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

GENERAL SERVICES ADMINISTRATION

Board of Contract Appeals

48 CFR Part 6101

RIN Number 3090-AF62

Rules of Procedure of the General Services Administration Board

of Contract Appeals

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Final rule.

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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 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 conform the Board's rules of

procedure to the amendments made to its jurisdictional statutes.

EFFECTIVE DATE: May 5, 1995.

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. Effective Dates

Pursuant to Sections 10001 and 10002 of the FASA, these rules (as

well as Sections 1432-1434, 1436-1438, and 2351 (c)-(d) of the Act) are

applicable to all proceedings filed on or after May 5, 1995. Section

1435 of the Act shall be applicable to cost applications where

[[Page 17024]] the underlying protest is filed on or after May 5, 1995.

D. Background

On December 2, 1994, the Board published a proposed rule with

request for comments [59 FR 61861] containing revisions to the Board's

rules of procedure. The background information accompanying the

proposed rule explained that the revisions were necessitated by the

amendment of the Board's jurisdictional statutes, the Contract Disputes

Act of 1978 (41 U.S.C. 601-613) and the Brooks Automatic Data

Processing Act (40 U.S.C. 759(f)), by the FASA. Interested persons were

invited to submit comments by January 31, 1995, and the Board received

comments from components of two federal agencies, two bar association

groups, and one industry association. After consideration of these

comments, the Board's members adopted the proposed rules, as revised,

by majority vote.

The most significant changes made by the revisions to the Board's

rules are highlighted in the next section of the preamble. Following

that section, the preamble summarizes the more significant comments

received by the Board during the comment period and indicates how these

comments were addressed in preparing this final rule.

E. Highlights of 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 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-calendar-day period after a debriefing

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

protest that requests a suspension hearing.

Three other sections relating to timing have also been revised: (1)

Section 6101.19(a)(2) provides 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)

Sec. 6101.19(a)(3) provides 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); (3) Sec. 6101.29(b) provides that

a decision on the merits of a protest shall be issued 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 $10,000 to

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

threshold has been changed from $50,000 to $100,000 (Sec. 6101.14(a)).

These changes implement the amendments to sections 9(a) and 8(f) of the

Contract Disputes Act of 1978 (41 U.S.C. Secs. 608(a), 607(f)) 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) 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 is filed by the later of (1) the tenth calendar day

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

the debriefing date for any debriefing that is requested and required.

The Board must hold the suspension hearing within 5 working days after

the date the protest was filed, or in the case of a request for

debriefing, within 5 working 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 [[Page 17025]] award or

proposed award of the contract at issue in the protest.

Award of Costs

Section 6101.35(a) has been amended to conform to Section 1435 of

the FASA by stating that an appropriate party applying for an award of

costs must also be a prevailing party. Also, two additions are made to

the application requirements in Sec. 6101.35(c): (1) An applicant

asserting that it is a qualifying small business must provide evidence

of that fact in its cost application; and (2) an applicant requesting

reimbursement of attorney fees that exceed the statutory rate must

explain why such fees are justified. Finally, Sec. 6101.35(d) now

provides that if the Government contends that fees for consultants or

expert witnesses for which reimbursement is sought exceed the highest

rate of compensation for expert witnesses paid by the agency (in

appeals), or by the Federal Government (in protests), then it must

include evidence of the relevant highest rate in the answer filed in

response to the cost application.

F. Summary of Comments

The Board received written comments from five commentators:

components of two federal agencies, two bar association groups, and one

industry association. The majority of the comments focused on five of

the rules. The Board carefully considered each comment and adopted some

of the suggestions made. The more significant comments are discussed

below in a section-by-section format.

Section 6101.2 (Time: Enlargement; Computation)

One commentator noted that the Board's proposed rules retained

working days as the basis for calculating time periods that are less

than 11 days, and suggested that using calendar days to calculate all

time periods would be less confusing and more consistent with the FASA,

which defines all time limits in calendar days. The Board last changed

the method of calculating short time deadlines on January 3, 1994, when

the Board rules were amended. At the same time, to reduce confusion,

the rules were amended to specify working days or calendar days for

each time frame given. Since then, litigants have become familiar with

the current system of computing short time frames, and the Board

determined that the advantages of leaving that system in place

outweighed any advantage to be gained by making the suggested change.

Section 6101.18 (Sanctions and Other Proceedings)

As required by the FASA, Section 6106.18 has been amended to

provide that the Board may impose appropriate sanctions if it finds

that a protest is frivolous or has been brought or pursued in bad

faith, or that a person has willfully abused the Board's process during

a protest. One commentator suggested that it would be useful for the

Board to provide advice in this summary as to the type of conduct that

it is likely to view as frivolous or in bad faith. After careful

consideration, the Board determined that such matters are more

appropriately decided in the context of specific cases. The Board will

look to the decisions of the United States Court of Appeals for the

Federal Circuit and other case law in determining appropriate

sanctions.

Section 6101.19 (Hearings; Scheduling; Notice; Unexcused Absences;

Suspension Decision)

In order to conform to Section 1433(a)(2) of the FASA, the Board

amended Sec. 6101.19(a)(2) to permit an interested party to request a

suspension hearing if the underlying protest is filed by the later of

(1) the tenth calendar day after the date of contract award; or (2) the

fifth calendar day after the debriefing date for any debriefing that is

requested and required. According to two commentators, Congress

intended to provide meaningful relief to a protester filing a protest

within 5 calendar days of a required debriefing, and to obviate the

protester's need to file a so-called ``defensive'' protest before

receiving all information which the FASA requires the agency to

provide. Current Board rules nevertheless require that protests be

filed within 10 working days of the date on which the protester knew or

should have known of the grounds for its protest

(Sec. 6101.5(b)(3)(ii)). Thus, according to the commentators, for

protests based on information known or constructively known at the time

an award is announced, the 10-working-day period for filing a protest

may expire before a required debriefing is held. Consequently, a

protest filed after a required debriefing will be timely for purposes

of a suspension hearing but untimely as a protest. The commentators

suggest that the rules should provide that a protest (other than one

based on information that was known or should have been known prior to

contract award), will be considered timely if: (1) It is filed within

10 days after the protester knew (or should have known) of the basis of

protest; or (2) it would trigger a suspension under Section 1433(a) of

the FASA.

The Board disagrees with this interpretation of the FASA's intent.

By providing for agency debriefings, the FASA seeks to remedy the

situation in which a protester must file a protest before the basis is

known, in order to timely request a suspension hearing. The Act does

not change the requirement that a protest be filed within 10 working

days of the date on which the basis for the protest is known. When

information that serves as the basis for the protest was learned at the

debriefing, if a protester files within 5 calendar days after a

debriefing, that is also within 10 working days of knowing the basis

for the protest. When information that serves as the basis for the

protest was learned prior to the debriefing, however, making the change

suggested by the commentators would allow the protester to delay its

filing and thereby prolong the period of time before contract

performance can proceed. The Board decided that to amend its rules for

this purpose would be inconsistent with Congress' intent that protests

not delay procurements unnecessarily.

Section 6106.19(d) (Proceedings) has been amended to conform to the

FASA. It now provides that if contract award has not been made, a

suspension shall not preclude an agency 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. One commentator suggested that the Board include a ``best

interests'' test in the rule to minimize the potential for factual

disputes and evidentiary hearings. The Board believes, however, that

``best interests'' are more appropriately determined on a case-by-case

basis.

Section 6101.29 (Decisions)

One commentator suggested that this rule include the requirement

contained in Section 1433 of the FASA which provides that a protest

amendment which adds a new ground of protest should be resolved, to the

maximum extent possible, within the time limits established for

resolving the initial protest. The Board agrees with this comment, and

has added language to Sec. 6101.29(b)(2) that reflects the statute.

Section 6106.35 (Award of Costs)

Section 1435 of the FASA permits a successful protester to recover

reasonable consultant and expert witness fees, but limits such fees

(except for small businesses) to the ``highest rate [[Page 17026]] of

compensation for expert witnesses paid by the Federal Government.'' One

commentator encouraged the Board to provide guidance in the rules on

the manner in which this language will be implemented, for example, by

publishing any uniform cap that it intends to impose on consultant

fees. In addition, the commentator suggested that if consultant fee

caps are to be determined on a case-by-case basis, the Board should

indicate which party will have the burden of establishing the fee cap

and the factors the Board will consider in determining the applicable

cap. The commentator suggested that since the Government is in the best

position to obtain the information, it should have the burden of

providing evidence of ``the highest rate of compensation for expert

witnesses'' paid by the Government. Finally, the commentator suggested

that the Board's rules include procedures under which it will allow

recovery of attorney fees at higher than the $150 per hour rate

established by the FASA.

The Board carefully considered the suggestions made by this

commentator and has incorporated several of them in the final rules.

First, although the Board determined that it would consider requests

for reimbursement of attorney fees that exceed the statutory rate on a

case-by-case basis, it amended Rule 6101.35(c)(6) to specify that the

applicant must show why such an increase is justified, e.g., an

increase in the cost of living or a special factor, such as the limited

availability of qualified attorneys for the proceedings involved.

Similarly, the Board added Sec. 6101.35(c)(5), which provides that an

applicant asserting that it is a qualifying small business (and thus

exempt from the fee limitations) must include evidence thereof in its

application.

The Board also determined that it would determine consultant fee

caps on a case-by-case basis. However, Sec. 6101.35(d)(1) now provides

that if the Government contends that any consultant or expert witness

fees claimed by the applicant exceed the highest rate of compensation

for expert witnesses paid by the agency (in appeals), or the Federal

Government (in protests), it must include in the answer evidence of the

relevant highest rate.

List of Subjects in 48 CFR Part 6101

Administrative practice and procedure, Government procurement.

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

amended as set forth below:

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)(7); 41 U.S.C. 607(f).

2. Section 6101.0 is revised to read as follows:

Sec. 6101.0 Foreword.

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 qualification 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 Sec. 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:

Sec. 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:

Sec. 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 (1) a Saturday, a Sunday, or a

legal holiday, or (2) 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 [[Page 17027]] 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 title and the first

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

Sec. 6101.13 Small claims procedure 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 of (a)(2) to read as follows:

Sec. 6101.14 Acceleratd 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)

introductory text to read as follows:

Sec. 6101.18 Sanctions and other proceedings [Rule 18].

* * * * *

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

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

faith; or 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:

Sec. 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 by the

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

or (ii) the fifth calendar 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 working 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 working 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 that 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:

Sec. 6101.28 Dismissals [Rule 28].

(a) Generally.

(1) * * *

(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:

Sec. 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 will, to the maximum extent practicable

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. [[Page 17028]]

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

paragraph (a), adding paragraphs (c)(5) and (c)(6), and adding a

sentence of the end of paragraph (d)(1) to read as follows:

Sec. 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. *

* *

* * * * *

(c) Application requirements. * * *

(5) If the applicant asserts that it is a qualifying small business

concern, contain evidence thereof.

(6) If the application requests reimbursement of attorney fees that

exceed the statutory rate, explain why an increase in the cost of

living or a special factor, such as the limited availability of

qualified attorneys for the proceedings involved, justifies such fees.

(d) Proceedings.

(1) * * * If respondent contends that any fees for consultants or

expert witnesses for which reimbursement is sought in the application

exceed the highest rate of compensation for expert witnesses paid by

the agency (appeals), or by the Federal Government (protests),

respondent shall include in the answer evidence of such highest rate.

* * * * *

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

paragraph (c) to read as follows:

Sec. 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. * * *

* * * * *

13. In the appendix to part 6101, Form No. 4 (Government

Certificate of Finality) and Form No. 5 (Appellant/Protester/

Intervenor/Applicant Certificate of Finality) are revised to read as

follows:

APPENDIX--FORM NOS. 1-5

* * * * *

Form 4--Board of Contract Appeals

General Services Administration, Washington, DC 20405

GSBCA------------------------------------------------------------------

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

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

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

Contract/Solicitation No.

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GOVERNMENT CERTIFICATE OF FINALITY

A. Date claim(s) filed with the contracting officer:

B. Amount to be paid: $________

C. Agency address (regional office if other than central

office):

D. Agency Certification.

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hereby certifies that:

(1) it has not initiated and will not initiate any proceeding at

the Board for the reconsideration of, or relief from, this award;

(2) it has not initiated and will not initiate any appeal of

this award to the United States Court of Appeals for the Federal

Circuit.

Date-------------------------------------------------------------------

Government Agency

By---------------------------------------------------------------------

Signature and Title

Note: This format shall not be printed, reproduced, or stocked

by the Central office or regional offices and shall be used only as

a guide for individual preparation.

Form 5--Board of Contract Appeals

General Services Administration, Washington, DC 20405

GSBCA------------------------------------------------------------------

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

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

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

Contract/Solicitation No.

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APPELLANT/PROTESTER/INTERVENOR/APPLICANT CERTIFICATE OF FINALITY

A. Address to which check should be sent (if check is to be sent

to counsel, enclose a power of attorney):

B. Appellant/Protester/Intervenor/Applicant Certification

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

hereby certifies that:

(1) it has not initiated and will not initiate any proceeding at

the Board for the reconsideration of, or relief from, this award;

(2) it has not initiated and will not initiate any appeal of

this award to the United States Court of Appeals for the Federal

Circuit; and

(3) it agrees to accept the amount awarded, plus any interest

awarded, in accordance with the Board's decision in this case, in

full and final satisfaction of its case.

Date-------------------------------------------------------------------

Appellant/Protester/Intervenor/Applicant

By---------------------------------------------------------------------

Signature and Title

Note: This format shall not be printed, reproduced, or stocked

by the Central office or regional offices and shall be used only as

a guide for individual preparation.

Dated: March 23, 1995.

Stephen M. Daniels,

Chairman, GSA Board of Contract Appeals.

[FR Doc. 95-8135 Filed 4-3-95; 8:45 am]

BILLING CODE 6820-RW-M