Rules of Procedure of the General Services Administration Board of Contract Appeals

GENERAL SERVICES ADMINISTRATION

Board of Contract Appeals

48 CFR Part 6101

Rules of Procedure of the General Services Administration Board

of Contract Appeals

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Proposed rule; Request for comments.

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SUMMARY: This document contains revisions to the rules of procedure of

the GSA Board of Contract Appeals (Board), which will govern all

proceedings before the Board. The revisions are intended to implement

certain provisions of the Federal Acquisition Streamlining Act of 1994

(Pub. L. 103-355) (FASA or Act) which have amended the Brooks Automatic

Data Processing Act, under which the Board hears and decides protests

of procurements involving automatic data processing (ADP) equipment,

and the Contract Disputes Act of 1978, under which the Board hears and

decides contract disputes. The revisions are intended to conform the

Board's rules of procedure to the amendments made to its two

jurisdictional statutes. The Board intends to issue final, revised

rules after considering all comments on the proposed revisions.

DATES: Comments must be submitted by January 31, 1995.

ADDRESSES: Comments concerning these proposed rules may be mailed to

GSA Board of Contract Appeals, 18th & F Streets NW., Washington, DC

20405.

FOR FURTHER INFORMATION CONTACT:

Wilbur T. Miller, Chief Counsel, GSA Board of Contract Appeals, (202)

501-0891.

SUPPLEMENTARY INFORMATION:

A. Regulatory Flexibility Act

The General Services Administration certifies that these revisions

will not have a significant economic impact on a substantial number of

small entities within the meaning of the Regulatory Flexibility Act (5

U.S.C. 601 et seq.).

B. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed

revisions do not impose recordkeeping or information collection

requirements, or the collection of information from offerors,

contractors, or members of the public which require the approval of OMB

under 44 U.S.C. 3501 et seq.

C. Background

The Brooks Automatic Data Processing Act (40 U.S.C. 759(f))

provides that protests involving ADP procurements may be filed with the

Board. That Act also provides that the Board is to adopt and issue

rules and procedures necessary for the expeditious resolution of such

protests. In addition, the Administrator of General Services has

delegated to the Board the authority to adopt and issue rules necessary

for the resolution of contract disputes under the Contract Disputes Act

of 1978 (41 U.S.C. 601-613). The proposed rules have been approved by

majority vote of the Board's members.

D. Effective Dates

Pursuant to Sections 10001 and 10002 of the FASA, the Board

proposes to make the final revised rules, as well as sections 1432-

1434, 1436-1438, and 2351(c)-(d) of the Act, applicable to all

proceedings filed on or after a date to be specified in the final

rules. Section 1435 of the Act shall be applicable to cost applications

where the underlying protest is filed on or after such date. The date

specified in the final rules shall be at least thirty days after the

publication of such rules.

E. Highlights of Proposed Changes

Subtitle D of Title I of the FASA names and amends the Brooks

Automatic Data Processing Act (40 U.S.C. 759(f)), under which the Board

hears and decides protests. Subtitle D of Title II of the FASA amends

the Contract Disputes Act of 1978 (41 U.S.C. 601-613), which gives the

Board jurisdiction to hear and decide contract disputes. The proposed

revisions to the Board's rules contain changes necessitated by the

amendment of both the Brooks Act and the Contract Disputes Act. In

addition, Section 155 of the Energy Policy Act of 1992 (42 U.S.C. 8287)

authorized the Board to review decisions regarding the qualification of

firms to enter into energy savings contracts. The Foreword to the rules

now includes a statement that, in conducting such reviews, the Board

will apply the rules pertinent to protests to the extent practicable.

Definitions

A definition of ``prevailing party'' (Sec. 6101.1(b)(12)) has been

added to the rules to conform to section 1435(b) of the FASA. In a

protest, a ``prevailing party'' is one who has demonstrated that a

challenged action of a Federal agency violates a statute or regulation

or the conditions of a delegation of procurement authority. Similarly,

the definition of ``protest'' (Sec. 6101.1(b)(13)) has been changed to

that specified in section 1438 of the Act. Finally, in order to conform

to the language prescribed in section 1437 of the Act, the term

``working day'' (Sec. 6101.1(b)(16)) is now defined as any day other

than a Saturday, Sunday, or ``legal'' (rather than ``Federal'')

holiday.

Computing Time

Section 6101.2(c) has been revised to parallel the changes required

by section 1433 of the FASA. This section provides that when a period

of time prescribed or allowed in the rules is less than 11 days,

intervening Saturdays, Sundays, and legal holidays are not counted; in

other words, only working days are counted. When the time period is 11

days or more, intervening Saturdays, Sundays, and legal holidays are

counted, i.e., all calendar days are counted. The revision states that

the only exceptions are the 5-day period after a debriefing date and

the 10-day period after contract award for filing a protest that

requests a suspension hearing; for these, all calendar days are

counted. This computation change affects three other sections of the

current rules: (1) Section 6101.19(a)(2) has been amended to provided

that a protest which requests a suspension hearing must be filed no

later than 10 calendar days after contract award or 5 calendar days

after the debriefing date; (2) Section 6101.19(a)(3) has been amended

to provide that the hearing on the merits of a protest shall commence

no later than 35 calendar days after the protest is filed (rather than

25 working days); and (3) Section 6101.29(b) now provides that a

decision on the merits of a protest shall be decided no later than 65

calendar days after the protest is filed (rather than 45 working days).

Small Claims and Accelerated Procedures

The small claims dollar threshold has been changed from $100,000 to

$50,000 (Sec. 6101.13(a)), and the accelerated procedure dollar

threshold has been changed from $50,000 to $10,000 (Sec. 6101.14(a)).

These changes parallel the amendments to sections 608(a) and 607(f) of

the Contract Disputes Act of 1978 by subsections 2351 (c) and (d) of

the FASA.

Dismissals; Sanctions

Section 6101.28(a)(2) has been added to conform to the language

specified in Section 1434 of the FASA. The proposed rule provides that

the Board may dismiss a protest that it determines is frivolous; has

been brought or pursued in bad faith; or does not state on its face a

valid basis for protest. Section 6101.18(b) has been amended to provide

that the Board may impose appropriate sanctions if it expressly finds

that (1) a protest or portion of a protest is frivolous or has been

brought or pursued in bad faith; or (2) that any person has willfully

abused the Board's process during the course of a protest.

Suspension Hearing and Decision

Section 6101.19(a)(2) has been amended to change the timing of a

protest suspension hearing in order to conform to Section 1433(a)(2) of

the FASA. A protest suspension hearing is one in which the Board

determines whether to suspend the Administrator's procurement authority

or delegation of procurement authority until the protest can be

decided. An interested party may request a suspension hearing if the

underlying protest if filed on the later of (1) the tenth day after the

date of contract award; or (2) the fifth day after the debriefing date

for any debriefing that is requested and required. The Board must hold

the suspension hearing within 5 days after the date the protest was

filed, or in the case of a request for debriefing, within 5 days after

the later of the date of the filing of the protest or the date of the

debriefing.

Section 6101.19(d) (Suspension decision) has been amended to

include language specified by Section 1433(a)(1)(C) of the FASA. If a

contract award has not been made, a suspension shall not preclude the

Federal agency whose procurement authority has been suspended from

continuing the procurement process up to but not including contract

award, unless the Board determines such action is not in the best

interests of the United States.

Settlement Agreements

A new paragraph has been added to Section 6101.28 (Dismissals)

which incorporates the language specified by Section 1436 of the FASA.

Section 6101.28(d) provides that any settlement agreement that

dismisses a protest and involves a direct or indirect expenditure of

appropriated funds shall be submitted to the Board and made part of the

public record, subject to any protective order considered appropriate

by the Board. If a Federal agency is a party to the agreement, the

submission of the agreement to the Board must include a memorandum

signed by the contracting officer that describes in detail the

procurement, the grounds for protest, the Government's position

regarding those grounds, the terms of the settlement, and the agency's

position regarding the propriety of the award or proposed award of the

contract at issue in the protest.

List of Subjects in 48 CFR Chapter 61, Part 6101

Administrative practice and procedure, Government procurement.

For the reasons set out in the preamble, 41 CFR Part 6101 is

proposed to be amended as follows:

PART 6101--RULES OF THE GENERAL SERVICES ADMINISTRATION BOARD OF

CONTRACT APPEALS

1. The authority citation for Part 6101 continues to read as

follows:

Authority: 40 U.S.C. 759(f); 41 U.S.C. 601-613.

2. Section 6101.0 is revised to read as follows:

6101.0 Foreward.

The General Services Administration Board of Contract Appeals was

established under the Contract Disputes Act of 1978, 41 U.S.C. 601-613,

as an independent tribunal to hear and decide contract disputes between

government contractors and the General Services Administration (GSA)

and other executive agencies of the United States. The Board also hears

and decides protests filed under the Brooks Automatic Data Processing

Act, 40 U.S.C. 759(f), which involve procurements subject to that Act,

and conducts proceedings as required under other laws. (The Board also

is empowered to review decisions regarding the qualifications of firms

to enter into energy savings contracts pursuant to 42 U.S.C. 8287. In

conducting such reviews, the Board will apply the rules pertinent to

protests to the extent practicable.) The Board will act in accordance

with these rules and applicable standards of conduct so that the

integrity, impartiality, and independence of the Board are preserved.

3. In section 6101.1, paragraph (b)(2) is revised; paragraphs

(b)(12) through (15) are redesignated as paragraphs (b)(13) through

(16), respectively, and revised; and a new paragraph (b)(12) is added

to read as follows:

6101.1 Scope of rules; definitions; construction; rulings and orders;

panels; situs [Rule 1].

* * * * *

(b) Definitions.

(1) * * *

(2) Application; applicant. The term ``application'' means a

submission to the Board of a request for reimbursement of costs, under

the Equal Access to Justice Act, 5 U.S.C. 504, or the Brooks Automatic

Data Processing Act, 40 U.S.C. 759(f)(5)(C), pursuant to 6101.35. The

term ``applicant'' means a party filing an application.

* * * * *

(12) Prevailing party. In a protest, a prevailing party is a party

who has demonstrated that a challenged action of a Federal agency

violates a statute or regulation or the conditions of a delegation of

procurement authority.

(13) Protest; protester. (i) The term ``protest'' means a written

objection by an interested party to any of the following:

(A) A solicitation or other request by a Federal agency for bids or

proposals for a contract for the procurement of property or services;

(B) The cancellation of such a solicitation or other request;

(C) An award or proposed award of such a contract;

(D) A termination or cancellation of an award of such a contract,

if the written objection contains an allegation that the termination or

cancellation is based in whole or in part on improprieties concerning

the award of the contract.

(ii) The term ``protester'' means an interested party who files a

protest with the Board and who has not filed a protest with the GAO

concerning the same procurement.

(14) Respondent. The term ``respondent'' means the Government

agency whose decision, action, or inaction is the subject of an appeal,

protest, petition, or application.

(15) Working day. The term ``working day'' means any day other than

a Saturday, Sunday, or legal holiday.

(16) Working hours. The Board's working hours are 8:00 a.m. to 4:30

p.m., Eastern Time, on each working day.

* * * * *

4. Section 6101.2 is amended by revising paragraph (c) to read as

follows:

6101.2 Time; enlargement; computation [Rule 2].

* * * * *

(c) Computing time. Except as otherwise required by law, in

computing a period of time prescribed by the rules in this part or by

order of the Board, the day from which the designated period of time

begins to run shall not be counted, but the last day of the period

shall be counted, unless that day is (i) a Saturday, a Sunday, or a

legal holiday, or (ii) a day on which the Office of the Clerk of the

Board is required to close earlier than 4:30 p.m., or does not open at

all, as in the case of inclement weather, in which event the period

shall include the next working day. Except as otherwise provided in

this paragraph, when the period of time prescribed or allowed is less

than 11 days, any intervening Saturday, Sunday, or legal holiday shall

not be counted. When the period of time prescribed or allowed is 11

days or more, and in the cases of the 5-day period after a debriefing

date and the 10-day period after contract award for filing a protest

that requests a suspension hearing (both described in 6101.19(a)(2)),

intervening Saturdays, Sundays, and legal holidays shall be counted.

Time for filing any document or copy thereof with the Board expires

when the Office of the Clerk of the Board closes on the last day on

which such filing may be made.

5. Section 6101.13 is amended by revising the first sentence of

paragraph (a)(1) and (a)(2) to read as follows:

6101.13 Small claims procedures in appeals [Rule 13].

(a) Election. (1) The small claims procedure is available solely at

the appellant's election, and only when there is a monetary amount in

dispute and that amount is $50,000 or less. * * *

(2) At the request of the Government, or on its own initiative, the

Board may determine whether the amount in dispute is greater than

$50,000, such that the election is inappropriate. * * *

* * * * *

6. Section 6101.14 is amended by revising the first sentence of

paragraph (a)(1) and (a)(2) to read as follows:

6101.14 Accelerated procedure in appeals [Rule 14].

(a) Election. (1) The accelerated procedure is available solely at

the appellant's election, and only when there is a monetary amount in

dispute and that amount is $100,000 or less. * * *

(2) At the request of the Government, or on its own initiative, the

Board may determine whether the amount in dispute is greater than

$100,000, such that the election is inappropriate. * * *

* * * * *

7. Section 6101.18 is amended by revising paragraph (b) to read as

follows:

6101.18 Sanctions and other proceedings [Rule 18].

* * * * *

(b) Sanctions. If the Board expressly finds that (i) a protest or a

portion of a protest is frivolous or has been brought or pursued in bad

faith; or (ii) that any person has willfully abused the Board's process

during the course of a protest, the Board may impose appropriate

sanctions. In any type of case, when a party or its representative or

attorney or any expert/consultant fails to comply with any direction or

order issued by the Board (including an order to provide or permit

discovery), or engages in misconduct affecting the Board, its process,

or its proceedings, the Board may make such orders as are just,

including the imposition of appropriate sanctions. The sanctions

include:

* * * * *

8. Section 6101.19 is amended by revising paragraphs (a)(2),

(a)(3), and (d) to read as follows:

6101.19 Hearings; scheduling; notice; unexcused absences; suspension

decisions [Rule 19].

(a) Scheduling of hearings.

(1) * * *

(2) Protest suspension hearing. The Board will, upon timely request

by an interested party, hold a hearing to determine whether the Board

should suspend the procurement authority of the Administrator or the

Administrator's delegation of procurement authority for the protested

procurement on an interim basis until the Board can decide the protest.

Such a request is timely if the underlying protest is filed on the

later of (i) the tenth day after the date of contract award; or (ii)

the fifth day after the debriefing date offered to an unsuccessful

offeror for any debriefing that is requested and, when requested, is

required. The Board will hold the requested hearing within 5 days after

the date of the filing of the protest or, in the case of a request for

debriefing under the provisions of 10 U.S.C. 2305(b)(5), or 41 U.S.C.

253b, within 5 days after the later of the date of the filing of the

protest or the date of the debriefing.

(3) Protest hearing on merits. Any hearing on the merits of a

protest will commence no later than 35 calendar days after the filing

of the protest.

* * * * *

(d) Suspension decision. The Board shall suspend the respondent's

procurement authority, or a delegation thereof, pending a decision on

the merits of the protest, unless the respondent establishes at hearing

that: (1) Absent suspension, contract award, if not already made, is

likely to occur within 30 calendar days; and (2) urgent and compelling

circumstances which significantly affect interests of the United States

will not permit waiting for the decision of the Board. If a contract

award has not been made, a suspension shall not preclude the Federal

agency concerned from continuing the procurement process up to but not

including award of the contract unless the Board determines such action

is not in the best interests of the United States. The decision

regarding suspension will be by order of the panel chairman and may be

oral, to be reduced to writing as soon as practicable.

9. Section 6101.28 is amended by redesignating the three sentences

of paragraph (a) as (a)(1) and adding new paragraphs (a)(2) and (d) to

read as follows:

6101.28 Dismissals [Rule 28]:

(a) Generally.

(2) Protests. The Board may also dismiss a protest that the Board

determines (i) is frivolous; (ii) has been brought or pursued in bad

faith; or (iii) does not state on its face a valid basis for protest.

* * * * *

(d) Settlement agreements. Any agreement that provides for the

dismissal of a protest and involves a direct or indirect expenditure of

appropriated funds shall be submitted to the Board and shall be made a

part of the public record (subject to any protective order considered

appropriate by the Board) before dismissal of the protest. If a Federal

agency is a party to a settlement agreement, the submission of the

agreement to the Board shall include a memorandum, signed by the

contracting officer concerned, that describes in detail the

procurement, the grounds for protest, the Federal Government's position

regarding the grounds for protest, the terms of the settlement, and the

agency's position regarding the propriety of the award or proposed

award of the contract at issue in the protest.

10. Section 6101.29 is amended by revising paragraph (b) to read as

follows:

6101.29 Decisions [Rule 29].

* * * * *

(b) Timing of protest decisions. (1) A decision on the merits of a

protest will be issued within 65 calendar days after the filing of the

protest, unless the chairman of the Board determines that the specific

and unique circumstances of the protest require a longer period. In

that event, the Board shall issue a decision within the longer period

determined by the chairman of the Board.

(2) In a protest, the Board ordinarily will, within the 65-

calendar-day period applicable to the original protest, decide all

issues, including those raised by amendment or intervention, that are

necessary to the resolution of the case. The Board will whenever

possible notify the parties prior to the originally scheduled hearing

date, or date for record submission, if it believes that because of a

new ground of protest raised by an amendment or by an intervention, the

protest might not be decided within the original 65-calendar-day

period.

11. Section 6101.35 is amended by revising the first sentence of

paragraph (a) to read as follows:

6101.35 Award of costs [Rule 35].

(a) Requests for costs. An appropriate prevailing party in a

proceeding before the Board may apply for an award of costs, including

if applicable an award of attorney fees, under the Brooks Automatic

Data Processing Act, 40 U.S.C. 759(f), the Equal Access to Justice Act,

5 U.S.C. 504, or any other provision that may entitle that party to

such an award, subsequent to the Board's decision in the proceeding. *

* *

* * * * *

12. Section 6101.36 is amended by revising the third sentence of

paragraph (c) to read as follows:

6101.36 Payment of Board awards [Rule 36].

* * * * *

(c) Procedure for filing of certificates of finality. * * * When

the form is executed on behalf of an appellant or applicant by an

attorney or other representative, proof of signatory authority shall

also be furnished. * * *

* * * * *

Dated: November 29, 1994.

Stephen M. Daniels,

Chairman, GSA Board of Contract Appeals.

[FR Doc. 94-29694 Filed 12-1-94; 8:45 am]

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