[Federal Register Volume 75, Number 56 (Wednesday, March 24, 2010)]
[Rules and Regulations]
[Pages 14095-14096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6524]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Chapter 2
Defense Federal Acquisition Regulation Supplement; Appendix A,
Armed Services Board of Contract Appeals, Part 1--Charter
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing the updated Charter of the Armed Services Board
of Contract Appeals (ASBCA), dated May 14, 2007. The ASBCA is chartered
to serve as the authorized representative of the Secretary of Defense
and the Secretaries of the Army, Navy, and Air Force in hearing,
considering, and determining appeals by contractors from decisions of
contracting officers or their authorized representatives or other
authorities regarding claims on contracts under the Contract Disputes
Act of 1978 or other remedy-granting provisions.
DATES: Effective Date: March 24, 2010.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense
Pentagon, Room 3B855, Washington, DC 20301-3060, Telephone 703-602-
1302; facsimile 703-602-0350.
SUPPLEMENTARY INFORMATION:
A. Background
This publication of Appendix A of the Defense Federal Acquisition
Regulation Supplement (DFARS) updates the Charter of the ASBCA from the
most recent prior version, dated July 1, 1979, to its latest version,
dated May 14, 2007. The updated Charter implements changes to ASBCA
internal administration to better support the Board's mission of
hearing, considering, and determining appeals by contractors from
decisions of contracting officers or their authorized representatives
or other authorities on disputed questions. In addition to minor
administrative changes, the following substantive changes are made to
the Charter:
1. The two-year term limits for the Chairman and Vice-Chairmen are
removed at paragraph 2.
2. The Board is granted, at paragraph 5, all powers necessary and
incident to the proper performance of its duties, including authority
to issue methods of procedures and rules and regulations for its
conduct and for the preparation and presentation of appeals and
issuance of opinions.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule. This
final rule does not constitute a significant DFARS revision within the
meaning of FAR 1.501 and public comment is not required in accordance
with 41 U.S.C. 418b(a).
C. Paperwork Reduction Act
This rule does not impose any new information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Appendix A
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, DoD is amending 48 CFR Appendix A to Chapter 2 as follows:
0
1. The authority citation for 48 CFR Appendix A to Chapter 2 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
0
2. Appendix A is amended by revising Part 1--Charter, to read as
follows:
Appendix A to Chapter 2--Armed Services Board of Contract Appeals
* * * * *
(Revised DATE)
Armed Services Board of Contract Appeals
Approved 1 May 1962.
Revised 1 May 1969.
Revised 1 September 1973.
Revised 1 July 1979.
Revised 27 June 2000.
Revised 14 May 2007.
Part 1--Charter
1. There is created the Armed Services Board of Contract Appeals
which is hereby designated as the authorized representative of the
Secretary of Defense, the Secretary of the Army, the Secretary of
the Navy and the Secretary of the Air Force, in hearing, considering
and determining appeals by contractors from decisions of contracting
officers or their authorized representatives or other authorities on
disputed questions. These appeals may be taken (a) pursuant to the
Contract Disputes Act of 1978 (41 U.S.C. Sect. 601, et seq.), (b)
pursuant to the provisions of contracts requiring the decision by
the Secretary of Defense or by a Secretary of a Military Department
or their duly authorized representative, or (c) pursuant to the
provisions of any directive whereby the Secretary of Defense or the
Secretary of a Military Department or their authorized
representative has granted a right of appeal not contained in the
contract on any matter consistent with the contract appeals
procedure. The Board may determine contract disputes for other
departments and agencies by agreement as permitted by law. The Board
shall operate under general policies established or approved by the
Under Secretary of Defense for Acquisition, Technology and Logistics
and may perform other duties as directed not inconsistent with the
Contract Disputes Act of 1978.
2. Membership of the Board shall consist of attorneys at law who
have been qualified in the manner prescribed by the Contract
Disputes Act of 1978. Members of the Board are hereby designated
Administrative Judges. There shall be appointed from the Judges of
the Board a Chairman and two or more Vice-Chairmen. Appointment of
the Chairman and
[[Page 14096]]
Vice-Chairmen and other Judges of the Board shall be made by the
Under Secretary of Defense for Acquisition, Technology and
Logistics, the General Counsel of the Department of Defense, and the
Assistant Secretaries of the Military Departments responsible for
acquisition. The Chairman may designate a Judge of the Board to
serve as an Acting Chairman or Acting Vice Chairman.
3. It shall be the duty and obligation of the Judges of the
Armed Services Board of Contract Appeals to decide appeals on the
record of the appeal to the best of their knowledge and ability in
accordance with applicable contract provisions and in accordance
with law and regulation pertinent thereto.
4. The Chairman of the Board shall be responsible for
establishing appropriate divisions of the Board to provide for the
most effective and expeditious handling of appeals. The Chairman
shall designate one Judge of each division as the division head. The
Chairman may refer an appeal of unusual difficulty, significant
precedential importance, or serious dispute within the normal
decision process for decision by the senior deciding group. The
division heads and the Chairman and Vice-Chairmen, together with, if
applicable, the author of the decision so referred, shall constitute
the senior deciding group of the Board. The decision of the Board in
cases so referred to the senior deciding group shall be by majority
vote of the participating Judges of that group. A majority of the
Judges of a division shall constitute a quorum for the transaction
of the business of each, respectively. Decisions of the Board shall
be by majority vote of the Judges of a division participating and
the Chairman and a Vice-Chairman, unless the Chairman refers the
appeal for decision by the senior deciding group. An appeal
involving a small claim as defined by the Contract Disputes Act of
1978 may be decided by a single Judge or fewer Judges of the Board
than hereinbefore provided for cases of unlimited dollar amount,
under accelerated or expedited procedures as provided in the Rules
of the Board and the Contract Disputes Act of 1978.
5. The Board shall have all powers necessary and incident to the
proper performance of its duties. The Board has the authority to
issue methods of procedure and rules and regulations for its conduct
and for the preparation and presentation of appeals and issuance of
opinions.
6. Any Judge of the Board or any examiner, designated by the
Chairman, shall be authorized to hold hearings, examine witnesses,
and receive evidence and argument. A Judge of the Board shall have
authority to administer oaths and issue subpoenas as specified in
the Contract Disputes Act of 1978. In cases of contumacy or refusal
to obey a subpoena, the Chairman may request orders of the court in
the manner prescribed in the Contract Disputes Act of 1978.
7. The Chairman shall be responsible for the internal
organization of the Board and for its administration. He shall
provide within approved ceilings for the staffing of the Board with
non-Judge personnel, including hearing examiners, as may be required
for the performance of the functions of the Board. The Chairman
shall appoint a Recorder of the Board. All personnel shall be
responsible to and shall function under the direction, supervision
and control of the Chairman. Judges shall decide cases
independently.
8. The Board will be serviced by the Department of the Army for
administrative support as required for its operations.
Administrative support will include budgeting, funding, fiscal
control, manpower control and utilization, personnel administration,
security administration, supplies, and other administrative
services. The Departments of the Army, Navy, Air Force and the
Office of the Secretary of Defense will participate in financing the
Board's operations on an equal basis and to the extent determined by
the Under Secretary of Defense (Comptroller). The cost of processing
appeals for departments and agencies other than those in the
Department of Defense will be reimbursed.
9. Within 30 days following the close of a calendar quarter, the
Chairman shall forward a report of the Board's proceedings for the
quarter to the Under Secretary of Defense for Acquisition,
Technology and Logistics, the General Counsel of the Department of
Defense, the Assistant Secretaries of the Military Departments
responsible for acquisition, and to the Director of the Defense
Logistics Agency. The Chairman of the Board will also furnish the
Secretary of Defense, the General Counsel of the Department of
Defense, the Secretaries of the Military Departments, and the
Director of the Defense Logistics Agency, an annual report
containing an account of the Board's transactions and proceedings
for the preceding fiscal year.
10. The Board shall have a seal bearing the following
inscription: ``Armed Services Board of Contract Appeals.'' This seal
shall be affixed to all authentications of copies of records and to
such other instruments as the Board may determine.
11. This revised charter is effective May 14, 2007.
Approved:
(signed) Kenneth J. Krieg (14 May 2007),
Under Secretary of Defense (Acquisition, Technology and Logistics).
(signed) William J. Haynes II,
General Counsel of the Department of Defense.
(signed) Claude M. Bolton, Jr.,
Assistant Secretary of the Army (Acquisition, Logistics, &
Technology).
(signed) Delores M. Etter,
Assistant Secretary of the Navy (Research, Development &
Acquisition).
(signed) Sue C. Peyton,
Assistant Secretary of the Air Force (Acquisition).
* * * * *
[FR Doc. 2010-6524 Filed 3-23-10; 8:45 am]
BILLING CODE 5001-08-P