Board of Contract Appeals; Rules of Procedure for Transportation Rate Cases

GENERAL SERVICES ADMINISTRATION

48 CFR Part 6103

RIN Number 3090-AG05

Board of Contract Appeals; Rules of Procedure for Transportation

Rate Cases

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Final rule.

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SUMMARY: This document specifies the rules of procedure of the GSA

Board of Contract Appeals applicable to the Board's review of claims

made by a carrier or freight forwarder pursuant to 31 U.S.C.

3726(g)(1). The rules are intended to implement section 201(o) of the

General Accounting Office Act of 1996 (Pub. L. 104-316), which

transferred the authority to resolve these claims to the Administrator

of General Services, who has redelegated that function to the Board.

EFFECTIVE DATE: This regulation is effective May 12, 1997.

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 this rule will

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

entities within the meaning of the Regulatory Flexibility Act (5 U.S.C.

601 et seq.).

B. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the 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 transportation rate cases filed

on or after May 12, 1997.

D. Background

On July 26, 1996, the Board published in the Federal Register (61

FR 39096) an interim rule specifying the rules of procedure the Board

would apply to its review of claims made by a carrier or freight

forwarder pursuant to 31 U.S.C. 3726(g)(1). The Board invited written

comments on the interim rules. The rules were intended to implement

section 211 of the Legislative Branch Appropriations Act, 1996 (Pub. L.

104-53), which, effective June 30, 1996, transferred certain functions

of the Comptroller General to the Director of the Office of Management

and Budget (OMB), and authorized the Director to delegate any of those

functions to another agency or agencies. Effective the same date, the

Director delegated the function contained in 31 U.S.C. 3726(g)(1)--the

authority to review rate

[[Page 25866]]

claims of a carrier or freight forwarder-- to the Administrator of

General Services, who redelegated that function to the GSA Board of

Contract Appeals.

On October 19, 1996, Congress enacted the General Accounting Office

Act of 1996 (Pub. L. 104-316). Section 201(o) of that Act directly

transfers the authority of the Comptroller General to resolve

transportation rate claims under 31 U.S.C. 3726(g)(1) to the

Administrator of General Services, who has continued to delegate this

function to the Board. In addition, the Administrator of General

Services has delegated to the Board the authority to adopt and issue

rules necessary for the resolution of these claims. This final rule has

been adopted by vote of the Board's judges.

E. Summary of Comments and Changes

The Board received written comments on the interim rules from three

commentators. Commentators included two motor freight carriers and an

association of motor freight carriers. The Board carefully considered

these comments, and adopted a number of the suggestions made by the

commentators. One commentator made no specific comments, but simply

expressed approval of the transfer of transportation rate claims from

the Comptroller General to the Administrator of General Services. The

other two commentators supported the interim rules and, in general,

suggested that some of the rules be more detailed. Their comments and

any revisions made, are discussed below in a section-by-section format.

Section 6103.2 (Filing Claims)

Two commentators suggested that the rule should state when a claim

is timely filed and/or provide a certain time by which the Board must

acknowledge receipt of a claim. They also suggested that the rule

permit filing a claim with the Board by facsimile transmission. In

response to these comments, the Board has added paragraph (b) to

Section 6103.2, which provides that a claim is filed when a written

copy is received by the Office of the Clerk of the Board during the

Board's working hours. Filing has been and is permitted by facsimile

transmission. All Board cases are date-stamped upon receipt and

docketed within one to two working days of receipt. In addition, the

notice of docketing sent to the claimant, OTA, and the agency states

the date the claim was filed with the Board. A claimant will thus be

able to verify the date the Board received the claim. In order to

facilitate the filing of claims, the address and the telephone and

facsimile machine numbers of the Clerk's office are provided, as are

the Board's working hours.

Section 6103.3 (Responses to Claims)

The Board made three changes to this section. First, the Board

revised the rule to increase from 30 to 60 calendar days after

docketing the time the agency has to respond to the claim, if the

agency office for which the services were provided is located outside

the United States. In the Board's experience, agency offices located

outside the United States have generally needed this additional time to

receive and respond to claims.

Second, the Board has redrafted Section 6103.3 to provide that all

responses submitted to the Board must indicate that a copy has been

provided to the claimant. Both commentators stated that the rule should

include some type of proof of service provision; one commentator wanted

the rule to provide for sanctions in the event that a party failed to

serve its submission on all participants. The Board believes that the

rule as revised is sufficient to ensure service on the claimant, and

that more formal proof of service requirements and specified sanctions

are unnecessary. Should the need arise, the judge to whom a case is

assigned may determine how to enforce the service requirements. The

Board has also added a parallel service of copy requirement to

paragraph (d) of Section 6103.2, which requires the claimant to send to

OTA and the agency a copy of all material provided to the Board, and to

indicate on all submissions to the Board that a copy has been provided

to OTA and the agency.

Third, in order to expedite proceedings, Section 6103.3 now

provides that, if either OTA or the agency does not wish to file a

response, it should so notify the Board and the claimant. If the Board

knows that OTA and/or the agency is not filing a response, it may

proceed with resolving the claim rather than waiting for the response

period to expire.

Section 6103.4 (Reply to OTA and Agency Responses)

This rule has been redrafted to require a claimant wishing to reply

to the OTA and agency responses to file and serve the reply within 30

calendar days after receiving the responses (or within 60 days if the

claimant is located outside the United States). The interim rule

required a claimant first to notify the Board within 10 days after

receiving the responses that it wished to file a reply, and then to

have the judge establish when the reply was due. One commentator

suggested that 10 days was too short a time to determine whether to

file a reply. The Board agrees, and has increased the amount of time

for a reply to 30 days, the amount of time given OTA and the agency to

file responses to a claim. The Board also concluded that it is

appropriate to permit a reply in all cases, such that each judge need

not make a case-by-case determination.

Both commentators were concerned that the exact date a carrier

received the responses would not be known with certainty by the Board,

and that either the date the response was mailed to the Board or the

date shown in a certificate of service should be determinative. The

Board did not incorporate either of these suggestions in the final

rule; such formality is unnecessary, given the time frames established

in the rules. The carrier will be aware of its receipt date(s), and,

therefore, can determine when a reply is due.

Section 6103.5 (Proceedings)

The Board added paragraph (a) to this section to clarify that the

claimant, OTA, or the agency may request additional time to make any of

the filings required or permitted by the rules. However, the Board may

not expand time limits established by statute. Both commentators

suggested that the rules should provide for discovery, citing the

carriers' past inability to obtain documents and other information

possessed by the Government needed to prove entitlement to payment. The

commentators and Board practice have not demonstrated a need for a rule

on discovery. Under Section 6103.5(c), judges retain the flexibility to

require participants to submit necessary additional information.

Section 6103.6 (Decisions)

In response to the suggestions made by both commentators, this

section makes explicit that it has been and is the Board's practice to

furnish the participants with a copy of the Board's decision. The

revised rule also explains that the Board's decisions are posted weekly

on the Internet, and provides the Board's Internet address.

Section 6103.7 (Reconsideration of Board Decision)

Both commentators suggested that 15 calendar days after the date a

decision is issued was too short a time in which to prepare a request

for reconsideration. The Board agrees, and has lengthened the time to

30 days after the date the decision was issued, or to 60 days if the

claimant or agency office making the request is located outside the

United States. One commentator suggested that all of the Board's rules

relating to

[[Page 25867]]

reconsideration of contract appeals be incorporated into the rules for

transportation rate cases. Neither the statute nor the Board envisions

these cases as formal, judicial proceedings. Specifically structured

reconsideration procedures are unnecessary. However, as made clear in

the revised rule, a request for reconsideration should not be a routine

practice in these cases. A request for reconsideration must be premised

on more than reargument or disagreement.

Section 6103.8 (Payment of Successful Claims)

Both commentators suggested that Section 6103.8 should provide that

an agency must pay any amount found due by the Board within 30 days of

the date of the Board's decision. Such a requirement comports with the

requirement of the Prompt Payment Act, 31 U.S.C. 3903, that payment is

due 30 days after the date the invoice is received by the agency. The

Board concludes that this matter is not appropriately resolved by a

rule of procedure, and that an agency receiving the Board's final

administrative decision on a claim will in fact promptly pay any amount

found owing the claimant, in accordance with applicable statutes.

List of Subjects in 48 CFR Part 6103

Administrative practice and procedure, Freight forwarders,

Government procurement.

For the reasons set out in the preamble, 48 CFR Part 6103 is

revised to read as follows:

PART 6103--RULES OF PROCEDURE FOR TRANSPORTATION RATE CASES

Sec.

6103.1 Scope [Rule 301].

6103.2 Filing claims [Rule 302].

6103.3 Responses to claims [Rule 303].

6103.4 Reply to OTA and agency responses [Rule 304].

6103.5 Proceedings [Rule 305].

6103.6 Decisions [Rule 306].

6103.7 Reconsideration of Board decision [Rule 307].

6103.8 Payment of successful claims [Rule 308].

Authority: 31 U.S.C. 3726(g)(1); 41 U.S.C. 601-613. Section

201(o), Pub. L. 104-316, 110 Stat. 3826.

Sec. 6103.1 Scope [Rule 301].

(a) Authority. Section 201(o) of the General Accounting Office Act

of 1996, Public Law 104-316, transfers certain functions of the

Comptroller General contained in 31 U.S.C. 3726(g)(1) to the

Administrator of General Services, who has redelegated those functions

to the General Services Administration Board of Contract Appeals.

(b) Type of claim; review of claim. These procedures are applicable

to the review of claims made by a carrier or freight forwarder pursuant

to 31 U.S.C. 3726(g)(1). The Board will issue the final agency decision

on a claim based on the information submitted by the claimant, the

General Services Administration Office of Transportation Audits (OTA),

and the department or agency (the agency) for which the services were

provided. The burden is on the claimant to establish the timeliness of

its claim, the liability of the agency, and the claimant's right to

payment.

Sec. 6103.2 Filing claims [Rule 302].

(a) Form. A claim shall be in writing and must be signed by the

claimant or by the claimant's attorney or authorized representative. No

particular form is required. The request should describe the basis for

the claim and state the amount sought. The request should also include:

(1) The name, address, telephone number, and facsimile machine

number, if available, of the claimant;

(2) The Government bill of lading or Government transportation

request number;

(3) The claimant's bill number;

(4) The Government voucher number and date of payment;

(5) The OTA claim number;

(6) The agency for which the services were provided; and

(7) Any other identifying information.

(b) When and where claims are filed. A claim is filed when it is

received by the Office of the Clerk of the Board during the Board's

working hours. Claims should be sent to the Board at the following

address: Office of the Clerk of the Board, Room 7022, General Services

Administration Building, 1800 F Street, NW, Washington, DC 20405. The

Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile

machine number is: (202) 501-0664. The Board's working hours are 8:00

a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday,

Sunday, or federal holiday.

(c) Notice of docketing. A claim will be docketed by the Office of

the Clerk of the Board, and a written notice of docketing will be sent

promptly to the claimant, the Director of OTA, and the agency for which

the services were provided. The notice of docketing will identify the

judge to whom the claim has been assigned.

(d) Service of copy. The claimant shall send to OTA and the agency

identified in paragraph (a)(6) of this section copies of all material

provided to the Board. All submissions to the Board by a claimant shall

indicate that a copy has been provided to OTA and the agency.

Sec. 6103.3 Responses to claims [Rule 303].

(a) Content of responses. Within 30 calendar days after docketing

by the Board (or within 60 calendar days after docketing if the agency

office for which the services were provided is located outside the 50

states and the District of Columbia), OTA and the agency for which the

services were provided shall each submit to the Board:

(1) A simple, concise, and direct statement of its response to the

claim;

(2) Citations to applicable statutes, regulations, and cases; and

(3) Any additional information deemed necessary to the Board's

review of the claim.

(b) Service of copy. All responses submitted to the Board shall

indicate that a copy has been sent to the claimant and to OTA or the

agency, as appropriate. To expedite proceedings, if either OTA or the

agency will not file a response (e.g., it believes its reasons for

denying the claim were sufficiently explained in the material filed by

the claimant), it should notify the Board, the claimant, and OTA or the

agency, as appropriate, that it does not intend to file a response.

Sec. 6103.4 Reply to OTA and agency responses [Rule 304].

A claimant may file with the Board and serve on OTA and the agency

a reply to the OTA and agency responses within 30 calendar days after

receiving the responses (or within 60 calendar days after receiving the

responses, if the claimant is located outside the 50 states and the

District of Columbia). To expedite proceedings, if the claimant does

not wish to respond, the claimant should so notify the Board, OTA, and

the agency.

Sec. 6103.5 Proceedings [Rule 305].

(a) Requests for additional time. The claimant, OTA, or the agency

may request additional time to make any filing.

(b) Conferences. The judge will not engage in ex parte

communications involving the underlying facts or merits of the claim.

The judge may hold a conference with the claimant, OTA, and the agency

at any time, for any purpose. The judge may provide the participants a

memorandum reflecting the results of a conference.

(c) Submissions. The judge may require the submission of additional

information at any time. The claimant, OTA, or the agency may request

an opportunity to make additional submissions; however, no such

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submission may be made unless authorized by the judge.

Sec. 6103.6 Decisions [Rule 306].

The judge will issue a written decision based upon the record,

which includes submissions by the claimant, OTA, and the agency, and

information provided during conferences. The claimant, OTA, and the

agency will each be furnished a copy of the decision by the Office of

the Clerk of the Board. In addition, all Board decisions are posted

weekly on the Internet. The Board's Internet address is:

www.gsbca.gsa.gov.

Sec. 6103.7 Reconsideration of Board decision [Rule 307].

A request for reconsideration may be made by the claimant, OTA, or

the agency. Such requests must be received by the Board within 30

calendar days after the date the decision was issued (or within 60

calendar days after the date the decision was issued, if the claimant

or agency office making the request is located outside the 50 states

and the District of Columbia). The request for reconsideration should

state the reasons why the Board should consider the request. Mere

disagreement with a decision or re-argument of points already made is

not a sufficient ground for seeking reconsideration.

Sec. 6103.8 Payment of successful claims [Rule 308].

The agency for which the services were provided shall pay amounts

the Board determines are due the claimant.

Dated: May 7, 1997.

Stephen M. Daniels,

Chairman, GSA Board of Contract Appeals.

[FR Doc. 97-12382 Filed 5-9-97; 8:45 am]

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