[Federal Register Volume 73, Number 124 (Thursday, June 26, 2008)]
[Rules and Regulations]
[Pages 36257-36267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14355]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 124 / Thursday, June 26, 2008 / Rules
and Regulations
[[Page 36257]]
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 22
Rules of Procedure of the Government Accountability Office
Contract Appeals Board
AGENCY: Government Accountability Office.
ACTION: Interim rule.
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SUMMARY: This document contains the rules of procedures of the
Government Accountability Office (GAO) Contract Appeals Board (Board),
which will govern all proceedings before the Board. The Board was
established pursuant to sec. 1501 of title I of division H of the
Consolidated Appropriations Act of 2008 to hear appeals from decisions
of contracting officers with respect to any contract entered into by a
legislative branch agency. The following rules of procedure are
promulgated pursuant to sec. 1501(d) of that act and are applicable to
all appeals filed with the Board on or after October 1, 2007. The Board
invites comments on this interim rule and intends to publish a final
rule after considering all comments received on or before the closing
date for comments.
DATES: Comments must be submitted on or before August 25, 2008.
ADDRESSES: Comments may be submitted by e-mail at [email protected] or by
facsimile at 202-512-9749. Due to delivery delays, submission by
regular mail is discouraged. Comments may be sent by Federal Express
(FedEx) or United Parcel Service (UPS) addressed to: James A.
Spangenberg, Chairman, Government Accountability Office Contract
Appeals Board, 441 G Street, NW., Room 7182, Washington, DC 20548.
FOR FURTHER INFORMATION CONTACT: James A. Spangenberg (Chairman), David
Ashen (Vice Chairman), or Sharon L. Larkin (Member), 202-512-3342,
[email protected]. Hearing or speech impaired individuals may contact the
Board via TTY by calling the toll-free Federal Information Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The Armed Services Board of Contract Appeals and the Civilian Board
of Contract Appeals has been established to resolve appeals of
contracting officers' decisions involving contracts with executive
branch agencies, pursuant to the Contracts Disputes Act of 1978 (CDA),
Public Law 95-563, 41 U.S.C. 601 et seq. However, no such permanent
board has existed to resolve similar appeals involving contracts with
legislative branch agencies. Previously, the GAO provided qualified
attorneys to staff various contract appeals boards that were created on
an ad hoc basis to consider appeals involving contracts of the
Architect of the Capitol. These ad hoc boards were created under either
direct appointment by congressional committees or by agreement with the
Architect of the Capitol under the Economy Act, 31 U.S.C. 1535. In
addition, an ad hoc contract appeals board staffed by qualified GAO
attorneys was established in 2006 to consider appeals concerning
contracts of the Government Printing Office pursuant to a memorandum of
understanding between these agencies under the Economy Act. As a result
of the Consolidated Appropriations Act of 2008, further described
below, the GAO will no longer decide contract appeals through the
various ad hoc boards, but will hear and resolve all newly filed
appeals involving contracts with legislative branch agencies through a
permanent Board that was established pursuant to the Act. Appeals that
are filed on or after October 1, 2007, will be decided by the newly
established Board. Appeals that were filed before October 1, 2007, and
which are pending before various ad hoc boards, are not affected by
this interim rule; the rules of procedure issued by those boards will
remain in effect for those appeals.
Statutory Authority
Section 1501 of title I of division H of the Consolidated
Appropriations Act of 2008, Public Law 110-161, 121 Stat. 1844, 2249-50
(Dec. 26, 2007) (to be codified at 31 U.S.C. 720 note (2008)),
established a permanent Board within the GAO to consider appeals
involving contracts with legislative branch agencies. Legislative
branch agencies are defined to include the Architect of the Capitol;
United States Botanic Gardens; GAO; Government Printing Office; Library
of Congress; Congressional Budget Office; United States Capitol Police;
and any other agency, board, or commissions established in the
legislative branch of Government. Six members of the Board, including a
Chairman and Vice Chairman, have been competitively appointed, all of
whom are GAO attorneys with at least 5 years of public contract
experience. The Board shall operate as an independent function within
GAO's Office of General Counsel.
With certain identified exceptions, sec. 1501 of title I of
division H of the Consolidated Appropriation Act of 2008 applies the
CDA to appeals filed with the Board. One notable exception to the CDA,
contained within sec. 1501(d), is that contractors do not have a right
to directly appeal a decision of a contracting officer to the Court of
Federal Claims as is authorized under the CDA. Another exception under
sec. 1501(d) is that contractors are required to certify claims
exceeding $50,000, instead of the $100,000 required by the CDA, as a
prerequisite to filing an appeal of a contracting officer's decision.
The rules of procedure for the newly established Board are
promulgated pursuant to sec. 1501(d) of title I of division H of the
Consolidated Appropriations Act of 2008, which requires the Comptroller
General to prescribe regulations for procedures for appeals to the
Board that are consistent with procedures under the CDA. This authority
has been delegated to the Chairman of the Board. These rules of
procedure are based on rules previously issued by the GAO to govern
procedures of the various ad hoc boards, as well as those promulgated
by the Armed Services Board of Contract Appeals and the Civilian Board
of Contract Appeals, with adaptations to achieve greater efficiency in
case management and resolution.
[[Page 36258]]
Comments Invited
The GAO is not subject to the Administrative Procedures Act and,
accordingly, the Board is not required by law to seek comments before
issuing a final rule. However, the Board has decided to invite
interested persons to participate in this rulemaking by submitting
written comments regarding the proposed revisions. Application of the
Administrative Procedures Act to the GAO or the Board is not to be
inferred from this invitation for comments.
The Board will consider all comments received on or before the
closing date for comments. The Board may revise the interim rule based
on comments received.
List of Subjects in 4 CFR Part 22
Administrative practice and procedure, Contract Appeals Board,
Government contracts.
0
For the reasons set out in this preamble, in title 4, chapter I,
subchapter B of the Code of Federal Regulations, part 22 is added to
read as follows:
PART 22--RULES OF PROCEDURE OF THE GOVERNMENT ACCOUNTABILITY OFFICE
CONTRACT APPEALS BOARD
Sec.
22.1 Applicability of Rules [Rule 1].
22.2 Board Consideration [Rule 2].
22.3 Appeal--How Taken [Rule 3].
22.4 Appeal File [Rule 4].
22.5 Pleadings [Rule 5].
22.6 Motions, Briefs, and Other Statements [Rule 6].
22.7 Copies and Service Thereof [Rule 7].
22.8 General Discovery Procedures [Rule 8].
22.9 Subpoenas [Rule 9].
22.10 Sanctions [Rule 10].
22.11 Depositions [Rule 11].
22.12 Interrogatories [Rule 12].
22.13 Requests for Admission [Rule 13].
22.14 Production of Documents, Electronically Stored Information,
Other Tangible Things, or Entry Onto Land [Rule 14].
22.15 Conferences and Orders [Rule 15].
22.16 Hearings [Rule 16].
22.17 Submission on the Record Without a Hearing [Rule 17].
22.18 Closing the Record [Rule 18].
22.19 Findings and Decisions of the Board [Rule 19].
22.20 Mistakes and Corrections [Rule 20].
22.21 Motion for Reconsideration [Rule 21].
22.22 Accelerated and Small Claims Procedures [Rule 22].
22.23 Suspension of Proceedings [Rule 23].
22.24 Alternative Dispute Resolution [Rule 24].
22.25 Protective Orders and In Camera Review [Rule 25].
22.26 Representation of the Parties [Rule 26].
22.27 Ex Parte Communications [Rule 27].
22.28 Time [Rule 28].
22.29 Inspection of the Record [Rule 29].
Authority: Sec. 1501, Public Law 110-161, 121 Stat. 2249.
Sec. 22.1 Applicability of Rules [Rule 1].
The Government Accountability Office Contract Appeals Board is
authorized to hear appeals from decisions of contracting officers with
respect to any contract entered into by a legislative branch agency.
These rules shall apply to all appeals filed with the Board on or after
October 1, 2007.
Sec. 22.2 Board Consideration [Rule 2].
(a) Offices. The office of the Board shall be at the Government
Accountability Office, 441 G Street, NW., Washington, DC 20548, or in
such other place as may from time to time hereafter be assigned for its
use. All files and records of the Board shall be kept at such office.
All communications, pleadings, and/or documents addressed to the Board
shall be addressed or delivered to the Board at the Government
Accountability Office, 441 G Street, NW., Room 7182, Washington, DC
20548; Telephone: 202-512-3342; Facsimile: 202-512-9749; E-mail:
[email protected].
(b) Three Member Panel. Generally, all appeals will be assigned to
a panel of three members of the Board appointed by the Chairman of the
Board; said panel may or may not include the Chairman of the Board as a
member. Each panel will include a presiding member who is responsible
for case management, including scheduling, and who may, without
participation of the other panel members, rule on non-dispositive
motions and resolve procedural disputes. Hearings on appeals may be
held by one or more of the panel members of the Board. Appeals resolved
under the Board's small claims or accelerated procedures (see Sec.
22.22 of this part [Rule 22]) may be decided by a single member of the
Board. Requests for consideration of a matter by all members of the
Contract Appeals Board will not be granted in any appeal filed under
these rules.
(c) Absence or Disability of Chairman. The activities of the Board
shall be performed under the supervision of the Chairman of the Board.
In the absence of, or during the disability of, the Chairman, the Vice
Chairman of the Board shall act as the Chairman.
Sec. 22.3 Appeals--How Taken [Rule 3].
(a) Form. An appeal by the contractor shall be filed with the Board
in the form of a written notice of appeal. The notice shall identify
the contract by number, the name of the government agency and/or
department against which the claim is asserted, the contracting officer
for the subject dispute, the decision from which the appeal is taken,
an estimate of the amount of money in controversy, if any, and shall be
signed personally by the appellant (the contractor making the appeal)
or by his representative or attorney. The complaint referred to in
Sec. 22.5(a) of this part [Rule 5(a)] may be filed with the notice of
appeal or the appellant may designate the notice of appeal as a
complaint if it otherwise fulfills the requirements of a complaint. The
appellant shall promptly provide a copy of the appeal and complaint to
the contracting officer.
(b) Timeliness. (1) For claims where a contracting officer has
issued a final decision, the contractor may file an appeal no later
than 90 days after it receives the contracting officer's final
decision.
(2) For certified claims submitted to the contracting officer in
excess of $50,000 where the contracting officer has not issued a final
decision within a reasonable time, taking into account such factors as
the size and complexity of the claim, the contractor may file a notice
of appeal citing the failure of the contracting officer to issue a
decision.
(3) For claims submitted to the contracting officer in the amount
of $50,000 or less where the contracting officer has not issued a final
decision within 60 days of the contractor's request that a final
decision be issued within that time, the contractor may file a notice
of appeal citing the failure of the contracting officer to issue a
decision.
(4) In lieu of a notice of appeal filed under paragraphs (b)(2) or
(b)(3) of this section [Rules 3(b)(2) or 3(b)(3)], the contractor may
request that the Board direct a contracting officer to issue a decision
within a specified period of time, as determined by the Board, in the
event of undue delay by the contracting officer in issuing a decision.
(5) An appeal filed with the Board will be deemed ``filed'' on the
date actually received by the Board if received by 5:30 p.m. Eastern
Standard Time (EST), or on the next business day if received after 5:30
p.m. EST.
(c) Service of the Appeal; Copies. An original plus 3 copies of the
appeal shall be filed with the Board by hand delivery, express or
priority mail, approved commercial carrier (e.g., UPS or FedEx),
facsimile, or e-mail, although e-mail is the preferred method of
delivery in all Board matters. The use of first class or parcel post
mail is strongly discouraged because the delivery delays and screening
process for government
[[Page 36259]]
mail could result in untimely filed appeals. If filed by e-mail or
facsimile, the appellant shall provide the original plus 3 copies to
the Board by hand delivery or commercial carrier within 2 business days
of the e-mailed or facsimile transmitted filing. The appellant shall
furnish a copy of the appeal to the contracting officer from whose
decision, or failure to issue the decision, the appeal is taken using
the same method or service as for the Board, or an equal or more
expeditious method of service. For service of documents once an appeal
has commenced, see Sec. 22.7(b) of this part [Rule 7(b)].
(d) Docketing. When the Board receives a notice of appeal from the
appellant, the Board will promptly docket the appeal and provide
written notice of docketing to all parties, or their counsel, with a
copy of these rules.
(e) Consolidation. The Board, in its discretion, may consolidate
cases involving common issues of law or fact.
Sec. 22.4 Appeal File [Rule 4].
(a) Duties of the Contracting Officer. (1) Within 30 days after
receipt of the complaint, or within such other period of time as may be
established by the Board, the contracting officer shall assemble and
transmit to the Board an appeal file consisting of all documents
pertinent to the appeal, including:
(i) The decision from which the appeal is taken;
(ii) The contract, including relevant specifications, amendments,
plans, and drawings;
(iii) All correspondence between the parties relevant to the
appeal, including the letter or letters of claim in response to which
the decision was issued;
(iv) All documents and other tangible things on which the
contracting officer relied in making the decision, and any
correspondence relating thereto;
(v) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the
matter in dispute made prior to the filing of the notice of appeal with
the Board; and
(vi) Any additional information or evidence considered relevant to
the appeal.
(2) Within the same time specified above, the contracting officer
shall furnish the appellant a copy of each document he or she transmits
to the Board, except those in paragraph (a)(1)(ii) of this section
[Rule 4(a)(1)(ii)]. As to the latter, a list furnished to the appellant
indicating specific contractual documents transmitted will suffice.
Documents filed under this rule, and any supplements, shall be
organized and filed in accordance with paragraph (d) of this section
[Rule 4(d)].
(b) Duties of the Appellant. Within 30 days after receipt of a copy
of the appeal file provided pursuant to paragraph (a) of this section
[Rule 4(a)], or within such other period of time as may be established
by the Board, the appellant shall transmit to the Board for inclusion
in the appeal file any documents not contained therein which the
appellant considers to be relevant to the appeal. Within the same
period of time, the appellant shall furnish a copy of such documents to
the contracting officer or counsel for the government. Documents filed
under this rule shall be organized and filed in accordance with
paragraph (d) of this section [Rule 4(d)].
(c) Continuing Duty to Supplement the Record. All parties have a
continuing duty to supplement the record with relevant documents and
tangible things, and the appeal file may be supplemented by any party
at any time before the closing of the record. In cases where a hearing
is requested, these supplements shall be provided well in advance of
the pre-hearing conference so that objections to admissibility may be
heard and resolved, to the maximum extent possible, in advance of the
hearing. All supplements to the appeal file shall be organized and
filed in accordance with paragraph (d) of this section [Rule 4(d)].
(d) Organization of Appeal File. Only relevant documents and
tangible things should be provided as part of the appeal file. Appeal
file documents may be originals or true, legible, and complete copies
or facsimiles. The appeal file shall be arranged in chronological order
with the earliest documents first; bound in a 3-ring binder (or
binders) or similar loose-leaf binder(s) no larger than 4 inches in
width, except where size or shape makes such binding impracticable;
numbered; tabbed; and indexed. Numbering of pages shall be consecutive
and continuous from one page to the next (i.e., ``Bates'' numbered), so
that the complete file, including any supplements, will consist of one
set of consecutively numbered pages. Preceding each Bates number shall
be a designation ``A'' for appellant or ``R'' for respondent,
indicating which party provided the document. Multiple binders shall be
consecutively numbered and include references on the outside cover and
binding that state the range of tab numbers and Bates numbers contained
therein. Within each binder, tabs shall separate each document;
multiple documents shall not be placed behind a single tab, unless each
document is separated by a divider. The appeal file shall include an
index identifying each document included in the appeal file by date,
brief description of the document, and the tab and Bates numbers where
the document can be located in the appeal file. The Board may, in its
discretion or upon request of a party, order an alternative
organization of the appeal file. If an alternative organization of the
appeal file is permitted, such as by document type or topic, documents
within that grouping must be presented in chronological order to the
extent possible. The Board may impose special requirements on the
production of electronic documents and, if any portion of the Sec.
22.4 [Rule 4] file or supplement contains electronic documents, the
party submitting such documents shall contact the Board before
submission for guidance.
(e) Submissions on Order of the Board. The Board may, at any time
during the pendency of the appeal, require any party to file documents
or tangible things as additional exhibits. The Board may also require a
party to file printed versions of electronic records or, conversely,
may require electronic versions of printed documents.
(f) Status of Documents in the Record. Documents contained in the
appeal file are considered, without further action by the parties, as
part of the record upon which the Board will render its decision.
However, a party may object to consideration of a particular document
or documents by filing a written objection. Such objections shall be
raised by motion pursuant to Sec. 22.6 of this part [Rule 6] and shall
be filed as early as necessary to allow the Board, to the maximum
extent possible, to resolve the objection in advance of a scheduled
hearing, or before the record is closed if no hearing is held.
Sec. 22.5 Pleadings [Rule 5].
(a) Complaint. Within 15 days after receipt of the docketing notice
from the Board, or within such other period of time as may be
established by the Board, the appellant will file with the Board, if
not previously filed with the notice of appeal, a complaint setting
forth simple, concise, and direct statements of each of its claims
showing that it is entitled to relief; identifying the contract
provision or provisions under which relief is claimed; and stating the
amount in controversy or an estimate thereof, if known, and/or the
relief requested. The complaint shall be limited to those requests for
relief which have been presented to the contracting officer and were
either denied or not ruled upon by the contracting officer in
accordance with Sec. 22.3 of this part [Rule 3]. No
[[Page 36260]]
technical form is required, but each claim should be separately
identified. In the event that the complaint is not filed within the
time stated above, the appeal may be dismissed by the Board for lack of
prosecution.
(b) Answer. Within 30 days after receipt of the complaint, or
within such other period of time as may be established by the Board,
the contracting officer or counsel for the government shall prepare and
file with the Board an answer thereto. The answer shall set forth
simple, concise, and direct statements of the government's defenses to
each claim asserted by the appellant. Each defense shall be stated with
as much particularity as is practicable. Defenses which go to the
Board's jurisdiction may be included in the answer, or may be raised by
motion pursuant to the provisions of Sec. 22.6 of this part [Rule 6].
Motions in lieu of an answer may be filed only with the advance
permission of the Board.
(c) Small Claims and Accelerated Procedures. When an appellant
elects to use the small claims or accelerated procedures described in
Sec. 22.22 of this part [Rule 22], the Board may shorten the time for
filing the complaint and answer.
(d) Amendment of Pleadings. At any time before a hearing on the
merits, or before the closing of the record when a hearing is not held,
the Board in its discretion may permit a party to amend its complaint
or answer concerning matters that are within the proper scope of the
appeal, upon conditions that are just to both parties. The Board, upon
its own initiative or upon application by a party, may in its
discretion order a party to make a more definite statement of its
complaint or answer, or to reply to an answer. When issues within the
proper scope of the appeal, but not raised by the complaint and answer,
are determined by express or implied consent of the parties as having
been raised, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the complaint and answer as
may be necessary to cause them to conform to the evidence may be made
upon motion at any time, but failure to so amend does not affect the
result of the hearing of these issues. If evidence is objected to at
the hearing on the ground that it is not within the issues raised by
the complaint and answer, the Board may allow the pleadings to be
amended within the proper scope of the appeal and shall do so freely
when the presentation of the merits of the action will be served
thereby and the objecting party fails to satisfy the Board that the
admission of such evidence would prejudice it in maintaining its appeal
or defense on the merits. The Board may, however, grant a continuance
to enable the objecting party to respond to such evidence.
Sec. 22.6 Motions, Briefs, and Other Statements [Rule 6].
(a) Motions, Generally. Motions shall be made in writing, indicate
the relief sought and include the grounds therefor, and be filed with
the Board as soon as practicable after the grounds therefor are known
and as early as necessary to allow the Board to rule on the motion in
advance of a scheduled hearing. Except for motions submitted under
paragraph (d) of this section [Rule 6(d)], any party may respond to a
motion by submitting a written response to the motion within 10 days of
receipt of the motion, and the moving party may reply to the response
within 5 days of receipt of the response, except that the Board, in its
discretion, may shorten or lengthen the time for the response and reply
based on the nature of the motion, the nature and timing of the case,
and the scheduling needs of the Board. The Board may request additional
submissions from the parties and may decide motions on the written
submissions without oral argument. The Board shall decide all motions
before the hearing on the merits unless the Board determines that a
ruling be deferred pending a hearing on both the merits and the motion.
Jurisdictional and procedural defenses may be raised at any time by
motion, but should be raised as soon as the grounds therefor are known;
and the Board, at any time and on its own initiative, may raise an
issue of jurisdiction and may decline to proceed with an appeal in
which it lacks authority to decide the issues. All motions, responses,
replies, and additional submissions required by the Board shall be
filed in accordance with paragraphs (b) and (c) of this section [Rules
6(b) and 6(c)].
(b) Briefs and Citations. In addition to submissions required by
these rules, the Board may require the parties to file legal or factual
briefs concerning any matter that may aid in the disposition of the
appeal. When such briefs or submissions are required (by rule or by the
Board), the brief or submission shall contain citations to the record
and legal authority as appropriate, and follow such other format as may
be directed by the Board. Citations to the record must be specific
(i.e., to Bates number or other similar designation) so that the Board
can locate the exact proposition or matter to which the party is
referring. The parties should not expect the Board to search the record
for evidence in support of either party's position. Briefs and
submissions that are not submitted in the required format, or which do
not contain adequate citations to the record or legal authority, may be
rejected by the Board or returned to the party with an order that the
party resubmit the brief or submission with appropriate revisions.
(c) Declarations, Affidavits, or Other Statements. Any declaration,
affidavit, or other statement that is submitted to explain the record
must, to the maximum extent possible, include citations to the record
in support of the statement, argument, or analysis made. Citations to
the record must be specific (i.e., to Bates number or similar
designation). Declarations, affidavits, or other statements containing
inadequate citations may be returned to the party with an order that
the party resubmit the statement with appropriate revisions.
(d) Motions for Summary Judgment--(1) Generally. Motions for
summary judgment or partial summary judgment shall be filed only when a
party believes, based on uncontested material facts, that it is
entitled to relief, in whole or in part, as a matter of law. Such
motions shall be filed as soon as practicable to allow the Board to
rule on the motion in advance of a scheduled hearing. In considering a
motion, or partial motion, for summary judgment, the Board will
consider the pleadings, depositions, answers to interrogatories,
admissions of record, and affidavits provided, and will grant such
motion if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. In deciding motions
for summary judgment, the Board will look to Rule 56 of the Federal
Rules of Civil Procedure for guidance.
(2) Requirements. Where both parties agree that disposition by
summary judgment or partial summary judgment is appropriate, they shall
file a stipulation of all material facts necessary for the Board to
rule on the motion. Otherwise, the moving party shall file with its
motion a ``Statement of Undisputed Material Facts'' setting forth the
claimed undisputed material facts in separately numbered paragraphs,
each of which shall be supported by citations to the Sec. 22.4 [Rule
4] file or other evidence establishing the facts. The non-moving party
shall file a ``Statement of Genuine Issues of Material Facts,''
responding to each numbered paragraph, demonstrating the existence of
genuine issues of material facts where appropriate, and including for
each fact citations to the Sec. 22.4 [Rule 4] file or
[[Page 36261]]
other evidence in support. A fact properly proposed by one party may be
accepted by the Board as undisputed unless the opposing party properly
responds and establishes that the fact is in dispute. An opposing party
may not rely on mere allegations or denials in its pleadings to
demonstrate the existence of a genuine issue of material fact. Either
party may rely on affidavits, depositions, answers to interrogatories,
or admissions of record to establish the existence of, or to dispute, a
material fact. The moving party and non-moving party each shall submit
a memorandum of law supporting or opposing summary judgment, and the
moving party may file a reply to the non-moving party's opposition of
the motion.
(3) Time. Generally, the non-moving party shall file its opposition
to a motion for summary judgment or partial summary judgment within 20
days of receipt of the motion, and the moving party's reply is due
within 10 days of receipt of the opposition, except that the Board, in
its discretion, may shorten or lengthen the time for opposition and
reply based on the nature of the motion, the nature and timing of the
case, and the scheduling needs of the Board.
(4) Citations. All motions for summary judgment, oppositions to
such motions, briefs, and statements in support of the motions or
opposition to the motions shall be filed in conformance with paragraphs
(b) and (c) of this section [Rules 6(b) and 6(c)].
Sec. 22.7 Copies and Service Thereof [Rule 7].
(a) Rule 4 File. For documents provided pursuant to Sec. 22.4 of
this part [Rule 4], the original and one copy shall be provided to the
Board, and one copy shall be provided to each party. Documents shall be
provided by hand delivery, express or priority mail, or approved
commercial carrier (e.g., UPS or FedEx); first class and parcel post
mail are not permitted unless authorized by the Board.
(b) Other Submissions Filed with the Board. Except as otherwise
authorized by the Board, all correspondence and submissions, other than
documents provided pursuant to Sec. 22.4 of this part [Rule 4] and
appeals filed under Sec. 22.3(c) of this part [Rule 3(c)], shall be
provided to the Board by e-mail at [email protected], with a courtesy copy of
the submission provided by e-mail to each of the members of the Board.
All e-mails to [email protected] must identify the case name and docket
number in the subject line of the e-mail. In addition, unless the Board
directs otherwise, the original plus 3 copies of the e-mailed
submission also shall be provided to the Board by hand delivery,
express or priority mail, or approved commercial carrier (e.g., UPS or
FedEx) within 2 business days of the e-mailed filing (except that the
original and one copy are required for appeals involving small claims
or using accelerated procedures). Delivery to the Board by first class
or parcel post mail is not permitted. However, the Board may at any
time modify the number of copies required or authorize alternative
methods of delivery to the Board.
(c) Service on Parties. All correspondence and submissions to the
Board must be provided to all other parties using the same method of
service as used for the Board, or an equal or more expeditious method
of service. Except for documents provided pursuant to Sec. 22.4 of
this part [Rule 4], e-mail service is preferred. However, where the
parties agree to other methods of service, such other methods of
service to parties are permitted.
(d) Proof of Service. A party sending a document to the Board must
represent to the Board that a copy has been sent to the other parties,
identify the date on which service was made, and identify the method of
delivery used. This may be done by certificate of service, by notation
of a photostatic copy (cc:), or by any other means that can reasonably
be expected to show the Board that the other party has been provided a
copy, the date on which the copy was provided, and the method of
delivery used to provide the copy. Proof of service must be provided to
the Board at the time of filing. If proof of service is not provided,
the Board may decline to consider the document in the appeal.
Sec. 22.8 General Discovery Procedures [Rule 8].
(a) General Policy and Methods of Discovery. The parties are
encouraged to engage in voluntary discovery procedures and may obtain
discovery by one or more of the following methods: Depositions; written
interrogatories; requests for admissions; and requests for production
of documents, electronically stored information, other tangible things,
or entry onto land.
(b) Scope of Discovery. Except as otherwise limited by order of the
Board, the parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involving the
pending appeal, whether it relates to a claim or defense of a party,
including the existence, description, nature, custody, condition, and
location of any books, documents, electronically stored information, or
other tangible things, and the identity and location of persons having
knowledge of any discoverable matter. It is not a ground for objection
that the information sought will be inadmissible if the information
sought appears reasonably calculated to lead to the discovery of
admissible evidence.
(c) Discovery Plan, Conferences, and Orders. Within 30 days of the
initial filing of documents in accordance with Sec. 22.4(a) of this
part [Rule 4(a)], the parties shall confer and file with the Board a
proposed discovery plan, which shall include estimated time frames and
proposed dates for completing discovery and when the parties anticipate
that a hearing can be scheduled. Upon request of a party or on its own
initiative, the Board may at any time hold an informal meeting or
telephone conference with the parties to identify outstanding issues
relating to discovery; establish a plan and schedule for discovery; set
limitations on discovery; compel compliance with discovery; and issue
such orders or determine such other matters as are necessary for the
proper management of discovery, including imposing sanctions on the
parties as may be appropriate.
(d) Discovery Limits. On motion or on its own initiative, the Board
may make any order necessary to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense. Such
order may impose limitations on the scope, method, time and place for
discovery, and include provisions for protecting the secrecy of
confidential information or documents.
(e) Discovery Objections. Unless otherwise ordered by the Board,
any objection to a discovery request must be filed with the Board
within 15 days of receipt of the request. Objections must be filed in
writing and state with specificity the grounds therefor. Upon receipt,
the Board will establish a schedule for resolving the objections, which
may include additional briefing by the parties or oral argument, and
will determine the extent to which discovery will be permitted. A party
shall fully respond to any discovery request to which it does not file
a timely objection, in accordance with paragraph (f) of this section
[Rule 8(f)]. The parties are required to make a good faith effort to
resolve objections to discovery requests informally prior to seeking
relief from the Board.
(f) Discovery Responses. Unless otherwise ordered by the Board, a
party is required to respond to written interrogatories, requests for
admission, and requests for production of documents, electronically
stored information, other tangible things, or entry onto land within 30
days of receipt.
[[Page 36262]]
(g) Duty to Supplement Discovery Responses. A party that has
responded to written interrogatories, requests for admission, or
requests for production of documents, electronically stored
information, or other tangible things, upon becoming aware of
deficiencies or inaccuracies in its original responses, or upon
acquiring additional information or documents relevant thereto, shall,
as quickly as practicable, and as often as necessary, supplement its
responses to the requesting party with correct and sufficient
additional information and such additional documents as are necessary
to give a complete and accurate response to the request.
(h) Voluntary Cooperation. Each party is expected to cooperate by
making available witnesses and evidence under its control when
requested by another party, and to secure the voluntary attendance of
third-party witnesses and production of evidence by third parties, when
practicable.
(i) Motions to Compel Discovery. If a party refuses to comply with
a discovery request, or a party's response to a discovery request is
incomplete or entirely absent, any other party may file a motion to
compel a response. However, such motion must include a representation
that the moving party has tried in good faith, prior to filing the
motion, to resolve the matter informally. The motion to compel shall
include a copy of each discovery request at issue and the response, if
any.
(j) Sanctions. If, after being properly served with such discovery
request, a party fails to appear for deposition, respond to
interrogatories or requests for admissions, or respond to a request for
production of documents, electronically stored information, other
tangible things, or entry onto land, the party seeking discovery may
move the Board to impose sanctions under Sec. 22.10 of this part [Rule
10].
Sec. 22.9 Subpoenas [Rule 9].
(a) Issuance. Upon the written request of any party, or on the
initiative of the Board, a subpoena may be issued that commands the
person to whom it is directed to attend and give testimony at a
deposition or hearing, and/or produce documents or electronically
stored information (including writings, papers, books, accounts,
photographs, drawings, graphs, charts, recordings, and other data or
data compilations) or other tangible things designated in the subpoena,
or to permit entry onto designated premises for inspection or other
purposes. Requests for subpoenas shall identify the Board and state the
name and docket number of the appeal; identify the name of the person
to whom the subpoena is directed; command the person to whom the
subpoena is directed to, at a specific place and time, appear and
testify, or produce designated documents, electronically stored
information, or other tangible things, or permit the inspection of
designated premises; and state the scope and relevance of the requested
testimony or evidence to the appeal. All requests for subpoenas shall
be filed at least 15 days before the testimony or evidence is to be
provided, except that the Board may, in its discretion, honor requests
for subpoenas not made within this time limitation.
(b) Service. The party requesting the subpoena shall cause the
subpoena to be served upon the person named in the subpoena as soon as
practicable after the subpoena has been issued and shall provide proof
of service to the Board. Service shall be made by any person who is not
a party and not less than 18 years of age by personal delivery to the
person named in the subpoena, and shall include tender of the fees for
one day attendance and the mileage allowed by 28 U.S.C. 1821 or other
applicable law; however, where the subpoena is issued on behalf of the
government, money payments need not be tendered in advance of
attendance.
(c) Motions to Quash. Upon written motion of the person named in
the subpoena or a party, the Board may quash or modify the subpoena if
it is unreasonable and oppressive or for other good cause shown, or the
Board may require the party in whose behalf the subpoena was issued to
advance the reasonable costs of producing subpoenaed evidence. Motions
to quash or modify a subpoena must be filed within 10 days of service
of the subpoena or by the date and time specified in the subpoena for
compliance, whichever is earlier.
(d) Contumacy. In the case of contumacy or refusal to obey a
subpoena by a person who resides, is found, or transacts business
within the jurisdiction of a United States district court, the Board
may apply to the court through the Attorney General of the United
States for an order requiring the person to appear before the Board to
give testimony, produce evidence, or both.
Sec. 22.10 Sanctions [Rule 10].
(a) Standards. All parties and their representatives, attorneys,
and any experts/consultants retained by them or their attorneys, must
obey directions and orders prescribed by the Board and adhere to
standards of conduct applicable to such parties and persons. As to an
attorney, the standards include the rules of professional conduct and
ethics of the jurisdictions in which an attorney is licensed to
practice, to the extent that those rules are relevant to conduct
affecting the integrity of the Board, its process, and its proceedings.
The Board will also look to professional guidelines in evaluating an
individual's conduct.
(b) Imposition of Sanctions. (1) When a party or its representative
or attorney or any expert/consultant fails to comply with any direction
or order issued by the Board (including an order to provide or permit
discovery), or engages in misconduct affecting the Board, its process,
or its proceedings, the Board may make such orders as are just,
including the imposition of appropriate sanctions. The sanctions may
include:
(i) Taking the facts pertaining to the matter in dispute to be
established for the purpose of the appeal in accordance with the
contention of the party submitting the discovery request;
(ii) Forbidding challenge of the accuracy of any evidence;
(iii) Refusing to allow the noncompliant party to support or pose
designated claims or defenses;
(iv) Prohibiting the noncompliant party from introducing in
evidence designated documents or items of testimony;
(v) Striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed;
(vi) Dismissing the appeal or any part thereof; and/or
(vii) Imposing such other sanctions as the Board deems appropriate.
(2) Prior to imposing sanctions, the Board will provide the
noncompliant party with notice and an opportunity to be heard on the
issue of whether sanctions should be imposed. The opportunity to be
heard does not mean that the party is entitled to a hearing; the
opportunity to provide written argument shall satisfy this requirement.
(c) Disciplinary Proceedings. In addition to the above procedures,
the Board may discipline individual party representatives, attorneys,
and experts/consultants for a violation of any Board order or direction
or standard of conduct applicable to such individual where the
violation affects the integrity of the Board's process or proceedings.
Sanctions may be public or private and may include admonishment,
disqualification from a particular matter, referral to an appropriate
licensing authority, or such other action as circumstances may warrant.
The Board, in its discretion, may suspend an individual from appearing
before the Board as a party representative, attorney, or expert/
consultant if, after
[[Page 36263]]
affording such individual notice and an opportunity to be heard, a
majority of all members of the Contact Appeals Board determines that
such sanction is warranted.
Sec. 22.11 Depositions [Rule 11].
(a) When Depositions May Be Taken. After an appeal has been
docketed by the Board and a complaint has been filed, either party may
take the testimony of any person by deposition upon oral examination or
written questions, for the purpose of discovery or for use as evidence
in the appeal proceedings, or for both purposes.
(b) Time, Place, and Manner of Taking. The time, place, and manner
of taking depositions shall be as mutually agreed to by the parties or,
failing such agreement, be governed by order of the Board.
(c) Limits. The number of depositions taken shall not be limited
except as the Board may require to protect a party from annoyance,
burden, or harassment.
(d) Use as Evidence. No testimony taken by deposition shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at the
hearing. Depositions ordinarily will not be received in evidence if the
deponent is present and can testify personally at the hearing; however,
depositions may be used to contradict or impeach the testimony of a
deponent as a witness. If only a part of a deposition is offered in
evidence by a party, an adverse party may require the offering party to
introduce any other part which in fairness ought to be considered with
the part introduced. In any case, the Board, upon the agreement of the
parties, may permit the introduction of relevant portions of
depositions as designated by the parties. If no hearing has been
conducted and the appeal has been submitted on the record pursuant to
Sec. 22.17 of this part [Rule 17], the Board, in its discretion, may
receive depositions in evidence to supplement the record.
Sec. 22.12 Interrogatories [Rule 12].
(a) When Interrogatories May Be Served. After an appeal has been
docketed by the Board and a complaint has been filed, a party may serve
on an adverse party written interrogatories to be answered by the party
served or, if the party served is a public or private corporation or a
partnership or association, by any officer or agent who shall furnish
such information as is available to the party.
(b) Answers. The interrogatories shall be answered separately and
fully in writing, signed under oath by the person answering them, and
served on the party submitting the interrogatories. Objections to the
interrogatories shall be signed by counsel for the party responding to
the interrogatories. An interrogatory is not necessarily objectionable
merely because an answer to the interrogatory may involve an opinion or
contention that relates to fact or the application of law to fact;
however, the Board may order that such interrogatory need not be
answered until after discovery has been completed or some other event
has occurred.
(c) Scope and Use as Evidence. Interrogatories may relate to any
matters which can be inquired into under Sec. 22.11 of this part [Rule
11] (Depositions), and the answers may be used to the same extent as
provided for the use of the deposition of a party.
(d) Limits. The number of interrogatories or sets of
interrogatories to be served shall not be limited except as the Board
may require to protect a party from annoyance, burden, or harassment.
(e) Option to Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records
of the party upon which the interrogatory has been served, and the
burden of deriving or ascertaining the answer is substantially the same
for the party serving the interrogatory as for the party served, it is
a sufficient answer to such interrogatory to specify the record(s) from
which the answer may be derived or ascertained and to afford the party
serving the interrogatory a reasonable opportunity to examine, audit,
or inspect such records and to make copies thereof. Such specification
shall be in sufficient detail to permit the interrogating party to
locate and to identify, as readily as can the party served, the
record(s) from which the answer may be ascertained.
Sec. 22.13 Requests for Admission [Rule 13].
(a) When Requests for Admission May Be Served. (1) After an appeal
has been docketed by the Board and a complaint has been filed, a party
may serve on the opposing party a written request for the admission by
the latter of the genuineness of any relevant documents described in
and exhibited with the request, or of the truth of any relevant matters
of fact set forth in the request. Each of the matters for which an
admission is requested shall be deemed admitted unless, within the
period designated in Sec. 22.8(c) and Sec. 22.8(f) of this part
[Rules 8(e) and 8(f)] for responding to discovery requests, the party
to whom the request is directed serves upon the party requesting the
admission either:
(A) A sworn statement denying specifically the matters for which an
admission is requested or setting forth in detail the reasons why he or
she cannot truthfully admit or deny those matters, or
(B) Written objections on the ground that some or all of the
requested admissions are privileged or irrelevant or that the request
is otherwise improper in whole or in part.
(2) If written objections to a part of the request are made, the
remainder of the request shall be answered within the period designated
in Rule 8(f). A denial shall fairly meet the substance of the requested
admission and, when good faith requires that a party deny only a part
of a matter for which an admission is requested, he or she shall
specify so much of it as is true and deny only the remainder.
(b) Limits. The number of requests for admissions served shall not
be limited except as the Board may require to protect a party from
annoyance, burden, or harassment.
(c) Use as Evidence. Any matter admitted is conclusively
established for the purpose of the pending action, unless the Board, on
motion, permits withdrawal or amendment of the admission.
Sec. 22.14 Production of Documents, Electronically Stored
Information, Other Tangible Things, or Entry Onto Land [Rule 14].
(a) When Documents, Electronically Stored Information, Other
Tangible Things, or Entry Onto Land May Be Requested. After an appeal
has been docketed by the Board and a complaint has been filed, any
party may serve on any other party a request--
(1) To produce and permit the inspection, copying, or photographing
of any designated documents or electronically stored information
(including writings, papers, books, accounts, photographs, drawings,
graphs, charts, recordings, and other data or data compilations), or
other tangible things, not privileged, which are in his, her, or its
possession, custody, or control and which are within the scope of
discovery as described in Sec. 22.8(b) of this part [Rule 8(b)]; or
(2) To permit entry onto designated land or other property in his
or its possession or control for the purpose of inspecting, measuring,
surveying, filming, or photographing the property or any designated
object or operation thereon which is within the scope of
[[Page 36264]]
discovery as described in Sec. 22.8(b) of this part [Rule 8(b)].
(b) Time, Place, and Manner. The request shall specify the time,
place, and manner of making the inspection and taking the copies and
photographs. The Board may make an order that the inspection, copying,
measuring, surveying, filming, or photographing shall be limited to
certain matters; or the Board may make any other order which, in its
discretion, it deems appropriate to protect the party from annoyance,
burden, or harassment.
Sec. 22.15 Conferences and Orders [Rule 15].
(a) Status Conferences and Reports. At any time during the appeal,
the Board, upon its own initiative or upon the request of one of the
parties, may call upon the parties or their attorneys or
representatives to appear before the Board (or one or more members
thereof) for a status conference to consider or report on whatever
matters are necessary to aid in the disposition of the appeal. Such
matters may include, for example, the simplification or clarification
of issues, the necessity or desirability of amendments to the
pleadings, agreements and rulings to facilitate discovery, progress
reports during discovery, and pre-hearing procedures and scheduling.
Status conferences may be conducted in person or by telephone, and the
Board generally will make an order which recites the action taken at
the conference(s). From time to time, the Board also may require one or
more of the parties, either jointly or individually, to provide status
reports concerning any matter that aids in the disposition of the
appeal.
(b) Rulings, Orders, and Directions. The Board may make such
rulings and issue such orders and directions as are necessary to secure
the informal, expeditious, and inexpensive resolution of every case
before the Board. Any ruling, order, or direction that the Board may
make or issue pursuant to the rules of this Board may be made on the
motion of any party or on the initiative of the Board. The Board may
also amend, alter, or vacate a ruling, order, or direction upon such
terms as it deems appropriate. In making rulings and issuing orders and
directions, the Board will take into consideration those Federal Rules
of Civil Procedure and Federal Rules of Evidence which address matters
not specifically covered herein.
Sec. 22.16 Hearings [Rule 16].
(a) Election of Hearing or Record Submission. Each party shall
inform the Board, in writing, whether it elects a hearing or submission
of the case on the record pursuant to Sec. 22.17 of this part [Rule
17]. Such election shall occur no later than 15 days after the
conclusion of discovery, unless the Board directs otherwise. In the
event that only one party waives a hearing and submits its case on the
record, the Board may proceed with a hearing attended by the remaining
parties.
(b) Pre-Hearing Schedule. (1) Within 30 days of the conclusion of
discovery, the parties shall meet and confer and provide the Board with
a joint proposed schedule for pre-hearing and hearing disclosures,
submissions, and key events. In the absence of agreement, each party
shall submit its own proposed schedule. The schedule shall address, at
a minimum, deadlines for submitting the following:
(i) Dispositive motions, motions for summary judgment, and motions
in limine, which allow sufficient time for the Board to resolve the
motions before the hearing;
(ii) Pre-hearing briefs or statements of the case;
(iii) The identification of lay and expert witnesses for hearing,
the general substance of testimony to be offered by each witness, and
any depositions that will be used in lieu of witness testimony;
(iv) The exchange of expert reports and statements (if not done
during discovery);
(v) Proposed stipulations of fact;
(vi) The exchange of hearing exhibit books;
(vii) The production of any additional documents to be used at the
hearing that are not already part of the Sec. 22.4 [Rule 4] file;
(viii) Objections to proposed evidence or Sec. 22.4 [Rule 4] file
submissions;
(ix) Date for conducting a pre-hearing conference;
(x) Dates and duration of the hearing; and
(xi) Any other matter necessary for resolution before the hearing.
(2) As soon as practicable after receipt of the parties' proposed
schedule(s), the Board will issue an order establishing a schedule for
pre-hearing submissions and events, taking into account the parties'
proposed schedule, the nature of the case, and the scheduling needs of
the Board.
(c) Pre-Hearing Conference. Prior to the hearing, the Board will
conduct a pre-hearing conference to discuss such matters as may be
necessary to conduct an orderly and efficient hearing. Objections to
evidence may be resolved during the pre-hearing conference or at such
other time as established by the Board.
(d) Pre-Hearing Briefs. At least 20 days before a scheduled
hearing, each party shall file, in accordance with Sec. 22.6(b) of
this part [Rule 6(b)], a pre-hearing statement of the case, which shall
include the party's legal and factual analysis of the relevant issues,
and how the party intends to prove its case.
(e) Location of Hearing. Hearings will be held at 441 G Street,
NW., Washington, DC 20548, unless otherwise ordered by the Board. The
Board will consider a request for a hearing at another location if
compelling reasons are timely presented.
(f) Notice of Hearing. The parties, or their counsel, will be given
at least 15 days notice of the time and place of a hearing on the
merits, provided that the parties may, with the approval of the Board,
waive notice and fix a mutually satisfactory time for the hearing.
Continuances will not be granted except upon written request and for
good cause.
(g) Nature of Hearing. Hearings may be held by one or more of the
panel members of the Board and shall be as informal as may be
reasonable and appropriate under the circumstances. Each party may
offer the testimony of witnesses, who shall be subject to cross-
examination by the opposing party, and such relevant and material
evidence as they deem appropriate and as would be admissible under
paragraph (h) of this section [Rule 16(h)], subject, however, to the
sound discretion of the presiding Board member in supervising the
extent and manner of presentation of such evidence. Stipulations of
fact agreed upon by the parties must be in writing, must be filed with
the Board, and may be used as evidence at the hearing. The parties may
also stipulate to the testimony that would be given by a witness if the
witness were present. The Board may at any time during the hearing
require evidence or argument in addition to that put forth by the
parties.
(h) Admissibility and Weight of Evidence. In general, any relevant
and material evidence that would be admissible under the Federal Rules
of Evidence will be admitted to the record. However, evidence which may
not be admissible under the Federal Rules of Evidence, including
hearsay, may be admitted at the discretion of the presiding Board
member. The Board may also exclude evidence to avoid unfair prejudice,
confusion of the issues, undue delay, waste of time, or needless
presentation of cumulative evidence. The weight to be attached to
evidence and credibility to be accorded
[[Page 36265]]
witnesses will be determined by the Board, in its discretion.
(i) Examination of Witnesses. Witnesses before the Board will be
examined orally under oath or affirmation, unless the facts are
stipulated or the Board shall otherwise order. If the testimony of a
witness is not given under oath, the Board may warn the witness that
his or her statements may be subject to the provisions of title 18,
United States Code, secs. 287 and 1001, and any other provisions of law
imposing penalties for knowingly making false representations in
connection with claims against the United States or in any matter
within the jurisdiction of any department or agency thereof.
(j) Availability of Witnesses, Documents, and Other Tangible
Things. It is the responsibility of a party desiring to call any
witness, or to use any document or other tangible thing as an exhibit
in the course of a hearing, to ensure that whoever it wishes to call
and whatever it wishes to use is available at the hearing. In the event
that a witness does not appear or refuses to answer a question, or
evidence requested by the Board is not produced, the Board may draw an
adverse inference of the fact in question against the party responsible
for providing the witness or evidence.
(k) Issues Not Raised by the Pleadings. If evidence is objected to
at a hearing on the ground that it is not within the issues raised by
the pleadings, it may nevertheless be admitted by the Board, in its
discretion, if it is within the proper scope of the appeal. If such
evidence is admitted, the pleadings may be amended to conform to the
evidence. The Board may also grant the objecting party a continuance to
enable it to respond to the evidence.
(l) Delay by the Parties. If the Board determines that the hearing
is being unreasonably delayed by the failure of a party to produce
evidence, or by the undue prolongation of the presentation of evidence,
it may, by written order or by ruling from the bench, prescribe a time
or times within which the presentation of evidence must be concluded,
establish time limits on the direct or cross-examination of witnesses,
and enforce such order or ruling by appropriate sanctions.
(m) Exhibits. Unless otherwise directed by the Board, each party
shall prepare (jointly or individually) hearing exhibit books for use
during the hearing, and shall provide such books to the Board and
opposing counsel at least 3 days before the hearing commences. The
books shall consist of documents (or relevant excerpts from documents)
placed in a 3-ring binder or similar loose-leaf binder bound on the
left margin, separated by numbered tabs, with an index of the documents
in the front of each binder. The index shall identify the document by
name and, where applicable, the Sec. 22.4 [Rule 4] file citation (tab
and Bates numbers). Each document page included in the exhibit books
must be marked with the corresponding Bates number or applicable
numerical markings used in the Sec. 22.4 [Rule 4] file. Documents not
contained within the hearing books shall be marked by the Board during
the hearing. Documents contained in the hearing book that are not
admitted into evidence during the hearing will not become part of the
record unless already part of the Sec. 22.4 [Rule 4] file, or unless
their inclusion in the record is requested by the presenting party and
permitted by the Board.
(n) Copies. Copies of documents may be offered and received into
evidence as exhibits, provided that they are of equal legibility and
quality as the originals, and such copies shall have the same force and
effect as if they were the originals. If the Board so directs, the
party offering a copy of a document as an exhibit shall have the
original available at the hearing for examination by the Board and any
other party. When the original of a document has been received in
evidence, an accurate copy thereof may be substituted in evidence for
the original by leave of the Board at any time.
(o) Absence of Parties or Counsel. The unexcused absence of a party
or his authorized representative at the time and place set for the
hearing will not be occasion for delay. In such event, the hearing will
proceed and the case will be regarded as submitted by the absent party
unless he or she appears before the conclusion of the hearing and
offers additional evidence.
(p) Transcripts. Unless the Board orders otherwise, all hearings
will be stenographically or electronically recorded and transcribed.
Other conferences and proceedings may be recorded or transcribed by
order of the Board. Generally, the Board will arrange for the
stenographer to record and transcribe the proceeding. Each party is
responsible for purchasing its own copy of the transcript(s) or
recording(s). Waiver of recordation and transcription may be especially
suitable for appeals resolved under the small claims procedure
prescribed in Sec. 22.22(c) of this part [Rule 22(c)].
(q) Post-Hearing Briefs. The Board may require the submission of
post-hearing briefs. In such case, briefs shall be filed within 30 days
after receipt of the transcript of the hearing, and reply briefs shall
be filed within 15 days after receipt of the initial post-hearing
briefs, unless such other time period has been established by the
Board. Post-hearing briefs shall be filed in accordance with the
requirements of Sec. 22.6(b) of this part [Rule 6(b)].
(r) Post-Hearing Evidence. No evidence shall be submitted by any
party after the hearing has concluded, including but not limited to
post-hearing declarations, unless authorized by the Board in its
discretion.
Sec. 22.17 Submission on the Record Without a Hearing [Rule 17].
(a) General Requirements. Pursuant to Sec. 22.16(a) of this part
[Rule 16(a)], either party may elect to submit its case on the record
without a hearing. Submission of a case without a hearing does not
relieve the parties from the necessity of proving the facts supporting
their claims or defenses.
(b) Conference in Lieu of Hearing. If neither side desires a
hearing, either party may request that a conference be held in lieu of
a hearing with one or more members of the panel designated to decide
the appeal, and such request may be granted at the discretion of the
Board. The purpose of the conference is not to introduce new matters or
evidence, but to permit explanations and argument of matters of record.
If any new matter is introduced at the conference by either party,
consideration of the appeal will be deferred until the opposing party
has been apprised thereof and has had an opportunity to reply. Both
parties will be afforded the right to be present at any such
conference. At the request of a party, or on the Board's initiative,
the conference may be stenographically or electronically recorded and
transcribed pursuant to Sec. 22.16(p) of this part [Rule 16(p)].
(c) Statement of the Case. The Board, at its discretion, may order
a party that submits its case on the record without a hearing to submit
a written statement of the case, including a legal and factual analysis
of the relevant issues, within such period of time as the Board allows.
The Board may also order parties to submit reply briefs. Briefs will be
filed in accordance with the requirements of Sec. 22.6(b) of this part
[Rule 6(b)].
Sec. 22.18 Closing the Record [Rule 18].
(a) Closing the Record. The record will be closed on a date
announced by the Board by written notice.
(b) Supplementing the Record After the Record is Closed. Except as
the Board may otherwise order in its discretion, no evidence shall be
[[Page 36266]]
received after the record is closed. However, at any time after the
closing of the record and prior to a decision of the appeal by the
Board, at the request of a party or upon its own initiative, the Board
may reopen the record for the purpose of receiving newly discovered
evidence or for such other reason as may appear to the Board to be
appropriate.
Sec. 22.19 Findings and Decisions of the Board [Rule 19].
(a) Generally. All proceedings shall be concluded and appeals
disposed of as expeditiously as possible, commensurate with sound
adjudicatory procedure. The findings and decision in each appeal shall
be made by the members of the panel which considered that appeal, and
the findings and decision of the majority thereof shall constitute the
findings and decision of the Board. The absence or withdrawal of one
member of the panel which considered that appeal shall not invalidate
the proceedings, and the decision of the remaining panel members shall
constitute the decision of the Board. All decisions and findings of the
Board shall be made in writing and copies thereof shall be forwarded to
the parties or their counsel.
(b) Record Upon Which Findings and Decisions are Based. (1) The
record upon which any decision of the Board will be rendered consists
of the following:
(i) Notice of appeal;
(ii) Pleadings, motions, written briefs and statements, and
responses thereto;
(iii) Rule 4 file and any supplements other than those to which an
objection has been sustained;
(iv) Hearing exhibits other than those to which an objection has
been sustained;
(v) Orders, rulings, and directions to the parties issued by the
Board;
(vi) Written transcripts and electronic recordings of proceedings;
(vii) Stipulations, party admissions, depositions or parts thereof
received in evidence, and written interrogatories and responses
received in evidence;
(viii) Anything else that the Board may designate.
(2) All other documents and electronically stored information are
part of the administrative record of the proceedings and are not
included in the record upon which the Board's decision will be
rendered.
Sec. 22.20 Mistakes and Corrections [Rule 20].
(a) To Decisions and Orders. Clerical mistakes in decisions or
orders of the Board may be corrected at any time on the Board's own
initiative or upon motion of a party, except that if an appeal has been
filed with another tribunal, such mistakes may be corrected only with
leave of that tribunal.
(b) To the Official Transcript. Corrections to an official
transcript of a hearing will be made only when they involve errors
affecting its substance. The Board may order such corrections on motion
or on its own initiative and only after notice to the parties giving
them an opportunity to object. Such corrections will ordinarily be made
either by hand with pen and ink or by the appending of an errata sheet,
or the Board may require that the reporter provide substitute or
additional pages.
Sec. 22.21 Motion for Reconsideration [Rule 21].
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain the
motion, and shall be filed within 15 days of receipt of a copy of the
Board's decision. Mere disagreement with a decision, re-argument of
points already made, or the presentation of new evidence that could
have been presented during the appeal but was not, are not sufficient
grounds for reconsideration. A motion pending under Sec. 22.21 [Rule
21] does not affect the finality of a decision or suspend its
operation.
Sec. 22.22 Accelerated and Small Claims Procedures [Rule 22].
(a) Variation from Standard Proceedings. The ultimate purpose of
any Board proceeding is to resolve fairly and expeditiously any dispute
properly before the Board. The Board may at any time during an appeal
modify the procedures contained in these rules if it is deemed feasible
and furthers the resolution of the issue(s) in controversy.
(b) Accelerated Procedure. The accelerated procedure is available
solely at the appellant's election, and only when the monetary amount
in dispute is $100,000 or less. Such election shall be made no later
than 15 days after receipt of the government's answer to the complaint,
unless the Board enlarges the time for good cause shown. Promptly after
receiving a timely filed election, the Board shall establish a schedule
of proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, discovery and other pre-hearing activities
may be restricted or eliminated, and the appeal may be decided by a
single member of the Board. Either party's failure to adhere to the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault. Whenever possible, the Board shall
resolve an appeal under this procedure within 180 days from the Board's
receipt of the election.
(c) Small Claims Procedure. The small claims procedure is available
solely at the appellant's election, and only when the monetary amount
in dispute is $50,000 or less (or in the case of a small business
concern is $150,000 or less). Such election shall be made no later than
15 days after receipt of the government's answer to the complaint,
unless the Board enlarges the time for good cause shown. Promptly after
receiving a timely filed election, the Board shall establish a schedule
of proceedings that will allow for the timely resolution of the appeal.
Pleadings may be simplified, discovery and other pre-hearing activities
may be restricted or eliminated, and the appeal may be decided by a
single member of the Board. Either party's failure to adhere to the
Board's schedule may result in the Board drawing evidentiary inferences
adverse to the party at fault. Whenever possible, the Board shall
resolve an appeal under this procedure within 120 days from the Board's
receipt of the election.
Sec. 22.23 Suspension of Proceedings [Rule 23].
At any time, the Board may suspend the proceedings by agreement of
the parties for settlement discussions, or for good cause shown.
Sec. 22.24 Alternative Dispute Resolution [Rule 24].
(a) Docketed Appeals. The Board considers Alternative Dispute
Resolution (ADR) to be an efficient way to timely resolve many contract
disputes, and therefore encourages the parties to use ADR as an
effective means to resolve their contract dispute. ADR with Board
participation is available at the initiative of the Board or upon the
joint motion of both parties. Guidelines, procedures, and requirements
for implementing ADR will be prescribed by agreement of the parties and
the Board. Ordinarily, ADR will be performed by a Board member,
designated by the Chairman of the Board, that is not one of the three
panel members deciding the dispute.
(b) Other Matters. Upon request and in the Board's discretion, the
Board can make an ADR neutral available for an ADR proceeding, even if
the contracting officer's decision has not been issued or is not
contemplated. Such a request should be directed to the Chairman of the
Board.
[[Page 36267]]
Sec. 22.25 Protective Orders and In Camera Review [Rule 25].
(a) Protective Orders. Upon motion of any party, or on the Board's
initiative, the Board may issue a protective order to hold materials
under conditions that would limit access to them on the ground that
such documents are privileged or confidential, or sensitive in some
other way. Any motion filed under this rule must state with specificity
the grounds for such limited access. The manner in which such materials
will be held, the persons that shall have access to them, and the
conditions under which such access will be allowed will be specified in
an order of the Board.
(b) In Camera Review. Generally, all documents and evidence
provided to the Board must also be provided to all other parties to the
appeal or their legal counsel or representative. However, in limited
circumstances, such as in deciding matters of privilege, it may be
appropriate for the Board to review documents or evidence in camera. In
camera review may be requested upon motion to the Board, or on the
Board's initiative. Any motion filed under this rule must state with
specificity the grounds for seeking in camera review.
Sec. 22.26 Representation of Parties [Rule 26].
(a) The Appellant. Any appellant may appear before the Board
represented by an attorney duly licensed in any State, Commonwealth,
Territory, or in the District of Columbia. An individual appellant may
appear before the Board in person; a corporation may be represented by
an officer thereof; a partnership or joint venture may be represented
by a member thereof. Under special circumstances, the Board may
authorize a contractor to appear before the Board represented by a duly
authorized representative other than those mentioned herein for the
purposes of that appeal only.
(b) The Respondent. The respondent may appear before the Board
represented by an attorney duly licensed in any State, Commonwealth,
Territory, or in the District of Columbia. Such attorney shall be
designated with authority to represent the government's interests
before the Board. Alternatively, if not otherwise prohibited, the
respondent may appear before the Board represented by the contracting
officer or the contracting officer's authorized representative.
(c) Others. The Board may, on motion, in its discretion, permit a
special or limited appearance, such as by amicus curiae. Permission to
appear, if granted, will be for such purposes and in such manner as
established by the Board.
(d) Notice of Appearance. An attorney or other duly authorized
representative representing a party before the Board shall file a
notice of appearance. Such notice shall provide the person's name,
address, direct dial telephone number, fax number, and e-mail address.
If multiple attorneys or law firms represent a party, the contact
information for each attorney shall be provided to the Board. In such
instances, the party shall designate a single attorney or individual as
the primary point of contact for the party. Notices of appearance shall
be filed at the commencement of the appeal and shall be updated as
necessary during the appeal.
Sec. 22.27 Ex Parte Communications [Rule 27].
No member of the Board shall entertain, nor shall any person
directly or indirectly involved in an appeal submit to the Board, any
evidence, explanation, analysis, or advice, whether written or oral,
regarding any matter at issue in an appeal without the knowledge and
consent of the adverse party. This provision does not apply to
consultation among Board members or to ex parte communications
concerning the Board's administrative functions or procedures.
Sec. 22.28 Time [Rule 28].
In computing any period of time described in these rules, ``days''
refer to calendar days, unless otherwise specified in these rules. The
first day from which the period begins to run is not counted, and when
the last day of the period is Saturday, Sunday, or a Federal holiday,
the period extends to the next day that is not a Saturday, Sunday, or a
Federal holiday. Documents shall be deemed ``filed'' on the date and
time received by the Board if received before 5:30 p.m. EST, or the
next business day if received after 5:30 p.m. EST.
Sec. 22.29 Inspection of the Record [Rule 29].
The notice of appeal, the complaint, the answer, the documents
required to be filed therewith pursuant to Sec. 22.4 of this part
[Rule 4], all papers filed by the parties with the Board pursuant to
these rules, and all correspondence exchanged between the Board and the
parties or their attorneys shall be available for inspection at the
offices of the Board. Prior arrangements for inspection of the file
should be made with a member of the Board.
Dated: June 20, 2008.
James A. Spangenberg,
Chairman, Government Accountability Contract Appeals Board.
[FR Doc. E8-14355 Filed 6-25-08; 8:45 am]
BILLING CODE 1610-02-P