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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29694

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** December 2, 1994

## Text

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.

-----------------------------------------------------------------------

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]
BILLING CODE 6820-RW-M

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