Part 1 —Charter

1. There is created the Armed Services Board of Contract Appeals which is hereby designated as the

authorized representative of the Secretary of Defense, the Secretary of the Army, the Secretary of

the Navy, and the Secretary of the Air Force, in hearing, considering and determining appeals by

contractors from decisions of contracting officers or their authorized representatives or other

authorities on disputed questions. These appeals may be taken (a) pursuant to the Contract Disputes

Act of 1978 (41 U.S.C. Sections 7101-7109), (b) pursuant to the provisions of contracts requiring the

decision by the Secretary of Defense or by a Secretary of a Military Department or their duly

authorized representative, or (c) pursuant to the provisions of any directive whereby the Secretary

of Defense or the Secretary of a Military Department or their authorized representative has granted

a right of appeal not contained in the contract on any matter consistent with the contract appeals

procedure. The Board may determine contract disputes for other departments and agencies by

agreement as permitted by law. The Board shall operate under general policies established or

approved by the Under Secretary of Defense responsible for acquisition and may perform other

duties as directed not inconsistent with the Contract Disputes Act of 1978. The Board shall decide

the matters before it independently.

2. Membership of the Board shall consist of attorneys at law who have been qualified in the manner

prescribed by the Contract Disputes Act of 1978. Appointment of Board members shall be made by

the Secretary of Defense. Members of the Board are hereby designated Administrative Judges. There

shall be designated from among the appointed Judges of the Board a Chairman and two or more Vice

Chairmen. Designation of the Chairman and Vice Chairmen shall be made by the Secretary of

Defense, of nominees from Judges of the Board recommended by the Under Secretary of Defense

responsible for acquisition, in coordination with the General Counsel of the Department of Defense,

and the Assistant Secretaries of the Military Departments responsible for acquisition. When there is

a vacancy, the incumbent is unavailable, or for appropriate Board administrative reasons, the Under

Secretary of Defense responsible for acquisition or the Chairman may designate a Judge of the

Board to serve as an Acting Chairman or Acting Vice Chairman.

3. The Chairman of the Board shall be responsible for establishing appropriate divisions of the Board

to provide for the most effective and expeditious handling of appeals. The Chairman shall have

authority to establish procedures for the issuance of Board decisions. The Chairman may refer an

appeal of unusual difficulty, significant precedential importance, or serious dispute within the

normal decision process for decision by a Senior Deciding Group established by the Chairman which

shall have the authority to overturn prior Board precedent.

4. It shall be the duty and obligation of the Judges of the Armed Services Board of Contract Appeals

to decide appeals on the record of the appeal to the best of their knowledge and ability in

accordance with applicable contract provisions and in accordance with law and regulation pertinent

thereto.

5. Any Judge of the Board or any examiner, designated by the Chairman, shall be authorized to hold

hearings, examine witnesses, and receive evidence and argument. A Judge of the Board shall have

authority to administer oaths and issue subpoenas as specified in the Contract Disputes Act of 1978.

In cases of contumacy or refusal to obey a subpoena, the Chairman may request orders of the court

in the manner prescribed in the Contract Disputes Act of 1978.

6. The Board shall have all powers necessary and incident to the proper performance of its duties.

The Board has the authority to issue methods of procedure and rules and regulations for its conduct
and for the preparation and presentation of appeals and issuance of opinions.

7. The Chairman shall be responsible for the internal organization of the Board and for its

administration. The Chairman shall provide within approved ceilings for the staffing of the Board

with non-Judge personnel, including hearing examiners, as may be required for the performance of

the functions of the Board. The Chairman shall appoint a Recorder of the Board. All personnel shall

be responsible to and shall function under the direction, supervision and control of the Chairman.

8. The Board will be serviced by the Department of the Army for administrative support as required

for its operations. Administrative support will include budgeting, funding, fiscal control, manpower

control and utilization, personnel administration, security administration, supplies, and other

administrative services. The Departments of the Army, Navy, Air Force and the Office of the

Secretary of Defense will participate in financing the Board’s operations on an equal basis and to the

extent determined by the Under Secretary of Defense (Comptroller). The cost of processing appeals

for departments and agencies other than those in the Department of Defense will be reimbursed.

9. Within 30 days following the close of a fiscal year, the Chairman shall forward a report of the

Board’s transactions and proceedings for the preceding fiscal year to the Under Secretary of

Defense responsible for acquisition, the General Counsel of the Department of Defense, and the

Assistant Secretaries of the Military Departments responsible for acquisition.

10. The Board shall have a seal bearing the following inscription: “Armed Services Board of Contract

Appeals.” This seal shall be affixed to all authentications of copies of records and to such other

instruments as the Board may determine.

11. This revised charter is effective upon the date of the signature of the Secretary of Defense.

APPROVED:

Patrick M. Shanahan

Acting Secretary of Defense

(signed 23 May 2019)

ARMED SERVICES BOARD OF CONTRACT APPEALS

Parent topic: APPENDIX A - ARMED SERVICES BOARD OF CONTRACT APPEALS

Part 2 -Rules

Approved 15 July 1963

PREFACE

I. JURISDICTION FOR CONSIDERING APPEALS

The Armed Services Board of Contract Appeals (referred to herein as the Board) has jurisdiction to

decide any appeal from a final decision of a contracting officer, pursuant to the Contract Disputes

Act, 41 U.S.C. 7101-7109, or its Charter, 48 CFR Chap. 2, App. A, Pt. 1, relative to a contract made
by the Department of Defense, the Department of the Army, the Department of the Navy, the

Department of the Air Force, the National Aeronautics and Space Administration or any other

department or agency, as permitted by law.

II. LOCATION AND ORGANIZATION OF THE BOARD

(a) The Board’s address is Skyline Six, Room 703, 5109 Leesburg Pike, Falls Church, VA 220413208;

telephone 703–681–8500 (general), 703–681–8502 (Recorder). The Board’s facsimile number is

703-681-8535. The Board’s Recorder’s email address is asbca.recorder@mail.mil. The Board’s

website address is http://www.asbca.mil.

(b) The Board consists of a Chairman, two or more Vice Chairmen, and other Members, all of whom

are attorneys at law duly licensed by a state, commonwealth, territory, or the District of Columbia.

Board Members are designated Administrative Judges.

(c) There are a number of divisions of the Board, established by the Chairman in such manner as to

provide for the most effective and expeditious handling of appeals. The Chairman and a Vice

Chairman act as members of each division. Hearings may be held by an Administrative Judge or by a

duly authorized examiner. Except for appeals processed under the expedited or accelerated

procedure (see Rules 12.2(c) and 12.3(c)), the decision of a majority of a division constitutes the

decision of the Board, unless the Chairman refers the appeal to the Board’s Senior Deciding Group

(consisting of the Chairman, Vice Chairmen, all division heads, and the Judge who drafted the

decision), in which event a decision of a majority of that group constitutes the decision of the Board.

Appeals referred to the Senior Deciding Group are those of unusual difficulty or significant

precedential importance, or that have occasioned serious dispute within the normal division decision

process.

(d) The Board will to the fullest extent practicable provide informal, expeditious, and inexpensive

resolution of disputes.

RULES

Rule 1. Appeals

(a) Taking an Appeal—For appeals subject to the Contract Disputes Act, notice of an appeal shall be

in writing and mailed or otherwise furnished to the Board within 90 days from the date of receipt of

a contracting officer’s decision. The appellant (contractor) should also furnish a copy of the notice of

appeal to the contracting officer. For appeals not subject to the Contract Disputes Act, the

contractor should refer to the Disputes clause in its contract for the time period in which it must file

a notice of appeal.

(1) Where the contractor has submitted a claim of $100,000 or less to the contracting officer and has

requested a written decision within 60 days from receipt of the request, and the contracting officer

has not provided a decision within that period, or where such a contractor request has not been

made and the contracting officer has not issued a decision within a reasonable time, the contractor

may file a notice of appeal as provided in paragraph (a) of this Rule, citing the failure of the

contracting officer to issue a decision.
(2) Where the contractor has submitted a properly certified claim over $100,000 to the contracting

officer or has submitted a claim that involves no monetary amount, and the contracting officer,

within 60 days of receipt of the claim, fails to issue a decision or fails to provide the contractor with

a reasonable date by which a decision will be issued, and the contracting officer has failed to issue a

decision within a reasonable time, the contractor may file a notice of appeal as provided in

paragraph (a) of this Rule, citing the failure of the contracting officer to issue a decision.

(3) A reasonable time shall be determined by taking into account such factors as the size and

complexity of the claim and the adequacy of the information provided by the contractor to support

the claim.

(4) Where an appeal is before the Board pursuant to paragraph (a)(1) or (a)(2) of this Rule, the

Board may, at its option, stay further proceedings pending issuance of a final decision by the

contracting officer within such period of time as is determined by the Board.

(5) In lieu of filing a notice of appeal under paragraph (a)(1) or (a)(2) of this Rule, the contractor may

petition the Board to direct the contracting officer to issue a decision in a specified period of time as

determined by the Board.

(b) Contents of Notice of Appeal—A notice of appeal shall indicate that an appeal is being taken and

should identify the contract by number, the department and/or agency involved in the dispute, the

decision from which the appeal is taken, and the amount in dispute, if any. A copy of the contracting

officer’s final decision, if any, should be attached to the notice of appeal. The notice of appeal should

be signed by the appellant or by the appellant’s duly authorized representative or attorney. The

complaint referred to in Rule 6 may be filed with the notice of appeal, or the appellant may

designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

(c) Docketing of Appeal—When a notice of appeal has been received by the Board, it will be

docketed. The Board will provide a written notice of docketing to the appellant and to the

Government.

Rule 2. Filing Documents

(a) Documents may be filed with the Board by the following methods:

(1) Governmental Postal Service—Documents may be filed via a governmental postal service. Filing

occurs when the document, properly addressed and with sufficient postage, is transferred into the

custody of the postal service. Contact the Recorder before submitting classified documents.

(2) Courier—Documents may be filed via courier. Filing occurs when the document is delivered to

the Board. Contact the Recorder before submitting classified documents.

(3) Electronic Mail—Documents, except appeal files submitted pursuant to Rule 4, hearing exhibits,

classified documents, and documents submitted in camera or under a protective order, may be filed

via electronic mail (email). Email attachments should be in PDF format and the attachments may not

exceed 10 megabytes total. The transmittal email should include the ASBCA docket number(s), if

applicable, and the name of the appellant in the “Subject:” line. Filing occurs upon receipt by the

Board’s email server. When a document is successfully filed via email, the document should not also

be submitted by any other means, unless so directed by the Board. Submit emails to:

mailto:asbca.recorder@mail.mil.
(4) Facsimile Transmission—Documents, except appeal files submitted pursuant to Rule 4, hearing

exhibits, classified documents, and documents submitted in camera or under a protective order, may

be filed via facsimile (fax) machine. Due to equipment constraints, transmissions over 10 pages

should not be made absent Board permission. Filing occurs upon receipt by the Board. When a

document is successfully filed via fax, the document should not also be submitted by any other

means, unless so directed by the Board.

(b) Copies to Opposing Party—The party filing any document with the Board will send a copy to the

opposing party unless the Board directs otherwise, noting on the document filed with the Board that

a copy has been so furnished.

Rule 3. Service Upon Other Parties

Documents may be served personally or by mail, addressed to the party upon whom service is to be

made, unless the parties have agreed to an alternate means of service. Subpoenas shall be served as

provided in Rule 22.

Rule 4. Preparation, Content, Organization, Forwarding, and Status of Appeal File

(a) Duties of the Government—Within 30 days of notice that an appeal has been filed, the

Government shall transmit to the Board and the appellant an appeal file consisting of the documents

the Government considers relevant to the appeal, including:

(1) The decision from which the appeal is taken;

(2) The contract, including pertinent specifications, amendments, plans, and drawings;

(3) All correspondence between the parties relevant to the appeal, including any claim in response to

which the decision was issued.

The Government’s appeal file may be supplemented at such times as are fair and reasonable and as

ordered by the Board.

(b) Duties of the Appellant—Within 30 days after receipt of a copy of the Government’s appeal file,

the appellant shall transmit to the Board and the Government any documents not contained therein

that the appellant considers relevant to the appeal. Appellant’s appeal file may be supplemented at

such times as are fair and reasonable and as ordered by the Board.

(c) Organization of Appeal File—Documents in the appeal file may be originals or legible copies, and

shall be arranged in chronological order where practicable, tabbed with sequential numbers, and

indexed to identify the contents of the file. Any document without internal page numbers shall have

page numbers added. All documents must be in English or include an English translation.

Documents shall be submitted in 3-ring binders, with spines not wider than 3 inches wide, with

labels identifying the name of the appeal, ASBCA number and tab numbers contained in each

volume, on the front and spine of each volume. Each volume shall contain an index of the documents

contained in the entire Rule 4 submission.

(d) Status of Documents in Appeal File—Documents contained in the appeal file are considered,

without further action by the parties, as part of the record upon which the Board will render its
decision. However, a party may object, for reasons stated, to the admissibility of a particular

document reasonably in advance of hearing or, if there is no hearing, of settling the record, or in any

case as ordered by the Board. If such objection is made, the Board will constructively remove the

document from the appeal file and permit the party offering the document to move its admission as

evidence in accordance with Rules 10, 11, and 13.

Rule 5. Time, Computation, and Extensions

(a) Where practicable, actions should be taken in less time than the time allowed. Where appropriate

and justified, however, extensions of time will be granted. All requests for extensions of time should

be in writing and indicate that the other party was contacted to seek its concurrence.

(b) In computing any period of time, the day of the event from which the designated period of time

begins to run will not be included, but the last day of the period will be included unless it is a

Saturday, Sunday, or a Federal holiday, in which event the period will run to the next business day.

Rule 6. Pleadings

(a) Appellant—Within 30 days after receipt of notice of docketing of the appeal, the appellant shall

file with the Board a complaint setting forth simple, concise, and direct statements of each of its

claims. The complaint shall also set forth the basis, with appropriate reference to contract

provisions, of each claim and the dollar amount claimed, if any. This pleading shall fulfill the

generally recognized requirements of a complaint, although no particular form is required. Should

the complaint not be timely received, the appellant’s claim and notice of appeal may be deemed to

set forth its complaint if, in the opinion of the Board, the issues before the Board are sufficiently

defined, and the parties will be notified.

(b) Government—Within 30 days from receipt of the complaint, or the aforesaid notice from the

Board, the Government shall file with the Board an answer thereto. The answer shall admit or deny

the allegations of the complaint and shall set forth simple, concise, and direct statements of the

Government’s defenses to each claim asserted by the appellant, including any affirmative defenses.

Should the answer not be timely received, the Board may enter a general denial on behalf of the

Government, and the parties will be notified.

(c) Foreign Law—A party who intends to raise an issue concerning the law of a foreign country shall

give notice in its pleadings or other reasonable written notice. The Board, in determining foreign

law, may consider any relevant material or source, including testimony, whether or not submitted by

a party or admissible under Rules 10, 11, or 13. The determination of foreign law shall be treated as

a ruling on a question of law.

(d) Further Pleadings—The Board upon its own initiative or upon motion may order a party to make

a more definite statement of the complaint or answer, or to reply to an answer. The Board may

permit either party to amend its pleading upon conditions fair to both parties. When issues within

the proper scope of the appeal, but not raised by the pleadings, are tried by express or implied

consent of the parties, or by permission of the Board, they shall be treated in all respects as if they

had been raised therein. In such instances, motions to amend the pleadings to conform to the proof

may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is

not within the issues raised by the pleadings, it may be admitted within the proper scope of the

appeal, provided however, that the objecting party may be granted an opportunity to meet such
evidence.

Rule 7. Motions

(a) Motions Generally—The Board may entertain and rule upon motions and may defer ruling as

appropriate. The Board will rule on motions so as to secure, to the fullest extent practicable, the

informal, expeditious, and inexpensive resolution of appeals. All motions should be filed as separate

documents with an appropriate heading describing the motion. Oral argument on motions is subject

to the discretion of the Board.

(b) Jurisdictional Motions—Any motion addressed to the jurisdiction of the Board should be promptly

filed. An evidentiary hearing to address disputed jurisdictional facts will be afforded on application

of either party or by order of the Board. The Board may defer its decision on the motion pending

hearing on the merits. The Board may at any time and on its own initiative raise the issue of its

jurisdiction, and shall do so by an appropriate order, affording the parties an opportunity to be heard

thereon.

(c) Summary Judgment Motions—

(1) To facilitate disposition of such a motion, the parties should adhere to the following procedures.

Where the parties agree that disposition by summary judgment or partial summary judgment is

appropriate, they may file a stipulation of all material facts necessary for the Board to rule on the

motion. Otherwise, the moving party should file with its motion a “Statement of Undisputed Material

Facts,” setting forth the claimed undisputed material facts in separate, numbered paragraphs. The

non-moving party should file a “Statement of Genuine Issues of Material Fact,” responding to each

numbered paragraph proposed, demonstrating, where appropriate, the existence of material facts in

dispute and if appropriate propose additional facts. The moving party and the non-moving party

should submit a memorandum of law supporting or opposing summary judgment.

(2) In deciding motions for summary judgment, the Board looks to Rule 56 of the Federal Rules of

Civil Procedure for guidance. The parties should explicitly state and support by specific evidence all

facts and legal arguments necessary to sustain a party’s position. Each party should cite to the

record and attach any additional evidence upon which it relies (e.g., affidavits, declarations, excerpts

from depositions, answers to interrogatories, admissions). The Board may accept a fact properly

proposed and supported by one party as undisputed, unless the opposing party properly responds

and establishes that it is in dispute.

(d) Response to Motions—A non-moving party has 30 days from receipt of a motion to file its

response, unless a different period is ordered by the Board. A moving party has 30 days from receipt

of a non-moving party’s response to file a reply, unless a different period is ordered by the Board.

Rule 8. Discovery

(a) General Policy and Protective Orders—The parties are encouraged to engage in voluntary

discovery procedures. Within 45 days after the pleadings have been filed, the parties must confer

concerning each party’s discovery needs, including the scheduling of discovery and the production

of electronically stored information. Absent stipulation or a Board order, no discovery may be served

prior to this conference. Any motion pertaining to a discovery dispute shall include a statement that

the movant has in good faith attempted to resolve the discovery dispute without involvement of the
Board. In connection with any discovery procedure, the Board may issue orders to protect a party or

person from annoyance, embarrassment, or undue burden or expense. Those orders may include

limitations on the scope, method, time, and place for discovery, and provisions for governing the

disclosure of information or documents. Any discovery under this Rule shall be subject to the

provisions of Rule 16 with respect to sanctions.

(b) Depositions—When Permitted—Subject to paragraph (a) of this Rule, a party may take, or the

Board may upon motion order the taking of, testimony of any person by deposition upon oral

examination or written interrogatories before any officer authorized to administer oaths at the place

of examination, for use as evidence or for purpose of discovery. The Board expects the parties to

make persons under their control available for deposition. The motion for an order shall specify

whether the purpose of the deposition is discovery or for use as evidence.

(1) Depositions—Orders—The time, place, and manner of taking depositions shall be as mutually

agreed by the parties, or failing such agreement, governed by order of the Board.

(2) Depositions—Use as Evidence—No testimony taken by deposition shall be considered as part of

the evidence in the hearing of an appeal until such testimony is offered and received in evidence at

such hearing. It will not ordinarily be received in evidence if the deponent can testify at the hearing.

The deposition may be used to contradict or impeach the testimony of the deponent given at a

hearing. In cases submitted on the record, the Board may receive depositions to supplement the

record.

(3) Depositions—Expenses—Each party shall bear its own expenses associated with the taking of any

deposition, absent an agreement by the parties or a Board order to the contrary.

(4) Depositions—Subpoenas—Where appropriate, a party may request the issuance of a subpoena

under the provisions of Rule 22.

(c) Interrogatories, Requests for Admissions, Requests for Production—Subject to paragraph (a) of

this Rule, a party may serve, or the Board may upon motion order:

(1) Written interrogatories to be answered separately in writing, signed under oath and answered or

objected to within 45 days after service;

(2) A request for the admission of specified facts and/or of the authenticity of any documents, to be

answered or objected to within 45 days after service, the factual statements and/or the authenticity

of the documents to be deemed admitted upon failure of a party to respond to the request; and

(3) A request for the production, inspection, and copying of any documents, electronic or otherwise,

or objects, not privileged, which reasonably may lead to the discovery of admissible evidence, to be

answered or objected to within 45 days after service. The Board may allow a shorter or longer time.

Rule 9. Pre-Hearing or Pre-Submission Conference

The Board may, upon its own initiative, or upon the request of either party, arrange a conference or

order the parties to appear before an Administrative Judge or examiner for a conference to address

any issue related to the prosecution of the appeal.
Rule 10. Hearings

(a) Where and When Held—Hearings will be held at such times and places determined by the Board

to best serve the interests of the parties and the Board.

(b) Unexcused Absence—The unexcused absence of a party at the time and place set for hearing will

not be occasion for delay. In the event of such absence, the hearing will proceed and the evidentiary

record will consist solely of the evidence of record at the conclusion of the hearing, except as

ordered otherwise by the Board.

(c) Nature of Hearings—Hearings shall be as informal as may be reasonable and appropriate under

the circumstances. The parties may offer such evidence as they deem appropriate and as would be

admissible under the Federal Rules of Evidence or in the sound discretion of the presiding

Administrative Judge or examiner. The Federal Rules of Evidence are not binding on the Board but

may guide the Board’s rulings. The parties may stipulate the testimony that would be given by a

witness if the witness were present. The Board may require evidence in addition to that offered by

the parties.

(d) Examination of Witnesses—Witnesses will be examined orally under oath or affirmation, unless

the presiding Administrative Judge or examiner shall otherwise order. If the testimony of a witness is

not given under oath or affirmation, the Board may advise the witness that his or her testimony may

be subject to any provision of law imposing penalties for knowingly making false representations in

connection with claims.

(e) Interpreters—In appropriate cases, the Board may order that an interpreter be used. An

interpreter must be qualified and must be placed under oath or affirmation to give a complete and

true translation.

(f) Transcripts—Testimony and argument at hearings will be reported verbatim, unless the Board

otherwise orders. The Board will contract for a reporter. No other recordings of the proceedings will

be made.

Rule 11. Submission Without a Hearing

(a) Either party may elect to waive a hearing and to submit its case upon the record. Submission of a

case without hearing does not relieve the parties from the necessity of proving the facts supporting

their allegations or defenses. Affidavits, declarations, depositions, admissions, answers to

interrogatories, and stipulations may be employed in addition to the Rule 4 file if moved and

accepted into evidence. Such submissions may be supplemented by briefs. The Board may designate,

with notice to the parties, any document to be made part of the record.

(b) As appropriate, the Board may also rely on pleadings, prehearing conference memoranda,

orders, briefs, stipulations and other documents contained in the Board’s file.

(c) Except as the Board may otherwise order, no evidence will be received after notification by the

Board that the record is closed.

(d) The weight to be given to any evidence will rest within the discretion of the Board. The Board

may require either party, with appropriate notice to the other party, to submit additional evidence

on any matter relevant to the appeal.
(e) The record will at all reasonable times be available for inspection by the parties at the offices of

the Board.

Rule 12. Optional Small Claims (Expedited) and Accelerated Procedures

12.1 Elections to Utilize Small Claims (Expedited) and Accelerated Procedures

(a) In appeals where the amount in dispute is $50,000 or less, or in the case of a small business

concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less, the

appellant may elect to have the appeal processed under a Small Claims (Expedited) procedure

requiring decision of the appeal, whenever possible, within 120 days after the Board receives

written notice of the appellant’s election to utilize this procedure. The details of this procedure

appear in section 12.2 of this Rule. An appellant may elect the Accelerated procedure rather than

the Small Claims (Expedited) procedure for any appeal where the amount in dispute is $50,000 or

less.

(b) In appeals where the amount in dispute is $100,000 or less, the appellant may elect to have the

appeal processed under an Accelerated procedure requiring decision of the appeal, whenever

possible, within 180 days after the Board receives written notice of the appellant’s election to utilize

this procedure. The details of this procedure appear in section 12.3 of this Rule.

(c) The appellant’s election of either the Small Claims (Expedited) procedure or the Accelerated

procedure shall be made by written notice within 60 days after receipt of notice of docketing, unless

such period is extended by the Board for good cause. The election, once made, may not be changed

or withdrawn except with permission of the Board and for good cause.

(d) The 45-day conference required by Rule 8(a) does not apply to Rule 12 appeals.

12.2 Small Claims (Expedited) Procedure

(a) In appeals proceeding under the Small Claims (Expedited) procedure, the following time periods

shall apply:

(1) Within 10 days from the Government’s receipt of the appellant’s notice of election of the Small

Claims (Expedited) procedure, the Government shall send the Board a copy of the contract, the

contracting officer’s final decision, and the appellant’s claim letter or letters, if any. Any other

documents required under Rule 4 shall be submitted in accordance with times specified in that Rule

unless the Board otherwise directs.

(2) Within 15 days after the Board has acknowledged receipt of the appellant’s notice of election, the

assigned Administrative Judge should take the following actions, if feasible, in a pre-hearing

conference:

(i) Identify and simplify the issues;

(ii) Establish a simplified procedure, including discovery, appropriate to the particular appeal

involved;

(iii) Determine whether either party elects a hearing, and if so, fix a time and place therefor; and
(iv) Establish an expedited schedule for the timely resolution of the appeal.

(b) Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the

requirement to conduct a hearing, or if no hearing is elected, to close the record on a date that will

allow the timely issuance of the decision. The Board may shorten time periods prescribed or allowed

under these Rules as necessary to enable the Board to decide the appeal within the 120day period.

(c) Written decisions by the Board in appeals processed under the Small Claims (Expedited)

procedure will be short and will contain only summary findings of fact and conclusions. Decisions

will be rendered for the Board by a single Administrative Judge. If there has been a hearing, the

Administrative Judge presiding at the hearing may at the conclusion of the hearing and after

entertaining such oral argument as deemed appropriate, render on the record oral summary

findings of fact, conclusions, and a decision of the appeal. Whenever such an oral decision is

rendered, the Board will subsequently furnish the parties an authenticated copy of such oral

decision for record and payment purposes and to establish the starting date for the period for filing

a motion for reconsideration under Rule 20.

(d) A decision under Rule 12.2 shall have no value as precedent, and in the absence of fraud, shall be

final and conclusive and may not be appealed or set aside.

12.3 Accelerated Procedure

(a) In appeals proceeding under the Accelerated procedure, the parties are encouraged, to the

extent possible consistent with adequate presentation of their factual and legal positions, to waive

pleadings, discovery, and briefs. The Board may shorten time periods prescribed or allowed under

these Rules as necessary to enable the Board to decide the appeal within the 180-day period.

(b) Within 30 days after the Board has acknowledged receipt of the appellant’s notice of election, the

assigned Administrative Judge should take the following actions, if feasible, in a pre-hearing

conference:

(1) Identify and simplify the issues;

(2) Establish a simplified procedure, including discovery, appropriate to the particular appeal

involved;

(3) Determine whether either party elects a hearing, and if so, fix a time and place therefor; and

(4) Establish an accelerated schedule for the timely resolution of the appeal.

(c) Written decisions by the Board in appeals processed under the Accelerated procedure will

normally be short and contain only summary findings of fact and conclusions. Decisions will be

rendered for the Board by a single Administrative Judge with the concurrence of a Vice Chairman, or

by a majority among these two and the Chairman in case of disagreement.

12.4 Motions for Reconsideration in Rule 12 Appeals

Motions for reconsideration of appeals decided under either the Small Claims (Expedited) procedure

or the Accelerated procedure need not be decided within the original 120-day or 180day limit, but all

such motions will be processed and decided promptly so as to be consistent with the intent of this
Rule.

Rule 13. Settling the Record in Appeals with a Hearing

(a) The record upon which the Board’s decision will be rendered consists of the documents admitted

under Rule 4, the documents admitted into evidence as hearing exhibits, together with the hearing

transcript. The Board may designate with notice to the parties, any document to be made part of the

record.

(b) As appropriate, the Board may also rely on pleadings, pre-hearing conference memoranda,

orders, briefs, stipulations, and other documents contained in the Board’s file.

(c) Except as the Board may otherwise order, no evidence will be received after completion of an

oral hearing.

(d) The weight to be given to any evidence will rest within the discretion of the Board. The Board

may require either party, with appropriate notice to the other party, to submit additional evidence

on any matter relevant to the appeal.

(e) The record will at all reasonable times be available for inspection by the parties at the offices of

the Board.

Rule 14. Briefs

(a) Pre-Hearing Briefs—The Board may require the parties to submit pre-hearing briefs. If the Board

does not require pre-hearing briefs, either party may, upon appropriate and sufficient notice to the

other party, furnish a pre-hearing brief to the Board.

(b) Post-Hearing Briefs—Post-hearing briefs may be submitted upon such terms as may be directed

by the presiding Administrative Judge or examiner at the conclusion of the hearing.

Rule 15. Representation

(a) An individual appellant may represent his or her interests before the Board; a corporation may be

represented by one of its officers; and a partnership or joint venture by one of its members; or any of

these by an attorney at law duly licensed in any state, commonwealth, territory, the District of

Columbia, or in a foreign country. Anyone representing an appellant shall file a written notice of

appearance with the Board.

(b) The Government shall be represented by counsel. Counsel for the Government shall file a written

notice of appearance with the Board.

Rule 16. Sanctions

If any party fails to obey an order issued by the Board, the Board may impose such sanctions as it

considers necessary to the just and expeditious conduct of the appeal.
Rule 17. Dismissal or Default for Failure to Prosecute or Defend

Whenever the record discloses the failure of either party to file documents required by these Rules,

respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise

indicates an intention not to continue the prosecution or defense of an appeal, the Board may, in the

case of a default by the appellant, issue an order to show cause why the appeal should not be

dismissed with prejudice for failure to prosecute. In the case of a default by the Government, the

Board may issue an order to show cause why the Board should not act thereon pursuant to Rule 16.

If good cause is not shown, the Board may take appropriate action.

Rule 18. Suspensions; Dismissal Without Prejudice

(a) The Board may suspend the proceedings by agreement of the parties for settlement discussions,

or for good cause shown.

(b) In certain cases, appeals docketed before the Board are required to be placed in a suspense

status and the Board is unable to proceed with disposition thereof for reasons not within the control

of the Board. Where the suspension has continued, or may continue, for an inordinate length of time,

the Board may dismiss such appeals from its docket for a period of time without prejudice to their

restoration. Unless either party or the Board moves to reinstate the appeal within the time period

set forth in the dismissal order, or if no time period is set forth, within one year from the date of the

dismissal order, the dismissal shall be deemed to be with prejudice.

Rule 19. Decisions

(a) Decisions of the Board will be made in writing and authenticated copies of the decision will be

sent simultaneously to both parties. All orders and decisions, except those as may be required by law

to be held confidential, will be available to the public. Decisions of the Board will be made solely

upon the record.

(b) Any monetary award shall be promptly paid.

(c) In awards that may be paid from the Judgment Fund, 31 U.S.C. 1304, the Recorder will forward

the required forms to each party with the decision. If the parties do not contemplate an appeal or

motion for reconsideration, they will execute the forms indicating that no judicial review will be

sought. The Government agency will forward the required forms with a copy of the decision to the

Department of the Treasury for certification of payment.

(d) When the parties settle an appeal in favor of the appellant, they may file with the Board a

stipulation setting forth the amount of the settlement due to the appellant. By joint motion, the

parties may request that the Board issue a decision in the nature of a consent judgment, awarding

the stipulated amount to the appellant. These decisions will be processed in accordance with

paragraph (c) of this Rule.

(e) After a decision has become final the Board may, upon request of a party and after notice to the

other party, grant the withdrawal of original exhibits, or any part thereof. The Board may require the

substitution of true copies of exhibits or any part thereof as a condition of granting permission for

such withdrawal.
Rule 20. Motion for Reconsideration

A motion for reconsideration may be filed by either party. It shall set forth specifically the grounds

relied upon to grant the motion. The motion must be filed within 30 days from the date of the receipt

of a copy of the decision of the Board by the party filing the motion. An opposing party must file any

cross-motion for reconsideration within 30 days from its receipt of the motion for reconsideration.

Extensions in the period to file a motion will not be granted. Extensions to file a memorandum in

support of a timely-filed motion may be granted.

Rule 21. Remand from Court

Whenever any Court remands an appeal to the Board for further proceedings, each of the parties

shall, within 30 days of receipt of such remand, submit a report to the Board recommending

procedures to be followed so as to comply with the Court’s remand. The Board will consider the

reports and enter an order governing the remanded appeal.

Rule 22. Subpoenas

(a) Voluntary Cooperation—Each party is expected:

(1) To cooperate and make available witnesses and evidence under its control as requested by the

other party without issuance of a subpoena, and

(2) To secure voluntary attendance of desired third-party witnesses and production of desired thirdparty books, records, documents, or tangible things whenever possible.

(b) General—Upon written request of either party, or on his or her own initiative, an Administrative

Judge may issue a subpoena requiring:

(1) Testimony at a deposition—The deposing of a witness in the city or county where the witness

resides or is employed or transacts business in person, or at another location convenient for the

witness that is specifically determined by the Board;

(2) Testimony at a hearing—The attendance of a witness for the purpose of taking testimony at a

hearing; and

(3) Production of books and records—The production by the witness at the deposition or hearing of

books and records (including electronically stored information and other tangible things) designated

in the subpoena.

(c) Request for Subpoena—

(1) A request for subpoena shall normally be filed at least:

(i) 15 days before a scheduled deposition where the attendance of a witness at a deposition is

sought; or

(ii) 30 days before a scheduled hearing where the attendance of a witness at a hearing is sought.
(2) The Board may honor a request for subpoena not made within the time limitations set forth in

paragraph (c)(1) of this Rule.

(3) A request for a subpoena shall state the reasonable scope and general relevance to the case of

the testimony and of any books and records sought. The Board may require resubmission of a

request that does not provide this information.

(d) Requests to Quash or Modify—Upon written request by the person subpoenaed or by a party,

made within 10 days after service but in any event not later than the time specified in the subpoena

for compliance, the Board may quash or modify the subpoena if it is unreasonable or oppressive or

for other good cause shown, or require the person in whose behalf the subpoena was issued to

advance the reasonable cost of producing subpoenaed books and papers. Where circumstances

require, the Board may act upon such a request at any time after a copy of the request has been

served upon the opposing party.

(e) Form of Subpoena—

(1) Every subpoena shall state the name of the Board and the caption of the appeal, and shall

command each person to whom it is directed to attend and give testimony, and if appropriate, to

produce specified books and records at a time and place therein specified. In issuing a subpoena to a

requesting party, the Administrative Judge will sign the subpoena, enter the name of the witness and

may otherwise leave it blank. The party to whom the subpoena is issued shall complete the subpoena

before service.

(2) Where the witness is located in a foreign country, a letter rogatory may be issued and served

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

(f) Service—

(1) The party requesting issuance of a subpoena shall arrange for service.

(2) A subpoena requiring the attendance of a witness at a deposition or hearing may be served in any

state, commonwealth, territory, or the District of Columbia. A subpoena may be served by a United

States marshal or deputy marshal, or by any other person who is not a party and not less than 18

years of age. Service of a subpoena upon a person named therein shall be made by personally

delivering a copy to that person and tendering the fees for one day’s attendance and the mileage

provided by 28 U.S.C. 1821 or other applicable law. However, where the subpoena is issued on

behalf of the Government, payment need not be tendered in advance of attendance.

(3) The party at whose instance a subpoena is issued shall be responsible for the payment of fees

and mileage of the witness and of the officer who serves the subpoena. The failure to make payment

of such charges on demand may be deemed by the Board as a sufficient ground for striking such

evidence as the Board deems appropriate.

(g) Contumacy or Refusal to Obey a Subpoena—In case of contumacy or refusal to obey a subpoena

by a person who resides, is found, or transacts business within the jurisdiction of a United States

District Court, the Board may apply to the Court through the Attorney General of the United States

for an order requiring the person to appear before the Board to give testimony or produce evidence

or both. Any failure of any such person to obey the order of the Court may be punished by the Court

as a contempt thereof.
Rule 23. Ex Parte Communications

No member of the Board or of the Board’s staff shall entertain, nor shall any person directly or

indirectly involved in an appeal, submit to the Board or the Board’s staff, ex parte, any evidence,

explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal.

This Rule does not apply to consultation among Board members or its staff or to ex parte

communications concerning the Board’s administrative functions or procedures.

Rule 24. Effective Date

These rules and addendums are applicable to appeals processed under the Contract Disputes Act

(CDA), 41 U.S.C. 7101-7109, and other appeals to the extent consistent with law. They apply to all

appeals filed on or after the date of final publication in the Federal Register, and to those appeals

filed before that date, unless that application is inequitable or unfair.

ADDENDUM I

EQUAL ACCESS TO JUSTICE ACT PROCEDURES

(a) Definitions—

For the purpose of these procedures:

(1) "Equal Access to Justice Act," or "EAJA," means 5 U.S.C. 504, as amended;

(2) "Board" means the Armed Services Board of Contract Appeals; and

(3) "Contract Disputes Act" means the Contract Disputes Act, 41 U.S.C. 71017109 (CDA).

(b) Scope of procedures—These procedures are intended to assist the parties in the processing of

EAJA applications for award of fees and other expenses incurred in connection with appeals

pursuant to the CDA.

(c) Eligibility of applicants—

(1) To be eligible for an EAJA award, an applicant must be a party appellant that has prevailed in a

CDA appeal before the Board and must be one of the following:

(i) An individual with a net worth which did not exceed $2,000,000 at the time the appeal was filed;

or

(ii) Any owner of an unincorporated business, or any partnership, corporation, association, unit of

local Government, or organization, the net worth of which does not exceed $7,000,000 and which

does not have more than 500 employees; except:

(A) Certain charitable organizations or cooperative associations; and

(B) For the purposes of 5 U.S.C. 504(a)(4), a small entity as defined in 5 U.S.C. 601, need not comply

with any net worth requirement (see 5 U.S.C. 504(b)(1)(B)).

(2) For the purpose of eligibility, the net worth and number of employees of an applicant shall be
determined as of the date the underlying CDA appeal was filed with the Board.

(d) Standards of awards—A prevailing eligible applicant shall receive an award of fees and expenses

incurred in connection with a CDA appeal, unless the position of the Government over which the

applicant prevailed was substantially justified, or if special circumstances make the award unjust.

(e) Allowable fees and other expenses—

(1) Fees and other expenses must be reasonable. Awards will be based upon the prevailing market

rates, subject to paragraph (e)(2) of this section, for the kind and quality of services furnished by

attorneys, agents, and expert witnesses.

(2) No award for the fee of an attorney or agent may exceed $125 per hour. No expert witness shall

be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by

the agency involved.

(3) The reasonable cost of any study, analysis, engineering report, test, or project, prepared on

behalf of a party may be awarded, to the extent that the study or other matter was necessary in

connection with the appeal and the charge for the service does not exceed the prevailing rate for

similar services.

(f) Time for filing of applications—An application may be filed after an appellant has prevailed in the

CDA appeal within 30 days after the Board’s disposition of the appeal has become final.

(g) Application contents—

(1) An EAJA application shall comply with each of the following:

(i) Show that the applicant is a prevailing party;

(ii) Show that the applicant is eligible to receive an award;

(iii) Allege that the position of the government was not substantially justified; and

(iv) Show the amount of fees and other expenses sought, including an itemized statement thereof.

(2) An original and one copy of the application and exhibits should be filed with the Board. The

applicant will forward one copy to the Government.

(3) When a compliant application has been timely filed, the Board, in order to obtain more detailed

information, may require supplementation of the application.

(h) Net worth exhibit—Each applicant for which a determination of net worth is required under the

EAJA should provide with its application a detailed net worth exhibit showing the net worth of the

applicant when the CDA appeal was filed. The exhibit may be in any form convenient to the applicant

that provides full disclosure of assets, liabilities, and net worth.

(i) Fees and other expenses exhibit—The application should be accompanied by a detailed fees and

other expenses exhibit fully documenting the fees and other expenses, including the cost of any

study, analysis, engineering report, test, or project, for which an award is sought. The date and a

description of all services rendered or costs incurred should be indicated. A separate itemized

statement should be submitted for each professional firm or individual whose services are covered

by the application showing the hours spent in connection with the CDA appeal by each individual, a
description of the particular services performed by specific date, the rate at which each fee has been

computed, any expenses for which reimbursement is sought, the total amount claimed, and the total

amount paid or payable by the applicant or by any other person or entity for the services provided.

The Board may require the applicant to provide vouchers, receipts, or other substantiation for any

expenses sought.

(j) Answer to application—

(1) Within 30 days after receipt by the Government of an application, the Government may file an

answer. Unless the Government requests an extension of time for filing or files a statement of intent

to negotiate under paragraph (2) below, failure to file an answer within the 30-day period may be

treated by the Board at its discretion as a general denial to the application on behalf of the

Government.

(2) If the Government and the applicant believe that the matters raised in the application can be

resolved by mutual agreement, they may jointly file a statement of intent to negotiate a settlement.

Filing of this statement will extend the time for filing an answer for an additional 30 days. Further

extensions may be requested by the parties.

(3) The answer will explain in detail any objections to the award requested and identify the facts

relied upon in support of the Government's position.

(4) An original and one copy of the answer should be filed with the Board. The Government will

forward one copy to the applicant.

(k) Reply—Within 15 days after receipt of an answer, the applicant may file a reply. An original and

one copy of the reply will be filed with the Board. The applicant will forward one copy to the

Government.

(l) Award proceedings—

(1) The Board may enter an order prescribing the procedure to be followed or take such other action

as may be deemed appropriate under the EAJA. Further proceedings will be held only when

necessary for full and fair resolution of the issues arising from the application.

(2) A request that the Board order further proceedings under this paragraph will describe the

disputed issues, explain why the additional proceedings are deemed necessary to resolve the issues

and specifically identify any information sought and its relationship to the disputed issues.

(m) Evidence—

(1) Decisions on the merits—When a CDA appeal is decided on the merits, other than by a consent

judgment, the record relating to whether the Government's position under the EAJA was

substantially justified will be limited to the record in the CDA appeal. Evidence relevant to other

issues in the award proceeding may be submitted.

(2) Other dispositions—When a CDA appeal is settled, or decided by a consent judgment, either

party in proceedings under the EAJA may, for good cause shown, supplement the record established

in the CDA appeal with affidavits and other supporting evidence relating to whether the position of

the agency was substantially justified or other issues in the award proceeding.

(n) Decision—Decisions under the EAJA will be rendered by the Administrative Judge or a majority of

the judges who would have participated in a motion for reconsideration of the underlying CDA
appeal. The decision of the Board will include written findings and conclusions and the basis

therefor. The Board's decision on an application for fees and other expenses under the EAJA will be

the final administrative decision regarding the EAJA application.

(o) Motions for reconsideration—Either party may file a motion for reconsideration. Motions for

reconsideration must be filed within 30 days of receipt of the Board's EAJA decision. Extensions in

the period to file a motion will not be granted. Extensions to file a memorandum in support of a

timely filed motion may be granted.

(p) Payment of Awards—The Board's EAJA awards will be paid directly by the contracting agency

over which the applicant prevailed in the underlying CDA appeal.

ADDENDUM II

ALTERNATIVE METHODS OF DISPUTE RESOLUTION

1. The Contract Disputes Act (CDA), 41 U.S.C. 7105(g)(1), states that boards of contract appeals

"shall ... to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of

disputes". Resolution of a dispute at the earliest stage feasible, by the fastest and least expensive

method possible, benefits both parties. To that end, the parties are encouraged to consider

Alternative Dispute Resolution (ADR) procedures for pre-claim and pre-final decision matters, as

well as appeals pending before the Board. The Board may also conduct ADRs for any Federal

agency. However, if the matter is not pending before the Board under its CDA jurisdiction, any

settlement may not be paid out of the Judgment Fund.

2. The ADR methods described in this Addendum are intended to suggest techniques that have

worked in the past. Any appropriate method that brings the parties together in settlement, or partial

settlement, of their disputes is a good method. The ADR methods listed are not intended to preclude

the parties' use of other ADR techniques that do not require the Board's participation, such as

settlement negotiations, fact-finding conferences or procedures, mediation, or minitrials not

involving use of the Board's personnel. Any method, or combination of methods, including one that

will result in a binding decision, may be selected by the parties without regard to the dollar amount

in dispute.

3. The parties must jointly request ADR procedures at the Board. The request must be approved by

the Board. The Board may also schedule a conference to explore the desirability and selection of an

ADR method and related procedures. If an ADR involving the Board's participation is requested and

approved by the Board, a Neutral will be appointed. If an Administrative Judge has already been

assigned to an appeal, the same judge will normally be assigned to be the Neutral in an ADR. If an

Administrative Judge has not yet been assigned to the appeal, or if the subject of the ADR is a matter

pending before the contracting officer prior to any appeal, the Board will appoint an Administrative

Judge to be the Neutral. In such instances, as well as situations in which the parties prefer that an

assigned Administrative Judge not be appointed to serve as the Neutral, the parties may submit a list

of at least three preferred Administrative Judges and the Board will endeavor to accommodate their

preferences.

4. To facilitate full, frank and open discussion and presentations, any Neutral who has participated

in a non-binding ADR procedure that has failed to resolve the underlying dispute will be recused

from further participation in the matter unless the parties expressly agree otherwise in writing and

the Board concurs. Further, the recused Neutral will not discuss the merits of the dispute or

substantive matters involved in the ADR proceedings with other Board personnel.
5. Written material prepared specifically for use in an ADR proceeding, oral presentations made at

an ADR proceeding, and all discussions in connection with such proceedings between the parties

and the Neutral are confidential and, unless otherwise specifically agreed by the parties,

inadmissible as evidence in any pending or future Board proceeding involving the parties or matter

in dispute. However, evidence otherwise admissible before the Board is not rendered inadmissible

because of its use in the ADR proceeding.

6. The ADR method and the procedures and requirements implementing the ADR method will be

prescribed by the written agreement of the parties and approved by the Board. ADR methods can be

used successfully at any stage of the litigation.

7. The following are examples of ADR methods commonly used at the Board:

(a) Nonbinding—

Mediations: A Neutral is an Administrative Judge who will not normally hear or have any formal or

informal decision-making authority in the matter and who is appointed for the purpose of facilitating

settlement. In many circumstances, settlement can be fostered by a frank, in-depth discussion of the

strengths and weaknesses of each party's position with the Neutral. The agenda for meetings with

the Neutral will be flexible to accommodate the requirements of the case. To further the settlement

effort, the Neutral may meet with the parties either jointly or individually. A Neutral’s

recommendations are not binding on the parties. When this method is selected, the ADR agreement

must contain a provision in which the parties and counsel agree not to subpoena the Neutral in any

legal action or administrative proceeding of any kind to produce any notes or documents related to

the ADR proceeding or to testify concerning any such notes or documents or concerning his/her

thoughts or impressions.

(b) Binding—

Summary Proceeding With Binding Decision: A summary proceeding with binding decision is a

procedure whereby the resolution of the appeal is expedited and the parties try their appeal

informally before an Administrative Judge. A binding "bench" decision may be issued upon

conclusion of the proceeding, or a binding summary written decision will be issued by the judge no

later than ten days following the later of conclusion of the proceeding or receipt of a transcript. The

parties must agree in the ADR agreement that all decisions, rulings, and orders by the Board under

this method shall be final, conclusive, not appealable, and may not be set aside, except for fraud. All

such decisions, rulings, and orders will have no precedential value. Prehearing, hearing, and posthearing procedures and rules applicable to appeals generally will be modified or eliminated to

expedite resolution of the appeal.

(c) Other Agreed Methods—

The parties and the Board may agree upon other informal methods, binding or nonbinding that are

structured and tailored to suit the requirements of the individual case.

8. The above-listed ADR procedures are intended to shorten and simplify the Board's more

formalized procedures. Generally, if the parties resolve their dispute by agreement, they benefit in

terms of cost and time savings and maintenance or restoration of amicable relations. The Board will

not view the parties' participation in ADR proceedings as a sign of weakness. Any method adopted

for dispute resolution depends upon both parties having a firm, good faith commitment to resolve

their differences. Absent such intention, the best structured dispute resolution procedure is unlikely

to be successful.
ARMED SERVICES BOARD OF CONTRACT APPEALS