# PRACTICING BEFORE THE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A6f5f8f9cf412df1f ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text PRACTICING BEFORE THE FEDERAL BOARDS OF CONTRACT APPEALS Section of Public Contract Law American Bar Association Judge Carol N. Park-Conroy 2011-2012 Section Chair Editor-in-Chief Judge Candida S. Steel, CBCA Editors Judge Elizabeth M. Grant, ASBCA Judge Patricia J. Sheridan, CBCA Authors Judge William A. Campbell, PSBCA Judge Elizabeth M. Grant, ASBCA Judge Martin J. Harty, ASBCA (Ret.) Paul F. Khoury, Wiley Rein, LLP Stephen J. Kiraly, LitCon Group, LLC Judge Peter F. Pontzer, PSBCA Judge Patricia J. Sheridan, CBCA Judge Candida S. Steel, CBCA Oliya S. Zamaray, Holland & Knight, LLP 2012 American Bar Association. ACKNOWLEDGEMENTS This project was initially undertaken in 2002 by the Pro Bono Committee of the Section of Public Contract Law of the American Bar Association, under the excellent supervision of the late Judge Eileen P. Fennessy. The purpose of the 2002 edition of the manual was to aid contractors in pursuing claims without benefit of counsel (pursuing the appeal as a pro se litigant). To that end, clerks and judges of the various boards of contract appeals (BCAs) made the manual available, free of cost, to pro se litigants. The manual has also been used by many in the government contracts legal community as a primer for lawyers new to the Contract Disputes Act process, as well as a refresher for more experienced public contract law litigators. Most BCAs connected to United States civilian agencies were consolidated in January 2007 into a single Civilian Board of Contract Appeals (CBCA). 41 U.S.C. § 7105(b)(1). Thus, the Section of Public Contract Law has determined that it is time to issue a revised edition of the manual. With many thanks to the authors and editors listed on the title page for their enthusiastic and thoughtful attention to their task, the Section provides this revision. As was true with the first edition, as a public service, the BCAs are encouraged to make this manual available to litigants without charge. This manual may be updated from time to time if changes are made in BCA procedures. The latest version is available for downloading on the resource page of the ABA Section of Public Contract Law website, at: http://www.americanbar.org/groups/public_contract_law/resources.html The fact that a BCA makes the manual available does not imply any authorship, official endorsement, or responsibility for any errors contained herein, on the part of the BCA. This manual does not substitute in any way for a BCA’s own rules. The rules for the CBCA may be found at 48 C.F.R. [Code of Federal Regulations] parts 6101 through 6105, or on its webpage at www.cbca.gov. The rules governing procedure at the Armed Services Board of Contract Appeals (ASBCA) are located at Appendix A to Chapter 2 of 48 C.F.R., or on its webpage at www.asbca.mil. The rules for the Postal Service Board of Contract Appeals (PSBCA) can be found at http://about.usps.com/who-we-are/judicial/boardcontract-appeals-decisions/welcome.htm. The authors and editors listed on the title page deserve primary credit for this revision. We wish to give special thanks to Oliya S. Zamaray, Esq. of Holland & Knight LLP, who coordinated the many drafts leading to this final product. The Section also wishes to thank the Chairman of the Armed Services Board of Contract Appeals, Paul Williams, and the Chairman of the Civilian Board of Contract Appeals, Stephen M. Daniels, for their encouragement and advice in the course of this revision, as well as the recorders and clerks of the ASBCA and CBCA who help disseminate this information. Finally, we wish to thank the following individuals for their varied assistance: Judge Richard C. Walters; David S. Black, Esq.; Daniel P. Graham, Esq.; Rachel A. Alexander, Esq.; and Barron A. Avery, Esq. We hope that the BCA system, the parties, their counsel, and the BCA judges who hear these cases, will benefit directly from the wisdom imparted in these pages. 2012 American Bar Association May be reproduced and distributed without charge. TABLE OF CONTENTS I. INTRODUCTION..........................................................................................................................1 II. PREREQUISITES OF AN APPEAL...........................................................................................3 III. IV. V. VI. VII. A. The Claim and Certification .............................................................................................3 B. The Contracting Officer’s Final Decision........................................................................4 BEGINNING AN APPEAL ..........................................................................................................6 A. Appeal from a Contracting Officer’s Decision................................................................6 B. Appeal from a Contracting Officer’s Failure to Issue a Decision .................................7 THE PRELIMINARY PHASE.....................................................................................................8 A. The Notice of Docketing ....................................................................................................8 B. Representation before a BCA and the Notice of Appearance........................................8 C. Service of Documents.........................................................................................................9 D. Private or Ex Parte Communications...............................................................................9 E. Board Orders and Extensions of Time.............................................................................9 F. The Appeal File ................................................................................................................10 ELECTION OF PROCEDURES ...............................................................................................12 A. The Traditional Litigation Procedure – A hearing.......................................................12 B. The Small Claims Expedited Procedure – A decision within 120 days.......................13 C. The Small Claims Accelerated Procedure – A decision within 180 days....................13 D. Submission on the Record ...............................................................................................14 E. Separate Decisions on Entitlement and Quantum ........................................................14 ALTERNATIVE DISPUTE RESOLUTION (ADR) AND SETTLEMENT NEGOTIATIONS ........................................................................................................................16 A. ADR Procedures...............................................................................................................16 B. Settlement Procedures .....................................................................................................17 PLEADINGS ................................................................................................................................19 A. The Complaint..................................................................................................................19 B. The Answer.......................................................................................................................19 VIII. DISCOVERY................................................................................................................................21 A. Description, Purpose, and Scope ....................................................................................21 B. Discovery Obligations ......................................................................................................21 1. Board Rules Governing Discovery ........................................................................21 2. Preservation............................................................................................................21 -i- 3. C. D. IX. B. C. XI. Types of Discovery ...........................................................................................................22 1. Interrogatories ........................................................................................................22 2. Requests for Production of Documents .................................................................23 3. Requests for Admission .........................................................................................24 4. Depositions ............................................................................................................24 Managing Discovery ........................................................................................................25 1. Privilege .................................................................................................................25 2. Objections to Written Discovery ...........................................................................26 3. Protective Orders ...................................................................................................26 4. Motions to Compel ................................................................................................26 5. Sanctions ................................................................................................................27 MOTIONS AND BRIEFS ...........................................................................................................29 A. X. Discovery Conferences ..........................................................................................22 Dispositive Motions ..........................................................................................................29 1. Motion to Dismiss..................................................................................................29 2. Motion for Summary Judgment .............................................................................29 Briefs .................................................................................................................................30 1. Pre-Hearing Briefs .................................................................................................30 2. Post-Hearing Briefs................................................................................................30 Writing Motions and Briefs ............................................................................................31 1. Introduction............................................................................................................31 2. Questions Presented ...............................................................................................31 3. Proposed Findings of Fact .....................................................................................31 4. Argument ...............................................................................................................31 5. Conclusion .............................................................................................................32 PRE-HEARING MATTERS ......................................................................................................33 A. Pre-Hearing Orders .........................................................................................................33 B. Pre-Hearing Conference..................................................................................................33 C. Exhibits .............................................................................................................................34 D. Stipulations .......................................................................................................................34 E. Motions to Exclude Evidence ..........................................................................................34 F. Pre-Hearing Briefs or Position Papers...........................................................................35 THE HEARING ...........................................................................................................................36 - ii - XII. A. Date and Length of the Hearing .....................................................................................36 B. Immediately Before the Start of the Hearing ................................................................36 C. Failure to Appear at the Hearing ...................................................................................37 D. The Hearing Record ........................................................................................................37 E. Orderly Conduct of the Hearing ....................................................................................38 F. Opening Statements and Order of Proceedings ............................................................38 G. Testimony..........................................................................................................................39 H. Subpoenas .........................................................................................................................40 I. Direct Examination of Witnesses....................................................................................40 J. Cross-Examination of Witnesses ....................................................................................41 K. Conclusion of the Hearing...............................................................................................41 L. Post-Hearing Briefs..........................................................................................................41 PROOF OF DAMAGES – QUANTUM ....................................................................................43 A. Introduction......................................................................................................................43 B. Types of Damages – Direct and Indirect........................................................................44 C. Necessary Records ...........................................................................................................44 D. Presenting the Claim........................................................................................................45 E. Claim Pricing Methodologies..........................................................................................47 F. Estimates ...........................................................................................................................48 G. Government Audits..........................................................................................................48 H. Stipulating to Damages....................................................................................................49 I. Schedule of Costs..............................................................................................................49 XIII. THE BOARD’S DECISION AND APPEALING TO THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT ...............................................................................................51 A. The Board’s Decision .......................................................................................................51 B. Relief Granted ..................................................................................................................51 C. Motion for Reconsideration ............................................................................................51 D. Appeal to the Court of Appeals for the Federal Circuit...............................................52 E. Representation by Counsel..............................................................................................53 XIV. ATTORNEYS’ FEES AND EXPENSES IN BOARD LITIGATION ....................................54 A. The Equal Access to Justice Act (EAJA) .......................................................................54 B. Timeliness of EAJA Applications ...................................................................................54 C. Contents of Application for Award ................................................................................54 D. Net Worth and Size Limits..............................................................................................54 -3- E. Establishing Prevailing Party Status..............................................................................54 F. Government’s Position Not Substantially Justified ......................................................55 G. Applicant’s Burden of Proof ...........................................................................................55 H. Recoverable Fees and Expenses......................................................................................55 I. Proper Documentation ....................................................................................................55 J. Pro Se Litigants ................................................................................................................55 K. Fees Incurred before a Contracting Officer’s Final Decision......................................56 L. Effect of a Government Settlement Offer ......................................................................56 -4- APPENDICES Appendix A: Addresses of the BCAs....................................................................................... A-1 Appendix B: Use of Sample Forms in BCA Submissions.......................................................B-1 Sample Request for Contracting Officer’s Final Decision ..............................................B-2 Sample Notice of Appeal .................................................................................................B-3 Sample Notice of Appearance .........................................................................................B-4 Sample Certificate of Service ..........................................................................................B-5 Sample Request for an Extension of Time .....................................................................B-6 Sample Complaint............................................................................................................B-7 Sample Supplement to the Appeal File............................................................................B-9 Sample Letter Submitting Discovery Requests .............................................................B-10 Sample Interrogatories ...................................................................................................B-11 Sample Request for Production of Documents ..............................................................B-16 Sample Notice of Depositions .......................................................................................B-18 Sample Request for Admissions ....................................................................................B-20 Sample Motion...............................................................................................................B-21 Sample Declaration [Affidavit]......................................................................................B-22 Sample Request for Hearing or Submission on the Record...........................................B-23 Sample Pre-hearing Disclosure of Exhibits and Witnesses ...........................................B-24 Sample Cover Letter for a Submission ..........................................................................B-25 Appendix C: ADR and Settlement .......................................................................................... C-1 ASBCA ADR Notice .......................................................................................................C-1 CBCA Rule 54 on ADR ..................................................................................................C-4 Sample Mediation Agreement I .......................................................................................C-7 Sample Mediation Agreement II......................................................................................C-9 Sample Mediation/Arbitration (Med/Arb) Agreement ..................................................C-12 Sample Settlement Judge Agreement ............................................................................C-15 Sample Agreement to Use Summary Trial with Binding Decision ...............................C-17 ADR Websites ...............................................................................................................C-19 PRACTICING BEFORE THE FEDERAL BOARDS OF CONTRACT APPEALS I. INTRODUCTION The purpose of this manual is to provide simple, straightforward guidance for contractors who bring appeals to federal boards of contract appeals (BCAs) without representation by an attorney (pro se litigants), and for attorneys who may not be familiar with BCA practice. It may also help contractors decide whether to hire an attorney to present the appeal.1 The BCAs are tribunals established by Congress in the Contract Disputes Act (CDA) to resolve disputed claims arising under or relating to a federal government contract. 41 U.S.C. §§ 71017109. The BCAs are charged with providing informal, inexpensive, and prompt resolution of government contract disputes. In addition to providing a forum for a full hearing, the BCAs also make a variety of alternative dispute resolution procedures available; these procedures can be used either for matters that are already docketed at a BCA, or for issues still being disputed with a contracting officer that may later result in an appeal to a BCA. Since January 2007, two main BCAs have been tasked with hearing appeals from contracting officers’ final decisions. The ASBCA is generally responsible for deciding appeals from decisions of contracting officers in the Department of Defense, the Department of the Army, the Department of the Navy, NASA, and when specified, the CIA. The CBCA hears disputes from all other executive agencies except the United States Postal Service (USPS), the Postal Rate Commission, and the Tennessee Valley Authority. 41 U.S.C. §§ 7101-7109. The USPS is served by the PSBCA. In addition, the Government Accountability Office Contract Appeals Board (GAOCAB) handles contract disputes arising in the legislative branch, and the Office of Dispute Resolution for Acquisition (ODRA) handles contract disputes and bid protests arising out of Federal Aviation Administration procurements. This manual may be helpful to litigants before those BCAs as well. Some of the BCAs exercise jurisdiction in other types of disputes, not arising under the CDA. While this manual principally focuses on CDA cases, it should be a useful tool in other types of cases before a BCA. For administrative purposes, the BCAs are housed within federal agencies. However, Congress has made the BCAs functionally independent. Decisions of the BCAs may not be reviewed or changed by any agency official. Board decisions issued under the CDA are final unless one of the parties appeals to the United States Court of Appeals for the Federal Circuit (Federal Circuit), or, in the case of maritime appeals, the appropriate Federal District Court. Appendix B to this manual contains sample forms of pleadings, discovery requests, letters, mediation agreements, and other documents often used in BCA proceedings. These are typical documents which might be used by either side. Parties may, but are not required to, use these samples for preparing their own documents. Please remember that these forms will need to be tailored to each individual appeal. Finally, the ASBCA and CBCA allow pleadings, briefs, and certain other documents to be filed electronically as PDF attachments to e-mails. Please refer to the BCAs’ websites, www.asbca.mil and www.cbca.gov, for instructions on e-filing. The 1 Small businesses may be eligible for payment of attorneys’ fees under the Equal Access to Justice Act. See Section XIV. -1- PSBCA and GAOCAB will allow pleadings and documents to be filed as attachments to e-mails upon request. Each BCA publishes its own rules, which may be found at the webpage for that board as well as in the appropriate C.F.R. section (i.e., 48 C.F.R. part 6101 for the CBCA, and Appendix A to Chapter 2 of 48 C.F.R. for the ASBCA). When questions arise, a party should always check the rules of the BCA in which it is appearing. Generally, when a contracting officer’s decision is appealed to a board, the clerk of that BCA will send a copy of its rules to the contractor with the notice of docketing, or notify the contractor how those rules can be obtained. This manual is not a substitute for the rules of the BCAs, and the published rules will govern if there is any discrepancy between this manual and the rules. Parties must be sure to read, and comply with, the rules and orders of the BCA to which the dispute has been appealed. For questions about a particular rule, the clerk of the BCA or the judge’s legal assistant may be able to help you. -2- II. PREREQUISITES OF AN APPEAL A. The Claim and Certification Claims often arise during the course contract performance; a party might seek relief by requesting contract interpretation, money, and/or an extension of time. A claim generally consists of two parts: (1) the “entitlement” portion, which typically includes a detailed description of the actions or inactions of the party from whom relief is sought, entitling the claimant to compensation; and (2) the damages or “quantum” portion, which sets forth the calculations and support for the compensation claimed. The two parts are equally important because without entitlement, damages cannot be recovered, and without proof of damages, establishing entitlement is of little value. Deciding to formally file and pursue a claim has significant implications. Among other things, relationships become more adversarial as parties protect their own positions in anticipation of litigation. If a party decides to file a claim and pursue an appeal, it should be sure that the claim is carefully calculated and supported. Contracting officers are subject to scrutiny and oversight, both inside and outside of their own organizations. They will not typically pay a claim without sufficient back-up, even if it is just for “nuisance value,” a practice which might make business sense. Some claims remain unresolved, and litigation prolonged, due to inadequate supporting proof of costs. In some instances, an inflated claim may cause the government to dispute any entitlement at all; indeed, if the contractor’s claim is unsupportable due to misrepresentation or fraud, the contractor can be liable to the government for at least the unsupported amount of its claim, and perhaps more. So, although the parties have a legal right to assert and pursue legitimate claims, the implications, both as to process and as to proof, merit serious consideration. The party that is asserting a claim has the responsibility to bring forward sufficient evidence to support its claim. Stated another way, the party seeking to recover usually has the “burden of proof.” If the government is asserting a claim, e.g., claiming it is entitled to liquidated damages, it has the burden of proving it is entitled to recovery. Likewise, if a contractor is making a claim, e.g., it has been required to do work not required by the contract, then the contractor must prove entitlement to compensation for that work. A BCA must have jurisdiction – the right to consider and decide a contract dispute. For a BCA to have jurisdiction over a contract dispute brought by a contractor, the CDA requires that the contractor must first submit a written claim to the contracting officer for his or her final decision denying or granting all or part of the claim. For a BCA to have jurisdiction over a government claim, the contracting officer must first have asserted the government’s claim via a final decision. For BCAs to exercise jurisdiction under the CDA, several prerequisites must be met. If these requirements are not met, a board will not have the authority to decide the dispute. First, a claim brought to a board must be in writing and seek, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. The claim must be a clear and definite statement that gives the -3- contracting officer notice of the basis and amount of the claim. Routine requests for payment such as invoices that are not in dispute at the time they are submitted are not claims. See Federal Acquisition Regulation (FAR) 52.233-l(c) (52 C.F.R. 52.233-1(c)). If a contractor’s claim is for more than $100,000, the claim must be certified in accordance with the CDA. The certification language required by the Disputes clause in the contract is shown at FAR 52.233-1(d) and currently reads: I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable and that I am duly authorized to certify the claim on behalf of the Contractor. Signed by: [name, company, position] The person who signs the certification must be authorized by the contractor to bind the contractor with respect to the claim. A Sample Request for a Contracting Officer’s Final Decision is shown at Appendix B-2. However, parties potentially facing a lengthy appeal process may wish to carefully consider when best to submit a CDA claim. Once a claim meeting CDA requirements is submitted to the contracting officer a final decision is required. The issuance of the final decision triggers the deadline for filing an appeal. As an alternative to a CDA claim, a contactor might request that the contracting officer issue an equitable adjustment (referred to as a request for equitable adjustment (REA)). Until the contractor’s document requests a contracting officer’s final decision (and, if over $100,000, is certified), the contracting officer should not issue a final decision triggering the appeal deadline. B. The Contracting Officer’s Final Decision If a contractor’s claim is for $100,000 or less, the contractor may ask for a final decision within 60 days, in which case, the contracting officer is obliged to comply. For certified claims for more than $100,000, the contracting officer has 60 days either to decide the claim or to notify the contractor when a final decision will be issued. The contracting officer’s decision must be in writing and must be mailed or otherwise furnished to the contractor. The contracting officer must state the reasons for the decision and notify the contractor of its rights, including the right to appeal the decision to a particular BCA within 90 days or to the United States Court of Federal Claims within twelve months of the final decision. -4- PRACTICE TIPS • A BCA cannot consider a dispute until a claim has first been submitted to the contracting officer responsible for administering the contract and a final decision has been requested. • A BCA cannot consider a government claim until the contracting officer has first asserted the claim by issuing a final decision and the final decision has been appealed. • A claim must be in writing and seek the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. • A claim for more than $100,000 must be certified in accordance with FAR 52.233-1. -5- III. BEGINNING AN APPEAL A. Appeal from a Contracting Officer’s Decision An appeal to a BCA is relatively easy and inexpensive. A contractor must file an appeal with the appropriate board within 90 days after receiving the contracting officer’s final decision. An appeal from a final decision issued by a USPS contracting officer may be also sent directly to the contracting officer. An appeal may be filed via USPS mail or any other document delivery service. It may also be hand-delivered. An appeal sent by the USPS is timely if it transferred to the custody of the USPS or postmarked within that 90-day period. For delivery other than USPS mail, the appeal is timely only if the BCA receives it within 90 days after the contractor received the contracting officer’s final decision. If an appeal is delivered by means other than USPS mail, a receipt should be obtained indicating the date and time of delivery. There is no fee to take an appeal to a BCA. All that is required is a written notice of appeal.2 The notice of appeal should: a) be in writing and state that an appeal is being taken from a contracting officer’s final decision; b) describe the contracting officer’s decision from which the appeal is intended in enough detail so the BCA can distinguish it from any other contracting officer’s final decision; and c) be submitted by the appellant, the appellant’s authorized representative, or by the appellant’s attorney. To ensure that the above criteria are met, the notice of appeal should: a) identify the contract, by number, and the department and/or agency or bureau involved in the dispute; b) identify the amount of money in dispute or other relief sought; and c) include a copy of the contracting officer’s decision from which the appeal is taken. Once an appeal has been filed with a BCA, the contractor is referred to as the appellant; the government agency is typically referred to as the respondent or the government. The appellant should also provide a copy of the notice of appeal to the contracting officer. In addition to alerting the contracting officer that an appeal has been filed, provision of the copy also serves as additional evidence of the date the appeal was filed. 2 A sample Notice of Appeal appears in the Appendix at B-3. -6- In instances where there is a question about whether the appellant has met the 90-day deadline, proof of timely delivery may be required by the BCA. If a contractor does not meet the 90-day deadline for filing an appeal, the board will dismiss the appeal for lack of jurisdiction. Even if a BCA does not have jurisdiction to consider an appeal because it was filed beyond the 90-day deadline, a contractor has the right to file an action in the Court of Federal Claims within twelve months after receiving the contracting officer’s final decision. B. Appeal from a Contracting Officer’s Failure to Issue a Decision A failure to issue a timely final decision is treated as a “deemed denial” of the claim, from which a contractor may appeal. For a claim of $100,000 or less, if the contracting officer does not issue a decision within 60 days of receipt of a request that a final decision be issued, the contractor may appeal that failure to render a decision. If, on a claim over $100,000, the contracting officer does not issue a decision within a reasonable time (which is at least 60 days or by another precise date that the contracting officer has told the contractor s/he will issue the final decision), the contractor may appeal from that failure. A notice of appeal from a deemed denial should contain essentially the same information as set forth above, and should state that the appeal is taken from the failure of the contracting officer to render a decision within a reasonable time. An appeal from a deemed denial places the matter before the BCA. Upon receipt of such an appeal, the board may temporarily stop the proceedings and direct the contracting officer to either issue a decision or explain why a decision cannot be issued. The BCA may take this action so that it and the contractor will have an understanding of the government’s position. To avoid potential problems and delays in an appeal from a “deemed denial,” make sure that the contracting officer is late in issuing the final decision before filing the appeal. PRACTICE TIPS • An appeal must be filed with the appropriate board within 90 days after receiving the contracting officer’s final decision. • If a contracting officer does not issue a final decision within the required time frame, a contractor may appeal that failure as a “deemed denial” of the claim. • If an appeal is delivered by means other than USPS mail, a receipt should be obtained indicating the date and time of delivery. • Once an appeal has been filed with a BCA, the contractor is referred to as the appellant; the government agency is typically referred to as the respondent or the government. An appellant who represents himself or herself is sometimes called a pro se appellant. An attorney will always represent the government. -7- IV. THE PRELIMINARY PHASE A. The Notice of Docketing After receipt of a notice of appeal, the BCA sends a notice of docketing to the appellant and to the chief trial attorney of the agency that issued the final decision. The notice of docketing identifies the docket number that the BCA has assigned to the appeal. This docket number should be used in all future communications with the BCA as it is the principal way the BCAs track cases. The BCA will also either provide a copy of the board’s rules or information on where the rules can be found electronically. The notice includes instructions concerning what the parties will be required to file in the near future, and when. These filings may include a complaint and answer, the government’s appeal file, and the appellant’s supplement to the appeal file. The notice of docketing letter will also describe the procedures available for resolving the appeal and options for possible settlement. These matters will be discussed in greater detail in the sections that follow. The parties must comply with the time periods and dates set by the BCA’s rules and by the board. If it turns out that a due date cannot be met and an extension is needed, the extension request should be made well before the filing is due. If a party misses a due date and fails to request an extension, depending on the circumstances, the board may or may not allow a late filing. B. Representation before a BCA and the Notice of Appearance At the outset of the appeal, the parties need to notify the board and each other who will be representing each of them before the board. An individual or an attorney cannot represent a party unless he or she has noted his or her appearance with the board. An appellant can do this by stating in its notice of appeal who will be its representative. Either party can submit a separate document called a notice of appearance.3 The notice of appearance is a simple document. It must state the party’s name, the designated representative’s name, his or her relationship to the party, address, telephone number, and email address. The appellant should send a copy of the notice to the government’s attorney, if known, or to the contracting officer who issued the final decision, who should forward the notice to the government attorney assigned to the case. Although the BCAs do not require that the contractor’s representative be an attorney, there are some limitations upon who may represent an appellant. An appellant who is an individual may represent him or herself before a BCA; a corporation may be represented by one of its officers; and a joint venture by one of its members. Shortly after the appeal has been filed, the government’s attorney will also file a notice of appearance. Additional notices of appearance must be filed by the government and the appellant each time a change in representation occurs. 3 A sample Notice of Appearance appears in the Appendix at B-4. -8- C. Service of Documents Unless otherwise directed by the board a party must provide a copy of all correspondence and documents sent to the board to the opposing party’s representative so that everyone knows what is happening in the appeal. The party should use the same delivery method to the opposing party as is used with the board, so if something was sent by telefax (facsimile) to a board, it should also be telefaxed to the opposing party on the same day. Each submission to the BCA should reflect that a copy of the submission was sent to the opposing party. For submissions to the BCA, such as the complaint or a brief, the parties should attach a certificate of service4 to show that a copy was sent to the other side (unless the submission is sent with a cover letter that shows a copy was sent to the opposing party). A typical certificate of service states: CERTIFICATE OF SERVICE I hereby certify that I served, or caused to be served, a true and correct copy of the foregoing document by [state: hand-delivery, mail, e-mail or telefax] to the following attorney of record this [date] day of [month], [year]: [provide: name, title, address]. Signed by: [signature] [name of person making the certification and title] Sample letters and forms for submissions are included in Appendix B. D. Private or Ex Parte Communications Neither party is allowed to discuss the merits (that is, the applicable facts and law) of an appeal with the judge outside the presence of the opposing party. Therefore, if one or both sides want to discuss the merits of the appeal with the judge, either or both parties must request a telephone conference with the judge. The judge’s office will typically set up a conference call with both parties participating. A request for a conference call may be submitted in writing to the BCA, by e-mail, or orally by telephoning the recorder (or, in the case of the CBCA, the judge’s legal staff assistant). Private, or ex parte, discussions with the judge about purely procedural matters may be permitted. E. Board Orders and Extensions of Time The board or judge will set forth the schedule for various submissions and make other demands by issuing an “order.” An order should be treated as a command from the judge to do what is set forth in the order by the date(s) specified in the order. If a party anticipates it will not be able to file (submit) a response to an order by the date(s) set forth in the order, it must ask the judge, in advance, for an extension of time.5 The request should briefly set forth the reason(s) for the extension and notify the judge when the required pleading or information is requested to be filed. Additionally, before asking a judge for an extension, a party should contact the opposing party to 4 5 A sample Certificate of Service appears in the Appendix at B-5. A sample Request for an Extension of Time appears in the Appendix at B-6. -9- check whether that party is willing to agree to the extension. Be sure to let the judge know, in the extension request, whether the request is opposed or not, so the judge can be fully informed. Unopposed extension requests are typically granted, provided there is a legitimate basis for the request and the parties do not constantly ask for them. Extensions that are opposed may require more consideration by the judge. In any case, before granting an extension, the opposing party will need to be consulted. If a party cannot meet a date set by the board’s rules or by a judge, it must request an extension of time in advance from the board. Failure to meet deadlines may lead the board to impose sanctions. Repeated failures to meet deadlines can result in the dismissal of the appeal for failure to prosecute it. F. The Appeal File The appeal file is often referred to as the “Rule 4 file” because BCAs address the content and submission of the appeal file in Rule 4 of their rules of procedure. The government is required to submit the appeal file to the BCA and to the appellant within 30 days of receiving the notice of docketing. The appeal file should contain all the documents that the government considers pertinent to the dispute. Each document in the appeal file should be arranged in chronological order, if practical, and must be sequentially numbered, tabbed, and indexed. For a number of reasons, appeal files are sometimes not complete when first submitted. For example, the government may not have considered certain documents to be relevant. Typically, the appellant will be ordered to submit a supplemental appeal file within 30 days after it received the government’s appeal file.6 This is the appellant’s chance to submit relevant documents that the government failed to include in its appeal file. Documents that the government has already submitted should not be duplicated in the appellant’s submission. Documents submitted to the BCA in the government’s appeal file and the appellant’s supplement are considered evidence; they are made part of the record upon which the BCA will make a decision, unless the other party objects and the BCA grants the objection. The documents in the appeal file and the appellant’s supplement which are included in the record will not have to be made exhibits during the hearing, which saves time and effort. Usually, the BCAs will allow the parties to further supplement the appeal file after discovery has been completed and/or prior to the hearing. As a general rule, the earlier a document is submitted for the appeal file or appeal file supplement, the less likely it is to be opposed. 6 A sample Supplement to the Appeal File appears in the Appendix at B-9. - 10 - PRACTICE TIPS • The parties must comply with the time periods and dates set by the BCA’s rules and by the judge. If it turns out that a due date cannot be met and an extension is needed, the extension request should be made well before the filing is due. If a party misses a due date and fails to request an extension, depending on the circumstances, the judge may or may not allow a late filing. • Documents submitted to the BCA in the appeal file and any appeal file supplements are accepted by the board as evidence and are made a part of the record upon which the BCA will make a decision, unless the other party objects and the BCA sustains the objection. Once this occurs, there is no future need to submit these documents as exhibits. • Once a document is included in the appeal file as an exhibit, do not resubmit the document as an exhibit in the appeal file supplement. Resubmission will cause confusion as to what document number should be referenced in future filings. - 11 - V. ELECTION OF PROCEDURES The BCAs call their trials “hearings,” but they follow traditional litigation and trial processes, including placing witnesses under oath, allowing direct and cross-examination, and ruling on evidentiary objections. In addition to traditional litigation processes, the BCAs offer small claims processes as well as alternative dispute resolution (ADR) procedures designed to help quickly and informally resolve appeals. ADR (which, in federal contract practice is sometimes generally referred to as mediation) is an alternative to having a hearing or submitting a case for a decision on the basis of the written record. It uses procedures that vary depending on the nature of the case. After a notice of appeal is received, a BCA will typically send a notice summarizing available ADR procedures or where on the web information about ADR may be found. The parties may elect to use an ADR procedure at any time. The BCA’s rules and/or the notice of docketing will state the times within which choices about litigation procedures must be made. The procedures discussed below are set forth in the rules of each BCA. A. The Traditional Litigation Procedure – A hearing The traditional litigation procedure is available for all types of cases, regardless of the dollar amount of the claim. Both parties file pleadings, with the appellant typically filing the first pleading, called a complaint. On occasion, however, the judge may order the government to file the complaint if the underlying dispute in the appeal arises from a government claim against the contractor. The content of the complaint is discussed in Section VII.A and a sample complaint can be found at Appendix B-7. After receiving the complaint, the government must then file an answer (unless the government filed the complaint, in which case the appellant will file the answer). The parties then typically conduct discovery, as discussed in Section VIII, to find out more about the case. With the traditional procedure, the BCAs typically hold a hearing unless the parties submit the case for a decision on the written record. The hearing is conducted like a non-jury trial in the federal courts and usually involves the parties filing pre-hearing or post-hearing briefs, or both. Although the BCAs are located in the Washington, D.C. area, the judge will usually hold a hearing at any location which best serves the interest of justice, so the judge will typically seek the suggestions of the parties on where to hold the hearing. In the traditional procedure, one judge will preside at the hearing and prepare the initial draft of the decision. The decision will set forth, in detail, the factual and legal bases for the decision. Two other judges will consider the record and review the initial draft decision. At least two of the three judges must agree on the final version of the decision for it to be issued. At the ASBCA, if there is a dissent (one of the panel judges disagrees with the decision), the case will be decided by a five-judge panel. A decision issued pursuant to the traditional procedure is considered binding precedent for the BCA issuing the decision and is final unless either party files a timely appeal of the decision. Binding precedent means that the issuing BCA is obligated to follow the law established by that case in future cases that have comparable facts. - 12 - B. The Small Claims Expedited Procedure – A decision within 120 days The BCAs have special procedures for small dollar value cases. For claims of $50,000 or less ($150,000 for small businesses), the appellant may elect the small claims procedure. The objective of this expedited procedure is to resolve the dispute within 120 days after the BCA receives the request for this process. After the appellant asks for the expedited procedure, the judge assigned to the case will hold a conference call with the parties to discuss how the appeal will be processed, consistent with the objective of resolving it within 120 days. The expedited procedure provides for simplified rules of procedure. The judge will streamline proceedings and may eliminate discovery, motions, and certain pre-hearing procedures. The judge may also shorten the time frames for completing such actions. The judge will hold a hearing unless the parties elect to proceed on the written record without a hearing. The election of the expedited procedure puts the case on a fast track. The parties must be able to devote the time necessary to resolve the appeal quickly and must be willing to cooperate with each other for the expedited procedure to work successfully. Only one judge will issue a decision in an expedited appeal. If a hearing was conducted, the judge, in his or her discretion, may ask the parties to give closing arguments and has the option of issuing an oral decision at the close of the hearing. The decision is typically short, with summary findings of fact and a brief statement of the legal bases for the decision. A decision issued in an expedited appeal has no precedential value, meaning that it is not cited for guidance in deciding other cases. Although motions for reconsideration are permitted, appeals to the Federal Circuit are not allowed, except in cases of fraud. C. The Small Claims Accelerated Procedure – A decision within 180 days If the amount in dispute is less than $100,000, an appellant may ask to have the dispute resolved within 180 days under the accelerated procedure. The accelerated procedure is similar to the small claims procedure but involves the following major distinguishing features: 1) the appeal is to be resolved, if practicable, within 180 days after the BCA’s receipt of the election; 2) the presiding judge issues the decision with the concurrence of one other judge; and 3) the decision may be cited as precedent in later cases and may be appealed to the Federal Circuit. - 13 - D. Submission on the Record Regardless of which of these three procedures is used, a party may ask that the case be decided on the basis of the written record, without a hearing. If one party elects to have a hearing, a hearing will be held. The party who requested a decision on the written record can attend and participate at the hearing or may submit its case on the record and elect to appear at a hearing solely to cross-examine any witness presented by the opposing party. If a party chooses to submit the case on the record, it must satisfy the same burden of proof or defense as would be required if a hearing were conducted. To help explain the documents in the record, the appeal file may be supplemented with affidavits (statements of fact sworn to and signed before a notary public), declarations (like affidavits but must contain a statement that “the facts are true and correct under penalty of perjury” instead of being signed before a notary public), depositions, admissions, answers to interrogatories, and/or stipulations of fact agreed to by the parties. While supplementation of the record as described above is not required, these additional submissions may help the judge to better understand the parties’ respective positions. If there are facts in dispute, it is important to supplement the record with affidavits or declarations given under penalty of perjury by a person with direct knowledge of the facts. Affidavits and declarations should also reference relevant documents in the appeal file or appellant’s supplement. The BCAs will usually require the record to be supplemented with legal briefs and/or oral argument. Although pro se appellants probably have not been trained to write legal briefs, it is wise to provide the presiding judge with a brief containing a concise statement of the important facts that includes citations to the evidence that support a claim or defeat a government claim. An appellant should also explain the reasons it believes that the government’s position is incorrect based on the evidence in the record. The submission of an appeal for a decision on the record does not eliminate the need to prepare pleadings or conduct discovery. A decision in an appeal submitted on the record without a hearing is final, subject only to an appeal by either party. See Section XIII. E. Separate Decisions on Entitlement and Quantum A claim generally consists of two parts: (1) the “entitlement” portion, which typically includes a detailed description of the actions or inactions of the party from whom relief is sought, entitling the claimant to compensation; and (2) the damages or “quantum” portion, which sets forth the calculations and support for the damages claimed. In some cases, to shorten the time needed to process an appeal and save resources, the parties may ask the judge to decide the appeal in two parts: entitlement and quantum. Sometimes the judge will raise this issue. When separate decisions are issued on entitlement and quantum, the appeal is said to be “bifurcated.” To decide whether an appeal should be bifurcated, the judge will consider the benefits of splitting the litigation into two parts. In the entitlement phase of an appeal, the merits of a case are addressed, i.e., whether the party is entitled to any relief. The quantum phase determines the - 14 - amount of money that an entitled party should recover, i.e., what costs the party has proved. If the judge determines in the entitlement phase of an appeal that the claim should be denied (for instance, the government did not change the contract as contended by the appellant), there is no need to move to the quantum phase. If the quantum portion of the claim is particularly complicated and will take a long time to explain and decide, it might be best to have a hearing and obtain a decision on entitlement first, leaving the issue of quantum (what/how much entitlement) to a later date. Sometimes, the parties may be able to agree to the amount of the equitable adjustment, but need the judge to decide whether the party is entitled to an equitable adjustment under the terms of the contract. Other times, both parties may agree that the contractor is entitled to an equitable adjustment but the amount of the entitlement is in dispute. Deciding whether to bifurcate a case is ultimately a decision left to the judge. PRACTICE TIPS • A hearing will be held if either party elects one. • Electing the small claims or accelerated procedure puts the case on a fast track, but the parties must be willing to cooperate with each other and devote the time necessary to process the appeal with shorter than usual time frames. • When a party decides it does not need a hearing to prove its case, it can ask the judge to make a decision on the written record. A party that chooses to submit the case on the record must satisfy the same burden of proof on the claim or defense as would be required if a full hearing were conducted. • A party electing to submit its case on the record may also elect to appear at a hearing solely to cross-examine any witness presented by the opposing party. - 15 - VI. ALTERNATIVE DISPUTE RESOLUTION (ADR) AND SETTLEMENT NEGOTIATIONS A. ADR Procedures Because litigation is time-consuming and expensive, many agencies and contractors want a different approach – one that still involves a third party neutral but which is faster, more flexible, informal, and comprehensive. These kinds of alternative procedures are called alternative dispute resolution or ADR, and there are many different types, all of which can be tailored by the parties and the neutral. Statutes, regulations, and BCA procedures provide for and encourage ADR, and the success rates are high. Parties should seriously consider this option as they work to resolve their disputes. ADR is voluntary; neither side is required to choose it. For an ADR proceeding to be conducted, both parties must agree to use ADR. However, most ADR processes still allow the parties to proceed later with litigation if the ADR is unsuccessful, so many parties consider ADR a no-risk proposition; they will either reach a resolution they can live with, or they can walk away and continue with traditional litigation. The parties may ask the board for ADR assistance anytime there is an issue in dispute, from pre-claim, through the early appeal process, to post-hearing. It is important to note that the later that ADR is requested, the more costs are incurred and the more entrenched the parties’ positions become. ADR procedures can also be used for the entire dispute or just parts of it, as the parties agree. There are two basic kinds of ADR – binding and non-binding – although there are many variations of both. Mediation, which is non-binding, is the most popular form of ADR used at the BCAs. When using mediation, the parties will typically exchange position papers addressing the facts and disputed issues, as well as their positions. They then meet with the judge in a joint session and make informal presentations to each other and the judge. Each party must be represented by someone with authority to settle the dispute. The judge, acting as a third-party neutral, meets both together and separately with the parties to assess the strengths and weaknesses of each side and help identify settlement options. If the parties reach an agreement, they sign a settlement agreement and then jointly move to dismiss the case. If they do not settle, the judge that served as the neutral withdraws and removes or “recuses” himself or herself from any further activity with the case. The case goes back into the litigation process before the presiding judge, or another judge is assigned to preside if the presiding judge conducted the ADR. This way, any concessions made for settlement purposes during the ADR remain private from the judge deciding the case. However, the parties may request that a presiding judge who conducts an ADR procedure remain as the presiding judge. This type of arrangement is allowed provided the parties and judge agree. The documents at Appendix C-7 through C-12 contain sample agreements for non-binding ADR. Reading those sample agreements can provide a better understanding of what to expect during an ADR procedure. Binding ADR at the BCAs is typically accomplished through a procedure called summary trial with binding decision. This procedure is similar to binding arbitration and has been used to resolve many claims. The parties will normally be expected to prepare short pre-hearing statements identifying the disputed facts and applicable law. A summary trial, at which witnesses testify, is held. A board judge then issues a very brief written decision, which is - 16 - binding, non-precedential, and non-appealable. Cases that have single or well-defined issues, such as clear-cut factual issues, discrete cost issues, or matters of contract interpretation, may be good candidates for this procedure. This option should also be considered for cases in which the contractor could elect to proceed under the boards’ small claims or accelerated procedures. Appendices C-15 through C-17 contain sample ADR agreements for binding ADR. Sometimes the parties decide that using a combination of ADR processes will work the best for them. For instance, in the process called mediation/arbitration (or med/arb), the judge will start out as a mediator and work with the parties to resolve the dispute. If the parties reach an impasse and are unable to resolve the dispute between themselves through mediation, the judge is then tasked with becoming an arbitrator and making a decision. The decision can be binding or nonbinding. See Appendix C-12 for a sample med/arb agreement. If the parties decide they want to use ADR, a request should be sent to the board’s chair, who will assign the matter to a board judge for action. The CBCA’s chair will consider a joint request that a particular judge be assigned as the neutral, provided that judge has time in his or her schedule. Parties who have had particular success settling past cases using ADR sometimes request a particular judge by name. The ASBCA prefers that the parties provide a short list of preferred judges from which to make a selection. The parties, sometimes with input from the judge, will prepare a written ADR agreement setting the schedule and defining the procedures for resolving the dispute. Sample ADR agreements for various binding and non-binding ADR processes can be found at Appendix C. These agreements should be tailored to the needs of the parties. Note that agreements can be crafted to allow for multiple techniques, so that if one ADR method fails to result in a settlement, a second method may be tried. For example, the parties might agree to non-binding mediation, and if that proves unsuccessful, proceed to a summary trial with binding decision. More information about ADR is available at the BCAs’ websites. Using a BCA judge for ADR has several benefits. Through ADR, the parties can get an early idea about the strengths and weaknesses of their cases, they can get a faster decision, the process is less formal than a hearing and easily done without an attorney, and relationships can be preserved and/or repaired. Any time the parties believe that getting the individuals important to the dispute together, with a board neutral helping them to discuss the dispute and to work through their differences, ADR should be seriously considered. The main restraint to using ADR to help resolve a contract dispute is that both parties must agree that using ADR might be beneficial. B. Settlement Procedures The government’s policy is to try to resolve all disputes by mutual agreement at the contracting officer’s level. Contracting officers are generally authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract subject to the CDA. However, the authority to decide or resolve claims does not include settlement, compromise, payment, or adjustment of any claim involving fraud. - 17 - Board judges encourage settlement of disputes. If the parties are engaged in serious and meaningful settlement discussions, the judge may be willing to postpone (“stay” or “suspend”) proceedings for a reasonable period so the parties can focus on their settlement efforts without the distraction and expense of litigating the appeal at the same time. Sometimes the judge’s involvement in issue identification during prehearing conference has prompted the parties to reassess their positions and agree to settlement. The parties may consider settlement at any point during litigation or ADR. Settlement should always be considered after the appeal file has been submitted since both parties and their attorneys are now more actively involved and new faces can give a fresh perspective to the dispute. Settlement should also be considered after discovery is complete. Documents produced or testimony taken during discovery may provide additional information about the merits of the dispute, defenses to the claim, or whether the amount claimed can be justified. Settlement can also occur at the hearing and sometimes occurs at the end of the hearing, or shortly thereafter, when the parties have had a chance to think about the evidence produced at the hearing. Depending on the circumstances, the presiding judge may be willing to help the parties with their assessment of the case. PRACTICE TIPS • ADR is voluntary, and neither side is required to choose ADR; for an ADR proceeding to be conducted, both parties must agree to use ADR. • The important thing to remember about ADR is that the parties and the judge all work together to fashion an ADR proceeding that will meet the parties’ needs. • In most forms of ADR, the neutral judge does not act as a judge. Instead, the judge acts as an informal advisor helping each party consider and weigh the strengths and weaknesses of its case. • ADR can be requested and used, and an appeal may be settled at any time before the judge issues a decision on the merits of the claim. - 18 - VII. PLEADINGS A. The Complaint The first pleading normally filed after the notice of appeal is called the complaint, which the appellant generally files with the board within 30 days after receiving the notice of docketing. Alternatively, the appellant can file the complaint along with the notice of appeal. The complaint tells the board about the dispute. It should contain a short, clear statement of the principal facts concerning the dispute, each set out in a separate numbered paragraph, followed by a concise statement of the relief requested. It is not necessary to address each detail of the dispute in the complaint. Appendix B-7 contains a sample complaint. When the claim at issue is a government claim, the board may ask the government to file the complaint. If the claim is simple and the claim or appeal letter adequately explains the bases of the claim, upon request by an appellant, a board may be willing to designate the claim or appeal letter as the complaint. BCA judges typically construe a pro se party’s pleadings liberally, holding it to less stringent standards than formal pleadings prepared by an attorney. However, this more lenient standard for interpreting pleadings does not change a pro se party’s burden of proof or the judge’s weighing of the factual record. B. The Answer The government is generally required to file a pleading called an “answer” within 30 days after receiving the appellant’s complaint. Usually the government will simply admit or deny each of the allegations set forth in the complaint and assert any available affirmative defenses. Sometimes the government will add a section stating its perspective of the case. If the board has asked the government to file the complaint it will require the appellant to file the answer. Where an appellant has elected the small claims expedited or accelerated procedure, the board may opt to not require a complaint and an answer if the claim and the contracting officer’s final decision adequately frame the matters in dispute. - 19 - PRACTICE TIPS • The complaint, which is typically to be submitted by the appellant, should contain a short, clear statement of the principal facts concerning the dispute, each set out in a separate numbered paragraph, followed by a concise statement of the relief requested. • BCA judges typically construe a pro se party’s pleadings liberally, holding it to less stringent standards than formal pleadings prepared by an attorney. However, this more lenient standard for interpreting pleadings does not change a pro se party’s burden of proof or the judge’s weighing of the factual record. • If a party cannot meet a filing date set by the board’s rules or by a judge, it should request a time extension before the filing is due. Repeated failures to meet deadlines can result in a judge issuing sanctions against the delinquent party. - 20 - VIII. DISCOVERY A. Description, Purpose, and Scope The term “discovery” relates to a number of ways each party can learn about the other side’s case, by asking for information or documents, or getting the testimony of specific people. Discovery helps define or narrow issues for trial and allows the parties to go to trial with the best available proof of their case. Discovery can also help settlement, as each party better understands the facts of the dispute and the other party’s case. However, despite its benefits, discovery can be very time-consuming and expensive. A party should tailor the type and extent of the discovery it conducts, particularly when the potential recovery in the case may not justify a substantial investment in pre-hearing discovery. The BCAs encourage the parties to engage in discovery voluntarily and to cooperate with each other when asking for or responding to discovery. Either party may initiate discovery at any time after an appeal is docketed and the complaint has been filed with the board. The types of discovery, as discussed more fully below, are: (i) interrogatories, (ii) requests for production of documents, (iii) requests for admission, and (iv) depositions. The boards also encourage informal discovery. If a party just needs to learn more about the facts of the case, rather than make a formal request, it can ask the opposing party to participate in a meeting or conference call with the witness and the opposing attorney present, but with the matter not being recorded. Opposing attorneys will sometimes allow this informal procedure because it can save time and aggravation for everyone. The board judges are not typically involved in the discovery process, so parties are not required to provide a copy of the discovery request or response to the judge. B. Discovery Obligations Whether issuing or responding to discovery requests, both parties have certain discovery obligations. Failure to understand and comply with discovery rules can result in sanctions or other negative consequences. 1. Board Rules Governing Discovery A party is expected to know the discovery rules of the board before which its case is being heard. Each board has its own discovery rules, which are generally available on the board’s website. Rules 13 through 16 of the CBCA rules of procedure pertain to discovery before the CBCA. Rules 14 and 15 of the ASBCA rules concern discovery before the ASBCA. Although not bound by the Federal Rules of Civil Procedure (FRCP), which govern discovery in federal courts, most BCAs find the federal rules instructive in managing discovery. FRCP Rules 26 through 37 concern discovery. 2. Preservation Both parties have a legal obligation to preserve all documents and information relevant to a possible claim or defense in the pending case. The duty to preserve information usually arises even before an appeal is filed with the board. Certainly, upon filing or receipt of a claim, the - 21 - parties must retain all documents, data, and evidence that may be relevant to a possible claim or defense in the matter before the board. 3. Discovery Conferences As a general matter, the BCAs expect that parties will cooperate to complete discovery and make a good faith attempt to resolve any disagreements relating to discovery before asking for board intervention. An early discovery conference between the parties is helpful to discuss the nature and basis of the claim and defenses, the possibilities for settlement, and development of a proposed discovery schedule and plans that can be submitted to the board for adoption. A discovery plan typically addresses an agreed-upon discovery schedule and the number of depositions, interrogatories, or requests for admission each party is allowed. The parties should also consider the potential witnesses and documents (electronic or otherwise) that are relevant to the dispute. At the discovery conference, the parties should pay particular attention to whether the burden and expense of preserving, collecting, and reviewing large quantities of documents and electronically stored information outweighs the likelihood that the discovery will actually lead to useful information to help prove a case. The parties should balance the burden and expense of discovery against the amount in dispute, the parties’ resources, and the importance of the issues at stake. A sample letter for forwarding discovery requests can be found at Appendix B-10. C. Types of Discovery 1. Interrogatories Interrogatories are written questions asked by one party and served on the opposing party. They are generally used to determine what factual issues are present in a case and help the parties to develop other discovery requests. Written answers or objections, if any, are required within the time specified by the rules of each board or as specified by the judge to whom the case is assigned, usually 30 or 45 days after the party receives the interrogatories.7 Board rules require the answering party to certify or verify its interrogatory responses under oath. The responding party must sign the responses and certify, declare, or verify that the information provided is true and correct. “I, (name), (give name of company and position) hereby certify (declare or verify) under penalty of perjury that the facts contained in the within and foregoing [responses to respondent’s interrogatories] are true and correct to the best of my information, knowledge and belief. Signed: (give signature).” The responding party has a duty to provide written answers to all interrogatories that are not objectionable. Answers to interrogatories must be responsive, complete, and not evasive. Interrogatories are most useful for discovering the people who have the best knowledge about particular issues, identifying the most relevant documents, and learning the basis for assertions in the other party’s pleadings. Appendix B-11 includes a sample set of appellant’s interrogatories. 7 The CBCA requires that objections to interrogatories must be provided within 15 calendar days after receipt. See CBCA Rules 13(f)(2), 14(a). - 22 - The party answering the interrogatories must provide all responsive information that is within its control, including information that could be obtained by questioning its agents or employees. Where the answer to an interrogatory may be derived from a party’s business records, the responding party should specify the records from which the answer may be derived and give the asking party a chance to copy or inspect those records. After submitting its initial response to an interrogatory, the responding party has an ongoing duty to supplement its responses with any subsequent information necessary to give a complete and accurate response to the original question. If an interrogatory is not answered, or the answer is evasive or incomplete, the party who asked the questions should discuss the issue with the opposing party’s representative prior to contacting the board or submitting a motion to compel more complete answers. See Section IX. 2. Requests for Production of Documents Requests for production of documents are written requests from one party to the other for specific documents or categories of documents. They are often served along with interrogatories. Requests for production generally include paper documents as well as any electronically stored information that is responsive and in the possession, custody, or control of the responding party. The request for production should contain instructions regarding the documents sought and the form of production. Requests for production should be tailored to the key documents a party needs: if overbroad, they will likely trigger a discovery dispute. An example of a request for production of documents is included in Appendix B-16. The producing party generally should ensure that all documents or images it provides, whether electronic or paper, contain unique identifying numbers to help identify the documents later in depositions or in proceedings before the board. Responses to requests for production, or any objections to document requests, must be made within the time specified by the rules of each board, which may span 15 to 45 days depending upon the board. If the parties cannot agree on the scope of the production, the requesting party may move for an order compelling production of the documents and/or the receiving party may move for a protective order. See Section IX. The responding party is required to provide any information that is responsive to the request, unless the information is legally privileged or otherwise objectionable. Section IX provides further discussion of objections to written discovery and privilege issues. Generally, the responding party may satisfy the request for production by producing copies of the requested information or making the information available to the requesting party for inspection and copying. As with interrogatories, after submitting its initial response to a request for production, a party has an ongoing duty to supplement its production with any subsequently available information necessary to give a complete and accurate response to the document request. - 23 - Failure to produce documents responsive to a production request may result in the judge issuing an order to produce them. Repeated refusal and failure to produce properly requested documents can lead to sanctions, such as the judge denying the part of the appeal to which the documents apply on the assumption that they contain evidence favoring the other side. 3. Requests for Admission Requests for admission are a set of statements sent from one party to the opposing party, asking the opposing party to admit or deny each specific statement. This helps narrow the issues by showing what really is in dispute. Additionally, admitted facts do not have to be proven at trial, making the dispute process simpler and more efficient. Requests for admission may ask a party to admit or deny the authenticity of a document or the truth of factual allegations. A sample of a request for admissions is included at Appendix B-20. The responding party can either admit, deny, or state in detail why it can neither admit nor deny the truthfulness of the statement (e.g., for lack of knowledge). Requests for admission can be denied or admitted in full or in part. If a party makes the requested admission, it cannot argue later against the statement in which it admitted certain facts. Responses to requests for admission are required within the time specified by the rules of the board to which you have appealed, which may be 15 to 45 days depending upon the board. Failure to respond to a request for admission within the time stated in the board’s rules can result in the statements contained in the request being deemed by the board to be admitted. 4. Depositions A deposition is the taking and recording of the testimony of a witness before a hearing. The individual being questioned is called the deponent. Deposition testimony is generally taken under oath, recorded, and transcribed into a written document by a court reporter. Depositions usually take place after responses have been made to interrogatories and requests for production because they build on information obtained in the earlier requests. Unlike written discovery, depositions allow a party to talk with witnesses and learn more about what happened, even if it is not documented. Depositions also give a party the chance to lock in the testimony of the other side’s witnesses to use in dispositive motions or at the hearing. Sometimes, where a witness testifying at a hearing tries to change what he or she testified during the deposition, the opposing party might try to use the deposition to impeach the witness. To do this the party attacks the credibility of the witness using the deposition to show inconsistent testimony or evidence of lying. The parties should work together to find mutually agreeable dates, times, and places for depositions. A party should not unilaterally set a date, time, and place for a deposition. If one party believes the other party is being unreasonable in its deposition requests, it can ask the judge for a protective order limiting the scope, length, and number of depositions. Subsection D.3 of this section reviews protective orders in more detail. Similarly, if a party refuses to make a witness reasonably available, the board can issue a subpoena requiring the deposition. Once the individuals, locations, dates, and times are determined, the party requesting - 24 - the deposition should send a formal notice of deposition to the person to be questioned (deposed). A sample notice of deposition is at Appendix B-18. The requesting party is also responsible for obtaining a court reporter to record and transcribe the deposition. At a deposition, the individual being deposed may be asked a wide variety of questions; questions are appropriate if they might reasonably lead to admissible statements or evidence. The deponent or his or her counsel may object for the record, but the deponent should then answer the question. A deponent who refuses to answer a reasonable question can be subject to sanctions. After the requesting party has finished asking questions, the opposing party and any representative the deponent has with him or her can ask follow-up questions to clarify or emphasize the deponent’s testimony. Any documents used to question the deponent are marked as exhibits and copies are attached to the deposition transcript. If a party plans to rely on these documents, it should make sure to supplement the appeal file with them because, as mentioned below, deposition transcripts (and the documents included with them) are not typically made part of the record. Sometimes a party may wish to depose an individual as speaking for an entity (e.g., corporation, governmental agency). If so, the requesting party sends a notice of deposition to the entity describing the matters it wishes to discuss in the deposition. The organization must then name someone to testify on its behalf about information known or reasonably available to the organization. Deponents may also have to attend and testify at the hearing. Statements made in a deposition generally do not become part of the hearing record except where a witness’ hearing testimony is inconsistent with his or her deposition testimony or where the witness is unexpectedly unable to testify at the hearing. If a party has concerns about whether a witness will be available to testify at the hearing (e.g., due to serious illness), it can ask the board for permission to take an evidentiary deposition to preserve the testimony of the witness. The opposing party must be given notice of that so it can be prepared to cross-examine the witness. D. Managing Discovery Successful discovery helps a party to better understand the facts and merits of the whole case; unsuccessful discovery can overshadow the entire dispute. The parties, and the BCAs, have tools to help achieve a reasonable balance of disclosure of information. 1. Privilege “Privilege” is the term used to describe the protection the law gives certain documents, information, and communications. With some limited exceptions, parties do not have to respond to discovery where the information being sought is protected by privilege. There are two main legal doctrines that protect communications or documents from disclosure during discovery. The first doctrine is attorney-client privilege, which protects certain communications between a client and his or her attorney and keeps those communications confidential. The second is the work- - 25 - product doctrine, which prevents disclosure to adversaries of materials developed in preparation for litigation. The contours of these two doctrines are further described in board case law. 2. Objections to Written Discovery A party can object to a written discovery request that it believes is inappropriate. Objections to written discovery must be filed within the time frames specified by the board, and if a party does not raise an objection, it may be waiving the chance to raise that objection later. Objections to written discovery typically consist of both general and specific objections. General objections set forth any general objections to the written discovery requests or challenge definitions or instructions of the asking party. A party should also raise any specific objection it may have to a particular interrogatory, document request, or request for admission. If a party believes it should not have to answer a particular question, it must state a valid reason for not answering. Objections may be made as to the form of the questions asked or to the information the questions seek. Form objections include, for example, objections that questions are vague, duplicative, overly broad, and/or lack detail. The responding party may also object to the substance of the questions. This may include objections that the information sought is not relevant; unduly burdensome; privileged, proprietary or confidential in nature; not within the possession of the party; and/or outside of the scope of the responding party’s knowledge. 3. Protective Orders Protective orders help to protect information exchanged during discovery or to prevent undue discovery burdens. Protective orders can be negotiated between the parties and proposed to the judge to protect trade secrets, confidential information, proprietary information, or other sensitive information. Such orders will provide that the specified documents (or parts of documents) that either party designates as covered by the protective order are to be held in confidence, used only to prepare for the hearing, and disclosed only to specified persons. A party may challenge a request that a document (or part of a document) be designated protected information by arguing the material is not in fact confidential or otherwise sensitive. If a party believes that discovery requests it has received are unduly burdensome, it can ask the board to issue a protective order relieving it from having to respond. It is up to the board to decide whether or not to grant the request. However, the BCAs are often reluctant to grant protective orders unless a party can show a clearly defined serious injury if it is required to respond. 4. Motions to Compel If a party does not respond to a discovery request or responds evasively or incompletely, the other party can ask the board to order a response or more complete answers. This request is called a motion to compel. Because the BCAs encourage voluntary discovery, parties should rarely have to resort to a motion to compel. Whenever there is a dispute concerning the completeness of responses to discovery, the parties should first try to resolve the dispute before filing a motion to compel with the board. A motion - 26 - to compel should include a representation that the moving party has tried in good faith, before filing the motion, to resolve the matter informally with the other side. The motion should also include a copy of each discovery request at issue and the response, if any. Details on how to present a motion and tips for written advocacy appear at Section IX.C. If the board has issued an order compelling responses to a discovery request and the noncomplying party still refuses to respond or the response remains incomplete, the board has a number of options. The board may find facts relating to the incomplete or missing information in favor of the other party. In addition, the board may deny the non-complying party the right to present certain claims or defenses or exclude certain matters from evidence during the hearing. These options are called sanctions and may also be applied to any party for failure to comply with board orders. 5. Sanctions Occasionally, after attempting to resolve discovery disputes with the opposing party, a party still refuses to comply with the discovery request. If after attempting to work with the opposing party a response is not forthcoming, the requesting party may ask the board to sanction the offending party. A party should not approach the board requesting sanctions without first attempting to work out the discovery dispute with the other party. After it has attempted that, the requesting party must then follow the procedures set forth below to obtain a board order. It is only after the board has become involved in the discovery by issuing an order that the requesting party should file a motion for sanctions. The BCAs have considerable discretion in determining whether a sanction is appropriate, and if so, what particular sanctions should be used to address the specific circumstances of the case. Most board sanctions are issued because a party has failed to take action to develop its case (failure to prosecute) or has not been timely in responding to a discovery request. A board’s power to impose sanctions is broad. In egregious situations, for instance, where a party has willfully and repeatedly failed to respond to an order, appeals have been completely or partially dismissed. This sanction has been described as harsh and severe, so it is employed sparingly by boards. BCAs can issue sanctions prohibiting the introduction of evidence; taking the facts of the non-offending party as true; forbidding challenge of the accuracy of evidence; prohibiting the calling of witnesses; drawing adverse inferences; and disqualifying a party’s representative, attorney, or consultant/expert from further participation in the case. Through sanction authority, boards have the flexibility to balance any injustice that may have occurred as the result of an offending party’s behavior with appropriate penalties. Thus, BCA judges have available, and have used, a variety of sanctions designed to fit the situation and enforce compliance with its rules and orders. Judges do not issue sanctions lightly. Parties are urged to work out problems before approaching the board for a sanction. Typically, a sanction will not be issued unless a board order has been violated, and, then, only after significant consideration by the judge. So, if a party is having difficulty getting a timely response to some discovery, it should first discuss the issue with the opposing party and agree to a specific date for production. If that does not work, next request a telephone conference with the judge. In that telephone conference, ask the judge to issue an - 27 - order establishing a specific date for production. Once the order has been issued, if the opposing party still does not comply, submit a motion for sanctions to the judge. It is only after a judge’s order (or specific written direction) is not obeyed that a sanction will be issued. The BCAs do not have the authority to sanction a party or an individual by holding it “in contempt,” by issuing a monetary fine, or by forcing a party to perform a contract in a particular way (specific performance). PRACTICE TIPS • Tailor discovery to balance the need for information with the burden and expense of discovery. Consider the amount in dispute, resources, and the importance of the issues. Informal discovery is always an option, as is ADR. • Remember that each party has an on-going duty to supplement responses to discovery if additional responsive information later becomes available. • Try to work out all discovery disputes with the opposing party. Although recourse to the board is an option, judges generally dislike being dragged into discovery disputes and expect the parties to try to resolve the issues themselves. • Where a party has repeatedly failed to respond to a discovery request and the board has issued an order setting a date for a response that the offending party has failed to meet, the party seeking the discovery may ask the judge to sanction the offending party. However, a sanction will not be issued against the offending party until after the judge has issued an order requiring the offending party to provide the discovery by a certain date and the party fails to meet that date. - 28 - IX. MOTIONS AND BRIEFS Motions and briefs are written legal documents advocating a party’s position and asking the board to rule in its favor on the points raised. They are filed at different times depending on the stage of the proceeding and what specifically a party is asking the BCA to rule on. Motions and briefs have many traits in common, including a statement of the facts, explanation of applicable legal authority, and analysis of why the party should win based on how the established law applies to the facts in the case. Distinctions and details are set forth below. A. Dispositive Motions Although motions can be filed on a wide variety of topics (including many procedural issues), motions that will resolve all or part of a case are particularly important. These are known as “dispositive motions” because they ask the board to resolve (dispose of) the appeal early, before a hearing or before the BCA’s decision on the record. The two most common types of dispositive motions are the motion to dismiss and the motion for summary judgment.8 1. Motion to Dismiss A motion to dismiss can be filed by either or both parties and may be based on a variety of theories. A motion to dismiss for lack of jurisdiction argues that the board does not have jurisdiction under the CDA to resolve the disputed issue(s). In a related vein, a motion can assert that the appellant has not stated a claim for which the BCA can grant relief. Procedural motions, such as a motion to dismiss for failure to prosecute the appeal, can also sometimes be dispositive. If a party files a dispositive motion, the BCA will give the opposing party a chance to respond to that motion. If the BCA raises the issue itself, as is sometimes the case with jurisdictional issues, both parties will be asked to file briefs addressing the judge’s concern. 2. Motion for Summary Judgment In a motion for summary judgment, the moving party asks the judge to enter a decision in its favor on the merits of the case (or on certain specific issues, in which case, it is called a motion for partial summary judgment). The grant of such a motion decides, and ends, the appeal (or the identified issues) at the BCA. Guidance on motions for summary judgment may be also found in Rule 56 of the Federal Rules of Civil Procedure (FRCP). To win a motion for summary judgment, the party making the motion must show that: (1) there are no genuine issues of material fact in dispute, and (2) the law supports the position of the party making the motion. This means that the important facts on which the outcome of the case depends are not genuinely disputed, and even if all inferences from those facts are resolved in favor of the party not making the motion, the law (prior decisions, statutes, regulations, and/or contract terms) requires the conclusion that the moving party wins. To do this, the moving party must provide a statement of undisputed material facts at the start of the motion, clearly listing the material facts of the case. The statement of undisputed material facts is similar to the proposed findings of fact, discussed in Section IX below, but it lists undisputed facts, rather than disputed 8 The CBCA refers to a motion for summary judgment as a motion for summary relief. - 29 - facts, about which the judge may make specific findings if the case proceeds. Without proposed undisputed material facts in a party’s motion, the motion will likely be denied because the judge cannot determine that there is no genuine dispute of material fact. If one party files a motion for summary judgment, the BCA will give the opposing party a chance to respond. That party may either cross-move for summary judgment, if it agrees there are no facts in dispute (but believes the law supports its position rather than the other side’s), or simply oppose the motion if there are disputed facts. If the non-moving party disputes the facts asserted by the moving party, it must say so in its opposition to the statement of undisputed material facts by submitting a statement of genuine issues, clearly identifying which facts it agrees are undisputed and which it contests; it may also add any other facts that were omitted but essential to resolving the motion. The evidence can consist of documents in the appeal file, sworn affidavits, declarations, or other available evidence that contradicts the other side’s version of the facts. Unsupported statements or conclusions in a party’s brief are generally not considered evidence. Failure to adequately respond to the motion for summary judgment could result in a party losing its case. B. Briefs A brief is a legal document written by a party to persuade the judge to rule in that party’s favor, typically filed before or after a hearing, or in connection with a submission on the record. 1. Pre-Hearing Briefs The judge may require the parties to submit pre-hearing briefs to better inform the judge, before the hearing starts, about what facts will be presented (and disputed) and how they fit with the legal theories advanced by the party. If the judge asks for pre-hearing briefs, the judge will usually specify what the briefs should address and when they will be due. Typically, the brief will contain a statement of the facts and issues in dispute and a concise discussion of the applicable law. It should serve as a road map for the judge to understand the facts of the case, especially those that are not in the written record and will be addressed by witnesses. It should explain, from the party’s standpoint, why the facts and appropriate law entitle the party to win. 2. Post-Hearing Briefs At the end of the hearing, the judge will usually set up a schedule for submitting post-hearing briefs. Post-hearing briefs are similar to pre-hearing briefs except that they are typically more comprehensive and are based on the testimony actually presented at the hearing (rather than what the parties anticipated the hearing would show). They should put all the pieces (factual and legal) together and take the judge through each step to the logical conclusion in favor of the party writing the brief. All statements of fact must reference documents in the record and must cite to the hearing transcript (volume and page) whenever they refer to testimony given during the hearing. The judge may also allow for filing of reply briefs, where each side can counter the facts or legal positions taken by the opponent in its brief. The judge may require both parties to submit their initial post-hearing briefs at the same time (simultaneous briefing), or the judge may require sequential briefs where the party with the burden of proof submits its brief first, followed by the response by the opposing party, and then a last reply brief from the party with the burden - 30 - of proof. If one of the parties believes a particular order of submission is best for its case, suggest it in a pre-hearing conference or at the end of the hearing when the judge addresses briefs. C. Writing Motions and Briefs Although the BCAs do not require a particular format for motions and briefs, the guidelines below are standard, and using this format will help the BCA understand a party’s position. Generally, briefs should be typed and double-spaced, using traditional upper and lower case lettering and traditional margin settings. Some judges set a page limit on briefs. If the judge’s page limit is unclear (for example, if it does not address attachments or type-size), a party may receive clarification from the judge. If the judge does not set a page limit, write only as much as needed to present the case; then stop. Unnecessarily long, repetitious, or rambling briefs may weaken a presentation. It is important to pay attention to page limits set by the judge. 1. Introduction The introduction provides an overview of what the case is about, summarizing clearly and succinctly the factual and legal issues. At this stage, simply summarize your position, without describing all the details. Any statement made in the introduction should be later supported in the proposed findings of fact section of the brief. The introduction should avoid inflammatory and derogatory language. 2. Questions Presented State the questions (issues) before the BCA for decision. It is important to frame issues accurately. Inaccurate statements may lead the judge down the wrong path and potentially delay the case. 3. Proposed Findings of Fact These are the facts that a party believes are true and wants the BCA to find are true also. The proposed findings of fact are very important to the brief because the judge applies the law to the facts of the case in making his or her decision. Each proposed finding of fact should be numbered and limited to either just one fact or just a very few closely related facts. Each fact should be supported by something in the record – the appeal file, the supplemental appeal file, any exhibits that were admitted into evidence at the hearing, and/or the transcript of the testimony presented during the hearing. The party must cite to the appropriate document for each proposed finding of fact, including the exact page where the support for the fact appears. Arrange the proposed findings of facts logically (typically chronologically), with headings if needed for clarity, e.g., Contract Formation PFFs [proposed findings of fact] 1-8, Appellant’s Progress [PFFs 9-25], Cure Notice [PFFs 26-29], Appellant’s Response to Cure Notice [PFFs 30-42], Contract Termination [PFFs 42-50]. 4. Argument In the argument, the party explains the relevant law and applies the law to the facts, explaining why the case law, statutes, regulations, contract provisions, and other authorities, when applied - 31 - to the case, lead to a result in the party’s favor. When a party cites cases to support its legal argument, be sure those cases stand for the proposition the party claims it stands for. If there is no case directly applicable, explain why the reasoning of a similar case should apply by analogy. A party should also address the arguments advanced by the opposing party in its brief and explain why those positions are not correct. If a party has weaknesses in its case, it should address them in the brief. Weaknesses won’t go away, and opposing counsel will usually see them and point them out to the judge in a much more damaging way. Further, weaknesses in a case usually will be obvious to the judge even if the opposing party does not point them out. Therefore, a party should acknowledge its weaknesses and explain why those weaknesses do not prevent the judge from ruling in its favor. Despite the fact that this part of a typical brief is called “argument,” avoid inflammatory and derogatory words, which really say nothing and can actually hurt a party’s position. The judge will make his or her own conclusions about a party’s behavior. Persuasion is best accomplished by strong facts and sound legal analysis, not by emotional pleas. 5. Conclusion Finally, the party should provide a summary stating it believes it should win based on the facts and applicable law. Be clear and concise, and leave the judge with a final impression of the persuasiveness of your position. PRACTICE TIPS • When writing a motion for summary judgment, include a separate section setting forth the material facts. • When responding to and defending against a motion for summary judgment, address the facts that the moving party says are not in dispute by either admitting those facts are not in dispute or stating they are in dispute (give reasons they are in dispute with citation to the record). Also, include material questions of fact that make summary judgment inappropriate. • Try to keep written products concise and nonrepetitive. • If a party’s representative is not familiar with writing legal documents consider allowing someone who is not overly familiar with the dispute proof-read the document. If that individual is able to understand the facts and arguments the document is ready to be submitted to the board. - 32 - X. PRE-HEARING MATTERS A. Pre-Hearing Orders Typically, the presiding judge will issue a pre-hearing order which addresses various matters that need to be resolved before the hearing. Issues that may be addressed in a pre-hearing order may include cut-off dates for discovery and the submission of appeal file documents, and exhibits, and submission of a list of witnesses being called, including experts and consultants. The judge may require information concerning expert testimony, including a report or narrative of the actual testimony to be given by the expert. Sometimes a judge will order one or both of the parties to develop a joint stipulation of facts or a schedule of costs. At this stage in the proceedings, it is even more important that the parties make sure the due dates in the judge’s orders are met. Items not provided by the due dates will often be excluded when a party attempts to introduce them later; witnesses not listed will typically not be allowed to testify at the hearing. Parties should be aware that as the time grows closer to the hearing, many judges become more reluctant to grant time extensions, especially if they impact other due dates before the hearing. Judges want a full record to review prior to the hearing and do not respond well to surprise evidence attempted to be introduced for the first time during a hearing. The pre-hearing order is meant to eliminate any surprises. Once a judge has stated that the established schedule is “firm,” extensions or changes to that schedule will usually be made “only upon good cause,” e.g., when a good reason is given for the schedule change. While earlier in the proceedings, judges are usually fairly generous with extensions, later in the proceedings, after a pre-hearing order is issued, a party stating it simply “did not get it done” is not typically a good enough reason to grant an extension. If a judge decides that an extension is not merited and the party is unable to get the evidence timely submitted, that evidence may be excluded from consideration in the case. Of course, a request for a time extension should be made before the item is due in case the extension is denied. Also, a party wishing to change the schedule or otherwise amend a prehearing order late in the proceedings should first consult with the opposing party before submitting a written request to the judge. Any such request must include the reasons for the request and state whether the opposing party concurs with or objects to the request. A copy of the written request must also be provided to the opposing party. After a pre-hearing order has been issued or late in the period immediately preceding a hearing, depending on the facts given for the request and its timing, a judge may or may not grant a request for an extension. B. Pre-Hearing Conference Pre-hearing conferences are held for the judge to determine if there are any irregularities or problems that might impede a smooth hearing and to resolve those issues off the record before the start of the hearing. Pre-hearing conferences are sometimes held face-to-face with the judge and other times via a telephone conference. Parties are encouraged to raise any questions that they have, as this may be the last conference scheduled by the judge prior to the hearing. Faceto-face prehearing conferences are usually held immediately before the start of the hearing. In - 33 - that type of conference, the judge will typically review the documents that comprise the appeal file and the appeal file supplement, exhibits, and who will be testifying at the hearing. C. Exhibits As discussed earlier, the purpose of the appeal file and any supplements is to eliminate the need for introduction of evidence at the hearing. If a document is submitted as part of the appeal file or supplements, and is not timely objected to by the opposing party, that document automatically becomes part of the record on which the case will be decided. There may be occasions, however, where a party may wish to include a document that was not part of the contract, such as a report prepared by a consultant after the contract work was finished. Similarly, to ensure the qualifications of each witness is fully understood, some judges request that the parties submit a resume, curriculum vitae, or biography for each witness. Each judge has his or her own preferences as to how to deal with evidentiary issues. The best time to deal with a potential problem is to raise it with the judge in a telephone conference prior to the hearing. A party should not wait until the hearing to find out about whether a particular piece of evidence will be admitted into the record because the party may be unpleasantly surprised at hearing when the judge decides to exclude it and the party is not prepared to work around the excluded evidence. Parties should never surprise the judge or the opposition with new exhibits at the hearing. The party will probably be violating the judge’s pre-hearing orders regarding exchange of exhibits by a certain date, and it risks not getting its evidence admitted if it has not given appropriate notice of the exhibit prior to the hearing. This particularly applies to an expert or consultant report or testimony that has not been previously disclosed. Judges typically will not allow what they consider to be litigation “by ambush.” D. Stipulations Stipulations are agreements between the parties regarding the facts or legal principles that apply to the case. Some judges require that the parties develop a joint statement of stipulated facts to narrow the matters that will have to be decided at the hearing. An example of a stipulation is: “The contract was awarded on [date]. Appeal File, Exhibit 3.” To arrive at stipulations the parties will need to exchange proposed stipulations and determine which ones are agreeable to both parties. Once there is agreement, the stipulation may be signed by both parties and presented to the judge for adoption as part of the record of the case. E. Motions to Exclude Evidence A motion to exclude evidence, sometimes raised in limine (preliminarily to a hearing), is a request for the judge to rule on whether to admit a particular piece of evidence into the record. For example, a party receives an updated, significantly more elaborate, report from the opposing party’s expert consultant three days before the start of the hearing. Noting that all consultant reports were due a month earlier, the party requests through a motion to exclude evidence that the judge not allow the expert consultant’s revised report into the record. A judge may exclude evidence if he or she believes that a party may be harmed by the late introduction of certain evidence. - 34 - F. Pre-Hearing Briefs or Position Papers A judge may order the parties to submit pre-hearing briefs or position papers, or sometimes one party will request permission to submit a pre-hearing brief or position paper. Perhaps, as in some expedited proceedings, there will be insufficient time for filing briefs post-hearing, and the judge decides that a summary of the facts and law pertinent to the dispute will be helpful. Sometimes a judge may have questions about particular set of facts or law that he or she would like to have addressed prior to the hearing. If so, the judge will usually raise the need for pre-hearing briefs or position papers and set a date for submissions. These pre-hearing submissions can help the judge become familiar with a party’s position on difficult technical and legal issues before the hearing. For more discussion on the structure and content of pre-hearing briefs or position papers, refer to Section IX. PRACTICE TIPS • Request time extensions as early as possible. As the time for the hearing grows closer, many judges become more reluctant to grant time extensions, especially if the extension will impact other items due before the hearing. If a solid reason for an extension is not given, be prepared for the request to be denied. • Most judges will not allow one party to “ambush” another party during the hearing. This usually means the party cannot introduce things it has not previously disclosed, such as new evidence, reports, documents, witnesses, or theories of recovery. In a case that is developed correctly, each party has the opportunity to understand the other party’s facts and theories of recovery fully before the hearing starts and is not “surprised” by any evidence that is attempted to be introduced for the first time at the hearing. • Representatives should anticipate potential evidentiary problems and check to determine a particular judge’s preference during a telephone conference, so they can prepare properly for the hearing. - 35 - XI. THE HEARING A. Date and Length of the Hearing If the parties elect to have a hearing, the judge will typically ask them to jointly propose a hearing date(s), to estimate the expected length of the hearing, and to propose a hearing location. If the parties cannot agree on the various items relating to a hearing, they should notify the judge of their disagreement and the reasons for it. All of the boards, which are located in the metropolitan Washington, D.C. area, have courtrooms. Judges decide the location for a hearing considering a variety of factors which may include the desires of the parties, the locations of witnesses, the location of the contract, and other pertinent factors raised by the parties. Judges will travel throughout the world to hold hearings at the location that best serves the needs of the parties and the judge. The parties should work together to find a mutually agreeable place for the hearing, so that when the judge asks they are ready to tell the judge their preferences. A typical hearing may start around 9 a.m. and continue until 5 p.m. Plan for at least one break in the morning and one in the afternoon, as well as a lunch break. Parties should build into their estimates some extra time because, depending on the judge, they may be held to their estimates during the hearing. Allow time not only for questioning your own witnesses during direct and redirect examination, but also allow time for the opposing party to conduct cross-examination of those witnesses. As a rule of thumb, allow the same amount of time for cross-examination as for direct examination. Even experienced attorneys have underestimated the amount of time necessary to present their witnesses and run into problems with time limits at a hearing. The judge will send an order to the parties setting the date, location, and starting time for the first day of the hearing. Make sure that witnesses and all the necessary documents, such as copies of the appeal file and any appeal file supplements, are at the hearing location early, allowing for some time to get organized and to be ready to start at the designated time. B. Immediately Before the Start of the Hearing The judge will typically go over several “housekeeping” matters immediately prior to the start of the hearing. The judge may raise the question of whether the parties wish to have the witnesses allowed in the hearing room throughout the hearing. A witness may be influenced by hearing the testimony of other witnesses. To avoid this, the parties or the judge may decide to have witnesses “sequestered” (excluded from the courtroom) before they testify. In that case, the judge will issue an order excluding the witnesses and prohibiting witnesses and party representatives from telling other witnesses about testimony in the hearing. Violations of a sequestration order may result in the judge excluding the testimony of a witness. However, a sequestration order ordinarily does not prohibit a party’s representative from discussing the case with witnesses in preparation for their testimony as long as the testimony of other witnesses is not revealed. If there is any question as to the scope of the sequestration order, it is best to ask the judge to explain it on the record. Naturally, the judge will not exclude a party’s representative who is also a witness, or someone essential to the presentation of the party’s case. - 36 - The judge may ask who will be representing each party at the hearing, i.e., who will be in charge of the presentation of the case. Do not arrive at the hearing with someone not authorized by the rules of the particular board to represent the party, such as a claims consultant or an unlicensed attorney, because the judge will not allow an unauthorized representative to speak at the hearing on an appellant’s behalf or to question witnesses. C. Failure to Appear at the Hearing Once an agreed-upon hearing date has been set, a judge will not usually change the date unless the parties jointly request a change and/or the party requesting the change has a “good cause” for requesting a change (e.g., death or a serious illness of a family member). The fact that a party or its representative may not be ready for the hearing or has gotten unexpected work is not good cause. However, if something serious happens that makes a party’s representative or important witness unable to attend the hearing, the judge and other party’s representative should be notified immediately. Postponement of the hearing should be requested with reasons given, and the parties should make sure the judge has granted the request and the hearing has been postponed, before the representatives and witnesses decide on their own not to appear for the hearing. The closer the hearing, the more reluctant the judge will be to postpone the hearing. If a postponement is not granted and the party does not appear for the hearing, the party will face an unexcused absence. The judge will likely proceed with the hearing and consider the party to have made its case on the record, i.e., based solely on the documents that are already in evidence, such as documents in the appeal file and any supplements. Similar warnings apply to witnesses who become unavailable or do not show up for the hearing. D. The Hearing Record At the hearing, the proceedings are recorded by a court reporter who then types up a transcript, which is a precise written record [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A6f5f8f9cf412df1f. Public record. Not legal advice.