83 FR 13211 - Civilian Board of Contract Appeals; Rules of Procedure for Contract Disputes Act Cases
GENERAL SERVICES ADMINISTRATION Federal Register Volume 83, Issue 60 (March 28, 2018)
Federal Register Volume 83, Issue 60 (March 28, 2018)
| Page Range | 13211-13221 | |
| FR Document | 2018-06269 |
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)] [Proposed Rules] [Pages 13211-13221] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06269] ======================================================================= ----------------------------------------------------------------------- GENERAL SERVICES ADMINISTRATION 48 CFR Parts 6101 and 6102 [CBCA Case 2018-61-1; Docket No. 2018-0006; Sequence No. 1] RIN 3090-AK02 Civilian Board of Contract Appeals; Rules of Procedure for Contract Disputes Act Cases AGENCY: Civilian Board of Contract Appeals; General Services Administration (GSA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Civilian Board of Contract Appeals (Board) proposes to amend its rules of procedure for cases arising under the Contract Disputes Act, and for disputes between insurance companies and the Department of Agriculture's Risk Management Agency in which decisions of the Federal Crop Insurance Corporation are brought before the Board under the Federal Crop Insurance Act. The Board's current rules were issued in 2008 and were last amended in 2011. DATES: Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before May 29, 2018 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to CBCA Amendment 2018-01, BCA Case 2018-61-1, by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ``BCA Case 2018-61-1.'' Select the link ``Comment Now'' that corresponds with ``BCA Case 2018-61-1.'' Follow the instructions provided at the screen. Please include your name, company name (if any), and ``BCA Case 2018- 61-1'' on your attached document. Mail: Civilian Board of Contract Appeals, Office of the Chief Counsel (GA), 1800 M Street NW, Sixth Floor, Washington, DC 20036. Instructions: Please submit comments only and cite CBCA Amendment 2018-01, BCA Case 2018-61-1, in all correspondence related to this notice. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Mr. J. Gregory Parks, Chief Counsel, Civilian Board of Contract Appeals, 1800 M Street NW, Suite 600, Washington, DC 20036; at 202-606-8787; or email at [email protected], for clarification of content. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat at 202- 501-4755. Please cite BCA Case 2018-61-1. SUPPLEMENTARY INFORMATION: A. Background The Board was established within GSA by section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163. Board members are administrative judges appointed by the Administrator of General Services under 41 U.S.C. 7105(b)(2). Among its other functions, the Board hears and decides contract disputes between Government contractors and most civilian Executive agencies under the Contract Disputes Act, 41 U.S.C. 7101-7109, and its implementing regulations, and disputes pursuant to the Federal Crop Insurance Act, 7 U.S.C. 1501 et seq., between insurance companies and the Department of Agriculture's Risk Management Agency (RMA) involving actions of the Federal Crop Insurance Corporation (FCIC). The Board's rules of procedure for Contract Disputes Act cases and Federal Crop Insurance Act cases were adopted in May 2008 (73 FR 26947) and were last amended in August 2011 (76 FR 50926). The proposed rule simplifies and modernizes access to the Board by establishing a preference for electronic filing, increases conformity between the Board's rules and the Federal Rules of [[Page 13212]] Civil Procedure, streamlines the wording of the Board's rules, and clarifies current rules and practices. The proposed rule makes stylistic or other changes to Board Rules 1-35, 51-54, and 202. In addition, the Board will provide template forms for certain filings on its website rather than as an appendix to its rules. Proposed changes to the Board's rules of procedure include: Rule 4, Appeal file, is revised to make filing documentary evidence electronically in pdf format, rather than on paper, the default for Contract Disputes Act cases. Rule 6, governing pleadings, is revised to require the opposing party's consent to amend a pleading once without permission of the Board. This change is appropriate to practice under the Contract Disputes Act, as it will encourage opposing parties to raise any objections they may have to the Board's jurisdiction under the Act to hear new claims or defenses. Rule 8, Motions, is revised to, among other things, extend from 20 days to 30 days the time to file a brief in opposition to a substantive motion; set a deadline to respond to a procedural motion; and replace the term ``summary relief'' with the more common ``summary judgment.'' Rule 9 is reorganized to clarify that the record on the basis of which the Board will decide a case under the Contract Disputes Act consists of evidence and other materials that are not evidence. Rule 12, Stays and dismissals, is revised to eliminate a provision for suspending (rather than staying) a case, and a provision purporting to convert a voluntary dismissal without prejudice to a dismissal with prejudice after 180 days. The provisions being eliminated are potentially misleading in light of the strict limits on the Board's jurisdiction under the Contract Disputes Act, and are rarely used. Several rules are revised to cross-reference and incorporate standards of corresponding Rules of the Federal Rules of Civil Procedure. See proposed Rule 13(b) and (c), concerning the scope of discovery; Rule 14(b), Interrogatories; Rule 14(d), Requests for admission; Rule 14(f), Supplementing and correcting (discovery) responses; Rule 15(b), on the use of depositions; Rule 16(b), (e), and (f), on the issuance, service, and review of subpoenas; Rule 26, Reconsideration; and Rule 27, Relief from decision or order. These changes will allow the Board to adopt and apply case law applying the relevant Federal Rules, as well as any future amendments to those Federal Rules, without revising the Board's rules again. Practicioners before the Board are familiar with or can readily research current principles of Federal civil procedure. The appendix is deleted. It contained Forms 1 through 5, which litigants could elect to use as templates for certain filings. These nonmandatory forms are obsolete or will be posted on the Board's website. Rule 202 is revised to update cross-references to the rules of procedure for Contract Disputes Act cases. B. Regulatory Flexibility Act GSA certifies that this proposed 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. 602 et seq., and the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, because the proposed rule does not impose any additional costs on small or large businesses. C. Paperwork Reduction Act The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because proposed rule does not impose any information collection requirements that require the approval of the Office of Management and Budget. D. Congressional Review Act The proposed rule is exempt from Congressional review under Public Law 104-121 because it relates solely to agency organization, procedure, and practice and does not substantially affect the rights or obligations of non-agency parties. E. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993, or E.O. 13563, Improving Regulation and Regulatory Review, dated January 18, 2011. This proposed rule is not a major rule under 5 U.S.C. 804. F. Executive Order 13771 Executive Order 13771, dated February 3, 2017, sets deregulatory goals for agencies and requires the rescission of two regulations for each new regulation issued. This proposed rule is not a new regulation, but an update to the Board's existing rules of procedure, so Executive Order 13771 does not apply. List of Subjects in 48 CFR Parts 6101 and 6102 Administrative practice and procedure; Government procurement; Agriculture. Dated: March 20, 2018. Jeri Kaylene Somers, Chair, Civilian Board of Contract Appeals, General Services Administration. Therefore, GSA proposes to amend 48 CFR parts 6101 and 6102 as set forth below: 0 1. Revise part 6101 to read as follows: PART 6101--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT APPEALS Sec. 6101.1 General information; definitions [Rule 1]. 6101.2 Filing appeals, applications, and petitions; consolidation [Rule 2]. 6101.3 Computing and extending time [Rule 3]. 6101.4 Appeal file [Rule 4]. 6101.5 Appearing; notice of appearance [Rule 5]. 6101.6 Pleadings; amending pleadings [Rule 6]. 6101.7 Service of documents [Rule 7]. 6101.8 Motions [Rule 8]. 6101.9 Record; content and access [Rule 9]. 6101.10 Admissibility of evidence [Rule 10]. 6101.11 Conferences [Rule 11]. 6101.12 Stays and dismissals [Rule 12]. 6101.13 Discovery generally [Rule 13]. 6101.14 Interrogatories; requests for production; requests for admission [Rule 14]. 6101.15 Depositions [Rule 15]. 6101.16 Subpoenas [Rule 16]. 6101.17 Exhibits [Rule 17]. 6101.18 Election of hearing or record submission [Rule 18]. 6101.19 Record submission without a hearing [Rule 19]. 6101.20 Scheduling hearings [Rule 20]. 6101.21 Hearing procedures [Rule 21]. 6101.22 Transcripts [Rule 22]. 6101.23 Briefs [Rule 23]. 6101.24 Closing the record [Rule 24]. 6101.25 Decisions and settlements [Rule 25]. 6101.26 Reconsideration [Rule 26]. 6101.27 Relief from decision or order [Rule 27]. 6101.28 Full Board consideration [Rule 28]. 6101.29 Clerical mistakes; harmless error [Rule 29]. [[Page 13213]] 6101.30 Award of fees and other expenses [Rule 30]. 6101.31 Payment of award [Rule 31]. 6101.32 Appeal from Board decision [Rule 32]. 6101.33 Remand from appellate Court [Rule 33]. 6101.34 Ex parte communications [Rule 34]. 6101.35 Standards of conduct; sanctions [Rule 35]. 6101.36 Board seal [Rule 36]. 6101.37-6101.50 [Reserved]. 6101.51 Alternative procedures [Rule 51]. 6101.52 Small claims procedure [Rule 52]. 6101.53 Accelerated procedure [Rule 53]. 6101.54 Alternative dispute resolution [Rule 54]. Authority: 41 U.S.C. 7101-7109. 6101.1 General information; definitions [Rule 1]. (a) Scope. The rules of this chapter govern cases filed with the Board on or after [DATE], and all further proceedings in cases then pending, unless the Board decides that using these rules in a case pending on their effective date would be inequitable or infeasible. The Board may alter these procedures on its own initiative or on request of a party to promote the just, informal, expeditious, and inexpensive resolution of a case. (b) Definitions. Appeal; appellant. ``Appeal'' means a contract dispute filed with the Board under the Contract Disputes Act (CDA), 41 U.S.C. 7101-7109, or under a disputes clause in a non-CDA contract that allows for Board review. An ``appellant'' is the contractor filing an appeal. Appeal file. ``Appeal file'' means the submissions to the Board under Rule 4. Application; applicant. ``Application'' means a submission to the Board under Rule 30 of a request for an award of fees and other expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504, or another provision authorizing such an award. An ``applicant'' is a party filing an application. Attorney. ``Attorney'' means a person licensed to practice law in a state, commonwealth, or territory of the United States or in the District of Columbia. Board judge; judge. ``Board judge'' or ``judge'' means a member of the Board. Business days and hours. The Board's business days are days other than Saturdays, Sundays, federal holidays, days on which the Board is required to close before 4:30 p.m., or days on which the Board does not open for any reason, such as inclement weather. The Board's business hours are 8:00 a.m. to 4:30 p.m. Eastern Time. Case. ``Case'' means an appeal, petition, or application. Clerk of the Board. The ``Clerk'' of the Board receives filings, dockets cases, and prepares official correspondence for the Board. Efile; efiling. The Clerk accepts electronic filings (``efiles''), meaning documents submitted through the Board's email system (``efiled''). Parties may efile documents by sending an email (usually with attachments) to [email protected], except for documents that are classified or submitted in camera or under protective order (Rule 9). Efiling occurs upon receipt by the Board's email server, except that attachments must be in .pdf format and 18 megabytes (MB) or smaller or they will be rejected. Electronically stored information. ``Electronically stored information'' means information created, manipulated, communicated, stored, and best used in digital form with computer hardware and software. Equal Access to Justice Act (EAJA), 5 U.S.C. 504. This statute governs applications for awards of fees and other expenses in certain cases. Facsimile (fax) transmissions. The Board sends and accepts facsimile transmissions. A document is filed by fax at the time the Board receives all of it. The Board does not automatically extend filing deadlines if its fax machine is busy or otherwise unavailable. Filing. A notice of appeal or application is filed upon the earlier of its receipt by the Clerk or, if mailed through the United States Postal Service (USPS), the date it is mailed to the Board. A USPS postmark is prima facie evidence of a mailing date. Any other document is filed upon receipt by the Clerk. Party. ``Party'' means an appellant, applicant, petitioner, or respondent. Petition; petitioner. ``Petition'' means a request that the Board direct a contracting officer to issue a written decision on a claim. A ``petitioner'' is a party submitting a petition. Receipt. The Board deems a party's ``receipt'' of a document to occur upon the earlier of the emailing of the document to the party's email address of record (without notice of delivery failure) or the party's possession of a document sent by other means. Respondent. A ``respondent'' is the government agency whose decision, action, or inaction is the subject of an appeal, petition, or application. (c) Construction. The Board construes these rules to promote the just, informal, expeditious, and inexpensive resolution of every case. The Board may apply principles of the Federal Rules of Civil Procedure to resolve issues not covered by these rules. (d) Panels. The Board assigns each case to a panel of three judges, one of whom presides. The presiding judge sets the case schedule, oversees discovery, and conducts conferences, hearings, and other proceedings. The presiding judge may without participation by other panel members decide any appeal under the small claims procedure of Rule 52, any nondispositive motion, or any petition, and may dismiss a case as permitted by Rule 12(d). The Board decides all other matters by majority vote of a panel unless the full Board decides a matter under Rule 28. Only panel and full Board decisions are precedential. (e) Location and addresses. The Board is physically located at 1800 M Street NW, 6th Floor, Washington, DC 20036. The mailing address is 1800 F Street NW, Washington, DC 20405. The Clerk's telephone number is (202) 606-8800. The Clerk's fax number is (202) 606-0019. The Clerk's email address for efiling is [email protected]. The Board's website is http://www.cbca.gov. (f) Clerk's office hours. The Clerk's office is open to the public during business hours (Rule 1(b)). Efilings received after midnight are considered filed the next business day. The Clerk's office is closed when the Board's physical address is closed for any reason, including any closure of the federal Government in the Washington, DC, metropolitan area. 6101.2 Filing appeals, applications, and petitions; consolidation [Rule 2]. (a) Filing an appeal. A notice of appeal shall be in writing; signed by the appellant, the appellant's attorney, or an authorized representative (see Rule 5); and filed with the Board, with a copy to the contracting officer who received or issued the claim, or the successor contracting officer. A notice of appeal should include: (1) The name, telephone number, and mailing and email addresses of the appellant and/or its attorney or authorized representative; (2) The contract number; (3) The name of the contracting officer who received or issued the claim, with that person's telephone number, mailing address, and email address; (4) A copy of the claim with any certification; and (5) A copy of the contracting officer's decision on the claim or a statement that the appeal is from a failure to issue a decision (``a deemed denial''). (b) Filing a petition. A petition shall be in writing; signed by the petitioner, the petitioner's attorney, or an [[Page 13214]] authorized representative (see Rule 5); and filed with the Board, with a copy to the contracting officer who received the claim, or the successor contracting officer. A petition shall ask the Board to order the contracting officer to issue a decision and should include: (1) The name, telephone number, and mailing and email addresses of the petitioner and/or its attorney or authorized representative; (2) The contract number; (3) The name of the contracting officer who received the claim, with that person's telephone number, mailing address, and email address; and (4) A copy of the claim with any certification. (c) Filing an EAJA application. See Rule 30. (d) Time limits. (1) Under the CDA, a notice of appeal must be filed within 90 calendar days after the date of receipt of a contracting officer's decision on a claim. (2) Alternatively, under the CDA, a contractor may appeal when a contracting officer has not issued a decision on a claim within the time allowed by the CDA or the time set by a tribunal acting on a petition. (3) Under the CDA, a petition may be filed in the period between (a) receipt of notice from a contracting officer, within 60 days after the submission of a claim, that the contracting officer intends to issue a decision on the claim more than 60 days after its submission, and (b) the due date stated by the contracting officer. (4) Under EAJA, an application must be filed within 30 days after the date that the decision in the underlying appeal becomes no longer subject to appeal. (e) Notice of docketing. Upon receipt of a notice of appeal, a petition, or an application, the Clerk issues a written notice of docketing to all parties. (f) Consolidation. The Board may consolidate cases wholly or in part if they involve common questions of law or fact. 6101.3 Computing and extending time [Rule 3]. (a) Computing time. Consistent with Rule 6 of the Federal Rules of Civil Procedure, in computing any time period, omit the day of the event from which the period begins to run. Omit nonbusiness days only if the period is less than 11 days; otherwise include them. A period ends on a business day. If a computed period would otherwise end on a nonbusiness day, it ends on the next business day. (b) Extensions. Parties should act sooner than required whenever practicable. However, the Board extends time when appropriate. A motion for an extension shall be in writing and shall state the other party's position on the motion or describe the movant's effort to learn the other party's position. The Board cannot extend statutory deadlines. 6101.4 Appeal file [Rule 4]. (a) Filing. Within 30 days after receiving the Board's docketing notice, the respondent shall file and serve all documents relevant to the appeal, including: (1) The contracting officer's decision on the claim; (2) The contract, including all pertinent specifications, amendments, plans, drawings, and incorporated proposals or parts thereof; (3) All correspondence between the parties relevant to the appeal; (4) The claim with any certification; (5) Relevant affidavits, witness statements, or transcripts of testimony taken before the appeal; (6) All documents relied on by the contracting officer to decide the claim; and (7) Relevant internal memoranda, reports, and notes. (b) Organization of electronic appeal file. (1) Unless otherwise ordered, parties shall file the appeal file and supplements thereto in an electronic storage medium (e.g., hard disk or solid state drive, compact disc (CD), or digital versatile disc(DVD)), labeled with the docket number, case name, and range of exhibit numbers. (2) A party may efile an appeal file or a supplement thereto by permission of the Board. (3) Appeal file exhibits shall be in .pdf format or will be rejected. The appeal file index and each exhibit shall be separate documents, without embedded documents. (4) Appeal file exhibits shall be complete, legible, arranged in chronological order, numbered, and indexed. Parties shall avoid filing duplicative exhibits and shall number exhibits continuously and consecutively from one filing to the next, so that a complete appeal file consists of one set of consecutively numbered exhibits. (5) Parties shall number the pages of each exhibit consecutively, unless an exhibit is already paginated in another logical manner. (6) The appeal file index shall describe each exhibit by date and content. (7) Parties may file documents in camera only by permission of the Board. (c) Organization of paper appeal file. (1) Appeal files and supplements thereto may be filed on paper only by permission of the Board. (2) Appeal file exhibits shall be complete, legible, arranged in chronological order, tabbed, and indexed. Parties shall avoid filing duplicative exhibits and shall number exhibits continuously and consecutively from one filing to the next, so a complete appeal file consists of one set of consecutively tabbed exhibits. (3) Parties shall number the pages of each paper exhibit consecutively, unless an exhibit is already paginated in another logical manner. (4) Parties shall file exhibits in 3-ring binders with spines no wider than 3 inches, labeled on the cover and spine with the name of the appeal, CBCA number, and tab numbers in each binder. Include in each binder the index of the entire filing. (5) The appeal file index shall describe each exhibit by date and content. (6) Parties shall separately file and index documents submitted in camera or under a protective order. However, documents may be submitted in camera only by permission of the Board. (d) Supplements. Within 30 days after the respondent files the appeal file, the appellant may file non duplicative documents relevant to the claim, organized as instructed in Rule 4(b) or (c), starting with the next available exhibit number. (e) Classified or protected material. Neither classified nor protected material may be efiled. (f) Submission by order. The Board may order a party to supplement the appeal file, including by filing an exhibit in another format. (g) Status of exhibits. The Board considers appeal file exhibits part of the record for decision under Rule 9(a) unless a party objects to an exhibit within the time set by the Board and the Board sustains the objection. (h) Other procedures. The Board may postpone or waive the filing of an appeal file. 6101.5 Appearing; notice of appearance [Rule 5]. (a) Appearing before the Board. (1) Appellant; petitioner; applicant. An appellant, petitioner, or applicant may appear before the Board through an attorney. An individual appellant, petitioner, or applicant may appear for himself or herself. A corporation, trust, or association may appear by one of its officers. A limited liability corporation, partnership, or joint venture may appear by one of its members. Each individual appearing on behalf of an appellant, [[Page 13215]] petitioner, or applicant must have legal authority to appear. (2) Respondent. A respondent may appear before the Board through an attorney or, if allowed by the agency, by the contracting officer or the contracting officer's authorized representative. (3) Others. The Board may permit a special or limited appearance of or for a nonparty, such as an amicus curiae. (b) Notice of appearance. The Board deems the person who signed a notice of appeal, petition, or application to have appeared for the appellant, petitioner, or applicant. The Board deems the head of the respondent's litigation office to have appeared for the respondent unless otherwise notified. Other participating attorneys shall file notices of appearance including all of the information required by the sample notice of appearance posted on the Board's website. Attorneys representing parties before the Board shall list their bar numbers or other identifying data for each state bar to which they are admitted. (c) Withdrawal of appearance. Anyone who has filed a notice of appearance and wishes to withdraw from a case must file a motion identifying by name, telephone number, mailing address, and email address the person who will assume responsibility for representing the party in question. The motion must state grounds for withdrawal, unless the motion represents that the party in question will meet the existing case schedule. 6101.6 Pleadings; amending pleadings [Rule 6]. (a) Complaint. Within 30 days after receiving the notice of docketing, the appellant shall file a complaint stating in simple, concise, and direct terms the factual basis for each claim and the amount in controversy. Alternatively, the appellant or the Board may designate as a complaint the notice of appeal, a claim submission, or any other document containing the information required in a complaint. The Board may in its discretion order a respondent asserting a claim to file a complaint. (b) Answer. Within 30 days after receiving the complaint or a designation of a complaint, the respondent (or the appellant, if so ordered) shall file an answer stating in simple, concise, and direct terms its responses to the allegations of the complaint and any affirmative defenses it chooses to assert. (c) Amendments. A party may amend a pleading once, before a responsive pleading is filed, with permission of the other party. Amending a pleading restarts the time to respond, if any. The Board may allow a party to amend a pleading in other circumstances. (d) Motion in lieu of answer. The Board may allow a party to file a dispositive motion or to move for a more definite statement in lieu of filing an answer. 6101.7 Service of documents [Rule 7]. A party filing any document not submitted in camera (see Rule 9(c)(2)) shall send a copy to the other party by a method at least as fast as the filing method. The filing party shall indicate the method and address of service, otherwise the Board may consider a document not served and not properly filed. 6101.8 Motions [Rule 8]. (a) Generally. A party may make a motion for a Board action orally on the record in the presence of the other party or in a written filing. A written motion shall be a document titled as a motion and shall state the relief sought and the legal basis (see Rule 23(b)). Except for joint or dispositive motions, all motions shall represent that the movant tried to resolve the motion with the other party before filing. The Board may hold oral argument on a motion. (b) Jurisdictional motions. A party challenging the Board's jurisdiction should file such a motion promptly. (c) Procedural motions. A party may move for an extension of time (Rule 3(b)). The Board may in its discretion consider motions on other procedural matters. A procedural motion shall state the other party's position on the motion or describe the movant's effort to learn the other party's position. (d) Discovery motions. See Rule 13(e). (e) Motions to dismiss for failure to state a claim. A party may move to dismiss all or part of a claim for failure to state grounds on which the Board could grant relief. In deciding such motions, the Board looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance. (f) Summary judgment motions. A party may move for summary judgment on all or part of a claim or defense if the party believes in good faith it is entitled to judgment as a matter of law based on undisputed material facts. In deciding motions for summary judgment, the Board looks to Rule 56 of the Federal Rules of Civil Procedure for guidance. (1) Statement of undisputed material facts. The movant shall file with its summary judgment motion a separate document titled, ``Statement of Undisputed Material Facts.'' This document shall set forth facts supporting the motion in separate, numbered paragraphs, citing appeal file exhibits, admissions in pleadings, and/or evidence filed with the motion. (2) Statement of genuine issues. The opposing party shall file with its opposition a separate document titled, ``Statement of Genuine Issues.'' This document shall respond to specific paragraphs of the movant's Statement of Undisputed Material Facts by identifying material facts in genuine dispute, citing appeal file exhibits, admissions in pleadings, and/or evidence filed with the opposition. (g) Briefing. A party may file a brief in opposition to a motion under Rule 26, Rule 27, Rule 28, or Rule 29 only by permission of the Board. Unless otherwise ordered, a brief in opposition to any other nonprocedural motion is due 30 days after receipt of the motion, and a movant's reply brief is due 15 days after receipt of an opposition brief. A nonmovant may file a surreply only by permission of the Board. Unless otherwise ordered, a brief in opposition to a procedural motion is due 5 days after receipt of the motion, and there shall be no reply. (h) Effect of pending motion. Unless otherwise stated in these rules, the filing of a motion does not affect a party's obligations under the Board's rules or orders. 6101.9 Record; content and access [Rule 9]. (a) Record for decision. The record on which the Board will decide a case includes the following: (1) Evidence. Evidence in a case includes: a. Rule 4 appeal file exhibits other than those to which an objection is sustained; b. Other documents or parts thereof admitted as evidence; c. Tangible things admitted as evidence; d. Transcripts or recordings of testimony before the Board; and e. Factual stipulations and factual admissions. (2) Other material. The Board may also rely on to decide a case: a. The notice of appeal, petition, or application; b. The complaint, answer, and amendments thereto; c. Motions and briefs on motions; d. Other briefs; e. Demonstrative hearing exhibits; and f. Anything else the Board may expressly admit or take notice of. (b) Other contents of case file. The Board's administrative record may be broader than the record for decision. Material in the Board's case file that is not listed in Rule 9(a) is part of the administrative record but is not part of the record for decision. [[Page 13216]] (c) Enlarging or reopening the record. The Board may enlarge or reopen the record for decision on terms fair to the parties. (d) Protected and in camera submissions. The Board may limit access to specified material in a record for decision. (1) Protective orders. The Board may limit access to specified material in a record for decision if the Board finds good cause to treat the material as privileged, confidential, or otherwise sensitive. (2) In camera submissions. The Board may allow a party to submit a document solely for the Board's review in camera if: a. The party submits the document to explain a discovery dispute; b. The Board denies a motion for protective order, and the movant asks that the record include a document that the party would have used in the case with a protective order, for possible later review of the Board's denial; or c. Good cause exists to find that in camera review may limit or prevent needless harm to a party, witness, or other person. (3) Status in record. A document submitted and accepted under a protective order or in camera is part of the record for decision. If the Board's decision is judicially reviewed, the Board will endeavor to preserve the protected or in camera nature of the document to the extent consistent with judicial review. (e) Review and copying. The Clerk makes records for decision, except evidence submitted under a protective order or in camera, available for review on reasonable notice during business hours, and provides copies of such available documents for a reasonable fee. The Clerk will not relinquish possession of material in the Board's files. 6101.10 Admissibility of evidence [Rule 10]. The Board may in its discretion receive any evidence to which no party objects. In ruling on evidentiary objections, the Board is guided but not bound by the Federal Rules of Evidence, except that the Board generally admits hearsay unless the Board finds it unreliable. 6101.11 Conferences [Rule 11]. The Board may order a conference of the parties for any purpose. Conferences are usually telephonic and are rarely recorded or transcribed. No one may record a conference by any means without Board approval. If the Board issues a memorandum or order memorializing a conference, a party has 5 days from receipt of the memorandum or order to object in writing to the memorialization. 6101.12 Stays and dismissals [Rule 12]. (a) Stays. The Board may stay a case for a specific duration, or until a specific event, for good cause. (b) Dismissals. (1) Generally. The Board may dismiss a case or part of a case either on motion of a party or after permitting a response to an order to show cause. Dismissal is with prejudice unless a Board order or other applicable law provides otherwise. (2) Voluntary dismissal. Subject to Rule 12(b)(3), the Board will dismiss all or part of a case on the terms requested if the appellant, petitioner, or applicant moves for dismissal with prejudice or moves jointly with the respondent for dismissal with or without prejudice. (3) For lack of jurisdiction. If the Board finds that it lacks jurisdiction to decide all or part of a case, the Board will dismiss the case or the part of the case, regardless of the parties' positions on jurisdiction or dismissal. (4) For failure to prosecute. The Board may dismiss all or part of a case for failure to prosecute. (c) Dismissal orders and decisions. The presiding judge acting alone may stay a case or grant voluntary dismissal with or without prejudice. A panel or the full Board may dismiss a case on other grounds. (d) Admonition. Dismissal of a party's case without prejudice does not necessarily mean that the party may later refile the case at the Board, or in another forum, under the jurisdictional and procedural laws applicable to the case. 6101.13 Discovery generally [Rule 13]. (a) Methods. Parties may obtain discovery by depositions, interrogatories, requests for production, and requests for admission. (b) Scope. Unless otherwise ordered, the scope of discovery is the same as under Rule 26(b)(1) of the Federal Rules of Civil Procedure. (c) Limits. The Board may limit the frequency or extent of discovery for a reason stated in Rule 26(b)(2) of the Federal Rules of Civil Procedure. (d) Timing. The Board encourages parties to agree on a discovery plan that the Board may adopt in a scheduling order. The Board may modify an agreed discovery plan. (e) Disputes. (1) Objections. A party objecting to a written discovery request must make the objection in writing no later than the date that its response to the discovery request is due. (2) Duty to cooperate. Parties shall try in good faith to resolve objections to discovery requests without involving the Board. The Board may impose an appropriate sanction under Rule 35 on a party that does not meet its discovery obligations. (3) Motions to compel. A party may move to compel a response or a supplemental response to a discovery request. The movant shall attach to its motion a copy of each discovery request and response at issue, and shall represent in the motion that the movant complied with Rule 13(e)(2). (f) Subpoenas. A party may request a subpoena under Rule 16. 6101.14 Interrogatories; requests for production; requests for admission [Rule 14]. (a) Generally. Interrogatories, requests for production, requests for admission, and responses thereto shall be in writing and served on the other party. (b) Interrogatories. Interrogatories shall be answered or objected to separately in writing, under signed oath, within 30 days of service. A party may answer an interrogatory by specifying records from which the answer may be derived or ascertained when that response would be allowed under Rule 33(d) of the Federal Rules of Civil Procedure. (c) Requests for production. Responses and objections to requests for production, inspection, and/or copying of documents, electronically stored information, or tangible things are due within 30 days of service of the requests and shall state when and how the responding party will make responsive material available. (d) Requests for admission. (1) Content. A party may serve requests for admission that would be proper under Rule 36(a)(1) of the Federal Rules of Civil Procedure. (2) Responses and failure to respond. Responses and objections shall comply with Rule 36(a)(4) and (5) of the Federal Rules of Civil Procedure. If the served party does not respond within 30 days of service of a request, the Board may on motion deem a matter admitted and conclusively established solely for the pending case. (3) Relief from admission. The Board may allow a party to withdraw or amend an admission for good cause. (e) Altering time to respond. The parties may agree to alter deadlines to respond to discovery requests. The Board may alter the deadlines to meet the needs of a case. (f) Supplementing and correcting responses. A party must supplement or [[Page 13217]] correct a response to a discovery request if and when this action would be required by Rule 26(e)(1) of the Federal Rules of Civil Procedure. 6101.15 Depositions [Rule 15]. (a) Generally. Unless otherwise ordered, parties may take depositions after service of the answer. If the parties agree in writing on the deponent, time, place, recording method, and maximum duration of a deposition, no formal deposition notice is needed. The Board may order a deposition on motion under Rule 8 or by subpoena under Rule 16. (b) Use. Parties may use deposition testimony in a case to the extent that would be permitted by Rule 32(a) of the Federal Rules of Civil Procedure. (c) To perpetuate testimony. If the Board has decided a case, and either the time to appeal has not expired or an appeal has been taken, the Board may for good cause grant leave to take a deposition as if the case were still before the Board in order to preserve testimony for possible further proceedings before the Board. 6101.16 Subpoenas [Rule 16]. (a) Expectation of cooperation in lieu of subpoena. Subpoenas should rarely be necessary, as the Board expects parties to respond cooperatively to discovery requests and to try in good faith to secure the cooperation of third parties who have or may have evidence responsive to discovery requests. (b) Generally. The Board may issue a subpoena for a purpose for which a United States district court may issue a subpoena under Rule 45(a)(1) of the Federal Rules of Civil Procedure. Parties and the Board shall take all reasonable steps to avoid imposing undue burden on a person subject to a subpoena. (c) How requested; form. A party may ask the Board to issue a subpoena by motion under Rule 8, substantially before the proposed compliance date. The movant shall attach to its motion a completed subpoena form for signing by a Board judge, and shall explain in the motion why the proposed subpoena scope is reasonable and how the evidence sought is relevant to the case. (d) Production cost. The Board's policy is to require a requesting party to advance a subpoenaed person the reasonable cost of producing subpoenaed material. (e) Service. The requesting party shall serve a subpoena and provide proof of service as would be required by Rule 45(b) of the Federal Rules of Civil Procedure. (f) Motion to quash or modify. On or before the date specified for compliance, a subpoenaed person may file a motion to quash or modify the subpoena for a reason stated in Rule 45(d)(3) of the Federal Rules of Civil Procedure. The Board may rule on the motion anytime after the party that served the subpoena receives the motion. (g) Enforcement. As necessary, the Board may ask the Attorney General of the United States to petition a United States district court to enforce a Board subpoena. (h) Letter rogatory in lieu of subpoena. If a person to be subpoenaed resides in a foreign country, the Board may facilitate the issuance of a letter rogatory to the person by the United States Department of State under 28 U.S.C. 1781-1784. 6101.17 Exhibits [Rule 17]. (a) Marking exhibits. Unless otherwise ordered, parties shall, to the fullest extent practicable, submit exhibits for inclusion in the appeal file before a hearing starts under Rule 20 or before the first brief is filed when a case is submitted on the written record under Rule 19. Parties shall mark any exhibits offered in evidence thereafter as sequential additions to the appeal file. Such exhibits shall become part of the appeal file if admitted as evidence. (b) Copies. The Board expects all document exhibits to be true, complete, and legible copies rather than originals. The Board may order a party to substitute a better copy or to make an original document available for inspection. (c) Withdrawal. The Board may allow a party to withdraw an exhibit from the appeal file and the record for decision on terms fair to the other party. (d) Disposition. Unless the Board advises the parties of another deadline, the Board may discard physical (non-electronic) exhibits in its possession 90 days after the time to appeal the Board's decision in the case expires. 6101.18 Election of hearing or record submission [Rule 18]. (a) Generally. The Board will hold a hearing in a case if the Board must find facts and either party elects a hearing. A party may elect to submit its case for decision on the written record under Rule 19. The presiding judge will set the deadline for an election under this rule. (b) Hybrid election. A party may elect to submit its case on the written record under Rule 19 and also elect to appear at a hearing, solely to cross-examine the other party's witnesses and to object to evidence offered at the hearing. 6101.19 Record submission without a hearing [Rule 19]. (a) Generally. If a party elects to submit its case on the record without a hearing, the Board will set a schedule for the parties to complete the evidentiary record and file briefs. (b) Evidence and objections. When a party elects submission on the record without a hearing, that party may submit material for inclusion in the record no later than the date the party files its initial brief. Unless otherwise ordered, the other party may object to the admission of such material as evidence within 5 days after receiving the submission. If one party elects a hearing and the other party elects record submission (or makes a hybrid election under Rule 18(b)), the evidentiary record shall close at the end of the hearing. The Board may rule on objections either before or in its decision. (c) Briefs and argument. The Board may receive briefs and/or oral argument on a record submission. If one party elects a hearing and the other party elects record submission, the first brief of the party submitting its case on the record shall be due no later than the start of the hearing. 6101.20 Scheduling hearings [Rule 20]. (a) Generally. The Board will set the time, place, duration, and subject matter of a hearing in a written order after consulting with the parties. (b) Subject matter. The Board may schedule for hearing all or some of the claims or issues in a case, or all or some of the claims, issues, or questions of fact or law common to more than one case. (c) Unexcused absence. If a party fails without good excuse to appear at a hearing of which it received notice under this rule, the Board will deem that party to have elected to submit its case on the record under Rule 19. 6101.21 Hearing procedures [Rule 21]. (a) Generally. The Board generally holds hearings in public hearing rooms. Except as necessary under a protective order or in camera procedures, hearings are open to the public. The Board entrusts the conduct of hearings to the discretion of the presiding judge. (b) Witnesses, evidence, other exhibits. A party that intends to offer testimony, other evidence, or other material for the record at a hearing shall arrange for the witness, evidence, or other material to be present in the hearing room. The Board may in its discretion allow testimony by telephone or video. (c) Exclusion of witnesses. The Board may exclude witnesses from a hearing, other than one designated representative for each party or a person authorized by statute to be present, so that witnesses [[Page 13218]] are not influenced by the testimony of other witnesses. (d) Sworn testimony. Hearing witnesses shall testify under oath or affirmation. If a person called as a witness refuses to so swear or affirm, the Board may receive the person's testimony under penalty of making a materially false statement in a federal proceeding under 18 U.S.C. 1001. Alternatively, the Board may disallow the testimony and may draw inferences from the person's refusal to swear or affirm. 6101.22 Transcripts [Rule 22]. The Board arranges transcription of hearings, other than hearings under the small claims procedure of Rule 52. The Board may, but generally does not, arrange transcription of conferences or other proceedings. No one may record or transcribe a Board proceeding without the Board's permission. The Board may order or acknowledge corrections to an official transcript. Each party is responsible for obtaining its own copy of a transcript. 6101.23 Briefs [Rule 23]. (a) Generally. The Board may order or invite briefs on any issue in a case at any time. Briefs shall be formatted for 82 by 11-inch paper, double spaced, with body and footnote text no smaller than 13 point. (b) Prehearing, post-hearing, and other briefs. Prehearing and post-hearing briefs, briefs filed under Rule 19, and briefs on non- procedural motions shall cite record evidence for factual statements and legal authority for legal arguments. 6101.24 Closing the record [Rule 24]. (a) Closing the evidentiary record. Unless otherwise ordered, the evidence as defined in Rule 9(a)(1) is closed at the end of a hearing under Rule 20 or at the start of merits briefing when a case is submitted on the record under Rule 19. (b) Closing the record for decision. Unless otherwise ordered, the record for decision as defined in Rule 9(a) is closed when the Board receives the final scheduled brief on the matters to be decided. 6101.25 Decisions and settlements [Rule 25]. (a) Decisions. The Board issues decisions in writing, except as allowed by Rule 52. The Board will send a copy of a decision to each party, requesting confirmation of receipt (see Rule 1), and will post the decision on its website. If a decision reserves any part of a case for later proceedings, it is conclusive as to the matters it resolves, except as provided in Rules 26 and 28. (b) Settlements. Parties may settle a case by stipulating to an award. The Board may issue a decision making the stipulated award if: (1) The Board is satisfied that it has jurisdiction, and (2) The stipulation states that no party will seek reconsideration of, seek relief from, or appeal the Board's decision. 6101.26 Reconsideration [Rule 26]. (a) Grounds. The Board may on motion reconsider a decision or order for a reason recognized in Rule 59 of the Federal Rules of Civil Procedure. Arguments and evidence previously presented are not grounds for reconsideration. (b) Time limit for motion. A party may move for reconsideration of a decision or order on an appeal or petition within 30 days after that party receives the decision or order. A party may move for reconsideration of a decision or order on an application within 7 days after receiving the decision or order. The Board does not extend these time limits. (c) Effect of motion. A pending reconsideration motion does not affect any obligation to comply with a decision or order. 6101.27 Relief from decision or order [Rule 27]. (a) Grounds. The Board may grant relief, for a reason recognized in Rule 60 of the Federal Rules of Civil Procedure, from a decision or order that, alone or in conjunction with prior decisions or orders, resolves all of an appeal, petition, or application. (b) Time limit for motion. A party may move for relief under this rule within 120 days after that party receives the decision or order at issue. (c) Effect of motion. A pending motion for relief under this rule does not affect any obligation to comply with a decision or order. 6101.28 Full Board consideration [Rule 28]. (a) By motion. The full Board may consider a decision or order when necessary to maintain uniformity of Board decisions or if the matter is exceptionally important. Motions for full Board consideration are disfavored and are decided by a majority of the Board. A party may move for full Board consideration within 10 days after that party receives the decision or order at issue. An order granting full Board consideration will include concurring or dissenting opinions, if any. (b) By Board initiative. A majority of the Board may initiate full Board consideration of any matter in a case, up to 10 days after a judge or panel issues a decision or order on that matter. The full Board will inform the parties by order of the matter or matters to be considered. The order will include concurring or dissenting opinions, if any. (c) Full Board decision. The full Board decides matters by majority vote. A full Board decision will include concurring or dissenting opinions, if any. (d) Effect of motion. A pending motion for full Board consideration does not affect any obligation to comply with a decision or order. 6101.29 Clerical mistakes; harmless error [Rule 29]. (a) Clerical mistakes. The Board may correct clerical mistakes while a case is pending, or within 60 days thereafter if a decision has not been appealed. If a Board decision is appealed, the Board may correct clerical mistakes only by leave of the appellate Court. (b) Harmless error. The Board disregards errors that do not affect a substantive right of a party. No error in a ruling, order, or decision of the Board will be grounds for a new hearing or for vacating, reconsidering, modifying, or otherwise disturbing a decision or order unless refusing to correct the error will prejudice a party or work a substantial injustice. 6101.30 Award of fees and other expenses [Rule 30]. (a) Application for fees and other expenses. A party in an appeal may apply for an award of fees and other expenses as permitted under EAJA or any other provision that may entitle the party to such an award. (b) Time for filing. A party may file an application for fees and other expenses only after the time to seek appellate review of a Board decision has expired. A party may file an application within 30 calendar days after that date. (c) Application requirements. An application for fees and other expenses shall: (1) Specify the applicant, appeal, and amount sought; (2) Explain why the applicant is legally eligible for an award; (3) Provide a schedule of fees and expenses with supporting documentation; (4) Be signed by the applicant or a person appearing for the applicant, with a declaration under penalty of perjury that the information in the application is correct; (5) Provide evidence of the applicant's small business status or net worth; and (6) Justify any request for attorney fees exceeding the statutory rate. (d) Proceedings. [[Page 13219]] (1) Within 30 days after receiving an application, the respondent may file an answer with any objections to the award requested, supported by facts and legal analysis. (2) The Board may order further proceedings if necessary for a full and fair resolution of issues arising from an application. (e) Decision. The Board will issue a written decision on an application. 6101.31 Payment of award [Rule 31]. When permitted by law, Board awards under contracts may be paid from the permanent indefinite judgment fund under 31 U.S.C. 1304 and 31 CFR part 256. An EAJA award is paid from funds of the respondent. 6101.32 Appeal from Board decision [Rule 32]. (a) Notice. A party filing a notice of appeal with the United States Court of Appeals for the Federal Circuit (or with a district court in an admiralty case) shall provide a copy of the notice to the Board. (b) Record on review. The record on appellate review is the record for decision under Rule 9(a) and any other material in a case file that the appellate Court may require. (c) Certified list. The Clerk will provide the clerk of the appellate Court a certified list as required by the Court's rules. (d) Inspection or copying of record. The Clerk will make a record on appeal available for inspection and copying in accordance with the rules of the appellate Court. 6101.33 Remand from appellate Court [Rule 33]. If a Court remands a case to the Board for further proceedings, each party shall, within 30 days of receipt of the appellate mandate, recommend procedures to comply with the remand order. The Board will then issue an order on further proceedings. 6101.34 Ex parte communications [Rule 34]. No member of the Board or of the Board's staff will communicate with a party about any material issue in a case outside of the presence of the other party, and no one shall attempt such communications on behalf of a party. This rule does not bar such communications about the Board's administrative functions or procedures. 6101.35 Standards of conduct; sanctions [Rule 35]. (a) Standards of conduct. All parties and their representatives, attorneys, and any expert or consultant retained by them or their attorneys shall obey directions and orders of the Board and adhere to standards of conduct applicable to such parties and persons. Standards applying to an attorney include the rules of professional conduct and ethics of the jurisdictions in which the attorney is licensed to practice, to the extent that those rules are relevant to conduct affecting the integrity of the Board, its process, or its proceedings. (b) Sanctions. If a party or its representative, attorney, expert, or consultant fails to comply with any direction or order of 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. Sanctions may include, but are not limited to: (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 who is not at fault; (2) Forbidding the challenge of the accuracy of any evidence; (3) Refusing to allow the party to support or oppose designated claims or defenses; (4) Prohibiting the party from introducing into evidence designated claims or defenses; (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 order for violation thereof, including disqualifying a party's representative, attorney, expert, or consultant from further participation in the case; (8) Drawing evidentiary inferences adverse to the party; or (9) Imposing such other sanctions as the Board deems appropriate. (c) Denial of access to protected material. The Board may in its discretion deny access to protected material to any person found to have previously violated a protective order, regardless of who issued the order. (d) Disciplinary proceedings. (1) Sanctions. The Board may discipline individual party representatives, attorneys, experts, or consultants for violating any Board order, direction, or standard of conduct if the violation seriously affects the integrity of the Board, its process, or its proceedings. Sanctions may be public or private, and may include admonishment, reprimand, disqualification from a particular matter, referral to an appropriate licensing authority, or other action that circumstances may warrant. (2) Suspension. The Board may suspend an individual from appearing before the Board as a party representative, attorney, expert, or consultant, if, after affording such individual notice and opportunity to be heard, a majority of the members of the full Board determine such a sanction is warranted. 6101.36 Board seal [Rule 36]. The seal of the Board is a circular logo with ``Civilian Board of Contract Appeals'' on the outer margin. The seal is a means of authenticating records, notices, orders, dismissals, opinions, subpoenas, and certificates issued by the Board. 6101.37-50 [Reserved] 6101.51 Alternative procedures [Rule 51]. An appellant in an eligible case may elect the small claims procedure under Rule 52 or the accelerated procedure under Rule 53. Parties may jointly elect alternative dispute resolution under Rule 54. 6101.52 Small claims procedure [Rule 52]. (a) Election. The small claims procedure is available solely at an appellant's election, when there is a monetary amount in dispute and either (1) the amount in dispute is $50,000 or less, or (2) the appellant is a small business (under the Small Business Act, 15 U.S.C. 631 et seq., and regulations under that Act) and the amount in dispute is $150,000 or less. An appellant may elect the small claims procedure up to 30 days after receiving the respondent's answer. (b) Procedure. The respondent may object to an election, on the grounds that Rule 52(a) is not satisfied, within 10 days after receiving the election. If the small claims procedure is used, the Board will set a schedule for timely resolution of the appeal. The schedule may restrict or eliminate pleadings, discovery, and other prehearing activities. (c) Decision. The presiding judge may issue a decision in summary form. A decision is final and conclusive, shall not be set aside except for fraud, and is not precedential. If possible, the Board will resolve the appeal within 120 days after the appellant elects the small claims procedure. The Board may extend the appeal schedule if an appellant does not adhere to the established schedule. [[Page 13220]] 6101.53 Accelerated procedure [Rule 53]. (a) Election. The accelerated procedure is available solely at an appellant's election and is limited to appeals in which there is a monetary amount in dispute and that amount is $100,000 or less. The appellant may elect the accelerated procedure up to 30 days after receiving the respondent's answer. (b) Procedure. The respondent may object to an election, on the grounds that Rule 53(a) is not satisfied, within 10 days after receiving the election. If the accelerated procedure is used, the Board will set a schedule for timely resolution of the appeal. The schedule may restrict or eliminate pleadings, discovery, and other prehearing activities. (c) Decision. The presiding judge may issue a decision with the concurrence of at least one panel member. If the presiding judge and a panel member disagree, the panel will decide the appeal. If possible, the Board will resolve the appeal within 180 days after the appellant elects the accelerated procedure. The Board may extend the appeal schedule if an appellant does not adhere to the established schedule. 6101.54 Alternative dispute resolution [Rule 54]. (a) Availability. The CDA states that boards of contract appeals ``shall . . . to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes.'' Resolution of a dispute at the earliest stage feasible, by the fastest and least expensive method possible, benefits both parties. The Board provides alternative dispute resolution (ADR) services for pre-claim and pre- final decision matters, as well as appeals pending before the Board. The Board may also conduct ADR proceedings for any federal agency. The use of ADR proceedings does not toll any statutory time limits. (b) Procedures for requesting ADR. Parties may jointly ask the Board Chair to appoint a judge as an ADR Neutral. The parties may request a particular judge or judges, to include the presiding judge. To facilitate full, frank, and open participation, a Neutral will not discuss the substance of the case or the parties' conduct in ADR with other Board personnel, and a Neutral who participates in a nonbinding ADR procedure that does not resolve the dispute is recused from further participation in the matter unless the parties agree otherwise in writing and the Board concurs. (c) Confidentiality. Written material prepared for use in ADR, oral presentations made in ADR, and all discussions between the parties and the Neutral are confidential, subject to 5 U.S.C. 574, and, unless otherwise specifically agreed by the parties, inadmissible as evidence in any Board proceeding, although evidence otherwise admissible before the Board is not rendered inadmissible merely because of its use in ADR. (d) ADR agreement. Parties shall agree in writing to an ADR method and the procedures and requirements for implementing it. The ADR agreement shall provide that the parties and counsel will not subpoena the Neutral in any legal action or administrative proceeding of any kind to provide documents or testimony relating to the ADR. (e) Types of ADR. Parties and the Board may agree on any type of binding or nonbinding ADR suited to a dispute. 0 2. Revise part 6102 to read as follows: PART 6102--CROP INSURANCE CASES Sec. 6102.201 Scope of rules [Rule 201]. 6102.202 Rules for crop insurance cases [Rule 202]. Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. 438(c)(2). 6102.201 Scope of rules [Rule 201]. These procedures govern the Board's resolution of disputes between insurance companies and the Department of Agriculture's Risk Management Agency (RMA) involving actions of the Federal Crop Insurance Corporation (FCIC). Prior to the creation of this Board, the Department of Agriculture Board of Contract Appeals resolved this variety of dispute pursuant to statute, 7 U.S.C. 1501 et seq. (the Federal Crop Insurance Act), and regulation, 7 CFR 24.4(b) and 400.169. The Board has this authority under an agreement with the Secretary of Agriculture, as permitted under section 42(c)(2) of the Office of Federal Procurement Policy Act, 41 U.S.C. 438(c)(2). 6102.202 Rules for crop insurance cases [Rule 202]. The rules of procedure for these cases are the same as the rules of procedure for Contract Disputes Act appeals, with these exceptions: (a) Rule 1(b). (1) The term ``appeal'' means a dispute between an insurance company that is a party to a Standard Reinsurance Agreement (or other reinsurance agreement) and the RMA, and the term ``appellant'' means the insurance company filing an appeal. (2) A notice of appeal is filed upon its receipt by the Office of the Clerk of the Board, not when it is mailed. (3) The terms ``petition'' and ``petitioner'' do not apply to FCIC cases. (b) Rule 2. (1) Rule 2(a) is replaced with the following for FCIC cases: A notice of appeal shall be in writing and shall be signed by the appellant or by the appellant's attorney or authorized representative. If the appeal is from a determination by the Deputy Administrator of Insurance Services regarding an action alleged not to be in accordance with the provisions of a Standard Reinsurance Agreement (or other reinsurance agreement), or if the appeal is from a determination by the Deputy Administrator of Compliance concerning a determination regarding a compliance matter, the notice of appeal should describe the determination 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 Deputy Administrator's determination. If an appeal is taken from the failure of the Deputy Administrator to make a timely determination, the notice of appeal should describe in detail the matter that the Deputy Administrator has failed to determine; the appellant can satisfy this requirement by attaching to the notice of appeal a copy of the written request for a determination it sent to the Deputy Administrator. (2) In Rule 2(a), the references to ``contracting officer'' are references to ``Deputy Administrator.'' (3) Rule 2(b) does not apply to FCIC cases. (4) In Rule 2(d)(1), an appeal from a determination of a Deputy Administrator shall be filed no later than 90 calendar days after the date the appellant receives that determination. The Board is authorized to resolve only those appeals that are timely filed. (5) In Rule 2(d)(2), an appeal may be filed with the Board if the Deputy Administrator fails or refuses to issue a determination within 90 days after the appellant submits a request for a determination. (c) Rule 4. (1) In Rule 4, the references to ``contracting officer'' are references to ``Deputy Administrator.'' (2) In Rule 4(a), paragraphs (1) through (7), describing materials included in the appeal file, are replaced by the following: (i) The determination of the Deputy Administrator that is the subject of the dispute; [[Page 13221]] (ii) The reinsurance agreement (with amendments or modifications) at issue in the dispute; (iii) Pertinent correspondence between the parties that is relevant to the dispute, including prior administrative determinations and related submissions; (iv) Documents and other tangible materials on which the Deputy Administrator relied in making the underlying determination; and (v) Any additional material pertinent to the authority of the Board or the resolution of the dispute. (3) The following subsection is added to Rule 4: Media on which appeal file is to be submitted. All appeal file submissions, including the index, shall be submitted in two forms: paper and in a text or .pdf format submitted on a compact disk. Each compact disk shall be labeled with the name and docket number of the case. The judge may delay the submission of the compact disk copy of the appeal file until the close of the evidentiary record. (d) Rule 5. In Rule 5(a)(2), the references to ``contracting officer'' are references to ``Deputy Administrator.'' (e) Rule 15. In Rule 15(c), the final sentence does not apply to FCIC cases. (f) Rule 16. Rules 16 (b) through (h) do not apply to FCIC cases. Instead, upon the written request of any party filed with the Office of the Clerk of the Board, or upon the initiative of a judge, a judge is authorized by delegation from the Secretary of Agriculture to request the appropriate United States Attorney to apply to the appropriate United States District Court for the issuance of subpoenas pursuant to 5 U.S.C. 304. (g) Rule 25. In Rule 25(a), the phrase, ``except as allowed by Rule 52,'' does not apply to FCIC cases. (h) Rule 32. Rule 32 (a) through (c) are replaced with the following for FCIC cases: (1) Finality of Board decision. A decision of the Board is a final administrative decision. (2) Appeal permitted. An appellant may file suit in the appropriate United States District Court to challenge the Board's decision. An appellant filing such a suit shall provide the Board with a copy of the complaint. (i) Rule 52. Rule 52 does not apply to FCIC cases. (j) Rule 53. Rule 53 does not apply to FCIC cases. [FR Doc. 2018-06269 Filed 3-27-18; 8:45 am] BILLING CODE 6820-AL-P
![Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Proposed Rules 13211
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litigation. Rules of Procedure for Contract the status or publication schedules,
(6) From subsection (e)(3), because the Disputes Act Cases contact the Regulatory Secretariat at
application of this provision would 202–501–4755. Please cite BCA Case
AGENCY: Civilian Board of Contract 2018–61–1.
provide the subject of an investigation
Appeals; General Services
with substantial information which SUPPLEMENTARY INFORMATION:
Administration (GSA).
could impede or compromise the
ACTION: Proposed rule. A. Background
investigation. Providing such notice to a
subject of an investigation could The Board was established within
SUMMARY: The Civilian Board of GSA by section 847 of the National
interfere with an undercover Contract Appeals (Board) proposes to
investigation by revealing its existence, Defense Authorization Act for Fiscal
amend its rules of procedure for cases Year 2006, Public Law 109–163. Board
and could endanger the physical safety arising under the Contract Disputes Act,
of confidential sources, witnesses, and members are administrative judges
and for disputes between insurance appointed by the Administrator of
investigators by revealing their companies and the Department of
identities. General Services under 41 U.S.C.
Agriculture’s Risk Management Agency 7105(b)(2). Among its other functions,
(7) From subsection (e)(5), because the
in which decisions of the Federal Crop the Board hears and decides contract
application of this provision would
Insurance Corporation are brought disputes between Government
prevent the collection of any data not
before the Board under the Federal Crop contractors and most civilian Executive
shown to be accurate, relevant, timely,
Insurance Act. The Board’s current rules agencies under the Contract Disputes
and complete at the moment it is
were issued in 2008 and were last Act, 41 U.S.C. 7101–7109, and its
collected. In the collection of
amended in 2011. implementing regulations, and disputes
information for law enforcement
purposes, it is impossible to determine DATES: Interested parties should submit pursuant to the Federal Crop Insurance
in advance what information is written comments to the Regulatory Act, 7 U.S.C. 1501 et seq., between
accurate, relevant, timely, and complete. Secretariat Division at one of the insurance companies and the
Material that may seem unrelated, addresses shown below on or before Department of Agriculture’s Risk
irrelevant, or incomplete when collected May 29, 2018 to be considered in the Management Agency (RMA) involving
may take on added meaning or formation of the final rule. actions of the Federal Crop Insurance
significance as an investigation ADDRESSES: Submit comments in Corporation (FCIC).
progresses. The restrictions of this response to CBCA Amendment 2018– The Board’s rules of procedure for
provision could interfere with the 01, BCA Case 2018–61–1, by any of the Contract Disputes Act cases and Federal
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preparation of a complete investigative following methods: Crop Insurance Act cases were adopted
report, and thereby impede effective law • Regulations.gov: http:// in May 2008 (73 FR 26947) and were
enforcement. www.regulations.gov. Submit comments last amended in August 2011 (76 FR
(8) From subsection (e)(8), because to via the Federal eRulemaking portal by 50926). The proposed rule simplifies
require individual notice of disclosure searching for ‘‘BCA Case 2018–61–1.’’ and modernizes access to the Board by
of information due to compulsory legal Select the link ‘‘Comment Now’’ that establishing a preference for electronic
process would pose an impossible corresponds with ‘‘BCA Case 2018–61– filing, increases conformity between the
administrative burden on OIG and may 1.’’ Follow the instructions provided at Board’s rules and the Federal Rules of
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Civil Procedure, streamlines the Board’s rules again. Practicioners before F. Executive Order 13771
wording of the Board’s rules, and the Board are familiar with or can Executive Order 13771, dated
clarifies current rules and practices. readily research current principles of February 3, 2017, sets deregulatory goals
The proposed rule makes stylistic or Federal civil procedure. for agencies and requires the rescission
other changes to Board Rules 1–35, 51– • The appendix is deleted. It of two regulations for each new
54, and 202. In addition, the Board will contained Forms 1 through 5, which regulation issued. This proposed rule is
provide template forms for certain litigants could elect to use as templates not a new regulation, but an update to
filings on its website rather than as an for certain filings. These nonmandatory the Board’s existing rules of procedure,
appendix to its rules. Proposed changes forms are obsolete or will be posted on so Executive Order 13771 does not
to the Board’s rules of procedure the Board’s website.
include: apply.
• Rule 4, Appeal file, is revised to • Rule 202 is revised to update cross- List of Subjects in 48 CFR Parts 6101
make filing documentary evidence references to the rules of procedure for and 6102
electronically in pdf format, rather than Contract Disputes Act cases.
on paper, the default for Contract Administrative practice and
B. Regulatory Flexibility Act procedure; Government procurement;
Disputes Act cases.
• Rule 6, governing pleadings, is GSA certifies that this proposed rule Agriculture.
revised to require the opposing party’s will not have a significant economic Dated: March 20, 2018.
consent to amend a pleading once impact on a substantial number of small Jeri Kaylene Somers,
without permission of the Board. This entities within the meaning of the Chair, Civilian Board of Contract Appeals,
change is appropriate to practice under Regulatory Flexibility Act, 5 U.S.C. 602 General Services Administration.
the Contract Disputes Act, as it will et seq., and the Small Business Therefore, GSA proposes to amend 48
encourage opposing parties to raise any Regulatory Enforcement Fairness Act of CFR parts 6101 and 6102 as set forth
objections they may have to the Board’s 1996, Public Law 104–121, because the below:
jurisdiction under the Act to hear new proposed rule does not impose any ■ 1. Revise part 6101 to read as follows:
claims or defenses. additional costs on small or large
• Rule 8, Motions, is revised to, businesses. PART 6101—RULES OF PROCEDURE
among other things, extend from 20 OF THE CIVILIAN BOARD OF
days to 30 days the time to file a brief C. Paperwork Reduction Act
CONTRACT APPEALS
in opposition to a substantive motion; The Paperwork Reduction Act, 44
set a deadline to respond to a U.S.C. 3501 et seq., does not apply
Sec.
procedural motion; and replace the term 6101.1 General information; definitions
because proposed rule does not impose [Rule 1].
‘‘summary relief’’ with the more any information collection requirements
common ‘‘summary judgment.’’ 6101.2 Filing appeals, applications, and
that require the approval of the Office of petitions; consolidation [Rule 2].
• Rule 9 is reorganized to clarify that
Management and Budget. 6101.3 Computing and extending time
the record on the basis of which the [Rule 3].
Board will decide a case under the D. Congressional Review Act 6101.4 Appeal file [Rule 4].
Contract Disputes Act consists of 6101.5 Appearing; notice of appearance
evidence and other materials that are The proposed rule is exempt from
[Rule 5].
not evidence. Congressional review under Public Law 6101.6 Pleadings; amending pleadings
• Rule 12, Stays and dismissals, is 104–121 because it relates solely to [Rule 6].
revised to eliminate a provision for agency organization, procedure, and 6101.7 Service of documents [Rule 7].
suspending (rather than staying) a case, practice and does not substantially 6101.8 Motions [Rule 8].
and a provision purporting to convert a affect the rights or obligations of non- 6101.9 Record; content and access [Rule 9].
voluntary dismissal without prejudice agency parties. 6101.10 Admissibility of evidence [Rule
10].
to a dismissal with prejudice after 180 E. Executive Orders 12866 and 13563 6101.11 Conferences [Rule 11].
days. The provisions being eliminated 6101.12 Stays and dismissals [Rule 12].
are potentially misleading in light of the Executive Orders (E.O.s) 12866 and 6101.13 Discovery generally [Rule 13].
strict limits on the Board’s jurisdiction 13563 direct agencies to assess all costs 6101.14 Interrogatories; requests for
under the Contract Disputes Act, and and benefits of available regulatory production; requests for admission [Rule
are rarely used. alternatives and, if regulation is 14].
• Several rules are revised to cross- necessary, to select regulatory 6101.15 Depositions [Rule 15].
reference and incorporate standards of approaches that maximize net benefits 6101.16 Subpoenas [Rule 16].
corresponding Rules of the Federal (including potential economic, 6101.17 Exhibits [Rule 17].
Rules of Civil Procedure. See proposed environmental, public health and safety 6101.18 Election of hearing or record
submission [Rule 18].
Rule 13(b) and (c), concerning the scope effects, distributive impacts, and 6101.19 Record submission without a
of discovery; Rule 14(b), Interrogatories; equity). E.O. 13563 emphasizes the hearing [Rule 19].
Rule 14(d), Requests for admission; Rule importance of quantifying both costs 6101.20 Scheduling hearings [Rule 20].
14(f), Supplementing and correcting and benefits, of reducing costs, of 6101.21 Hearing procedures [Rule 21].
(discovery) responses; Rule 15(b), on the harmonizing rules, and of promoting 6101.22 Transcripts [Rule 22].
use of depositions; Rule 16(b), (e), and flexibility. This is not a significant 6101.23 Briefs [Rule 23].
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(f), on the issuance, service, and review regulatory action and, therefore, was not 6101.24 Closing the record [Rule 24].
of subpoenas; Rule 26, Reconsideration; subject to review under Section 6(b) of 6101.25 Decisions and settlements [Rule
and Rule 27, Relief from decision or E.O. 12866, Regulatory Planning and 25].
6101.26 Reconsideration [Rule 26].
order. These changes will allow the Review, dated September 30, 1993, or 6101.27 Relief from decision or order [Rule
Board to adopt and apply case law E.O. 13563, Improving Regulation and 27].
applying the relevant Federal Rules, as Regulatory Review, dated January 18, 6101.28 Full Board consideration [Rule 28].
well as any future amendments to those 2011. This proposed rule is not a major 6101.29 Clerical mistakes; harmless error
Federal Rules, without revising the rule under 5 U.S.C. 804. [Rule 29].
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6101.30 Award of fees and other expenses Clerk of the Board. The ‘‘Clerk’’ of the Procedure to resolve issues not covered
[Rule 30]. Board receives filings, dockets cases, by these rules.
6101.31 Payment of award [Rule 31]. and prepares official correspondence for (d) Panels. The Board assigns each
6101.32 Appeal from Board decision [Rule case to a panel of three judges, one of
32].
the Board.
6101.33 Remand from appellate Court [Rule Efile; efiling. The Clerk accepts whom presides. The presiding judge
33]. electronic filings (‘‘efiles’’), meaning sets the case schedule, oversees
6101.34 Ex parte communications [Rule documents submitted through the discovery, and conducts conferences,
34]. Board’s email system (‘‘efiled’’). Parties hearings, and other proceedings. The
6101.35 Standards of conduct; sanctions may efile documents by sending an presiding judge may without
[Rule 35]. email (usually with attachments) to participation by other panel members
6101.36 Board seal [Rule 36]. decide any appeal under the small
cbca.efile@cbca.gov, except for
6101.37–6101.50 [Reserved].
6101.51 Alternative procedures [Rule 51]. documents that are classified or claims procedure of Rule 52, any
6101.52 Small claims procedure [Rule 52]. submitted in camera or under protective nondispositive motion, or any petition,
6101.53 Accelerated procedure [Rule 53]. order (Rule 9). Efiling occurs upon and may dismiss a case as permitted by
6101.54 Alternative dispute resolution receipt by the Board’s email server, Rule 12(d). The Board decides all other
[Rule 54]. except that attachments must be in .pdf matters by majority vote of a panel
Authority: 41 U.S.C. 7101–7109. format and 18 megabytes (MB) or unless the full Board decides a matter
smaller or they will be rejected. under Rule 28. Only panel and full
6101.1 General information; definitions Electronically stored information. Board decisions are precedential.
[Rule 1]. ‘‘Electronically stored information’’ (e) Location and addresses. The Board
(a) Scope. The rules of this chapter means information created, is physically located at 1800 M Street
govern cases filed with the Board on or manipulated, communicated, stored, NW, 6th Floor, Washington, DC 20036.
after [DATE], and all further and best used in digital form with The mailing address is 1800 F Street
proceedings in cases then pending, computer hardware and software. NW, Washington, DC 20405. The Clerk’s
unless the Board decides that using Equal Access to Justice Act (EAJA), 5 telephone number is (202) 606–8800.
these rules in a case pending on their U.S.C. 504. This statute governs The Clerk’s fax number is (202) 606–
effective date would be inequitable or applications for awards of fees and other 0019. The Clerk’s email address for
infeasible. The Board may alter these expenses in certain cases. efiling is cbca.efile@cbca.gov. The
procedures on its own initiative or on Facsimile (fax) transmissions. The Board’s website is http://www.cbca.gov.
request of a party to promote the just, Board sends and accepts facsimile (f) Clerk’s office hours. The Clerk’s
informal, expeditious, and inexpensive transmissions. A document is filed by office is open to the public during
resolution of a case. fax at the time the Board receives all of business hours (Rule 1(b)). Efilings
(b) Definitions. it. The Board does not automatically received after midnight are considered
Appeal; appellant. ‘‘Appeal’’ means a extend filing deadlines if its fax filed the next business day. The Clerk’s
contract dispute filed with the Board machine is busy or otherwise office is closed when the Board’s
under the Contract Disputes Act (CDA), unavailable. physical address is closed for any
41 U.S.C. 7101–7109, or under a Filing. A notice of appeal or reason, including any closure of the
disputes clause in a non-CDA contract application is filed upon the earlier of federal Government in the Washington,
that allows for Board review. An its receipt by the Clerk or, if mailed DC, metropolitan area.
‘‘appellant’’ is the contractor filing an through the United States Postal Service
appeal. 6101.2 Filing appeals, applications, and
(USPS), the date it is mailed to the petitions; consolidation [Rule 2].
Appeal file. ‘‘Appeal file’’ means the
Board. A USPS postmark is prima facie (a) Filing an appeal. A notice of
submissions to the Board under Rule 4.
Application; applicant. ‘‘Application’’ evidence of a mailing date. Any other appeal shall be in writing; signed by the
means a submission to the Board under document is filed upon receipt by the appellant, the appellant’s attorney, or an
Rule 30 of a request for an award of fees Clerk. authorized representative (see Rule 5);
and other expenses under the Equal Party. ‘‘Party’’ means an appellant, and filed with the Board, with a copy to
Access to Justice Act (EAJA), 5 U.S.C. applicant, petitioner, or respondent. the contracting officer who received or
504, or another provision authorizing Petition; petitioner. ‘‘Petition’’ means issued the claim, or the successor
such an award. An ‘‘applicant’’ is a a request that the Board direct a contracting officer. A notice of appeal
party filing an application. contracting officer to issue a written should include:
Attorney. ‘‘Attorney’’ means a person decision on a claim. A ‘‘petitioner’’ is a (1) The name, telephone number, and
licensed to practice law in a state, party submitting a petition. mailing and email addresses of the
commonwealth, or territory of the Receipt. The Board deems a party’s appellant and/or its attorney or
United States or in the District of ‘‘receipt’’ of a document to occur upon authorized representative;
Columbia. the earlier of the emailing of the (2) The contract number;
Board judge; judge. ‘‘Board judge’’ or document to the party’s email address of (3) The name of the contracting officer
‘‘judge’’ means a member of the Board. record (without notice of delivery who received or issued the claim, with
Business days and hours. The Board’s failure) or the party’s possession of a that person’s telephone number, mailing
business days are days other than document sent by other means. address, and email address;
Saturdays, Sundays, federal holidays, Respondent. A ‘‘respondent’’ is the (4) A copy of the claim with any
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days on which the Board is required to government agency whose decision, certification; and
close before 4:30 p.m., or days on which action, or inaction is the subject of an (5) A copy of the contracting officer’s
the Board does not open for any reason, appeal, petition, or application. decision on the claim or a statement that
such as inclement weather. The Board’s (c) Construction. The Board construes the appeal is from a failure to issue a
business hours are 8:00 a.m. to 4:30 p.m. these rules to promote the just, informal, decision (‘‘a deemed denial’’).
Eastern Time. expeditious, and inexpensive resolution (b) Filing a petition. A petition shall
Case. ‘‘Case’’ means an appeal, of every case. The Board may apply be in writing; signed by the petitioner,
petition, or application. principles of the Federal Rules of Civil the petitioner’s attorney, or an
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authorized representative (see Rule 5); practicable. However, the Board extends (1) Appeal files and supplements
and filed with the Board, with a copy to time when appropriate. A motion for an thereto may be filed on paper only by
the contracting officer who received the extension shall be in writing and shall permission of the Board.
claim, or the successor contracting state the other party’s position on the (2) Appeal file exhibits shall be
officer. A petition shall ask the Board to motion or describe the movant’s effort to complete, legible, arranged in
order the contracting officer to issue a learn the other party’s position. The chronological order, tabbed, and
decision and should include: Board cannot extend statutory indexed. Parties shall avoid filing
(1) The name, telephone number, and deadlines. duplicative exhibits and shall number
mailing and email addresses of the exhibits continuously and consecutively
petitioner and/or its attorney or 6101.4 Appeal file [Rule 4]. from one filing to the next, so a
authorized representative; (a) Filing. Within 30 days after complete appeal file consists of one set
(2) The contract number; receiving the Board’s docketing notice, of consecutively tabbed exhibits.
(3) The name of the contracting officer the respondent shall file and serve all (3) Parties shall number the pages of
who received the claim, with that documents relevant to the appeal, each paper exhibit consecutively, unless
person’s telephone number, mailing including: an exhibit is already paginated in
address, and email address; and (1) The contracting officer’s decision another logical manner.
(4) A copy of the claim with any on the claim; (4) Parties shall file exhibits in 3-ring
certification. (2) The contract, including all binders with spines no wider than 3
(c) Filing an EAJA application. See pertinent specifications, amendments, inches, labeled on the cover and spine
Rule 30. plans, drawings, and incorporated with the name of the appeal, CBCA
(d) Time limits. proposals or parts thereof; number, and tab numbers in each
(1) Under the CDA, a notice of appeal (3) All correspondence between the binder. Include in each binder the index
must be filed within 90 calendar days parties relevant to the appeal; of the entire filing.
after the date of receipt of a contracting (4) The claim with any certification; (5) The appeal file index shall
officer’s decision on a claim. (5) Relevant affidavits, witness describe each exhibit by date and
(2) Alternatively, under the CDA, a statements, or transcripts of testimony content.
contractor may appeal when a taken before the appeal; (6) Parties shall separately file and
contracting officer has not issued a (6) All documents relied on by the index documents submitted in camera
decision on a claim within the time contracting officer to decide the claim; or under a protective order. However,
allowed by the CDA or the time set by and documents may be submitted in camera
a tribunal acting on a petition. (7) Relevant internal memoranda, only by permission of the Board.
(3) Under the CDA, a petition may be reports, and notes. (d) Supplements. Within 30 days after
filed in the period between (a) receipt of (b) Organization of electronic appeal the respondent files the appeal file, the
notice from a contracting officer, within file. appellant may file non duplicative
60 days after the submission of a claim, (1) Unless otherwise ordered, parties documents relevant to the claim,
that the contracting officer intends to shall file the appeal file and organized as instructed in Rule 4(b) or
issue a decision on the claim more than supplements thereto in an electronic (c), starting with the next available
60 days after its submission, and (b) the storage medium (e.g., hard disk or solid exhibit number.
due date stated by the contracting state drive, compact disc (CD), or digital (e) Classified or protected material.
officer. versatile disc(DVD)), labeled with the Neither classified nor protected material
(4) Under EAJA, an application must docket number, case name, and range of may be efiled.
be filed within 30 days after the date exhibit numbers. (f) Submission by order. The Board
that the decision in the underlying (2) A party may efile an appeal file or may order a party to supplement the
appeal becomes no longer subject to a supplement thereto by permission of appeal file, including by filing an
appeal. the Board. exhibit in another format.
(e) Notice of docketing. Upon receipt (3) Appeal file exhibits shall be in (g) Status of exhibits. The Board
of a notice of appeal, a petition, or an .pdf format or will be rejected. The considers appeal file exhibits part of the
application, the Clerk issues a written appeal file index and each exhibit shall record for decision under Rule 9(a)
notice of docketing to all parties. be separate documents, without unless a party objects to an exhibit
(f) Consolidation. The Board may embedded documents. within the time set by the Board and the
consolidate cases wholly or in part if (4) Appeal file exhibits shall be Board sustains the objection.
they involve common questions of law complete, legible, arranged in (h) Other procedures. The Board may
or fact. chronological order, numbered, and postpone or waive the filing of an
indexed. Parties shall avoid filing appeal file.
6101.3 Computing and extending time duplicative exhibits and shall number
[Rule 3]. exhibits continuously and consecutively 6101.5 Appearing; notice of appearance
(a) Computing time. Consistent with from one filing to the next, so that a [Rule 5].
Rule 6 of the Federal Rules of Civil complete appeal file consists of one set (a) Appearing before the Board.
Procedure, in computing any time of consecutively numbered exhibits. (1) Appellant; petitioner; applicant.
period, omit the day of the event from (5) Parties shall number the pages of An appellant, petitioner, or applicant
which the period begins to run. Omit each exhibit consecutively, unless an may appear before the Board through an
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nonbusiness days only if the period is exhibit is already paginated in another attorney. An individual appellant,
less than 11 days; otherwise include logical manner. petitioner, or applicant may appear for
them. A period ends on a business day. (6) The appeal file index shall himself or herself. A corporation, trust,
If a computed period would otherwise describe each exhibit by date and or association may appear by one of its
end on a nonbusiness day, it ends on content. officers. A limited liability corporation,
the next business day. (7) Parties may file documents in partnership, or joint venture may appear
(b) Extensions. Parties should act camera only by permission of the Board. by one of its members. Each individual
sooner than required whenever (c) Organization of paper appeal file. appearing on behalf of an appellant,
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petitioner, or applicant must have legal Board may allow a party to amend a exhibits, admissions in pleadings, and/
authority to appear. pleading in other circumstances. or evidence filed with the motion.
(2) Respondent. A respondent may (d) Motion in lieu of answer. The (2) Statement of genuine issues. The
appear before the Board through an Board may allow a party to file a opposing party shall file with its
attorney or, if allowed by the agency, by dispositive motion or to move for a opposition a separate document titled,
the contracting officer or the contracting more definite statement in lieu of filing ‘‘Statement of Genuine Issues.’’ This
officer’s authorized representative. an answer. document shall respond to specific
(3) Others. The Board may permit a paragraphs of the movant’s Statement of
6101.7 Service of documents [Rule 7]. Undisputed Material Facts by
special or limited appearance of or for
a nonparty, such as an amicus curiae. A party filing any document not identifying material facts in genuine
submitted in camera (see Rule 9(c)(2)) dispute, citing appeal file exhibits,
(b) Notice of appearance. The Board
shall send a copy to the other party by admissions in pleadings, and/or
deems the person who signed a notice
a method at least as fast as the filing evidence filed with the opposition.
of appeal, petition, or application to
method. The filing party shall indicate (g) Briefing. A party may file a brief
have appeared for the appellant,
the method and address of service, in opposition to a motion under Rule
petitioner, or applicant. The Board
otherwise the Board may consider a 26, Rule 27, Rule 28, or Rule 29 only by
deems the head of the respondent’s
document not served and not properly permission of the Board. Unless
litigation office to have appeared for the
filed. otherwise ordered, a brief in opposition
respondent unless otherwise notified.
Other participating attorneys shall file to any other nonprocedural motion is
6101.8 Motions [Rule 8].
notices of appearance including all of due 30 days after receipt of the motion,
(a) Generally. A party may make a and a movant’s reply brief is due 15
the information required by the sample motion for a Board action orally on the
notice of appearance posted on the days after receipt of an opposition brief.
record in the presence of the other party A nonmovant may file a surreply only
Board’s website. Attorneys representing or in a written filing. A written motion
parties before the Board shall list their by permission of the Board. Unless
shall be a document titled as a motion otherwise ordered, a brief in opposition
bar numbers or other identifying data and shall state the relief sought and the
for each state bar to which they are to a procedural motion is due 5 days
legal basis (see Rule 23(b)). Except for after receipt of the motion, and there
admitted. joint or dispositive motions, all motions shall be no reply.
(c) Withdrawal of appearance. shall represent that the movant tried to (h) Effect of pending motion. Unless
Anyone who has filed a notice of resolve the motion with the other party otherwise stated in these rules, the filing
appearance and wishes to withdraw before filing. The Board may hold oral of a motion does not affect a party’s
from a case must file a motion argument on a motion. obligations under the Board’s rules or
identifying by name, telephone number, (b) Jurisdictional motions. A party orders.
mailing address, and email address the challenging the Board’s jurisdiction
person who will assume responsibility should file such a motion promptly. 6101.9 Record; content and access [Rule
for representing the party in question. (c) Procedural motions. A party may 9].
The motion must state grounds for move for an extension of time (Rule (a) Record for decision. The record on
withdrawal, unless the motion 3(b)). The Board may in its discretion which the Board will decide a case
represents that the party in question consider motions on other procedural includes the following:
will meet the existing case schedule. matters. A procedural motion shall state (1) Evidence. Evidence in a case
the other party’s position on the motion includes:
6101.6 Pleadings; amending pleadings a. Rule 4 appeal file exhibits other
[Rule 6].
or describe the movant’s effort to learn
the other party’s position. than those to which an objection is
(a) Complaint. Within 30 days after (d) Discovery motions. See Rule 13(e). sustained;
receiving the notice of docketing, the (e) Motions to dismiss for failure to b. Other documents or parts thereof
appellant shall file a complaint stating state a claim. A party may move to admitted as evidence;
in simple, concise, and direct terms the dismiss all or part of a claim for failure c. Tangible things admitted as
factual basis for each claim and the to state grounds on which the Board evidence;
amount in controversy. Alternatively, could grant relief. In deciding such d. Transcripts or recordings of
the appellant or the Board may motions, the Board looks to Rule testimony before the Board; and
designate as a complaint the notice of 12(b)(6) of the Federal Rules of Civil e. Factual stipulations and factual
appeal, a claim submission, or any other Procedure for guidance. admissions.
document containing the information (2) Other material. The Board may
(f) Summary judgment motions. A
required in a complaint. The Board may also rely on to decide a case:
party may move for summary judgment a. The notice of appeal, petition, or
in its discretion order a respondent on all or part of a claim or defense if the
asserting a claim to file a complaint. application;
party believes in good faith it is entitled b. The complaint, answer, and
(b) Answer. Within 30 days after to judgment as a matter of law based on amendments thereto;
receiving the complaint or a designation undisputed material facts. In deciding c. Motions and briefs on motions;
of a complaint, the respondent (or the motions for summary judgment, the d. Other briefs;
appellant, if so ordered) shall file an Board looks to Rule 56 of the Federal e. Demonstrative hearing exhibits; and
answer stating in simple, concise, and Rules of Civil Procedure for guidance. f. Anything else the Board may
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direct terms its responses to the (1) Statement of undisputed material expressly admit or take notice of.
allegations of the complaint and any facts. The movant shall file with its (b) Other contents of case file. The
affirmative defenses it chooses to assert. summary judgment motion a separate Board’s administrative record may be
(c) Amendments. A party may amend document titled, ‘‘Statement of broader than the record for decision.
a pleading once, before a responsive Undisputed Material Facts.’’ This Material in the Board’s case file that is
pleading is filed, with permission of the document shall set forth facts not listed in Rule 9(a) is part of the
other party. Amending a pleading supporting the motion in separate, administrative record but is not part of
restarts the time to respond, if any. The numbered paragraphs, citing appeal file the record for decision.
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(c) Enlarging or reopening the record. memorializing a conference, a party has date that its response to the discovery
The Board may enlarge or reopen the 5 days from receipt of the memorandum request is due.
record for decision on terms fair to the or order to object in writing to the (2) Duty to cooperate. Parties shall try
parties. memorialization. in good faith to resolve objections to
(d) Protected and in camera discovery requests without involving
submissions. The Board may limit 6101.12 Stays and dismissals [Rule 12]. the Board. The Board may impose an
access to specified material in a record (a) Stays. The Board may stay a case appropriate sanction under Rule 35 on
for decision. for a specific duration, or until a a party that does not meet its discovery
(1) Protective orders. The Board may specific event, for good cause. obligations.
limit access to specified material in a (b) Dismissals. (3) Motions to compel. A party may
record for decision if the Board finds (1) Generally. The Board may dismiss move to compel a response or a
good cause to treat the material as a case or part of a case either on motion supplemental response to a discovery
privileged, confidential, or otherwise of a party or after permitting a response request. The movant shall attach to its
sensitive. to an order to show cause. Dismissal is motion a copy of each discovery request
(2) In camera submissions. The Board with prejudice unless a Board order or and response at issue, and shall
may allow a party to submit a document other applicable law provides represent in the motion that the movant
solely for the Board’s review in camera otherwise. complied with Rule 13(e)(2).
if: (2) Voluntary dismissal. Subject to (f) Subpoenas. A party may request a
a. The party submits the document to Rule 12(b)(3), the Board will dismiss all subpoena under Rule 16.
explain a discovery dispute; or part of a case on the terms requested
6101.14 Interrogatories; requests for
b. The Board denies a motion for if the appellant, petitioner, or applicant production; requests for admission [Rule
protective order, and the movant asks moves for dismissal with prejudice or 14].
that the record include a document that moves jointly with the respondent for (a) Generally. Interrogatories, requests
the party would have used in the case dismissal with or without prejudice. for production, requests for admission,
with a protective order, for possible (3) For lack of jurisdiction. If the and responses thereto shall be in writing
later review of the Board’s denial; or Board finds that it lacks jurisdiction to and served on the other party.
c. Good cause exists to find that in decide all or part of a case, the Board (b) Interrogatories. Interrogatories
camera review may limit or prevent will dismiss the case or the part of the shall be answered or objected to
needless harm to a party, witness, or case, regardless of the parties’ positions separately in writing, under signed oath,
other person. on jurisdiction or dismissal. within 30 days of service. A party may
(3) Status in record. A document (4) For failure to prosecute. The Board answer an interrogatory by specifying
submitted and accepted under a may dismiss all or part of a case for records from which the answer may be
protective order or in camera is part of failure to prosecute. derived or ascertained when that
the record for decision. If the Board’s (c) Dismissal orders and decisions. response would be allowed under Rule
decision is judicially reviewed, the The presiding judge acting alone may 33(d) of the Federal Rules of Civil
Board will endeavor to preserve the stay a case or grant voluntary dismissal Procedure.
protected or in camera nature of the with or without prejudice. A panel or (c) Requests for production.
document to the extent consistent with the full Board may dismiss a case on Responses and objections to requests for
judicial review. other grounds. production, inspection, and/or copying
(e) Review and copying. The Clerk (d) Admonition. Dismissal of a party’s of documents, electronically stored
makes records for decision, except case without prejudice does not information, or tangible things are due
evidence submitted under a protective necessarily mean that the party may within 30 days of service of the requests
order or in camera, available for review later refile the case at the Board, or in and shall state when and how the
on reasonable notice during business another forum, under the jurisdictional responding party will make responsive
hours, and provides copies of such and procedural laws applicable to the material available.
available documents for a reasonable case. (d) Requests for admission.
fee. The Clerk will not relinquish (1) Content. A party may serve
6101.13 Discovery generally [Rule 13]. requests for admission that would be
possession of material in the Board’s
files. (a) Methods. Parties may obtain proper under Rule 36(a)(1) of the
discovery by depositions, Federal Rules of Civil Procedure.
6101.10 Admissibility of evidence [Rule interrogatories, requests for production, (2) Responses and failure to respond.
10]. and requests for admission. Responses and objections shall comply
The Board may in its discretion (b) Scope. Unless otherwise ordered, with Rule 36(a)(4) and (5) of the Federal
receive any evidence to which no party the scope of discovery is the same as Rules of Civil Procedure. If the served
objects. In ruling on evidentiary under Rule 26(b)(1) of the Federal Rules party does not respond within 30 days
objections, the Board is guided but not of Civil Procedure. of service of a request, the Board may
bound by the Federal Rules of Evidence, (c) Limits. The Board may limit the on motion deem a matter admitted and
except that the Board generally admits frequency or extent of discovery for a conclusively established solely for the
hearsay unless the Board finds it reason stated in Rule 26(b)(2) of the pending case.
unreliable. Federal Rules of Civil Procedure. (3) Relief from admission. The Board
(d) Timing. The Board encourages may allow a party to withdraw or
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6101.11 Conferences [Rule 11]. parties to agree on a discovery plan that amend an admission for good cause.
The Board may order a conference of the Board may adopt in a scheduling (e) Altering time to respond. The
the parties for any purpose. Conferences order. The Board may modify an agreed parties may agree to alter deadlines to
are usually telephonic and are rarely discovery plan. respond to discovery requests. The
recorded or transcribed. No one may (e) Disputes. Board may alter the deadlines to meet
record a conference by any means (1) Objections. A party objecting to a the needs of a case.
without Board approval. If the Board written discovery request must make the (f) Supplementing and correcting
issues a memorandum or order objection in writing no later than the responses. A party must supplement or
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correct a response to a discovery request to quash or modify the subpoena for a hearing, the Board will set a schedule
if and when this action would be reason stated in Rule 45(d)(3) of the for the parties to complete the
required by Rule 26(e)(1) of the Federal Federal Rules of Civil Procedure. The evidentiary record and file briefs.
Rules of Civil Procedure. Board may rule on the motion anytime (b) Evidence and objections. When a
after the party that served the subpoena party elects submission on the record
6101.15 Depositions [Rule 15]. receives the motion. without a hearing, that party may
(a) Generally. Unless otherwise (g) Enforcement. As necessary, the submit material for inclusion in the
ordered, parties may take depositions Board may ask the Attorney General of record no later than the date the party
after service of the answer. If the parties the United States to petition a United files its initial brief. Unless otherwise
agree in writing on the deponent, time, States district court to enforce a Board ordered, the other party may object to
place, recording method, and maximum subpoena. the admission of such material as
duration of a deposition, no formal (h) Letter rogatory in lieu of subpoena. evidence within 5 days after receiving
deposition notice is needed. The Board If a person to be subpoenaed resides in the submission. If one party elects a
may order a deposition on motion under a foreign country, the Board may hearing and the other party elects record
Rule 8 or by subpoena under Rule 16. facilitate the issuance of a letter rogatory submission (or makes a hybrid election
(b) Use. Parties may use deposition to the person by the United States under Rule 18(b)), the evidentiary
testimony in a case to the extent that Department of State under 28 U.S.C. record shall close at the end of the
would be permitted by Rule 32(a) of the 1781–1784. hearing. The Board may rule on
Federal Rules of Civil Procedure. objections either before or in its
(c) To perpetuate testimony. If the 6101.17 Exhibits [Rule 17].
(a) Marking exhibits. Unless otherwise decision.
Board has decided a case, and either the
ordered, parties shall, to the fullest (c) Briefs and argument. The Board
time to appeal has not expired or an
extent practicable, submit exhibits for may receive briefs and/or oral argument
appeal has been taken, the Board may
inclusion in the appeal file before a on a record submission. If one party
for good cause grant leave to take a
hearing starts under Rule 20 or before elects a hearing and the other party
deposition as if the case were still before
the first brief is filed when a case is elects record submission, the first brief
the Board in order to preserve testimony
submitted on the written record under of the party submitting its case on the
for possible further proceedings before
Rule 19. Parties shall mark any exhibits record shall be due no later than the
the Board.
offered in evidence thereafter as start of the hearing.
6101.16 Subpoenas [Rule 16]. sequential additions to the appeal file. 6101.20 Scheduling hearings [Rule 20].
(a) Expectation of cooperation in lieu Such exhibits shall become part of the
of subpoena. Subpoenas should rarely appeal file if admitted as evidence. (a) Generally. The Board will set the
be necessary, as the Board expects (b) Copies. The Board expects all time, place, duration, and subject matter
parties to respond cooperatively to document exhibits to be true, complete, of a hearing in a written order after
discovery requests and to try in good and legible copies rather than originals. consulting with the parties.
faith to secure the cooperation of third The Board may order a party to (b) Subject matter. The Board may
parties who have or may have evidence substitute a better copy or to make an schedule for hearing all or some of the
responsive to discovery requests. original document available for claims or issues in a case, or all or some
(b) Generally. The Board may issue a inspection. of the claims, issues, or questions of fact
subpoena for a purpose for which a (c) Withdrawal. The Board may allow or law common to more than one case.
United States district court may issue a a party to withdraw an exhibit from the (c) Unexcused absence. If a party fails
subpoena under Rule 45(a)(1) of the appeal file and the record for decision without good excuse to appear at a
Federal Rules of Civil Procedure. Parties on terms fair to the other party. hearing of which it received notice
and the Board shall take all reasonable (d) Disposition. Unless the Board under this rule, the Board will deem
steps to avoid imposing undue burden advises the parties of another deadline, that party to have elected to submit its
on a person subject to a subpoena. the Board may discard physical (non- case on the record under Rule 19.
(c) How requested; form. A party may electronic) exhibits in its possession 90
days after the time to appeal the Board’s 6101.21 Hearing procedures [Rule 21].
ask the Board to issue a subpoena by
motion under Rule 8, substantially decision in the case expires. (a) Generally. The Board generally
before the proposed compliance date. holds hearings in public hearing rooms.
6101.18 Election of hearing or record Except as necessary under a protective
The movant shall attach to its motion a submission [Rule 18].
completed subpoena form for signing by order or in camera procedures, hearings
(a) Generally. The Board will hold a are open to the public. The Board
a Board judge, and shall explain in the hearing in a case if the Board must find
motion why the proposed subpoena entrusts the conduct of hearings to the
facts and either party elects a hearing. discretion of the presiding judge.
scope is reasonable and how the A party may elect to submit its case for
evidence sought is relevant to the case. (b) Witnesses, evidence, other
decision on the written record under exhibits. A party that intends to offer
(d) Production cost. The Board’s Rule 19. The presiding judge will set the
policy is to require a requesting party to testimony, other evidence, or other
deadline for an election under this rule. material for the record at a hearing shall
advance a subpoenaed person the (b) Hybrid election. A party may elect
reasonable cost of producing arrange for the witness, evidence, or
to submit its case on the written record
subpoenaed material. other material to be present in the
under Rule 19 and also elect to appear
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(e) Service. The requesting party shall hearing room. The Board may in its
at a hearing, solely to cross-examine the
serve a subpoena and provide proof of discretion allow testimony by telephone
other party’s witnesses and to object to
service as would be required by Rule or video.
evidence offered at the hearing.
45(b) of the Federal Rules of Civil (c) Exclusion of witnesses. The Board
Procedure. 6101.19 Record submission without a may exclude witnesses from a hearing,
(f) Motion to quash or modify. On or hearing [Rule 19]. other than one designated representative
before the date specified for compliance, (a) Generally. If a party elects to for each party or a person authorized by
a subpoenaed person may file a motion submit its case on the record without a statute to be present, so that witnesses
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are not influenced by the testimony of (b) Settlements. Parties may settle a a decision or order on that matter. The
other witnesses. case by stipulating to an award. The full Board will inform the parties by
(d) Sworn testimony. Hearing Board may issue a decision making the order of the matter or matters to be
witnesses shall testify under oath or stipulated award if: considered. The order will include
affirmation. If a person called as a (1) The Board is satisfied that it has concurring or dissenting opinions, if
witness refuses to so swear or affirm, the jurisdiction, and any.
Board may receive the person’s (2) The stipulation states that no party (c) Full Board decision. The full Board
testimony under penalty of making a will seek reconsideration of, seek relief decides matters by majority vote. A full
materially false statement in a federal from, or appeal the Board’s decision. Board decision will include concurring
proceeding under 18 U.S.C. 1001. or dissenting opinions, if any.
Alternatively, the Board may disallow 6101.26 Reconsideration [Rule 26]. (d) Effect of motion. A pending
the testimony and may draw inferences (a) Grounds. The Board may on motion for full Board consideration does
from the person’s refusal to swear or motion reconsider a decision or order not affect any obligation to comply with
affirm. for a reason recognized in Rule 59 of the a decision or order.
Federal Rules of Civil Procedure.
6101.22 Transcripts [Rule 22]. 6101.29 Clerical mistakes; harmless error
Arguments and evidence previously
The Board arranges transcription of presented are not grounds for [Rule 29].
hearings, other than hearings under the reconsideration. (a) Clerical mistakes. The Board may
small claims procedure of Rule 52. The (b) Time limit for motion. A party may correct clerical mistakes while a case is
Board may, but generally does not, move for reconsideration of a decision pending, or within 60 days thereafter if
arrange transcription of conferences or or order on an appeal or petition within a decision has not been appealed. If a
other proceedings. No one may record 30 days after that party receives the Board decision is appealed, the Board
or transcribe a Board proceeding decision or order. A party may move for may correct clerical mistakes only by
without the Board’s permission. The reconsideration of a decision or order on leave of the appellate Court.
Board may order or acknowledge an application within 7 days after (b) Harmless error. The Board
corrections to an official transcript. Each receiving the decision or order. The disregards errors that do not affect a
party is responsible for obtaining its Board does not extend these time limits. substantive right of a party. No error in
own copy of a transcript. (c) Effect of motion. A pending a ruling, order, or decision of the Board
6101.23 Briefs [Rule 23]. reconsideration motion does not affect will be grounds for a new hearing or for
any obligation to comply with a vacating, reconsidering, modifying, or
(a) Generally. The Board may order or
decision or order. otherwise disturbing a decision or order
invite briefs on any issue in a case at
unless refusing to correct the error will
any time. Briefs shall be formatted for 6101.27 Relief from decision or order
82 by 11-inch paper, double spaced, prejudice a party or work a substantial
[Rule 27]. injustice.
with body and footnote text no smaller (a) Grounds. The Board may grant
than 13 point. relief, for a reason recognized in Rule 60 6101.30 Award of fees and other expenses
(b) Prehearing, post-hearing, and [Rule 30].
of the Federal Rules of Civil Procedure,
other briefs. Prehearing and post- (a) Application for fees and other
from a decision or order that, alone or
hearing briefs, briefs filed under Rule expenses. A party in an appeal may
in conjunction with prior decisions or
19, and briefs on non-procedural apply for an award of fees and other
orders, resolves all of an appeal,
motions shall cite record evidence for expenses as permitted under EAJA or
petition, or application.
factual statements and legal authority any other provision that may entitle the
(b) Time limit for motion. A party may
for legal arguments. party to such an award.
move for relief under this rule within
6101.24 Closing the record [Rule 24]. 120 days after that party receives the (b) Time for filing. A party may file an
(a) Closing the evidentiary record. decision or order at issue. application for fees and other expenses
Unless otherwise ordered, the evidence (c) Effect of motion. A pending only after the time to seek appellate
as defined in Rule 9(a)(1) is closed at the motion for relief under this rule does review of a Board decision has expired.
end of a hearing under Rule 20 or at the not affect any obligation to comply with A party may file an application within
start of merits briefing when a case is a decision or order. 30 calendar days after that date.
submitted on the record under Rule 19. (c) Application requirements. An
6101.28 Full Board consideration [Rule application for fees and other expenses
(b) Closing the record for decision. 28].
Unless otherwise ordered, the record for shall:
decision as defined in Rule 9(a) is (a) By motion. The full Board may (1) Specify the applicant, appeal, and
closed when the Board receives the final consider a decision or order when amount sought;
scheduled brief on the matters to be necessary to maintain uniformity of (2) Explain why the applicant is
decided. Board decisions or if the matter is legally eligible for an award;
exceptionally important. Motions for (3) Provide a schedule of fees and
6101.25 Decisions and settlements [Rule full Board consideration are disfavored expenses with supporting
25]. and are decided by a majority of the documentation;
(a) Decisions. The Board issues Board. A party may move for full Board (4) Be signed by the applicant or a
decisions in writing, except as allowed consideration within 10 days after that person appearing for the applicant, with
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by Rule 52. The Board will send a copy party receives the decision or order at a declaration under penalty of perjury
of a decision to each party, requesting issue. An order granting full Board that the information in the application
confirmation of receipt (see Rule 1), and consideration will include concurring or is correct;
will post the decision on its website. If dissenting opinions, if any. (5) Provide evidence of the applicant’s
a decision reserves any part of a case for (b) By Board initiative. A majority of small business status or net worth; and
later proceedings, it is conclusive as to the Board may initiate full Board (6) Justify any request for attorney fees
the matters it resolves, except as consideration of any matter in a case, up exceeding the statutory rate.
provided in Rules 26 and 28. to 10 days after a judge or panel issues (d) Proceedings.
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(1) Within 30 days after receiving an them or their attorneys shall obey disqualification from a particular
application, the respondent may file an directions and orders of the Board and matter, referral to an appropriate
answer with any objections to the award adhere to standards of conduct licensing authority, or other action that
requested, supported by facts and legal applicable to such parties and persons. circumstances may warrant.
analysis. Standards applying to an attorney (2) Suspension. The Board may
(2) The Board may order further include the rules of professional suspend an individual from appearing
proceedings if necessary for a full and conduct and ethics of the jurisdictions before the Board as a party
fair resolution of issues arising from an in which the attorney is licensed to representative, attorney, expert, or
application. practice, to the extent that those rules consultant, if, after affording such
(e) Decision. The Board will issue a are relevant to conduct affecting the individual notice and opportunity to be
written decision on an application. integrity of the Board, its process, or its heard, a majority of the members of the
proceedings. full Board determine such a sanction is
6101.31 Payment of award [Rule 31].
(b) Sanctions. If a party or its warranted.
When permitted by law, Board awards representative, attorney, expert, or
under contracts may be paid from the consultant fails to comply with any 6101.36 Board seal [Rule 36].
permanent indefinite judgment fund direction or order of the Board The seal of the Board is a circular logo
under 31 U.S.C. 1304 and 31 CFR part (including an order to provide or permit with ‘‘Civilian Board of Contract
256. An EAJA award is paid from funds discovery) or engages in misconduct Appeals’’ on the outer margin. The seal
of the respondent. affecting the Board, its process, or its is a means of authenticating records,
6101.32 Appeal from Board decision [Rule proceedings, the Board may make such notices, orders, dismissals, opinions,
32]. orders as are just, including the subpoenas, and certificates issued by
(a) Notice. A party filing a notice of imposition of appropriate sanctions. the Board.
appeal with the United States Court of Sanctions may include, but are not
limited to: 6101.37–50 [Reserved]
Appeals for the Federal Circuit (or with
(1) Taking the facts pertaining to the
a district court in an admiralty case) 6101.51 Alternative procedures [Rule 51].
matter in dispute to be established for
shall provide a copy of the notice to the
the purpose of the case in accordance An appellant in an eligible case may
Board.
with the contention of the party who is elect the small claims procedure under
(b) Record on review. The record on
not at fault; Rule 52 or the accelerated procedure
appellate review is the record for
(2) Forbidding the challenge of the under Rule 53. Parties may jointly elect
decision under Rule 9(a) and any other
accuracy of any evidence; alternative dispute resolution under
material in a case file that the appellate (3) Refusing to allow the party to Rule 54.
Court may require. support or oppose designated claims or
(c) Certified list. The Clerk will 6101.52 Small claims procedure [Rule 52].
defenses;
provide the clerk of the appellate Court (4) Prohibiting the party from (a) Election. The small claims
a certified list as required by the Court’s introducing into evidence designated procedure is available solely at an
rules. claims or defenses;
(d) Inspection or copying of record. appellant’s election, when there is a
(5) Striking pleadings or parts thereof, monetary amount in dispute and either
The Clerk will make a record on appeal or staying further proceedings until the
available for inspection and copying in (1) the amount in dispute is $50,000 or
order is obeyed; less, or (2) the appellant is a small
accordance with the rules of the (6) Dismissing the case or any part
appellate Court. business (under the Small Business Act,
thereof; 15 U.S.C. 631 et seq., and regulations
6101.33 Remand from appellate Court (7) Enforcing the protective order and under that Act) and the amount in
[Rule 33]. disciplining individuals subject to such dispute is $150,000 or less. An
If a Court remands a case to the Board order for violation thereof, including appellant may elect the small claims
for further proceedings, each party shall, disqualifying a party’s representative, procedure up to 30 days after receiving
within 30 days of receipt of the attorney, expert, or consultant from the respondent’s answer.
appellate mandate, recommend further participation in the case;
(8) Drawing evidentiary inferences (b) Procedure. The respondent may
procedures to comply with the remand object to an election, on the grounds
order. The Board will then issue an adverse to the party; or
(9) Imposing such other sanctions as that Rule 52(a) is not satisfied, within 10
order on further proceedings. days after receiving the election. If the
the Board deems appropriate.
(c) Denial of access to protected small claims procedure is used, the
6101.34 Ex parte communications [Rule
34]. material. The Board may in its Board will set a schedule for timely
discretion deny access to protected resolution of the appeal. The schedule
No member of the Board or of the
material to any person found to have may restrict or eliminate pleadings,
Board’s staff will communicate with a
previously violated a protective order, discovery, and other prehearing
party about any material issue in a case
regardless of who issued the order. activities.
outside of the presence of the other
party, and no one shall attempt such (d) Disciplinary proceedings. (c) Decision. The presiding judge may
communications on behalf of a party. (1) Sanctions. The Board may issue a decision in summary form. A
This rule does not bar such discipline individual party decision is final and conclusive, shall
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communications about the Board’s representatives, attorneys, experts, or not be set aside except for fraud, and is
administrative functions or procedures. consultants for violating any Board not precedential. If possible, the Board
order, direction, or standard of conduct will resolve the appeal within 120 days
6101.35 Standards of conduct; sanctions if the violation seriously affects the after the appellant elects the small
[Rule 35]. integrity of the Board, its process, or its claims procedure. The Board may
(a) Standards of conduct. All parties proceedings. Sanctions may be public or extend the appeal schedule if an
and their representatives, attorneys, and private, and may include appellant does not adhere to the
any expert or consultant retained by admonishment, reprimand, established schedule.
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6101.53 Accelerated procedure [Rule 53]. Neutral are confidential, subject to 5 (2) A notice of appeal is filed upon its
(a) Election. The accelerated U.S.C. 574, and, unless otherwise receipt by the Office of the Clerk of the
procedure is available solely at an specifically agreed by the parties, Board, not when it is mailed.
appellant’s election and is limited to inadmissible as evidence in any Board (3) The terms ‘‘petition’’ and
appeals in which there is a monetary proceeding, although evidence ‘‘petitioner’’ do not apply to FCIC cases.
amount in dispute and that amount is otherwise admissible before the Board is (b) Rule 2.
$100,000 or less. The appellant may not rendered inadmissible merely (1) Rule 2(a) is replaced with the
elect the accelerated procedure up to 30 because of its use in ADR. following for FCIC cases: A notice of
days after receiving the respondent’s (d) ADR agreement. Parties shall agree appeal shall be in writing and shall be
answer. in writing to an ADR method and the signed by the appellant or by the
(b) Procedure. The respondent may procedures and requirements for appellant’s attorney or authorized
object to an election, on the grounds implementing it. The ADR agreement representative. If the appeal is from a
that Rule 53(a) is not satisfied, within 10 shall provide that the parties and determination by the Deputy
days after receiving the election. If the counsel will not subpoena the Neutral Administrator of Insurance Services
accelerated procedure is used, the Board in any legal action or administrative regarding an action alleged not to be in
will set a schedule for timely resolution proceeding of any kind to provide accordance with the provisions of a
of the appeal. The schedule may restrict documents or testimony relating to the Standard Reinsurance Agreement (or
or eliminate pleadings, discovery, and ADR. other reinsurance agreement), or if the
other prehearing activities. appeal is from a determination by the
(c) Decision. The presiding judge may (e) Types of ADR. Parties and the
Board may agree on any type of binding Deputy Administrator of Compliance
issue a decision with the concurrence of concerning a determination regarding a
at least one panel member. If the or nonbinding ADR suited to a dispute.
compliance matter, the notice of appeal
presiding judge and a panel member ■ 2. Revise part 6102 to read as follows:
should describe the determination in
disagree, the panel will decide the enough detail to enable the Board to
appeal. If possible, the Board will PART 6102—CROP INSURANCE
CASES differentiate that decision from any
resolve the appeal within 180 days after other; the appellant can satisfy this
the appellant elects the accelerated Sec. requirement by attaching to the notice of
procedure. The Board may extend the 6102.201 Scope of rules [Rule 201]. appeal a copy of the Deputy
appeal schedule if an appellant does not 6102.202 Rules for crop insurance cases Administrator’s determination. If an
adhere to the established schedule. [Rule 202]. appeal is taken from the failure of the
6101.54 Alternative dispute resolution Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. Deputy Administrator to make a timely
[Rule 54]. 438(c)(2). determination, the notice of appeal
(a) Availability. The CDA states that 6102.201 Scope of rules [Rule 201].
should describe in detail the matter that
boards of contract appeals ‘‘shall . . . to the Deputy Administrator has failed to
These procedures govern the Board’s determine; the appellant can satisfy this
the fullest extent practicable provide
resolution of disputes between requirement by attaching to the notice of
informal, expeditious, and inexpensive
insurance companies and the appeal a copy of the written request for
resolution of disputes.’’ Resolution of a
Department of Agriculture’s Risk a determination it sent to the Deputy
dispute at the earliest stage feasible, by
Management Agency (RMA) involving Administrator.
the fastest and least expensive method
actions of the Federal Crop Insurance (2) In Rule 2(a), the references to
possible, benefits both parties. The
Corporation (FCIC). Prior to the creation ‘‘contracting officer’’ are references to
Board provides alternative dispute
of this Board, the Department of ‘‘Deputy Administrator.’’
resolution (ADR) services for pre-claim
Agriculture Board of Contract Appeals (3) Rule 2(b) does not apply to FCIC
and pre-final decision matters, as well
resolved this variety of dispute pursuant cases.
as appeals pending before the Board.
to statute, 7 U.S.C. 1501 et seq. (the (4) In Rule 2(d)(1), an appeal from a
The Board may also conduct ADR
Federal Crop Insurance Act), and determination of a Deputy
proceedings for any federal agency. The
regulation, 7 CFR 24.4(b) and 400.169. Administrator shall be filed no later
use of ADR proceedings does not toll
The Board has this authority under an than 90 calendar days after the date the
any statutory time limits.
(b) Procedures for requesting ADR. agreement with the Secretary of appellant receives that determination.
Parties may jointly ask the Board Chair Agriculture, as permitted under section The Board is authorized to resolve only
to appoint a judge as an ADR Neutral. 42(c)(2) of the Office of Federal those appeals that are timely filed.
The parties may request a particular Procurement Policy Act, 41 U.S.C. (5) In Rule 2(d)(2), an appeal may be
judge or judges, to include the presiding 438(c)(2). filed with the Board if the Deputy
judge. To facilitate full, frank, and open 6102.202 Rules for crop insurance cases Administrator fails or refuses to issue a
participation, a Neutral will not discuss [Rule 202]. determination within 90 days after the
the substance of the case or the parties’ appellant submits a request for a
The rules of procedure for these cases determination.
conduct in ADR with other Board
are the same as the rules of procedure (c) Rule 4.
personnel, and a Neutral who
for Contract Disputes Act appeals, with (1) In Rule 4, the references to
participates in a nonbinding ADR
these exceptions: ‘‘contracting officer’’ are references to
procedure that does not resolve the
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dispute is recused from further (a) Rule 1(b). ‘‘Deputy Administrator.’’
participation in the matter unless the (1) The term ‘‘appeal’’ means a (2) In Rule 4(a), paragraphs (1)
parties agree otherwise in writing and dispute between an insurance company through (7), describing materials
the Board concurs. that is a party to a Standard Reinsurance included in the appeal file, are replaced
(c) Confidentiality. Written material Agreement (or other reinsurance by the following:
prepared for use in ADR, oral agreement) and the RMA, and the term (i) The determination of the Deputy
presentations made in ADR, and all ‘‘appellant’’ means the insurance Administrator that is the subject of the
discussions between the parties and the company filing an appeal. dispute;
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![Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Proposed Rules 13221
(ii) The reinsurance agreement (with be labeled with the name and docket (g) Rule 25. In Rule 25(a), the phrase,
amendments or modifications) at issue number of the case. The judge may ‘‘except as allowed by Rule 52,’’ does
in the dispute; delay the submission of the compact not apply to FCIC cases.
(iii) Pertinent correspondence disk copy of the appeal file until the (h) Rule 32. Rule 32 (a) through (c) are
between the parties that is relevant to close of the evidentiary record. replaced with the following for FCIC
the dispute, including prior (d) Rule 5. In Rule 5(a)(2), the cases:
administrative determinations and references to ‘‘contracting officer’’ are (1) Finality of Board decision. A
related submissions; references to ‘‘Deputy Administrator.’’ decision of the Board is a final
(iv) Documents and other tangible administrative decision.
materials on which the Deputy (e) Rule 15. In Rule 15(c), the final
sentence does not apply to FCIC cases. (2) Appeal permitted. An appellant
Administrator relied in making the may file suit in the appropriate United
underlying determination; and (f) Rule 16. Rules 16 (b) through (h)
do not apply to FCIC cases. Instead, States District Court to challenge the
(v) Any additional material pertinent
upon the written request of any party Board’s decision. An appellant filing
to the authority of the Board or the
filed with the Office of the Clerk of the such a suit shall provide the Board with
resolution of the dispute.
(3) The following subsection is added Board, or upon the initiative of a judge, a copy of the complaint.
to Rule 4: Media on which appeal file a judge is authorized by delegation from (i) Rule 52. Rule 52 does not apply to
is to be submitted. All appeal file the Secretary of Agriculture to request FCIC cases.
submissions, including the index, shall the appropriate United States Attorney (j) Rule 53. Rule 53 does not apply to
be submitted in two forms: paper and in to apply to the appropriate United FCIC cases.
a text or .pdf format submitted on a States District Court for the issuance of [FR Doc. 2018–06269 Filed 3–27–18; 8:45 am]
compact disk. Each compact disk shall subpoenas pursuant to 5 U.S.C. 304. BILLING CODE 6820–AL–P
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Document Created: 2018-11-01 08:55:16
Document Modified: 2018-11-01 08:55:16
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Interested parties should submit written comments to the | |
| Contact | Mr. J. Gregory Parks, Chief Counsel, Civilian Board of Contract Appeals, 1800 M Street NW, Suite 600, Washington, DC 20036; at 202-606-8787; or email at [email protected], for clarification of content. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat at 202- 501-4755. Please cite BCA Case 2018-61-1. | |
| FR Citation | 83 FR 13211 | |
| RIN Number | 3090-AK02 | |
| CFR Citation | 48
CFR
6101 48 CFR 6102 |
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