[Federal Register Volume 79, Number 40 (Friday, February 28, 2014)]

[Proposed Rules]

[Pages 11374-11381]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2014-04153]

[[Page 11374]]

=======================================================================

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

[Docket No. DARS-2014-0011]

48 CFR Chapter 2

Defense Federal Acquisition Regulation Supplement: Rules of the

Armed Services Board of Contract Appeals (No DFARS Case)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition

Regulation Supplement (DFARS) to update the Rules of the Armed Services

Board of Contract Appeals (ASBCA). The proposed rule revises and

reorders the Board's Rules for clarity and consistency and accounts for

changes in technology, provides updated contact information, and adds

two addendums.

DATES: Comment date: Comments on the proposed rule should be submitted

in writing to the addresses shown below on or before April 29, 2014, to

be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by Docket No. DARS 2014-0011,

using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov. Submit comments

via the Federal eRulemaking portal by entering ``Docket No. DARS 2014-

0011'' under the heading ``Enter keyword or ID'' and selecting

``Search.'' Select the link ``Submit a Comment'' that corresponds with

``Docket No. DARS 2014-0011.'' Follow the instructions provided at the

``Submit a Comment'' screen. Please include your name, company name (if

any), and ``Docket No. DARS 2014-0011'' on your attached document.

[cir] Email: asbca.recorder@mail.mil. Include Docket No. DARS 2014-

0011 in the subject line of the message.

[cir] Fax: 703-681-8535.

[cir] Mail: Armed Services Board of Contract Appeals, Attn: Jeffrey

Gardin, 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(s), please check 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: Jeffrey Gardin, Deputy General

Counsel, ASBCA, 703-681-8502, or Catherine Stanton, General Counsel,

ASBCA, 703-681-8501; both at email address: asbca.recorder@mail.mil.

SUPPLEMENTARY INFORMATION:

I. Background
This proposed rule is being issued on behalf of Judge Paul

Williams, Chairman, Armed Services Board of Contract Appeals. The rule

proposes to amend the DFARS to update the Rules of the Armed Services

Board of Contract Appeals at 48 CFR Chapter 2, Appendix A, Part 2. It

revises and reorders the Board's Rules for clarity and consistency and

accounts for changes in technology, removes contradictions, resolves

ambiguities, provides updated contact information to allow for some

electronic communication by litigants appearing before the Board, and

adds two addendums: Equal Access to Justice Act Procedures and

Alternative Methods of Dispute Resolution, previously not formally

contained in the Rules.

II. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess

all costs and benefits of available regulatory alternatives and, if

regulation is necessary, to select regulatory approaches that maximize

net benefits (including potential economic, environmental, public

health and safety effects, distributive impacts, and equity). E.O.

13563 emphasizes the importance of quantifying both costs and benefits,

of reducing costs, of harmonizing rules, and of promoting flexibility.

This is not a significant regulatory action and, therefore, was not

subject to review under section 6(b) of E.O. 12866, Regulatory Planning

and Review, dated September 30, 1993. 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

revises the Rules of the Armed Services Board of Contract Appeals to

improve clarity and to remove ambiguities and contradictions.

Therefore, an initial regulatory flexibility analysis has not been

performed. DoD invites comments from small business concerns and other

interested parties on the expected impact of this rule on small

entities. DoD will also consider comments from small entities

concerning the existing regulations in subparts affected by this rule

in accordance with 5 U.S.C. 610. Interested parties must submit such

comments separately and should cite 5 U.S.C 610 (Rules of the Armed

Services Board of Contract Appeals), in correspondence.

IV. Paperwork Reduction Act

The rule does not contain 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, Chapter 2, Appendix A, Part 2

Government procurement.

Manuel Quinones,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR chapter 2 is amended as follows:

0

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

follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

CHAPTER 2--DEFENSE ACQUISITION REGULATIONS SYSTEM, DEPARTMENT OF

DEFENSE

0

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 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

Revised [DATE]

Preface

I. Jurisdiction for Considering Appeals

The Armed Services Board of Contract Appeals (referred to herein

as the Board) has jurisdiction to decide any appeal from a final

decision of a contracting officer, pursuant to the Contract Disputes

Act, 41 U.S.C. 7101-7109, or its Charter, 48 CFR Chap. 2, App. A,

Pt. 1, relative to a contract made by the Department of Defense, the

Department of the Army, the Department of the Navy, the Department

of the Air Force, the National Aeronautics and Space Administration

or any other department or agency, as permitted by law.

II. Location and Organization of the Board

(a) The Board's address is Skyline Six, Room 703, 5109 Leesburg

Pike, Falls Church, VA 22041-3208; telephone 703-681-8500

[[Page 11375]]

(general), 703-681-8502 (Recorder). The Board's facsimile number is

703-681-8535. The Board's Recorder's email address is

asbca.recorder@mail.mil. The Board's Web site address is http://www.asbca.mil.

(b) The Board consists of a Chairman, two or more Vice Chairmen,

and other Members, all of whom are attorneys at law duly licensed by

a state, commonwealth, territory, or the District of Columbia. Board

Members are designated Administrative Judges.

(c) There are a number of divisions of the Board, established by

the Chairman in such manner as to provide for the most effective and

expeditious handling of appeals. The Chairman and a Vice Chairman

act as members of each division. Hearings may be held by an

Administrative Judge or by a duly authorized examiner. Except for

appeals processed under the expedited or accelerated procedure (see

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

constitutes the decision of the Board, unless the Chairman refers

the appeal to the Board's Senior Deciding Group (consisting of the

Chairman, Vice Chairmen, all division heads, and the Judge who

drafted the decision), in which event a decision of a majority of

that group constitutes the decision of the Board. Appeals referred

to the Senior Deciding Group are those of unusual difficulty or

significant precedential importance, or that have occasioned serious

dispute within the normal division decision process.

(d) The Board will to the fullest extent practicable provide

informal, expeditious, and inexpensive resolution of disputes.

Table of Contents

Rules of the Armed Services Board of Contract Appeals

Rule 1 Appeals

Rule 2 Filing Documents

Rule 3 Service Upon Other Parties

Rule 4 Preparation, Content, Organization, Forwarding, and Status of

Appeal File

Rule 5 Time, Computation, and Extensions

Rule 6 Pleadings

Rule 7 Motions

Rule 8 Discovery

Rule 9 Pre-Hearing or Pre-Submission Conference

Rule 10 Hearings

Rule 11 Submission Without a Hearing

Rule 12 Optional Small Claims (Expedited) and Accelerated Procedures

Rule 13 Settling the Record in Appeals with a Hearing

Rule 14 Briefs
Rule 15 Representation

Rule 16 Sanctions

Rule 17 Dismissal or Default for Failure to Prosecute or Defend

Rule 18 Suspensions; Dismissal without Prejudice

Rule 19 Decisions

Rule 20 Motion for Reconsideration

Rule 21 Remand from Court

Rule 22 Subpoenas

Rule 23 Ex Parte Communications

Rule 24 Effective Date

Addendums

Addendum I: Equal Access to Justice Act Procedures

Addendum II: Alternative Methods of Dispute Resolution

RULES

Rule 1. Appeals

(a) Taking an Appeal--For appeals subject to the Contract

Disputes Act, notice of an appeal shall be in writing and mailed or

otherwise furnished to the Board within 90 days from the date of

receipt of a contracting officer's decision. The appellant

(contractor) should also furnish a copy of the notice of appeal to

the contracting officer. For appeals not subject to the Contract

Disputes Act, the contractor should refer to the Disputes clause in

its contract for the time period in which it must file a notice of

appeal.

(1) Where the contractor has submitted a claim of $100,000 or

less to the contracting officer and has requested a written decision

within 60 days from receipt of the request, and the contracting

officer has not provided a decision within that period, or where

such a contractor request has not been made and the contracting

officer has not issued a decision within a reasonable time, the

contractor may file a notice of appeal as provided in paragraph (a)

of this Rule, citing the failure of the contracting officer to issue

a decision.

(2) Where the contractor has submitted a properly certified

claim over $100,000 to the contracting officer or has submitted a

claim that involves no monetary amount, and the contracting officer,

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

fails to provide the contractor with a reasonable date by which a

decision will be issued, and the contracting officer has failed to

issue a decision within a reasonable time, the contractor may file a

notice of appeal as provided in paragraph (a) of this Rule, citing

the failure of the contracting officer to issue a decision.

(3) A reasonable time shall be determined by taking into account

such factors as the size and complexity of the claim and the

adequacy of the information provided by the contractor to support

the claim.

(4) Where an appeal is before the Board pursuant to paragraph

(a)(1) or (a)(2) of this Rule, the Board may, at its option, stay

further proceedings pending issuance of a final decision by the

contracting officer within such period of time as is determined by

the Board.

(5) In lieu of filing a notice of appeal under (a)(1) or (a)(2)

of this Rule, the contractor may petition the Board to direct the

contracting officer to issue a decision in a specified period of

time as determined by the Board.

(b) Contents of Notice of Appeal--A notice of appeal shall

indicate that an appeal is being taken and should identify the

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

dispute, the decision from which the appeal is taken, and the amount

in dispute, if any. A copy of the contracting officer's final

decision, if any, should be attached to the notice of appeal. The

notice of appeal should be signed by the appellant or by the

appellant's duly authorized representative or attorney. The

complaint referred to in Rule 6 may be filed with the notice of

appeal, or the appellant may designate the notice of appeal as a

complaint, if it otherwise fulfills the requirements of a complaint.

(c) Docketing of Appeal--When a notice of appeal has been
received by the Board, it will be docketed. The Board will provide a

written notice of docketing to the appellant and to the Government.

Rule 2. Filing Documents

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

methods:

(1) Governmental Postal Service--Documents may be filed via a

governmental postal service. Filing occurs when the document,

properly addressed and with sufficient postage, is transferred into

the custody of the postal service. Contact the Recorder before

submitting classified documents.

(2) Courier--Documents may be filed via courier. Filing occurs

when the document is delivered to the Board. Contact the Recorder

before submitting classified documents.

(3) Electronic Mail--Documents, except appeal files submitted

pursuant to Rule 4, hearing exhibits, classified documents, and

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

filed via electronic mail (email). Email attachments should be in

PDF format and the attachments may not exceed 10 megabytes total.

The transmittal email should include the ASBCA docket number(s), if

applicable, and the name of the appellant in the ``Subject:'' line.

Filing occurs upon receipt by the Board's email server. When a

document is successfully filed via email, the document should not

also be submitted by any other means, unless so directed by the

Board. Submit emails to: asbca.recorder@mail.mil.

(4) Facsimile Transmission--Documents, except appeal files

submitted pursuant to Rule 4, hearing exhibits, classified

documents, and documents submitted in camera or under a protective

order, may be filed via facsimile (fax) machine. Due to equipment

constraints, transmissions over 10 pages should not be made absent

Board permission. Filing occurs upon receipt by the Board. When a

document is successfully filed via fax, the document should not also

be submitted by any other means, unless so directed by the Board.

(b) Copies to Opposing Party--The party filing any document with

the Board will send a copy to the opposing party unless the Board

directs otherwise, noting on the document filed with the Board that

a copy has been so furnished.

Rule 3. Service Upon Other Parties

Documents may be served personally or by mail, addressed to the

party upon whom service is to be made, unless the parties have

agreed to an alternate means of service. Subpoenas shall be served

as provided in Rule 22.

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

Appeal File

(a) Duties of the Government--Within 30 days of notice that an

appeal has been filed, the Government shall transmit to the Board

[[Page 11376]]

and the appellant an appeal file consisting of the documents the

Government considers relevant to the appeal, including:

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

(2) The contract, including pertinent specifications,

amendments, plans, and drawings;

(3) All correspondence between the parties relevant to the

appeal, including any claim in response to which the decision was

issued.

The Government's appeal file may be supplemented at such times

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

(b) Duties of the Appellant--Within 30 days after receipt of a

copy of the Government's appeal file, the appellant shall transmit

to the Board and the Government any documents not contained therein

that the appellant considers relevant to the appeal. Appellant's

appeal file may be supplemented at such times as are fair and

reasonable and as ordered by the Board.

(c) Organization of Appeal File--Documents in the appeal file

may be originals or legible copies, and shall be arranged in

chronological order where practicable, numbered sequentially,
tabbed, and indexed to identify the contents of the file. Any

document without internal page numbers shall have page numbers

added. All documents must be in English or include an English

translation. Documents shall be submitted in 3-ring binders, with

spines not wider than 3 inches wide, with labels identifying the

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

volume, on the front and spine of each volume. Each volume shall

contain an index of the documents contained in the entire Rule 4

submission.

(d) Status of Documents in Appeal File--Documents contained in

the appeal file are considered, without further action by the

parties, as part of the record upon which the Board will render its

decision. However, a party may object, for reasons stated, to the

admissibility of a particular document reasonably in advance of

hearing or, if there is no hearing, of settling the record, or in

any case as ordered by the Board. If such objection is made, the

Board will constructively remove the document from the appeal file

and permit the party offering the document to move its admission as

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

Rule 5. Time, Computation, and Extensions

(a) Where practicable, actions should be taken in less time than

the time allowed. Where appropriate and justified, however,

extensions of time will be granted. All requests for extensions of

time should be in writing and indicate that the other party was

contacted to seek its concurrence.

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

which the designated period of time begins to run will not be

included, but the last day of the period will be included unless it

is a Saturday, Sunday, or a Federal holiday, in which event the

period will run to the next business day.

Rule 6. Pleadings

(a) Appellant--Within 30 days after receipt of notice of

docketing of the appeal, the appellant shall file with the Board a

complaint setting forth simple, concise, and direct statements of

each of its claims. The complaint shall also set forth the basis,

with appropriate reference to contract provisions, of each claim and

the dollar amount claimed, if any. This pleading shall fulfill the

generally recognized requirements of a complaint, although no

particular form is required. Should the complaint not be timely

received, the appellant's claim and notice of appeal may be deemed

to set forth its complaint if, in the opinion of the Board, the

issues before the Board are sufficiently defined, and the parties

will be notified.

(b) Government--Within 30 days from receipt of the complaint, or

the aforesaid notice from the Board, the Government shall file with

the Board an answer thereto. The answer shall admit or deny the

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

and direct statements of the Government's defenses to each claim

asserted by the appellant, including any affirmative defenses.

Should the answer not be timely received, the Board may enter a

general denial on behalf of the Government, and the parties will be

notified.

(c) Foreign Law--A party who intends to raise an issue

concerning the law of a foreign country shall give notice in its

pleadings or other reasonable written notice. The Board, in

determining foreign law, may consider any relevant material or

source, including testimony, whether or not submitted by a party or

admissible under Rules 10, 11, or 13. The determination of foreign

law shall be treated as a ruling on a question of law.

(d) Further Pleadings--The Board upon its own initiative or upon

motion may order a party to make a more definite statement of the

complaint or answer, or to reply to an answer. The Board may permit

either party to amend its pleading upon conditions fair to both

parties. When issues within the proper scope of the appeal, but not

raised by the pleadings, are tried by express or implied consent of

the parties, or by permission of the Board, they shall be treated in

all respects as if they had been raised therein. In such instances,

motions to amend the pleadings to conform to the proof may be

entered, but are not required. If evidence is objected to at a
hearing on the ground that it is not within the issues raised by the

pleadings, it may be admitted within the proper scope of the appeal,

provided however, that the objecting party may be granted an

opportunity to meet such evidence.

Rule 7. Motions

(a) Motions Generally--The Board may entertain and rule upon

motions and may defer ruling as appropriate. The Board will rule on

motions so as to secure, to the fullest extent practicable, the

informal, expeditious, and inexpensive resolution of appeals. All

motions should be filed as separate documents with an appropriate

heading describing the motion. Oral argument on motions is subject

to the discretion of the Board.

(b) Jurisdictional Motions--Any motion addressed to the

jurisdiction of the Board should be promptly filed. An evidentiary

hearing to address disputed jurisdictional facts will be afforded on

application of either party or by order of the Board. The Board may

defer its decision on the motion pending hearing on the merits. The

Board may at any time and on its own initiative raise the issue of

its jurisdiction, and shall do so by an appropriate order, affording

the parties an opportunity to be heard thereon.

(c) Summary Judgment Motions--

(1) To facilitate disposition of such a motion, the parties

should adhere to the following procedures. Where the parties agree

that disposition by summary judgment or partial summary judgment is

appropriate, they may file a stipulation of all material facts

necessary for the Board to rule on the motion. Otherwise, the moving

party should file with its motion a ``Statement of Undisputed

Material Facts,'' setting forth the claimed undisputed material

facts in separate, numbered paragraphs. The non-moving party should

file a ``Statement of Genuine Issues of Material Fact,'' responding

to each numbered paragraph proposed, demonstrating, where

appropriate, the existence of material facts in dispute and if

appropriate propose additional facts. The moving party and the nonmoving party should submit a memorandum of law supporting or

opposing summary judgment.

(2) In deciding motions for summary judgment, the Board looks to

Rule 56 of the Federal Rules of Civil Procedure for guidance. The

parties should explicitly state and support by specific evidence all

facts and legal arguments necessary to sustain a party's position.

Each party should cite to the record and attach any additional

evidence upon which it relies (e.g., affidavits, declarations,

excerpts from depositions, answers to interrogatories, admissions).

The Board may accept a fact properly proposed and supported by one

party as undisputed, unless the opposing party properly responds and

establishes that it is in dispute.

(d) Response to Motions--A non-moving party has 30 days from

receipt of a motion to file its response, unless a different period

is ordered by the Board. A moving party has 30 days from receipt of

a non-moving party's response to file a reply, unless a different

period is ordered by the Board.

Rule 8. Discovery

(a) General Policy and Protective Orders--The parties are

encouraged to engage in voluntary discovery procedures. Within 45

days after the pleadings have been filed, the parties must confer

concerning each party's discovery needs, including the scheduling of

discovery and the production of electronically stored information.

Absent stipulation or a Board order, no discovery may be served

prior to this conference. Any motion pertaining to a discovery

dispute shall include a statement that the movant has in good faith

attempted to resolve the discovery dispute without involvement of

the Board. In connection with any discovery procedure, the Board may

issue orders to protect a party or person from annoyance,

embarrassment, or undue burden or expense. Those orders may include

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

provisions for governing the disclosure of information or documents.

Any discovery

[[Page 11377]]
under this Rule shall be subject to the provisions of Rule 16 with

respect to sanctions.

(b) Depositions--when permitted--Subject to paragraph (a) of

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

taking of, testimony of any person by deposition upon oral

examination or written interrogatories before any officer authorized

to administer oaths at the place of examination, for use as evidence

or for purpose of discovery. The Board expects the parties to make

persons under their control available for deposition. The motion for

an order shall specify whether the purpose of the deposition is

discovery or for use as evidence.

(1) Depositions--Orders--The time, place, and manner of taking

depositions shall be as mutually agreed by the parties, or failing

such agreement, governed by order of the Board.

(2) Depositions--Use as Evidence--No testimony taken by

deposition shall be considered as part of the evidence in the

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

evidence at such hearing. It will not ordinarily be received in

evidence if the deponent can testify at the hearing. The deposition

may be used to contradict or impeach the testimony of the deponent

given at a hearing. In cases submitted on the record, the Board may

receive depositions to supplement the record.

(3) Depositions--Expenses--Each party shall bear its own

expenses associated with the taking of any deposition, absent an

agreement by the parties or a Board order to the contrary.

(4) Depositions--Subpoenas--Where appropriate, a party may

request the issuance of a subpoena under the provisions of Rule 22.

(c) Interrogatories, Requests for Admissions, Requests for

Production--Subject to paragraph (a) of this Rule, a party may

serve, or the Board may upon motion order:

(i) Written interrogatories to be answered separately in

writing, signed under oath and answered or objected to within 45

days after service;

(ii) 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

(iii) A request for the production, inspection, and copying of

any documents, electronic or otherwise, or objects, not privileged,

which reasonably may lead to the discovery of admissible evidence,

to be answered or objected to within 45 days after service. The

Board may allow a shorter or longer time.

Rule 9. Pre-Hearing or Pre-Submission Conference

The Board may, upon its own initiative, or upon the request of

either party, arrange a conference or order the parties to appear

before an Administrative Judge or examiner for a conference to

address any issue related to the prosecution of the appeal.

Rule 10. Hearings

(a) Where and When Held--Hearings will be held at such times and

places determined by the Board to best serve the interests of the

parties and the Board.

(b) Unexcused Absence--The unexcused absence of a party at the

time and place set for hearing will not be occasion for delay. In

the event of such absence, the hearing will proceed and the

evidentiary record will consist solely of the evidence of record at

the conclusion of the hearing, except as ordered otherwise by the

Board.

(c) Nature of Hearings--Hearings shall be as informal as may be

reasonable and appropriate under the circumstances. The parties may

offer such evidence as they deem appropriate and as would be

admissible under the Federal Rules of Evidence or in the sound

discretion of the presiding Administrative Judge or examiner. The

Federal Rules of Evidence are not binding on the Board but may guide

the Board's rulings. The parties may stipulate the testimony that

would be given by a witness if the witness were present. The Board

may require evidence in addition to that offered by the parties.

(d) Examination of Witnesses--Witnesses will be examined orally

under oath or affirmation, unless the presiding Administrative Judge
or examiner shall otherwise order. If the testimony of a witness is

not given under oath or affirmation, the Board may advise the

witness that his or her testimony may be subject to any provision of

law imposing penalties for knowingly making false representations in

connection with claims.

(e) Interpreters--In appropriate cases, the Board may order that

an interpreter be used. An interpreter must be qualified and must be

placed under oath or affirmation to give a complete and true

translation.

(f) Transcripts--Testimony and argument at hearings will be

reported verbatim, unless the Board otherwise orders. The Board will

contract for a reporter. No other recordings of the proceedings will

be made.

Rule 11. Submission Without a Hearing

(a) Either party may elect to waive a hearing and to submit its

case upon the record. Submission of a case without hearing does not

relieve the parties from the necessity of proving the facts

supporting their allegations or defenses. Affidavits, declarations,

depositions, admissions, answers to interrogatories, and

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

and accepted into evidence. Such submissions may be supplemented by

briefs. The Board may designate, with notice to the parties, any

document to be made part of the record.

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

prehearing conference memoranda, orders, briefs, stipulations and

other documents contained in the Board's file.

(c) Except as the Board may otherwise order, no evidence will be

received after notification by the Board that the record is closed.

(d) The weight to be given to any evidence will rest within the

discretion of the Board. The Board may require either party, with

appropriate notice to the other party, to submit additional evidence

on any matter relevant to the appeal.

(e) The record will at all reasonable times be available for

inspection by the parties at the offices of the Board.

Rule 12. Optional Small Claims (Expedited) and Accelerated

Procedures

12.1 Elections To Utilize Small Claims (Expedited) and Accelerated

Procedures

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

or in the case of a small business concern (as defined in the Small

Business Act and regulations under that Act), $150,000 or less, the

appellant may elect to have the appeal processed under a Small

Claims (Expedited) procedure requiring decision of the appeal,

whenever possible, within 120 days after the Board receives written

notice of the appellant's election to utilize this procedure. The

details of this procedure appear in section 12.2 of this Rule. An

appellant may elect the Accelerated procedure rather than the Small

Claims (Expedited) procedure for any appeal where the amount in

dispute is $50,000 or less.

(b) In appeals where the amount in dispute is $100,000 or less,

the appellant may elect to have the appeal processed under an

Accelerated procedure requiring decision of the appeal, whenever

possible, within 180 days after the Board receives written notice of

the appellant's election to utilize this procedure. The details of

this procedure appear in section 12.3 of this Rule.

(c) The appellant's election of either the Small Claims

(Expedited) procedure or the Accelerated procedure shall be made by

written notice within 60 days after receipt of notice of docketing,

unless such period is extended by the Board for good cause. The

election, once made, may not be changed or withdrawn except with

permission of the Board and for good cause.

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

to Rule 12 appeals.

12.2 Small Claims (Expedited) Procedure

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

(1) Within 10 days from the Government's receipt of the

appellant's notice of election of the Small Claims (Expedited)

procedure, the Government shall send the Board a copy of the

contract, the contracting officer's final decision, and the

appellant's claim letter or letters, if any. Any other documents

required under Rule 4 shall be submitted in accordance with times

specified in that Rule unless the Board otherwise directs.

(2) Within 15 days after the Board has acknowledged receipt of

the appellant's notice of election, the assigned Administrative

Judge should take the following actions, if feasible, in a prehearing conference:

(i) Identify and simplify the issues;

(ii) Establish a simplified procedure, including discovery,

appropriate to the particular appeal involved;

[[Page 11378]]

(iii) Determine whether either party elects a hearing, and if

so, fix a time and place therefor; and

(iv) Establish an expedited schedule for the timely resolution

of the appeal.

(b) Pleadings, discovery, and other prehearing activity will be

allowed only as consistent with the requirement to conduct a

hearing, or if no hearing is elected, to close the record on a date

that will allow the timely issuance of the decision. The Board may

shorten time periods prescribed or allowed under these Rules as

necessary to enable the Board to decide the appeal within the 120-

day period.

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

the Small Claims (Expedited) procedure will be short and will

contain only summary findings of fact and conclusions. Decisions

will be rendered for the Board by a single Administrative Judge. If

there has been a hearing, the Administrative Judge presiding at the

hearing may at the conclusion of the hearing and after entertaining

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

summary findings of fact, conclusions, and a decision of the appeal.

Whenever such an oral decision is rendered, the Board will

subsequently furnish the parties an authenticated copy of such oral

decision for record and payment purposes and to establish the

starting date for the period for filing a motion for reconsideration

under Rule 20.

(d) A decision under Rule 12.2 shall have no value as precedent,

and in the absence of fraud, shall be final and conclusive and may

not be appealed or set aside.

12.3 Accelerated Procedure

(a) In appeals proceeding under the Accelerated procedure, the

parties are encouraged, to the extent possible consistent with

adequate presentation of their factual and legal positions, to waive

pleadings, discovery, and briefs. The Board may shorten time periods

prescribed or allowed under these Rules as necessary to enable the

Board to decide the appeal within the 180-day period.

(b) Within 30 days after the Board has acknowledged receipt of

the appellant's notice of election, the assigned Administrative

Judge should take the following actions, if feasible, in a prehearing conference:

(1) Identify and simplify the issues;

(2) Establish a simplified procedure, including discovery,

appropriate to the particular appeal involved;

(3) Determine whether either party elects a hearing, and if so,

fix a time and place therefor; and

(4) Establish an accelerated schedule for the timely resolution

of the appeal.

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

the Accelerated procedure will normally be short and contain only

summary findings of fact and conclusions. Decisions will be rendered

for the Board by a single Administrative Judge with the concurrence

of a Vice Chairman, or by a majority among these two and the

Chairman in case of disagreement.

12.4 Motions for Reconsideration in Rule 12 Appeals
Motions for reconsideration of appeals decided under either the

Small Claims (Expedited) procedure or the Accelerated procedure need

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

such motions will be processed and decided promptly so as to be

consistent with the intent of this Rule.

Rule 13. Settling the Record in Appeals With a Hearing

(a) The record upon which the Board's decision will be rendered

consists of the documents admitted under Rule 4, the documents

admitted into evidence as hearing exhibits, together with the

hearing transcript. The Board may designate with notice to the

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

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

other documents contained in the Board's file.

(c) Except as the Board may otherwise order, no evidence will be

received after completion of an oral hearing.

(d) The weight to be given to any evidence will rest within the

discretion of the Board. The Board may require either party, with

appropriate notice to the other party, to submit additional evidence

on any matter relevant to the appeal.

(e) The record will at all reasonable times be available for

inspection by the parties at the offices of the Board.

Rule 14. Briefs

(a) Pre-Hearing Briefs--The Board may require the parties to

submit pre-hearing briefs. If the Board does not require pre-hearing

briefs, either party may, upon appropriate and sufficient notice to

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

(b) Post-Hearing Briefs--Post-hearing briefs may be submitted

upon such terms as may be directed by the presiding Administrative

Judge or examiner at the conclusion of the hearing.

Rule 15. Representation

(a) An individual appellant may represent his or her interests

before the Board; a corporation may be represented by one of its

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

or any of these by an attorney at law duly licensed in any state,

commonwealth, territory, the District of Columbia, or in a foreign

country. Anyone representing an appellant shall file a written

notice of appearance with the Board.

(b) The Government shall be represented by counsel. Counsel for

the Government shall file a written notice of appearance with the

Board.

Rule 16. Sanctions

If any party fails to obey an order issued by the Board, the

Board may impose such sanctions as it considers necessary to the

just and expeditious conduct of the appeal.

Rule 17. Dismissal or Default for Failure To Prosecute or Defend

Whenever the record discloses the failure of either party to

file documents required by these Rules, respond to notices or

correspondence from the Board, comply with orders of the Board, or

otherwise indicates an intention not to continue the prosecution or

defense of an appeal, the Board may, in the case of a default by the

appellant, issue an order to show cause why the appeal should not be

dismissed with prejudice for failure to prosecute. In the case of a

default by the Government, the Board may issue an order to show

cause why the Board should not act thereon pursuant to Rule 16. If

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

Rule 18. Suspensions; Dismissal Without Prejudice

(a) The Board may suspend the proceedings by agreement of the

parties for settlement discussions, or for good cause shown.

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

to proceed with disposition thereof for reasons not within the

control of the Board. Where the suspension has continued, or may

continue, for an inordinate length of time, the Board may dismiss

such appeals from its docket for a period of time without prejudice

to their restoration. Unless either party or the Board moves to

reinstate the appeal within the time period set forth in the

dismissal order, or if no time period is set forth, within one year

from the date of the dismissal order, the dismissal shall be deemed

to be with prejudice.

Rule 19. Decisions

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

authenticated copies of the decision will be sent simultaneously to

both parties. All orders and decisions, except those as may be

required by law to be held confidential, will be available to the

public. Decisions of the Board will be made solely upon the record.

(b) Any monetary award shall be promptly paid.

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

1304, the Recorder will forward the required forms to each party

with the decision. If the parties do not contemplate an appeal or

motion for reconsideration, they will execute the forms indicating

that no judicial review will be sought. The Government agency will

forward the required forms with a copy of the decision to the

Department of the Treasury for certification of payment.

(d) When the parties settle an appeal in favor of the appellant,

they may file with the Board a stipulation setting forth the amount

of the settlement due to the appellant. By joint motion, the parties

may request that the Board issue a decision in the nature of a

consent judgment, awarding the stipulated amount to the appellant.

These decisions will be processed in accordance with paragraph (c)

of this Rule.

(e) After a decision has become final the Board may, upon

request of a party and after

[[Page 11379]]

notice to the other party, grant the withdrawal of original

exhibits, or any part thereof. The Board may require the

substitution of true copies of exhibits or any part thereof as a

condition of granting permission for such withdrawal.

Rule 20. Motion for Reconsideration

A motion for reconsideration may be filed by either party. It

shall set forth specifically the grounds relied upon to grant the

motion. The motion must be filed within 30 days from the date of the

receipt of a copy of the decision of the Board by the party filing

the motion. An opposing party must file any cross-motion for

reconsideration within 30 days from its receipt of the motion for

reconsideration. Extensions in the period to file a motion will not

be granted. Extensions to file a memorandum in support of a timelyfiled motion may be granted.

Rule 21. Remand From Court

Whenever any Court remands an appeal to the Board for further

proceedings, each of the parties shall, within 30 days of receipt of

such remand, submit a report to the Board recommending procedures to

be followed so as to comply with the Court's remand. The Board will

consider the reports and enter an order governing the remanded

appeal.

Rule 22. Subpoenas

(a) Voluntary Cooperation--Each party is expected:

(1) To cooperate and make available witnesses and evidence under

its control as requested by the other party without issuance of a

subpoena, and

(2) To secure voluntary attendance of desired third-party

witnesses and production of desired third-party books, records,

documents, or tangible things whenever possible.
(b) General--Upon written request of either party, or on his or

her own initiative, an Administrative Judge may issue a subpoena

requiring:

(1) Testimony at a deposition--The deposing of a witness in the

city or county where the witness resides or is employed or transacts

business in person, or at another location convenient for the

witness that is specifically determined by the Board;

(2) Testimony at a hearing--The attendance of a witness for the

purpose of taking testimony at a hearing; and

(3) Production of books and records--The production by the

witness at the deposition or hearing of books and records (including

electronically stored information and other tangible things)

designated in the subpoena.

(c) Request for Subpoena--

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

(i) 15 days before a scheduled deposition where the attendance

of a witness at a deposition is sought; or

(ii) 30 days before a scheduled hearing where the attendance of

a witness at a hearing is sought.

(iii) The Board may honor a request for subpoena 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 records sought. The Board may require resubmission of a request

that does not provide this information.

(d) Requests to Quash or Modify--Upon written request by the

person subpoenaed or by a party, made within 10 days after service

but in any event not later than the time specified in the subpoena

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

unreasonable or oppressive or for other good cause shown, or require

the person in whose behalf the subpoena was issued to advance the

reasonable cost of producing subpoenaed books and papers. Where

circumstances require, the Board may act upon such a request at any

time after a copy of the request has been served upon the opposing

party.

(e) Form of Subpoena--

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

caption of the appeal, and shall command each person to whom it is

directed to attend and give testimony, and if appropriate, to

produce specified books and records at a time and place therein

specified. In issuing a subpoena to a requesting party, the

Administrative Judge will sign the subpoena, enter the name of the

witness and may otherwise leave it blank. The party to whom the

subpoena is issued shall complete the subpoena before service.

(2) Where the witness is located in a foreign country, a letter

rogatory may be issued and served under the circumstances and in the

manner provided in 28 U.S.C. 1781.

(f) Service--

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

for service.

(2) A subpoena requiring the attendance of a witness at a

deposition or hearing may be served in any state, commonwealth,

territory, or the District of Columbia. A subpoena may be served by

a United States marshal or deputy marshal, or by any other person

who is not a party and not less than 18 years of age. Service of a

subpoena upon a person named therein shall be made by personally

delivering a copy to that person and tendering the fees for one

day's attendance and the mileage provided by 28 U.S.C. Sec. 1821 or

other applicable law. However, where the subpoena is issued on

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

attendance.

(3) The party at whose instance a subpoena is issued shall be

responsible for the payment of fees and mileage of the witness and

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

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

ground for striking such evidence as the Board deems appropriate.

(g) Contumacy or Refusal to Obey a Subpoena--In case of

contumacy or refusal to obey a subpoena by a person who resides, is

found, or transacts business within the jurisdiction of a United

States District Court, the Board may apply to the Court through the

Attorney General of the United States for an order requiring the

person to appear before the Board to give testimony or produce

evidence or both. Any failure of any such person to obey the order
of the Court may be punished by the Court as a contempt thereof.

Rule 23. Ex Parte Communications

No member of the Board or of the Board's staff shall entertain,

nor shall any person directly or indirectly involved in an appeal,

submit to the Board or the Board's staff, ex parte, any evidence,

explanation, analysis, or advice, whether written or oral, regarding

any matter at issue in an appeal. This Rule does not apply to

consultation among Board members or its staff or to ex parte

communications concerning the Board's administrative functions or

procedures.

Rule 24. Effective Date

These rules and addendums are applicable to appeals processed

under the Contract Disputes Act (CDA), 41 U.S.C. 7101-7109, and

other appeals to the extent consistent with law. They apply to all

appeals filed on or after the date of final publication in the

Federal Register, and to those appeals filed before that date,

unless that application is inequitable or unfair.

Addendum I

Equal Access to Justice Act Procedures

(a) Definitions--

For the purpose of these procedures:

(1) ``Equal Access to Justice Act,'' or ``EAJA,'' means 5 U.S.C.

504, as amended;

(2) ``Board'' means the Armed Services Board of Contract

Appeals; and

(3) ``Contract Disputes Act'' means the Contract Disputes Act,

41 U.S.C. 7101-7109 (CDA).

(b) Scope of procedures--These procedures are intended to assist

the parties in the processing of EAJA applications for award of fees

and other expenses incurred in connection with appeals pursuant to

the CDA.

(c) Eligibility of applicants--

(1) To be eligible for an EAJA award, an applicant must be a

party appellant that has prevailed in a CDA appeal before the Board

and must be one of the following:

(i) An individual with a net worth which did not exceed

$2,000,000 at the time the appeal was filed; or

(ii) Any owner of an unincorporated business, or any

partnership, corporation, association, unit of local Government, or

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

which does not have more than 500 employees; except:

(A) Certain charitable organizations or cooperative

associations; and

(B) For the purposes of 5 U.S.C. 504(a)(4), a small entity as

defined in 5 U.S.C. 601, need not comply with any net worth

requirement (see 5 U.S.C. 504(b)(1)(B)).

(2) For the purpose of eligibility, the net worth and number of

employees of an applicant shall be determined as of the date the

underlying CDA appeal was filed with the Board.

(d) Standards of awards. A prevailing eligible applicant shall

receive an award of fees and expenses incurred in connection with a

CDA appeal, unless the position of the Government over which the

applicant prevailed was substantially justified, or if special

circumstances make the award unjust.

(e) Allowable fees and other expenses. (1) Fees and other

expenses must be reasonable.

[[Page 11380]]

Awards will be based upon the prevailing market rates, subject to

paragraph (e)(2) of this section, for the kind and quality of

services furnished by attorneys, agents, and expert witnesses.

(2) No award for the fee of an attorney or agent may exceed $125

per hour. No expert witness shall be compensated at a rate in excess

of the highest rate of compensation for expert witnesses paid by the

agency involved.
(3) The reasonable cost of any study, analysis, engineering

report, test, or project, prepared on behalf of a party may be

awarded, to the extent that the study or other matter was necessary

in connection with the appeal and the charge for the service does

not exceed the prevailing rate for similar services.

(f) Time for filing of applications--An application may be filed

after an appellant has prevailed in the CDA appeal within 30 days

after the Board's disposition of the appeal has become final.

(g) Application contents--

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

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

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

(iii) Allege that the position of the government was not

substantially justified; and

(iv) Show the amount of fees and other expenses sought,

including an itemized statement thereof.

(2) An original and one copy of the application and exhibits

should be filed with the Board. The applicant will forward one copy

to the Government.

(3) When a compliant application has been timely filed, the

Board, in order to obtain more detailed information, may require

supplementation of the application.

(h) Net worth exhibit--Each applicant for which a determination

of net worth is required under the EAJA should provide with its

application a detailed net worth exhibit showing the net worth of

the applicant when the CDA appeal was filed. The exhibit may be in

any form convenient to the applicant that provides full disclosure

of assets, liabilities, and net worth.

(i) Fees and other expenses exhibit--The application should be

accompanied by a detailed fees and other expenses exhibit fully

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

study, analysis, engineering report, test, or project, for which an

award is sought. The date and a description of all services rendered

or costs incurred should be indicated. A separate itemized statement

should be submitted for each professional firm or individual whose

services are covered by the application showing the hours spent in

connection with the CDA appeal by each individual, a description of

the particular services performed by specific date, the rate at

which each fee has been computed, any expenses for which

reimbursement is sought, the total amount claimed, and the total

amount paid or payable by the applicant or by any other person or

entity for the services provided. The Board may require the

applicant to provide vouchers, receipts, or other substantiation for

any expenses sought.

(j) Answer to application--

(1) Within 30 days after receipt by the Government of an

application, the Government may file an answer. Unless the

Government requests an extension of time for filing or files a

statement of intent to negotiate under paragraph (2) below, failure

to file an answer within the 30-day period may be treated by the

Board at its discretion as a general denial to the application on

behalf of the Government.

(2) If the Government and the applicant believe that the matters

raised in the application can be resolved by mutual agreement, they

may jointly file a statement of intent to negotiate a settlement.

Filing of this statement will extend the time for filing an answer

for an additional 30 days. Further extensions may be requested by

the parties.

(3) The answer will explain in detail any objections to the

award requested and identify the facts relied upon in support of the

Government's position.

(4) An original and one copy of the answer should be filed with

the Board. The Government will forward one copy to the applicant.

(k) Reply--Within 15 days after receipt of an answer, the

applicant may file a reply. An original and one copy of the reply

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

the Government.

(l) Award proceedings--

(1) The Board may enter an order prescribing the procedure to be

followed or take such other action as may be deemed appropriate

under the EAJA. Further proceedings will be held only when necessary

for full and fair resolution of the issues arising from the

application.
(2) A request that the Board order further proceedings under

this paragraph will describe the disputed issues, explain why the

additional proceedings are deemed necessary to resolve the issues

and specifically identify any information sought and its

relationship to the disputed issues.

(m) Evidence--(1) Decisions on the merits. When a CDA appeal is

decided on the merits, other than by a consent judgment, the record

relating to whether the Government's position under the EAJA was

substantially justified will be limited to the record in the CDA

appeal. Evidence relevant to other issues in the award proceeding

may be submitted.

(2) Other dispositions. When a CDA appeal is settled, or decided

by a consent judgment, either party in proceedings under the EAJA

may, for good cause shown, supplement the record established in the

CDA appeal with affidavits and other supporting evidence relating to

whether the position of the agency was substantially justified or

other issues in the award proceeding.

(n) Decision--Decisions under the EAJA will be rendered by the

Administrative Judge or a majority of the judges who would have

participated in a motion for reconsideration of the underlying CDA

appeal. The decision of the Board will include written findings and

conclusions and the basis therefor. The Board's decision on an

application for fees and other expenses under the EAJA will be the

final administrative decision regarding the EAJA application.

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

for reconsideration. Motions for reconsideration must be filed

within 30 days of receipt of the Board's EAJA decision. Extensions

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

file a memorandum in support of a timely filed motion may be

granted.

(p) Payment of Awards--The Board's EAJA awards will be paid

directly by the contracting agency over which the applicant

prevailed in the underlying CDA appeal.

Addendum II

Alternative Methods of Dispute Resolution

1. The Contract Disputes Act (CDA), 41 U.S.C. 7105(g)(1), states

that boards of contract appeals ``shall . . . to the fullest extent

practicable provide informal, expeditious, and inexpensive

resolution of disputes''. Resolution of a dispute at the earliest

stage feasible, by the fastest and least expensive method possible,

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

consider Alternative Dispute Resolution (ADR) procedures for preclaim and pre-final decision matters, as well as appeals pending

before the Board. The Board may also conduct ADRs for any Federal

agency. However, if the matter is not pending before the Board under

its CDA jurisdiction, any settlement may not be paid out of the

Judgment Fund.

2. The ADR methods described in this Addendum are intended to

suggest techniques that have worked in the past. Any appropriate

method that brings the parties together in settlement, or partial

settlement, of their disputes is a good method. The ADR methods

listed are not intended to preclude the parties' use of other ADR

techniques that do not require the Board's participation, such as

settlement negotiations, fact-finding conferences or procedures,

mediation, or minitrials not involving use of the Board's personnel.

Any method, or combination of methods, including one that will

result in a binding decision, may be selected by the parties without

regard to the dollar amount in dispute.

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

The request must be approved by the Board. The Board may also

schedule a conference to explore the desirability and selection of

an ADR method and related procedures. If an ADR involving the

Board's participation is requested and approved by the Board, a

Neutral will be appointed. If an Administrative Judge has already

been assigned to an appeal, the same judge will normally be assigned

to be the Neutral in an ADR. If an Administrative Judge has not yet

been assigned to the appeal, or if the subject of the ADR is a

matter pending before the contracting officer prior to any appeal,

the Board will appoint an Administrative Judge to be the Neutral. In

such instances, as well as situations in which the parties prefer
that an assigned Administrative Judge not be appointed to serve as

the Neutral, the parties may submit a list of at least three

preferred Administrative Judges and the Board will endeavor to

accommodate their preferences.

[[Page 11381]]

4. To facilitate full, frank and open discussion and

presentations, any Neutral who has participated in a non-binding ADR

procedure that has failed to resolve the underlying dispute will be

recused from further participation in the matter unless the parties

expressly agree otherwise in writing and the Board concurs. Further,

the recused Neutral will not discuss the merits of the dispute or

substantive matters involved in the ADR proceedings with other Board

personnel.

5. Written material prepared specifically for use in an ADR

proceeding, oral presentations made at an ADR proceeding, and all

discussions in connection with such proceedings between the parties

and the Neutral are confidential and, unless otherwise specifically

agreed by the parties, inadmissible as evidence in any pending or

future Board proceeding involving the parties or matter in dispute.

However, evidence otherwise admissible before the Board is not

rendered inadmissible because of its use in the ADR proceeding.

6. The ADR method and the procedures and requirements

implementing the ADR method will be prescribed by the written

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

be used successfully at any stage of the litigation.

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

the Board:

(a) Nonbinding--

Mediations: A Neutral is an Administrative Judge who will not

normally hear or have any formal or informal decision-making

authority in the matter and who is appointed for the purpose of

facilitating settlement. In many circumstances, settlement can be

fostered by a frank, in-depth discussion of the strengths and

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

meetings with the Neutral will be flexible to accommodate the

requirements of the case. To further the settlement effort, the

Neutral may meet with the parties either jointly or individually. A

Neutral's recommendations are not binding on the parties. When this

method is selected, the ADR agreement must contain a provision in

which the parties and counsel agree not to subpoena the Neutral in

any legal action or administrative proceeding of any kind to produce

any notes or documents related to the ADR proceeding or to testify

concerning any such notes or documents or concerning his/her

thoughts or impressions.

(b) Binding--

Summary Proceeding With Binding Decision: A summary proceeding

with binding decision is a procedure whereby the resolution of the

appeal is expedited and the parties try their appeal informally

before an Administrative Judge. A binding ``bench'' decision may be

issued upon conclusion of the proceeding, or a binding summary

written decision will be issued by the judge no later than ten days

following the later of conclusion of the proceeding or receipt of a

transcript. The parties must agree in the ADR agreement that all

decisions, rulings, and orders by the Board under this method shall

be final, conclusive, not appealable, and may not be set aside,

except for fraud. All such decisions, rulings, and orders will have

no precedential value. Pre-hearing, hearing, and post-hearing

procedures and rules applicable to appeals generally will be

modified or eliminated to expedite resolution of the appeal.

(c) Other Agreed Methods--The parties and the Board may agree

upon other informal methods, binding or nonbinding that are

structured and tailored to suit the requirements of the individual

case.

8. The above-listed ADR procedures are intended to shorten and

simplify the Board's more formalized procedures. Generally, if the

parties resolve their dispute by agreement, they benefit in terms of

cost and time savings and maintenance or restoration of amicable

relations. The Board will not view the parties' participation in ADR

proceedings as a sign of weakness. Any method adopted for dispute

resolution depends upon both parties having a firm, good faith

commitment to resolve their differences. Absent such intention, the
best structured dispute resolution procedure is unlikely to be

successful.

[FR Doc. 2014-04153 Filed 2-27-14; 8:45 am]

BILLING CODE 5001-06-P