Board of Contract Appeals; Rules of Procedure for Decisions Authorized Under 31 U.S.C. 3529

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 6104 and 6105

RIN 3090-AG29

Board of Contract Appeals; Rules of Procedure for Decisions

Authorized Under 31 U.S.C. 3529

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Final rule.

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SUMMARY: This document specifies the procedures the GSA Board of

Contract Appeals will apply to the Board's review of a request from an

agency disbursing or certifying official, or agency head, for a Board

decision on a question involving a payment the official will make, or a

voucher presented to a certifying official for certification, which

concerns a claim against the agency for reimbursement of expenses

incurred by a federal civilian employee while on official temporary

duty travel or in connection with relocation to a new duty station.

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 proposed

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 Date

These rules are applicable to all Board-issued decisions authorized

under 31 U.S.C. 3529 filed on or after May 12, 1997.

D. Background

On December 20, 1996, the Board published in the Federal Register

(61 FR 67241) an interim rule specifying the rules of procedure the

Board would apply to the Board's review of a request from an agency

disbursing or certifying official, or agency head, for a Board decision

on a question involving a payment the official will make, or a voucher

presented to a certifying official for certification, which concerns a

claim against the agency for reimbursement of expenses incurred by a

federal civilian employee while on official temporary duty travel or in

connection with relocation to a new duty station. Such a decision is

referred to by the rules as a ``Section 3529 decision.'' The Board

invited written comments on the interim rules.

The rules were intended to implement section 204 of the General

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

amending 31 U.S.C. 3529, transferred the authority of the Comptroller

General to make decisions on agency questions regarding payment or

certification of vouchers which involved federal civilian employees'

travel and relocation expenses, to the Administrator of General

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

Appeals. When issued by the Comptroller General, these decisions were

commonly known as ``advance

[[Page 25871]]

decisions'' since they were sought by agency officials before making

payments or certifying vouchers for payment.

Section 204 of the GAO Act amends 31 U.S.C. 3529 by referencing an

earlier transfer of functions from the Comptroller General to the

Director of the Office of Management and Budget authorized by section

211 of Legislative Branch Appropriations Act, 1996 (Pub. L. 104-53)

(LBAA). Section 211 of the LBAA also authorized the Director to

delegate any of those functions to another agency or agencies. On June

30, 1996, the Director delegated some of the functions contained in 31

U.S.C. 3702--the authority to review claims made against the United

States for reimbursement of expenses incurred by federal civilian

employees while on official temporary duty travel or in connection with

relocation to a new duty station--to the Administrator of General

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

Appeals.

With respect to a function transferred to OMB under section 211 of

the LBAA and delegated by OMB to another agency, section 204 of the GAO

Act provides that the head of that agency has the authority to issue

``advance decisions'' authorized by 31 U.S.C. 3529 on questions

involving such functions. Thus, the Administrator of General Services

is authorized to issue ``advance decisions'' on questions involving

reimbursement of expenses incurred by federal civilian employees while

on official temporary duty travel or in connection with relocation to a

new duty station. The Administrator has redelegated that function to

the Board, along with the authority to adopt and issue rules necessary

for the issuance of these decisions. This final rule has been adopted

by vote of the Board's judges.

E. Summary of Comments and Changes

The Board received no written comments on the interim rule.

The Board's judges, however, agreed on a reorganization of the

interim rule which necessitated a number of structural and textual

revisions to the rule. The interim rule was published as 48 CFR 6104.9,

the final section (and rule) of part 6104, which contains the Board's

rules of procedure for travel and relocation expenses cases. In

reviewing the interim rule, the Board determined that the procedures

for Section 3529 decisions could be simplified and made clearer if the

material in the interim rule was expanded to comprise its own part.

Former interim rule 48 CFR 6104.9 has therefore been renumbered as 48

CFR part 6105. The following revisions have been made:

Section 6105.1 (Scope)

This section has been added to describe explicitly the matters to

which the rules apply and the authority under which the Board reviews

requests for Section 3529 decisions.

Section 6105.2 (Request for Decision)

This section comprises paragraphs (a), (b), and (c) of former

section 6104.9. Language has been added which: (1) Explains that

Section 3529 decisions may be requested on matters which pertain to

claims involving reimbursement of travel and relocation expenses; (2)

states the address and working hours of the Office of the Clerk of the

Board; and (3) requires the agency to provide to the affected employee

a copy of all agency submissions to the Board.

Section 6105.3 (Additional Submissions)

Formerly section 6104.9(d) of the interim rule, this section has

been revised in two ways. First, the rule increases from 10 to 30

calendar days after receiving the copy of the request for decision the

time in which an affected employee may submit any additional

information to the Board (60 calendar days for an affected employee

located outside the United States). The Board found that 10 calendar

days is often too short a time period for employees to make an

additional submission, and that employees located outside the United

States often need a longer time in which to receive and respond to

submissions. Second, to help expedite resolution of these matters,

rather than waiting for the additional submission period to expire, the

rule now provides that the affected employee should notify the Board

and the agency if the employee does not wish to make an additional

submission.

Section 6105.4 (Proceedings)

This rule has been added to cover three aspects of proceeding:

requests for additional time; conferences; and additional submissions.

It parallels the rule on proceedings in part 6104 (Rules of Procedure

for Transportation and Relocation Expenses Cases).

Section 6105.5 (Decisions)

This rule has been added to describe the record on which a judge

will base a decision under this part. The rule also provides that the

Board will furnish the agency and the affected employee each a copy of

the decision, and gives the Internet address at which all of the

Board's decisions are posted weekly.

Section 6105.6

This rule describes how and under what circumstances an agency or

affected employee may request reconsideration of a Board decision.

List of Subjects in 48 CFR Parts 6104 and 6105

Administrative practice and procedure, Government procurement,

Travel and transportation expenses.

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

amended as follows:

1. The authority citation for Part 6104 continues to read as

follows:

Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613;

Secs 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L.

104-53, 109 Stat. 535.

2. Section 6104.9 is redesignated as part 6105 and revised to as

follows:

PART 6105--RULES OF PROCEDURE FOR DECISIONS AUTHORIZED BY 31 U.S.C.

3529

Sec.

6105.1 Scope [Rule 501].

6105.2 Request for decision [Rule 502].

6105.3 Additional submissions [Rule 503].

6105.4 Proceedings [Rule 504].

6105.5 Decisions [Rule 505].

6105.6 Reconsideration of Board decision [Rule 506].

Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613;

Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub.

L. 104-53, 109 Stat. 535.

Sec. 6105.1 Scope [Rule 501].

These procedures govern the Board's issuance of decisions, upon the

request of an agency disbursing or certifying official, or agency head,

on questions involving payment of travel or relocation expenses that

were formerly issued by the Comptroller General under 31 U.S.C. 3529.

Section 204 of the General Accounting Office Act of 1996, Public Law

104-316, transfers the authority to issue these decisions to the

Director of the Office of Management and Budget, and authorizes the

Director to delegate the authority to perform that function to another

agency or agencies. The Director has delegated the authority to issue

these decisions to the Administrator of General Services, who has

redelegated that function to the General Services Administration Board

of Contract Appeals.

Sec. 6105.2 Request for decision [Rule 502].

(a) Request for decision. (1) A disbursing or certifying official

of an agency, or the head of an agency, may request from the Board a

decision (referred to as a ``Section 3529 decision'') on a question

involving a

[[Page 25872]]

payment the disbursing official or head of agency will make, or a

voucher presented to a certifying official for certification, which

concerns the following type of claim made against the United States by

a federal civilian employee:

(i) A claim for reimbursement of expenses incurred while on

official temporary duty travel; and

(ii) A claim for reimbursement of expenses incurred in connection

with relocation to a new duty station.

(2) A request for a Section 3529 decision shall be in writing; no

particular form is required. The request must refer to a specific

payment or voucher; it may not seek general legal advice. The request

should----

(i) Explain why the official is seeking a Section 3529 decision,

rather than taking action on his or her own regarding the matter;

(ii) State the question presented and include citations to

applicable statutes, regulations, and cases;

(iii) Include----

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

number (if available) of the official making the request;

(B) The name, address, telephone number, and facsimile number (if

available) of the employee affected by the specific payment or voucher;

and

(C) Any other information which the official believes the Board

should consider; and

(iv) Be sent to the 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.

(b) Notice of docketing. A request for a Section 3529 decision will

be docketed by the Office of the Clerk of the Board. A written notice

of docketing will be sent promptly to the official and the affected

employee. The notice of docketing will identify the judge to whom the

request has been assigned.

(c) Service of copy. The official submitting a request for a

Section 3529 decision shall send to the affected employee copies of all

material provided to the Board. All submissions to the Board shall

indicate that a copy has been provided to the affected employee.

Sec. 6105.3 Additional submissions [Rule 503].

If the affected employee wishes to submit any additional

information to the Board, he or she must submit such information within

30 calendar days after receiving the copy of the request for decision

and supporting material (or within 60 calendar days after receiving the

copy, if the affected employee is located outside the 50 states and the

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

not wish to make an additional submission, the employee should so

notify the Board and the agency.

Sec. 6105.4 Proceedings [Rule 504].

(a) Requests for additional time. The agency or the affected

employee 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 request.

The judge may hold a conference with the agency and the affected

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

participants a memorandum reflecting the results of a conference.

(c) Additional submissions. The judge may require the submission of

additional information at any time.

Sec. 6105.5 Decisions [Rule 505].

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

which includes submissions by the agency and the affected employee, and

information provided during conferences. The agency and the affected

employee 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. 6105.6 Reconsideration of Board decision [Rule 506].

A request for reconsideration may be made by the agency or the

affected employee. 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 agency or

the affected employee 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.

Dated: May 5, 1997.

Stephen M. Daniels,

Chairman, GSA Board of Contract Appeals.

[FR Doc. 97-12384 Filed 5-9-97; 8:45 am]

BILLING CODE 6820-AL-P