance Act, 7 U.S.C.
1501, et seq. These disputes were formerly resolved by the Department
of Agriculture Board of Contract Appeals, and this authority has been
transferred to the Civilian Board of Contract Appeals under an
agreement with the Secretary of Agriculture, as permitted under section
42(c)(2) of the Office of Federal Procurement Policy Act, 41 U.S.C.
438(c)(2).
In addition, other proceedings that the Civilian Board will conduct
include several types of cases heard by the General Services Board of
Contract Appeals by delegation from the Administrator of General
Services. Effective January 6, 2007, the Administrator of General
Services redelegated those cases to the Civilian Board of Contract
Appeals. Those cases include the following:
Pursuant to 31 U.S.C. 3726(i)(1), requests by carriers or
freight forwarders to review actions taken by the Audit Division of the
General Services Administration's Office of Transportation and Property
Management;
Pursuant to 31 U.S.C. 3702, claims by Federal civilian
employees against the United States for reimbursement of (1) expenses
incurred while on official temporary duty travel and (2) expenses
incurred in connection with relocation to a new duty station; and
Pursuant to section 204 of the General Accounting Office
Act of 1996, Pub. L. 104-316, requests of agency disbursing or
certifying officials, or agency heads, on questions involving payment
of travel or relocation expenses that were formerly considered by the
Comptroller General under 31 U.S.C. 3529.
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These rules of procedure are based on and do not differ in any
substantial way from the rules of procedure which existed at the
predecessor civilian agency boards. The rules of the predecessor
civilian agency boards all had the same general intent and coverage.
There were differences among the rules in terms of both structure and
wording, and no two civilian agency boards had identical sets of rules.
In drafting rules of procedure for the Civilian Board, we studied the
rules of procedure of all of the civilian agency boards and developed
an interim final rule which blends those rules. The interim final rule
maintains most of the rules all of the former boards had in place.
Questions have been raised about the scope of the Board's subpoena
authority over federal agencies. The Department of Justice has recently
provided advice concluding that the statute that granted subpoena
authority to the separate agency boards of contract appeals, and that
provides such authority to the consolidated Board, does not provide the
necessary legal authority for a board to enforce a subpoena against a
federal agency. Therefore, the agency does not interpret the term
``person'' where it is used in 6101.16 to include the United States or
component federal agencies.
B. Regulatory Flexibility Act
The General Services Administration certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq., because the rule does not impose any additional
costs on either small or large businesses.
C. Executive Order 12866, Regulatory Planning and Review
OMB reviewed this rule under Executive Order 12866 (entitled,
``Regulatory Planning and Review''). OMB determined that this rule is a
``significant regulatory action'' as defined in section 3(f) of the
Order (although not an economically significant regulatory action under
the Order).
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes do
not impose recordkeeping or information collection requirements, or
otherwise collect information from offerors, contractors, or members of
the public that require approval of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
E. Determination to Issue an Interim Rule
Pursuant to 5 U.S.C. Sec. 553(b)(B), we have determined that it
would be impracticable, unnecessary, and contrary to the public
interest to publish this as a Notice of Proposed Rulemaking because to
do so would result in the Board being operational but unable to perform
its essential functions. Accordingly, we find that good cause exists to
publish as an interim rule. For the same reasons, we have determined
that this interim rule should be issued without a delayed effective
date. However, we are interested in comments regarding this interim
rule.
List of Subjects in 48 CFR Parts 6101, 6102, 6103, 6104, and 6105
Administrative practice and procedure, Agriculture, Freight
forwarders, Government procurement, Travel and relocation expenses.
Dated: June 8, 2007.
Stephen M. Daniels,
Chairman, Civilian Board of Contract Appeals, General Services
Administration.
0
Therefore, GSA amends 48 CFR chapter 61 as set forth below:
Chapter 61--Civilian Board of Contract Appeals
0
1. Revise part 6101 to read as follows:
PART 6101--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT
APPEALS
Sec.
6101.1 Scope of rules; definitions; construction; rulings, orders,
and directions; panels; location and address [Rule 1].
6101.2 Filing cases; time limits for filing; notice of docketing;
consolidation [Rule 2].
6101.3 Time: enlargement; computation [Rule 3].
6101.4 Appeal file [Rule 4].
6101.5 Appearances; notice of appearance [Rule 5].
6101.6 Pleadings and amendment of pleadings [Rule 6].
6101.7 Service of papers other than subpoenas [Rule 7].
6101.8 Motions [Rule 8].
6101.9 Record of Board proceedings; review and copying [Rule 9].
6101.10 Admissibility and weight of evidence [Rule 10].
6101.11 Conferences; conference memorandum [Rule 11].
6101.12 Suspensions and dismissals [Rule 12].
6101.13 General provisions governing discovery [Rule 13].
6101.14 Interrogatories to parties; requests for admission; requests
for production [Rule 14].
6101.15 Depositions [Rule 15].
6101.16 Subpoenas [Rule 16].
6101.17 Exhibits [Rule 17].
6101.18 Election of hearing or record submission [Rule 18].
6101.19 Submission on the record without a hearing [Rule 19].
6101.20 Hearings: scheduling; notice; unexcused absences [Rule 20].
6101.21 Hearing procedures [Rule 21].
6101.22 Transcripts of proceedings; corrections [Rule 22].
6101.23 Briefs and memoranda of law [Rule 23].
6101.24 Closing the record [Rule 24].
6101.25 Decisions; settlements [Rule 25].
6101.26 Reconsideration; amendment of decisions; new hearings [Rule
26].
6101.27 Relief from decision or order [Rule 27].
6101.28 Full Board consideration [Rule 28].
6101.29 Clerical mistakes; harmless error [Rule 29].
6101.30 Award of fees and other expenses [Rule 30].
6101.31 Payment of Board awards [Rule 31].
6101.32 Appeal from a Board decision [Rule 32].
6101.33 Ex parte contact; sanctions and other proceedings [Rule 33].
6101.34 Seal of the Board [Rule 34].
6101.35--6101.50 [Reserved]
6101.51 Variation from standard proceedings [Rule 51].
6101.52 Small claims procedure [Rule 52].
6101.53 Accelerated procedure [Rule 53].
6101.54 Alternate dispute resolution [Rule 54].
Appendix to Part 6101--Form Nos. 1-5.
Authority: 41 U.S.C. 601-613.
6101.1 Scope of rules; definitions; construction; rulings, orders,
and directions; panels; location and address [Rule 1].
(a) Scope. The rules of this chapter govern proceedings in all
cases filed with the Board on or after January 6, 2007, and all further
proceedings in cases then pending, except to the extent that, in the
opinion of the Board, their use in a particular case pending on the
effective date would be infeasible or would work an injustice. The
rules of this chapter will remain in effect until the Board issues
final rules of procedure or June 30, 2008, whichever occurs earlier.
The Board will look to the rules of this chapter for guidance in
conducting other proceedings authorized by law.
(b) Definitions--(1) Appeal; appellant. The term ``appeal'' means a
contract dispute filed with the Board. The term ``appellant'' means a
party filing an appeal.
(2) Application; applicant. The term ``application'' means a
submission to the Board of a request for award of fees and other
expenses, under the Equal Access to Justice Act, 5 U.S.C. 504, pursuant
to 6101.30 (Rule 30). The term ``applicant'' means a party filing an
application.
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(3) Board judge; judge. The term ``Board judge'' or ``judge'' means
a member of the Board.
(4) Case. The term ``case'' means an appeal, petition, or
application.
(5) Filing. (i) Any document, other than a notice of appeal or an
application for award of fees and other expenses, is filed when it is
received by the Office of the Clerk of the Board during the Board's
working hours. A notice of appeal or an application for award of fees
and other expenses is filed upon the earlier of its receipt by the
Office of the Clerk of the Board or if mailed, the date on which it is
mailed. A United States Postal Service postmark shall be prima facie
evidence that the document with which it is associated was mailed on
the date of the postmark.
(ii) Facsimile transmissions to the Board and the parties are
permitted. The filing of a document by facsimile transmission occurs
upon receipt by the Board of the entire printed submission. Parties are
specifically cautioned that a deadline for filing will not be extended
merely because the Board's facsimile machine is busy or otherwise
unavailable when a filing is due. Parties are expected to submit their
facsimile machine numbers with their filings.
(6) Party. The term ``party'' means an appellant, applicant,
petitioner, or respondent.
(7) Petition; petitioner. The term ``petition'' means a request
filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting
officer to issue a written decision on a claim. The term ``petitioner''
means a party submitting a petition.
(8) Respondent. The term ``respondent'' means the government agency
whose decision, action, or inaction is the subject of an appeal,
petition, or application.
(9) Working day. The term ``working day'' means any day other than
a Saturday, Sunday, federal holiday, day on which the Office of the
Clerk is required to close earlier than 4:30 p.m., or day on which the
Office of the Clerk does not open at all, as in the event of inclement
weather.
(10) Working hours. The Board's working hours are 8:00 a.m. to 4:30
p.m., Eastern Time, on each working day.
(c) Construction. The rules of this chapter shall be construed to
secure the just, informal, expeditious, and inexpensive resolution of
every case. The Board looks to the Federal Rules of Civil Procedure for
guidance in construing those Board rules which are similar to Federal
Rules.
(d) Rulings, orders, and directions. The Board may apply the rules
of this chapter and make such rulings and issue such orders and
directions as are necessary to secure the just, 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 chapter may be made on the motion or request 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 just.
In making rulings and issuing orders and directions pursuant to the
rules of this chapter, the Board takes into consideration those Federal
Rules of Civil Procedure which address matters not specifically covered
herein.
(e) Panels. Each case will be assigned to a panel consisting of
three judges, with one member designated as the panel chair, in
accordance with such procedures as may be established by the Board. The
panel chair is responsible for processing the case, including
scheduling and conducting proceedings and hearings. In addition, the
panel chair may, without participation by other panel members, decide
an appeal under the small claims procedure in 6101.52 (Rule 52), rule
on nondispositive motions (except for amounts in controversy under
6101.52(a)(2) (Rule 52(a)(2))), and dismiss a case as permitted by
6101.12(e) (Rule 12(e)). All other matters, except for those before the
full Board under 6101.28 (Rule 28), are decided for the Board by a
majority of the panel.
(f) Location and address. The location of the Office of the Clerk
of the Board is: 1800 M Street, NW, 6th Floor, Washington, DC 20036.
The mailing address of the Office of the Clerk of the Board is: 1800 F
Street, NW, Washington, DC 20405. The Clerk's telephone number is:
(202) 606-8800. The Clerk's facsimile machine number is: (202) 606-
0019.
6101.2 Filing cases; time limits for filing; notice of docketing;
consolidation [Rule 2].
(a) Filing cases. Filing of a case occurs as provided in
6101.1(b)(5) (Rule 1(b)(5)).
(1) Notice of appeal. (i) A notice of appeal shall be in writing
and shall be signed by the appellant or by the appellant's attorney or
authorized representative. If the appeal is from a contracting
officer's decision, the notice of appeal should describe the decision
in enough detail to enable the Board to differentiate that decision
from any other; the appellant can satisfy this requirement by attaching
to the notice of appeal a copy of the contracting officer's decision.
If an appeal is taken from the failure of a contracting officer to
issue a decision, the notice of appeal should describe in detail the
claim that the contracting officer has failed to decide; the appellant
can satisfy this requirement by attaching a copy of the written claim
submission to the notice of appeal.
(ii) A written notice in any form, including the one specified in
the Appendix to the rules in this chapter, is sufficient to initiate an
appeal. The notice of appeal should include the following information:
(A) The number and date of the contract;
(B) The name of the government agency and the component thereof
against which the claim has been asserted;
(C) The name, address, and telephone number of the contracting
officer whose decision is appealed and the date of the decision;
(D) If the appeal is from the failure of the contracting officer to
decide a claim, the name, address, and telephone number of the
contracting officer who received the claim;
(E) A brief account of the circumstances giving rise to the appeal;
and
(F) An estimate of the amount of money in controversy, if any and
if known.
(iii) The appellant must send a copy of the notice of appeal to the
contracting officer whose decision is appealed or, if there has been no
decision, to the contracting officer before whom the appellant's claim
is pending.
(2) Petition. (i) A petition shall be in writing and signed by the
petitioner or by the petitioner's attorney or authorized
representative. The petition should describe in detail the claim that
the contracting officer has failed to decide; the contractor can
satisfy this requirement by attaching to the petition a copy of the
written claim submission.
(ii) The petition should include the following information:
(A) The number and date of the contract;
(B) The name of the government agency and the component thereof
against which the claim has been asserted; and
(C) The name, address, and telephone number of the contracting
officer whose decision is sought.
(3) Application. An application for fees and other expenses shall
meet all requirements specified in 6101.30 (Rule 30).
(b) Time limits for filing--(1) Appeals. (i) An appeal from a
decision of a contracting officer shall be filed no later
[[Page 36797]]
than 90 calendar days after the date the appellant receives that
decision.
(ii) An appeal may be filed with the Board if the contracting
officer fails or refuses to issue a timely decision on a claim
submitted in writing, properly certified if required.
(2) Applications. An application for fees and other expenses shall
be filed within 30 calendar days of a final disposition in the
underlying appeal, as provided in 6101.30 (Rule 30).
(c) Notice of docketing. Notices of appeal, petitions, and
applications will be docketed by the Office of the Clerk of the Board,
and a written notice of docketing will be sent promptly to all parties.
(d) Consolidation. When cases involving common questions of law or
fact are filed, the Board may:
(1) Order the cases consolidated; or
(2) Make such other orders concerning the proceedings as are needed
to avoid unnecessary costs or delay.
6101.3 Time: enlargement; computation [Rule 3].
(a) Time for performing required actions. All time limitations
prescribed in the rules of this chapter or in any order or direction
given by the Board are maximums, and the action required should be
accomplished in less time whenever possible.
(b) Enlarging time. Upon request of a party for good cause shown,
the Board may enlarge any time prescribed by the rules in this chapter
or by an order or direction of the Board except the time limit for
filing appeals (6101.2(b)(1) (Rule 2(b)(1))). A written request is
required, but in exigent circumstances an oral request may be made and
followed by a written request. An enlargement of time may be granted
even though the request was filed after the time for taking the
required action expired, but the party requesting the enlargement must
show good cause for its inability to make the request before that time
expired.
(c) Computing time. Except as otherwise required by law, in
computing a period of time prescribed by the rules in this chapter or
by order of the Board, the day from which the designated period of time
begins to run shall not be counted, but the last day of the period
shall be counted unless that day is a Saturday, a Sunday, or a federal
holiday, or a day on which the Office of the Clerk of the Board is
required to close earlier than 4:30 p.m., or does not open at all, as
in the case of inclement weather, in which event the period shall
include the next working day. Except as otherwise provided in this
paragraph, when the period of time prescribed or allowed is less than
11 days, any intervening Saturday, Sunday, or federal holiday shall not
be counted. When the period of time prescribed or allowed is 11 days or
more, intervening Saturdays, Sundays, and federal holidays shall be
counted. Time for filing any document or copy thereof with the Board
expires when the Office of the Clerk of the Board closes on the last
day on which such filing may be made.
6101.4 Appeal file [Rule 4].
(a) Submission to the Board by the respondent. Within 30 calendar
days from receipt of notice that an appeal has been filed, or within
such time as the Board may allow, the respondent shall file with the
Board appeal file exhibits consisting of all documents and other
tangible things relevant to the claim and to the contracting officer's
decision which has been appealed. Exhibits will be numbered as required
by 6101.4(b) (Rule 4(b)) and will include:
(1) The contracting officer's decision, if any, from which the
appeal is taken;
(2) The contract, if any, including amendments, specifications,
plans, and drawings;
(3) All correspondence between the parties that are relevant to the
appeal, including the written claim or claims that are the subject of
the appeal, and evidence of their certification, if any;
(4) Affidavits or statements of any witnesses concerning the matter
in dispute and transcripts of any testimony taken before the filing of
the notice of appeal;
(5) All documents and other tangible things on which the
contracting officer relied in making the decision, and any related
correspondence;
(6) The abstract of bids, if relevant; and
(7) Any additional existing evidence or information necessary to
determine the merits of the appeal, such as internal memoranda and
notes to the file.
(b) Organization of the appeal file. Appeal file exhibits may be
originals or true, legible, and complete copies. They shall be arranged
in chronological order, earliest documents first; bound in a loose-leaf
binder on the left margin except where size or shape makes such binding
impracticable; numbered; tabbed; and indexed. The loose-leaf binders
cannot exceed four inches in depth. The numbering shall be consecutive,
in whole Arabic numerals (no letters, decimals, or fractions), and
continuous from one submission to the next, so that the complete file,
after all submissions, will consist of one set of consecutively
numbered exhibits. In addition, the pages within each exhibit
containing more than three pages shall be numbered consecutively unless
the exhibit already is paginated in a logical manner. Consecutive
pagination of the entire file is not required. The index shall include
the date and a brief description of each exhibit and shall identify
which exhibits, if any, have been filed with the Board in camera or
under protective order or otherwise have not been served on the other
party.
(c) Service. The respondent shall serve a copy of the appeal file
on the appellant at the same time that the respondent files it with the
Board, except that the respondent need not serve on the appellant those
documents furnished the Board in camera pursuant to 6101.9(c) (Rule
9(c)), and the respondent shall serve documents submitted under
protective order only on those individuals who have been granted access
to such documents by the Board. However, the respondent must serve on
the appellant a list identifying the specific documents filed in camera
or under protective order with the Board, giving sufficient details
necessary for their recognition. This list must also be filed with the
Board as an exhibit to the appeal file.
(d) Submission to the Board by the appellant. Within 30 calendar
days after the respondent files its appeal file exhibits, or within
such time as the Board may allow, the appellant shall file with the
Board for inclusion in the appeal file documents or other tangible
things relevant to the appeal that have not been submitted by the
respondent. The appellant shall serve a copy of its additional exhibits
upon the respondent at the same time as it files them with the Board,
and shall organize the file as required by 6101.4(b) (Rule 4(b)).
(e) Submissions on order of the Board. The Board may, at any time
during the pendency of the appeal, require any party to file other
documents and tangible things as additional exhibits. The Board may
also require a party to file either copies of electronic records or
printed versions of electronic records.
(f) Lengthy or bulky materials. The Board may waive the requirement
to furnish the other party copies or duplicates of bulky, lengthy, or
outsized materials submitted to the Board as exhibits if furnishing
copies would impose an undue burden, so long as the materials are
available to the opposing party for inspection.
(g) Use of appeal file as evidence. All exhibits in the appeal
file, except for those as to which an objection has been sustained, are
part of the evidentiary record upon which the Board will render its
decision. Unless otherwise ordered by the Board, objection to any
exhibit may be made at any time before
[[Page 36798]]
the first witness is sworn or, if the appeal is submitted on the record
without a hearing pursuant to 6101.19 (Rule 19), at any time prior to
or concurrent with the first record submission. The Board may enlarge
the time for such objections and will consider an objection made during
a hearing if the ground for objection could not reasonably have been
earlier known to the objecting party. If an objection is sustained, the
Board will so note in the record.
(h) When appeal file not required. Upon motion of a party, the
Board may postpone or dispense with the submission of any or all appeal
file exhibits.
6101.5 Appearances; notice of appearance [Rule 5].
(a) Appearances before the Board--(1) Appellant; petitioner;
applicant. Any appellant, petitioner, or applicant may appear before
the Board by an attorney-at-law licensed to practice in a state,
commonwealth, or territory of the United States, or in the District of
Columbia. An individual appellant, petitioner, or applicant may appear
in his or her own behalf; a corporation, trust, or association may
appear by one of its officers; and a partnership may appear by one of
its members.
(2) Respondent. The respondent may appear before the Board by an
attorney-at-law licensed to practice in a state, commonwealth, or
territory of the United States, or in the District of Columbia.
Alternatively, if not prohibited by agency regulation or otherwise, the
respondent may appear by the contracting officer or by the contracting
officer's authorized representative.
(3) Others. The Board may, on motion, in its discretion, permit a
special or limited appearance, such as by an amicus curiae. Permission
to appear, if granted, will be for such purposes and in such manner as
allowed by the presiding judge.
(b) Notice of appearance. Unless a notice of appearance is filed by
some other person, the person signing the notice of appeal, petition,
or application shall be deemed to have appeared on behalf of the
appellant, petitioner, or applicant, and the head of the respondent
agency's litigation office shall be deemed to have appeared on behalf
of the respondent. Other attorneys actively participating in the
proceedings before the Board must file notices of appearance. A notice
of appearance in the form specified in the Appendix to the rules of
this chapter is sufficient. Attorneys representing parties before the
Board are required to list the state bars to which they are admitted
and their state bar numbers or other bar identifiers.
(c) Withdrawal of appearance. Any person who has filed a notice of
appearance and who wishes to withdraw from a case must file a motion
which includes the name, address, telephone number, and facsimile
machine number of the person who will assume responsibility for
representation of the party in question. The motion shall state the
grounds for withdrawal unless it is accompanied by a representation
from the successor representative or existing co-counsel that the
established case schedule will be met.
6101.6 Pleadings and amendment of pleadings [Rule 6].
(a) Pleadings required and permitted. Except as the Board may
otherwise order, the Board requires the submission of a complaint and
an answer. In appropriate circumstances, the Board may order or permit
a reply to an answer.
(b) Complaint. No later than 30 calendar days after the docketing
of the appeal, the appellant shall file with the Board a complaint
setting forth its claim or claims in simple, concise, and direct terms.
The complaint should set forth the factual basis of the claim or
claims, with appropriate reference to the contract provisions, and
should state the amount in controversy, or an estimate thereof, if any
and if known. No particular form is prescribed for a complaint, and the
Board may designate the notice of appeal, a claim submission, or any
other document as the complaint, either on its own initiative or on
request of the appellant, if such document sufficiently states the
factual basis and amount of the claim.
(c) Answer. No later than 30 calendar days after the filing of the
complaint or of the Board's designation of a complaint, the respondent
shall file with the Board an answer setting forth simple, concise, and
direct statements of its defenses to the claim or claims asserted in
the complaint, as well as any affirmative defenses it chooses to
assert. One-word responses stating an allegation is denied are
discouraged. A dispositive motion or a motion for a more definite
statement may be filed in lieu of the answer only with the permission
of the Board. If no answer is timely filed, the Board may enter a
general denial, in which case the respondent may thereafter amend the
answer to assert affirmative defenses only by leave of the Board and as
otherwise prescribed by paragraph (e) of this section. The Board will
inform the parties when it enters a general denial on behalf of the
respondent.
(d) Small claims and accelerated procedures. When an appellant
elects to use the small claims or accelerated procedures described in
6101.52 and 6101.53 (Rules 52 and 53), the Board may shorten the time
for filing the complaint and the answer.
(e) Amendment of pleadings. Each party to an appeal may amend its
pleadings once without leave of the Board at any time before a
responsive pleading is filed. The Board may permit other amendments on
conditions fair to both parties. A response to an amended pleading will
be filed within the time set by the Board.
(f) Amendments to conform to the evidence. When issues within the
proper scope of a case, but not raised in the pleadings, have been
raised without objection or with permission of the Board at a hearing
or in record submissions, they shall be treated in all respects as if
they had been raised in the pleadings. The Board may order the parties
to amend the pleadings to conform to the proof or may order that the
record be deemed to contain amended pleadings.
6101.7 Service of papers other than subpoenas [Rule 7].
(a) On whom and when service must be made. Except for subpoenas
(6101.16 (Rule 16)) and documents filed in camera (6101.9(c) (Rule
9(c))), when a party sends a document to the Board it must at the same
time send a copy to the other party by mail or some other equally or
more expeditious means of transmittal. Any papers required to be served
on a party (except requests for discovery and responses thereto, unless
ordered by the Board to be filed) shall be filed with the Board before
service or within a reasonable time thereafter.
(b) Proof of service. A party sending a document to the Board must
represent to the Board that a copy has also been sent to the other
party. This may be done by certificate of service, by the 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.
(c) Failure to make service. If a document sent to the Board by a
party does not show that a copy has been served on the other party, the
Board may return the document to the party that submitted it with such
directions as it considers appropriate, or the Board may inquire
whether a party has received a copy and note on the record the fact of
inquiry and the response, and may also direct the party that submitted
the document to serve a copy on the
[[Page 36799]]
other party. In the absence of proof of service a document may be
treated by the Board as not properly filed.
6101.8 Motions [Rule 8].
(a) How motions are made. Motions may be oral or written. A written
motion shall state the relief sought and, either in the text of the
motion or in an accompanying legal memorandum, the grounds therefor. In
addition, a motion for summary relief shall comply with the
requirements of paragraph (g) of this section. Section 6101.23 (Rule
23) prescribes the form and content of legal memoranda. Oral motions
shall be made on the record and in the presence of the other party.
Except for joint motions by the parties, all motions must represent
that the moving party has attempted to discuss the grounds for the
motion with the non-moving party and tried to resolve the matter
informally.
(b) When motions may be made. A motion filed in lieu of an answer
pursuant to 6101.6(c) (Rule 6(c)) shall be filed no later than the date
on which the answer is required to be filed or such later date as may
be established by the Board. Any other dispositive motion shall be made
as soon as practicable after the grounds therefor are known. Any other
motion shall be made promptly or as required by the rules of this
chapter.
(c) Dispositive motions. The following dispositive motions may
properly be made before the Board:
(1) Motions to dismiss for lack of jurisdiction or for failure to
state a claim upon which relief can be granted;
(2) Motions to dismiss for failure to prosecute;
(3) Motions for summary relief (analogous to summary judgment); and
(4) Any other motion to dismiss.
(d) Other motions. Other motions may be made in good faith and in
proper form. When filing a motion for an enlargement of time, the
moving party shall state that it has contacted the opposing party about
the request and shall inform the Board whether the opposing party
consents to the request or will file an opposition.
(e) Jurisdictional questions. The Board may at any time consider
the issue of its jurisdiction to decide a case. When all facts touching
upon the Board's jurisdiction are not of record, or in other
appropriate circumstances, a decision on a jurisdictional question may
be deferred pending a hearing on the merits or the filing of record
submissions.
(f) Procedure. Unless otherwise directed by the Board, a party may
respond to a written motion other than a motion pursuant to 6101.26,
6101.27, 6101.28, or 6101.29 (Rules 26, 27, 28, or 29) at any time
within 20 calendar days after the filing of the motion. Responses to
motions pursuant to 6101.26, 6101.27, 6101.28, or 6101.29 (Rules 26,
27, 28, or 29) may be made only as permitted or directed by the Board.
The Board may permit hearing or oral argument on written motions and
may require additional submissions from any of the parties.
(g) Motions for summary relief. (1) A motion for summary relief
should be filed only when a party believes that, based upon uncontested
material facts, it is entitled to relief in whole or in part as a
matter of law. A motion for summary relief should be filed as soon as
feasible, to allow the Board to rule on the motion in advance of a
scheduled hearing date.
(2) With each motion for summary relief, there shall be served and
filed a separate document titled Statement of Uncontested Facts, which
shall contain in separately numbered paragraphs all of the material
facts upon which the moving party bases its motion and as to which it
contends there is no genuine issue. This statement shall include
references to the supporting affidavits or declarations and documents,
if any, and to the 6101.4 (Rule 4) appeal file exhibits relied upon to
support such statement.
(3) An opposing party shall file with its opposition (or cross-
motion) a separate document titled Statement of Genuine Issues. This
document shall identify, by reference to specific paragraph numbers in
the moving party's Statement of Uncontested Facts, those facts as to
which the opposing party claims there is a genuine issue necessary to
be litigated. An opposing party shall state the precise nature of its
disagreement and give its version of the facts. This statement shall
include references to the supporting affidavits or declarations and
documents, if any, and to the 6101.4 (Rule 4) appeal file exhibits that
demonstrate the existence of a genuine dispute. An opposing party may
also file a Statement of Uncontested Facts as to any relevant matters
not covered by the moving party's statement.
(4) When a motion for summary relief is made and supported as
provided in 6101.8 (Rule 8), an opposing party may not rest upon the
mere allegations or denials of its pleadings. The opposing party's
response, by affidavits or as otherwise provided by 6101.8 (Rule 8),
must set forth specific facts showing that there is a genuine issue of
material fact. If the opposing party does not so respond, summary
relief, if appropriate, shall be entered against that party. For good
cause shown, if an opposing party cannot present facts essential to
justify its opposition, the Board may defer ruling on the motion to
permit affidavits to be obtained or depositions to be taken or other
discovery to be conducted, or may make such other order as is just.
(h) Effect of pending motion. Except as the rules of this chpater
provide or the Board may order, a pending motion shall not excuse the
parties from proceeding with the case in accordance with the rules of
this chapter and the orders and directions of the Board.
6101.9 Record of Board proceedings; review and copying [Rule 9].
(a) Composition of the record for decision. The record upon which
any decision of the Board will be rendered consists of:
(1) The notice of appeal, petition, or application;
(2) Appeal file exhibits other than those as to which an objection
has been sustained;
(3) Hearing exhibits other than those as to which an objection has
been sustained;
(4) Pleadings;
(5) Motions and responses thereto;
(6) Memoranda, orders, rulings, and directions to the parties
issued by the Board;
(7) Documents and other tangible things admitted in evidence by the
Board;
(8) Written transcripts or electronic recordings of proceedings;
(9) Stipulations and admissions by the parties;
(10) Depositions, or parts thereof, received in evidence;
(11) Written interrogatories and responses received in evidence;
(12) Briefs and memoranda of law; and
(13) Anything else that the Board may designate. All other papers
and documents 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.
(b) Enlargement of the record. The Board may at any time require or
permit enlargement of the record with additional evidence and briefs.
It may reopen the record to receive additional evidence and oral
argument at a hearing.
(c) Protected and in camera submissions. (1) A party may by motion
request that the Board receive and 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. The moving
party must state the grounds for such limited access. The Board may
also determine on its own
[[Page 36800]]
initiative to hold materials under such conditions. The manner in which
such materials will be held, the persons who shall have access to them,
and the conditions (if any) under which such access will be allowed
will be specified in an order of the Board. If the materials are held
under such an order, they will be part of the record of the case. If
the Board denies the motion, the materials may be returned to the party
that submitted them. If the moving party asks, however, that the
materials be placed in the administrative record, in camera, for the
purpose of possible later review of the Board's denial, the Board will
comply with the request.
(2) A party may also ask, or the Board may direct, that testimony
be received under protective order or in camera. The procedures under
paragraph (c)(1) of this section shall be followed with respect to such
request or direction.
(d) Review and copying. Except for any part thereof that is subject
to a protective order or deemed an in camera submission, the record in
a Board proceeding shall be made available for review at the Office of
the Clerk of the Board during the Board's normal working hours, as soon
as practicable given the demands on the Board of processing the subject
case and other cases. If a request is made for copies of documents, and
if making such copies involves more than minimal costs to the Board,
reimbursement will be required. If a request is made for a copy of a
transcript which was prepared pursuant to a contract with the Board,
the fee charged by the Board for a copy of the transcript will be at
the rate established by the contract. When required, the Office of the
Clerk will certify copies of papers and documents as a true record of
the Board. Except as provided in 6101.17 and 6101.32 (Rules 17 and 32),
the Office of the Clerk will not release any part of the record in its
possession to anyone.
6101.10 Admissibility and weight of evidence [Rule 10].
(a) Admissibility. In general, any relevant and material evidence
will be admitted into the record. The Board may exclude evidence to
avoid unfair prejudice, confusion of the issues, undue delay, waste of
time, or needless presentation of cumulative evidence. Hearsay evidence
is admissible unless the Board finds it unreliable or untrustworthy. As
a general matter, and subject to the other provisions of 6101.10 (Rule
10), the Board will look to the Federal Rules of Evidence for guidance
when it makes evidentiary rulings.
(b) Weight and credibility. The Board will determine the weight to
be given to evidence and the credibility to be accorded witnesses.
6101.11 Conferences; conference memorandum [Rule 11].
(a) Conferences. The Board may convene the parties in conference,
either by telephone or in person, for any purpose. The conference may
be stenographically or electronically recorded, at the discretion of
the Board. Matters to be considered and actions to be taken at a
conference may include:
(1) Simplifying, clarifying, or severing the issues;
(2) Stipulations, admissions, agreements, and rulings to govern the
admissibility of evidence, understandings on matters already of record,
or other similar means of avoiding unnecessary proof;
(3) Plans, schedules, and rulings to facilitate discovery;
(4) Limiting the number of witnesses and other means of avoiding
cumulative evidence;
(5) Stipulations or agreements disposing of matters in dispute; or
(6) Ways to expedite disposition of the case or to facilitate
settlement of the dispute, including, if the parties and the Board
agree, the use of alternative dispute resolution techniques, as
provided in 6101.51 and 6101.54 (Rules 51 and 54).
(b) Conference memorandum. The Board may issue a memorandum of the
results of a conference, an order reflecting any actions taken, or
both. A memorandum or order so issued shall be placed in the record of
the case and sent to each party. Each party shall have 5 working days
after receipt of a memorandum to object to the substance of it.
6101.12 Suspensions and dismissals [Rule 12].
(a) Suspension of proceedings to obtain contracting officer's
decision. The Board may in its discretion suspend proceedings to permit
a contracting officer to issue a decision when an appeal has been taken
from the contracting officer's alleged failure to render a timely
decision.
(b) Suspension for other cause. The Board may suspend proceedings
in a case for good cause, such as to permit the parties to finalize a
settlement. The order suspending proceedings will prescribe the
duration of the suspension or the conditions on which it will expire.
The order may also prescribe actions to be taken by the parties during
the period of suspension or following its expiration.
(c) Dismissal, generally. A case may be dismissed by the Board on
motion of either party. A case may also be dismissed for reasons cited
by the Board in a show cause order to which a response has been
permitted. Every dismissal shall be with prejudice to reinstatement of
the case except as specified in paragraph (d) of this section.
(d) Dismissal without prejudice. When circumstances beyond the
control of the Board prevent the continuation of proceedings in a case,
the Board may, in lieu of issuing an order suspending proceedings,
dismiss the case without prejudice to reinstatement within 180 calendar
days after the date of the dismissal. When a case has been dismissed
without prejudice and neither party has timely requested that the case
be reinstated, the case shall be deemed to be dismissed with prejudice
on the last day such a request could have been made.
(e) Issuance of order. The panel chair alone may issue an order
suspending proceedings. An order of dismissal shall be issued by the
panel of judges to which the case has been assigned if the motion is
contested or if the Board is acting consequent to its own show cause
order. An order of dismissal may be issued by the panel chair alone if
the motion to dismiss is not contested.
6101.13 General provisions governing discovery [Rule 13].
(a) Discovery methods. The parties are encouraged to exchange
documents and other information voluntarily. In addition, the parties
may obtain discovery by one or more of the following methods:
(1) Depositions upon oral examination or written questions;
(2) Written interrogatories;
(3) Requests for production of documents, electronic records, or
other tangible or intangible things; and
(4) Requests for admission.
(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 involved in the
pending case, whether it relates to the claim or defense of a party,
including the existence, description, nature, custody, condition, and
location of any books, documents, electronic records, or other tangible
or intangible 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
[[Page 36801]]
reasonably calculated to lead to the discovery of admissible evidence.
(c) Discovery limits. The Board may limit the frequency or extent
of use of the discovery methods set forth in 6101.13 (Rule 13) if it
determines that:
(1) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity by
discovery in the case to obtain the information sought; or
(3) The discovery is unduly burdensome and expensive, taking into
account the needs of the case, the amount in controversy, limitations
on the parties' resources, and the importance of the issues at stake.
(d) Conduct of discovery. Parties may engage in discovery only to
the extent the Board enters an order which either incorporates an
agreed plan and schedule acceptable to the Board or otherwise permits
such discovery as the moving party can demonstrate is required for the
expeditious, fair, and reasonable resolution of the case.
(e) Discovery conference. 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 the issues for
discovery purposes; establish a plan and schedule for discovery; set
limitations on discovery, if any; and determine such other matters as
are necessary for the proper management of discovery. The Board may
include in the conference such other matters as it deems appropriate in
accordance with 6101.11 (Rule 11).
(f) Discovery objections. (1) In connection with any discovery
procedure, the Board, on motion or on its own initiative, may make any
order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including, but not limited to, one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery be had only on specified terms and
conditions, including a designation of the time and place, or that the
scope of discovery be limited to certain matters;
(iii) That the discovery be conducted with no one present except
persons designated by the Board; and
(iv) That confidential information not be disclosed or that it be
disclosed only in a designated way.
(2) Unless otherwise ordered by the Board, any objection to a
discovery request must be filed within 15 calendar days after receipt.
A party shall fully respond to any discovery request to which it does
not file a timely objection. The parties are required to make a good
faith effort to resolve objections to discovery requests informally.
(3) A party receiving an objection to a discovery request, or a
party which believes that another party's response to a discovery
request is incomplete or entirely absent, may file a motion to compel a
response, but such a motion must include a representation that the
moving party has tried in good faith, prior to filing the motion, to
resolve the matter informally. The motion to compel shall include a
copy of each discovery request at issue and the response, if any.
(g) Failure to make or cooperate in discovery. If a party fails to
appear for a deposition, after being served with a proper notice; to
serve answers or objections to interrogatories submitted under 6101.14
(Rule 14), after proper service of interrogatories; or to serve a
written response to a request for inspection, production, and copying
of any documents, electronic records, and things under 6101.14 (Rule
14), the party seeking discovery may move the Board to impose
appropriate sanctions under 6101.33 (Rule 33).
(h) Subpoenas. A party may request the issuance of a subpoena in
aid of discovery under the provisions of 6101.16 (Rule 16).
6101.14 Interrogatories to parties; requests for admission; requests
for production [Rule 14].
Upon order from the Board permitting such discovery, a party may
serve on another party written interrogatories, requests for admission,
and requests for production.
(a) Written interrogatories. Written interrogatories shall be
answered separately in writing, signed under oath or accompanied by a
declaration under penalty of perjury, and answered within 30 calendar
days after service. Objections shall be filed within the time limits
set forth in 6101.13(f)(2) (Rule 13(f)(2)).
(b) 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, or from an
examination, audit, or inspection of such business records, including a
compilation, abstract, or summary thereof, 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 records from which the
answer may be derived or ascertained and to afford to the party serving
the interrogatory reasonable opportunity to examine, audit, or inspect
such records and to make copies, compilations, abstracts, or summaries
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 records from which the answer may be ascertained.
(c) Written requests for admission. A written request for the
admission of the truth of any matter, within the proper scope of
discovery, that relates to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents
or electronic records, is to be answered in writing and signed within
30 calendar days after service. Objections shall be filed within the
time limits set forth in 6101.13(f)(2) (Rule 13(f)(2)). Otherwise, the
matter therein may be deemed to be admitted. 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.
Any admission made by a party under this paragraph (c) is for the
purpose of the pending action only and is not an admission for any
other purpose, nor may it be used against the party in any other
proceeding.
(d) Written requests for production. A written request for the
production, inspection, and copying of any documents, electronic
records, or things shall be answered within 30 calendar days after
service. Objections shall be filed within the time limits set forth in
6101.13(f)(2) (Rule 13(f)(2)).
(e) Change in time for response. Upon request of a party, or on its
own initiative, the Board may prescribe a period of time other than
that specified in 6101.14 (Rule 14).
(f) Responses. A party that has responded to written
interrogatories, requests for admission, or requests for production of
documents, electronic records, or things, upon becoming aware of
deficiencies or inaccuracies in its original responses, or upon
acquiring additional information or additional documents, electronic
records, or things 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, electronic records, and things as are necessary
to give a complete and accurate response to the request.
[[Page 36802]]
6101.15 Depositions [Rule 15].
(a) When depositions may be taken. Upon request of a party, the
Board may order the taking of testimony of any person by deposition
upon oral examination or written questions before an officer authorized
to administer oaths at the place of examination. Attendance of
witnesses may be compelled by subpoena as provided in 6101.16 (Rule
16), and the Board may upon motion order that the testimony at a
deposition be recorded by other than stenographic means, in which event
the order may designate the manner of recording, preserving, and filing
the deposition and may include other provisions to ensure that the
recorded testimony will be accurate and trustworthy. In addition, if
the Board orders deposition testimony to be recorded by other than
stenographic means, the Board will also determine who shall bear the
burden of the cost of such recording, and shall permit the non-moving
party to arrange to have a stenographic transcription made at its own
expense.
(b) Depositions: time; place; manner of taking. The time, place,
and manner of taking depositions, including the taking of depositions
by telephone, shall be as agreed upon by the parties or, failing such
agreement, as ordered by the Board. A deposition taken by telephone is
taken at the place where the deponent is to answer questions.
(c) Use of depositions. At a hearing on the merits or upon a motion
or interlocutory proceeding, any part or all of a deposition, so far as
admissible and as though the witness were then present and testifying,
may be used against a party who was present or represented at the
taking of the deposition or who had reasonable notice thereof, in
accordance with any of the following provisions:
(1) Any deposition may be used by a party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing agent, or a
person designated to testify on behalf of a corporation, partnership,
association, or government agency which is a party may be used by an
adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be
used by a party for any purpose in its own behalf if the Board finds
that:
(i) The witness is dead;
(ii) The attendance of the witness at the place of hearing cannot
be reasonably obtained, unless it appears that the absence of the
witness was procured by the party offering the deposition;
(iii) The witness is unable to attend or testify because of
illness, infirmity, age, or imprisonment;
(iv) The party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(v) Upon request and notice, exceptional circumstances exist which
make it desirable in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
(4) If only 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.
(d) Depositions pending appeal from a decision of the Board. If an
appeal has been taken from a decision of the Board, or before the
taking of an appeal if the time therefor has not expired, the Board may
allow the taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings before the Board.
In such case, the party that desires to perpetuate testimony may make a
motion before the Board for leave to take the depositions as if the
action were pending before the Board. The motion shall show:
(1) The names and addresses of the persons to be examined and the
substance of the testimony which the moving party expects to elicit
from each; and
(2) The reasons for perpetuating the testimony of the persons
named. If the Board finds that the perpetuation of testimony is proper
to avoid a failure or a delay of justice, it may order the depositions
to be taken and may make orders of the character provided for in
6101.13 (Rule 13) and in 6101.15 (Rule 15). Thereupon, the depositions
may be taken and used as prescribed in the rules of this chapter for
depositions taken in actions pending before the Board. Upon request and
for good cause shown, a judge may issue or obtain a subpoena, in
accordance with 6101.16 (Rule 16), for the purpose of perpetuating
testimony by deposition during the pendency of an appeal from a Board
decision.
6101.16 Subpoenas [Rule 16].
(a) Voluntary cooperation in lieu of subpoena. Each party is
expected to:
(1) Cooperate by making available witnesses and evidence under its
control, when requested by another party, without issuance of a
subpoena; and
(2) Secure the cooperation of third-party witnesses and production
of evidence by third parties, when practicable, without issuance of a
subpoena.
(b) General. Upon the written request of any party filed with the
Office of the Clerk of the Board, or upon the initiative of a judge, a
subpoena may be issued that commands the person to whom it is directed
to:
(1) Attend and give testimony at a deposition in a city or county
where that person resides or is employed or transacts business in
person, or at another location convenient to that person that is
specifically determined by the Board;
(2) Attend and give testimony at a hearing; and
(3) Produce the books, papers, documents, electronic records, and
other tangible and intangible things designated in the subpoena.
(c) Request for subpoena. A request for a subpoena shall contain
the name of the assigned judge, the name of the case, and the docket
number of the case. It shall state the reasonable scope and general
relevance to the case of the testimony and of any evidence sought. A
request for a subpoena shall be filed at least 15 calendar days before
the testimony of a witness or evidence is to be provided. The Board
may, in its discretion, honor requests for subpoenas not made within
this time limitation.
(d) Form; issuance. (1) Every subpoena shall be in the form
specified in the Appendix to the rules of this chapter and this form
shall not be altered. Unless a party has the approval of a judge to
submit a subpoena in blank (in whole or in part), a party shall submit
to the judge a completed subpoena (save the ``Return on Service''
portion). In issuing a subpoena to a requesting party, the judge shall
sign the subpoena. The party to whom the subpoena is issued shall
complete the subpoena before service.
(2) If the person subpoenaed is located in a foreign country, a
letter rogatory or a subpoena may be issued and served under the
circumstances and in the manner provided in 28 U.S.C. 1781-1784.
(e) Service. (1) The party requesting a subpoena shall arrange for
service. Service shall be made as soon as practicable after the
subpoena has been issued.
(2) A subpoena requiring the attendance of a witness at a
deposition or hearing may be served at any place. A subpoena may be
served by a United States marshal or deputy marshal, or by any other
person who is not a party and not less than 18 years of age. Service of
a subpoena upon a person named therein shall be made by personal
[[Page 36803]]
delivery of a copy to that person and tender of the fees for one day's
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.
(f) Proof of service. The person serving the subpoena shall make
proof of service thereof to the Board promptly and in any event before
the date on which the person served must respond to the subpoena. Proof
of service shall be made by completion and execution and submission to
the Board of the ``Return on Service'' portion of a duplicate copy of
the subpoena issued by a judge. If service is made by a person other
than a United States marshal or his deputy, that person shall make an
affidavit as proof by executing the ``Return on Service'' in the
presence of a notary.
(g) Motion to quash or to modify. Upon written motion by the person
subpoenaed or by a party, made within 14 calendar days after service,
but in any event not later than the time specified in the subpoena for
compliance, the Board may quash or modify the subpoena if it is
unreasonable and oppressive or for other good cause shown, or require
the party in whose behalf the subpoena was issued to advance the
reasonable cost of producing subpoenaed evidence. Where circumstances
require, the Board may act upon such a motion at any time after a copy
has been served upon opposing parties.
(h) Contumacy or refusal to obey a subpoena. In a 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 shall 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.
6101.17 Exhibits [Rule 17].
(a) Marking of exhibits. (1) Documents and other tangible things
offered in evidence by a party will be marked for identification by the
Board during the hearing or, if ordered by the Board, will be added to
the appeal file as exhibits before the commencement of the hearing in
order, for example, to eliminate the introduction of additional
exhibits at the hearing.
(2) If a party elects to proceed on the record without a hearing
pursuant to 6101.19 (Rule 19), documentary evidence submitted by that
party will be numbered consecutively as appeal file exhibits.
(b) Copies as exhibits. Except upon objection sustained by the
Board for good cause shown, copies of documents may be offered and
received into evidence as exhibits, provided 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
directs, a 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 into
evidence as an exhibit, an accurate copy may be substituted in evidence
for the original by leave of the Board at any time. The Board may
require a party to provide either copies of electronic records or
printed versions of electronic records to be included in the record.
(c) Withdrawal of exhibits and other items. With the permission of
the Board, a party that submits an exhibit or any other item may
withdraw the exhibit or item from the record during the course of a
proceeding.
(d) Disposition of physical exhibits. Any physical (as opposed to
documentary) exhibit may be disposed of by the Board at any time more
than 90 calendar days after the expiration of the period for appeal
from the decision of the Board.
6101.18 Election of hearing or record submission [Rule 18].
Each party shall inform the Board, in writing, whether it elects a
hearing or submission of its case on the record pursuant to 6101.19
(Rule 19). Such an election may be filed at any time unless a time for
filing is prescribed by the Board. In most cases, the Board will
require the parties to make an election soon after discovery closes. A
party electing to submit its case on the record pursuant to 6101.19
(Rule 19) may also elect to appear at a hearing solely to cross-examine
any witness presented by the opposing party, provided that the Board is
informed of that party's intention within 10 working days of its
receipt of notice of the election of hearing by the other party. If a
hearing is elected, the election should state where and when the
electing party desires the hearing to be held and should explain the
reasons for its choices. A hearing will be held if either party elects
one. If a party's decision whether to elect a hearing is dependent upon
the intentions of the other party, it shall consult with the other
party before filing its election. If there is to be a hearing, it will
be held at a time and place prescribed by the Board after consultation
with the party or parties electing the hearing. The record submissions
from a party that has elected to submit its case on the record shall be
due as provided in 6101.19 (Rule 19).
6101.19 Submission on the record without a hearing [Rule 19].
(a) Submission on the record. A party may elect to submit its case
on the record without a hearing. A party submitting its case on the
record may include in its written record submission or submissions:
(1) Any relevant documents or other tangible things it wishes the
Board to admit into evidence;
(2) Affidavits, depositions, and other discovery materials that set
forth relevant evidence; and
(3) A brief or memorandum of law. The Board may require the
submission of additional evidence or briefs and may order oral argument
in a case submitted on the record.
(b) Time for submission. (1) If both parties have elected to submit
the case on the record, the Board will issue an order prescribing the
time for initial and, if appropriate, reply record submissions.
(2) If one party has elected a hearing and the other party has
elected to submit its case on the record, the party submitting on the
record shall make its initial submission no later than the commencement
of the hearing or at an earlier date if the Board so orders, and a
further submission in the form of a brief at the time for submission of
posthearing briefs.
(c) Objections to evidence. Unless otherwise directed by the Board,
objections to evidence (other than the appeal file and supplements
thereto) in a record submission may be made within 10 working days
after the filing of the submission, and replies to such objections, if
any, may be made within 10 working days after the filing of the
objection. The Board may rule on such objections either before it
issues its decision or at the time it issues its decision.
6101.20 Hearings: scheduling; notice; unexcused absences [Rule 20].
(a) Scheduling of hearings. Hearings will be held at the time and
place ordered by the Board and will be scheduled at the discretion of
the Board. In scheduling hearings, the Board will consider the
requirements of the rules of this chapter, the need for orderly
management of the Board's caseload, and the stated desires of the
parties as expressed in their elections filed
[[Page 36804]]
pursuant to 6101.18 (Rule 18) or otherwise. The time or place for
hearing may be changed by the Board at any time.
(b) Notice of hearing. Notice of hearing will be by written order
of the Board. Notice of changes in the hearing schedule will also be by
written order when practicable but may be oral in exigent
circumstances. Except as the Board may otherwise order, each party that
plans to attend the hearing shall, within 10 working days of receipt of
a written notice of hearing or any notice of a change in hearing
schedule stating that an acknowledgment is required, notify the Board
in writing that it will attend the hearing. If a party fails to
acknowledge a notice of hearing as required, the Board will deem the
party to have consented to the time and place of hearing.
(c) Unexcused absence from hearing. In the event of the unexcused
absence of a party from a hearing, the hearing will proceed, and the
absent party will be deemed to have elected to submit its case on the
record pursuant to 6101.19 (Rule 19).
6101.21 Hearing procedures [Rule 21].
(a) Nature and conduct of hearings. (1) Except when necessary to
maintain the confidentiality of protected material or testimony, or
material submitted in camera, all hearings on the merits of cases shall
be open to the public and conducted insofar as is convenient in regular
hearing rooms. All other acts or proceedings may be done or conducted
by the Board either in its offices or at other places.
(2) When cases involving common questions of law or fact are
pending, the Board may order a joint hearing of any or all of the
matters, claims, or issues in the cases.
(3) The Board may order a separate hearing of any matters, claims,
or issues pending in any case. The Board may enter appropriate orders
or decisions with respect to any matters, claims, or issues that are
heard separately.
(4) Upon the agreement of the parties or upon its own initiative,
the Board may notify the parties before a hearing begins that it will
limit the hearing to those issues of law and fact relating to the right
of a party to recover, reserving the determination of the amount of
recovery, if any, for other proceedings.
(5) Before the hearing begins, the Board may prescribe a time
within which the presentation of evidence must be concluded, and may
establish time limits on the direct and cross-examination of witnesses.
(6) Upon the request of either party or if the Board deems it
advisable, the Board will order witnesses to be excluded from the
hearing room so they cannot hear the testimony of other witnesses. The
Board will not exclude a party who is an individual, the designated
representative of a party which is an entity, a person whose presence
is essential to the presentation of a party's case, or someone
authorized by statute to be present.
(b) Continuances; change of location. Whenever practicable, a
hearing will be conducted in one continuous session or a series of
consecutive sessions at a single location. However, the Board may at
any time continue the hearing to a future date and may arrange to
conduct the hearing in more than one location. The Board may also
continue a hearing to permit a party to conduct additional discovery on
conditions established by the Board. In exercising its discretion to
continue a hearing or to change its location, the Board will give due
consideration to the same elements (set forth in 6101.20(a) (Rule
20(a))) that it considers in scheduling hearings.
(c) 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 whomever it wishes to call
and whatever it wishes to use is available at the hearing. If a witness
cannot be made available at the site of the hearing, the party who
wishes to call the witness may file a motion that the witness be
allowed to testify remotely, whether by telephone, video conference, or
some other method.
(d) Enlargement of the record. The Board may at any time during the
conduct of a hearing require evidence or argument in addition to that
put forth by the parties.
(e) Examination of witnesses. Witnesses before the Board will
testify under oath or affirmation. A party or the Board may obtain an
answer from any witness to any question that is not the subject of an
objection that the Board sustains.
(f) Refusal to be sworn. If a person called as a witness refuses to
be sworn or to affirm before testifying, the Board may direct that
witness to be sworn or to affirm and, in the event of continued
refusal, the Board may permit the taking of testimony without oath or
affirmation. If the Board permits a witness to testify without oath or
affirmation, the Board will explain that statements made during the
hearing are subject to provisions of federal law imposing penalties,
including criminal penalties, for knowingly making false
representations. Alternatively, the Board may refuse to permit the
examination of that witness, in which event it may state for the record
the inferences it draws from the witness's refusal to testify under
oath or affirmation. Alternatively, the Board may issue a subpoena to
compel that witness to testify under oath or affirmation and, in the
event of the witness's continued refusal to be sworn or to affirm, may
seek enforcement of that subpoena pursuant to 6101.16(h) (Rule 16(h)).
(g) Refusal to answer. If a witness refuses to answer a question
put to him in the course of his testimony, the Board may direct that
witness to answer and, in the event of continued refusal, the Board may
state for the record the inferences it draws from the refusal to
answer. Alternatively, the Board may issue a subpoena to compel that
witness to testify and, in the event of the witness's continued refusal
to testify, may seek enforcement of that subpoena pursuant to
6101.16(h) (Rule 16(h)).
(h) Issues not raised by 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 if it is within
the proper scope of the case. If such evidence is admitted, the Board
may grant the objecting party a continuance to enable it to meet such
evidence. If such evidence is admitted, the pleadings may be amended to
conform to the evidence, as provided by 6101.6(f) (Rule 6(f)).
(i) Delay by 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, during the hearing, 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.
6101.22 Transcripts of proceedings; corrections [Rule 22].
(a)Transcripts. Except as the Board may otherwise order, all
hearings, other than those under the small claims procedure prescribed
by 6101.52 (Rule 52), will be stenographically or electronically
recorded and transcribed. Any other hearing or conference will be
recorded or transcribed only by order of the Board. Each party is
responsible for obtaining its own copy of the transcript if one is
prepared.
(b) Corrections. Corrections to an official transcript will be made
only when they involve errors affecting its substance. The Board may
order such corrections on motion or on its own
[[Page 36805]]
initiative, and only after notice to the parties giving them
opportunity to object. Such corrections will ordinarily be made either
by hand with pen and ink or by the appending of an errata sheet, but
when no other method of correction is practicable the Board may require
the reporter to provide substitute or additional pages.
6101.23 Briefs and memoranda of law [Rule 23].
(a) Form and content of briefs and memoranda of law. Briefs and
memoranda of law shall be on standard size 8-1/2 by 11-inch paper. They
shall be double-spaced with text in the body and in the footnotes no
smaller than 12 point. Otherwise, no particular form or organization is
prescribed. Posthearing briefs should, at a minimum, succinctly set
forth:
(1) The facts of the case with citations to those places in the
record where supporting evidence can be found; and
(2) Argument with citations to supporting legal authorities.
(b) Submission of posthearing briefs. Except as the Board may
otherwise order, posthearing briefs shall be filed 30 calendar days
after the Board's receipt of the transcript; reply briefs, if filed,
shall be filed 15 calendar days after the parties' receipt of the
initial posthearing briefs. The Board will notify the parties of the
date of its receipt of the transcript. In the event one party has
elected a hearing and the other party has elected to submit its case on
the record pursuant to 6101.19 (Rule 19), the filing of record
submissions in the form of briefs shall be governed by 6101.23 (Rule
23).
6101.24 Closing the record [Rule 24].
(a) Closing of the record. Except as the Board may otherwise order,
no proof shall be received in evidence after a hearing is completed or,
in cases submitted on the record without a hearing, after notice by the
Board to the parties that the record is closed and that the case is
ready for decision.
(b) Notice that the case is ready for decision. The Board will give
written notice to the parties when the record is closed and the case is
ready for decision.
6101.25 Decisions; settlements [Rule 25].
(a) Decisions. (1) Except as provided in 6101.52 (Rule 52) (small
claims procedure), decisions of the Board will be made in writing upon
the record as prescribed in 6101.9 (Rule 9). The Board may also take
notice of any fact or law of which a court could take judicial notice.
Each of the parties will be furnished a copy of the decision certified
by the Office of the Clerk of the Board, and the date of the receipt
thereof by each party will be established in the record.
(2) In its decision, the Board may reserve determination of the
amount of recovery for other proceedings, regardless of whether there
is evidence in the record concerning the amount of recovery, provided
the Board notified the parties before the hearing began that its
decision would not address the amount of any recovery. In any instance
in which the Board has reserved its determination of the amount of
recovery for other proceedings, as provided in 6101.21(a)(4) (Rule
21(a)(4)), its decision on the question of the right to recover shall
be final so far as proceedings at the Board are concerned, subject to
the provisions of 6101.26 through 6101.28 (Rules 26 through 28).
(b) Settlements. When an appeal or application is settled, the
parties may file with the Board a stipulation setting forth the amount
of the award. The Board will adopt the parties' stipulation by
decision, provided the stipulation states the parties will not seek
reconsideration of, or relief from, the Board's decision, and they will
not appeal the decision. The Board's decision under this paragraph (b)
is an adjudication of the case on the merits.
6101.26 Reconsideration; amendment of decisions; new hearings [Rule
26].
(a) Grounds. Reconsideration may be granted, a decision or order
may be altered or amended, or a new hearing may be granted, for any of
the reasons stated in 6101.27(a) (Rule 27(a)) and the reasons
established by the rules of common law or equity applicable as between
private parties in the courts of the United States. Reconsideration or
a new hearing may be granted on all or any of the issues. Arguments
already made and reinterpretations of old evidence are not sufficient
grounds for granting reconsideration, for altering or amending a
decision, or for granting a new hearing. Upon granting a motion for a
new hearing, the Board will take additional testimony and, if a
decision has been issued, either amend its findings of fact and
conclusions or law or issue a new decision.
(b) Procedure. Any motion under 6101.26 (Rule 26) shall comply with
the provisions of 6101.8 (Rule 8) and shall set forth:
(1) The reason or reasons why the Board should consider the motion;
and
(2) The relief sought and the grounds therefor. If the Board
concludes that the reasons asserted for its consideration of the motion
are insufficient, it may deny the motion without considering the relief
sought and the grounds asserted therefor. If the Board grants the
motion, it will issue an appropriate order which may include directions
to the parties for further proceedings.
(c) Time for filing. In an appeal or petition, a motion for
reconsideration, to alter or amend a decision or order, or for a new
hearing shall be filed within 30 calendar days after the date the
moving party receives the decision or order. In an application, such a
motion shall be filed within 7 working days after the date the moving
party receives the decision or order. Not later than 30 calendar days
after issuance of a decision or order, the Board may, on its own
initiative, order reconsideration or a new hearing or alter or amend a
decision or order for any reason that would justify such action on
motion of a party.
(d) Effect of motion. A motion pending under 6101.26 (Rule 26) does
not affect the finality of a decision or suspend its operation.
6101.27 Relief from decision or order [Rule 27].
(a) Grounds. The Board may relieve a party from the operation of a
final decision or order for any of the following reasons:
(1) Newly discovered evidence which could not have been earlier
discovered, even through due diligence;
(2) Justifiable or excusable mistake, inadvertence, surprise, or
neglect;
(3) Fraud, misrepresentation, or other misconduct of an adverse
party;
(4) The decision has been satisfied, released, or discharged, or a
prior decision upon which it is based has been reversed or otherwise
vacated, and it is no longer equitable that the decision should have
prospective application;
(5) The decision is void, whether for lack of jurisdiction or
otherwise; or
(6) Any other ground justifying relief from the operation of the
decision or order.
(b) Procedure. Any motion under 6101.27 (Rule 27) shall comply with
the provisions of 6101.8 and 6101.26(b) (Rules 8 and 26(b)), and will
be considered and ruled upon by the Board as provided in 6101.26 (Rule
26).
(c) Time for filing. Any motion under 6101.27 (Rule 27) shall be
filed as soon as practicable after the discovery of the reasons
therefor, but in any event no later than 120 calendar days after the
date of the moving party's receipt of the decision or order from which
relief is sought. In considering the timeliness of a motion filed under
6101.27 (Rule 27), the Board may consider when the
[[Page 36806]]
grounds therefor should reasonably have been known to the moving party.
(d) Effect of motion. A motion pending under 6101.27 (Rule 27) does
not affect the finality of a decision or suspend its operation.
6101.28 Full Board consideration [Rule 28].
(a) Requests by parties. (1) A request for full Board consideration
is not favored. Ordinarily, full Board consideration will be ordered
only when it is necessary to secure or maintain uniformity of Board
decisions, or the matter to be referred is one of exceptional
importance.
(2) A request for full Board consideration may be made by either
party on any date which is both after the panel to which the case is
assigned has issued its decision on a motion for reconsideration or
relief from decision and within 10 working days after the date on which
that party receives that decision. Any party making a request for full
Board consideration shall state concisely in the motion the precise
grounds on which the request is based.
(3) Promptly after such a request is made, a ballot will be taken
among the judges; if a majority of them favors the request, the request
will be granted. The result of the vote will promptly be reported by
the Board through an order. The concurring or dissenting view of any
judge who wishes to express such a view may issue at the time of such
order or at any time thereafter.
(b) Initiation by Board. A majority of the judges may initiate full
Board consideration of a matter at any time while the case is before
the Board, no later than the last date on which any party may file a
motion for reconsideration or relief from decision or order, or if such
a motion is filed by a party, within ten days after a panel has
resolved it. The parties will be informed promptly, through an order,
of the matter to be considered by the full Board. The concurring or
dissenting view of any judge who wishes to express such a view may
issue at the time of such order or at any time thereafter.
(c) Decisions. If full Board consideration is granted at the
request of a party or initiated by the Board, a vote shall be taken
promptly on the pending matter. After this vote is taken, the Board
shall promptly, by order, issue its determination, which shall include
the concurring or dissenting view of any judge who wishes to express
such a view.
(d) Effect of motion. A pending request for full Board
consideration, whether initiated by a party or by the Board, does not
affect the finality of a decision or suspend its operation.
6101.29 Clerical mistakes; harmless error [Rule 29].
(a) Clerical mistakes. Clerical mistakes in decisions, orders, or
other parts of the record, and errors arising therein through oversight
or inadvertence, may be corrected by the Board at any time on its own
initiative or upon motion of a party on such terms, if any, as the
Board may prescribe. During the pendency of an appeal to another
tribunal, such mistakes may be corrected only with leave of the
appellate tribunal.
(b) Harmless error. No error in the admission or exclusion of
evidence, and no error or defect in any ruling, order, or decision of
the Board, and no other error in anything done or not done by the Board
will be a ground for granting a new hearing or for vacating,
reconsidering, modifying, or otherwise disturbing a decision or order
of the Board unless refusal to act upon such error will prejudice a
party or work a substantial injustice. At every stage of the
proceedings the Board will disregard any error or defect that does not
affect the substantial rights of the parties.
6101.30 Award of fees and other expenses [Rule 30].
(a) Applications for fees and other expenses. An appropriate party
in a proceeding before the Board may apply for an award of fees and
other expenses, including if applicable an award of attorney fees,
under the Equal Access to Justice Act, 5 U.S.C. 504, or any other
provision that may entitle that party to such an award, subsequent to
the Board's decision in the proceeding. Until it issues a decision, the
Board will not consider a request for fees and other expenses.
(b) Time for filing. A party seeking an award may submit an
application no later than 30 calendar days after a final disposition in
the underlying appeal. The Board's decision becomes final (for purposes
of 6101.30 (Rule 30) when it is not appealed to the United States Court
of Appeals for the Federal Circuit within the time permitted for appeal
or, if the decision is appealed, when the time for petitioning the
Supreme Court for certiorari has expired.
(c) Application requirements. An application for fees and other
expenses shall:
(1) Identify the applicant and the appeal for which fees and other
expenses are sought, and the amount being sought;
(2) Establish that all applicable prerequisites for an award have
been satisfied, including a succinct statement of why the applicant is
eligible for an award of fees and other expenses;
(3) Be accompanied by an exhibit fully documenting any fees or
expenses being sought, including the cost of any study, analysis,
engineering report, test, project, or similar matter. The date and a
description of all services rendered or costs incurred shall be
submitted for each professional firm or individual whose services are
covered by the application, showing the hours spent in connection with
the proceeding by each individual, a description of the particular
services performed by specific date, the rate at which each fee has
been computed, any expenses for which reimbursement is sought, and the
total amount paid or payable by the applicant. Except in exceptional
circumstances, all exhibits supporting applications for fees or
expenses sought shall be publicly available. The Board may require the
applicant to provide vouchers, receipts, or other substantiation for
any fees and other expenses claimed and/or to submit to an audit by the
Government of the claimed fees and other expenses;
(4) Be signed by the applicant or an authorized officer, employee,
or attorney of the applicant;
(5) Contain or be accompanied by a written verification under oath
or affirmation, or declaration under penalty of perjury, that the
information provided in the application is true and correct;
(6) If the applicant asserts that it is a qualifying small business
concern, contain evidence thereof; and
(7) If the application requests reimbursement of attorney fees that
exceed the statutory rate, explain why an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies such fees.
(d) Proceedings. (1) Within 30 calendar days after receipt by the
respondent of an application under 6101.30 (Rule 30), the respondent
may file an answer. The answer shall explain in detail any objections
to the award requested and set out the legal and factual bases
supporting the respondent's position. If the respondent contends that
any fees for consultants or expert witnesses for which reimbursement is
sought in the application exceed the highest rate of compensation for
expert witnesses paid by the agency, the respondent shall include in
the answer evidence of such highest rate.
(2) Further proceedings shall be held only by order of the Board
and only
[[Page 36807]]
when necessary for full and fair resolution of the issues arising from
the application. Such proceedings shall be minimized to the extent
possible and shall not include relitigation of the case on the merits.
A request that the Board order further proceedings under 6101.30 (Rule
30) shall describe the disputed issues and explain why additional
proceedings are necessary to resolve those issues.
(e) Decision. Any award ordered by the Board shall be paid pursuant
to 6101.31 (Rule 31).
6101.31 Payment of Board awards [Rule 31].
(a) Generally. When permitted by law, payment of Board awards may
be made in accordance with 31 U.S.C. 1304. Awards by the Board pursuant
to the Equal Access to Justice Act shall be directly payable by the
respondent agency over which the applicant has prevailed in the
underlying appeal.
(b) Conditions for payment. Before a party may obtain payment of a
Board award pursuant to 31 U.S.C. 1304, one of the following must
occur:
(1) Both parties must, by execution of a Certificate of Finality,
waive their rights to relief under 6101.26 and 6101.27 (Rules 26 and
27) and also their rights to appeal the decision of the Board; or
(2) The time for filing an appeal must expire.
(c) Procedure. Whenever the Board issues a decision or an order
awarding an appellant any amount of money, it will attach to the copy
of the decision sent to each party forms such as those contained in the
Appendix to the rules of this chapter. Unless the appellant files a
timely appeal from the decision, the appellant will complete the
Certificate of Finality, sign it, and forward it to the person or
persons who entered an appearance in the appeal on behalf of the
government agency. Upon receipt of a completed and executed Certificate
of Finality, unless the government agency files a timely appeal from
the decision, the person or persons who entered an appearance in the
appeal on behalf of the government agency will promptly transmit the
appellant's Certificate of Finality, along with a certified copy of the
Board's decision and any other necessary documentation, to the United
States Department of the Treasury for payment.
6101.32 Appeal from a Board decision [Rule 32].
(a) Record on review. When a party has appealed a Board decision to
the United States Court of Appeals for the Federal Circuit, the record
on review shall consist of the decision sought to be reviewed, the
record before the Board as described in 6101.9(a)(1) through (a)(13)
(Rule 9(a)(1) through (a)(13)), and such other material contained in
the Board's file as may be required by the Court of Appeals.
(b) Notice. At the same time a party seeking review of a Board
decision files a notice of appeal, that party shall provide a copy of
the notice to the Board.
(c) Filing of certified list of record materials. Promptly after
service upon the Board of a copy of the notice of appeal of a Board
decision, the Office of the Clerk of the Board shall file with the
Clerk of the United States Court of Appeals for the Federal Circuit a
certified list of all documents, transcripts of testimony, exhibits,
and other materials constituting the record, or a list of such parts
thereof as the parties may designate, adequately describing each. The
Board will retain the record and transmit any part thereof to the Court
upon the Court's order during the pendency of the appeal.
(d) Request by attorney of record to review record. When a case is
on appeal, an attorney of record may request permission from the Board
to sign out for a reasonable period of time the record on appeal to
review and to copy if the attorney is unable to gain access to the
record from another source.
6101.33 Ex parte contact; sanctions and other proceedings [Rule 33].
(a) Standards. All parties and their representatives, attorneys,
and any expert/consultant 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 rules of professional conduct and
ethics of the jurisdictions in which that attorney is licensed to
practice, to the extent that those rules are relevant to conduct
affecting the integrity of the Board, its process, or its proceedings.
The Board will also look to voluntary professional guidelines in
evaluating an individual's conduct.
(b) Ex parte communications. No member of the Board or of the
Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, without the knowledge and consent of the
adverse party, regarding any matter at issue in that appeal. This
provision does not apply to consultation among Board members or to ex
parte communications concerning the Board's administrative functions or
procedures.
(c) Sanctions. 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:
(1) Taking the facts pertaining to the matter in dispute to be
established for the purpose of the case in accordance with the
contention of the party submitting the discovery request;
(2) Forbidding challenge of the accuracy of any evidence;
(3) Refusing to allow the disobedient party to support or oppose
designated claims or defenses;
(4) Prohibiting the disobedient party from introducing in evidence
designated documents or items of testimony;
(5) Striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed;
(6) Dismissing the case or any part thereof;
(7) Enforcing the protective order and disciplining individuals
subject to such order for violation thereof, including disqualifying a
party's representative, attorney, or expert/consultant from further
participation in the case; or
(8) Imposing such other sanctions as the Board deems appropriate.
(d) Denial of access to protected material for prior violations of
protective orders. The Board may in its discretion deny access to
protected material to any person found to have previously violated a
protective order, regardless of who issued the order.
(e) Disciplinary proceedings. (1) In addition to the procedures in
this section 6101.33 (Rule 33), 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 seriously affects the
integrity of the Board, its process, or its proceedings. Sanctions may
be public or private, and may include admonishment, disqualification
from a particular matter, referral to an appropriate licensing
authority, or such other action as circumstances may warrant.
(2) 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
[[Page 36808]]
individual notice and an opportunity to be heard, a majority of the
members of the full Board determines such a sanction is warranted.
6101.34 Seal of the Board [Rule 34].
The Seal of the Board shall be a circular boss, the outer margin of
which shall bear the legend ``Civilian Board of Contract Appeals.'' The
Seal shall be the means of authentication of all records, notices,
orders, dismissals, opinions, subpoenas, and certificates issued by the
Board.
6101.35--6101.50 [Reserved]
6101.51 Variation from standard proceedings [Rule 51].
The ultimate purpose of any Board proceeding is to resolve fairly
and expeditiously any dispute properly before the Board. When, during
the normal course of a Board proceeding, the parties agree that a
change in established procedure will promote this purpose, the Board
will make that change if it is deemed to be feasible and in the best
interest of the parties, the Board, and the resolution of the issue(s)
in controversy. Individuals and small business may find variations from
standard proceedings to be especially useful. The following are
examples of these changes:
(a) Establishing an expedited schedule of proceedings, such as by
limiting the times provided in 6101.1 through 6101.34 (Rules 1 through
34) for various filings, to facilitate a prompt resolution of the case;
(b) Developing a record and rendering a decision on the issue of
entitlement prior to reviewing the issue of quantum in a party's claim;
(c) Developing a record and rendering a decision on any legal or
factual issue in advance of others when that issue is deemed critical
to resolving the case or effecting a settlement of any items in
dispute; and
(d) Developing a record regarding relevant facts through an on-the-
record round-table discussion with sworn witnesses, counsel, and the
panel chair rather than through formal direct and cross-examination of
each of these same witnesses. This discussion shall be controlled by
the panel chair. It may be conducted, for example, through the
presentation of narrative statements of witnesses or on an issue by
issue basis. The panel chair may also request that the parties' counsel
or representatives present opening and/or closing statements in lieu of
written briefs.
6101.52 Small claims procedure [Rule 52].
(a) Election. (1) The small claims procedure is available solely at
the appellant's election. Such election shall be made no later than 30
calendar days after the appellant's receipt of the agency answer,
unless the panel chair enlarges the time for good cause shown. The
appellant may elect this procedure when:
(i) There is a monetary amount in dispute and that amount is
$50,000 or less, or
(ii)(A) There is a monetary amount in dispute and that amount is
$150,000 or less, and
(B) The appellant is a small business concern (as that term is
defined in the Small Business Act and regulations promulgated under
that Act).
(2) At the request of the Government, or on its own initiative, the
Board may determine whether the amount in dispute and/or the
appellant's status makes the election inappropriate. The Government
shall raise any objection to the election no later than 10 working days
after receipt of a notice of election.
(b) Decision. The panel chair may issue a decision, which may be in
summary form, orally or in writing. A decision which is issued orally
shall be reduced to writing; however, such a decision takes effect at
the time it is rendered, prior to being reduced to writing. A decision
shall be final and conclusive and shall not be set aside except in case
of fraud. A decision shall have no value as precedent.
(c) Procedure. Promptly after receipt of the appellant's election
of the small claims procedure, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings, discovery, and other prehearing activities may be restricted
or eliminated.
(d) Time of decision. Whenever possible, the panel chair shall
resolve an appeal under this procedure within 120 calendar days from
the Board's receipt of the election. The time for processing an appeal
under this procedure may be extended if the appellant has not adhered
to the established schedule. Either party's failure to abide by the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault.
6101.53 Accelerated procedure [Rule 53].
(a) Election. (1) The accelerated procedure is available solely at
the appellant's election, and only when there is a monetary amount in
dispute and that amount is $100,000 or less. Such election shall be
made no later than 30 calendar days after the appellant's receipt of
the agency answer, unless the panel chair enlarges the time for good
cause shown.
(2) At the request of the Government, or on its own initiative, the
Board may determine whether the amount in dispute is greater than
$100,000, such that the election is inappropriate. The Government shall
raise any objection to the election no later than 10 working days after
receipt of a notice of election.
(b) Decision. Each decision shall be rendered by the panel chair
with the concurrence of one of the other judges assigned to the panel;
in the event the two judges disagree, the third judge assigned to the
panel will participate in the decision.
(c) Procedure. Promptly after receipt of the appellant's election
of the accelerated procedure, the Board shall establish a schedule of
proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, and discovery and other prehearing
activities may be restricted or eliminated.
(d) Time of decision. Whenever possible, the Board shall resolve an
appeal under this procedure within 180 calendar days from the Board's
receipt of the election. The time for processing an appeal under this
procedure may be extended if the appellant has not adhered to the
established schedule. Either party's failure to abide by the Board's
schedule may result in the Board drawing evidentiary inferences adverse
to the party at fault.
6101.54 Alternative dispute resolution [Rule 54].
(a) Availability of alternative dispute resolution (ADR) procedures
at the Board. The Board will make its services available for ADR
proceedings to help resolve issues in controversy and claims involving
procurements, contracts (including interagency agreements), and grants.
The use of ADR will not toll any relevant statutory time limitations.
(1) Matters not on Board's Contract Disputes Act (CDA) docket. Upon
request, the Board will make an ADR Neutral available for an ADR
proceeding, even if a contracting officer's decision has not been
issued or is not contemplated. To initiate an ADR proceeding for all
matters other than docketed CDA appeals, the parties shall jointly
request ADR in writing and direct such a request to the Board Chairman.
For agencies whose issues in controversy do not fall within the Board's
jurisdiction, the Board may provide ADR services on a reimbursable
basis.
(2) Docketed CDA appeals. Parties are encouraged to consider the
advantages of using ADR techniques at any stage of an appeal. Joint
requests for ADR services for docketed appeals should be
[[Page 36809]]
addressed to the Board Chairman, with a copy to the presiding judge.
ADR may be used concurrently with standard litigation proceedings such
as the filing of pleadings and discovery, or the presiding judge may
suspend such proceedings for a reasonable period of time while the
parties attempt to resolve the appeal using ADR.
(b) Conduct of ADR--(1) Selection of ADR Neutral. The parties may
ask the Board Chairman to appoint a judge(s) to serve as the ADR
Neutral(s). If desired, the parties may request the appointment of a
particular judge(s). In a docketed appeal, the parties may also request
that the presiding judge serve as the ADR Neutral for the ADR
proceeding. If the parties elect a non-binding ADR procedure and the
implementation of the procedure does not result in a settlement, where
the procedure has involved ex parte contact, the ADR Neutral may retain
the case for adjudication as the presiding judge, but only if the
parties and the presiding judge all agree to such retention. If the
procedure has not involved ex parte contact, the ADR Neutral, after
considering the parties' views, may retain the case as the presiding
judge at his/her discretion.
(2) The ADR agreement. Before an ADR proceeding can occur, the
parties must execute a written ADR agreement. This agreement should set
forth, among other things, the identity of the ADR Neutral to be used,
the role and authority of the Neutral, the ADR techniques to be
employed, the scope and extent of any discovery relating to ADR, the
location and schedule for the ADR proceeding, and the extent to which
dispute resolution communications in conjunction with the ADR
proceeding are to be kept confidential (6101.54(b)(3) (Rule 54(b)(3))).
(3) Confidentiality of ADR communications and materials. Written
material prepared specifically for use in an ADR proceeding, oral
presentations made at an ADR proceeding, and all discussions in
connection with such proceedings are considered ``dispute resolution
communications'' as defined in 5 U.S.C. 571(5) and are subject to the
confidentiality requirements of 5 U.S.C. 574. Unless otherwise
specifically agreed by the parties, confidential dispute resolution
communications shall be inadmissible as evidence in any pending or
future Board proceeding involving the parties or the issue in
controversy which is the subject of the ADR proceeding. However,
evidence otherwise admissible before the Board is not rendered
inadmissible because of its use in an ADR proceeding. The Board will
not retain written materials used in an ADR proceeding after the
proceeding is concluded or otherwise terminated. Parties may request a
protective order in an ADR proceeding in the manner provided in
6101.9(c) (Rule 9(c)).
(c) Types of ADR. ADR is not defined by any single procedure or set
of procedures. Board judges, when engaged as ADR Neutrals, most
commonly use a combination of facilitative and evaluative mediation
approaches, as explained in paragraphs (c)(1) through (c)(7) of this
section. However, the Board will consider the use of any ADR technique
or combination of techniques proposed by the parties in their ADR
agreement which is deemed to be fair, reasonable, and in the best
interest of the parties, the Board, and the resolution of the issue(s)
in controversy. The following are descriptions of some available
techniques:
(1) Facilitative mediation. Facilitative mediations usually begin
with a joint session, where the parties each make informal
presentations to one another and the ADR Neutral regarding the facts
and circumstances giving rise to the issues in controversy as well as
an explanation of their respective legal positions. The ADR Neutral, as
a mediator, aids the parties in settling their dispute, frequently by
meeting with each party separately in confidential sessions and
engaging in ex parte discussions with each of the parties, for the
purpose of facilitating the formulation and transmission of settlement
offers.
(2) Evaluative mediation. In addition to engaging in facilitative
mediation, if authorized under the terms of the parties' ADR agreement,
the ADR Neutral may also discuss informally the strengths and
weaknesses of the parties' respective positions in either joint
sessions or confidential sessions.
(3) Mini-trial. The parties make abbreviated presentations to an
ADR Neutral who sits with the parties' designated principal
representatives as a mini-trial panel to hear and evaluate evidence
relating to an issue in controversy. The ADR Neutral may thereafter
meet with the principal representatives to attempt to mediate a
settlement. The mini-trial process may also be a prelude to the
Neutral's provision of a non-binding advisory opinion (6101.54(c)(4)
(Rule 54(c)(4))) or to the Neutral's rendering of a binding decision
(6101.54(c)(5) (Rule 54(c)(5))).
(4) Non-binding advisory opinion. The parties present to the ADR
Neutral information upon which the Neutral bases a non-binding,
advisory opinion regarding the merits of the dispute. The opinion may
be delivered to the parties jointly, either orally or in writing. The
manner in which the information is presented will vary, depending upon
the circumstances of the dispute and the terms of the parties' ADR
agreement. Presentations may range from an informal proffer of evidence
together with limited argument from the parties, to a more formal
presentation, with oral testimony, exchange of documentary evidence,
and argument from counsel.
(5) Summary binding decision. This is a binding ADR procedure
similar to binding arbitration under which, by prior agreement of the
parties, the ADR Neutral renders a brief written decision which is
binding, non-precedential, and non-appealable. As in a procedure under
which the Neutral provides a non-binding advisory opinion, the manner
in which information is presented for a summary binding decision may
vary depending on the circumstances of the particular dispute and the
wishes of the parties as set out in their ADR agreement.
(6) Other procedures. In addition to other ADR techniques,
including modifications to those listed in paragraphs (c)(1) through
(c)(5) of this section, the parties may use ADR neutrals outside the
Board and techniques which do not require direct Board involvement.
(7) Selective use of standard procedures. Parties considering ADR
proceedings are encouraged to adapt for their purposes any provisions
in 6101.1 through 6101.34 (Rules 1 through 34) of the Board's rules
which they believe will be useful.
Appendix to Part 6101--Form Nos. 1-5
[[Page 36810]]
Form 1, GSA Form 2465, Notice of Appeal.
[GRAPHIC] [TIFF OMITTED] TR05JY07.000
[[Page 36811]]
Form 2, Notice of Appearance.
[GRAPHIC] [TIFF OMITTED] TR05JY07.001
[[Page 36812]]
Form 3, GSA Form 9534, Subpoena.
[GRAPHIC] [TIFF OMITTED] TR05JY07.002
[[Page 36813]]
[GRAPHIC] [TIFF OMITTED] TR05JY07.003
[[Page 36814]]
Form 4, Government Certificate of Finality.
[GRAPHIC] [TIFF OMITTED] TR05JY07.004
[[Page 36815]]
Form 5, Appellant/Applicant Certificate of Finality.
[GRAPHIC] [TIFF OMITTED] TR05JY07.005
[[Page 36816]]
0
2. Revise part 6102 to read as follows:
PART 6102--CROP INSURANCE CASES
Sec.
6102.201 Scope of rules [Rule 201].
6102.202 Rules for crop insurance cases [Rule 202].
Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. 438(c)(2).
6102.201 Scope of rules [Rule 201].
These procedures govern the Board's resolution of disputes between
insurance companies and the Department of Agriculture's Risk Management
Agency (RMA) involving actions of the Federal Crop Insurance
Corporation (FCIC). Prior to the creation of this Board, the Department
of Agriculture Board of Contract Appeals resolved this variety of
dispute pursuant to statute, 7 U.S.C. 1501 et seq. (the Federal Crop
Insurance Act), and regulation, 7 CFR 24.4(b) and 400.169. The Board
has this authority under an agreement with the Secretary of
Agriculture, as permitted under section 42(c)(2) of the Office of
Federal Procurement Policy Act, 41 U.S.C. 438(c)(2).
6102.202 Rules for crop insurance cases [Rule 202].
The rules of procedure for these cases are the same as the rules of
procedure for Contract Disputes Act appeals, with these exceptions:
(a) Rule 1. (1) In 6101.1(b)(1) (Rule 1(b)(1)), the term ``appeal''
means a dispute between an insurance company that is a party to a
Standard Reinsurance Agreement (or other reinsurance agreement) and the
RMA, and the term ``appellant'' means the insurance company filing an
appeal.
(2) In 6101.1(b)(5)(i) (Rule 1(b)(5)(i)), a notice of appeal is
filed upon its receipt by the Office of the Clerk of the Board, not
when it is mailed.
(3) Section 6101.1(b)(7) (Rule 1(b)(7)) does not apply to FCIC
cases.
(b) Rule 2. (1) Section 6101.2(a)(1)(i) (Rule 2(a)(1)(i)) is
replaced with the following for FCIC cases: A notice of appeal shall be
in writing and shall be signed by the appellant or by the appellant's
attorney or authorized representative. If the appeal is from a
determination by the Deputy Administrator of Insurance Services
regarding an action alleged not to be in accordance with the provisions
of a Standard Reinsurance Agreement (or other reinsurance agreement),
or if the appeal is from a determination by the Deputy Administrator of
Compliance concerning a determination regarding a compliance matter,
the notice of appeal should describe the determination in enough detail
to enable the Board to differentiate that decision from any other; the
appellant can satisfy this requirement by attaching to the notice of
appeal a copy of the Deputy Administrator's determination. If an appeal
is taken from the failure of the Deputy Administrator to make a timely
determination (see 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii))), the notice of
appeal should describe in detail the matter that the Deputy
Administrator has failed to determine; the appellant can satisfy this
requirement by attaching to the notice of appeal a copy of the written
request for a determination it sent to the Deputy Administrator.
(2) In 6101.2(a)(1)(ii) and (iii) (Rule 2(a)(1)(ii) and (iii)), the
references to ``contracting officer'' are references to ``Deputy
Administrator.''
(3) Section 6101.2(a)(2) (Rule 2(a)(2)) does not apply to FCIC
cases.
(4) In 6101.2(b)(1)(i) (Rule 2(b)(1)(i)), an appeal from a
determination of a Deputy Administrator shall be filed no later than 90
calendar days after the date the appellant receives that determination.
The Board is authorized to resolve only those appeals that are timely
filed.
(5) In 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii)), an appeal may be filed
with the Board if the Deputy Administrator fails or refuses to issue a
determination within 90 days after the appellant submits a request for
a determination.
(c) Rule 4. (1) In 6101.4 (Rule 4), the references to ``contracting
officer'' are references to ``Deputy Administrator.''
(2) In 6101.4(a), paragraphs (1) through (7) (Rule 4(a), paragraphs
(1) through (7)), describing materials included in the appeal file, are
replaced by the following:
(i) The determination of the Deputy Administrator that is the
subject of the dispute;
(ii) The reinsurance agreement (with amendments or modifications)
at issue in the dispute;
(iii) Pertinent correspondence between the parties that is relevant
to the dispute, including prior administrative determinations and
related submissions;
(iv) Documents and other tangible materials on which the Deputy
Administrator relied in making the underlying determination; and
(v) Any additional material pertinent to the authority of the Board
or the resolution of the dispute.
(3) The following subsection is added to 6101.4 (Rule 4): Media on
which appeal file is to be submitted. All appeal file submissions,
including the index, shall be submitted in two forms: paper and in a
text or .pdf format submitted on a compact disk. Each compact disk
shall be labeled with the name and docket number of the case. The judge
may delay the submission of the compact disk copy of the appeal file
until the close of the evidentiary record.
(d) Rule 5. In 6101.5(a)(2) (Rule 5(a)(2)), the references to
``contracting officer'' are references to ``Deputy Administrator.''
(e) Rule 6. In 6101.6(d) (Rule 6(d)) does not apply to FCIC cases.
(f) Rule 12. In 6101.12(a) (Rule 12(a)), the references to
``contracting officer'' are references to ``Deputy Administrator.''
(g) Rule 15. In 6101.15(d) (Rule 15(d)), the final sentence does
not apply to FCIC cases.
(h) Rule 16. In 6101.16(b) through (h) (Rule 16(b) through (h)) do
not apply to FCIC cases. Instead, upon the written request of any party
filed with the Office of the Clerk of the Board, or upon the initiative
of a judge, a judge is authorized by delegation from the Secretary of
Agriculture to request the appropriate United States Attorney to apply
to the appropriate United States District Court for the issuance of
subpoenas pursuant to 5 U.S.C. Sec. 304.
(i) Rule 21. (1) In 6101.21(f) (Rule 21(f)), the final sentence
does not apply to FCIC cases.
(2) In 6101.21(g) (Rule 21(g)), the final sentence does not apply
to FCIC cases.
(j) Rule 25. In 6101.25(a) (Rule 25(a)), the initial phrase,
``Except as provided in 6101.52 (Rule 52) (small claims procedure),''
does not apply to FCIC cases.
(k) Rule 32. In 6101.32(a) through (c) (Rule 32(a) through (c)) are
replaced with the following for FCIC cases:
(1) Finality of Board decision. A decision of the Board is a final
administrative decision.
(2) Appeal permitted. An appellant may file suit in the appropriate
United States District Court to challenge the Board's decision. An
appellant which files such a suit shall provide the Board with a copy
of the complaint.
(l) Rule 52. 6101.52 (Rule 52) does not apply to FCIC cases.
(m) Rule 53. 6101.53 (Rule 53) does not apply to FCIC cases.
0
3. Revise part 6103 to read as follows:
PART 6103--TRANSPORTATION RATE CASES
Sec.
6103.301 Scope [Rule 301].
6103.302 Filing claims [Rule 302].
6103.303 Responses to claims [Rule 303].
6103.304 Reply to the audit division and agency responses [Rule
304].
6103.305 Proceedings [Rule 305].
[[Page 36817]]
6103.306 Decisions [Rule 306].
6103.307 Reconsideration of Board decision [Rule 307].
6103.308 Payment of successful claims [Rule 308].
Authority: 31 U.S.C. 3726(i)(1); 41 U.S.C. 601-613; Sec. 201(o),
Pub. L. 104-316, 110 Stat. 3826.
6103.301 Scope [Rule 301].
(a) Authority. 31 U.S.C. 3726(i)(1) provides that a carrier or
freight forwarder may request the Administrator of General Services to
review an action taken by the Audit Division of the General Services
Administration's Office of Transportation and Property Management (the
Audit Division). The Administrator has redelegated those functions to
the Civilian Board of Contract Appeals.
(b) Type of claim; review of claim. These procedures are applicable
to the review of claims made by a carrier or freight forwarder pursuant
to 31 U.S.C. 3726(i)(1). The Board will issue the final agency decision
on a claim based on the information submitted by the claimant, the
Audit Division, and the department or agency (the agency) for which the
services were provided. The burden is on the claimant to establish the
timeliness of its claim, the liability of the agency, and the
claimant's right to payment.
6103.302 Filing claims [Rule 302].
(a) Form. A claim shall be in writing and must be signed by the
claimant or by the claimant's attorney or authorized representative. No
particular form is required. The request should describe the basis for
the claim and state the amount sought. The request should also
include--
(1) The name, address, telephone number, and facsimile machine
number, if available, of the claimant;
(2) The Government bill of lading or Government transportation
request number;
(3) The claimant's bill number;
(4) The Government voucher number and date of payment;
(5) The Audit Division claim number;
(6) The agency for which the services were provided; and
(7) Any other identifying information.
(b) When and where claims are filed. A claim is filed when it is
received by the Office of the Clerk of the Board during the Board's
working hours. The Board's mailing address is: 1800 F Street, NW,
Washington, DC 20405. The Board is located at: 1800 M Street, NW, 6th
Floor, Washington, DC 20036. The Clerk's telephone number is: (202)
606-8800. The Clerk's facsimile machine number is: (202) 606-0019. The
Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each
day other than a Saturday, Sunday, or federal holiday.
(c) Notice of docketing. A claim will be docketed by the Office of
the Clerk of the Board, and a written notice of docketing will be sent
promptly to the claimant, the Director of the Audit Division, and the
agency for which the services were provided. The notice of docketing
will identify the judge to whom the claim has been assigned.
(d) Service of copy. The claimant shall send to the Audit Division
and the agency identified in paragraph (a)(6) of this section copies of
all material provided to the Board. All submissions to the Board by a
claimant shall indicate that a copy has been provided to the Audit
Division and the agency.
6103.303 Responses to claims [Rule 303].
(a) Content of responses. Within 30 calendar days after docketing
by the Board (or within 60 calendar days after docketing if the agency
office for which the services were provided is located outside the 50
states and the District of Columbia), the Audit Division and the agency
for which the services were provided shall each submit to the Board:
(1) A simple, concise, and direct statement of its response to the
claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information deemed necessary to the Board's
review of the claim.
(b) Service of copy. All responses submitted to the Board shall
indicate that a copy has been sent to the claimant and to the Audit
Division or the agency, as appropriate. To expedite proceedings, if
either the Audit Division or the agency will not file a response (e.g.,
it believes its reasons for denying the claim were sufficiently
explained in the material filed by the claimant), it should notify the
Board, the claimant, and the Audit Division or the agency, as
appropriate, that it does not intend to file a response.
6103.304 Reply to the audit division and agency responses [Rule 304].
A claimant may file with the Board and serve on the Audit Division
and the agency a reply to the Audit Division and agency responses
within 30 calendar days after receiving the responses (or within 60
calendar days after receiving the responses, if the claimant is located
outside the 50 states and the District of Columbia). To expedite
proceedings, if the claimant does not wish to respond, the claimant
should so notify the Board, the Audit Division, and the agency.
6103.305 Proceedings [Rule 305].
(a) Requests for additional time. The claimant, the Audit Division,
or the agency may request additional time to make any filing.
(b) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the claim.
The judge may hold a conference with the claimant, the Audit Division,
and the agency at any time, for any purpose. The judge may provide the
participants a memorandum reflecting the results of a conference.
(c) Submissions. The judge may require the submission of additional
information at any time. The claimant, the Audit Division, or the
agency may request an opportunity to make additional submissions;
however, no such submission may be made unless authorized by the judge.
6103.306 Decisions [Rule 306].
The judge will issue a written decision based upon the record,
which includes submissions by the claimant, the Audit Division, and the
agency, and information provided during conferences. The claimant, the
Audit Division, and the agency will each be furnished a copy of the
decision by the Office of the Clerk of the Board. In addition, all
Board decisions are posted weekly on the Internet. The Board's Internet
address is: www.cbca.gsa.gov.
6103.307 Reconsideration of Board decision [Rule 307].
A request for reconsideration may be made by the claimant, the
Audit Division, or the agency. Such requests must be received by the
Board within 30 calendar days after the date the decision was issued
(or within 60 calendar days after the date the decision was issued, if
the claimant or agency office making the request is located outside the
50 states and the District of Columbia). The request for
reconsideration should state the reasons why the Board should consider
the request. Mere disagreement with a decision or re-argument of points
already made is not a sufficient ground for seeking reconsideration.
6103.308 Payment of successful claims [Rule 308].
The agency for which the services were provided shall pay amounts
the Board determines are due the claimant.
0
4. Revise part 6104 to read as follows:
PART 6104--TRAVEL AND RELOCATION EXPENSES CASES
Sec.
6104.401 Scope [Rule 401].
6104.402 Filing claims [Rule 402].
6104.403 Response to claim [Rule 403].
[[Page 36818]]
6104.404 Reply to agency response [Rule 404].
6104.405 Proceedings [Rule 405].
6104.406 Decisions [Rule 406].
6104.407 Reconsideration of Board decision [Rule 407].
6104.408 Payment of successful claims [Rule 408].
Authority: Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826;
Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C. 3702; 41 U.S.C.
601-613.
6104.401 Scope [Rule 401].
(a) Authority. These procedures govern the Board's resolution of
claims by Federal civilian employees for certain travel or relocation
expenses. 31 U.S.C. 3702 vests the authority to settle these claims in
the Administrator of General Services, who has redelegated that
function to the Civilian Board of Contract Appeals. The requirements
contained in 31 U.S.C. 3702, including limitations on the time within
which claims may be filed, apply to the Board's review of these claims.
(b) Types of claims. These procedures are applicable to the review
of two types of claims made against the United States by federal
civilian employees:
(1) Claims for reimbursement of expenses incurred while on official
temporary duty travel; and
(2) Claims for reimbursement of expenses incurred in connection
with relocation to a new duty station.
(c) Review of claims. Any claim for entitlement to travel or
relocation expenses must first be filed with the claimant's own
department or agency (the agency). The agency shall initially
adjudicate the claim. A claimant disagreeing with the agency's
determination may request review of the claim by the Board. The burden
is on the claimant to establish the timeliness of the claim, the
liability of the agency, and the claimant's right to payment. The Board
will issue the final decision on a claim based on the information
submitted by the claimant and the agency.
6104.402 Filing claims [Rule 402].
(a) Filing claims. A claim may be sent to the Board in either of
the following ways:
(1) Claim filed by claimant. A claim shall be in writing and must
be signed by the claimant or by the claimant's attorney or authorized
representative. No particular form is required. The request should
describe the basis for the claim and state the amount sought. The
request should also include--
(i) The name, address, telephone number, and facsimile machine
number, if available, of the claimant;
(ii) The name, address, telephone number, and facsimile machine
number, if available, of the agency employee who denied the claim;
(iii) A copy of the denial of the claim; and
(iv) Any other information which the claimant believes the Board
should consider.
(2) Claim forwarded by agency on behalf of claimant. If an agency
has denied a claim for travel or relocation expenses, it may, at the
claimant's request, forward the claim to the Board. The agency shall
include the information required by paragraph (a)(1) of this section
and by 6104.403 (Rule 403).
(3) Where claims are filed. Claims should be filed with the Office
of the Clerk of the Board. The Board's mailing address is: 1800 F
Street, NW, Washington, DC 20405. The Board is located at: 1800 M
Street, NW, 6th Floor, Washington, DC 20036. The Clerk's telephone
number is: (202) 606-8800. The Clerk's facsimile machine number is:
(202) 606-0019. The Board's working hours are 8:00 a.m. to 4:30 p.m.,
Eastern Time, on each day other than a Saturday, Sunday, or federal
holiday.
(b) Notice of docketing. A request for review will be docketed by
the Office of the Clerk of the Board. A written notice of docketing
will be sent promptly to the claimant and the agency contact. The
notice of docketing will identify the judge to whom the claim has been
assigned.
(c) Service of copy. The claimant shall send to the agency employee
identified in paragraph (a)(1)(ii) of this section, or the individual
otherwise identified by the agency to handle the claim, copies of all
material provided to the Board. If an agency forwards a claim to the
Board, it shall, at the same time, send to the claimant a copy of all
material sent to the Board. All submissions to the Board shall indicate
that a copy has been provided to the claimant or the agency.
6104.403 Response to claim [Rule 403].
(a) Content of response. When a claim has been filed with the Board
by a claimant, within 30 calendar days after docketing by the Board (or
within 60 calendar days after docketing, if the agency office involved
is located outside the 50 states and the District of Columbia), the
agency shall submit to the Board:
(1) A simple, concise, and direct statement of its response to the
claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information the agency considers necessary to
the Board's review of the claim.
(b) Service of copy. A copy of these submissions shall also be sent
to the claimant. To expedite proceedings, if the agency believes its
reasons for denying the claim were sufficiently explained in the
material filed by the claimant, it should notify the Board and the
claimant that it does not intend to file a response.
6104.404 Reply to agency response [Rule 404].
A claimant may file a reply to the agency response within 30
calendar days after receiving the response (or within 60 calendar days
after receiving the response, if the claimant is located outside the 50
states and the District of Columbia). If the claim has been forwarded
by the agency, the claimant shall have 30 calendar days from the time
the claim is docketed by the Board (or 60 calendar days after
docketing, if the claimant is located outside the 50 states and the
District of Columbia) to reply. To expedite proceedings, if the
claimant does not wish to reply, the claimant should so notify the
Board and the agency.
6104.405 Proceedings [Rule 405].
(a) Requests for additional time. The claimant or the agency may
request additional time to make any filing.
(b) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the claim.
The judge may hold a conference with the claimant and the agency
contact, at any time, for any purpose. The judge may provide the
participants a memorandum reflecting the results of a conference.
(c) Additional submissions. The judge may require the submission of
additional information at any time.
6104.406 Decisions [Rule 406].
The judge will issue a written decision based upon the record,
which includes submissions by the claimant and the agency, and
information provided during conferences. The claimant and the agency
will each be furnished a copy of the decision by the Office of the
Clerk of the Board. In addition, all Board decisions are posted weekly
on the Internet. The Board's Internet address is: www.cbca.gsa.gov.
6104.407 Reconsideration of Board decision [Rule 407].
A request for reconsideration may be made by the claimant or the
agency. Such requests must be received by the Board within 30 calendar
days after the date the decision was issued (or within
[[Page 36819]]
60 calendar days after the date the decision was issued, if the
claimant or the agency office making the request is located outside the
50 states and the District of Columbia). The request for
reconsideration should state the reasons why the Board should consider
the request. Mere disagreement with a decision or re-argument of points
already made is not a sufficient ground for seeking reconsideration.
6104.408 Payment of successful claims [Rule 408].
The agency shall pay amounts the Board determines are due the
claimant.
0
5. Revise part 6105 to read as follows:
PART 6105--DECISIONS AUTHORIZED UNDER 31 U.S.C. 3529
Sec.
6105.501 Scope [Rule 501].
6105.502 Request for decision [Rule 502].
6105.503 Additional submissions [Rule 503].
6105.504 Proceedings [Rule 504].
6105.505 Decisions [Rule 505].
6105.506 Reconsideration of Board decision [Rule 506].
Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613;
Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub.
L. 104-53, 109 Stat. 535.
6105.501 Scope [Rule 501].
These procedures govern the Board's issuance of decisions, upon the
request of an agency disbursing or certifying official, or agency head,
on questions involving payment of travel or relocation expenses that
were formerly issued by the Comptroller General under 31 U.S.C. 3529.
Section 204 of the General Accounting Office Act of 1996, Pub. L. 104-
316, transfers the authority to issue these decisions to the Director
of the Office of Management and Budget, and authorizes the Director to
delegate the authority to perform that function to another agency or
agencies. The Director has delegated the authority to issue these
decisions to the Administrator of General Services, who has redelegated
that function to the Civilian Board of Contract Appeals.
6105.502 Request for decision [Rule 502].
(a) Request for decision. (1) A disbursing or certifying official
of an agency, or the head of an agency, may request from the Board a
decision (referred to as a ``Section 3529 decision'') on a question
involving a payment the disbursing official or head of agency will
make, or a voucher presented to a certifying official for
certification, which concerns the following type of claim made against
the United States by a federal civilian employee:
(i) A claim for reimbursement of expenses incurred while on
official temporary duty travel; and
(ii) A claim for reimbursement of expenses incurred in connection
with relocation to a new duty station.
(2) A request for a Section 3529 decision shall be in writing; no
particular form is required. The request must refer to a specific
payment or voucher; it may not seek general legal advice. The request
should--
(i) Explain why the official is seeking a Section 3529 decision,
rather than taking action on his or her own regarding the matter;
(ii) State the question presented and include citations to
applicable statutes, regulations, and cases;
(iii) Include--
(A) The name, address, telephone number, and facsimile machine
number (if available) of the official making the request;
(B) The name, address, telephone number, and facsimile number (if
available) of the employee affected by the specific payment or voucher;
and
(C) Any other information which the official believes the Board
should consider; and
(iv) Be delivered to the Office of the Clerk of the Board. The
Board's mailing address is: 1800 F Street, NW, Washington, DC 20405.
The Board is located at: 1800 M Street, NW, 6th Floor, Washington, DC
20036. The Clerk's telephone number is: (202) 606-8800. The Clerk's
facsimile machine number is: (202) 606-0019. The Board's working hours
are 8:00 a.m. to 4:30 p.m., Eastern Time, on each day other than a
Saturday, Sunday, or federal holiday.
(b) Notice of docketing. A request for a Section 3529 decision will
be docketed by the Office of the Clerk of the Board. A written notice
of docketing will be sent promptly to the official and the affected
employee. The notice of docketing will identify the judge to whom the
request has been assigned.
(c) Service of copy. The official submitting a request for a
Section 3529 decision shall send to the affected employee copies of all
material provided to the Board. All submissions to the Board shall
indicate that a copy has been provided to the affected employee.
6105.503 Additional submissions [Rule 503].
If the affected employee wishes to submit any additional
information to the Board, he or she must submit such information within
30 calendar days after receiving the copy of the request for decision
and supporting material (or within 60 calendar days after receiving the
copy, if the affected employee is located outside the 50 states and the
District of Columbia). To expedite proceedings, if the employee does
not wish to make an additional submission, the employee should so
notify the Board and the agency.
6105.504 Proceedings [Rule 504].
(a) Requests for additional time. The agency or the affected
employee may request additional time to make any filing.
(b) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the request.
The judge may hold a conference with the agency and the affected
employee, at any time, for any purpose. The judge may provide the
participants a memorandum reflecting the results of a conference.
(c) Additional submissions. The judge may require the submission of
additional information at any time.
6105.505 Decisions [Rule 505].
The judge will issue a written decision based upon the record,
which includes submissions by the agency and the affected employee, and
information provided during conferences. The agency and the affected
employee will each be furnished a copy of the decision by the Office of
the Clerk of the Board. In addition, all Board decisions are posted
weekly on the Internet. The Board's Internet address is: http://www.cbca.gsa.gov.
6105.506 Reconsideration of Board decision [Rule 506].
A request for reconsideration may be made by the agency or the
affected employee. Such requests must be received by the Board within
30 calendar days after the date the decision was issued (or within 60
calendar days after the date the decision was issued, if the agency or
the affected employee making the request is located outside the 50
states and the District of Columbia). The request for reconsideration
should state the reasons why the Board should consider the request.
Mere disagreement with a decision or re-argument of points already made
is not a sufficient ground for seeking reconsideration.
[FR Doc. 07-3064 Filed 7-3-07; 8:45 am]
BILLING CODE 6820-AL-S