Board of Contract Appeals; Rules of Procedure of the General Services Administration Board of Contract Appeals: Standard Proceedings and Expedited Proceedings

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 6101 and 6102

RIN Number 3090-AF99

Board of Contract Appeals; Rules of Procedure of the General

Services Administration Board of Contract Appeals: Standard Proceedings

and Expedited Proceedings

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Final rule.

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SUMMARY: This document contains final revisions to the rules governing

proceedings before the General Services Administration Board of

Contract Appeals (Board). It supersedes the current rules of procedure

of the Board which are contained in 48 CFR part 6101, in their

entirety. The rules governing the standard proceedings of the Board are

now contained in part 6101, while rules governing expedited

proceedings--including alternative dispute resolution (ADR)--are

contained in part 6102. The Board, by majority vote, has adopted these

revised rules pursuant to its authority contained in the Contract

Disputes Act of 1978 (41 U.S.C. 601-613). The revised rules will govern

proceedings before the Board in contract appeals (41 U.S.C. 601-613),

as well as any ADR proceedings handled by the Board pursuant to

authority delegated by the Administrator of General Services.

EFFECTIVE DATE: October 7, 1996.

FOR FURTHER INFORMATION CONTACT: Margaret S. Pfunder, Deputy Chief

Counsel, GSA Board of Contract Appeals, telephone (202) 501-0272,

Internet address Margaret.P[email protected]..

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.).

[[Page 52348]]

B. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the rule does

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

These rules are applicable to all proceedings filed on or after

October 7, 1996. Protests and related proceedings are governed by the

rules in effect at the time the underlying protests were filed.

D. Background

On June 24, 1996, the Board published in the Federal Register (61

FR 32410) a notice inviting written comments on proposed revisions to

its rules of procedure. This notice announced the Board's intention to

revise its existing rules of procedure, 48 CFR part 6101, and explained

the purpose of the proposed revisions was to implement section 5101 of

the Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106),

which eliminated the Board's jurisdiction to hear and decide bid

protests which were filed on or after August 8, 1996, regarding

procurements of automatic data processing (ADP) equipment and services.

This final rule implements section 5101 by eliminating all references

to bid protests in the Board's rules of procedure.

This rule (Part 6102) also describes the techniques intended to

shorten and simplify, when appropriate, the formal proceedings used by

the Board to resolve contract disputes. In particular, the rules

expressly permit the use of ADR. The Board will make its services

available for ADR proceedings involving any agency in contract and

procurement matters at any stage, even if no contracting officer

decision has been issued or is contemplated. For agencies other than

GSA, The Board will provide ADR services on a reimbursable basis.

E. Summary of Comments and Changes

The Board received written comments from six commentators.

Commentators included the offices of general counsel of three federal

agencies, the office of the chief trial attorney of a federal agency,

and one private legal practitioner. The Board carefully considered each

comment, and adopted many of the suggestions made by the commentators.

The more significant comments are discussed below in a section-by-

section format.

Part 6101

Section 6101.4 (Appeal File): One commentator suggested that

Section 6101.4(a)(6) be revised to eliminate the requirement that bid

abstracts be made part of the appeal file. Abstracts are often relevant

in cases alleging a mistake in bids and in vehicle auction cases in

which the Government seeks to recover actual damages. Accordingly, the

Board revised this provision to require that the appeal file contain

the abstract of bids only ``if relevant.''

Section 6101.5 (Filing Cases; Time Limits for Filing; Docketing):

One commentator suggested that since special or limited participation

in a case is discretionary with the Board, it should be granted only

after a motion is filed. Section 6101.5(a)(4) has been revised to make

this requirement explicit.

Section 6101.6 (Appearances; Notice of Appearance): One

commentator pointed out that not all agency regulations permit an

agency to be represented before the Board by a contracting officer or

contracting officer's authorized representative. Section 6101.6(a)(2)

has been revised to permit such representation if not prohibited by

``agency regulation or otherwise.''

In accordance with the suggestion of a commentator, Section

6101.6(b) has been revised to require that attorneys representing

parties before the Board list the state bars to which they are admitted

and their state bar numbers or other bar identifiers in the notice of

appearance.

One commentator suggested that a motion for withdrawal of

appearance is unnecessary if the new attorney enters an appearance at

the time of the requested withdrawal. Section 6101.6(c) has been

revised to require a person who has filed a notice of appearance and

who wishes to withdraw from a case to file a motion which provides the

name, address, telephone number, and facsimile machine number of the

person who will assume responsibility for representation of the party

in question. If the motion is accompanied by a statement from the

successor representative that the established case schedule will be

met, the motion need not state the grounds for withdrawal.

Section 6101.7 (Pleadings in Appeals): In response to the

suggestion of one commentator, Section 6101.7(b), governing the

complaint, now provides that the Board may designate a notice of

appeal, a claim submission, or any other document as the complaint ``if

the document sufficiently states the factual basis and amount of the

claim.''

Section 6101.8 (Motions): In Section 6101.8(c), the list of

dispositive motions that may be made before the Board has been modified

at the suggestion of one commentator to include motions to dismiss

without prejudice.

Section 6101.17 (Interrogatories to Parties; Requests for

Admission; Requests for Production of Documents): One commentator

suggested eliminating the requirement that parties obtain permission of

the Board before participating in discovery, citing an appellant's

ability to use the Freedom of Information Act to obtain information.

The Board determined to retain this provision, noting that early

discovery may be requested by either party whenever needed, and that

the provision is a useful means of monitoring case development and

controlling the expenditure of effort.

Section 6101.17(c) has been revised in response to the comment that

the rule does not require that answers to requests for admission be

sworn. The last two sentences of Section 6101.7(c) now state that any

matter admitted is conclusively established for the purpose of the

pending action, unless the Board on motion permits withdrawal or

amendment of the admission, and that any admission made in the case may

not be used against the party making it in any other proceeding.

Section 6101.32 (Reconsideration; Amendment of Decision; New

hearing) and Section 6101.33 (Relief from Decision or Order): One

commentator suggested that these rules should clarify whether the

filing of an appeal of a Board decision with the United States Court of

Appeals for the Federal Circuit wrests from the Board jurisdiction to

consider motions under these two sections. Similarly, the same

commentator suggested clarifying that a motion pending under Section

6101.32(d) or Section 6101.33(d) tolls the time for filing an appeal

with the Court of Appeals for the Federal Circuit. The Board believes

that these matters are not appropriately resolved by rules of

procedure. It did not modify these rules.

``Offer of Judgment'' rule: Two commentators suggested that an

``offer of judgment'' provision similar to Federal Rule of Civil

Procedure 68 should be adopted by the Board. The commentators believe

that the rule encourages a realistic, prompt, and thorough assessment

of claims and leads to the settlement of matters in dispute between the

parties. The Board knows of no statute that would permit adoption of

such a rule, and therefore did not accept the suggestion.

[[Page 52349]]

Part 6102

Section 6102.1 (Variation from Standard Proceedings): At the

suggestion of one commentator, the Board revised this rule to clarify

that expedited proceedings other than small claims and accelerated

procedures (Sections 6102.2 and 6102.3) are used only when the parties

agree to use them, and when the Board deems such proceedings to be in

the best interest of the parties, the Board, and the resolution of

contract disputes.

Section 6102.4 (Alternative Dispute Resolution): Although strongly

supportive of the Board's efforts to make ADR services available to

parties upon request, two commentators queried whether the Board had

sufficient statutory or delegated authority for this expanded role.

They also suggested that the rule clarify whether these services were

to be provide on a reimbursable basis.

The Administrator of General Services has delegated the needed

authority to the Board. The delegation specifies that when the Board

makes ADR services available to agencies other than GSA, the services

will be provided on a reimbursable basis. The Section has been revised

to state more clearly that the Board will make its services available

for ADR proceedings involving any agency in contract and procurement

matters at any stage, even if no contracting officer decision has been

issued or is contemplated.

Section 6102.4(b)(1): At the suggestion of one commentator, Section

6102.4(b)(1) has been redrafted to clarify that, if ADR is agreed to by

the parties and the Board, the parties may request that the Board's

chairman appoint a particular judge or judges as the Neutral, or that

the chairman appoint any judge or judges as the Neutral.

Two commentators suggested that, if the ADR involves a case pending

before the Board, the parties should be allowed to choose whether a

panel chairman who serves as a Neutral be permitted to retain the case

should the ADR be unsuccessful. In response, Section 6102.4(b)(1) now

provides that, if the ADR is unsuccessful and has involved mediation,

the panel chairman shall not retain the case; if the ADR is

unsuccessful and has not involved mediation, the panel chairman shall

consider the parties' views and decide whether to retain the case.

Section 6102.4(b)(2): One commentator suggested that the Board

specify what would happen to material developed during an ADR

proceeding, which is not retained by the Board after the proceeding is

concluded or otherwise terminated. The Board does not believe that

particular procedures need be specified the rules. The Section has been

revised, however, to clarify that material created by a party for the

purpose of an ADR proceeding is to be used solely for that proceeding

unless the parties agree otherwise.

Section 6102.4(c): In accordance with the suggestion of one

commentator, this section has been revised to state that the Board will

consider the use of any ADR technique propose by the parties which is

deemed to be fair, reasonable, and in the best interest of the parties,

the Board, and the resolution of contract disputes.

One commentator suggested that a mediator be precluded from

discussing the ADR with other judges. In recognition of this concern,

Section 6102.4(c)(1) has been revised to provide that no judge who has

participated in discussions about a mediation will participate in a

Board decision of the case if the ADR is unsuccessful.

One commentator suggested that this section should specify when ADR

is most effective. Although the Board believes these considerations

need not be presented in a rule, it agrees with the commentator that

ADR is most effective as a dispute resolution technique when the

essential elements of a successful ADR environment exist. These

elements include: a genuine desire by the parties to resolve the

dispute through ADR; an agreement by the parties as to the general type

of ADR to be conducted and the rules to be used in conducting the ADR;

and a willingness by the parties to have present at a non-binding ADR

proceeding a principal with authority to agree to the settlement of the

case.

List of Subjects

48 CFR Part 6101

Administrative practice and procedure, Government procurement.

48 CFR Part 6102

Administrative practice and procedure, Government procurement.

For the reasons set out in the preamble, 48 CFR chapter 61 is

amended as follows:

1. Part 6101 is revised to read as follows:

PART 6101--RULES OF PROCEDURE OF THE GENERAL SERVICES

ADMINISTRATION BOARD OF CONTRACT APPEALS (STANDARD PROCEEDINGS)

Sec.

6101.0 Foreword.

6101.1 Scope of rules; definitions; construction; rulings and

orders; panels; situs [Rule 101].

6101.2 Time; enlargement; computation [Rule 102].

6101.3 Service of papers [Rule 103].

6101.4 Appeal file [Rule 104].

6101.5 Filing cases; time limits for filing; docketing [Rule 105].

6101.6 Appearances; notice of appearance [Rule 106].

6101.7 Pleadings in appeals [Rule 107].

6101.8 Motions [Rule 108].

6101.9 Election of hearing or record submission [Rule 109].

6101.10 Conferences; conference memorandum; prehearing order;

prehearing and presubmission briefs [Rule 110].

6101.11 Submission on the record without a hearing [Rule 111].

6101.12 Record of Board proceedings [Rule 112].

6101.13 [Reserved].

6101.14 [Reserved].

6101.15 General provisions governing discovery [Rule 115].

6101.16 Depositions [Rule 116].

6101.17 Interrogatories to parties; requests for admission;

requests for production of documents [Rule 117].

6101.18 Sanctions and other proceedings [Rule 118].

6101.19 Hearings: scheduling; notice; unexcused absences [Rule

119].

6101.20 Subpoenas [Rule 120].

6101.21 Hearing procedures [Rule 121].

6101.22 Admissibility and weight and evidence [Rule 122].

6101.23 Exhibits [Rule 123].

6101.24 Transcripts of proceedings; corrections [Rule 124].

6101.25 Briefs and memoranda of law [Rule 125].

6101.26 Consolidation; separate hearings; separate determination of

liability [Rule 126].

6101.27 Stay of suspension of proceedings; dismissals in lieu of

stay or suspension [Rule 127].

6101.28 Dismissals [Rule 128].

6101.29 Decisions: format; procedure [Rule 129].

6101.30 Full Board consideration [Rule 130].

6101.31 Clerical mistakes [Rule 131].

6101.32 Reconsideration; amendment of decisions; new hearings [Rule

132].

6101.33 Relief from decision or order [Rule 133].

6101.34 Harmless error [Rule 134].

6101.35 Award of costs [Rule 135].

6101.36 Payment of Board awards [Rule 136].

6101.37 Record on review of a Board decision [Rule 137].

6101.38 Office of the Clerk of the Board [Rule 138].

[[Page 52350]]

6101.39 Seal of the Board [Rule 139].

6101.40 Forms [Rule 140].

Appendix--Forms Nos. 1-5.

Form 1--Notice of Appeal, GSA Form 2465.

Form 2--Notice of Appearance.

Form 3--Subpoena, GSA Form 9534.

Form 4--Government Certificate of Finality.

Form 5--Appellant/Applicant Certificate of Finality.

Authority: 41 U.S.C. 601-613.

6101.0 Foreword.

(a) 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.

(b) As an agency board established under the Contract Disputes Act,

the Board is required to ``provide to the fullest extent practicable,

informal, expeditious and inexpensive resolution of disputes.'' 41

U.S.C. 607(e). The rules in part 6101 represent the Board's concerted

effort to be responsive to this charge in standard proceedings. In

further response to this mandate, the Board also uses a variety of

techniques intended to shorten and simplify, when appropriate, the

proceedings normally used to resolve contract disputes. These

techniques are described in part 6102.

(c) As indicated in part 6102, the Board fully supports the use of

alternative dispute resolution (ADR) in all appropriate cases. To

encourage the prompt, expert, and inexpensive resolution of contract

disputes as promoted by the Federal Acquisition Streamlining Act of

1994, Public Law 103-355, 108 Stat. 3243, the Board will also make a

Board Neutral available for an ADR proceeding, as described in 6102.4,

either before or after the issuance of a decision by a contracting

officer of any agency if a joint written request is submitted to the

Office of the Clerk of the Board by the parties.

(d) The Board also conducts proceedings as required under other

laws. In all matters before it, the Board will act in accordance with

this part and Part 6102 and applicable standards of conduct so that the

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

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

and panels; situs [Rule 101].

(a) Scope. The rules contained in this part and Part 6102 govern

proceedings in all cases filed with the Board on or after October 7,

1996, and all further proceedings in cases then pending, except to the

extent that, in the opinion of the Board, their use in a particular

case pending on the effective date would be infeasible or would work an

injustice, in which event the former procedure applies. The Board will

look to the rules in this part and Part 6102 for guidance in conducting

other proceedings authorized by law.

(b) Definitions--(1) Appeal; appellant. The term ``appeal'' means a

contract dispute filed with the Board. The term ``appellant'' means as

party filing an appeal.

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

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

Equal Access to Justice Act, 5 U.S.C. 504, pursuant to 6101.35. The

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

(3) Board judge; judge. The term ``Board judge'' or ``judge''

means a member of the Board.

(4) Case. The term ``case'' means an appeal, petition, or

application.

(5) Filing. (i) Any document, other than a notice of appeal or an

application for award of costs, is filed when it is received by the

Office of the Clerk of the Board during the Board's working hours. A

notice of appeal or an application for award of costs is filed upon the

earlier of:

(A) Its receipt by the Office of the Clerk of the Board or

(B) If mailed, the date on which it is mailed. A United States

Postal Service postmark shall be prima facie evidence that the document

with which it is associated was mailed on the date thereof.

(ii) Facsimile transmissions to the Board and the parties are

permitted. Parties are expected to submit their facsimile machine

numbers with their filings. The Board's facsimile machine number is:

(202) 501-0664. The filing of a document by facsimile transmission

occurs upon receipt by the Board of the entire printed submission.

Parties are specfically cautioned that deadlines for the filing of

cases will not be extended merely because the Board's facsimile machine

is busy or otherwise unavailable at the time on which the filing is

due.

(6) Party. The term ``party'' means an appeallant, applicant,

petitioner, or respondent.

(7) Petition; petitioner. The term ``petition'' means a request

filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting

officer to issue a written decision on a claim. The term ``petitioner''

means a party submitting a petition.

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

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

petition, or appplication.

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

a Saturday, Sunday, or federal holiday.

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

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

(c) Construction. The rules in this part and part 6102 shall be

construed to secure the just, speedy, and inexpensive resolution of

every case. The Board looks to the Federal Rules of Civil Procedure for

guidance in construing those Board rules which are similar to Federal

Rules.

(d) Rulings, orders, and directions. The Board may apply the rules

in this part and part 6102 and make such rulings and issue such orders

and directions as are necessary to secure the just, speedy, and

inexpensive resolution of every case before the Board. Any ruling,

order, or direction that the Board may make or issue pursuant to the

rules in this part and part 6102 may be made on the motion or request

of any party or on the initiative of the Board. The Board may also

amend, alter, or vacate a ruling, order, or direction upon such terms

as are just. In making rulings and issuing orders and directions

pursuant to the rules in this part and part 6102, the Board takes into

consideration those Federal Rules of Civil Procedure which address

matters not specifically covered in this part and part 6102.

(e) Panels. Each case will be assigned to a panel consisting of

three judges, with one member designated as the panel chairman, in

accordance with such procedures as may be established by the Board. The

panel chairman is responsible for processing the case, including

scheduling and conducting proceedings and hearings. In addition, the

panel chairman may, without participation by other panel members,

decide an appeal under the small claims procedure (6102.2), rule on

nondispositive motions (except for amounts in controversy under

6102.2(a)(2)), and dismiss a case if no party objects (6101.28(c)). All

other matters, except for those before the full Board under 6101.30,

are decided for the Board by a majority of the panel.

(f) Situs. The address of the Office of the Clerk of the Board is:

Room 7022, General Services Administration Building, 18th and F

Streets, NW., Washington, DC 20405. The Clerk's telephone number is:

(202) 501-0116. The Clerk's facsimile machine number is (702) 501-0664.

[[Page 52351]]

6101.2 Time: enlargement; computation [Rule 102].

(a) Time for performing required actions. All time limitations

prescribed in the rules in this part and part 6102 or in any order or

direction given by the Board are maximums, and the action required

should be accomplished in less time whenever possible.

(b) Enlarging time. Upon request of a party for good cause shown,

the Board may enlarge any time prescribed by the rules in this part and

part 6102 or by an order or direction of the Board. The exception is

the time limit for filing appeals (6101.5(b)(1)). A written request is

required, but in exigent circumstances an oral request may be made and

followed by a written request. An enlargement of time may be granted

even through the request was filed after the time for taking the

required action expired, but the party requesting the enlargement must

show good cause for its inability to make the request before that time

expired.

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

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

part 6102 or by order of the Board, the day from which the designated

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

period shall be counted unless that day is (1) a Saturday, a Sunday, or

a federal 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 federal holiday

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

11 days or more, intervening Saturdays, Sundays, and federal 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.

6101.3 Service of papers [Rule 103].

(a) On whom and when service must be made. When a party sends a

document to the Board it must at the same time send a copy to the other

party by mail or some other equally or more expeditious means of

transmittal. Subpoenas (6101.20) and documents filed in camera

(6101.12(h)) are exceptions to this requirement. Any papers required to

be served on a party (except requests for discovery and responses

thereto, unless ordered by the Board to be filed) shall be filed with

the Board before service or within a reasonable time thereafter.

(b) Proof of service. Except when service is not required, a party

sending a document to the Board must indicate to the Board that a copy

has also been sent to the other party. This may be done by certificate

of service, by the notation of a photostatic copy (cc:), or by any

other means that can reasonably be expected to indicate to the Board

that the other party has been provided a copy.

(c) Failure to make service. If a document sent to the Board by a

party does not indicate that a copy has been served on the other party,

the Board may return the document to the party that submitted it with

such directions as it considers appropriate, or the Board may inquire

whether a party has received a copy and note on the record the fact of

inquiry and the response, and may also direct the party that submitted

the document to serve a copy on the other party. In the absence of

proof of service a document may be treated by the Board as not properly

filed.

6101.4 Appeal file [Rule 104].

(a) Submission to the Board by the contracting officer. (1) Within

30 calendar days from receipt of notice that an appeal has been filed,

or within such time as the Board may allow, the contracting officer

shall file with the Board appeal file exhibits consisting of all

documents and other tangible things relevant to the claim and to the

contracting officer's decision which has been appealed, including:

(i) The contracting officer's decision, if any, from which the

appeal is taken;

(ii) The contract, if any, including amendments, specifications,

plans, and drawings;

(iii) All correspondence between the parties that is relevant to

the appeal, including the written claim or claims that are the subject

of the appeal, and evidence of their certification, if any;

(iv) Affidavits or statements of any witnesses on the matter in

dispute and transcripts of any testimony taken before the filing of the

notice of appeal;

(v) All documents and other tangible things on which the

contracting officer relied in making the decision, and any

correspondence relating thereto;

(vi) The abstract of bids, if relevant; and

(vii) Any additional existing evidence or information deemed

necessary to determine the merits of the appeal.

(2) The contracting officer shall serve a copy of the appeal file

on the appellant at the same time that the contracting officer files it

with the Board, except that

(i) The contracting officer need not serve on the appellant those

documents furnished the Board in camera pursuant to 6101.12(h), and

(ii) The contracting officer shall serve documents submitted under

protective order only on those individuals who have been granted access

to such documents by the Board. However, the contracting officer must

serve on the appellant a list identifying the specific documents filed

in camera or under protective order with the Board, giving sufficient

details necessary for their recognition. This list must also be filed

with the Board as an exhibit to the appeal file.

(b) Submission to the Board by the appellant. Within 30 calendar

days after filing of the respondent's appeal file exhibits, or within

such time as the Board may allow, the appellant shall file with the

Board for inclusion in the appeal file documents or other tangible

things relevant to the appeal that have not been submitted by the

contracting officer. The appellant shall serve a copy of its additional

exhibits upon the respondent at the same time as it files them with the

Board.

(c) Submissions on order of the Board. The Board may, at any time

during the pendency of the appeal, require any party to file other

documents and tangible things as additional exhibits.

(d) Organization of the appeal file. Appeal file exhibits may be

originals or true, legible, and complete copies. They shall be arranged

in chronological order within each submission, earliest documents

first; bound in a loose-leaf binder on the left margin except where

size or shape makes such binding impracticable; numbered; tabbed; and

indexed. The numbering shall be consecutive, in whole arabic numerals

(no letters, decimals, or fractions), and continuous from one

submission to the next, so that the complete file, after all

submissions, will consist of one set of consecutively numbered

exhibits. In addition, the pages within each exhibit shall be numbered

consecutively unless the exhibit already is paginated in a logical

manner. Consecutive pagination of the entire file is not required. The

index should include the date and a brief description of each exhibit

and shall indicate which exhibits, if any, have been filed with the

Board in camera or under protective order or otherwise have not been

served on every other party.

(e) Lengthy or bulky materials. The Board may waive the requirement

to furnish other parties copies or duplicates of bulky, lengthy, or

outsized

[[Page 52352]]

materials submitted to the Board as exhibits.

(f) Use of appeal file as evidence. All exhibits in the appeal

file, except for those as to which an objection has been sustained, are

part of the record upon which the Board will render its decision.

Unless otherwise ordered by the Board, objection to any exhibit may be

made at any time before the first witness is sworn or, if the appeal is

submitted on the record pursuant to 6101.11, at any time prior to or

concurrent with the first record submission. The Board may enlarge the

time for such objections and will consider an objection made during a

hearing if the ground for objection could not reasonably have been

earlier known to the objecting party. If an objection is sustained, the

Board will so note in the record.

(g) When appeal file not required. Upon motion of a party, the

Board may postpone or dispense with the submission of any or all appeal

file exhibits.

6101.5 Filing cases; time limits for filing; docketing [Rule 105].

(a) Filing cases. Filing of a case occurs as provided in

6101.1(b)(5).

(1) Notice of appeal. (i) A notice of appeal shall be in writing

and should be signed by the appellant or by the appellant's attorney or

authorized representative. If the appeal is from a contracting

officer's decision, the notice of appeal should describe the decision

in enough detail to enable the Board to differentiate that decision

from any other; the appellant can satisfy this requirement by attaching

to the notice of appeal a copy of the contracting officer's decision.

If an appeal is taken from the failure of a contracting officer to

issue a decision, the notice of appeal should describe in detail the

claim that the contracting officer has failed to decide; the appellant

can satisfy this requirement by attaching a copy of the written claim

submission to the notice of appeal.

(ii) A written notice in any form, including the one specified in

the appendix to this part and part 6102, is sufficient to initiate an

appeal. The notice of appeal should include the following information:

(A) The number and date of the contract;

(B) The name of the agency and the component thereof against which

the claim has been asserted;

(C) The name of the contracting officer whose decision or failure

to decide is appealed and the date of the decision, if any;

(D) A brief account of the circumstances giving rise to the appeal;

and

(E) An estimate of the amount of money in controversy, if any and

if known.

(iii) The appellant must send a copy of the notice of appeal to the

contracting officer whose decision is appealed or, if there has been no

decision, to the contracting officer before whom the appellant's claim

is pending.

(2) Petition. (i) A petition shall be in writing and signed by the

petitioner or by the petitioner's attorney or authorized

representative. The petition should describe in detail the claim that

the contracting officer has failed to decide; the contractor can

satisfy this requirement by attaching to the petition a copy of the

written claim submission.

(ii) The petition should include the following information:

(A) The number and date of the contract;

(B) The name of the agency and the component thereof against which

the claim has been asserted; and

(C) The name of the contracting officer whose decision is sought.

(3) Application. An application for costs shall meet all

requirements specified in 6101.35(c).

(4) Other participation. The Board may, on motion, in its

discretion, permit an entity to participate in a case in a special or

limited way, such as by filing an amicus curiae brief.

(b) Time limits for filing--(1) Appeals. (i) An appeal from a

decision of a contracting officer shall be filed no later than 90

calendar days after the date the appellant receives that decision.

(ii) An appeal may be filed with the Board should the contracting

officer fail or refuse to issue a timely decision on a claim submitted

in writing, properly certified if required.

(2) Applications. An application for costs shall be filed within 30

calendar days of a final disposition in the under-lying appeal, as

provided in 6101.35(b).

(c) Notice of docketing. Notices of appeal, petitions, and

applications will be docketed by the Office of the Clerk of the Board,

and a written notice of docketing will be sent promptly to all parties.

6101.6 Appearances; notice of appearance [Rule 106].

(a) Appearances before the Board--(1) Appellant; petitioner;

applicant. Any appellant, petitioner, or applicant may appear before

the Board by an attorney-at-law licensed to practice in a state,

commonwealth, or territory of the United States, or in the District of

Columbia. An individual appellant, petitioner, or applicant may appear

in his own behalf; a corporation, trust, or association may appear by

one of its officers or by any other authorized employee; and a

partnership may appear by one of its members or by any other authorized

employee.

(2) Respondent. The respondent may appear before the Board by an

attorney-at-law licensed to practice in a state, commonwealth, or

territory of the United States, or in the District of Columbia.

Alternatively, if not prohibited by agency regulation or otherwise, the

respondent may appear by the contracting officer or by the contracting

officer's authorized representative.

(b) Notice of appearance. Unless a notice of appearance is filed by

some other person, the person signing the notice of appeal, petition,

or application shall be deemed to have appeared on behalf of the

appellant, petitioner, or applicant, and the head of the respondent

agency's litigation office shall be deemed to have appeared on behalf

of the respondent. A notice of appearance in the form specified in the

appendix to this part and Part 6102 is sufficient. Attorneys

representing parties before the Board are required to list the state

bars to which they are admitted and their state bar numbers or other

bar identifiers.

(c) Withdrawal of appearance. Any person who has filed a notice of

appearance and who wishes to withdraw from a case must file a motion

which includes the name, address, telephone number, and facsimile

machine number of the person who will assume responsibility for

representation of the party in question. The motion shall state the

grounds for withdrawal unless it is accompanied by a representation

from the successor representative or existing co-counsel that the

established case schedule will be met.

6101.7 Pleadings in appeals [Rule 107].

(a) Pleadings required and permitted. Except as the Board may

otherwise order, the Board requires the submission of a complaint and

an answer. In appropriate circumstances, the Board may order or permit

a reply to an answer.

(b) Complaint. No later than 30 calendar days after the docketing

of the appeal, the appellant shall file with the Board a complaint

setting forth its claim or claims in simple, concise, and direct terms.

The complaint should set forth the factual basis of the claim or

claims, with appropriate reference to the contract provisions, and

should state the amount in controversy, or an estimate

[[Page 52353]]

thereof, if any and if known. No particular form is prescribed for a

complaint, and the Board may designate the notice of appeal, a claim

submission, or any other document as the complaint, either on its own

initiative or on request of the appellant, if such document

sufficiently states the factual basis and amount of the claim.

(c) Answer. No later than 30 calendar days after the filing of the

complaint or of the Board's designation of a complaint, the respondent

shall file with the Board an answer setting forth simple, concise, and

direct statements of its defenses to the claim or claims asserted in

the complaint, as well as any affirmative defenses it chooses to

assert. A dispositive motion or a motion for a more definite statement

may be filed in lieu of the answer only with the permission of the

Board. If no answer is timely filed, the board may enter a general

denial, in which case the respondent may thereafter amend the answer to

assert affirmative defenses only by leave of the Board and as otherwise

prescribed by paragraph (f) of this section. The Board will inform the

parties when it enters a general denial on behalf of the respondent.

(d) Reply to an answer. If the Board orders or permits a reply to

an answer, it shall be filed as directed by the Board.

(e) Modifications to requirement for pleadings. If the appellant

has elected the small claims procedure provided by 6102.2 or the

accelerated procedure provided by 6102.3, the submission of pleadings

shall be governed by the applicable section.

(f) Amendment of pleadings. Each party to an appeal may amend its

pleadings once without leave of the Board at any time before a

responsive pleading is filed; if the pleading is one to which no

responsive pleading is permitted, such amendment may be made at any

time within 20 calendar days after it is served or, in small claims

proceedings under 6102.2, within 10 working days after it is served.

The Board may permit the parties to amend pleadings further on

conditions fair to both parties. If a response to the unamended

pleading was required by the rules in this part or by an order of the

Board, a response to the amended pleading shall be filed no later than

30 calendar days after the filing of the amended pleading or, in small

claims proceedings, no later than 15 calendar days after the filing of

the amended pleading. 6101.12(e) concerns amendments to pleadings to

conform to the evidence.

6101.8 Motions [Rule 108].

(a) How motions are made. Motions may be oral or written. A written

motion shall indicate the relief sought and, either in the text of the

motion or in an accompanying legal memorandum, the grounds therefor. In

addition, a motion for summary relief shall comply with the

requirements of paragraph (g) of this section. 6101.25 prescribes the

form and content of legal memoranda. Oral motions shall be made on the

record and in the presence of the other party.

(b) When motions may be made. A motion filed in lieu of an answer

pursuant to 6101.7(c) shall be filed no later than the date on which

the answer is required to be filed or such later date as may be

established by the Board. Any other dispositive motion shall be made as

soon as practicable after the grounds therefor are known. Any other

motion shall be made promptly or as required by this part.

(c) Dispositive motions. The following dispositive motions may

properly be made before the Board:

(1) Motions to dismiss for lack of jurisdiction or for failure to

state a claim upon which relief can be granted;

(2) Motions to dismiss for failure to prosecute;

(3) Motions for summary relief (analogous to summary judgment); and

(4) Any other motion to dismiss.

(d) Other motions. Other motions may be made in good faith and in

proper form.

(e) Jurisdictional questions. The Board may at any time consider

the issue of its jurisdiction to decide a case. When all facts touching

upon the Board's jurisdiction are not to record, or in other

appropriate circumstances, a decision on a jurisdictional question may

be deferred pending a hearing on the merits or the filing of record

submissions.

(f) Procedure. Unless otherwise directed by the Board, a party may

respond to a written motion other than a motion pursuant to 6101.30,

6101.31, 6101.32, or 6101.33 at any time within 20 calendar days after

the filing of the motion. Responses to motions pursuant to 6101.30,

6101.31, 6101.32, or 6101.33 may be made only as permitted or directed

by the Board. The Board may permit hearing or oral argument on written

motions and may require additional submissions from any of the parties.

(g) Motions for summary relief. (1) A motion for summary relief

should be filed only when a party believes that, based upon uncontested

material facts, it is entitled to relief in whole or in part as a

matter of law. A motion for summary relief should be filed as soon as

feasible, to allow the Board to rule on the motion in advance of a

scheduled hearing date.

(2) With each motion for summary relief, there shall be served and

filed a separate document titled Statement of Uncontested Facts, which

shall contain in separately numbered paragraphs all of the material

facts upon which the moving party bases its motion and as to which it

contends there is no genuine issue. This statement shall include

references to the supporting affidavits or declarations and documents,

if any, and to the 6101.4 appeal file exhibits relied upon to support

such statement.

(3) An opposing party shall file with its opposition (or cross-

motion) a separate document titled Statement of Genuine Issues. This

document shall identify, by reference to specific paragraph numbers in

the moving party's Statement of Uncontested Facts, those facts as to

which the opposing party claims there is a genuine issue necessary to

be litigated. An opposing party shall state the precise nature of its

disagreement and give its version of the facts. This statement shall

include references to the supporting affidavits or declarations and

documents, if any, and to the 6101.4 appeal file exhibits that

demonstrate the existence of a genuine dispute. An opposing party may

also file a Statement of Uncontested Facts as to any relevant matters

not covered by the moving party's statement.

(4) When a motion for summary relief is made and supported as

provided in this section, an opposing party may not rest upon the mere

allegations or denials of its pleadings, but the opposing party's

response, by affidavits or as otherwise provided by this section, must

set forth specific facts showing that there is a genuine issue of

material fact. If the opposing party does not so respond, summary

relief, if appropriate, shall be entered against that party. For good

cause shown, if an opposing party cannot present facts essential to

justify its opposition, the Board may defer ruling on the motion to

permit affidavits to be obtained or depositions to be taken or other

discovery to be conducted, or may made such other order as is just.

(h) Effect of pending motion. Except as this part and part 6102

provide or the Board may order, a pending motion shall not excuse the

parties from proceeding with the case in accordance with this part and

part 6102 and the orders and directions of the Board.

6101.9 Election of hearing or record submission [Rule 109].

Each party shall inform the Board, in writing, whether it elects a

hearing or submission of its case on the record

[[Page 52354]]

pursuant to 6101.11. Such an election may be filed at any time unless a

time for filing is prescribed by the Board. A party electing to submit

its case on the record pursuant to 6101.11 may also elect to appear at

a hearing solely to cross-examine any witness presented by the opposing

party, provided that the Board is informed of that party's intention

within 10 working days of its receipt of notice of the election of

hearing by the other party. If a hearing is elected, the election

should state where and when the electing party desires the hearing to

be held and should explain the reasons for its choices. A hearing will

be held if either party elects one. If a party's decision whether to

elect a hearing is dependent upon the intentions of the other party, it

shall consult with the other party before filing its election. If there

is to be a hearing, it will be held at a time and place prescribed by

the Board after consultation with the party or parties electing the

hearing. The record submissions from a party that has elected to submit

its case on the record shall be due as provided in 6101.11.

6101.10 Conferences; conference memorandum; prehearing order;

prehearing and presubmission briefs [Rule 110].

(a) Conferences. The Board may convene the parties in conference,

either by telephone or in person, for any purpose. The conference may

be stenographically or electronically recorded, at the discretion of

the Board. Matters to be considered and actions to be taken at a

conference may include:

(1) Simplifying, clarifying, or severing the issues;

(2) Stipulations, admissions, agreements, and rulings to govern the

admissibility of evidence, understandings on matters already of record,

or other similar means of avoiding unnecessary proof;

(3) Plans, schedules, and rulings to facilitate discovery;

(4) Limiting the number of witnesses and other means of avoiding

cumulative evidence;

(5) Stipulations or agreements disposing of matters in dispute; or

(6) Ways to expedite disposition of the case or to facilitate

settlement of the dispute, including, if the parties and the Board

agree, the use of alternative dispute resolution techniques, as

provided in 6102.1 and 6102.4.

(b) Conference memorandum. The Board may prepare a memorandum of

the results of a conference or issue an order reflecting any actions

taken, or both. A memorandum or order so issued shall be placed in the

record of the case and sent to each party. Each party shall have 5

working days after receipt of a memorandum to object to the substance

of it.

(c) Prehearing order. The Board may issue a prehearing or

presubmission order to govern the proceedings in a case.

(d) Prehearing or presubmission briefs. A party may, by leave of

the Board, file a prehearing or presubmission brief at any time before

the hearing or upon or before the date on which first record

submissions are due.

6101.11 Submission on the record without a hearing [Rule 111].

(a) Submission on the record. (1) A party may elect to submit its

case on the record without a hearing. A party submitting its case on

the record may include in its written record submission or submissions:

(i) Any relevant documents or other tangible things it wishes the

Board to admit into evidence;

(ii) Affidavits, depositions, and other discovery materials that

set forth relevant evidence; and

(iii) A brief or memorandum of law.

(2) The Board may require the submission of additional evidence or

briefs and may order oral argument in a case submitted on the record.

(b) Time for submission. (1) If both parties have elected to submit

the case on the record, the Board will issue an order prescribing the

time for initial and, if appropriate, reply record submissions.

(2) If one party has elected a hearing and the other party has

elected to submit its case on the record, the party submitting on the

record shall make its initial submission no later than the commencement

of the hearing or at an earlier date if the Board so orders, and a

further submission in the form of a brief at the time for submission of

posthearing briefs.

(c) Objections to evidence. Unless otherwise directed by the Board,

objections to evidence (other than the appeal file and supplements

thereto) in a record submission may be made within 10 working days

after the filing of the submission. Replies to such objections, if any,

may be made within 10 working days after the filing of the objection.

The Board may rule on such objections in its opinion deciding the

merits or otherwise disposing of the case.

6101.12 Record of Board proceedings [Rule 112].

(a) Composition of the record for decision. (1) The record upon

which any decision of the Board will be rendered consists of:

(i) The notice of appeal, petition, or application;

(ii) Appeal file exhibits other than those as to which objection

has been sustained;

(iii) Hearing exhibits other than those as to which an objection

has been sustained;

(iv) Pleadings;

(v) Motions and responses thereto;

(vi) Memoranda, orders, rulings, and directions to the parties

issued by the Board;

(vii) Documents and other tangible things admitted in evidence by

the Board;

(viii) Written transcripts or electronic recordings of proceedings;

(ix) Stipulations and admissions by the parties;

(x) Depositions, or parts thereof, received in evidence;

(xi) Written interrogatories and responses received in evidence;

(xii) Briefs and memoranda of law; and

(xiii) Anything else that the Board may designate.

(2) All other papers and documents in a case are part of the

administrative record of the proceedings. The administrative record

shall include file and hearing exhibits offered but not received in

evidence in a case; it may also include correspondence with and between

the parties, and depositions, interrogatories, offers of proof

contained in the transcript, and other documents that are not part of

the record for decision.

(b) Time for entry into the record. Except as the Board may

otherwise order, nothing other than posthearing briefs will be received

into the record after a hearing is completed. In cases submitted on the

record without a hearing, nothing will be received into the record

after the time for filing of the last record submission. Briefs will be

due as provided in 6101.25(b).

(c) Closing of the record. Except as the Board may otherwise order,

no proof shall be received in evidence after a hearing is completed or,

in cases submitted on the record without a hearing, after notice by the

Board to the parties that the record is closed and that the case is

ready for decision.

(d) Notice that the case is ready for decision. The Board will give

written notice to the parties when the record is closed and the case is

ready for decision.

(e) Amendments to conform to the evidence. When issues within the

proper scope of a case, but not raised in the pleadings, have been

raised without objection or with permission of the Board at a hearing

(see 6101.21(h)) or in

[[Page 52355]]

record submissions, they shall be treated in all respects as if they

had been raised in the pleadings. The Board may formally amend the

pleadings to conform to the proof or may order that the record be

deemed to contain pleadings so amended.

(f) Enlargement of the record. The Board may at any time require or

permit enlargement of the record with additional evidence and briefs.

It may reopen the record to receive additional evidence and oral

argument at a hearing.

(g) Inspection of the record of proceedings; release of any paper,

document, or tangible thing prohibited. Except for any part thereof

that is subject to a protective order or deemed an in camera

submission, the record of proceedings in a case shall be made available

for inspection by any person. Such record shall be made available at

the Office of the Clerk of the Board during the Board's normal working

hours, as soon as practicable given the demands on the Board of

processing the subject case and other cases. Except as provided in

6101.23(c) and 6101.37(d), no paper, document, or tangible thing which

is part of the record of proceedings in a case may be released from the

offices of the Board. Copies may be obtained by any person as provided

in 6101.38(d). If such inspection or copying involves more than minimal

costs to the Board, reimbursement will be required.

(h) Protected and in camera submissions. (1) A party may by motion

request that the Board receive and hold materials under conditions that

would limit access to them on the ground that such documents are

privileged or confidential, or sensitive in some other way. The moving

party must state the grounds for such limited access. The board may

also determine on its own initiative to hold materials under such

conditions. The manner in which such materials will be held, the

persons who shall have access to them, and the conditions (if any)

under which such access will be allowed will be specified in an order

of the Board. If the materials are held under such an order, they will

be part of the record of the case. If the Board denies the motion, the

materials may be returned to the party that submitted them. If the

moving party asks, however, that the materials be placed in the

administrative record, in camera, for the purpose of possible later

review of the Board's denial, the Board will comply with the request.

(2) A party may also ask, or the Board may direct, that testimony

be received under protective order or in camera. The procedures under

paragraph (h)(1) of this section shall be followed with respect to such

request or direction.

6101.13 [Reserved].

6101.14 [Reserved].

6101.15 General provisions governing discovery [Rule 115].

(a) Discovery methods. The parties may obtain discovery by one or

more of the following methods:

(1) Depositions upon oral examination or written questions;

(2) Written interrogatories;

(3) Requests for production of documents or other tangible things;

and

(4) Requests for admission.

(b) Scope of discovery. Except as otherwise limited by order of the

Board in accordance with this part and part 6102, the parties may

obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending case, whether it

relates to the claim or defense of a party, including the existence,

description, nature, custody, condition, and location of any books,

documents, or other tangible things, and the identity and location of

persons having knowledge of any discoverable matter. It is not a ground

for objection that the information sought will be inadmissible if the

information sought appears reasonably calculated to lead to the

discovery of admissible evidence.

(c) Discovery limits. The Board may limit the frequency or extent

of use of the discovery methods set forth in this section if it

determines that:

(1) The discovery sought is unreasonably cumulative or duplicative,

or is obtainable from some other source that is more convenient, less

burdensome, or less expensive;

(2) The party seeking discovery has had ample opportunity by

discovery in the case to obtain the information sought; or

(3) The discovery is unduly burdensome and expensive, taking into

account the needs of the case, the amount in controversy, limitations

on the parties' resources, and the importance of the issues at stake.

(d) Conduct of discovery. Parties may engage in discovery only to

the extent the Board enters an order which either incorporates an

agreed plan and schedule acceptable to the Board or otherwise permits

such discovery as the moving party can demonstrate is required for the

expeditious, fair, and reasonable resolution of the case.

(e) Discovery conference. Upon request of a party or on its own

initiative, the Board may at any time hold an informal meeting or

telephone conference with the parties to identify the issues for

discovery purposes; establish a plan and schedule for discovery; set

limitations on discovery, if any; and determine such other matters as

are necessary for the proper management of discovery. The Board may

include in the conference such other matters as it deems appropriate in

accordance with 6101.10.

(f) Discovery objections. (1) In connection with any discovery

procedure, the Board, on motion or on its own initiative, may make any

order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense,

including, but not limited to, one or more of the following:

(i) That the discovery not be had;

(ii) That the discovery be had only on specified terms and

conditions, including a designation of the time and place, or that the

scope of discovery be limited to certain matters;

(iii) That the discovery be conducted with no one present except

persons designated by the Board; and

(iv) That confidential information not be disclosed or that it be

disclosed only in a designated way.

(2) Unless otherwise ordered by the Board, any objection to a

discovery request must be filed within 15 calendar days after receipt.

A party shall fully respond to any discovery request to which it does

not file a timely objection. The parties are required to make a good

faith effort to resolve objections to discovery requests informally.

(3) A party receiving an objection to a discovery request, or a

party which believes that another party's response to a discovery

request is incomplete or entirely absent, may file a motion to compel a

response, but such a motion must include a representation that the

moving party has tried in good faith, prior to filing the motion, to

resolve the matter informally. The motion to compel shall include a

copy of each discovery request at issue and the response, if any.

(g) Failure to make or cooperate in discovery; sanctions. If a

party fails

(i) To appear for a deposition, after being served with a proper

notice;

(ii) To serve answers or objections to interrogatories submitted

under 6101.17, after proper service of interrogatories; or

(iii) To serve a written response to a request for inspection,

production, and copying of any documents and things under 6101.17, the

party seeking discovery may move the Board to impose appropriate

sanctions under 6101.18.

(h) Subpoenas. A party may request the issuance of a subpoena in

aid of

[[Page 52356]]

discovery under the provision of 6101.20.

6101.16 Depositions [Rule 116].

(a) When depositions may be taken. Upon request of a party, the

Board may order the taking of testimony of any person by deposition

upon oral examination or written questions before an officer authorized

to administer oaths at the place of examination. Attendance of

witnesses may be compelled by subpoena as provided in 6101.20, and the

Board may upon motion order that the testimony at a deposition be

recorded by other than stenographic means, in which event the order may

designate the manner of recording, preserving, and filing the

deposition and may include other provisions to ensure that the recorded

testimony will be accurate and trustworthy. If the order is made, a

party may, nevertheless, arrange to have a stenographic transcription

made at its own expense.

(b) Depositions: time; place; manner of taking. The time, place,

and manner of taking depositions, including the taking of depositions

by telephone, shall be as agreed upon by the parties or, failing such

agreement, as ordered by the Board. A deposition taken by telephone is

taken at the place where the deponent is to answer questions.

(c) Use of depositions. At a hearing on the merits or upon a motion

or interlocutory proceeding, any part or all of a deposition, so far as

admissible and as though the witness were then present and testifying,

may be used against a party who was present or represented at the

taking of the deposition or who had reasonable notice thereof, in

accordance with any of the following provisions:

(1) Any deposition may be used by a party for the purpose of

contradicting or impeaching the testimony of the deponent as a witness.

(2) The deposition of a party or of anyone who at the time of

taking the deposition was an officer, director, or managing agent, or a

person designated to testify on behalf of a public or private

corporation, partnership or association, or governmental agency which

is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be

used by a party for any purpose in its own behalf if the Board finds

that:

(i) The witness is dead;

(ii) The attendance of the witness at the place of hearing cannot

be reasonably obtained, unless it appears that the absence of the

witness was procured by the party offering the deposition;

(iii) The witness is unable to attend or testify because of

illness, infirmity, age, or imprisonment;

(iv) The party offering the deposition has been unable to procure

the attendance of the witness by subpoena; or

(v) Upon request and notice, exceptional circumstances exist which

make it desirable in the interest of justice and with due regard to the

importance of presenting the testimony of witnesses orally in open

hearing, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party,

an adverse party may require the offering party to introduce any other

part which in fairness ought to be considered with the part introduced.

(d) Depositions pending appeal from a decision of the Board.

(1) If an appeal has been taken from a decision of the Board, or

before the taking of an appeal if the time therefor has not expired,

the Board may allow the taking of depositions of witnesses to

perpetuate their testimony for use in the event of further proceedings

before the Board. In such case, the party that desires to perpetuate

testimony may make a motion before the Board for leave to take the

depositions as if the action were pending before the Board. The motion

shall show:

(i) The names and addresses of the persons to be examined and the

substance of the testimony which the moving party expects to elicit

from each; and

(ii) The reasons for perpetuating the testimony of the persons

named.

(2) If the Board finds that the perpetuation of testimony is proper

to avoid a failure or a delay of justice, it may order the depositions

to be taken and may make orders of the character provided for in

6101.15 and in this section. Thereupon, the depositions may be taken

and used as prescribed in this part for depositions taken in actions

pending before the Board. Upon request and for good cause shown, a

judge may issue or obtain a subpoena, in accordance with 6101.20, for

the purpose of perpetuating testimony by deposition during the pendency

of an appeal from a Board decision.

6101.17 Interrogatories to parties; requests for admission; requests

for production of documents [Rule 117].

Upon order from the Board permitting such discovery, a party may

serve on another party written interrogatories, requests for admission,

and requests for production of documents.

(a) Written interrogatories. Written interrogatories shall be

answered separately in writing, signed under oath or accompanied by a

declaration under penalty of perjury, and answered within 30 calender

days after service. Objections shall be filed within the time limits

set forth in 6101.15(f)(2). An interrogatory otherwise proper is not

necessarily objectionable merely because an answer to the interrogatory

may involve an opinion or contention that relates to fact or the

application of law to fact, but the Board may order that such an

interrogatory need not be answered until after designated discovery has

been completed or until a conference has been held, or some other event

has occurred.

(b) Option to produce business records. Where the answer to an

interrogatory may be derived or ascertained from the business records

of the party upon which the interrogatory has been served, or from an

examination, audit, or inspection of such business records, including a

compilation, abstract, or summary thereof, and the burden of deriving

or ascertaining the answer is substantially the same for the party

serving the interrogatory as for the party served, it is a sufficient

answer to such interrogatory to specify the records from which the

answer may be derived or ascertained and to afford to the party serving

the interrogatory reasonable opportunity to examine, audit, or inspect

such records and to make copies, compilations, abstracts, or summaries

thereof. Such specification shall be in sufficient detail to permit the

interrogating party to locate and to identify, as readily as can the

party served, the records from which the answer may be ascertained.

(c) Written requests for admission. A written request for the

admission of the truth of any matter, within the proper scope of

discovery, that relates to statements or opinions of fact or of the

application of law to fact, including the genuineness of any documents,

is to be answered in writing and signed within 30 calendar days after

service. Objections shall be filed within the time limits set forth in

6101.15(f)(2). Otherwise, the matter therein may be deemed to be

admitted. Any matter admitted is conclusively established for the

purpose of the pending action, unless the Board on motion permits

withdrawal or amendment of the admission. Any admission made by a party

under this paragraph is for the purpose of the pending action only and

is not an admission for any other purpose, nor may it be used against

the party in any other proceeding.

(d) Written requests for production of documents. A written request

for the

[[Page 52357]]

production, inspection, and copying of any documents and things shall

be answered within 30 calendar days after service. Objections shall be

filed within the time limits set forth in 6101.15(f)(2).

(e) Change in time for response. Upon request of a party, or on its

own initiative, the Board may prescribe a period of time other than

that specified in this section.

(f) Responses. A party that has responded to written

interrogatories, requests for admission, or requests for production of

documents, upon becoming aware of deficiencies or inaccuracies in its

original responses, or upon acquiring additional information or

additional documents relevant thereto, shall, as quickly as

practicable, and as often as necessary, supplement its responses to the

requesting party with correct and sufficient additional information and

such additional documents as are necessary to give a complete and

accurate response to the request.

6101.18 Sanctions and other proceedings [Rule 118].

(a) Standards. All parties and their representatives, attorneys,

and any expert/consultant retained by them or their attorneys, must

obey directions and orders prescribed by the Board and adhere to

standards of conduct applicable to such parties and persons. As to an

attorney, the standards include the rules of professional conduct and

ethics of the jurisdictions in which an attorney is licensed to

practice, to the extent that those rules are relevant to conduct

affecting the integrity of the Board, its process, and its proceedings.

The Board will also look to voluntary professional guidelines in

evaluating an individual's conduct.

(b) Sanctions. 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:

(1) Taking the facts pertaining to the matter in dispute to be

established for the purpose of the case in accordance with the

contention of the party submitting the discovery request;

(2) Forbidding challenge of the accuracy of any evidence;

(3) Refusing to allow the disobedient party to support or oppose

designated claims or defenses;

(4) Prohibiting the disobedient party from introducing in evidence

designated documents or items of testimony;

(5) Striking pleadings or parts thereof, or staying further

proceedings until the order is obeyed;

(6) Dismissing the case or any part thereof;

(7) Enforcing the protective order and disciplining individuals

subject to such other violation thereof, including disqualifying a

party's representative, attorney, or expert/consultant from further

participation in the case; or

(8) Imposing such other sanctions as the Board deems appropriate.

(c) Denial of access to protected material for prior violations of

protective orders. The Board may in its discretion deny access to

protected material to any person found to have previously violated the

Board's protective order.

(d) Disciplinary proceedings.--(1) In addition to the other

procedures in this section, the Board may discipline individual party

representatives, attorneys, and experts/consultants for a violation of

any Board order or direction or standard of conduct applicable to such

individual where the violation seriously affects the integrity of the

Board's process or proceedings. Sanctions may be public or private, and

may include admonishment, disqualification from a particular matter,

referral to an appropriate licensing authority, or such other action as

circumstances may warrant.

(2) The Board in its discretion may suspend an individual from

appearing before the Board as a party representative, attorney, or

expert/consultant if, after affording such individual notice and an

opportunity to be heard, a majority of the members of the full Board

determines such a sanction is warranted.

6101.19 Hearings: scheduling; notice; unexcused absences [Rule 119].

(a) Scheduling of hearings. Hearings will be held at the time and

place ordered by the Board and will be scheduled at the discretion of

the Board. In scheduling hearings, the Board will consider the

requirements of this part and part 6102, the need for orderly

management of the Board's caseload, and the stated desires of the

parties as expressed in their elections filed pursuant to 6101.9 or

otherwise. The time or place for hearing may be changed by the Board at

any time.

(b) Notice of hearing. Notice of hearing will be by written order

of the Board. Notice of changes in the hearing schedule will also be by

written order when practicable but may be oral in exigent

circumstances. Except as the Board may otherwise order, each party that

plans to attend the hearing shall, within 10 working days of receipt

of:

(1) A written notice of hearing or

(2) Any notice of a change in hearing schedule stating that an

acknowledgment is required, notify the Board in writing that it will

attend the hearing.

(c) Unexcused absence from hearing. In the event of the unexcused

absence of a party from a hearing, the hearing will proceed, and the

absent party will be deemed to have elected to submit its case on the

record pursuant to 6101.11.

6101.20 Subpoenas [Rule 120].

(a) Voluntary cooperation in lieu of subpoena. Each party is

expected to:

(1) Cooperate by making available witnesses and evidence under its

control, when requested by another party, without issuance of a

subpoena; and

(2) Secure voluntary attendance of third-party witnesses and

production of evidence by third parties, and when practicable, without

issuance of a subpoena.

(b) General. Upon the written request of any party filed with the

Office of the Clerk of the Board, or on the initiative of a judge, a

subpoena may be issued that commands the person to whom it is directed

to:

(1) Attend and give testimony at a deposition in a city or county

where that person resides or is employed or transacts business in

person, or at another location convenient to that person that is

specifically determined by the Board;

(2) Attend and give testimony at a hearing; and

(3) Produce the books, papers, documents, and other tangible things

designated in the subpoena.

(c) Request for subpoena. A request for a subpoena shall state the

reasonable scope and general relevance to the case of the testimony and

of any documentary evidence sought. A request for a subpoena shall be

filed at least 15 calendar days before the testimony of a witness or

documentary evidence is to be provided. The Board may, in its

discretion, honor requests for subpoenas not made within this time

limitation.

(d) Form; issuance. Every subpoena shall be in the form specified

in the appendix to this part and part 6102. Unless a party has the

approval of a judge to submit a subpoena in blank (in whole or in

part), a party shall submit to the judge a completed subpoena (save the

``Return on Service'' portion). In issuing a subpoena to a requesting

party,

[[Page 52358]]

the judge shall sign the subpoena. The party to whom the subpoena is

issued shall complete the subpoena before service.

(2) If the person subpoenaed is located in a foreign country, a

letter rotatory or a subpoena may be issued and served under the

circumstances and in the manner provided in 28 U.S.C. 1781-1784.

(e) Service. (1) The party requesting a subpoena shall arrange for

service. Service shall be made as soon as practicable after the

subpoena has been issued.

(2) A subpoena requiring the attendance of a witness at a

deposition or hearing may be served at any place. A subpoena may be

served by a United States marshal or deputy marshal, or by any other

person who is not a party and not less than 18 years of age. Service of

a subpoena upon a person named therein shall be made by personal

delivery of a copy to that person and tender of the fees for one day's

attendance and the mileage allowed by 28 U.S.C. 1821 or other

applicable law; however, where the subpoena is issued on behalf of the

Government, money payments need not be tendered in advance of

attendance.

(f) Proof of service. The person serving the subpoena shall make

proof of service thereof to the Board promptly and in any event before

the date on which the person served must respond to the subpoena. Proof

of service shall be made by completion and execution and submission to

the Board of the ``Return on Service'' portion of a duplicate copy of

the subpoena issued by a judge. If service is made by a person other

than a United States marshal or his deputy, that person shall make an

affidavit as proof by executing the ``Return on Service'' in the

presence of a notary.

(g) Motion to quash or to modify. Upon written motion by the person

subpoenaed or by a party, made within 14 calendar days after service,

but in any event not later than the time specified in the subpoena for

compliance, the Board may

(1) Quash or modify the subpoena if it is unreasonable and

oppressive or for other good cause shown, or

(2) Require the party in whose behalf the subpoena was issued to

advance the reasonable cost of producing subpoenaed documentary

evidence. Where circumstances require, the Board may act upon such a

motion at any time after a copy has been served upon opposing parties.

(h) Contumacy or refusal to obey a subpoena. In a case of contumacy

or refusal to obey a subpoena by a person who resides, is found, or

transacts business within the jurisdiction of a United States district

court, the Board shall apply to the court through the Attorney General

of the United States for an order requiring the person to appear before

the board to give testimony, produce evidence or both. If a person

fails to obey such an order, the court may punish that person for

contempt of court.

6101.21 Hearing procedures [Rule 121].

(a) Nature and conduct of hearings. Except when necessary to

maintain the confidentiality of protected material or testimony, or

material submitted in camera, all hearings on the merits of cases shall

be open to the public and conducted insofar as is convenient in regular

hearing rooms. All other acts or proceedings may be done or conducted

by the Board either in its offices or at other places.

(b) Continuances; change of location. Whenever practicable, a

hearing will be conducted in one continuous session or a series of

consecutive sessions at a single location. However, the Board may at

any time continue the hearing to a future date and may arrange to

conduct the hearing in more than one location. The Board may also

continue a hearing to permit a party to conduct additional discovery on

conditions established by the Board. In exercising its discretion to

continue a hearing or to change its location, the Board will give due

consideration to the same elements (set forth in 6101.19(a)) that it

considers in scheduling hearings.

(c) Availability of witnesses, documents, and other tangible

things. It is the responsibility of a party desiring to call any

witness, or to use any document or other tangible thing as an exhibit

in the course of a hearing, to ensure that whoever it wishes to call

and whatever it wishes to use is available at the hearing.

(d) Enlargement of the record. The Board may at any time during the

conduct of a hearing require evidence or argument in addition to that

put forth by the parties.

(e) Examination of witnesses. Witnesses before the Board will

testify under oath or affirmation. A party or the Board may obtain an

answer from any witness to any question that is not the subject of an

objection that the Board sustains.

(f) Refusal to be sworn. If a person called as a witness refuses to

be sworn or to affirm before testifying, the Board may direct that

witness to do so and, in the event of continued refusal, the Board may

permit the taking of testimony without oath or affirmation.

Alternatively, the Board may refuse to permit the examination of that

witness, in which event it may state for the record the inferences it

draws from the witness's refusal to testify under oath or affirmation.

Alternatively, the Board may issue a subpoena to compel that witness to

testify under oath or affirmation, and in the event of the witness's

continued refusal to swear or affirm, may seek enforcement of that

subpoena pursuant to 6101.20(h).

(g) Refusal to answer. If a witness refuses to answer a question

put to him in the course of his testimony, the Board may direct that

witness to answer and, in the event of continued refusal, the Board may

state for the record the inferences if draws from the refusal to

answer. Alternatively, the Board may issue a subpoena to compel that

witness to testify and, in the event of the witness's continued refusal

to testify, may seek enforcement of that subpoena pursuant to

6101.20(h).

(h) Issues not raised by pleadings. If evidence is objected to at a

hearing on the ground that it is not within the issues raised by the

pleadings, it may nevertheless be admitted by the Board if it is within

the proper scope of the case. If such evidence is admitted, the Board

may grant the objecting party a continuance to enable it to meet such

evidence. If such evidence is admitted, the pleadings may be amended to

conform to the evidence, as provided by 6101.12(e).

(i) Delay by parties. If the Board determines that the hearing is

being unreasonably delayed by the failure of a party to produce

evidence, or by the undue prolongation of the presentation of evidence,

it may, by written order or by ruling from the bench, prescribe a time

or times within which the presentation of evidence must be concluded,

establish time limits on the direct or cross-examination of witnesses,

and enforce such order or ruling by appropriate sanctions.

6101.22 Admissibility and weight of evidence [Rule 122].

(a) Admissibility. Any relevant evidence may be received. The Board

may exclude relevant evidence to avoid unfair prejudice, confusion of

the issues, undue delay, waste of time, or needless presentation of

cumulative evidence. Hearsay evidence is admissible unless the Board

finds it unreliable or untrustworthy.

(b) Federal Rules of Evidence. As a general matter, and subject to

the other provisions of this section, the Board will base its

evidentiary rulings on the Federal Rules of Evidence.

[[Page 52359]]

(c) Weight and credibility. The Board will determine the weight to

be given to evidence and the credibility to be accorded witnesses.

(d) Submission of evidence in camera. 6101.12(h) governs

submissions in camera.

6101.23 Exhibits [Rule 123].

(a) Marking of exhibits. (1) Documents and other tangible things

offered in evidence by a party will be marked for identification by the

Board during the hearing or, if it is convenient for the Board and the

parties, before the commencement of the hearing. They will be numbered

consecutively as the exhibits of the party offering them.

(2) If a party elects to proceed on the record without a hearing

pursuant to 6101.11, documentary evidence submitted by that party will

be numbered consecutively by the Board as appeal file exhibits.

(b) Copies as exhibits. Except upon objection sustained by the

Board for good cause shown, copies of documents may be offered and

received into evidence as exhibits, provided they are of equal

legibility and quality as the originals, and such copies shall have the

same force and effect as if they were the originals. If the Board so

directs, a party offering a copy of a document as an exhibit shall have

the original available at the hearing for examination by the Board and

any other party. When the original of a document has been received into

evidence as an exhibit, an accurate copy thereof may be substituted in

evidence for the original by leave of the Board at any time.

(c) Withdrawal of documentary exhibits and other papers. With the

permission of the Board, a party may remove an exhibit during the

course of a proceeding. Otherwise, except as provided in 6101.37(d), no

withdrawal of any papers in the Board's file is permitted. Inspection

of the file at the Board's offices is permitted by 6101.12(g).

(d) Disposition of physical exhibits. Any physical (as opposed to

documentary) exhibit may be disposed of by the Board at any time more

than 90 calendar days after the expiration of the period for appeal

from the decision of the Board, unless it has been earlier withdrawn by

the party that submitted it.

6101.24 Transcripts of proceedings; corrections [Rule 124].

(a) Transcripts Except as the Board may otherwise order, all

hearings, other than those under the small claims procedure prescribed

by 6102.2, will be stenographically or electronically recorded and

transcribed. Any other hearing or conference will be recorded or

transcribed only by order of the Board. Copies or transcriptions of

stenographic or electronic recordings not ordered to be transcribed by

the Board will be furnished to the parties or other persons only on

conditions prescribed by the Board, which may include the payment of

the costs of copying or transcription. Each party is responsible for

obtaining its own copy of the transcript if one is prepared.

(b) Corrections Corrections to an official transcript will be made

only when they involve errors affecting its substance. The Board may

order such corrections on motion or on its own initiative, and only

after notice to the parties giving them opportunity to object. Such

corrections will ordinarily be made either by hand with pen and ink or

by the appending of an errata sheet, but when no other method of

correction is practicable the Board may require the reporter to provide

substitute or additional pages.

6101.25 Briefs and memoranda of law [Rule 125].

(a) Form and content of briefs and memoranda of law. Briefs and

memoranda of law shall be typewritten on standard size 8\1/2\ by 11-

inch paper. Otherwise, no particular form or organization is

prescribed. Posthearing briefs should, at a minimum, succinctly set

forth

(1) The facts of the case with citations to those places in the

record where supporting evidence can be found and

(2) Argument with citations to supporting legal authorities.

Memoranda of law should generally adhere as closely as practicable to

the form and content of briefs.

(b) Submission of posthearing briefs. Except as the Board may

otherwise order, posthearing briefs shall be filed 30 calendar days

after the Board's receipt of the transcript; reply briefs, if filed,

shall be filed 15 calendar days after the parties' receipt of the

initial posthearing briefs. The Board will notify the parties of the

date of its receipt of the transcript. In the event one party has

elected a hearing and the other party has elected to submit its case on

the record pursuant to 6101.11, the filing of record submissions in the

form of briefs shall be governed by this section.

6101.26 Consolidation; separate hearings; separate determination of

liability [Rule 126].

(a) Consolidation. When cases involving common questions of law or

fact are pending, the Board may:

(1) Order a joint hearing of any or all of the matters at issue in

the cases;

(2) Order the cases consolidated; or

(3) Make such other orders concerning the proceedings therein as

are intended to avoid unnecessary costs or delay.

(b) Separate hearings. The Board may order a separate hearing of

any case or cases or of any claims or issues or number of claims or

issues therein. The Board may enter appropriate orders or decisions

with respect to any claims or issues that are heard separately.

(c) Separate determinations of liability. The Board may:

(1) Limit a hearing to those issues of law and fact relating to the

right of a party to recover, reserving the determination of the amount

of recovery, if any, for other proceedings; and

(2) In its decision of an appeal, irrespective of whether there is

evidence in the record concerning the amount of recovery, and whether

or not a stipulation or order has been made, reserve determination of

the amount of recovery for other proceedings. In any instance in which

the Board has reserved its determination of the amount of recovery for

other proceedings, its decision on the question of the right to recover

shall be final, subject to the provisions of 6101.30 through 6101.33.

6101.27 Stay or suspension of proceedings; dismissals in lieu of stay

or suspension [Rule 127].

(a) Stay of proceedings to obtain contracting officer's decision.

The Board may in its discretion stay proceedings to permit a

contracting officer to issue a decision when an appeal has been taken

from the contracting officer's alleged failure to render a timely

decision.

(b) Suspension for other cause. The Board may suspend proceedings

in a case for good cause. The order suspending proceedings will

prescribe the duration of the suspension or the conditions on which it

will expire. The order may also prescribe actions to be taken by the

parties during the period of suspension or following its expiration.

(c) Dismissal in lieu of stay or suspension. When circumstances

beyond the control of the Board prevent the continuation of proceedings

in a case, the Board may, in lieu of issuing an order suspending

proceedings, dismiss the case without prejudice to reinstatement. Such

a dismissal may require reinstatement by a date certain or within a

certain period of time after the occurrence of a specified event. If

the order of dismissal does not otherwise provide, it will be subject

to the provisions of 6101.28(b).

[[Page 52360]]

6101.28 Dismissals [Rule 128].

(a) Generally. A case may be dismissed by the Board on motion of

either party. A case may also be dismissed for reasons cited by the

Board in a show cause order to which response has been permitted. Every

dismissal shall be with prejudice to reinstatement of the case unless a

dismissal without prejudice has been requested by a party or specified

in a show cause order.

(b) Dismissal without prejudice. When a case has been dismissed

without prejudice to its reinstatement and neither party has requested,

within the period of time specified in this paragraph, that the case be

reinstated, the case shall be deemed to have been dismissed with

prejudice as of the expiration of 180 calendar days from the date of

dismissal, or such other period as the Board may prescribe.

(c) Issuance of order. An order of dismissal shall be issued by the

panel of judges to which the case has been assigned if the motion is

contested or if the Board is acting consequent to its own show cause

order. An order of dismissal may be issued by the panel chairman alone

if the motion to dismiss is not contested.

6101.29 Decisions: format; procedure [Rule 129].

Except as provided in 6102.2 (small claims procedure), decisions of

the Board will be made in writing upon the record as prescribed in

6101.12. Each of the parties will be furnished a copy of the decision

certified by the Office of the Clerk of the Board, and the date of the

receipt thereof by each party will be established in the record.

6101.30 Full Board consideration [Rule 130].

(a) Requests. (1) A request for full Board consideration is not

favored. Ordinarily, full Board consideration will be ordered only when

(i) It is necessary to secure or maintain uniformity of Board

decisions, or

(ii) The matter to be referred is one of exceptional importance.

(2) A request for full Board consideration may be made by either

party on any date which is both

(i) After the panel to which the case is assigned has issued its

decision on a motion for reconsideration or relief from decision and

(ii) Within 10 working days after the date on which that party

receives that decision. Any party making a request for full Board

consideration shall state concisely in the motion the precise grounds

on which the request is based.

(3) The full Board on its own may initiate consideration of a

matter

(i) At any time while the case is before the Board,

(ii) No later than the last date on which any party may file a

motion for reconsideration or relief from decision or order, or

(iii) If such a motion is filed by a party, within ten days after a

panel has resolved it.

(b) Consideration. Promptly after such a request is made, a ballot

will be taken among the judges; if a majority of them favors the

request, the request will be granted. The result of the vote will

promptly be reported by the Board through an order. The concurring or

dissenting view of any judge who wishes to express such a view may

issue at the time of such order or at any time thereafter.

(c) Decisions. If full Board consideration is granted, a vote shall

be taken promptly on the pending matter. After this vote is taken, the

Board shall promptly, by order, issue its determination, which shall

include the concurring or dissenting view of any judge who wishes to

express such a view.

6101.31 Clerical mistakes [Rule 131].

Clerical mistakes in decisions, orders, or other parts of the

record, and errors arising therein through oversight or inadvertence,

may be corrected by the Board at any time on its own initiative or upon

motion of a party on such terms, if any, as the Board may prescribe.

During the pendency of an appeal to another tribunal, such mistakes may

be corrected only with leave of the appellate tribunal.

6101.32 Reconsideration; amendment of decisions; new hearings [Rule

132].

(a) Grounds. Reconsideration may be granted, a decision or order

may be altered or amended, or a new hearing may be granted, for any of

the reasons stated in 6101.33(a) and the reasons established by the

rules of common law or equity applicable as between private parties in

the courts of the United States. Reconsideration, or a new hearing, may

be granted on all or any of the issues. Arguments already made and

reinterpretations of old evidence are not sufficient grounds for

granting reconsideration. On granting a motion for a new hearing, the

Board may open the decision if one has been issued, take additional

testimony, amend findings of fact and conclusions of law, or make new

findings and conclusions and direct the entry of a new decision.

(b) Procedure. (1) Any motion under this section shall comply with

the provisions of 6101.8 and shall set forth:

(i) The reason or reasons why the Board should consider the motion;

and

(ii) The relief sought and the grounds therefor.

(2) If the Board concludes that the reasons asserted for its

consideration of the motion are insufficient, it may deny the motion

without considering the relief sought and the grounds asserted

therefor. If the Board grants the motion, it will issue an appropriate

order which may include directions to the parties for further

proceedings.

(c) Time for filing. A motion for reconsideration, to alter or

amend a decision or order, or for a new hearing shall be filed in an

appeal or petition within 30 calendar days and in an application within

7 working days after the date of receipt by the moving party of the

decision or order. Not later than 30 calendar days after issuance of a

decision or order, the Board may, on its own initiative, order

reconsideration or a new hearing or alter or amend a decision or order

for any reason that would justify such action on motion of a party.

(d) Effect of motion. A motion pending under this section does not

affect the finality of a decision or suspend its operation.

6101.33 Relief from decision or order [Rule 133].

(a) Grounds. The Board may relieve a party from the operation of a

final decision or order for any of the following reasons:

(1) Newly discovered evidence which could not have been earlier

discovered, even through due diligence;

(2) Justifiable or excusable mistake, inadvertence, surprise, or

neglect;

(3) Fraud, misrepresentation, or other misconduct of an adverse

party;

(4) The decision has been satisfied, released, or discharged, or a

prior decision upon which it is based has been reversed or otherwise

vacated, and it is no longer equitable that the decision should have

prospective application;

(5) The decision is void, whether for lack of jurisdiction or

otherwise; or

(6) Any other ground justifying relief from the operation of the

decision or order.

(b) Procedure. Any motion under this section shall comply with the

provisions of 6101.8 and 6101.32(b), and will be considered and ruled

upon by the Board as provided in 6101.32.

(c) Time for filing. Any motion under this section shall be filed

as soon as practicable after the discovery of the reasons therefor, but

in any event no later than 120 calendar days or, in appeals under the

small claims

[[Page 52361]]

procedure of 6102.2, no later than 30 calendar days after the date of

the moving party's receipt of the decision or order from which relief

is sought. In considering the timeliness of a motion filed under this

section, the Board may consider when the grounds therefor should

reasonably have been known to the moving party.

(d) Effect of motion. A motion pending under this section does not

affect the finality of a decision or suspend its operation.

6101.34 Harmless error [Rule 134].

No error in the admission or exclusion of evidence, and no error or

defect in any ruling, order, or decision of the Board, and no other

error in anything done or omitted to be done by the Board will be a

ground for granting a new hearing or for vacating, reconsidering,

modifying, or otherwise disturbing a decision or order of the Board

unless refusal to act upon such error will prejudice a party or work a

substantial injustice. At every stage of the proceedings the Board will

disregard any error or defect that does not affect the substantial

rights of the parties.

6101.35 Award of costs [Rule 135].

(a) Applications for costs. An appropriate party in a proceeding

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

applicable an award of attorney fees, under 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.

For purposes of this section, ``decision'' includes orders of dismissal

resulting from settlement agreements that bring to an end the

proceedings before the Board.

(b) Time for filing. A party seeking an award may submit an

application no later than 30 calendar days after a final disposition in

the underlying appeal. In the case of an appeal that is adjudicated,

the Board's decision becomes final (for purposes of this section) when

it is not appealed to the United States Court of Appeals for the

Federal Circuit within the time permitted for appeal or, if the

decision is appealed, when the time for petitioning the Supreme Court

for certiorari has expired. In the case of an appeal that is resolved

as a result of settlement, the Board's disposition becomes final (for

purposes of this section) after receipt by the applicant of the order

granting or dismissing the appeal.

(c) Application requirements. An application for costs shall:

(1) Identify the applicant and the appeal for which costs are

sought, and the amount being sought;

(2) Establish that all applicable prerequisites for an award have

been satisfied, including a succinct statement of why the applicant is

eligible for an award of costs;

(3) Be accompanied by an exhibit fully documenting any fees or

expenses being sought, including the cost of any study, analysis,

engineering report, test, project, or similar matter. The date and a

description of all services rendered or costs incurred shall be

submitted for each profession firm or individual whose services are

covered by the application, showing the hours spent in connection with

the proceeding by each individual, a description of the particular

services performed by specific date, the rate at which each fee has

been computed, any expenses for which reimbursement is sought, and the

total amount paid or payable by the applicant on account of the sought-

after costs. Except in exceptional circumstances, all exhibits

supporting applications for fees or expenses sought shall be publicly

available. The Board may require the applicant to provide vouchers,

receipts, or other substantiation for any costs claimed and/or to

submit to an audit by the Government of the claimed costs;

(4) Be signed by the applicant or an authorized officer, employee,

or attorney of the applicant;

(5) Contain or be accompanied by a written verification under oath

or affirmation, or declaration under penalty of perjury, that the

information provided in the application is true and correct;

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

concern, contain evidence thereof; and

(7) 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) Within 30 calendar days after receipt by the

respondent of an application under this section, the respondent may

file an answer. The answer shall explain in detail any objects to the

award requested and set out the legal and factual bases supporting the

respondent's position. If the 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, the respondent shall include in the

answer evidence of such highest rate.

(2) Further proceedings shall be held only by order of the Board

and only when necessary for full and fair resolution of the issues

arising from the application. Such proceedings shall be minimized to

the extent possible and shall not include relitigation of the case on

the merits. A request that the Board order further proceedings under

this section shall describe the disputed issues and explain why

additional proceedings are necessary to resolve those issues.

(e) Decision. Any award ordered by the Board shall be paid pursuant

to 6101.36.

6101.36 Payment of Board awards [Rule 136].

(a) Generally. When permitted by law, payment of Board awards may

be made in accordance with 31 U.S.C. 1304. Awards by the Board pursuant

to the Equal Access to Justice Act shall be directly payable by the

respondent agency over which the applicant has prevailed in the

underlying appeal.

(b) Conditions for payment. Before a party may obtain payment of a

Board award pursuant to 31 U.S.C. 1304, one of the following must

occur:

(1) Both parties must, by execution of a Certificate of Finality,

waive their rights to relief under 6101.32 and 6101.33 and also their

rights to appeal the decision of the Board; or

(2) The time for filing an appeal must expire.

(c) Procedure for filing of certificates of finality. Whenever the

Board issues a decision or an order awarding a party any amount of

money, it will attach to the copy of the decision sent to each party

forms such as those illustrated in the appendix to this part and part

6102. The conditions for payment prescribed in paragraph (b)(1) of this

section are satisfied if each of the parties returns a completed and

duly executed copy of this form to the Board. 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.

Upon receipt of completed and duly executed Certificates of Finality

from the parties, the Board will forward a copy of each such

certificate (together with proof of signatory authority, if required)

and a certified copy of its decision to the

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United States Department of the Treasury to be certified for payment.

(d) Procedure in absence of certificate of finality. When one or

both of the parties fails to submit a duly executed Certificate of

Finality, but the conditions for payment have been satisfied as

provided in paragraph (b)(2) of this section, the appellant or

applicant may file a written request that the Board forward its

decision to the United States Department of the Treasury for payment.

Thereupon, the Board will forward a copy of that request and a

certified copy of its decision to the United States Department of the

Treasury to be certified for payment.

(e) Stipulated award. When an appeal is settled, the parties may

file with the Board a stipulation setting forth the amount of the award

and stating

(1) That they will not seek reconsideration of, or relief from, the

Board's decision, and

(2) That they will not appeal the decision. The Board will adopt

the parties' stipulation by decision. The Board's decision under this

paragraph is an adjudication of the case on the merits.

6101.37 Record on review of a Board decision [Rule 137].

(a) Record on review. When a party has appealed a Board decision to

the United States Court of Appeals for the Federal Circuit, the record

on review shall consist of the decision sought to be reviewed, the

record before the Board as described in 6101.12, and such other

material as may be required by the Court of Appeals.

(b) Notice. At the same time a party seeking review of a Board

decision files a notice of appeal, that party shall provide a copy of

the notice to the Board.

(c) Filing of certified list of record materials. Promptly after

service upon the Board of a copy of the notice of appeal of a Board

decision, the Office of the Clerk of the Board shall file with the

Clerk of the United States Court of Appeals for the Federal Circuit a

certified list of all documents, transcripts of testimony, exhibits,

and other materials constituting the record, or a list of such parts

thereof as the parties may designate, adequately describing each. The

Board will retain the record and transmit any part thereof to the Court

upon the Court's order during the pendency of the appeal.

(d) Request by attorney of record to review record. When a case is

on appeal, an attorney of record may request permission from the Board

to sign out the record on appeal to review and copy, for a reasonable

period of time, if the attorney is unable to gain access to the record

from another source.

6101.38 Office of the Clerk of the Board [Rule 138].

(a) Open for the filing of papers. The Office of the Clerk of the

Board shall receive all papers submitted for filing, and shall be open

for this purpose from 8:00 a.m. to 4:30 p.m., Eastern Time, on each day

that is not a Saturday, Sunday, federal holiday, a day on which the

Office is required to close earlier than 4:30 p.m., or a day on which

the Office does not open at all, as in the case of inclement weather.

(b) Decisions and orders. The Office of the Clerk shall keep in

such form and manner as the Board may prescribe a correct copy of each

decision or order of the Board subject to review and any other order or

decision which the Board may direct to be kept.

(c) Docket. The Office of the Clerk shall keep a docket on which

shall be entered the title and nature of all cases brought before the

Board, the names of the persons filing such cases, the names of the

attorneys or other persons appearing for the parties, and a record of

all proceedings.

(d) Copies and certification of papers. Upon the request of any

person, copies of papers and documents in a case may be provided by the

Office of the Clerk. If making such copies involves more than minimal

costs to the Board, reimbursement will be required. When required, the

Office of the Clerk will certify copies of papers and documents as a

true record of the Board. Except as provided in 6101.23(c) and

6101.37(d), the Office of the Clerk will not release original records

in its possession to any person.

6101.39 Seal of the Board [Rule 139].

The Seal of the Board shall be a circular boss, the center portion

of which shall depict the Seal of the General Services Administration.

The outer margin of the seal shall bear the legend ``Board of Contract

Appeals.'' The Seal shall be the means of authentication of all

records, notices, orders, dismissals, opinions, subpoenas, and

certificates issued by the Board.

6101.40 Forms [Rule 140].

The forms contained in the appendix to this part and part 6102 are

sufficient under these parts and are intended to indicate the

simplicity and brevity of statement which the rules in those parts

contemplate. The subpoena form is a required form, and it may not be

altered.

Appendix to Part 6101--Form Nos. 1-5

Form 1--Notice of Appeal, GSA Form 2465

Form 2--Notice of Appearance

Form 3--Subpoena, GSA Form 9534

Form 4--Government Certificate of Finality

Form 5--Appellant/Applicant Certificate of Finality

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2. Part 6102 is added to read as follows:

PART 6102--RULES OF PROCEDURE OF THE GENERAL SERVICES

ADMINISTRATION BOARD OF CONTRACT APPEALS (EXPEDITED PROCEEDINGS)

Sec.

6102.1 Variation from standard proceedings [Rule 201].

6102.2 Small claims procedure [Rule 202].

6102.3 Accelerated procedure [Rule 203].

6102.4 Alternative dispute resolution [Rule 204].

Authority: 41 U.S.C. 601-613.

6102.1 Variation from standard proceedings [Rule 201].

The ultimate purpose of any Board proceeding is to resolve fairly

and expeditiously any dispute properly before the Board. When, during

the normal course of a Board proceeding, the parties agree that a

change in established procedure will promote this end, the Board will

make that change if it is deemed to be feasible and in the best

interest of the parties, the Board, and the resolution of contract

disputes. The following are examples of these changes:

(a) Establishing an expedited schedule of proceedings, such as by

limiting the times provided in part 6101 of this chapter for various

filings, to facilitate a prompt resolution of the case;

(b) Developing a record and rendering a decision on the issue of

entitlement prior to reviewing the issue of quantum in a party's claim;

(c) Developing a record and rendering a decision on any legal or

factual issue in advance of others when that issue is deemed critical

to resolving the case or effecting a settlement of any items in

dispute; and

(d) Developing a record regarding relevant facts through an on-the-

record round-table discussion with sworn witnesses, counsel, and the

panel chairman rather than through formal direct and cross-examination

of each of these same witnesses. This discussion shall be controlled by

the panel chairman. It may be conducted, for example, through the

presentation of narrative statements of witnesses or on an issue by

issue basis. The panel chairman may also request that the parties'

counsel or representatives present opening and/or closing statements in

lieu of written briefs.

6102.2 Small claims procedure [Rule 202].

(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. Such election shall be

made no later than 30 calendar days after the appellant's receipt of

the agency answer, unless the panel chairman enlarges the time for good

cause shown.

(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. The Government shall

raise any objection to the election no later than 10 working days after

receipt of a notice of election.

(b) Decision. The panel chairman may issue a decision, which may be

in summary form, orally or in writing. A decision which is issued

orally shall be reduced to writing; however, such a decision takes

effect at the time it is rendered, prior to being reduced to writing. A

decision shall be final and conclusive and shall not be set aside

except in case of fraud. A decision shall have no value as precedent.

(c) Procedure. Promptly after receipt of the appellant's election

of the small claims procedure, the Board shall establish a schedule of

proceedings that will allow for the timely resolution of the appeal.

Pleadings, discovery, and other prehearing activities may be restricted

or eliminated.

(d) Time of decision. Whenever possible, the panel chairman shall

resolve an appeal under this procedure within 120 calendar days from

the Board's receipt of the election. The time for processing an appeal

under this procedure may be extended if the appellant has not adhered

to the established schedule. Either party's failure to abide by the

Board's schedule may result in the Board drawing evidentiary inference

adverse to the party at fault.

6102.3 Accelerated procedure [Rule 203].

(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. Such election shall be

made no later than 30 calendar days after the appellant's receipt of

the agency answer, unless the panel chairman enlarges the time for good

cause shown.

(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. The Government shall

raise any objection to the election no later than 10 working days after

receipt of a notice of election.

(b) Decision. Each decision shall be rendered by the panel chairman

with the concurrence of one of the other judges assigned to the panel;

in the event the two judges disagree, the third judge assigned to the

panel will participate in the decision.

(c) Procedure. Promptly after receipt of the appellant's election

of the accelerated procedure, the Board shall establish a schedule of

proceedings that will allow for the timely resolution of the appeal.

Pleadings may be simplified, and discovery and other prehearing

activities may be restricted or eliminated.

(d) Time of decision. Whenever possible, the panel chairman shall

resolve an appeal under this procedure within 180 calendar days from

the Board's receipt of the election. The time for processing an appeal

under this procedure may be extended if the appellant has not adhered

to the established schedule. Either party's failure to abide by the

Board's schedule may result in the Board drawing evidentiary inferences

adverse to the party at fault.

6102.4 Alternative dispute resolution [Rule 204].

(a) Availability of ADR procedures. The Board will make its

services available for ADR proceedings in contract and procurement

matters involving any agency, regardless of whether the agency uses the

Board to resolve its Contract Disputes Act appeals.

(1) ADR subsequent to docketing of case at the Board. Parties are

encouraged to consider the feasibility of using ADR as soon as their

case is docketed. If, however, at any time during the course of a Board

proceeding, the parties agree that their dispute may be resolved

through the use of an ADR technique, the panel chairman may suspend

proceedings for a reasonable period of time while the parties and the

Board attempt to resolve the dispute in this manner. The use of an ADR

technique will not toll any relevant statutory time limit for deciding

the case.

(2) Other ADR. Upon request, the Board will make a Board Neutral

available for an ADR proceeding involving any agency in any contract or

procurement matter at any stage of a procurement, even if no

contracting officer decision has been issued or is contemplated. To

initiate an ADR proceeding, the parties shall jointly request the ADR

in writing and direct such request to the Office of the Clerk of the

Board. For agencies other than GSA, the Board will provide ADR services

on a reimbursable basis.

(b) Conduct of ADR.--(1) Selection of Board Neutral. If ADR is

agreed to by

[[Page 52370]]

the parties and the Board, the parties may request the appointment of

one or more Board judges to act as a Board Neutral or Neutrals. The

parties may request that the Board's chairman appoint a particular

judge or judges as the Board Neutral, or ask the Board's chairman to

appoint any judge or judges as the Neutral. If, when ADR has been

requested for a case that has already been docketed with the Board, as

provided in paragraph (a)(1) of this section, the parties may request

that the panel chairman serve as the Board Neutral. In such a

situation, if the ADR is unsuccessful,

(i) If the ADR has involved mediation, the panel chairman shall not

retain the case, and

(ii) If the ADR has not involved mediation, the panel chairman,

after considering the parties' views, shall decide whether to retain

the case.

(2) Retention and confidentiality of materials. The Board will

review materials submitted by a party for an ADR proceeding, but will

not retain such materials after the proceeding is concluded or

otherwise terminated. Material created by a party for the purpose of an

ADR proceeding is to be used solely for that proceeding unless the

parties agree otherwise. Parties may request a protective order in an

ADR proceeding in the manner provided in 6101.12(h).

(c) Types of ADR. ADR is not defined by any single procedure or set

of procedures. The Board will consider the use of any technique

proposed by the parties which is deemed to be fair, reasonable, and in

the best interest of the parties, the Board, and the resolution of

contract disputes. The following are examples of available techniques:

(1) Mediation. The Board Neutral, as mediator, aids the parties in

settling their case. The mediator engages in ex parte discussions with

the parties and facilitates the transmission of settlement offers.

Although not authorized to render a decision in the dispute, the

mediator may discuss with the parties, on a confidential basis, the

strengths and weaknesses of their positions. No judge who has

participated in discussions about the mediation will participate in a

Board decision of the case if the ADR is unsuccessful.

(2) Neutral case evaluation. The parties agree to present to the

Board Neutral information on which the Board Neutral bases a non-

binding, oral, advisory opinion. The manner in which the information is

presented will vary from case to case depending upon the agreement of

the parties. Presentations generally fall between two extremes, ranging

from an informal proffer of evidence together with limited argument

from the parties to a more formal presentation of oral and documentary

evidence and argument from counsel, such as through a mini-trial.

(3) Binding decision. One or more Board judges render a decision

which, by prior agreement of the parties, is to be binding and non-

appealable. As in the non-binding evaluation of a case by a Board

Neutral, the manner in which information is presented for a binding

decision may vary depending on the circumstances of the particular

case.

(4) Other procedures. In addition to other ADR techniques,

including modifications to those listed in this section, as agreed to

by the Board and parties, the parties may use ADR techniques that do

not require direct Board involvement.

(5) Selective use of standard procedures. Parties considering the

use of ADR are encouraged to adapt for their purposes any provisions in

part 6101 which they believe will be useful. This includes but is not

limited to provisions concerning record submittals, pretrial discovery

procedures, and hearings.

Dated: September 26, 1996.

Robert W. Parker,

Vice Chairman.

[FR Doc. 96-25121 Filed 10-4-96; 8:45 am]

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