83 FR 41009 - Civilian Board of Contract Appeals; Rules of Procedure for Contract Disputes Act Cases

GENERAL SERVICES ADMINISTRATION

Federal Register Volume 83, Issue 160 (August 17, 2018)

Page Range		41009-41018
FR Document		2018-17213
The Civilian Board of Contract Appeals (Board) amends 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. After considering the one responsive comment received, the Board now promulgates its final rules of procedure.
Federal Register, Volume 83 Issue 160 (Friday, August 17, 2018)
[Federal Register Volume 83, Number 160 (Friday, August 17, 2018)]
[Rules and Regulations]
[Pages 41009-41018]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17213]


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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: Final rule.

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SUMMARY: The Civilian Board of Contract Appeals (Board) amends 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. After considering the one 
responsive comment received, the Board now promulgates its final rules 
of procedure.

DATES: September 17, 2018.

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 Board published 
in the Federal Register at 83 FR 13211, March 28, 2018, proposed, 
amended rules of procedure along with a notice inviting comments on 
those rules. This notice announced the intention to promulgate final 
rules, following the Board's review and consideration of all comments.
    The period for comments closed on May 29, 2018. The Board has 
considered all comments received, revising the proposed rules, in part, 
as explained in part B below, and now promulgates its final rules of 
procedure. These rules simplify and modernize access to the Board by 
establishing a preference for electronic filing, increase conformity 
between the Board's rules and the Federal Rules of Civil Procedure, 
streamline the wording of the Board's rules, and clarify current rules 
and practices. In addition, the time for filing is amended from 4:30 
p.m. to midnight Eastern Time, and the stated monetary limitations for 
electing the accelerated and small claims procedures are deleted and 
replaced with references to the requirements stated in the Contract 
Disputes Act.

B. Comments and Changes

    The Board received comments from two commenters. Commenters 
included one attorney from a Federal agency and one anonymous source. 
Comments from the anonymous source concerned matters wholly unrelated 
to the proposed rule, and the concerns noted by the attorney were 
already addressed in the proposed rule. The Board carefully considered 
the comments but has not revised its proposed rule based on issues the 
commenters raised. The final rule incorporates minor, non-substantive 
corrections to the proposed rule. The corrections are addressed below.

Part 6101

    Sections 6101.1, 6101.3, 6101.4, 6101.12, and 6101.23 are amended 
to correct spelling, grammatical, or spacing errors; include a cross-
reference; and clarify a phrase.

C. Regulatory Flexibility Act

    GSA certifies that this final 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 final rule does not impose any additional 
costs on small or large businesses.

D. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply 
because this final rule does not impose any information collection 
requirements that require the approval of the Office of Management and 
Budget.

E. Congressional Review Act

    The final 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.

F. 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

[[Page 41010]]

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 final rule is not a major rule 
under 5 U.S.C. 804.

G. Executive Order 13771

    This final rule is not an E.O. 13771 regulatory action because this 
rule is not significant under E.O. 12866.

List of Subjects in 48 CFR Parts 6101 and 6102

    Administrative practice and procedure; Government procurement; 
Agriculture.

    Dated: August 6, 2018.
Jeri Kaylene Somers,
Chair, Civilian Board of Contract Appeals, General Services 
Administration.

    Therefore, GSA revises 48 CFR parts 6101 and 6102 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, petitions, and applications; 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].
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 September 17, 2018, and all further proceedings in 
cases then pending, unless the Board decides that using the rules in 
this part 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 (48 CFR 6101.4).
    Application; applicant. ``Application'' means a submission to the 
Board under Rule 30 (48 CFR 6101.30) 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 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 
(``efilings''), 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,

[[Page 41011]]

action, or inaction is the subject of an appeal, petition, or 
application.
    (c) Construction. The Board construes this part to promote the 
just, informal, expeditious, and inexpensive resolution of every case. 
The Board may apply principles of the Federal Rules of Civil Procedure 
(28 U.S.C. App.) to resolve issues not covered by this part.
    (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(c) (48 CFR 6101.12(c)). The Board decides 
all other matters by majority vote of a panel unless the full Board 
decides a matter under Rule 28 (48 CFR 6101.28). 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 
and for physical deliveries during business hours (Rule 1(b) (48 CFR 
6101.1(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, petitions, and applications; 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 (48 CFR 6101.5)); 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 authorized 
representative (see Rule 5 (48 CFR 6101.5)); 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 (48 CFR 6101.30).
    (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--
    (i) 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
    (ii) 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.

[[Page 41012]]

    (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) (paragraph 
(b) or (c) of this section), 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, 
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) (48 CFR 6101.9(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) (48 
CFR 6101.23(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) (48 CFR 6101.3(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) (48 CFR 6101.13(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

[[Page 41013]]

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 (48 CFR 6101.26, 6101.27, 
6101.28, or 6101.29) 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 this part, 
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:
    (i) Rule 4 (48 CFR 6101.4) appeal file exhibits other than those to 
which an objection is sustained;
    (ii) Other documents or parts thereof admitted as evidence;
    (iii) Tangible things admitted as evidence;
    (iv) Transcripts or recordings of testimony before the Board; and
    (v) Factual stipulations and factual admissions.
    (2) Other material. The Board may also rely on to decide a case:
    (i) The notice of appeal, petition, or application;
    (ii) The complaint, answer, and amendments thereto;
    (iii) Motions and briefs on motions;
    (iv) Other briefs;
    (v) Demonstrative hearing exhibits; and
    (vi) 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) (48 CFR 6101.9(a)) is part of 
the administrative record but is not part of the record for decision.
    (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:
    (i) The party submits the document to explain a discovery dispute;
    (ii) 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
    (iii) 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) (paragraph (b)(3) 
of this section), 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

[[Page 41014]]

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 (48 CFR 6101.35) 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) (paragraph (e)(2) of this section).
    (f) Subpoenas. A party may request a subpoena under Rule 16 (48 CFR 
6101.16).


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 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 (48 CFR 6101.8) or 
by subpoena under Rule 16 (48 CFR 6101.16).
    (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 (48 CFR 6101.8), 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 any time 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 (48 CFR 6101.20) or 
before the first brief is filed when a case is submitted on the written 
record under Rule 19 (48 CFR 6101.19). 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.

[[Page 41015]]

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 (48 
CFR 6101.19). 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 (48 CFR 6101.19) 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) (48 CFR 
6101.18(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 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 (48 CFR 6101.52). 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 8.5 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) (48 CFR 6101.9(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 (48 CFR 6101.19).
    (b) Closing the record for decision. Unless otherwise ordered, the 
record for decision as defined in Rule 9(a) (48 CFR 6101.9(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 (48 CFR 6101.52). The Board will send a copy of a 
decision to each party, requesting confirmation of receipt (see Rule 1 
(48 CFR 6101.1)), 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 (48 CFR 6101.26 and 6101.28).
    (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

[[Page 41016]]

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. (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) (48 CFR 6101.9(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;

[[Page 41017]]

    (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.


6101.37-6101.50  [Reserved]


6101.51  Alternative procedures [Rule 51].

    An appellant in an eligible case may elect the small claims 
procedure under Rule 52 (48 CFR 6101.52) or the accelerated procedure 
under Rule 53 (48 CFR 6101.53). Parties may jointly elect alternative 
dispute resolution under Rule 54 (48 CFR 6101.54).


6101.52  Small claims procedure [Rule 52].

    (a) Election. The small claims procedure is available solely at an 
appellant's election and is limited to appeals in which there is a 
monetary amount in dispute and the requirements for expedited 
disposition set forth in the Contract Disputes Act, 41 U.S.C. 7106(b), 
are met. 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) (paragraph (a) of this section) 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.


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 the requirements for accelerated 
disposition set forth in the Contract Disputes Act, 41 U.S.C. 7106(a), 
are met. 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) (paragraph (a) of this section) 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 requires boards of contract appeals to 
provide to the fullest extent practicable 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.

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

[[Page 41018]]

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)(48 CFR 6101.1(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 (48 CFR 6101.2). (1) Rule 2(a) (48 CFR 6101.2(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) (48 CFR 6101.2(a)), the references to 
``contracting officer'' are references to ``Deputy Administrator.''
    (3) Rule 2(b) (48 CFR 6101.2(b)) does not apply to FCIC cases.
    (4) In Rule 2(d)(1) (48 CFR 6101.2(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) (48 CFR 6101.2(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 (48 CFR 6101.4). (1) In Rule 4, the references to 
``contracting officer'' are references to ``Deputy Administrator.''
    (2) In Rule 4(a), paragraphs (1) through (7) (48 CFR 6101.4(a)(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;
    (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 (48 CFR 6101.4): 
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 (48 CFR 6101.5). In Rule 5(a)(2) (48 CFR 6101.5(a)(2)), 
the references to ``contracting officer'' are references to ``Deputy 
Administrator.''
    (e) Rule 15 (48 CFR 6101.15). In Rule 15(c) (48 CFR 6101.15(c)), 
the final sentence does not apply to FCIC cases.
    (f) Rule 16 (48 CFR 6101.16). Rules 16 (b) through (h) (48 CFR 
6101.16(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 (48 CFR 6101.25). In Rule 25(a) (48 CFR 6101.25(a)), 
the phrase, ``except as allowed by Rule 52,'' does not apply to FCIC 
cases.
    (h) Rule 32 (48 CFR 6101.32). Rule 32 (a) through (c) (48 CFR 
6101.32(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 (48 CFR 6101.52). Rule 52 does not apply to FCIC cases.
    (j) Rule 53 (48 CFR 6101.52). Rule 53 does not apply to FCIC cases.

[FR Doc. 2018-17213 Filed 8-16-18; 8:45 am]
 BILLING CODE 6820-AL-P
Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 41009

NEGATIVE DECLARATIONS FOR THE 2008 OZONE NAAQS—Continued
CTG document No. Title

EPA–453/R–94–032 ........................................................... Alternative Control Technology Document—Surface Coating Operations at Ship-
building and Ship Repair Facilities
61 FR 44050 8/27/96 ......................................................... Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface
Coating).

* * * * * appointed by the Administrator of by the attorney were already addressed
[FR Doc. 2018–17714 Filed 8–16–18; 8:45 am] General Services under 41 U.S.C. in the proposed rule. The Board
BILLING CODE 6560–50–P 7105(b)(2). Among its other functions, carefully considered the comments but
the Board hears and decides contract has not revised its proposed rule based
disputes between Government on issues the commenters raised. The
GENERAL SERVICES contractors and most civilian Executive final rule incorporates minor, non-
ADMINISTRATION agencies under the Contract Disputes substantive corrections to the proposed
Act, 41 U.S.C. 7101–7109, and its rule. The corrections are addressed
48 CFR Parts 6101 and 6102 implementing regulations, and disputes below.
[CBCA Case 2018–61–1; Docket No. 2018–
pursuant to the Federal Crop Insurance
Act, 7 U.S.C. 1501 et seq., between Part 6101
0006; Sequence No. 1]
insurance companies and the Sections 6101.1, 6101.3, 6101.4,
RIN 3090–AK02 Department of Agriculture’s Risk 6101.12, and 6101.23 are amended to
Management Agency (RMA) involving correct spelling, grammatical, or spacing
Civilian Board of Contract Appeals; actions of the Federal Crop Insurance errors; include a cross-reference; and
Rules of Procedure for Contract Corporation (FCIC). clarify a phrase.
Disputes Act Cases The Board’s rules of procedure for
Contract Disputes Act cases and Federal C. Regulatory Flexibility Act
AGENCY: Civilian Board of Contract
Appeals; General Services Crop Insurance Act cases were adopted GSA certifies that this final rule will
Administration (GSA). in May 2008 (73 FR 26947) and were not have a significant economic impact
ACTION: Final rule.
last amended in August 2011 (76 FR on a substantial number of small entities
50926). The Board published in the within the meaning of the Regulatory
SUMMARY: The Civilian Board of Federal Register at 83 FR 13211, March Flexibility Act, 5 U.S.C. 602 et seq., and
Contract Appeals (Board) amends its 28, 2018, proposed, amended rules of the Small Business Regulatory
rules of procedure for cases arising procedure along with a notice inviting Enforcement Fairness Act of 1996,
under the Contract Disputes Act, and for comments on those rules. This notice Public Law 104–121, because the final
disputes between insurance companies announced the intention to promulgate rule does not impose any additional
and the Department of Agriculture’s final rules, following the Board’s review costs on small or large businesses.
Risk Management Agency in which and consideration of all comments.
The period for comments closed on D. Paperwork Reduction Act
decisions of the Federal Crop Insurance
Corporation are brought before the May 29, 2018. The Board has considered The Paperwork Reduction Act, 44
Board under the Federal Crop Insurance all comments received, revising the U.S.C. 3501 et seq., does not apply
Act. The Board’s current rules were proposed rules, in part, as explained in because this final rule does not impose
issued in 2008 and were last amended part B below, and now promulgates its any information collection requirements
in 2011. After considering the one final rules of procedure. These rules that require the approval of the Office of
responsive comment received, the Board simplify and modernize access to the Management and Budget.
now promulgates its final rules of Board by establishing a preference for
E. Congressional Review Act
procedure. electronic filing, increase conformity
between the Board’s rules and the The final rule is exempt from
DATES: September 17, 2018. Federal Rules of Civil Procedure, Congressional review under Public Law
FOR FURTHER INFORMATION CONTACT: Mr. streamline the wording of the Board’s 104–121 because it relates solely to
J. Gregory Parks, Chief Counsel, Civilian rules, and clarify current rules and agency organization, procedure, and
Board of Contract Appeals, 1800 M practices. In addition, the time for filing practice and does not substantially
Street NW, Suite 600, Washington, DC is amended from 4:30 p.m. to midnight affect the rights or obligations of non-
20036; at 202–606–8787; or email at Eastern Time, and the stated monetary agency parties.
greg.parks@cbca.gov, for clarification of limitations for electing the accelerated
content. For information pertaining to F. Executive Orders 12866 and 13563
and small claims procedures are deleted
the status or publication schedules, and replaced with references to the Executive Orders (E.O.s) 12866 and
contact the Regulatory Secretariat at requirements stated in the Contract 13563 direct agencies to assess all costs
202–501–4755. Please cite BCA Case Disputes Act. and benefits of available regulatory
2018–61–1. alternatives and, if regulation is
B. Comments and Changes necessary, to select regulatory
SUPPLEMENTARY INFORMATION:
The Board received comments from approaches that maximize net benefits
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A. Background two commenters. Commenters included (including potential economic,
The Board was established within one attorney from a Federal agency and environmental, public health and safety
GSA by section 847 of the National one anonymous source. Comments from effects, distributive impacts, and
Defense Authorization Act for Fiscal the anonymous source concerned equity). E.O. 13563 emphasizes the
Year 2006, Public Law 109–163. Board matters wholly unrelated to the importance of quantifying both costs
members are administrative judges proposed rule, and the concerns noted and benefits, of reducing costs, of

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(5) Parties shall number the pages of appellant, petitioner, or applicant may answer stating in simple, concise, and
each exhibit consecutively, unless an appear before the Board through an direct terms its responses to the
exhibit is already paginated in another attorney. An individual appellant, allegations of the complaint and any
logical manner. petitioner, or applicant may appear for affirmative defenses it chooses to assert.
(6) The appeal file index shall himself or herself. A corporation, trust, (c) Amendments. A party may amend
describe each exhibit by date and or association may appear by one of its a pleading once, before a responsive
content. officers. A limited liability corporation, pleading is filed, with permission of the
(7) Parties may file documents in partnership, or joint venture may appear other party. Amending a pleading
camera only by permission of the Board. by one of its members. Each individual restarts the time to respond, if any. The
(c) Organization of paper appeal file. appearing on behalf of an appellant, Board may allow a party to amend a
(1) Appeal files and supplements petitioner, or applicant must have legal pleading in other circumstances.
thereto may be filed on paper only by authority to appear. (d) Motion in lieu of answer. The
permission of the Board. (2) Respondent. A respondent may Board may allow a party to file a
(2) Appeal file exhibits shall be appear before the Board through an dispositive motion or to move for a
complete, legible, arranged in attorney or, if allowed by the agency, by more definite statement in lieu of filing
chronological order, tabbed, and the contracting officer or the contracting an answer.
indexed. Parties shall avoid filing officer’s authorized representative.
duplicative exhibits and shall number (3) Others. The Board may permit a 6101.7 Service of documents [Rule 7].
exhibits continuously and consecutively special or limited appearance of or for A party filing any document not
from one filing to the next, so a a nonparty, such as an amicus curiae. submitted in camera (see Rule 9(c)(2)
complete appeal file consists of one set (b) Notice of appearance. The Board (48 CFR 6101.9(c)(2)) shall send a copy
of consecutively tabbed exhibits. deems the person who signed a notice to the other party by a method at least
(3) Parties shall number the pages of of appeal, petition, or application to as fast as the filing method. The filing
each paper exhibit consecutively, unless have appeared for the appellant, party shall indicate the method and
an exhibit is already paginated in petitioner, or applicant. The Board address of service, otherwise the Board
another logical manner. deems the head of the respondent’s may consider a document not served
(4) Parties shall file exhibits in 3-ring litigation office to have appeared for the and not properly filed.
binders with spines no wider than 3 respondent unless otherwise notified.
inches, labeled on the cover and spine 6101.8 Motions [Rule 8].
Other participating attorneys shall file
with the name of the appeal, CBCA (a) Generally. A party may make a
notices of appearance including all of
number, and tab numbers in each motion for a Board action orally on the
the information required by the sample
binder. Include in each binder the index record in the presence of the other party
notice of appearance posted on the
of the entire filing. or in a written filing. A written motion
(5) The appeal file index shall Board’s website. Attorneys representing
parties before the Board shall list their shall be a document titled as a motion
describe each exhibit by date and and shall state the relief sought and the
content. bar numbers or other identifying data
for each State bar to which they are legal basis (see Rule 23(b) (48 CFR
(6) Parties shall separately file and 6101.23(b)). Except for joint or
index documents submitted in camera admitted.
(c) Withdrawal of appearance. dispositive motions, all motions shall
or under a protective order. However, represent that the movant tried to
documents may be submitted in camera Anyone who has filed a notice of
appearance and wishes to withdraw resolve the motion with the other party
only by permission of the Board. before filing. The Board may hold oral
(d) Supplements. Within 30 days after from a case must file a motion
identifying by name, telephone number, argument on a motion.
the respondent files the appeal file, the (b) Jurisdictional motions. A party
appellant may file non-duplicative mailing address, and email address the
person who will assume responsibility challenging the Board’s jurisdiction
documents relevant to the claim, should file such a motion promptly.
organized as instructed in Rule 4(b) or for representing the party in question.
The motion must state grounds for (c) Procedural motions. A party may
(c) (paragraph (b) or (c) of this section), move for an extension of time (Rule 3(b)
starting with the next available exhibit withdrawal, unless the motion
represents that the party in question (48 CFR 6101.3(b)). The Board may in
number. its discretion consider motions on other
(e) Classified or protected material. will meet the existing case schedule.
procedural matters. A procedural
Neither classified nor protected material 6101.6 Pleadings; amending pleadings motion shall state the other party’s
may be efiled. [Rule 6].
(f) Submission by order. The Board position on the motion or describe the
(a) Complaint. Within 30 days after movant’s effort to learn the other party’s
may order a party to supplement the
receiving the notice of docketing, the position.
appeal file, including by filing an
appellant shall file a complaint stating (d) Discovery motions. See Rule 13(e)
exhibit in another format.
(g) Status of exhibits. The Board in simple, concise, and direct terms the (48 CFR 6101.13(e)).
considers appeal file exhibits part of the factual basis for each claim and the (e) Motions to dismiss for failure to
record for decision under Rule 9(a) amount in controversy. Alternatively, state a claim. A party may move to
unless a party objects to an exhibit the appellant or the Board may dismiss all or part of a claim for failure
within the time set by the Board and the designate as a complaint the notice of to state grounds on which the Board
Board sustains the objection. appeal, a claim submission, or any other could grant relief. In deciding such
(h) Other procedures. The Board may document containing the information motions, the Board looks to Rule
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postpone or waive the filing of an required in a complaint. The Board may 12(b)(6) of the Federal Rules of Civil
appeal file. in its discretion order a respondent Procedure for guidance.
asserting a claim to file a complaint. (f) Summary judgment motions. A
6101.5 Appearing; notice of appearance (b) Answer. Within 30 days after party may move for summary judgment
[Rule 5]. receiving the complaint or a designation on all or part of a claim or defense if the
(a) Appearing before the Board—(1) of a complaint, the respondent (or the party believes in good faith it is entitled
Appellant; petitioner; applicant. An appellant, if so ordered) shall file an to judgment as a matter of law based on

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undisputed material facts. In deciding (ii) The complaint, answer, and objects. In ruling on evidentiary
motions for summary judgment, the amendments thereto; objections, the Board is guided but not
Board looks to Rule 56 of the Federal (iii) Motions and briefs on motions; bound by the Federal Rules of Evidence,
Rules of Civil Procedure for guidance. (iv) Other briefs; except that the Board generally admits
(1) Statement of undisputed material (v) Demonstrative hearing exhibits; hearsay unless the Board finds it
facts. The movant shall file with its and unreliable.
summary judgment motion a separate (vi) Anything else the Board may
document titled, ‘‘Statement of expressly admit or take notice of. 6101.11 Conferences [Rule 11].
Undisputed Material Facts.’’ This (b) Other contents of case file. The The Board may order a conference of
document shall set forth facts Board’s administrative record may be the parties for any purpose. Conferences
supporting the motion in separate, broader than the record for decision. are usually telephonic and are rarely
numbered paragraphs, citing appeal file Material in the Board’s case file that is recorded or transcribed. No one may
exhibits, admissions in pleadings, and/ not listed in Rule 9(a) (48 CFR record a conference by any means
or evidence filed with the motion. 6101.9(a)) is part of the administrative without Board approval. If the Board
(2) Statement of genuine issues. The record but is not part of the record for issues a memorandum or order
opposing party shall file with its decision. memorializing a conference, a party has
(c) Enlarging or reopening the record. 5 days from receipt of the memorandum
opposition a separate document titled,
The Board may enlarge or reopen the or order to object in writing to the
‘‘Statement of Genuine Issues.’’ This
record for decision on terms fair to the memorialization.
document shall respond to specific
parties.
paragraphs of the movant’s Statement of (d) Protected and in camera 6101.12 Stays and dismissals [Rule 12].
Undisputed Material Facts by submissions. The Board may limit
identifying material facts in genuine (a) Stays. The Board may stay a case
access to specified material in a record for a specific duration, or until a
dispute, citing appeal file exhibits, for decision.
admissions in pleadings, and/or specific event, for good cause.
(1) Protective orders. The Board may (b) Dismissals—(1) Generally. The
evidence filed with the opposition. limit access to specified material in a
(g) Briefing. A party may file a brief Board may dismiss a case or part of a
record for decision if the Board finds case either on motion of a party or after
in opposition to a motion under Rule good cause to treat the material as
26, Rule 27, Rule 28, or Rule 29 (48 CFR permitting a response to an order to
privileged, confidential, or otherwise show cause. Dismissal is with prejudice
6101.26, 6101.27, 6101.28, or 6101.29) sensitive.
only by permission of the Board. Unless unless a Board order or other applicable
(2) In camera submissions. The Board
otherwise ordered, a brief in opposition law provides otherwise.
may allow a party to submit a document
to any other nonprocedural motion is (2) Voluntary dismissal. Subject to
solely for the Board’s review in camera
due 30 days after receipt of the motion, Rule 12(b)(3) (paragraph (b)(3) of this
if:
and a movant’s reply brief is due 15 (i) The party submits the document to section), the Board will dismiss all or
days after receipt of an opposition brief. explain a discovery dispute; part of a case on the terms requested if
A nonmovant may file a surreply only (ii) The Board denies a motion for the appellant, petitioner, or applicant
by permission of the Board. Unless protective order, and the movant asks moves for dismissal with prejudice or
otherwise ordered, a brief in opposition that the record include a document that moves jointly with the respondent for
to a procedural motion is due 5 days the party would have used in the case dismissal with or without prejudice.
after receipt of the motion, and there with a protective order, for possible (3) For lack of jurisdiction. If the
shall be no reply. later review of the Board’s denial; or Board finds that it lacks jurisdiction to
(h) Effect of pending motion. Unless (iii) Good cause exists to find that in decide all or part of a case, the Board
otherwise stated in this part, the filing camera review may limit or prevent will dismiss the case or the part of the
of a motion does not affect a party’s needless harm to a party, witness, or case, regardless of the parties’ positions
obligations under the Board’s rules or other person. on jurisdiction or dismissal.
orders. (3) Status in record. A document (4) For failure to prosecute. The Board
submitted and accepted under a may dismiss all or part of a case for
6101.9 Record; content and access protective order or in camera is part of failure to prosecute.
[Rule 9]. the record for decision. If the Board’s (c) Dismissal orders and decisions.
(a) Record for decision. The record on decision is judicially reviewed, the The presiding judge acting alone may
which the Board will decide a case Board will endeavor to preserve the stay a case or grant voluntary dismissal
includes the following: protected or in camera nature of the with or without prejudice. A panel or
(1) Evidence. Evidence in a case document to the extent consistent with the full Board may dismiss a case on
includes: judicial review. other grounds.
(i) Rule 4 (48 CFR 6101.4) appeal file (e) Review and copying. The Clerk (d) Admonition. Dismissal of a party’s
exhibits other than those to which an makes records for decision, except case without prejudice does not
objection is sustained; evidence submitted under a protective necessarily mean that the party may
(ii) Other documents or parts thereof order or in camera, available for review later refile the case at the Board or in
admitted as evidence; on reasonable notice during business another forum under the jurisdictional
(iii) Tangible things admitted as hours, and provides copies of such and procedural laws applicable to the
evidence; available documents for a reasonable case.
(iv) Transcripts or recordings of fee. The Clerk will not relinquish 6101.13 Discovery generally [Rule 13].
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testimony before the Board; and possession of material in the Board’s
(v) Factual stipulations and factual files. (a) Methods. Parties may obtain
admissions. discovery by depositions,
(2) Other material. The Board may 6101.10 Admissibility of evidence interrogatories, requests for production,
also rely on to decide a case: [Rule 10]. and requests for admission.
(i) The notice of appeal, petition, or The Board may in its discretion (b) Scope. Unless otherwise ordered,
application; receive any evidence to which no party the scope of discovery is the same as

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under Rule 26(b)(1) of the Federal Rules with Rule 36(a)(4) and (5) of the Federal attach to its motion a completed
of Civil Procedure. Rules of Civil Procedure. If the served subpoena form for signing by a Board
(c) Limits. The Board may limit the party does not respond within 30 days judge, and shall explain in the motion
frequency or extent of discovery for a of service of a request, the Board may why the proposed subpoena scope is
reason stated in Rule 26(b)(2) of the on motion deem a matter admitted and reasonable and how the evidence sought
Federal Rules of Civil Procedure. conclusively established solely for the is relevant to the case.
(d) Timing. The Board encourages pending case. (d) Production cost. The Board’s
parties to agree on a discovery plan that (3) Relief from admission. The Board policy is to require a requesting party to
the Board may adopt in a scheduling may allow a party to withdraw or advance a subpoenaed person the
order. The Board may modify an agreed amend an admission for good cause. reasonable cost of producing
discovery plan. (e) Altering time to respond. The subpoenaed material.
(e) Disputes—(1) Objections. A party parties may agree to alter deadlines to (e) Service. The requesting party shall
objecting to a written discovery request respond to discovery requests. The serve a subpoena and provide proof of
must make the objection in writing no Board may alter the deadlines to meet service as would be required by Rule
later than the date that its response to the needs of a case. 45(b) of the Federal Rules of Civil
the discovery request is due. (f) Supplementing and correcting Procedure.
(2) Duty to cooperate. Parties shall try responses. A party must supplement or (f) Motion to quash or modify. On or
in good faith to resolve objections to correct a response to a discovery request before the date specified for compliance,
discovery requests without involving if and when this action would be a subpoenaed person may file a motion
the Board. The Board may impose an required by Rule 26(e)(1) of the Federal to quash or modify the subpoena for a
appropriate sanction under Rule 35 (48 Rules of Civil Procedure. reason stated in Rule 45(d)(3) of the
CFR 6101.35) on a party that does not Federal Rules of Civil Procedure. The
meet its discovery obligations. 6101.15 Depositions [Rule 15]. Board may rule on the motion any time
(3) Motions to compel. A party may (a) Generally. Unless otherwise after the party that served the subpoena
move to compel a response or a ordered, parties may take depositions receives the motion.
supplemental response to a discovery after service of the answer. If the parties (g) Enforcement. As necessary, the
request. The movant shall attach to its agree in writing on the deponent, time, Board may ask the Attorney General of
motion a copy of each discovery request place, recording method, and maximum the United States to petition a United
and response at issue, and shall duration of a deposition, no formal States district court to enforce a Board
represent in the motion that the movant deposition notice is needed. The Board subpoena.
complied with Rule 13(e)(2) (paragraph may order a deposition on motion under (h) Letter rogatory in lieu of subpoena.
(e)(2) of this section). Rule 8 (48 CFR 6101.8) or by subpoena If a person to be subpoenaed resides in
(f) Subpoenas. A party may request a under Rule 16 (48 CFR 6101.16). a foreign country, the Board may
subpoena under Rule 16 (48 CFR (b) Use. Parties may use deposition facilitate the issuance of a letter rogatory
6101.16). testimony in a case to the extent that to the person by the United States
would be permitted by Rule 32(a) of the Department of State under 28 U.S.C.
6101.14 Interrogatories; requests for Federal Rules of Civil Procedure. 1781–1784.
production; requests for admission (c) To perpetuate testimony. If the
[Rule 14]. Board has decided a case, and either the 6101.17 Exhibits [Rule 17].
(a) Generally. Interrogatories, requests time to appeal has not expired or an (a) Marking exhibits. Unless otherwise
for production, requests for admission, appeal has been taken, the Board may ordered, parties shall, to the fullest
and responses thereto shall be in writing for good cause grant leave to take a extent practicable, submit exhibits for
and served on the other party. deposition as if the case were still before inclusion in the appeal file before a
(b) Interrogatories. Interrogatories the Board in order to preserve testimony hearing starts under Rule 20 (48 CFR
shall be answered or objected to for possible further proceedings before 6101.20) or before the first brief is filed
separately in writing, under signed oath, the Board. when a case is submitted on the written
within 30 days of service. A party may record under Rule 19 (48 CFR 6101.19).
answer an interrogatory by specifying 6101.16 Subpoenas [Rule 16]. Parties shall mark any exhibits offered
records from which the answer may be (a) Expectation of cooperation in lieu in evidence thereafter as sequential
derived or ascertained when that of subpoena. Subpoenas should rarely additions to the appeal file. Such
response would be allowed under Rule be necessary, as the Board expects exhibits shall become part of the appeal
33(d) of the Federal Rules of Civil parties to respond cooperatively to file if admitted as evidence.
Procedure. discovery requests and to try in good (b) Copies. The Board expects all
(c) Requests for production. faith to secure the cooperation of third document exhibits to be true, complete,
Responses and objections to requests for parties who have or may have evidence and legible copies rather than originals.
production, inspection, and/or copying responsive to discovery requests. The Board may order a party to
of documents, electronically stored (b) Generally. The Board may issue a substitute a better copy or to make an
information, or tangible things are due subpoena for a purpose for which a original document available for
within 30 days of service of the requests United States district court may issue a inspection.
and shall state when and how the subpoena under Rule 45(a)(1) of the (c) Withdrawal. The Board may allow
responding party will make responsive Federal Rules of Civil Procedure. Parties a party to withdraw an exhibit from the
material available. and the Board shall take all reasonable appeal file and the record for decision
daltland on DSKBBV9HB2PROD with RULES

(d) Requests for admission—(1) steps to avoid imposing undue burden on terms fair to the other party.
Content. A party may serve requests for on a person subject to a subpoena. (d) Disposition. Unless the Board
admission that would be proper under (c) How requested; form. A party may advises the parties of another deadline,
Rule 36(a)(1) of the Federal Rules of ask the Board to issue a subpoena by the Board may discard physical (non-
Civil Procedure. motion under Rule 8 (48 CFR 6101.8), electronic) exhibits in its possession 90
(2) Responses and failure to respond. substantially before the proposed days after the time to appeal the Board’s
Responses and objections shall comply compliance date. The movant shall decision in the case expires.

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Document Created: 2018-08-17 03:25:30
Document Modified: 2018-08-17 03:25:30
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		Rules and Regulations
Action		Final rule.
Dates		September 17, 2018.
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 41009
RIN Number		3090-AK02
CFR Citation		48 CFR 6101 48 CFR 6102