27274 Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 

§ 710.53 When to report. 

* * * Notwithstanding the foregoing, 

and without any alteration of the status 

or timing of any subsequent submission 

period, the second submission period 

(which would otherwise be from June 1, 

2011 to September 30, 2011) is 

suspended. 

[FR Doc. 2011–11562 Filed 5–10–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 209 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendment 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making a technical 

amendment to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add a mailing address 

DATES: Effective Date: May 11, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ynette Shelkin, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–8384; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION: This final 

rule amends DFARS by adding the full 

mailing address of the General Services 

Administration (GSA) Debarment and 

Suspension Official to the DFARS at 

209.405(a). Under 10 U.S.C. 2393(b), 

when a department or agency 

determines that a compelling reason 

exists for it to conduct business with a 

contractor that is debarred or suspended 

from procurement programs, it must 

provide written notice of the 

determination to the GSA Suspension 

and Debarment Official. 

List of Subjects in 48 CFR Part 209 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 209 is 

amended as follows: 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 1. The authority citation for 48 CFR 

part 209 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. In section 209.405 revise paragraph 

(a) introductory text to read as follows: 

§ 209.405 Effect of listing. 

(a) Under 10 U.S.C. 2393(b), when a 

department or agency determines that a 

compelling reason exists for it to 

conduct business with a contractor that 

is debarred or suspended from 

procurement programs, it must provide 

written notice of the determination to 

the General Services Administration 

(GSA), GSA Suspension and Debarment 

Official, Office of Acquisition Policy, 

1275 First Street, NE., Washington, DC 

20417. Examples of compelling reasons 

are— 

* * * * * 

[FR Doc. 2011–10264 Filed 5–10–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendments 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making technical 

amendments to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to direct contracting officers to 

additional guidance on supporting 

contingency operations and in-theater 

security cooperation efforts. 

DATES: Effective Date: May 11, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ynette Shelkin, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 703–602–8384; facsimile 

703–602–0350. 

SUPPLEMENTARY INFORMATION: This final 

rule amends DFARS by adding language 

at 225.7404 to direct contracting officers 

to additional guidance available on 

contract administration considerations 

when supporting contingency 

operations. The rule also adds language 

and a new subpart at 225.78 directing 

contracting officers to guidance on 

theater security cooperation efforts 

conducted in support of the geographic 

combatant commander, which may 

include support such as military 

exercises/training, base operations, and 

weapons procurement. 

List of Subjects in 48 CFR Part 225 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 225 is 

amended as follows: 

PART 225—FOREIGN ACQUISITION 

■ 1. The authority citation for 48 CFR 

part 225 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Add section 225.7404 to read as 

follows: 

§ 225.7404 Contract administration in 

support of contingency operations. 

For additional guidance on contract 

administration considerations when 

supporting contingency operations, see 

PGI 225.7404. 

■ 3. Add subpart 225.78 to read as 

follows: 

Subpart 225.78—Acquisitions in Support of 

Geographic Combatant Command’s Theater 

Security Cooperation Efforts 

Sec. 

225.7801 Policy. 

Subpart 225.78—Acquisitions in 

Support of Geographic Combatant 

Command’s Theater Security 

Cooperation Efforts 

§ 225.7801 Policy. 

For guidance on procurement support 

of the geographic combatant command’s 

theater security cooperation efforts, see 

PGI 225.78. 

[FR Doc. 2011–10085 Filed 5–10–11; 8:45 am] 

BILLING CODE 5001–08–P 

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: Final rule. 

SUMMARY: DoD is issuing a final rule to 

update the Rules of the Armed Services 

Board of Contract Appeals (ASBCA). 

The final rule implements statutory 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 27275 

increases in the thresholds relating to 

the submission and processing of 

contract appeals and updates statutory 

references and other administrative 

information. 

DATES: Effective Date: May 11, 2011. 

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 

This final rule is being issued on 

behalf of Mr. Paul Williams, Chairman, 

Armed Services Board of Contract 

Appeals. It amends 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: 

Æ The Preface, section I, has been 

amended to implement section 3 of 

Public Law 111–350, 124 Stat. 3677 

(2011), which, inter alia, revised and 

renumbered 41 U.S.C. 601–613 to 41 

U.S.C. 7101–7109. 

Æ The Preface, section II(a), has been 

amended to update the Board’s address 

and telephone number. 

Æ 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. 

Æ 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. 

Æ 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.’’ 

Æ 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. 

Æ 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. 

Æ Minor changes have been made 

throughout the Rules to ensure 

uniformity and to correct typographical 

errors. 

A proposed rule was published in the 

Federal Register at 76 FR 7782 on 

February 11, 2011. No comments were 

received in response to the proposed 

rule. 

II. Executive Order 12866 and 

Executive Order 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This is not 

a significant regulatory action and, 

therefore, was not subject to review 

under Section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

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 a 

final regulatory flexibility analysis. DoD 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 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. 

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 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

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: 

Chapter 2—Defense Acquisition 

Regulations System, Department of 

Defense 

■ 1. The authority citation for 48 CFR 

chapter 2 continues to read as follows: 

Authority: 41 U.S.C. 1707 and 48 CFR 

chapter 1. 

■ 2. Appendix A to Chapter 2 is 

amended by revising Part 2—Rules to 

read as follows: 

Appendix A to Chapter 2—Armed 

Services Board of Contract Appeals 

* * * * * 

Part 2—Rules 

Approved 15 July 1963 

Revised 1 May 1969 

Revised 1 September 1973 

Revised 30 June 1980 

Revised 11 May 2011 

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, 41 U.S.C. §§ 7101– 

7109, or its Charter, relative to a contract 

made by (i) 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 (ii) 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, 


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27276 Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 

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) of this Rule, 

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) of this Rule, citing the 

failure of the contracting officer to issue a 

decision. 

(d) Upon docketing of appeals filed 

pursuant to (b) or (c) 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. 

(e) In lieu of filing a notice of appeal under 

(b) or (c) of this Rule, 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 

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 in 

paragraph (a) of this Rule, 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) of this Rule. 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 


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Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 27277 

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, 

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 pretrial 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 


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27278 Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 

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, post-hearing 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. 

(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 


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Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 27279 

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), 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 (i) to cooperate and make available 

witnesses and evidence under its control as 

requested by the other party, without 

issuance of a subpoena, and (ii) to secure 

voluntary attendance of desired third-party 

witnesses and production of desired thirdparty 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 (i) quash or modify the subpoena 

if it is unreasonable and oppressive or for 

other good cause shown, or (ii) 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: 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. 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 24. Transcript of Proceedings 

Testimony and argument at hearings shall 

be reported verbatim, unless the Board 


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27280 Federal Register / Vol. 76, No. 91 / Wednesday, May 11, 2011 / Rules and Regulations 

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 

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 MAY 11, 2011 

CHAIRMAN 

ARMED SERVICES BOARD OF CONTRACT 

APPEALS 

[FR Doc. 2011–9910 Filed 5–10–11; 8:45 am] 

BILLING CODE 5001–08–P 


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