[Federal Register Volume 73, Number 92 (Monday, May 12, 2008)]
[Rules and Regulations]
[Pages 26947-26952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10484]
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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
AGENCIES: General Services Administration (GSA), Civilian Board of
Contract Appeals.
ACTION: Final rule.
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SUMMARY: This document contains final revisions to the interim rules of
procedure of the Civilian Board of Contract Appeals (Board), which was
published in the Federal Register at 72 FR 36794, July 5, 2007. These
rules will govern all proceedings before the Board, and will be
contained in 48 CFR parts 6101 through 6105. These rules of procedure
supersede the current interim rules of the Board.
DATES: Effective Date: May 12, 2008.
FOR FURTHER INFORMATION CONTACT Margaret S. Pfunder, Chief Counsel,
Civilian Board of Contract Appeals, telephone (202) 606-8800, e-mail
address [email protected] for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite BCA Case 2006-61-
1.
SUPPLEMENTARY INFORMATION:
A. Executive Summary
Part 6101 contains the rules governing proceedings involving
contract disputes - both standard proceedings of the Board and
expedited proceedings, including alternative dispute resolution. Part
6102 contains the rules governing 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). Part 6103 contains rules governing proceedings
involving 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. Part 6104 contains
the rules governing the Board's resolution of claims by Federal
civilian employees for certain travel or relocation expenses. And part
6105 governs the Board's issuance of decisions, upon the request of an
agency disbursing or certifying official, or an agency head, on
questions involving payment of certain travel or relocation expenses.
The Board has adopted these rules pursuant to its authority contained
in the Contract Disputes Act of 1978 (41 U.S.C. 601-613).
B. Background
The Civilian Board of Contract Appeals (Board) published in the
Federal Register at 72 FR 36794, July 5, 2007, interim rules of
procedure along with a notice inviting comments on those rules. This
notice announced the intention to promulgate final rules of procedure,
following the Board's review and consideration of all comments, to
govern all proceedings before the Board. The period for comments closed
on September 28, 2007. The Board has considered all comments received,
revising the interim rules, in part, as explained in part D below, and
now promulgates its final rules of procedure.
C. Summary of Comments and Changes:
The Board received comments from six commentators. Commentators
included two federal agencies, one law firm, one non-profit
association, one bar association, and one group of attorneys. The Board
carefully considered each comment and adopted several of the
suggestions made by the commentators. All comments received by the
Board pertained specifically to part 6101 of the Rules. The more
significant of those comments are discussed below.
Part 6101
General. In response to one commentator's suggestion, the Board
amends the Rules throughout to change all references to ``panel chair''
to ``presiding judge'' in order to maintain a consistent terminology.
Similarly, the Board accepts the suggestion of another commentator and
amends the Rules to substitute the term ``electronically stored
information'' for ``electronic records'' in order to conform to the
language in the Federal Rules of Civil Procedure.
Several of the rules which pertain to contract disputes (sections
6101.1(a), 6101.2(a) and (b), 6101.4(a), 6101.5(a), 6101.12(a), and
6101.54(a)) use the term ``contracting officer''. Cases which arise
under the Indian Self-Determination Act, 25 U.S.C. 450m-1, are heard
and decided in the same manner as contract disputes, but the agency
decisions from which these appeals are taken may have been made by
someone other than a contracting officer. For these cases, the term
``contracting officer'' refers to the individual who rendered the
decision at issue.
The Board also received comments from a bar association, a non-
profit association, and a law firm suggesting that electronic filing of
cases and submissions be permitted. The Board agrees that electronic
filing would be beneficial in that it would permit parties--wherever
they are in the world--to transmit pleadings and other submissions
quickly, easily, economically, and reliably. We are exploring means of
instituting electronic filing and anticipate that before long we will
be able to adopt one of them. At the present time, however, we are
unable to accept filings electronically (other than by facsimile
transmission). As soon as we are able to do so, we expect to propose
amendments to the rules which explain how such filings may be made.
6101.1 [Scope of rules; definitions; construction; rulings, orders,
and directions; panels; location and address]. Two commentators
suggested changes to the definition of when a document is ``filed''
with the Board. Section 6101.1(b)(5)(i) provides: ``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.'' One commentator suggested
expanding the definition to provide that any document is considered
``filed'' when delivered to the Office of the Clerk or, if mailed or to
be delivered by a delivery service, when deposited with the United
States Postal Service or delivery service. A second commentator
suggested that the closing time for receipt of a document by the Office
of the Clerk be 4:30 local time of the party's representative rather
than 4:30 Eastern Time. The Board declines to make either proposed
change. The Board's practice concerning the filing of documents other
than a notice of appeal or an application for award of fees and other
expenses is consistent with the practice of courts which consider
documents ``filed'' only when they are in the hands of the clerk. As
for the second suggestion, it would place an undue burden on the clerk
and the judges to allow filing times to vary according to the time zone
of a party's
[[Page 26948]]
representative. Section 6101.1(b)(5) is revised, however, to clarify
that filing by facsimile occurs only once the Office of the Clerk has
received the entire document, and for a mailed notice of appeal or
application for award of fees and other expenses, that the date of
filing is the date the notice or application is mailed to the Board.
In addition, one commentator recommended revising the rules for
filing a notice of appeal to allow for delivery of the notice to the
contracting officer, rather than the Clerk of the Board, arguing that
appellants may experience confusion because of different practices
among the Board's predecessor boards. The commentator noted that our
predecessor boards at the Department of Labor and the Department of the
Interior, along with the current Armed Services Board, would allow for
service of notice on the contracting officer. The Board rejects the
recommendation, however, finding that the current section 6101.1(b)(5)
is consistent with the practice of the majority of our predecessor
boards; section 6101.1(b)(5) as stated is sufficiently clear that
appellants should experience no confusion; and allowing the submittal
of appeals to contracting officers would unnecessarily delay
proceedings at the Board. Although there may be occasions when
misdirecting a notice of appeal would not bar a claim, such unusual
circumstances would best be dealt with as they arise.
Finally, one commentator suggested that section 6101.1(e),
concerning panels, be amended to provide that all panel judges must
attend the hearings in cases not subject to the small claims or
accelerated procedures of sections 6101.52 and 6101.53. The
longstanding practice of all our predecessor boards was to have only
one presiding judge attend the hearing. That practice is efficient, has
posed no problems, and will continue here.
6101.2 [Filing cases; time limits for filing; notice of docketing;
consolidation]. One commentator suggested changes to section 6101.2(c)
to require that the notice of docketing include information concerning
the designation of the presiding judge and the availability of
alternative dispute resolution (ADR) services. The Board believes that
the content of the notice of docketing would be more appropriately
addressed through the Board's internal procedures, so no change to the
section is warranted.
6101.4 [Appeal file]. One commentator suggested several amendments
to section 6101.4 to clarify when the Government must file its appeal
file and what documents must be contained in the appeal file. Section
6101.4(a) is revised to provide that the Government must submit its
appeal file ``within 30 calendar days from receipt of the Board's
docketing notice or within such time as the Board may allow.'' In
addition, section 6101.4(a) is revised, as suggested by the
commentator, to make clear that affidavits and witness statements are
not necessarily required in an appeal file. The final sentence of
section 6101.4(a) now begins: ``Exhibits will be numbered as required
by section 6101.4(b) and will include, if any:'' and the phrase ``if
any'' is deleted from subsections (1), (2), and (3).
The Board rejects as unnecessarily restrictive and burdensome
suggestions that (1) the appellant must provide notice of its intent to
supplement the appeal file prior to the Government's filing of an
answer, and (2) specific time frames be established for objections to
exhibits and for the Board to rule on those objections in advance of a
hearing. Section 6101.4(g) is revised, however, to clarify that the
Board may shorten or enlarge time frames for objections.
6101.5 [Appearances; notice of appearance]. One commentator
suggested amending section 6101.5 to provide for permissive
intervention in a case. Whether someone who is not a contractor can be
a party to an appeal is a debatable point, however, and cannot be
resolved by procedural rule. Section 6101.5(a)(3) allows nonparties to
appear in a case as permitted by the presiding judge, and this will
permit the Board to hear from anyone who can assist in resolving a case
without the Board conferring ``party'' status.
6101.6 [Pleadings and amendment of pleadings]. One commentator
suggested deleting the second sentence of section 6101.6(c), arguing
that one-word responses stating an allegation is denied may be
appropriate and therefore should not be specifically discouraged. The
Board agrees and the sentence is deleted from section 6101.6(c).
6101.7 [Service of papers other than subpoenas]. In response to the
suggestions of three commentators, the Board amends section 6101.7(a)
in order (1) to clarify that the service of papers between parties must
be by a means of transmittal that is no less expeditious than that used
to send the document to the Board and (2) to provide that the parties
will confer and agree upon a method to serve papers on each other,
which method may be by electronic mail, facsimile, overnight courier,
hand delivery, or any other method that will accomplish service
promptly and efficiently. The commentators noted that, due to increased
security requirements in recent years, service of papers by mail,
particularly to government offices, may be delayed by weeks,
prejudicing the receiving party and ultimately delaying processing of
the case.
6101.8 [Motions]. One commentator suggested revising section
6101.8(e), which addresses the raising of jurisdictional questions, to
require resolution of such questions prior to any briefing or hearing
on the merits. Although the Board declines to adopt the suggested
revision, given that jurisdictional questions may not always be timely
recognized, the Board agrees that such questions should be resolved as
early as possible in a case. To avoid encouraging litigants to delay
raising jurisdictional issues, the second sentence of section 6101.8(e)
is deleted.
6101.10 [Admissibility of evidence]. One commentator suggested
revising section 6101.10(b) to acknowledge that the Board may determine
the credibility as well as the weight of evidence. The Board has now
determined, however, that section 6101.10(b) is unnecessary and more
properly a rule of substantive law rather than procedure, so that
section is deleted.
6101.16 [Subpoenas]. The Board received comments from a group of
lawyers, a non-profit association, and a government agency regarding
section 6101.16. The Board believes section 6101.16 as proposed is
appropriate and has not made any modification to it (other than
substituting the phrase ``electronically stored information'' for the
phrase ``electronic records'').
6101.17 [Exhibits]. The Board rejects one commentator's suggestion
that parties be required to include printed versions of electronic
documents in the record. Such a requirement might not always be
feasible or necessary, and section 6101.17 already provides that the
Board may order a party to provide printed versions of electronically
stored information to be included in the record. In addition, section
6101.4(e) similarly provides that the Board may require a party to file
either copies or printed versions of electronically stored information.
6101.18 [Election of hearing or record submission]. One commentator
suggested that if one party has elected to submit its case on the
record and has included affidavits or depositions with its submittal,
that party should be required to present at the hearing, for cross-
examination by the opposing party, those witnesses for whom it has
submitted affidavits or depositions. The Board rejects the suggestion,
finding not only that it would not serve the purpose of section
6101.18, which is to permit
[[Page 26949]]
submittal of a case on the written record, but also that the opposing
party may still call to testify those individuals for whom affidavits
or depositions were submitted.
6101.21 [Hearing procedures]. One commentator suggested that
section 6101.21(a)(4) be amended to restrict the Board's ability to
limit a hearing to issues of entitlement, while reserving the
determination of damages, if any, for later proceedings. The
commentator argued that bifurcation often results in inefficiency,
duplication of efforts, and delay. While this may be true in many
cases, it has been the Board's experience that, when parties receive a
decision on entitlement, they are usually able to settle the quantum
portion of the case without the need for a hearing. In addition, the
practice of the Board is to notify the parties of its decision to
bifurcate as early as possible before the hearing in order to relieve
the parties from unnecessary costs they might incur in preparing to
address the issue of damages. The Board believes that bifurcation is a
matter best left to the presiding judge's discretion.
A second commentator suggested that section 6101.21(a)(2), which
allows the Board to order a joint hearing on matters in separate cases
that involve common questions of law or fact, be limited to cases in
which the parties or the underlying transaction or occurrence are the
same. The Board believes that this, too, is a matter best left to the
presiding judge's discretion.
The same commentator also suggested that section 6101.21(g) be
revised to require, rather than merely allow, the presiding judge to
state for the record the inferences drawn from the refusal of a witness
to answer. The commentator argues that the parties should then be
permitted to provide additional testimony or evidence to support or
rebut those inferences. The Board rejects the suggested change as
impractical, given that proper inferences may not be clear until the
hearing has been completed and the judge has reviewed all of the
evidence.
6101.23 [Briefs and memoranda of law]. A commentator suggested that
section 6101.23(b) be revised to require the filing of posthearing
reply briefs in 21 rather than 15 days, given the complexity of many
cases before the Board. If needed, a party may request an enlargement
of time, and no change in the rule is necessary. Section 6101.23(a) is
amended, however, to clarify its intent to permit the presiding judge
to request prehearing and posthearing briefs and, at any point in the
proceedings, memoranda of law.
6101.30 [Award of fees and other expenses]. The Board has revised
section 6101.30(b), in response to one commentator's concerns, to add
the following sentence: ``An application for fees or other expenses may
not be filed before the Board's decision is final; a request for fees
or other expenses made before the Board's decision is final does not
constitute an application.'' The Board rejected the commentator's
suggestion, however, that section 6101.30 include a requirement that an
applicant seeking recovery of fees and expenses under the Equal Access
to Justice Act (EAJA), 5 U.S.C. 504, file a net worth exhibit. The
agency often agrees that the applicant meets the net worth
qualification for EAJA recovery, and such an exhibit would therefore be
unnecessary.
6101.31 [Payment of Board awards]. To be consistent with the
definitions provided at section 6101.1(b), section 6101.31(c) is
revised to change ``government agency'' to ``respondent''.
6101.51 [Variation from standard proceedings]. Section 6101.51 has
been revised in response to a comment that the initial paragraph of the
section may be misconstrued to limit the availability of the
alternative procedures in sections 6101.51 through 6101.54 to
individuals and small businesses. The penultimate sentence of that
paragraph is revised to read: ``Although any party may ask the Board to
vary from standard proceedings, individuals and small businesses may
find such variations to be especially useful.''
6101.52 [Small claims procedure]. To be consistent with the
definitions provided at section 6101.1(b), section 6101.52 is revised
to change ``Government'' to ``respondent''.
6101.53 [Accelerated procedure]. To be consistent with the
definitions provided at section 6101.1(b), section 6101.53 is revised
to change ``Government'' to ``respondent''.
6101.54 [Alternative dispute resolution]. Several comments were
received concerning section 6101.54. One commentator suggested that, to
avoid the appearance of judicial pressure on the parties to participate
in alternative dispute resolution (ADR) proceedings, section 6101.54 be
amended to prohibit the presiding judge or a panel judge in a case from
serving as an ADR neutral. The Board notes that no party should ever
feel pressured to participate in ADR or to select the presiding judge
to conduct ADR proceedings. There may, however, be good reasons for the
parties to request the presiding judge to serve as an ADR neutral, such
as the judge's familiarity with the facts and issues of the case. The
Board therefore has not amended the section as suggested.
Similarly, the Board declines the suggestion of another commentator
that a judge who has participated as a neutral in an unsuccessful ADR
proceeding may not continue with the case in subsequent proceedings
before the Board. As with the selection of a presiding or panel judge
to serve as ADR neutral, there may be good reasons for the parties to
want the ADR neutral to continue to serve on the panel or as the
presiding judge, such as familiarity with the facts and issues of the
case. The same commentator also suggested that section 6101.54(c)(1)
and (2) be amended to preclude any judge who has participated in
discussions about mediation in a case from participating in a Board
decision of the case if the ADR is unsuccessful. The suggested
prohibition is overly broad, encompassing even casual conversations
between judges, and therefore is not adopted.
D. 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 large or small businesses.
E. 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.
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: February 7, 2008.
Stephen M. Daniels,
Chairman, Civilian Board of Contract Appeals, General Services
Administration.
0
Accordingly, the interim rule amending 48 CFR Chapter 61 which was
published in the Federal Register at 72 FR 36794, July 5, 2007, is
adopted as a final rule with changes to Part 6101.
[[Page 26950]]
CHAPTER 61--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT
APPEALS
0
1. The authority citation for 48 CFR Part 6101 continues to read as
follows:
Authority: 41 U.S.C. 601-613.
0
2. Amend Chapter 61 by revising the Chapter heading as set forth above.
PART 6101--CONTRACT DISPUTE CASES
0
3. Amend Part 6101 by revising the Part heading as set forth above.
0
4. Amend section 6101.1 by revising paragraphs (b)(5) and (e) to read
as follows:
6101.1 Scope of rules; definitions; construction; rulings, orders,
and directions; panels; location and address [Rule 1].
* * * * *
(b) * * *
(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 to the Board. 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 submission by facsimile.
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.
* * * * *
(e) Panels. Each case will be assigned to a panel consisting of
three judges, with one member designated as the presiding judge, in
accordance with such procedures as may be established by the Board. The
presiding judge is responsible for processing the case, including
scheduling and conducting proceedings and hearings. In addition, the
presiding judge 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 6101.53(a)(2) [Rule 53(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.
* * * * *
0
5. Amend section 6101.4 by revising the introductory text of paragraph
(a), and paragraphs (a)(1) thru (a)(3), (e), and (g) to read as
follows:
6101.4 Appeal file [Rule 4].
(a) Submission to the Board by the respondent. Within 30 calendar
days from receipt of the Board's docketing notice 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, if any:
(1) The contracting officer's decision from which the appeal is
taken;
(2) The contract, including amendments, specifications, plans, and
drawings;
(3) All correspondence between the parties that is relevant to the
appeal, including the written claim or claims that are the subject of
the appeal, and evidence of their certification;
* * * * *
(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 electronically stored
information or printed versions of electronically stored information.
* * * * *
(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 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 shorten or 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.
* * * * *
0
6. Amend section 6101.6 by revising paragraph (c) to read as follows:
6101.6 Pleadings and amendment of pleadings [Rule 6].
* * * * *
(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. 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.
* * * * *
0
7. Amend section 6101.7 by revising paragraph (a) to read as follows:
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 an equally or more expeditious
means of transmittal. The parties will confer and agree upon the method
they will use to serve one another. They may agree to use electronic
mail, facsimile, overnight courier, hand delivery, or any other
mutually acceptable method for accomplishing service promptly and
efficiently.
* * * * *
0
8. Amend section 6101.8 by revising paragraph (e) to read as follows:
6101.8 Motions [Rule 8].
* * * * *
(e) Jurisdictional questions. The Board may at any time consider
the issue of its jurisdiction to decide a case.
* * * * *
0
9. Revise section 6101.10 to read as follows:
[[Page 26951]]
6101.10 Admissibility of evidence [Rule 10].
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.
10. Amend section 6101.12 by revising paragraph (e) to read as
follows:
6101.12 Suspensions and dismissals [Rule 12].
* * * * *
(e) Issuance of order. The presiding judge 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 presiding judge alone
if the motion to dismiss is not contested.
0
11. Amend section 6101.13 by revising paragraphs (a)(3), (b), and (g)
to read as follows:
6101.13 General provisions governing discovery [Rule 13].
(a) * * *
(3) Requests for production of documents, electronically stored
information, or other tangible or intangible things; and
* * * * *
(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, electronically stored information, 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 reasonably calculated to lead to the
discovery of admissible evidence.
* * * * *
(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, electronically stored information, and things under
6101.14 [Rule 14], the party seeking discovery may move the Board to
impose appropriate sanctions under 6101.33 [Rule 33].
* * * * *
0
12. Amend section 6101.14 by revising paragraphs (c), (d), and (f) to
read as follows:
6101.14 Interrogatories to parties; requests for admission; requests
for production [Rule 14].
* * * * *
(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 electronically stored information, 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, electronically
stored information, 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)].
* * * * *
(f) Responses. A party that has responded to written
interrogatories, requests for admission, or requests for production of
documents, electronically stored information, or things, upon becoming
aware of deficiencies or inaccuracies in its original responses, or
upon acquiring additional information or additional documents,
electronically stored information, 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, electronically
stored information, and things as are necessary to give a complete and
accurate response to the request.
0
13. Amend section 6101.16 by revising paragraph (b)(3) to read as
follows:
6101.16 Subpoenas [Rule 16].
* * * * *
(b) * * *
(3) Produce the books, papers, documents, electronically stored
information, and other tangible and intangible things designated in the
subpoena.
* * * * *
0
14. Amend section 6101.17 by revising paragraph (b) to read as follows:
6101.17 Exhibits [Rule 17].
* * * * *
(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 electronically stored
information or printed versions of electronically stored information to
be included in the record.
* * * * *
0
15. Amend section 6101.23 by revising the introductory text of
paragraph (a) to read as follows:
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. The presiding judge may request prehearing and posthearing
briefs and may also request, at any point in the proceedings, memoranda
of law. Prehearing and posthearing briefs should, at a minimum,
succinctly set forth:
* * * * *
[[Page 26952]]
0
16. Amend section 6101.30 by revising paragraph (b) to read as follows:
6101.30 Award of fees and other expenses [Rule 30].
* * * * *
(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. An application for fees
or other expenses may not be filed before the Board's decision is
final; a request for fees or other expenses made before the Board's
decision is final does not constitute an application.
* * * * *
0
17. Amend section 6101.31 by revising paragraph (c) to read as follows:
6101.31 Payment of Board awards [Rule 31].
* * * * *
(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
respondent. Upon receipt of a completed and executed Certificate of
Finality, unless the respondent files a timely appeal from the
decision, the person or persons who entered an appearance in the appeal
on behalf of the respondent 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.
0
18. Amend section 6101.51 by revising the introductory paragraph and
paragraph (d) to read as follows:
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. Although any party may ask the Board to vary from
standard proceedings, individuals and small businesses may find such
variations to be especially useful. The following are examples of these
changes:
* * * * *
(d) Developing a record regarding relevant facts through an on-the-
record round-table discussion with sworn witnesses, counsel, and the
presiding judge rather than through formal direct and cross-examination
of each of these same witnesses. This discussion shall be controlled by
the presiding judge. It may be conducted, for example, through the
presentation of narrative statements of witnesses or on an issue by
issue basis. The presiding judge may also request that the parties'
counsel or representatives present opening and/or closing statements in
lieu of written briefs.
0
19. Amend section 6101.52 by revising the introductory text of
paragraph (a)(1), and paragraphs (a)(2), (b), and (d) to read as
follows:
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 presiding judge enlarges the time for good cause shown. The
appellant may elect this procedure when:
* * * * *
(2) At the request of the respondent, 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 respondent
shall raise any objection to the election no later than 10 working days
after receipt of a notice of election.
(b) Decision. The presiding judge 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.
* * * * *
(d) Time of decision. Whenever possible, the presiding judge 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.
0
20. Amend section 6101.53 by revising paragraphs (a) and (b) to read as
follows:
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 presiding judge enlarges the time for
good cause shown.
(2) At the request of the respondent, 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 respondent 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 presiding
judge 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.
* * * * *
[FR Doc. E8-10484 Filed 5-9-08; 8:45 am]
BILLING CODE 6820-AL-S