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[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Proposed Rules]
[Pages 7782-7788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3120]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Chapter 2

Defense Federal Acquisition Regulation Supplement; Rules of the 
Armed Services Board of Contract Appeals

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is issuing a proposed rule to update the Rules of the 
Armed Services Board of Contract Appeals (ASBCA). The proposed rule 
implements statutory increases in the thresholds relating to the 
submission and processing of contract appeals and updates statutory 
references and other administrative information.

DATES: Comment date: Interested parties should submit comments in 
writing to the address shown below on or before March 14, 2011.

ADDRESSES: You may submit comments, identified by ``DFARS ASBCA 
Rules'', using any of the following methods:
    [cir] Regulations.gov:http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by inputting ``DFARS ASBCA Rules'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS 
ASBCA Rules.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS ASBCA Rules'' on your attached document.
    [cir] E-mail: dfars@osd.mil. Include DFARS ASBCA Rules in the 
subject line of the message.
    [cir] Fax: 703-681-8535
    [cir] Mail: Armed Services Board of Contract Appeals, Attn: 
Catherine Stanton, Skyline Six, Room 703, 5109 Leesburg Pike, Falls 
Church, VA 22041-3208.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment, please check http://www.regulations.gov approximately two to three days after submission to 
verify posting (except allow 30 days for posting of comments submitted 
by mail.

FOR FURTHER INFORMATION CONTACT: Catherine Stanton, Executive Director, 
ASBCA, 703-681-8503, Internet address: catherine.stanton@asbca.mil; or 
David Houpe, Chief Counsel, ASBCA, 703-681-8510, Internet address: 
david.houpe@asbca.mil.

SUPPLEMENTARY INFORMATION:

I. Background

    The rule is being issued on behalf of Mr. Paul Williams, Chairman, 
Armed Services Board of Contract Appeals. It proposes to amend DFARS 
Appendix A, Armed Services Board of Contract Appeals, Part 2--Rules, to 
update thresholds related to requirements for contractor claims and to 
update information as follows:
    [cir] The Preface, section II(a), is amended to update the Board's 
address and telephone number.
    [cir] In Rule 1, subsections (b) and (c) implement section 2351(b) 
of Public Law 103-355, 108 Stat. 3322 (1994). Section 2351(b) amended 
41 U.S.C. 605(c) to increase, from $50,000 to $100,000, the threshold 
relating to certification, decision, and notification requirements for 
contractor claims.
    [cir] Rule 12.1, subsection (a), and Rule 12.3, subsection (b), 
implement section 2351(d) of Public Law 103-355, 108 Stat. 3322 (1994). 
Section 2351(d) amended 41 U.S.C. 608(a) to increase, from $10,000 to 
$50,000, the threshold for applicability of small claims procedures for 
disposition of appeals.
    [cir] Rule 12.1, subsection (a) implements section 857 of Public 
Law 109-364, 120 Stat. 2349 (2006). Section 857 amended 41 U.S.C. 
608(a) to insert after ``$50,000 or less'' the following language: 
``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.''
    [cir] Rule 12.1, subsection (b), implements section 2351(c) of 
Public Law 103-355, 108 Stat. 3322 (1994). Section 2351(c) amended 41 
U.S.C. 607(f) to increase, from $50,000 to $100,000, the threshold for 
applicability of accelerated procedures for disposition of appeals.
    [cir] Rule 28, subsection (b), implements section 4322(b)(7) of 
Public Law 104-106, 110 Stat. 677 (1996). Section 4322(b)(7) amended 41 
U.S.C. 612 to update statutory references relating to payment of 
claims. Rule 28, subsection (b), also contains changes for consistency 
with the judgment fund certification process specified in the Treasury 
Financial Manual, Financial Management Service, Department of the U.S. 
Treasury.
    [cir] Minor changes were made throughout the Rules to ensure 
uniformity and to correct typographical errors.

II. Executive Order 12866

    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993. This rule is not 
a major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule 
implements current statutory provisions relating to the submission and 
processing of contract appeals, primarily adjusting current dollar 
limits affecting the processing of contract appeals to keep pace with 
inflation. Therefore, the adjustment of thresholds just maintains the 
status quo. Accordingly, DoD has not performed an initial regulatory 
flexibility analysis. DoD invites comments from small businesses and 
other interested parties on the expected impact of this rule on small 
entities.

IV. Paperwork Reduction Act

    The rule does not impose any information collection requirements 
that require the approval of the Office of Management and Budget under 
the

[[Page 7783]]

Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR, Appendix A, Part 2

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR chapter 2 is amended as follows:

    1. The authority citation for 48 CFR chapter 2 continues to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

Chapter 2--Defense Acquisition Regulations System, Department of 
Defense

    2. Appendix A to Chapter 2 is amended by revising, Part 2--Rules to 
read as follows:

Appendix to Chapter 2 --Armed Services Board of Contract Appeals

* * * * *

Part 2--Rules

Revised [DATE]

RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS

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 decision 
of a contracting officer, pursuant to the Contract Disputes Act of 
1978, 41 U.S.C. 601-613, or its Charter, relative to a contract made 
by--
    (a) the Department of Defense, the Department of the Army, the 
Department of the Navy, and the Department of the Air Force or the 
National Aeronautics and Space Administration or
    (b) 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 22041-3208, telephone 703-681-8500 
(receptionist), 703-681-8502 (Recorder).
    (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 Armed Services Board 
of Contract Appeals, established by the Chairman of the Board in 
such manner as to provide for the most effective and expeditious 
handling of appeals. The Chairman and a Vice Chairman of the Board 
act as members of each division. Appeals are assigned to the 
divisions for decision without regard to the military department or 
other procuring agency which entered into the contract involved. 
Hearings may be held by a designated member (Administrative Judge), 
or by a duly authorized examiner. Except for appeals processed under 
the expedited or accelerated procedure, 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, and all division heads), 
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 which have occasioned serious dispute within the 
normal division decision process. For decisions of appeals processed 
under the expedited or accelerated procedure, see Rules 12.2(c) and 
12.3(b).

TABLE OF CONTENTS

RULES OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS

PRELIMINARY PROCEDURES

Rule 1 Appeals, How Taken
Rule 2 Notice of Appeal, Contents of
Rule 3 Docketing of Appeals
Rule 4 Preparation, Content, Organization, Forwarding, and Status of 
Appeal File
Rule 5 Motions
Rule 6 Pleadings
Rule 7 Amendments of Pleadings or Record
Rule 8 Hearing Election
Rule 9 Prehearing Briefs
Rule 10 Prehearing or Presubmission Conference
Rule 11 Submission Without a Hearing
Rule 12 Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures
Rule 13 Settling the Record
Rule 14 Discovery--Depositions
Rule 15 Interrogatories to Parties, Admission of Facts, and 
Production and Inspection of Documents
Rule 16 Service of Papers Other than Subpoenas

HEARINGS

Rule 17 Where and When Held
Rule 18 Notice of Hearings
Rule 19 Unexcused Absence of a Party
Rule 20 Hearings: Nature, Examination of Witnesses
Rule 21 Subpoenas
Rule 22 Copies of Papers
Rule 23 Post-Hearing Briefs
Rule 24 Transcript of Proceedings
Rule 25 Withdrawal of Exhibits

REPRESENTATION

Rule 26 The Appellant
Rule 27 The Government

DECISIONS

Rule 28 Decisions

MOTION FOR RECONSIDERATION

Rule 29 Motion for Reconsideration

SUSPENSIONS, DISMISSALS, DEFAULTS, REMANDS

Rule 30 Suspensions; Dismissal Without Prejudice
Rule 31 Dismissal or Default for Failure to Prosecute or Defend
Rule 32 Remand from Court

TIME, COMPUTATION, AND EXTENSIONS

Rule 33 Time, Computation, and Extensions

EX PARTE COMMUNICATIONS

Rule 34 Ex parte Communications

SANCTIONS

Rule 35 Sanctions

EFFECTIVE DATE AND APPLICABILITY

Rule 36 Effective Date

RULES

PRELIMINARY PROCEDURES

Rule 1. Appeals, How Taken

    (a) 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. A copy thereof shall be 
furnished to the contracting officer from whose decision the appeal 
is taken.
    (b) 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 one within the period required, the 
contractor may file a notice of appeal as provided in subparagraph 
(a) hereof, citing the failure of the contracting officer to issue a 
decision.
    (c) Where the contractor has submitted a properly certified 
claim over $100,000 to the contracting officer or has requested a 
decision by the contracting officer which presently involves no 
monetary amount pursuant to the Disputes clause, and the contracting 
officer has failed to issue a decision within a reasonable time, 
taking into account such factors as the size and complexity of the 
claim, the contractor may file a notice of appeal as provided in 
subparagraph (a) hereof, citing the failure of the contracting 
officer to issue a decision.
    (d) Upon docketing of appeals filed pursuant to (b) or (c) 
hereof, 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.
    (e) In lieu of filing a notice of appeal under (b) or (c) 
hereof, the contractor may request the Board to direct the 
contracting officer to issue a decision in a specified period of 
time, as determined by the Board, in the event of undue delay on the 
part of the contracting officer.

Rule 2. Notice of Appeal, Contents of

    A notice of appeal should 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 known. The notice of appeal 
should be signed personally by the appellant (the contractor taking 
the appeal), 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

[[Page 7784]]

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

Rule 3. Docketing of Appeals

    When a notice of appeal in any form has been received by the 
Board, it shall be docketed promptly. Notice in writing shall be 
given to the appellant with a copy of these Rules, and to the 
contracting officer.

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

    (a) Duties of Contracting Officer--Within 30 days of receipt of 
an appeal, or notice that an appeal has been filed, the contracting 
officer shall assemble and transmit to the Board an appeal file 
consisting of all documents pertinent 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 the letter or letters of claim in response to 
which the decision was issued;
    (4) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the 
matter in dispute made prior to the filing of the notice of appeal 
with the Board; and
    (5) Any additional information considered relevant to the 
appeal.

Within the same time specified hereof, the contracting officer shall 
furnish the appellant a copy of each document the contracting 
officer transmits to the Board, except those in subparagraph (a)(2) 
hereof. As to the latter, a list furnished the appellant indicating 
specific contractual documents transmitted will suffice.
    (b) Duties of the Appellant--Within 30 days after receipt of a 
copy of the appeal file assembled by the contracting officer, the 
appellant shall transmit to the Board any documents not contained 
therein which the appellant considers relevant to the appeal, and 
furnish two copies of such documents to the Government trial 
attorney.
    (c) Organization of Appeal File--Documents in the appeal file 
may be originals or legible facsimiles or authenticated copies, and 
shall be arranged in chronological order, where practicable, 
numbered sequentially, tabbed, and indexed to identify the contents 
of the file.
    (d) Lengthy Documents--Upon request by either party, the Board 
may waive the requirement to furnish to the other party copies of 
bulky, lengthy, or out-of-size documents in the appeal file when 
inclusion would be burdensome. At the time a party files with the 
Board a document for which such a waiver has been granted, the party 
shall notify the other party that the document or a copy is 
available for inspection at the offices of the Board or of the 
filing party.
    (e) 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 
consideration of a particular document or documents reasonably in 
advance of hearing or, if there is no hearing, of settling the 
record. If such objection is made, the Board shall remove the 
document or documents from the appeal file and permit the party 
offering the document to move its admission as evidence in 
accordance with Rules 13 and 20.
    (f) Notwithstanding the foregoing, the filing of the Rule 4(a) 
and (b) documents may be dispensed with by the Board either upon 
request of the appellant in its notice of appeal or thereafter upon 
stipulation of the parties.

Rule 5. Motions

    (a) Any motion addressed to the jurisdiction of the Board shall 
be promptly filed. Hearing on the motion shall be afforded on 
application of either party. However, the Board may defer its 
decision on the motion pending hearing on both the merits and the 
motion. The Board shall have the right, at any time and on its own 
initiative, to raise the issue of its jurisdiction to proceed with a 
particular appeal, and shall do so by an appropriate order, 
affording the parties an opportunity to be heard thereon.
    (b) The Board may entertain and rule upon other appropriate 
motions.

Rule 6. Pleadings

    (a) Appellant--Within 30 days after receipt of notice of 
docketing of the appeal, the appellant shall file with the Board an 
original and two copies of a complaint setting forth simple, 
concise, and direct statements of each of its claims. The appellant 
shall also set forth the basis, with appropriate reference to 
contract provisions, of each claim and the dollar amount claimed, to 
the extent known. This pleading shall fulfill the generally 
recognized requirements of a complaint, although no particular form 
is required. Upon receipt of the complaint, the Board shall serve a 
copy of it upon the Government unless a copy has been provided 
directly by the appellant. Should the complaint not be received 
within 30 days, the appellant's claim and appeal may, if in the 
opinion of the Board the issues before the Board are sufficiently 
defined, be deemed to set forth its complaint and the Government 
shall be so notified.
    (b) Government--Within 30 days from receipt of the complaint, or 
the aforesaid notice from the Board, the Government shall prepare 
and file with the Board an original and two copies of an answer 
thereto. The answer shall set forth simple, concise, and direct 
statements of the Government's defenses to each claim asserted by 
the appellant, including any affirmative defenses available. Upon 
receipt of the answer, the Board shall serve a copy upon the 
appellant. Should the answer not be received within 30 days, the 
Board may, in its discretion, enter a general denial on behalf of 
the Government, and the appellant shall be so notified.
    (c) 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 11, 
13, or 20. The determination of foreign law shall be treated as a 
ruling on a question of law.

Rule 7. Amendments of Pleadings or Record

    The Board, upon its own initiative or upon application by a 
party, may order a party to make a more definite statement of the 
complaint or answer, or to reply to an answer. The Board may, in its 
discretion, and within the proper scope of the appeal, 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 a 
continuance, if necessary, to enable it to meet such evidence.

Rule 8. Hearing Election

    After filing of the Government's answer or notice from the Board 
that it has entered a general denial on behalf of the Government, 
each party shall advise whether it desires a hearing as prescribed 
in Rules 17 through 25, or whether it elects to submit its case on 
the record without a hearing, as prescribed in Rule 11.

Rule 9. Prehearing Briefs

    Based on an examination of the pleadings, and its determination 
of whether the arguments and authorities addressed to the issues are 
adequately set forth therein, the Board may, in its discretion, 
require the parties to submit prehearing briefs in any case in which 
a hearing has been elected pursuant to Rule 8. If the Board does not 
require prehearing briefs, either party may, in its discretion and 
upon appropriate and sufficient notice to the other party, furnish a 
prehearing brief to the Board. In any case where a prehearing brief 
is submitted, it shall be furnished so as to be received by the 
Board at least 15 days prior to the date set for hearing, and a copy 
shall simultaneously be furnished to the other party as previously 
arranged.

Rule 10. Prehearing or Presubmission Conference

    (a) Whether the case is to be submitted pursuant to Rule 11, or 
heard pursuant to Rules 17 through 25, the Board may, upon its own 
initiative, or upon the application of either party, arrange a 
telephone conference or call upon the parties to appear before an 
Administrative Judge or examiner of the Board for a conference to 
consider--
    (1) Simplification, clarification, or severing of the issues;
    (2) The possibility of obtaining stipulations, admissions, 
agreements, and rulings on admissibility of documents, 
understandings on matters already of record,

[[Page 7785]]

or similar agreements that will avoid unnecessary proof;
    (3) Agreements and rulings to facilitate discovery;
    (4) Limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence;
    (5) The possibility of agreement disposing of any or all of the 
issues in dispute; and
    (6) Such other matters as may aid in the disposition of the 
appeal.
    (b) The Administrative Judge or examiner of the Board shall make 
such rulings and orders as may be appropriate to aid in the 
disposition of the appeal. The results of pre-trial conferences, 
including any rulings and orders, shall be reduced to writing by the 
Administrative Judge or examiner, and this writing shall thereafter 
constitute a part of the record.

Rule 11. Submission Without a Hearing

    Either party may elect to waive a hearing and to submit its case 
upon the record before the Board, as settled pursuant to Rule 13. 
Submission of a case without hearing does not relieve the parties 
from the necessity of proving the facts supporting their allegations 
or defenses. Affidavits, depositions, admissions, answers to 
interrogatories, and stipulations may be employed to supplement 
other documentary evidence in the Board record. The Board may permit 
such submissions to be supplemented by oral argument (transcribed if 
requested), and by briefs arranged in accordance with Rule 23.

Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED 
Procedures (These procedures are available solely at the election 
of the appellant.)

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

12.2 The 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 first receipt from 
either the appellant or the Board of a copy 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; remaining 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 shall take the following actions, if feasible, in an informal 
meeting or a telephone conference with both parties:
    (i) identify and simplify the issues;
    (ii) establish a simplified procedure appropriate to the 
particular appeal involved;
    (iii) determine whether either party wants a hearing, and if so, 
fix a time and place therefor;
    (iv) require the Government to furnish all the additional 
documents relevant to the appeal; and
    (v) establish an expedited schedule for resolution of the 
appeal.
    (b) Pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct the 
hearing on the date scheduled, or if no hearing is scheduled, to 
close the record on a date that will allow decisions within the 120-
day limit. The Board, in its discretion, may impose shortened time 
periods for any actions prescribed or allowed under these Rules, as 
necessary to enable the Board to decide the appeal within the 120-
day limit, allowing whatever time, up to 30 days, that the Board 
considers necessary for the preparation of the decision after 
closing the record and the filing of briefs, if any.
    (c) Written decision 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, in the judge's discretion, at the conclusion of the 
hearing and after entertaining such oral arguments as are 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 a typed 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 29.
    (d) A decision against the Government or the appellant 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 The 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, in its discretion, may 
shorten time periods prescribed or allowed elsewhere in these Rules, 
including Rule 4, as necessary to enable the Board to decide the 
appeal within 180 days after the Board has received the appellant's 
notice of election of the ACCELERATED procedure, and may reserve 30 
days for preparation of the decision.
    (b) Written decision 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. Alternatively, in an appeal where 
the amount in dispute is $50,000 or less as to which the ACCELERATED 
procedure has been elected and in which there has been a hearing, 
the single Administrative Judge presiding at the hearing may, with 
the concurrence of both parties, at the conclusion of the hearing 
and after entertaining such oral arguments as are 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 a typed 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 29.

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 180-day limit, but all 
such motions shall be processed and decided rapidly so as to fulfill 
the intent of this Rule.

Rule 13. Settling the Record

    (a) The record upon which the Board's decision will be rendered 
consists of the documents furnished under Rules 4 and 12, to the 
extent admitted in evidence, and the following items, if any: 
pleadings, prehearing conference memoranda or orders, prehearing 
briefs, depositions or interrogatories received in evidence, 
admissions, stipulations, transcripts of conferences and hearings, 
hearing exhibits, posthearing briefs, and documents which the Board 
has specifically designated to be made a part of the record. The 
record will, at all reasonable times, be available for inspection by 
the parties at the office of the Board.
    (b) Except as the Board may otherwise order in its discretion, 
no proof shall be received in evidence after completion of an oral 
hearing or, in cases submitted on the record, after notification by 
the Board that the case is ready for decision.

[[Page 7786]]

    (c) The weight to be attached to any evidence of record will 
rest within the sound discretion of the Board. The Board may in any 
case require either party, with appropriate notice to the other 
party, to submit additional evidence on any matter relevant to the 
appeal.

Rule 14. Discovery--Depositions

    (a) General Policy and Protective Orders--The parties are 
encouraged to engage in voluntary discovery procedures. In 
connection with any deposition or other discovery procedure, the 
Board may make any order required 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 protecting the secrecy of confidential 
information or documents.
    (b) When Depositions Permitted--After an appeal has been 
docketed and complaint filed, the parties may mutually agree to, or 
the Board may, upon application of either party, 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 application for order shall specify 
whether the purpose of the deposition is discovery or for use as 
evidence.
    (c) Orders on Depositions--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.
    (d) Use as Evidence--No testimony taken by depositions 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 is 
present and can testify at the hearing. In such instances, however, 
the deposition may be used to contradict or impeach the testimony of 
the deponent given at the hearing. In cases submitted on the record, 
the Board may, in its discretion, receive depositions to supplement 
the record.
    (e) Expenses--Each party shall bear its own expenses associated 
with the taking of any deposition.
    (f) Subpoenas--Where appropriate, a party may request the 
issuance of a subpoena under the provisions of Rule 21.

Rule 15. Interrogatories to Parties, Admission of Facts, and 
Production and Inspection of Documents

    After an appeal has been docketed and complaint filed with the 
Board, a party may serve on the other party--
    (a) written interrogatories to be answered separately in 
writing, signed under oath and answered or objected to within 45 
days after service;
    (b) 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
    (c) a request for the production, inspection, and copying of any 
documents 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. Any discovery 
engaged in under this Rule shall be subject to the provisions of 
Rule 14(a) with respect to general policy and protective orders, and 
of Rule 35 with respect to sanctions.

Rule 16. Service of Papers Other Than Subpoenas

    Papers shall be served personally or by mail, addressed to the 
party upon whom service is to be made. Copies of complaints, 
answers, and briefs shall be filed directly with the Board. The 
party filing any other paper with the Board shall send a copy 
thereof to the opposing party, noting on the paper filed with the 
Board that a copy has been so furnished. Subpoenas shall be served 
as provided in Rule 21.

HEARINGS

Rule 17. Where and When Held

    Hearings will be held at such places determined by the Board to 
best serve the interests of the parties and the Board. Hearings will 
be scheduled at the discretion of the Board with due consideration 
to the regular order of appeals, Rule 12 requirements, and other 
pertinent factors. On request or motion by either party and for good 
cause, the Board may, in its discretion, adjust the date of a 
hearing.

Rule 18. Notice of Hearings

    The parties shall be given at least 15 days notice of the time 
and place set for hearings. In scheduling hearings, the Board will 
consider the desires of the parties and the requirement for just and 
inexpensive determination of appeals without unnecessary delay. 
Notices of hearings shall be promptly acknowledged by the parties.

Rule 19. Unexcused Absence of a Party

    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 case will be regarded as 
submitted by the absent party as provided in Rule 11.

Rule 20. Hearings: Nature, Examination of Witnesses

    (a) Nature of Hearings--Hearings shall be as informal as may be 
reasonable and appropriate under the circumstances. The appellant 
and the Government 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. Stipulations of fact agreed upon by the parties may be 
regarded and used as evidence at the hearing. 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.
    (b) Examination of Witnesses--Witnesses before the Board 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, the Board may advise 
the witness that his or her statements may be subject to the 
provisions of Title 18, United States Code, sections 287 and 1001, 
and any other provision of law imposing penalties for knowingly 
making false representations in connection with claims against the 
United States or in any matter within the jurisdiction of any 
department or agency thereof.

Rule 21. Subpoenas

    (a) General--Upon written request of either party filed with the 
Recorder, or on his or her own initiative, the Administrative Judge 
to whom an appeal is assigned or who is otherwise designated by the 
Chairman 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 papers--in addition to (1) or (2) 
hereof, the production by the witness at the deposition or hearing 
of books and papers (including electronically stored information and 
other tangible things) designated in the subpoena.
    (b) 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 third-party books, papers, 
documents, or tangible things whenever possible.
    (c) Requests 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.
    In its discretion, the Board may honor requests for subpoenas 
not made within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope 
and general relevance to the case of the testimony and of any books 
and papers sought.
    (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--
    (1) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or
    (2) require the person in whose behalf the subpoena was issued 
to advance the reasonable cost of producing subpoenaed books and 
papers. Where circumstances

[[Page 7787]]

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: Issuance--
    (1) Every subpoena shall state the name of the Board and the 
title 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 papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may, in his or her 
discretion, enter the name of the witness and 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 or subpoena may be issued and served under the 
circumstances and in the manner provided in 28 U.S.C. 1781-1784.
    (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 at any place. 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, money payments 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 the testimony of the witness and the books or 
papers the witness has produced.
    (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 will apply to the Court through the 
Attorney General of the United States for an order requiring the 
person to appear before the Board or a member thereof 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 22. Copies of Papers

    When books, records, papers, or documents have been received in 
evidence, a true copy thereof or of such part thereof as may be 
material or relevant may be substituted therefor, during the hearing 
or at the conclusion thereof.

Rule 23. Posthearing Briefs

    Posthearing 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 24. Transcript of Proceedings

    Testimony and argument at hearings shall be reported verbatim, 
unless the Board otherwise orders. Waiver of transcript may be 
especially suitable for hearings under Rule 12.2. Transcripts of the 
proceedings shall be supplied to the parties at such rates as may be 
established by contract between the Board and the reporter, provided 
that ordinary copy of transcript shall be supplied to the appellant 
at an amount no greater than the cost of duplication.

Rule 25. Withdrawal of Exhibits

    After a decision has become final, the Board may, upon request 
and after notice to the other party, in its discretion permit the 
withdrawal of original exhibits, or any part thereof, by the party 
entitled thereto. The substitution of true copies of exhibits or any 
part thereof may be required by the Board in its discretion as a 
condition of granting permission for such withdrawal.

REPRESENTATION

Rule 26. The Appellant

    An individual appellant may appear before the Board in person; a 
corporation 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. An attorney representing an 
appellant shall file a written notice of appearance with the Board.

Rule 27. The Government

    Government counsel may, in accordance with their authority, 
represent the interest of the Government before the Board. They 
shall file notices of appearance with the Board, and notice thereof 
will be given the appellant or the appellant's attorney in the form 
specified by the Board from time to time.

DECISIONS

Rule 28. Decisions

    (a) Decisions of the Board will be made in writing and 
authenticated copies of the decision will be forwarded 
simultaneously to both parties. The Rules of the Board and all final 
orders and decisions (except those required for good cause to be 
held confidential and not cited as precedents) shall be open for 
public inspection at the offices of the Board. Decisions of the 
Board will be made solely upon the record, as described in Rule 13.
    (b) Any monetary award to a contractor by the Board shall be 
promptly paid in accordance with the procedures provided by 31 
U.S.C. 1304, as amended. To assure prompt payment, 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 waiver forms which so state. The Government 
agency will forward the waiver and other forms with a copy of the 
decision to the Department of the Treasury for certification of 
payment.

MOTION FOR RECONSIDERATION

Rule 29. Motion for Reconsideration

    A motion for reconsideration may be filed by either party. It 
shall set forth specifically the grounds relied upon to sustain the 
motion. The motion shall 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.

SUSPENSIONS, DISMISSALS, DEFAULTS, REMANDS

Rule 30. Suspensions; Dismissal Without Prejudice

    The Board may suspend the proceedings by agreement of counsel 
for settlement discussions, or for good cause shown. 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, in its discretion, dismiss 
such appeals from its docket without prejudice to their restoration 
when the cause of suspension has been removed. Unless either party 
or the Board acts within three years to reinstate any appeal 
dismissed without prejudice, the dismissal shall be deemed to be 
with prejudice.

Rule 31. Dismissal or Default for Failure to Prosecute or Defend

    Whenever a 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 or, in the case of a default by the Government, issue an 
order to show cause why the Board should not act thereon pursuant to 
Rule 35. If good cause is not shown, the Board may take appropriate 
action.

Rule 32. Remand from Court

    Whenever any court remands a case to the Board for further 
proceedings, each of the parties shall, within 20 days of such 
remand, submit a report to the Board recommending procedures to be 
followed so as to comply with the court's order. The Board shall 
consider the reports and enter special orders governing the handling 
of the remanded case. To the extent the court's directive and time 
limitations permit, such orders shall conform to these Rules.

TIME, COMPUTATION, AND EXTENSIONS

Rule 33. Time, Computation, and Extensions

    (a) Where possible, procedural actions should be taken in less 
time than the maximum time allowed. Where appropriate and justified, 
however, extensions of time will be granted. All requests for 
extensions of time shall be in writing.
    (b) In computing any period of time, the day of the event from 
which the designated period of time begins to run shall not be

[[Page 7788]]

included, but the last day of the period shall be included unless it 
is a Saturday, Sunday, or a Federal legal public holiday, in which 
event the period shall run to the end of the next business day.

EX PARTE COMMUNICATIONS

Rule 34. 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, off the record, any 
evidence, explanation, analysis, or advice, whether written or oral, 
regarding any matter at issue in an appeal. This provision does not 
apply to consultation among Board members or to ex parte 
communications concerning the Board's administrative functions or 
procedures.

SANCTIONS

Rule 35. Sanctions

    If any party fails or refuses to obey an order issued by the 
Board, the Board may then make such order as it considers necessary 
to the just and expeditious conduct of the appeal.

EFFECTIVE DATE AND APPLICABILITY

Rule 36. Effective Date

    These Rules shall apply--
    (a) mandatorily, to all appeals relating to contracts entered 
into on or after 1 March 1979, and
    (b) at the contractor's election, to appeals relating to earlier 
contracts, with respect to claims pending before the contracting 
officer on 1 March 1979 or initiated thereafter.

Paul Williams,
Chairman, Armed Services Board of Contract Appeals.
[FR Doc. 2011-3120 Filed 2-10-11; 8:45 am]
BILLING CODE 5001-08-P
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