36794 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 6101, 6102, 6103, 6104, 

and 6105 

[GSA BCA Amendment 2006–01; BCA Case 

2006–61–1] 

RIN 3090–AI29 

Board of Contract Appeals; BCA Case 

2006–61–1; Rules of Procedure of the 

Civilian Board of Contract Appeals 

AGENCY: General Services 

Administration (GSA), Civilian Board of 

Contract Appeals. 

ACTION: Interim rule. 

SUMMARY: This document contains the 

rules of procedure of the Civilian Board 

of Contract Appeals (Board), which will 

govern all proceedings before the Board. 

The Board was established within GSA 

by section 847 of the National Defense 

Authorization Act for Fiscal Year 2006 

to hear and decide contract disputes 

between Government contractors and 

Executive agencies (other than 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, the United States Postal 

Service, the Postal Rate Commission, 

and the Tennessee Valley Authority) 

under the provisions of the Contract 

Disputes Act of 1978 and regulations 

and rules issued thereunder. Effective 

January 6, 2007, boards of contract 

appeals that existed at the General 

Services Administration and the 

Departments of Agriculture, Energy, 

Housing and Urban Development, 

Interior, Labor, Transportation, and 

Veterans Affairs were terminated, and 

their cases were transferred to the new 

Civilian Board of Contract Appeals. The 

Board has jurisdiction as provided by 

section 8(d) of the Contract Disputes Act 

of 1978, 41 U.S.C. 607(d). In addition, 

the Board will conduct proceedings as 

required or permitted under other 

statutes or regulations. The Board 

intends to issue final, revised rules after 

considering all comments on the interim 

rule. 

DATES: Effective Date: This interim rule 

is effective July 5, 2007. 

Comment Date: Interested parties 

should submit written comments to the 

Board of Contract Appeals on or before 

September 28, 2007, to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by CBCA Amendment 2006– 

01, BCA case 2006–61–1, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for any 

document by first selecting the proper 

document types and selecting ‘‘General 

Services Administration’’ as the agency 

of choice. At the ‘‘Keyword’’ prompt, 

type in the BCA case number (for 

example, BCA Case 2006–61–1) and 

click on the ‘‘Submit’’ button. You may 

also search for any document by 

clicking on the ‘‘Advanced search/ 

document search’’ tab at the top of the 

screen, selecting from the agency field 

‘‘General Services Administration’’, and 

typing the BCA case number in the 

keyword field. Select the ‘‘Submit’’ 

button. 

• Fax: 202–606–0019. 

• Mail: General Services 

Administration, Civilian Board of 

Contract Appeals, ATTN: Margaret 

Pfunder, 1800 F Street, NW, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite CBCA Amendment 2006– 

01, BCA case 2006–61–1, in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT

Margaret S. Pfunder, Chief Counsel, 

Civilian Board of Contract Appeals, 

telephone (202) 606–8800, internet 

address Margaret.Pfunder@gsa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Civilian Board of Contract 

Appeals was established within the 

General Services Administration (GSA) 

by section 847 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Pub. L. 109–163. Effective January 6, 

2007, the boards of contract appeals that 

existed at the General Services 

Administration and the Departments of 

Agriculture, Energy, Housing and Urban 

Development, Interior, Labor, 

Transportation, and Veterans Affairs 

were terminated, and their cases were 

transferred to the new Civilian Board of 

Contract Appeals. The Civilian Board 

was established to hear and decide 

contract disputes between Government 

contractors and Executive agencies 

(other than 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, 

the United States Postal Service, the 

Postal Rate Commission, and the 

Tennessee Valley Authority) under the 

provisions of the Contract Disputes Act 

of 1978 and regulations and rules issued 

thereunder. The Board will also conduct 

other proceedings as required or 

permitted under statutes or regulations. 

Such other proceedings include the 

resolution of disputes involving grants 

and contracts under the Indian SelfDetermination and Education 

Assistance Act, 25 U.S.C. 450, et seq. 

Because jurisdiction over these disputes 

is vested by statue, 25 U.S.C. 450m– 

1(d), in the Department of the Interior 

Board of Contract Appeals, section 

847(e) of the National Defense 

Authorization Act for Fiscal Year 2006 

reassigns that jurisdiction to the Civilian 

Board of Contract Appeals. 

Such other proceedings also include 

the resolution of disputes between 

insurance companies and the 

Department of Agriculture’s Risk 

Management Agency (RMA) involving 

actions of the Federal Crop Insurance 

Corporation (FCIC) pursuant to the 

Federal Crop Insurance Act, 7 U.S.C. 

1501, et seq. These disputes were 

formerly resolved by the Department of 

Agriculture Board of Contract Appeals, 

and this authority has been transferred 

to the Civilian Board of Contract 

Appeals under an agreement with the 

Secretary of Agriculture, as permitted 

under section 42(c)(2) of the Office of 

Federal Procurement Policy Act, 41 

U.S.C. 438(c)(2). 

In addition, other proceedings that the 

Civilian Board will conduct include 

several types of cases heard by the 

General Services Board of Contract 

Appeals by delegation from the 

Administrator of General Services. 

Effective January 6, 2007, the 

Administrator of General Services 

redelegated those cases to the Civilian 

Board of Contract Appeals. Those cases 

include the following: 

• Pursuant to 31 U.S.C. 3726(i)(1), 

requests by carriers or freight forwarders 

to review actions taken by the Audit 

Division of the General Services 

Administration’s Office of 

Transportation and Property 

Management; 

• Pursuant to 31 U.S.C. 3702, claims 

by Federal civilian employees against 

the United States for reimbursement of 

(1) expenses incurred while on official 

temporary duty travel and (2) expenses 

incurred in connection with relocation 

to a new duty station; and 

• Pursuant to section 204 of the 

General Accounting Office Act of 1996, 

Pub. L. 104–316, requests of agency 

disbursing or certifying officials, or 

agency heads, on questions involving 

payment of travel or relocation expenses 

that were formerly considered by the 

Comptroller General under 31 U.S.C. 

3529. 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36795 

These rules of procedure are based on 

and do not differ in any substantial way 

from the rules of procedure which 

existed at the predecessor civilian 

agency boards. The rules of the 

predecessor civilian agency boards all 

had the same general intent and 

coverage. There were differences among 

the rules in terms of both structure and 

wording, and no two civilian agency 

boards had identical sets of rules. In 

drafting rules of procedure for the 

Civilian Board, we studied the rules of 

procedure of all of the civilian agency 

boards and developed an interim final 

rule which blends those rules. The 

interim final rule maintains most of the 

rules all of the former boards had in 

place. 

Questions have been raised about the 

scope of the Board’s subpoena authority 

over federal agencies. The Department 

of Justice has recently provided advice 

concluding that the statute that granted 

subpoena authority to the separate 

agency boards of contract appeals, and 

that provides such authority to the 

consolidated Board, does not provide 

the necessary legal authority for a board 

to enforce a subpoena against a federal 

agency. Therefore, the agency does not 

interpret the term ‘‘person’’ where it is 

used in 6101.16 to include the United 

States or component federal agencies. 

B. Regulatory Flexibility Act 

The General Services Administration 

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 does not impose any 

additional costs on either small or large 

businesses. 

C. Executive Order 12866, Regulatory 

Planning and Review 

OMB reviewed this rule under 

Executive Order 12866 (entitled, 

‘‘Regulatory Planning and Review’’). 

OMB determined that this rule is a 

‘‘significant regulatory action’’ as 

defined in section 3(f) of the Order 

(although not an economically 

significant regulatory action under the 

Order). 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes do not 

impose recordkeeping or information 

collection requirements, or otherwise 

collect information from offerors, 

contractors, or members of the public 

that require approval of the Office of 

Management and Budget under 44 

U.S.C. 3501, et seq. 

E. Determination to Issue an Interim 

Rule 

Pursuant to 5 U.S.C. § 553(b)(B), we 

have determined that it would be 

impracticable, unnecessary, and 

contrary to the public interest to publish 

this as a Notice of Proposed Rulemaking 

because to do so would result in the 

Board being operational but unable to 

perform its essential functions. 

Accordingly, we find that good cause 

exists to publish as an interim rule. For 

the same reasons, we have determined 

that this interim rule should be issued 

without a delayed effective date. 

However, we are interested in 

comments regarding this interim rule. 

List of Subjects in 48 CFR Parts 6101, 

6102, 6103, 6104, and 6105 

Administrative practice and 

procedure, Agriculture, Freight 

forwarders, Government procurement, 

Travel and relocation expenses. 

Dated: June 8, 2007. 

Stephen M. Daniels, 

Chairman, Civilian Board of Contract 

Appeals, General Services Administration. 

■ Therefore, GSA amends 48 CFR 

chapter 61 as set forth below: 

Chapter 61—Civilian Board of Contract 

Appeals 

■ 1. Revise part 6101 to read as follows: 

PART 6101—RULES OF PROCEDURE 

OF THE CIVILIAN BOARD OF 

CONTRACT APPEALS 

Sec. 

6101.1 Scope of rules; definitions; 

construction; rulings, orders, and 

directions; panels; location and address 

[Rule 1]. 

6101.2 Filing cases; time limits for filing; 

notice of docketing; consolidation [Rule 

2]. 

6101.3 Time: enlargement; computation 

[Rule 3]. 

6101.4 Appeal file [Rule 4]. 

6101.5 Appearances; notice of appearance 

[Rule 5]. 

6101.6 Pleadings and amendment of 

pleadings [Rule 6]. 

6101.7 Service of papers other than 

subpoenas [Rule 7]. 

6101.8 Motions [Rule 8]. 

6101.9 Record of Board proceedings; 

review and copying [Rule 9]. 

6101.10 Admissibility and weight of 

evidence [Rule 10]. 

6101.11 Conferences; conference 

memorandum [Rule 11]. 

6101.12 Suspensions and dismissals [Rule 

12]. 

6101.13 General provisions governing 

discovery [Rule 13]. 

6101.14 Interrogatories to parties; requests 

for admission; requests for production 

[Rule 14]. 

6101.15 Depositions [Rule 15]. 

6101.16 Subpoenas [Rule 16]. 

6101.17 Exhibits [Rule 17]. 

6101.18 Election of hearing or record 

submission [Rule 18]. 

6101.19 Submission on the record without 

a hearing [Rule 19]. 

6101.20 Hearings: scheduling; notice; 

unexcused absences [Rule 20]. 

6101.21 Hearing procedures [Rule 21]. 

6101.22 Transcripts of proceedings; 

corrections [Rule 22]. 

6101.23 Briefs and memoranda of law [Rule 

23]. 

6101.24 Closing the record [Rule 24]. 

6101.25 Decisions; settlements [Rule 25]. 

6101.26 Reconsideration; amendment of 

decisions; new hearings [Rule 26]. 

6101.27 Relief from decision or order [Rule 

27]. 

6101.28 Full Board consideration [Rule 28]. 

6101.29 Clerical mistakes; harmless error 

[Rule 29]. 

6101.30 Award of fees and other expenses 

[Rule 30]. 

6101.31 Payment of Board awards [Rule 

31]. 

6101.32 Appeal from a Board decision 

[Rule 32]. 

6101.33 Ex parte contact; sanctions and 

other proceedings [Rule 33]. 

6101.34 Seal of the Board [Rule 34]. 

6101.35—6101.50 [Reserved] 

6101.51 Variation from standard 

proceedings [Rule 51]. 

6101.52 Small claims procedure [Rule 52]. 

6101.53 Accelerated procedure [Rule 53]. 

6101.54 Alternate dispute resolution [Rule 

54]. 

Appendix to Part 6101—Form Nos. 1–5. 

Authority: 41 U.S.C. 601–613. 

6101.1 Scope of rules; definitions; 

construction; rulings, orders, and 

directions; panels; location and address 

[Rule 1]. 

(a) Scope. The rules of this chapter 

govern proceedings in all cases filed 

with the Board on or after January 6, 

2007, and all further proceedings in 

cases then pending, except to the extent 

that, in the opinion of the Board, their 

use in a particular case pending on the 

effective date would be infeasible or 

would work an injustice. The rules of 

this chapter will remain in effect until 

the Board issues final rules of procedure 

or June 30, 2008, whichever occurs 

earlier. The Board will look to the rules 

of this chapter for guidance in 

conducting other proceedings 

authorized by law. 

(b) Definitions—(1) Appeal; appellant. 

The term ‘‘appeal’’ means a contract 

dispute filed with the Board. The term 

‘‘appellant’’ means a party filing an 

appeal. 

(2) Application; applicant. The term 

‘‘application’’ means a submission to 

the Board of a request for award of fees 

and other expenses, under the Equal 

Access to Justice Act, 5 U.S.C. 504, 

pursuant to 6101.30 (Rule 30). The term 

‘‘applicant’’ means a party filing an 

application. 

mstockstill on PROD1PC66 with RULES3

36796 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

(3) Board judge; judge. The term 

‘‘Board judge’’ or ‘‘judge’’ means a 

member of the Board. 

(4) Case. The term ‘‘case’’ means an 

appeal, petition, or application. 

(5) Filing. (i) Any document, other 

than a notice of appeal or an application 

for award of fees and other expenses, is 

filed when it is received by the Office 

of the Clerk of the Board during the 

Board’s working hours. A notice of 

appeal or an application for award of 

fees and other expenses is filed upon 

the earlier of its receipt by the Office of 

the Clerk of the Board or if mailed, the 

date on which it is mailed. A United 

States Postal Service postmark shall be 

prima facie evidence that the document 

with which it is associated was mailed 

on the date of the postmark. 

(ii) Facsimile transmissions to the 

Board and the parties are permitted. The 

filing of a document by facsimile 

transmission occurs upon receipt by the 

Board of the entire printed submission. 

Parties are specifically cautioned that a 

deadline for filing will not be extended 

merely because the Board’s facsimile 

machine is busy or otherwise 

unavailable when a filing is due. Parties 

are expected to submit their facsimile 

machine numbers with their filings. 

(6) Party. The term ‘‘party’’ means an 

appellant, applicant, petitioner, or 

respondent. 

(7) Petition; petitioner. The term 

‘‘petition’’ means a request filed under 

41 U.S.C. 605(c)(4) that the Board direct 

a contracting officer to issue a written 

decision on a claim. The term 

‘‘petitioner’’ means a party submitting a 

petition. 

(8) Respondent. The term 

‘‘respondent’’ means the government 

agency whose decision, action, or 

inaction is the subject of an appeal, 

petition, or application. 

(9) Working day. The term ‘‘working 

day’’ means any day other than a 

Saturday, Sunday, federal holiday, day 

on which the Office of the Clerk is 

required to close earlier than 4:30 p.m., 

or day on which the Office of the Clerk 

does not open at all, as in the event of 

inclement weather. 

(10) Working hours. The Board’s 

working hours are 8:00 a.m. to 4:30 

p.m., Eastern Time, on each working 

day. 

(c) Construction. The rules of this 

chapter shall be construed to secure the 

just, informal, expeditious, and 

inexpensive resolution of every case. 

The Board looks to the Federal Rules of 

Civil Procedure for guidance in 

construing those Board rules which are 

similar to Federal Rules. 

(d) Rulings, orders, and directions. 

The Board may apply the rules of this 

chapter and make such rulings and 

issue such orders and directions as are 

necessary to secure the just, informal, 

expeditious, and inexpensive resolution 

of every case before the Board. Any 

ruling, order, or direction that the Board 

may make or issue pursuant to the rules 

of this chapter may be made on the 

motion or request of any party or on the 

initiative of the Board. The Board may 

also amend, alter, or vacate a ruling, 

order, or direction upon such terms as 

it deems just. In making rulings and 

issuing orders and directions pursuant 

to the rules of this chapter, the Board 

takes into consideration those Federal 

Rules of Civil Procedure which address 

matters not specifically covered herein. 

(e) Panels. Each case will be assigned 

to a panel consisting of three judges, 

with one member designated as the 

panel chair, in accordance with such 

procedures as may be established by the 

Board. The panel chair is responsible for 

processing the case, including 

scheduling and conducting proceedings 

and hearings. In addition, the panel 

chair may, without participation by 

other panel members, decide an appeal 

under the small claims procedure in 

6101.52 (Rule 52), rule on 

nondispositive motions (except for 

amounts in controversy under 

6101.52(a)(2) (Rule 52(a)(2))), and 

dismiss a case as permitted by 

6101.12(e) (Rule 12(e)). All other 

matters, except for those before the full 

Board under 6101.28 (Rule 28), are 

decided for the Board by a majority of 

the panel. 

(f) Location and address. The location 

of the Office of the Clerk of the Board 

is: 1800 M Street, NW, 6th Floor, 

Washington, DC 20036. The mailing 

address of the Office of the Clerk of the 

Board is: 1800 F Street, NW, 

Washington, DC 20405. The Clerk’s 

telephone number is: (202) 606–8800. 

The Clerk’s facsimile machine number 

is: (202) 606–0019. 

6101.2 Filing cases; time limits for filing; 

notice of docketing; consolidation [Rule 2]. 

(a) Filing cases. Filing of a case occurs 

as provided in 6101.1(b)(5) (Rule 

1(b)(5)). 

(1) Notice of appeal. (i) A notice of 

appeal shall be in writing and shall be 

signed by the appellant or by the 

appellant’s attorney or authorized 

representative. If the appeal is from a 

contracting officer’s decision, the notice 

of appeal should describe the decision 

in enough detail to enable the Board to 

differentiate that decision from any 

other; the appellant can satisfy this 

requirement by attaching to the notice of 

appeal a copy of the contracting officer’s 

decision. If an appeal is taken from the 

failure of a contracting officer to issue 

a decision, the notice of appeal should 

describe in detail the claim that the 

contracting officer has failed to decide; 

the appellant can satisfy this 

requirement by attaching a copy of the 

written claim submission to the notice 

of appeal. 

(ii) A written notice in any form, 

including the one specified in the 

Appendix to the rules in this chapter, is 

sufficient to initiate an appeal. The 

notice of appeal should include the 

following information: 

(A) The number and date of the 

contract; 

(B) The name of the government 

agency and the component thereof 

against which the claim has been 

asserted; 

(C) The name, address, and telephone 

number of the contracting officer whose 

decision is appealed and the date of the 

decision; 

(D) If the appeal is from the failure of 

the contracting officer to decide a claim, 

the name, address, and telephone 

number of the contracting officer who 

received the claim; 

(E) A brief account of the 

circumstances giving rise to the appeal; 

and 

(F) An estimate of the amount of 

money in controversy, if any and if 

known. 

(iii) The appellant must send a copy 

of the notice of appeal to the contracting 

officer whose decision is appealed or, if 

there has been no decision, to the 

contracting officer before whom the 

appellant’s claim is pending. 

(2) Petition. (i) A petition shall be in 

writing and signed by the petitioner or 

by the petitioner’s attorney or 

authorized representative. The petition 

should describe in detail the claim that 

the contracting officer has failed to 

decide; the contractor can satisfy this 

requirement by attaching to the petition 

a copy of the written claim submission. 

(ii) The petition should include the 

following information: 

(A) The number and date of the 

contract; 

(B) The name of the government 

agency and the component thereof 

against which the claim has been 

asserted; and 

(C) The name, address, and telephone 

number of the contracting officer whose 

decision is sought. 

(3) Application. An application for 

fees and other expenses shall meet all 

requirements specified in 6101.30 (Rule 

30). 

(b) Time limits for filing—(1) Appeals. 

(i) An appeal from a decision of a 

contracting officer shall be filed no later 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36797 

than 90 calendar days after the date the 

appellant receives that decision. 

(ii) An appeal may be filed with the 

Board if the contracting officer fails or 

refuses to issue a timely decision on a 

claim submitted in writing, properly 

certified if required. 

(2) Applications. An application for 

fees and other expenses shall be filed 

within 30 calendar days of a final 

disposition in the underlying appeal, as 

provided in 6101.30 (Rule 30). 

(c) Notice of docketing. Notices of 

appeal, petitions, and applications will 

be docketed by the Office of the Clerk 

of the Board, and a written notice of 

docketing will be sent promptly to all 

parties. 

(d) Consolidation. When cases 

involving common questions of law or 

fact are filed, the Board may: 

(1) Order the cases consolidated; or 

(2) Make such other orders concerning 

the proceedings as are needed to avoid 

unnecessary costs or delay. 

6101.3 Time: enlargement; computation 

[Rule 3]. 

(a) Time for performing required 

actions. All time limitations prescribed 

in the rules of this chapter or in any 

order or direction given by the Board are 

maximums, and the action required 

should be accomplished in less time 

whenever possible. 

(b) Enlarging time. Upon request of a 

party for good cause shown, the Board 

may enlarge any time prescribed by the 

rules in this chapter or by an order or 

direction of the Board except the time 

limit for filing appeals (6101.2(b)(1) 

(Rule 2(b)(1))). A written request is 

required, but in exigent circumstances 

an oral request may be made and 

followed by a written request. An 

enlargement of time may be granted 

even though the request was filed after 

the time for taking the required action 

expired, but the party requesting the 

enlargement must show good cause for 

its inability to make the request before 

that time expired. 

(c) Computing time. Except as 

otherwise required by law, in 

computing a period of time prescribed 

by the rules in this chapter or by order 

of the Board, the day from which the 

designated period of time begins to run 

shall not be counted, but the last day of 

the period shall be counted unless that 

day is a Saturday, a Sunday, or a federal 

holiday, or a day on which the Office of 

the Clerk of the Board is required to 

close earlier than 4:30 p.m., or does not 

open at all, as in the case of inclement 

weather, in which event the period shall 

include the next working day. Except as 

otherwise provided in this paragraph, 

when the period of time prescribed or 

allowed is less than 11 days, any 

intervening Saturday, Sunday, or federal 

holiday shall not be counted. When the 

period of time prescribed or allowed is 

11 days or more, intervening Saturdays, 

Sundays, and federal holidays shall be 

counted. Time for filing any document 

or copy thereof with the Board expires 

when the Office of the Clerk of the 

Board closes on the last day on which 

such filing may be made. 

6101.4 Appeal file [Rule 4]. 

(a) Submission to the Board by the 

respondent. Within 30 calendar days 

from receipt of notice that an appeal has 

been filed, or within such time as the 

Board may allow, the respondent shall 

file with the Board appeal file exhibits 

consisting of all documents and other 

tangible things relevant to the claim and 

to the contracting officer’s decision 

which has been appealed. Exhibits will 

be numbered as required by 6101.4(b) 

(Rule 4(b)) and will include: 

(1) The contracting officer’s decision, 

if any, from which the appeal is taken; 

(2) The contract, if any, including 

amendments, specifications, plans, and 

drawings; 

(3) All correspondence between the 

parties that are relevant to the appeal, 

including the written claim or claims 

that are the subject of the appeal, and 

evidence of their certification, if any; 

(4) Affidavits or statements of any 

witnesses concerning the matter in 

dispute and transcripts of any testimony 

taken before the filing of the notice of 

appeal; 

(5) All documents and other tangible 

things on which the contracting officer 

relied in making the decision, and any 

related correspondence; 

(6) The abstract of bids, if relevant; 

and 

(7) Any additional existing evidence 

or information necessary to determine 

the merits of the appeal, such as internal 

memoranda and notes to the file. 

(b) Organization of the appeal file. 

Appeal file exhibits may be originals or 

true, legible, and complete copies. They 

shall be arranged in chronological order, 

earliest documents first; bound in a 

loose-leaf binder on the left margin 

except where size or shape makes such 

binding impracticable; numbered; 

tabbed; and indexed. The loose-leaf 

binders cannot exceed four inches in 

depth. The numbering shall be 

consecutive, in whole Arabic numerals 

(no letters, decimals, or fractions), and 

continuous from one submission to the 

next, so that the complete file, after all 

submissions, will consist of one set of 

consecutively numbered exhibits. In 

addition, the pages within each exhibit 

containing more than three pages shall 

be numbered consecutively unless the 

exhibit already is paginated in a logical 

manner. Consecutive pagination of the 

entire file is not required. The index 

shall include the date and a brief 

description of each exhibit and shall 

identify which exhibits, if any, have 

been filed with the Board in camera or 

under protective order or otherwise 

have not been served on the other party. 

(c) Service. The respondent shall 

serve a copy of the appeal file on the 

appellant at the same time that the 

respondent files it with the Board, 

except that the respondent need not 

serve on the appellant those documents 

furnished the Board in camera pursuant 

to 6101.9(c) (Rule 9(c)), and the 

respondent shall serve documents 

submitted under protective order only 

on those individuals who have been 

granted access to such documents by the 

Board. However, the respondent must 

serve on the appellant a list identifying 

the specific documents filed in camera 

or under protective order with the 

Board, giving sufficient details 

necessary for their recognition. This list 

must also be filed with the Board as an 

exhibit to the appeal file. 

(d) Submission to the Board by the 

appellant. Within 30 calendar days after 

the respondent files its appeal file 

exhibits, or within such time as the 

Board may allow, the appellant shall file 

with the Board for inclusion in the 

appeal file documents or other tangible 

things relevant to the appeal that have 

not been submitted by the respondent. 

The appellant shall serve a copy of its 

additional exhibits upon the respondent 

at the same time as it files them with the 

Board, and shall organize the file as 

required by 6101.4(b) (Rule 4(b)). 

(e) Submissions on order of the Board. 

The Board may, at any time during the 

pendency of the appeal, require any 

party to file other documents and 

tangible things as additional exhibits. 

The Board may also require a party to 

file either copies of electronic records or 

printed versions of electronic records. 

(f) Lengthy or bulky materials. The 

Board may waive the requirement to 

furnish the other party copies or 

duplicates of bulky, lengthy, or outsized 

materials submitted to the Board as 

exhibits if furnishing copies would 

impose an undue burden, so long as the 

materials are available to the opposing 

party for inspection. 

(g) Use of appeal file as evidence. All 

exhibits in the appeal file, except for 

those as to which an objection has been 

sustained, are part of the evidentiary 

record upon which the Board will 

render its decision. Unless otherwise 

ordered by the Board, objection to any 

exhibit may be made at any time before 

mstockstill on PROD1PC66 with RULES3

36798 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

the first witness is sworn or, if the 

appeal is submitted on the record 

without a hearing pursuant to 6101.19 

(Rule 19), at any time prior to or 

concurrent with the first record 

submission. The Board may enlarge the 

time for such objections and will 

consider an objection made during a 

hearing if the ground for objection could 

not reasonably have been earlier known 

to the objecting party. If an objection is 

sustained, the Board will so note in the 

record. 

(h) When appeal file not required. 

Upon motion of a party, the Board may 

postpone or dispense with the 

submission of any or all appeal file 

exhibits. 

6101.5 Appearances; notice of appearance 

[Rule 5]. 

(a) Appearances before the Board—(1) 

Appellant; petitioner; applicant. Any 

appellant, petitioner, or applicant may 

appear before the Board by an attorneyat-law licensed to practice in a state, 

commonwealth, or territory of the 

United States, or in the District of 

Columbia. An individual appellant, 

petitioner, or applicant may appear in 

his or her own behalf; a corporation, 

trust, or association may appear by one 

of its officers; and a partnership may 

appear by one of its members. 

(2) Respondent. The respondent may 

appear before the Board by an attorneyat-law licensed to practice in a state, 

commonwealth, or territory of the 

United States, or in the District of 

Columbia. Alternatively, if not 

prohibited by agency regulation or 

otherwise, the respondent may appear 

by the contracting officer or by the 

contracting officer’s authorized 

representative. 

(3) Others. The Board may, on motion, 

in its discretion, permit a special or 

limited appearance, such as by an 

amicus curiae. Permission to appear, if 

granted, will be for such purposes and 

in such manner as allowed by the 

presiding judge. 

(b) Notice of appearance. Unless a 

notice of appearance is filed by some 

other person, the person signing the 

notice of appeal, petition, or application 

shall be deemed to have appeared on 

behalf of the appellant, petitioner, or 

applicant, and the head of the 

respondent agency’s litigation office 

shall be deemed to have appeared on 

behalf of the respondent. Other 

attorneys actively participating in the 

proceedings before the Board must file 

notices of appearance. A notice of 

appearance in the form specified in the 

Appendix to the rules of this chapter is 

sufficient. Attorneys representing 

parties before the Board are required to 

list the state bars to which they are 

admitted and their state bar numbers or 

other bar identifiers. 

(c) Withdrawal of appearance. Any 

person who has filed a notice of 

appearance and who wishes to 

withdraw from a case must file a motion 

which includes the name, address, 

telephone number, and facsimile 

machine number of the person who will 

assume responsibility for representation 

of the party in question. The motion 

shall state the grounds for withdrawal 

unless it is accompanied by a 

representation from the successor 

representative or existing co-counsel 

that the established case schedule will 

be met. 

6101.6 Pleadings and amendment of 

pleadings [Rule 6]. 

(a) Pleadings required and permitted. 

Except as the Board may otherwise 

order, the Board requires the submission 

of a complaint and an answer. In 

appropriate circumstances, the Board 

may order or permit a reply to an 

answer. 

(b) Complaint. No later than 30 

calendar days after the docketing of the 

appeal, the appellant shall file with the 

Board a complaint setting forth its claim 

or claims in simple, concise, and direct 

terms. The complaint should set forth 

the factual basis of the claim or claims, 

with appropriate reference to the 

contract provisions, and should state the 

amount in controversy, or an estimate 

thereof, if any and if known. No 

particular form is prescribed for a 

complaint, and the Board may designate 

the notice of appeal, a claim 

submission, or any other document as 

the complaint, either on its own 

initiative or on request of the appellant, 

if such document sufficiently states the 

factual basis and amount of the claim. 

(c) Answer. No later than 30 calendar 

days after the filing of the complaint or 

of the Board’s designation of a 

complaint, the respondent shall file 

with the Board an answer setting forth 

simple, concise, and direct statements of 

its defenses to the claim or claims 

asserted in the complaint, as well as any 

affirmative defenses it chooses to assert. 

One-word responses stating an 

allegation is denied are discouraged. A 

dispositive motion or a motion for a 

more definite statement may be filed in 

lieu of the answer only with the 

permission of the Board. If no answer is 

timely filed, the Board may enter a 

general denial, in which case the 

respondent may thereafter amend the 

answer to assert affirmative defenses 

only by leave of the Board and as 

otherwise prescribed by paragraph (e) of 

this section. The Board will inform the 

parties when it enters a general denial 

on behalf of the respondent. 

(d) Small claims and accelerated 

procedures. When an appellant elects to 

use the small claims or accelerated 

procedures described in 6101.52 and 

6101.53 (Rules 52 and 53), the Board 

may shorten the time for filing the 

complaint and the answer. 

(e) Amendment of pleadings. Each 

party to an appeal may amend its 

pleadings once without leave of the 

Board at any time before a responsive 

pleading is filed. The Board may permit 

other amendments on conditions fair to 

both parties. A response to an amended 

pleading will be filed within the time 

set by the Board. 

(f) Amendments to conform to the 

evidence. When issues within the 

proper scope of a case, but not raised in 

the pleadings, have been raised without 

objection or with permission of the 

Board at a hearing or in record 

submissions, they shall be treated in all 

respects as if they had been raised in the 

pleadings. The Board may order the 

parties to amend the pleadings to 

conform to the proof or may order that 

the record be deemed to contain 

amended pleadings. 

6101.7 Service of papers other than 

subpoenas [Rule 7]. 

(a) On whom and when service must 

be made. Except for subpoenas (6101.16 

(Rule 16)) and documents filed in 

camera (6101.9(c) (Rule 9(c))), when a 

party sends a document to the Board it 

must at the same time send a copy to the 

other party by mail or some other 

equally or more expeditious means of 

transmittal. Any papers required to be 

served on a party (except requests for 

discovery and responses thereto, unless 

ordered by the Board to be filed) shall 

be filed with the Board before service or 

within a reasonable time thereafter. 

(b) Proof of service. A party sending 

a document to the Board must represent 

to the Board that a copy has also been 

sent to the other party. This may be 

done by certificate of service, by the 

notation of a photostatic copy (cc:), or 

by any other means that can reasonably 

be expected to show the Board that the 

other party has been provided a copy. 

(c) Failure to make service. If a 

document sent to the Board by a party 

does not show that a copy has been 

served on the other party, the Board 

may return the document to the party 

that submitted it with such directions as 

it considers appropriate, or the Board 

may inquire whether a party has 

received a copy and note on the record 

the fact of inquiry and the response, and 

may also direct the party that submitted 

the document to serve a copy on the 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36799 

other party. In the absence of proof of 

service a document may be treated by 

the Board as not properly filed. 

6101.8 Motions [Rule 8]. 

(a) How motions are made. Motions 

may be oral or written. A written motion 

shall state the relief sought and, either 

in the text of the motion or in an 

accompanying legal memorandum, the 

grounds therefor. In addition, a motion 

for summary relief shall comply with 

the requirements of paragraph (g) of this 

section. Section 6101.23 (Rule 23) 

prescribes the form and content of legal 

memoranda. Oral motions shall be made 

on the record and in the presence of the 

other party. Except for joint motions by 

the parties, all motions must represent 

that the moving party has attempted to 

discuss the grounds for the motion with 

the non-moving party and tried to 

resolve the matter informally. 

(b) When motions may be made. A 

motion filed in lieu of an answer 

pursuant to 6101.6(c) (Rule 6(c)) shall be 

filed no later than the date on which the 

answer is required to be filed or such 

later date as may be established by the 

Board. Any other dispositive motion 

shall be made as soon as practicable 

after the grounds therefor are known. 

Any other motion shall be made 

promptly or as required by the rules of 

this chapter. 

(c) Dispositive motions. The following 

dispositive motions may properly be 

made before the Board: 

(1) Motions to dismiss for lack of 

jurisdiction or for failure to state a claim 

upon which relief can be granted; 

(2) Motions to dismiss for failure to 

prosecute; 

(3) Motions for summary relief 

(analogous to summary judgment); and 

(4) Any other motion to dismiss. 

(d) Other motions. Other motions may 

be made in good faith and in proper 

form. When filing a motion for an 

enlargement of time, the moving party 

shall state that it has contacted the 

opposing party about the request and 

shall inform the Board whether the 

opposing party consents to the request 

or will file an opposition. 

(e) Jurisdictional questions. The Board 

may at any time consider the issue of its 

jurisdiction to decide a case. When all 

facts touching upon the Board’s 

jurisdiction are not of record, or in other 

appropriate circumstances, a decision 

on a jurisdictional question may be 

deferred pending a hearing on the 

merits or the filing of record 

submissions. 

(f) Procedure. Unless otherwise 

directed by the Board, a party may 

respond to a written motion other than 

a motion pursuant to 6101.26, 6101.27, 

6101.28, or 6101.29 (Rules 26, 27, 28, or 

29) at any time within 20 calendar days 

after the filing of the motion. Responses 

to motions pursuant to 6101.26, 

6101.27, 6101.28, or 6101.29 (Rules 26, 

27, 28, or 29) may be made only as 

permitted or directed by the Board. The 

Board may permit hearing or oral 

argument on written motions and may 

require additional submissions from any 

of the parties. 

(g) Motions for summary relief. (1) A 

motion for summary relief should be 

filed only when a party believes that, 

based upon uncontested material facts, 

it is entitled to relief in whole or in part 

as a matter of law. A motion for 

summary relief should be filed as soon 

as feasible, to allow the Board to rule on 

the motion in advance of a scheduled 

hearing date. 

(2) With each motion for summary 

relief, there shall be served and filed a 

separate document titled Statement of 

Uncontested Facts, which shall contain 

in separately numbered paragraphs all 

of the material facts upon which the 

moving party bases its motion and as to 

which it contends there is no genuine 

issue. This statement shall include 

references to the supporting affidavits or 

declarations and documents, if any, and 

to the 6101.4 (Rule 4) appeal file 

exhibits relied upon to support such 

statement. 

(3) An opposing party shall file with 

its opposition (or cross-motion) a 

separate document titled Statement of 

Genuine Issues. This document shall 

identify, by reference to specific 

paragraph numbers in the moving 

party’s Statement of Uncontested Facts, 

those facts as to which the opposing 

party claims there is a genuine issue 

necessary to be litigated. An opposing 

party shall state the precise nature of its 

disagreement and give its version of the 

facts. This statement shall include 

references to the supporting affidavits or 

declarations and documents, if any, and 

to the 6101.4 (Rule 4) appeal file 

exhibits that demonstrate the existence 

of a genuine dispute. An opposing party 

may also file a Statement of 

Uncontested Facts as to any relevant 

matters not covered by the moving 

party’s statement. 

(4) When a motion for summary relief 

is made and supported as provided in 

6101.8 (Rule 8), an opposing party may 

not rest upon the mere allegations or 

denials of its pleadings. The opposing 

party’s response, by affidavits or as 

otherwise provided by 6101.8 (Rule 8), 

must set forth specific facts showing 

that there is a genuine issue of material 

fact. If the opposing party does not so 

respond, summary relief, if appropriate, 

shall be entered against that party. For 

good cause shown, if an opposing party 

cannot present facts essential to justify 

its opposition, the Board may defer 

ruling on the motion to permit affidavits 

to be obtained or depositions to be taken 

or other discovery to be conducted, or 

may make such other order as is just. 

(h) Effect of pending motion. Except 

as the rules of this chpater provide or 

the Board may order, a pending motion 

shall not excuse the parties from 

proceeding with the case in accordance 

with the rules of this chapter and the 

orders and directions of the Board. 

6101.9 Record of Board proceedings; 

review and copying [Rule 9]. 

(a) Composition of the record for 

decision. The record upon which any 

decision of the Board will be rendered 

consists of: 

(1) The notice of appeal, petition, or 

application; 

(2) Appeal file exhibits other than 

those as to which an objection has been 

sustained; 

(3) Hearing exhibits other than those 

as to which an objection has been 

sustained; 

(4) Pleadings; 

(5) Motions and responses thereto; 

(6) Memoranda, orders, rulings, and 

directions to the parties issued by the 

Board; 

(7) Documents and other tangible 

things admitted in evidence by the 

Board; 

(8) Written transcripts or electronic 

recordings of proceedings; 

(9) Stipulations and admissions by the 

parties; 

(10) Depositions, or parts thereof, 

received in evidence; 

(11) Written interrogatories and 

responses received in evidence; 

(12) Briefs and memoranda of law; 

and 

(13) Anything else that the Board may 

designate. All other papers and 

documents are part of the administrative 

record of the proceedings and are not 

included in the record upon which the 

Board’s decision will be rendered. 

(b) Enlargement of the record. The 

Board may at any time require or permit 

enlargement of the record with 

additional evidence and briefs. It may 

reopen the record to receive additional 

evidence and oral argument at a hearing. 

(c) Protected and in camera 

submissions. (1) A party may by motion 

request that the Board receive and hold 

materials under conditions that would 

limit access to them on the ground that 

such documents are privileged or 

confidential, or sensitive in some other 

way. The moving party must state the 

grounds for such limited access. The 

Board may also determine on its own 

mstockstill on PROD1PC66 with RULES3

36800 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

initiative to hold materials under such 

conditions. The manner in which such 

materials will be held, the persons who 

shall have access to them, and the 

conditions (if any) under which such 

access will be allowed will be specified 

in an order of the Board. If the materials 

are held under such an order, they will 

be part of the record of the case. If the 

Board denies the motion, the materials 

may be returned to the party that 

submitted them. If the moving party 

asks, however, that the materials be 

placed in the administrative record, in 

camera, for the purpose of possible later 

review of the Board’s denial, the Board 

will comply with the request. 

(2) A party may also ask, or the Board 

may direct, that testimony be received 

under protective order or in camera. 

The procedures under paragraph (c)(1) 

of this section shall be followed with 

respect to such request or direction. 

(d) Review and copying. Except for 

any part thereof that is subject to a 

protective order or deemed an in 

camera submission, the record in a 

Board proceeding shall be made 

available for review at the Office of the 

Clerk of the Board during the Board’s 

normal working hours, as soon as 

practicable given the demands on the 

Board of processing the subject case and 

other cases. If a request is made for 

copies of documents, and if making 

such copies involves more than minimal 

costs to the Board, reimbursement will 

be required. If a request is made for a 

copy of a transcript which was prepared 

pursuant to a contract with the Board, 

the fee charged by the Board for a copy 

of the transcript will be at the rate 

established by the contract. When 

required, the Office of the Clerk will 

certify copies of papers and documents 

as a true record of the Board. Except as 

provided in 6101.17 and 6101.32 (Rules 

17 and 32), the Office of the Clerk will 

not release any part of the record in its 

possession to anyone. 

6101.10 Admissibility and weight of 

evidence [Rule 10]. 

(a) Admissibility. In general, any 

relevant and material evidence will be 

admitted into the record. The Board 

may exclude evidence to avoid unfair 

prejudice, confusion of the issues, 

undue delay, waste of time, or needless 

presentation of cumulative evidence. 

Hearsay evidence is admissible unless 

the Board finds it unreliable or 

untrustworthy. As a general matter, and 

subject to the other provisions of 

6101.10 (Rule 10), the Board will look 

to the Federal Rules of Evidence for 

guidance when it makes evidentiary 

rulings. 

(b) Weight and credibility. The Board 

will determine the weight to be given to 

evidence and the credibility to be 

accorded witnesses. 

6101.11 Conferences; conference 

memorandum [Rule 11]. 

(a) Conferences. The Board may 

convene the parties in conference, either 

by telephone or in person, for any 

purpose. The conference may be 

stenographically or electronically 

recorded, at the discretion of the Board. 

Matters to be considered and actions to 

be taken at a conference may include: 

(1) Simplifying, clarifying, or severing 

the issues; 

(2) Stipulations, admissions, 

agreements, and rulings to govern the 

admissibility of evidence, 

understandings on matters already of 

record, or other similar means of 

avoiding unnecessary proof; 

(3) Plans, schedules, and rulings to 

facilitate discovery; 

(4) Limiting the number of witnesses 

and other means of avoiding cumulative 

evidence; 

(5) Stipulations or agreements 

disposing of matters in dispute; or 

(6) Ways to expedite disposition of 

the case or to facilitate settlement of the 

dispute, including, if the parties and the 

Board agree, the use of alternative 

dispute resolution techniques, as 

provided in 6101.51 and 6101.54 (Rules 

51 and 54). 

(b) Conference memorandum. The 

Board may issue a memorandum of the 

results of a conference, an order 

reflecting any actions taken, or both. A 

memorandum or order so issued shall 

be placed in the record of the case and 

sent to each party. Each party shall have 

5 working days after receipt of a 

memorandum to object to the substance 

of it. 

6101.12 Suspensions and dismissals 

[Rule 12]. 

(a) Suspension of proceedings to 

obtain contracting officer’s decision. 

The Board may in its discretion suspend 

proceedings to permit a contracting 

officer to issue a decision when an 

appeal has been taken from the 

contracting officer’s alleged failure to 

render a timely decision. 

(b) Suspension for other cause. The 

Board may suspend proceedings in a 

case for good cause, such as to permit 

the parties to finalize a settlement. The 

order suspending proceedings will 

prescribe the duration of the suspension 

or the conditions on which it will 

expire. The order may also prescribe 

actions to be taken by the parties during 

the period of suspension or following its 

expiration. 

(c) Dismissal, generally. A case may 

be dismissed by the Board on motion of 

either party. A case may also be 

dismissed for reasons cited by the Board 

in a show cause order to which a 

response has been permitted. Every 

dismissal shall be with prejudice to 

reinstatement of the case except as 

specified in paragraph (d) of this 

section. 

(d) Dismissal without prejudice. When 

circumstances beyond the control of the 

Board prevent the continuation of 

proceedings in a case, the Board may, in 

lieu of issuing an order suspending 

proceedings, dismiss the case without 

prejudice to reinstatement within 180 

calendar days after the date of the 

dismissal. When a case has been 

dismissed without prejudice and neither 

party has timely requested that the case 

be reinstated, the case shall be deemed 

to be dismissed with prejudice on the 

last day such a request could have been 

made. 

(e) Issuance of order. The panel chair 

alone may issue an order suspending 

proceedings. An order of dismissal shall 

be issued by the panel of judges to 

which the case has been assigned if the 

motion is contested or if the Board is 

acting consequent to its own show cause 

order. An order of dismissal may be 

issued by the panel chair alone if the 

motion to dismiss is not contested. 

6101.13 General provisions governing 

discovery [Rule 13]. 

(a) Discovery methods. The parties are 

encouraged to exchange documents and 

other information voluntarily. In 

addition, the parties may obtain 

discovery by one or more of the 

following methods: 

(1) Depositions upon oral examination 

or written questions; 

(2) Written interrogatories; 

(3) Requests for production of 

documents, electronic records, or other 

tangible or intangible things; and 

(4) Requests for admission. 

(b) Scope of discovery. Except as 

otherwise limited by order of the Board, 

the parties may obtain discovery 

regarding any matter, not privileged, 

which is relevant to the subject matter 

involved in the pending case, whether 

it relates to the claim or defense of a 

party, including the existence, 

description, nature, custody, condition, 

and location of any books, documents, 

electronic records, or other tangible or 

intangible things, and the identity and 

location of persons having knowledge of 

any discoverable matter. It is not a 

ground for objection that the 

information sought will be inadmissible 

if the information sought appears 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36801 

reasonably calculated to lead to the 

discovery of admissible evidence. 

(c) Discovery limits. The Board may 

limit the frequency or extent of use of 

the discovery methods set forth in 

6101.13 (Rule 13) if it determines that: 

(1) The discovery sought is 

unreasonably cumulative or duplicative, 

or is obtainable from some other source 

that is more convenient, less 

burdensome, or less expensive; 

(2) The party seeking discovery has 

had ample opportunity by discovery in 

the case to obtain the information 

sought; or 

(3) The discovery is unduly 

burdensome and expensive, taking into 

account the needs of the case, the 

amount in controversy, limitations on 

the parties’ resources, and the 

importance of the issues at stake. 

(d) Conduct of discovery. Parties may 

engage in discovery only to the extent 

the Board enters an order which either 

incorporates an agreed plan and 

schedule acceptable to the Board or 

otherwise permits such discovery as the 

moving party can demonstrate is 

required for the expeditious, fair, and 

reasonable resolution of the case. 

(e) Discovery conference. Upon 

request of a party or on its own 

initiative, the Board may at any time 

hold an informal meeting or telephone 

conference with the parties to identify 

the issues for discovery purposes; 

establish a plan and schedule for 

discovery; set limitations on discovery, 

if any; and determine such other matters 

as are necessary for the proper 

management of discovery. The Board 

may include in the conference such 

other matters as it deems appropriate in 

accordance with 6101.11 (Rule 11). 

(f) Discovery objections. (1) In 

connection with any discovery 

procedure, the Board, on motion or on 

its own initiative, may make any order 

which justice requires to protect a party 

or person from annoyance, 

embarrassment, oppression, or undue 

burden or expense, including, but not 

limited to, one or more of the following: 

(i) That the discovery not be had; 

(ii) That the discovery be had only on 

specified terms and conditions, 

including a designation of the time and 

place, or that the scope of discovery be 

limited to certain matters; 

(iii) That the discovery be conducted 

with no one present except persons 

designated by the Board; and 

(iv) That confidential information not 

be disclosed or that it be disclosed only 

in a designated way. 

(2) Unless otherwise ordered by the 

Board, any objection to a discovery 

request must be filed within 15 calendar 

days after receipt. A party shall fully 

respond to any discovery request to 

which it does not file a timely objection. 

The parties are required to make a good 

faith effort to resolve objections to 

discovery requests informally. 

(3) A party receiving an objection to 

a discovery request, or a party which 

believes that another party’s response to 

a discovery request is incomplete or 

entirely absent, may file a motion to 

compel a response, but such a motion 

must include a representation that the 

moving party has tried in good faith, 

prior to filing the motion, to resolve the 

matter informally. The motion to 

compel shall include a copy of each 

discovery request at issue and the 

response, if any. 

(g) Failure to make or cooperate in 

discovery. If a party fails to appear for 

a deposition, after being served with a 

proper notice; to serve answers or 

objections to interrogatories submitted 

under 6101.14 (Rule 14), after proper 

service of interrogatories; or to serve a 

written response to a request for 

inspection, production, and copying of 

any documents, electronic records, and 

things under 6101.14 (Rule 14), the 

party seeking discovery may move the 

Board to impose appropriate sanctions 

under 6101.33 (Rule 33). 

(h) Subpoenas. A party may request 

the issuance of a subpoena in aid of 

discovery under the provisions of 

6101.16 (Rule 16). 

6101.14 Interrogatories to parties; 

requests for admission; requests for 

production [Rule 14]. 

Upon order from the Board permitting 

such discovery, a party may serve on 

another party written interrogatories, 

requests for admission, and requests for 

production. 

(a) Written interrogatories. Written 

interrogatories shall be answered 

separately in writing, signed under oath 

or accompanied by a declaration under 

penalty of perjury, and answered within 

30 calendar days after service. 

Objections shall be filed within the time 

limits set forth in 6101.13(f)(2) (Rule 

13(f)(2)). 

(b) Option to produce business 

records. Where the answer to an 

interrogatory may be derived or 

ascertained from the business records of 

the party upon which the interrogatory 

has been served, or from an 

examination, audit, or inspection of 

such business records, including a 

compilation, abstract, or summary 

thereof, and the burden of deriving or 

ascertaining the answer is substantially 

the same for the party serving the 

interrogatory as for the party served, it 

is a sufficient answer to such 

interrogatory to specify the records from 

which the answer may be derived or 

ascertained and to afford to the party 

serving the interrogatory reasonable 

opportunity to examine, audit, or 

inspect such records and to make 

copies, compilations, abstracts, or 

summaries thereof. Such specification 

shall be in sufficient detail to permit the 

interrogating party to locate and to 

identify, as readily as can the party 

served, the records from which the 

answer may be ascertained. 

(c) Written requests for admission. A 

written request for the admission of the 

truth of any matter, within the proper 

scope of discovery, that relates to 

statements or opinions of fact or of the 

application of law to fact, including the 

genuineness of any documents or 

electronic records, is to be answered in 

writing and signed within 30 calendar 

days after service. Objections shall be 

filed within the time limits set forth in 

6101.13(f)(2) (Rule 13(f)(2)). Otherwise, 

the matter therein may be deemed to be 

admitted. Any matter admitted is 

conclusively established for the purpose 

of the pending action, unless the Board 

on motion permits withdrawal or 

amendment of the admission. Any 

admission made by a party under this 

paragraph (c) is for the purpose of the 

pending action only and is not an 

admission for any other purpose, nor 

may it be used against the party in any 

other proceeding. 

(d) Written requests for production. A 

written request for the production, 

inspection, and copying of any 

documents, electronic records, or things 

shall be answered within 30 calendar 

days after service. Objections shall be 

filed within the time limits set forth in 

6101.13(f)(2) (Rule 13(f)(2)). 

(e) Change in time for response. Upon 

request of a party, or on its own 

initiative, the Board may prescribe a 

period of time other than that specified 

in 6101.14 (Rule 14). 

(f) Responses. A party that has 

responded to written interrogatories, 

requests for admission, or requests for 

production of documents, electronic 

records, or things, upon becoming aware 

of deficiencies or inaccuracies in its 

original responses, or upon acquiring 

additional information or additional 

documents, electronic records, or things 

relevant thereto, shall, as quickly as 

practicable, and as often as necessary, 

supplement its responses to the 

requesting party with correct and 

sufficient additional information and 

such additional documents, electronic 

records, and things as are necessary to 

give a complete and accurate response 

to the request. 

mstockstill on PROD1PC66 with RULES3

36802 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

6101.15 Depositions [Rule 15]. 

(a) When depositions may be taken. 

Upon request of a party, the Board may 

order the taking of testimony of any 

person by deposition upon oral 

examination or written questions before 

an officer authorized to administer oaths 

at the place of examination. Attendance 

of witnesses may be compelled by 

subpoena as provided in 6101.16 (Rule 

16), and the Board may upon motion 

order that the testimony at a deposition 

be recorded by other than stenographic 

means, in which event the order may 

designate the manner of recording, 

preserving, and filing the deposition 

and may include other provisions to 

ensure that the recorded testimony will 

be accurate and trustworthy. In 

addition, if the Board orders deposition 

testimony to be recorded by other than 

stenographic means, the Board will also 

determine who shall bear the burden of 

the cost of such recording, and shall 

permit the non-moving party to arrange 

to have a stenographic transcription 

made at its own expense. 

(b) Depositions: time; place; manner 

of taking. The time, place, and manner 

of taking depositions, including the 

taking of depositions by telephone, shall 

be as agreed upon by the parties or, 

failing such agreement, as ordered by 

the Board. A deposition taken by 

telephone is taken at the place where 

the deponent is to answer questions. 

(c) Use of depositions. At a hearing on 

the merits or upon a motion or 

interlocutory proceeding, any part or all 

of a deposition, so far as admissible and 

as though the witness were then present 

and testifying, may be used against a 

party who was present or represented at 

the taking of the deposition or who had 

reasonable notice thereof, in accordance 

with any of the following provisions: 

(1) Any deposition may be used by a 

party for the purpose of contradicting or 

impeaching the testimony of the 

deponent as a witness. 

(2) The deposition of a party or of 

anyone who at the time of taking the 

deposition was an officer, director, or 

managing agent, or a person designated 

to testify on behalf of a corporation, 

partnership, association, or government 

agency which is a party may be used by 

an adverse party for any purpose. 

(3) The deposition of a witness, 

whether or not a party, may be used by 

a party for any purpose in its own behalf 

if the Board finds that: 

(i) The witness is dead; 

(ii) The attendance of the witness at 

the place of hearing cannot be 

reasonably obtained, unless it appears 

that the absence of the witness was 

procured by the party offering the 

deposition; 

(iii) The witness is unable to attend or 

testify because of illness, infirmity, age, 

or imprisonment; 

(iv) The party offering the deposition 

has been unable to procure the 

attendance of the witness by subpoena; 

or 

(v) Upon request and notice, 

exceptional circumstances exist which 

make it desirable in the interest of 

justice and with due regard to the 

importance of presenting the testimony 

of witnesses orally in open hearing, to 

allow the deposition to be used. 

(4) If only part of a deposition is 

offered in evidence by a party, an 

adverse party may require the offering 

party to introduce any other part which 

in fairness ought to be considered with 

the part introduced. 

(d) Depositions pending appeal from 

a decision of the Board. If an appeal has 

been taken from a decision of the Board, 

or before the taking of an appeal if the 

time therefor has not expired, the Board 

may allow the taking of depositions of 

witnesses to perpetuate their testimony 

for use in the event of further 

proceedings before the Board. In such 

case, the party that desires to perpetuate 

testimony may make a motion before the 

Board for leave to take the depositions 

as if the action were pending before the 

Board. The motion shall show: 

(1) The names and addresses of the 

persons to be examined and the 

substance of the testimony which the 

moving party expects to elicit from 

each; and 

(2) The reasons for perpetuating the 

testimony of the persons named. If the 

Board finds that the perpetuation of 

testimony is proper to avoid a failure or 

a delay of justice, it may order the 

depositions to be taken and may make 

orders of the character provided for in 

6101.13 (Rule 13) and in 6101.15 (Rule 

15). Thereupon, the depositions may be 

taken and used as prescribed in the 

rules of this chapter for depositions 

taken in actions pending before the 

Board. Upon request and for good cause 

shown, a judge may issue or obtain a 

subpoena, in accordance with 6101.16 

(Rule 16), for the purpose of 

perpetuating testimony by deposition 

during the pendency of an appeal from 

a Board decision. 

6101.16 Subpoenas [Rule 16]. 

(a) Voluntary cooperation in lieu of 

subpoena. Each party is expected to: 

(1) Cooperate by making available 

witnesses and evidence under its 

control, when requested by another 

party, without issuance of a subpoena; 

and 

(2) Secure the cooperation of thirdparty witnesses and production of 

evidence by third parties, when 

practicable, without issuance of a 

subpoena. 

(b) General. Upon the written request 

of any party filed with the Office of the 

Clerk of the Board, or upon the initiative 

of a judge, a subpoena may be issued 

that commands the person to whom it 

is directed to: 

(1) Attend and give testimony at a 

deposition in a city or county where 

that person resides or is employed or 

transacts business in person, or at 

another location convenient to that 

person that is specifically determined 

by the Board; 

(2) Attend and give testimony at a 

hearing; and 

(3) Produce the books, papers, 

documents, electronic records, and 

other tangible and intangible things 

designated in the subpoena. 

(c) Request for subpoena. A request 

for a subpoena shall contain the name 

of the assigned judge, the name of the 

case, and the docket number of the case. 

It shall state the reasonable scope and 

general relevance to the case of the 

testimony and of any evidence sought. 

A request for a subpoena shall be filed 

at least 15 calendar days before the 

testimony of a witness or evidence is to 

be provided. The Board may, in its 

discretion, honor requests for subpoenas 

not made within this time limitation. 

(d) Form; issuance. (1) Every 

subpoena shall be in the form specified 

in the Appendix to the rules of this 

chapter and this form shall not be 

altered. Unless a party has the approval 

of a judge to submit a subpoena in blank 

(in whole or in part), a party shall 

submit to the judge a completed 

subpoena (save the ‘‘Return on Service’’

portion). In issuing a subpoena to a 

requesting party, the judge shall sign the 

subpoena. The party to whom the 

subpoena is issued shall complete the 

subpoena before service. 

(2) If the person subpoenaed is 

located in a foreign country, a letter 

rogatory or a subpoena may be issued 

and served under the circumstances and 

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

1781-1784. 

(e) Service. (1) The party requesting a 

subpoena shall arrange for service. 

Service shall be made as soon as 

practicable after the subpoena has been 

issued. 

(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 personal 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36803 

delivery of a copy to that person and 

tender of the fees for one day’s 

attendance and the mileage allowed 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. 

(f) Proof of service. The person serving 

the subpoena shall make proof of 

service thereof to the Board promptly 

and in any event before the date on 

which the person served must respond 

to the subpoena. Proof of service shall 

be made by completion and execution 

and submission to the Board of the 

‘‘Return on Service’’ portion of a 

duplicate copy of the subpoena issued 

by a judge. If service is made by a 

person other than a United States 

marshal or his deputy, that person shall 

make an affidavit as proof by executing 

the ‘‘Return on Service’’ in the presence 

of a notary. 

(g) Motion to quash or to modify. 

Upon written motion by the person 

subpoenaed or by a party, made within 

14 calendar 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 and oppressive or for 

other good cause shown, or require the 

party in whose behalf the subpoena was 

issued to advance the reasonable cost of 

producing subpoenaed evidence. Where 

circumstances require, the Board may 

act upon such a motion at any time after 

a copy has been served upon opposing 

parties. 

(h) Contumacy or refusal to obey a 

subpoena. In a 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 

shall 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, produce evidence, or both. 

6101.17 Exhibits [Rule 17]. 

(a) Marking of exhibits. (1) Documents 

and other tangible things offered in 

evidence by a party will be marked for 

identification by the Board during the 

hearing or, if ordered by the Board, will 

be added to the appeal file as exhibits 

before the commencement of the 

hearing in order, for example, to 

eliminate the introduction of additional 

exhibits at the hearing. 

(2) If a party elects to proceed on the 

record without a hearing pursuant to 

6101.19 (Rule 19), documentary 

evidence submitted by that party will be 

numbered consecutively as appeal file 

exhibits. 

(b) Copies as exhibits. Except upon 

objection sustained by the Board for 

good cause shown, copies of documents 

may be offered and received into 

evidence as exhibits, provided they are 

of equal legibility and quality as the 

originals, and such copies shall have the 

same force and effect as if they were the 

originals. If the Board directs, a party 

offering a copy of a document as an 

exhibit shall have the original available 

at the hearing for examination by the 

Board and any other party. When the 

original of a document has been 

received into evidence as an exhibit, an 

accurate copy may be substituted in 

evidence for the original by leave of the 

Board at any time. The Board may 

require a party to provide either copies 

of electronic records or printed versions 

of electronic records to be included in 

the record. 

(c) Withdrawal of exhibits and other 

items. With the permission of the Board, 

a party that submits an exhibit or any 

other item may withdraw the exhibit or 

item from the record during the course 

of a proceeding. 

(d) Disposition of physical exhibits. 

Any physical (as opposed to 

documentary) exhibit may be disposed 

of by the Board at any time more than 

90 calendar days after the expiration of 

the period for appeal from the decision 

of the Board. 

6101.18 Election of hearing or record 

submission [Rule 18]. 

Each party shall inform the Board, in 

writing, whether it elects a hearing or 

submission of its case on the record 

pursuant to 6101.19 (Rule 19). Such an 

election may be filed at any time unless 

a time for filing is prescribed by the 

Board. In most cases, the Board will 

require the parties to make an election 

soon after discovery closes. A party 

electing to submit its case on the record 

pursuant to 6101.19 (Rule 19) may also 

elect to appear at a hearing solely to 

cross-examine any witness presented by 

the opposing party, provided that the 

Board is informed of that party’s 

intention within 10 working days of its 

receipt of notice of the election of 

hearing by the other party. If a hearing 

is elected, the election should state 

where and when the electing party 

desires the hearing to be held and 

should explain the reasons for its 

choices. A hearing will be held if either 

party elects one. If a party’s decision 

whether to elect a hearing is dependent 

upon the intentions of the other party, 

it shall consult with the other party 

before filing its election. If there is to be 

a hearing, it will be held at a time and 

place prescribed by the Board after 

consultation with the party or parties 

electing the hearing. The record 

submissions from a party that has 

elected to submit its case on the record 

shall be due as provided in 6101.19 

(Rule 19). 

6101.19 Submission on the record without 

a hearing [Rule 19]. 

(a) Submission on the record. A party 

may elect to submit its case on the 

record without a hearing. A party 

submitting its case on the record may 

include in its written record submission 

or submissions: 

(1) Any relevant documents or other 

tangible things it wishes the Board to 

admit into evidence; 

(2) Affidavits, depositions, and other 

discovery materials that set forth 

relevant evidence; and 

(3) A brief or memorandum of law. 

The Board may require the submission 

of additional evidence or briefs and may 

order oral argument in a case submitted 

on the record. 

(b) Time for submission. (1) If both 

parties have elected to submit the case 

on the record, the Board will issue an 

order prescribing the time for initial 

and, if appropriate, reply record 

submissions. 

(2) If one party has elected a hearing 

and the other party has elected to 

submit its case on the record, the party 

submitting on the record shall make its 

initial submission no later than the 

commencement of the hearing or at an 

earlier date if the Board so orders, and 

a further submission in the form of a 

brief at the time for submission of 

posthearing briefs. 

(c) Objections to evidence. Unless 

otherwise directed by the Board, 

objections to evidence (other than the 

appeal file and supplements thereto) in 

a record submission may be made 

within 10 working days after the filing 

of the submission, and replies to such 

objections, if any, may be made within 

10 working days after the filing of the 

objection. The Board may rule on such 

objections either before it issues its 

decision or at the time it issues its 

decision. 

6101.20 Hearings: scheduling; notice; 

unexcused absences [Rule 20]. 

(a) Scheduling of hearings. Hearings 

will be held at the time and place 

ordered by the Board and will be 

scheduled at the discretion of the Board. 

In scheduling hearings, the Board will 

consider the requirements of the rules of 

this chapter, the need for orderly 

management of the Board’s caseload, 

and the stated desires of the parties as 

expressed in their elections filed 

mstockstill on PROD1PC66 with RULES3

36804 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

pursuant to 6101.18 (Rule 18) or 

otherwise. The time or place for hearing 

may be changed by the Board at any 

time. 

(b) Notice of hearing. Notice of 

hearing will be by written order of the 

Board. Notice of changes in the hearing 

schedule will also be by written order 

when practicable but may be oral in 

exigent circumstances. Except as the 

Board may otherwise order, each party 

that plans to attend the hearing shall, 

within 10 working days of receipt of a 

written notice of hearing or any notice 

of a change in hearing schedule stating 

that an acknowledgment is required, 

notify the Board in writing that it will 

attend the hearing. If a party fails to 

acknowledge a notice of hearing as 

required, the Board will deem the party 

to have consented to the time and place 

of hearing. 

(c) Unexcused absence from hearing. 

In the event of the unexcused absence 

of a party from a hearing, the hearing 

will proceed, and the absent party will 

be deemed to have elected to submit its 

case on the record pursuant to 6101.19 

(Rule 19). 

6101.21 Hearing procedures [Rule 21]. 

(a) Nature and conduct of hearings. 

(1) Except when necessary to maintain 

the confidentiality of protected material 

or testimony, or material submitted in 

camera, all hearings on the merits of 

cases shall be open to the public and 

conducted insofar as is convenient in 

regular hearing rooms. All other acts or 

proceedings may be done or conducted 

by the Board either in its offices or at 

other places. 

(2) When cases involving common 

questions of law or fact are pending, the 

Board may order a joint hearing of any 

or all of the matters, claims, or issues in 

the cases. 

(3) The Board may order a separate 

hearing of any matters, claims, or issues 

pending in any case. The Board may 

enter appropriate orders or decisions 

with respect to any matters, claims, or 

issues that are heard separately. 

(4) Upon the agreement of the parties 

or upon its own initiative, the Board 

may notify the parties before a hearing 

begins that it will limit the hearing to 

those issues of law and fact relating to 

the right of a party to recover, reserving 

the determination of the amount of 

recovery, if any, for other proceedings. 

(5) Before the hearing begins, the 

Board may prescribe a time within 

which the presentation of evidence 

must be concluded, and may establish 

time limits on the direct and crossexamination of witnesses. 

(6) Upon the request of either party or 

if the Board deems it advisable, the 

Board will order witnesses to be 

excluded from the hearing room so they 

cannot hear the testimony of other 

witnesses. The Board will not exclude a 

party who is an individual, the 

designated representative of a party 

which is an entity, a person whose 

presence is essential to the presentation 

of a party’s case, or someone authorized 

by statute to be present. 

(b) Continuances; change of location. 

Whenever practicable, a hearing will be 

conducted in one continuous session or 

a series of consecutive sessions at a 

single location. However, the Board may 

at any time continue the hearing to a 

future date and may arrange to conduct 

the hearing in more than one location. 

The Board may also continue a hearing 

to permit a party to conduct additional 

discovery on conditions established by 

the Board. In exercising its discretion to 

continue a hearing or to change its 

location, the Board will give due 

consideration to the same elements (set 

forth in 6101.20(a) (Rule 20(a))) that it 

considers in scheduling hearings. 

(c) Availability of witnesses, 

documents, and other tangible things. It 

is the responsibility of a party desiring 

to call any witness, or to use any 

document or other tangible thing as an 

exhibit in the course of a hearing, to 

ensure that whomever it wishes to call 

and whatever it wishes to use is 

available at the hearing. If a witness 

cannot be made available at the site of 

the hearing, the party who wishes to call 

the witness may file a motion that the 

witness be allowed to testify remotely, 

whether by telephone, video conference, 

or some other method. 

(d) Enlargement of the record. The 

Board may at any time during the 

conduct of a hearing require evidence or 

argument in addition to that put forth by 

the parties. 

(e) Examination of witnesses. 

Witnesses before the Board will testify 

under oath or affirmation. A party or the 

Board may obtain an answer from any 

witness to any question that is not the 

subject of an objection that the Board 

sustains. 

(f) Refusal to be sworn. If a person 

called as a witness refuses to be sworn 

or to affirm before testifying, the Board 

may direct that witness to be sworn or 

to affirm and, in the event of continued 

refusal, the Board may permit the taking 

of testimony without oath or 

affirmation. If the Board permits a 

witness to testify without oath or 

affirmation, the Board will explain that 

statements made during the hearing are 

subject to provisions of federal law 

imposing penalties, including criminal 

penalties, for knowingly making false 

representations. Alternatively, the Board 

may refuse to permit the examination of 

that witness, in which event it may state 

for the record the inferences it draws 

from the witness’s refusal to testify 

under oath or affirmation. Alternatively, 

the Board may issue a subpoena to 

compel that witness to testify under 

oath or affirmation and, in the event of 

the witness’s continued refusal to be 

sworn or to affirm, may seek 

enforcement of that subpoena pursuant 

to 6101.16(h) (Rule 16(h)). 

(g) Refusal to answer. If a witness 

refuses to answer a question put to him 

in the course of his testimony, the Board 

may direct that witness to answer and, 

in the event of continued refusal, the 

Board may state for the record the 

inferences it draws from the refusal to 

answer. Alternatively, the Board may 

issue a subpoena to compel that witness 

to testify and, in the event of the 

witness’s continued refusal to testify, 

may seek enforcement of that subpoena 

pursuant to 6101.16(h) (Rule 16(h)). 

(h) Issues not raised by pleadings. If 

evidence is objected to at a hearing on 

the ground that it is not within the 

issues raised by the pleadings, it may 

nevertheless be admitted by the Board if 

it is within the proper scope of the case. 

If such evidence is admitted, the Board 

may grant the objecting party a 

continuance to enable it to meet such 

evidence. If such evidence is admitted, 

the pleadings may be amended to 

conform to the evidence, as provided by 

6101.6(f) (Rule 6(f)). 

(i) Delay by parties. If the Board 

determines that the hearing is being 

unreasonably delayed by the failure of 

a party to produce evidence, or by the 

undue prolongation of the presentation 

of evidence, it may, during the hearing, 

prescribe a time or times within which 

the presentation of evidence must be 

concluded, establish time limits on the 

direct or cross-examination of 

witnesses, and enforce such order or 

ruling by appropriate sanctions. 

6101.22 Transcripts of proceedings; 

corrections [Rule 22]. 

(a)Transcripts. Except as the Board 

may otherwise order, all hearings, other 

than those under the small claims 

procedure prescribed by 6101.52 (Rule 

52), will be stenographically or 

electronically recorded and transcribed. 

Any other hearing or conference will be 

recorded or transcribed only by order of 

the Board. Each party is responsible for 

obtaining its own copy of the transcript 

if one is prepared. 

(b) Corrections. Corrections to an 

official transcript will be made only 

when they involve errors affecting its 

substance. The Board may order such 

corrections on motion or on its own 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36805 

initiative, and only after notice to the 

parties giving them opportunity to 

object. Such corrections will ordinarily 

be made either by hand with pen and 

ink or by the appending of an errata 

sheet, but when no other method of 

correction is practicable the Board may 

require the reporter to provide 

substitute or additional pages. 

6101.23 Briefs and memoranda of law 

[Rule 23]. 

(a) Form and content of briefs and 

memoranda of law. Briefs and 

memoranda of law shall be on standard 

size 8-1/2 by 11-inch paper. They shall 

be double-spaced with text in the body 

and in the footnotes no smaller than 12 

point. Otherwise, no particular form or 

organization is prescribed. Posthearing 

briefs should, at a minimum, succinctly 

set forth: 

(1) The facts of the case with citations 

to those places in the record where 

supporting evidence can be found; and 

(2) Argument with citations to 

supporting legal authorities. 

(b) Submission of posthearing briefs. 

Except as the Board may otherwise 

order, posthearing briefs shall be filed 

30 calendar days after the Board’s 

receipt of the transcript; reply briefs, if 

filed, shall be filed 15 calendar days 

after the parties’ receipt of the initial 

posthearing briefs. The Board will notify 

the parties of the date of its receipt of 

the transcript. In the event one party has 

elected a hearing and the other party has 

elected to submit its case on the record 

pursuant to 6101.19 (Rule 19), the filing 

of record submissions in the form of 

briefs shall be governed by 6101.23 

(Rule 23). 

6101.24 Closing the record [Rule 24]. 

(a) Closing of the record. Except as the 

Board may otherwise order, no proof 

shall be received in evidence after a 

hearing is completed or, in cases 

submitted on the record without a 

hearing, after notice by the Board to the 

parties that the record is closed and that 

the case is ready for decision. 

(b) Notice that the case is ready for 

decision. The Board will give written 

notice to the parties when the record is 

closed and the case is ready for 

decision. 

6101.25 Decisions; settlements [Rule 25]. 

(a) Decisions. (1) Except as provided 

in 6101.52 (Rule 52) (small claims 

procedure), decisions of the Board will 

be made in writing upon the record as 

prescribed in 6101.9 (Rule 9). The Board 

may also take notice of any fact or law 

of which a court could take judicial 

notice. Each of the parties will be 

furnished a copy of the decision 

certified by the Office of the Clerk of the 

Board, and the date of the receipt 

thereof by each party will be established 

in the record. 

(2) In its decision, the Board may 

reserve determination of the amount of 

recovery for other proceedings, 

regardless of whether there is evidence 

in the record concerning the amount of 

recovery, provided the Board notified 

the parties before the hearing began that 

its decision would not address the 

amount of any recovery. In any instance 

in which the Board has reserved its 

determination of the amount of recovery 

for other proceedings, as provided in 

6101.21(a)(4) (Rule 21(a)(4)), its decision 

on the question of the right to recover 

shall be final so far as proceedings at the 

Board are concerned, subject to the 

provisions of 6101.26 through 6101.28 

(Rules 26 through 28). 

(b) Settlements. When an appeal or 

application is settled, the parties may 

file with the Board a stipulation setting 

forth the amount of the award. The 

Board will adopt the parties’ stipulation 

by decision, provided the stipulation 

states the parties will not seek 

reconsideration of, or relief from, the 

Board’s decision, and they will not 

appeal the decision. The Board’s 

decision under this paragraph (b) is an 

adjudication of the case on the merits. 

6101.26 Reconsideration; amendment of 

decisions; new hearings [Rule 26]. 

(a) Grounds. Reconsideration may be 

granted, a decision or order may be 

altered or amended, or a new hearing 

may be granted, for any of the reasons 

stated in 6101.27(a) (Rule 27(a)) and the 

reasons established by the rules of 

common law or equity applicable as 

between private parties in the courts of 

the United States. Reconsideration or a 

new hearing may be granted on all or 

any of the issues. Arguments already 

made and reinterpretations of old 

evidence are not sufficient grounds for 

granting reconsideration, for altering or 

amending a decision, or for granting a 

new hearing. Upon granting a motion 

for a new hearing, the Board will take 

additional testimony and, if a decision 

has been issued, either amend its 

findings of fact and conclusions or law 

or issue a new decision. 

(b) Procedure. Any motion under 

6101.26 (Rule 26) shall comply with the 

provisions of 6101.8 (Rule 8) and shall 

set forth: 

(1) The reason or reasons why the 

Board should consider the motion; and 

(2) The relief sought and the grounds 

therefor. If the Board concludes that the 

reasons asserted for its consideration of 

the motion are insufficient, it may deny 

the motion without considering the 

relief sought and the grounds asserted 

therefor. If the Board grants the motion, 

it will issue an appropriate order which 

may include directions to the parties for 

further proceedings. 

(c) Time for filing. In an appeal or 

petition, a motion for reconsideration, to 

alter or amend a decision or order, or for 

a new hearing shall be filed within 30 

calendar days after the date the moving 

party receives the decision or order. In 

an application, such a motion shall be 

filed within 7 working days after the 

date the moving party receives the 

decision or order. Not later than 30 

calendar days after issuance of a 

decision or order, the Board may, on its 

own initiative, order reconsideration or 

a new hearing or alter or amend a 

decision or order for any reason that 

would justify such action on motion of 

a party. 

(d) Effect of motion. A motion 

pending under 6101.26 (Rule 26) does 

not affect the finality of a decision or 

suspend its operation. 

6101.27 Relief from decision or order 

[Rule 27]. 

(a) Grounds. The Board may relieve a 

party from the operation of a final 

decision or order for any of the 

following reasons: 

(1) Newly discovered evidence which 

could not have been earlier discovered, 

even through due diligence; 

(2) Justifiable or excusable mistake, 

inadvertence, surprise, or neglect; 

(3) Fraud, misrepresentation, or other 

misconduct of an adverse party; 

(4) The decision has been satisfied, 

released, or discharged, or a prior 

decision upon which it is based has 

been reversed or otherwise vacated, and 

it is no longer equitable that the 

decision should have prospective 

application; 

(5) The decision is void, whether for 

lack of jurisdiction or otherwise; or 

(6) Any other ground justifying relief 

from the operation of the decision or 

order. 

(b) Procedure. Any motion under 

6101.27 (Rule 27) shall comply with the 

provisions of 6101.8 and 6101.26(b) 

(Rules 8 and 26(b)), and will be 

considered and ruled upon by the Board 

as provided in 6101.26 (Rule 26). 

(c) Time for filing. Any motion under 

6101.27 (Rule 27) shall be filed as soon 

as practicable after the discovery of the 

reasons therefor, but in any event no 

later than 120 calendar days after the 

date of the moving party’s receipt of the 

decision or order from which relief is 

sought. In considering the timeliness of 

a motion filed under 6101.27 (Rule 27), 

the Board may consider when the 

mstockstill on PROD1PC66 with RULES3

36806 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

grounds therefor should reasonably 

have been known to the moving party. 

(d) Effect of motion. A motion 

pending under 6101.27 (Rule 27) does 

not affect the finality of a decision or 

suspend its operation. 

6101.28 Full Board consideration [Rule 

28]. 

(a) Requests by parties. (1) A request 

for full Board consideration is not 

favored. Ordinarily, full Board 

consideration will be ordered only 

when it is necessary to secure or 

maintain uniformity of Board decisions, 

or the matter to be referred is one of 

exceptional importance. 

(2) A request for full Board 

consideration may be made by either 

party on any date which is both after the 

panel to which the case is assigned has 

issued its decision on a motion for 

reconsideration or relief from decision 

and within 10 working days after the 

date on which that party receives that 

decision. Any party making a request for 

full Board consideration shall state 

concisely in the motion the precise 

grounds on which the request is based. 

(3) Promptly after such a request is 

made, a ballot will be taken among the 

judges; if a majority of them favors the 

request, the request will be granted. The 

result of the vote will promptly be 

reported by the Board through an order. 

The concurring or dissenting view of 

any judge who wishes to express such 

a view may issue at the time of such 

order or at any time thereafter. 

(b) Initiation by Board. A majority of 

the judges may initiate full Board 

consideration of a matter at any time 

while the case is before the Board, no 

later than the last date on which any 

party may file a motion for 

reconsideration or relief from decision 

or order, or if such a motion is filed by 

a party, within ten days after a panel has 

resolved it. The parties will be informed 

promptly, through an order, of the 

matter to be considered by the full 

Board. The concurring or dissenting 

view of any judge who wishes to 

express such a view may issue at the 

time of such order or at any time 

thereafter. 

(c) Decisions. If full Board 

consideration is granted at the request of 

a party or initiated by the Board, a vote 

shall be taken promptly on the pending 

matter. After this vote is taken, the 

Board shall promptly, by order, issue its 

determination, which shall include the 

concurring or dissenting view of any 

judge who wishes to express such a 

view. 

(d) Effect of motion. A pending 

request for full Board consideration, 

whether initiated by a party or by the 

Board, does not affect the finality of a 

decision or suspend its operation. 

6101.29 Clerical mistakes; harmless error 

[Rule 29]. 

(a) Clerical mistakes. Clerical 

mistakes in decisions, orders, or other 

parts of the record, and errors arising 

therein through oversight or 

inadvertence, may be corrected by the 

Board at any time on its own initiative 

or upon motion of a party on such 

terms, if any, as the Board may 

prescribe. During the pendency of an 

appeal to another tribunal, such 

mistakes may be corrected only with 

leave of the appellate tribunal. 

(b) Harmless error. No error in the 

admission or exclusion of evidence, and 

no error or defect in any ruling, order, 

or decision of the Board, and no other 

error in anything done or not done by 

the Board will be a ground for granting 

a new hearing or for vacating, 

reconsidering, modifying, or otherwise 

disturbing a decision or order of the 

Board unless refusal to act upon such 

error will prejudice a party or work a 

substantial injustice. At every stage of 

the proceedings the Board will disregard 

any error or defect that does not affect 

the substantial rights of the parties. 

6101.30 Award of fees and other expenses 

[Rule 30]. 

(a) Applications for fees and other 

expenses. An appropriate party in a 

proceeding before the Board may apply 

for an award of fees and other expenses, 

including if applicable an award of 

attorney fees, under the Equal Access to 

Justice Act, 5 U.S.C. 504, or any other 

provision that may entitle that party to 

such an award, subsequent to the 

Board’s decision in the proceeding. 

Until it issues a decision, the Board will 

not consider a request for fees and other 

expenses. 

(b) Time for filing. A party seeking an 

award may submit an application no 

later than 30 calendar days after a final 

disposition in the underlying appeal. 

The Board’s decision becomes final (for 

purposes of 6101.30 (Rule 30) when it 

is not appealed to the United States 

Court of Appeals for the Federal Circuit 

within the time permitted for appeal or, 

if the decision is appealed, when the 

time for petitioning the Supreme Court 

for certiorari has expired. 

(c) Application requirements. An 

application for fees and other expenses 

shall: 

(1) Identify the applicant and the 

appeal for which fees and other 

expenses are sought, and the amount 

being sought; 

(2) Establish that all applicable 

prerequisites for an award have been 

satisfied, including a succinct statement 

of why the applicant is eligible for an 

award of fees and other expenses; 

(3) Be accompanied by an exhibit 

fully documenting any fees or expenses 

being sought, including the cost of any 

study, analysis, engineering report, test, 

project, or similar matter. The date and 

a description of all services rendered or 

costs incurred shall be submitted for 

each professional firm or individual 

whose services are covered by the 

application, showing the hours spent in 

connection with the proceeding 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, and the 

total amount paid or payable by the 

applicant. Except in exceptional 

circumstances, all exhibits supporting 

applications for fees or expenses sought 

shall be publicly available. The Board 

may require the applicant to provide 

vouchers, receipts, or other 

substantiation for any fees and other 

expenses claimed and/or to submit to an 

audit by the Government of the claimed 

fees and other expenses; 

(4) Be signed by the applicant or an 

authorized officer, employee, or 

attorney of the applicant; 

(5) Contain or be accompanied by a 

written verification under oath or 

affirmation, or declaration under 

penalty of perjury, that the information 

provided in the application is true and 

correct; 

(6) If the applicant asserts that it is a 

qualifying small business concern, 

contain evidence thereof; and 

(7) If the application requests 

reimbursement of attorney fees that 

exceed the statutory rate, explain why 

an increase in the cost of living or a 

special factor, such as the limited 

availability of qualified attorneys for the 

proceedings involved, justifies such 

fees. 

(d) Proceedings. (1) Within 30 

calendar days after receipt by the 

respondent of an application under 

6101.30 (Rule 30), the respondent may 

file an answer. The answer shall explain 

in detail any objections to the award 

requested and set out the legal and 

factual bases supporting the 

respondent’s position. If the respondent 

contends that any fees for consultants or 

expert witnesses for which 

reimbursement is sought in the 

application exceed the highest rate of 

compensation for expert witnesses paid 

by the agency, the respondent shall 

include in the answer evidence of such 

highest rate. 

(2) Further proceedings shall be held 

only by order of the Board and only 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36807 

when necessary for full and fair 

resolution of the issues arising from the 

application. Such proceedings shall be 

minimized to the extent possible and 

shall not include relitigation of the case 

on the merits. A request that the Board 

order further proceedings under 6101.30 

(Rule 30) shall describe the disputed 

issues and explain why additional 

proceedings are necessary to resolve 

those issues. 

(e) Decision. Any award ordered by 

the Board shall be paid pursuant to 

6101.31 (Rule 31). 

6101.31 Payment of Board awards [Rule 

31]. 

(a) Generally. When permitted by law, 

payment of Board awards may be made 

in accordance with 31 U.S.C. 1304. 

Awards by the Board pursuant to the 

Equal Access to Justice Act shall be 

directly payable by the respondent 

agency over which the applicant has 

prevailed in the underlying appeal. 

(b) Conditions for payment. Before a 

party may obtain payment of a Board 

award pursuant to 31 U.S.C. 1304, one 

of the following must occur: 

(1) Both parties must, by execution of 

a Certificate of Finality, waive their 

rights to relief under 6101.26 and 

6101.27 (Rules 26 and 27) and also their 

rights to appeal the decision of the 

Board; or 

(2) The time for filing an appeal must 

expire. 

(c) Procedure. Whenever the Board 

issues a decision or an order awarding 

an appellant any amount of money, it 

will attach to the copy of the decision 

sent to each party forms such as those 

contained in the Appendix to the rules 

of this chapter. Unless the appellant 

files a timely appeal from the decision, 

the appellant will complete the 

Certificate of Finality, sign it, and 

forward it to the person or persons who 

entered an appearance in the appeal on 

behalf of the government agency. Upon 

receipt of a completed and executed 

Certificate of Finality, unless the 

government agency files a timely appeal 

from the decision, the person or persons 

who entered an appearance in the 

appeal on behalf of the government 

agency will promptly transmit the 

appellant’s Certificate of Finality, along 

with a certified copy of the Board’s 

decision and any other necessary 

documentation, to the United States 

Department of the Treasury for 

payment. 

6101.32 Appeal from a Board decision 

[Rule 32]. 

(a) Record on review. When a party 

has appealed a Board decision to the 

United States Court of Appeals for the 

Federal Circuit, the record on review 

shall consist of the decision sought to be 

reviewed, the record before the Board as 

described in 6101.9(a)(1) through (a)(13) 

(Rule 9(a)(1) through (a)(13)), and such 

other material contained in the Board’s 

file as may be required by the Court of 

Appeals. 

(b) Notice. At the same time a party 

seeking review of a Board decision files 

a notice of appeal, that party shall 

provide a copy of the notice to the 

Board. 

(c) Filing of certified list of record 

materials. Promptly after service upon 

the Board of a copy of the notice of 

appeal of a Board decision, the Office of 

the Clerk of the Board shall file with the 

Clerk of the United States Court of 

Appeals for the Federal Circuit a 

certified list of all documents, 

transcripts of testimony, exhibits, and 

other materials constituting the record, 

or a list of such parts thereof as the 

parties may designate, adequately 

describing each. The Board will retain 

the record and transmit any part thereof 

to the Court upon the Court’s order 

during the pendency of the appeal. 

(d) Request by attorney of record to 

review record. When a case is on appeal, 

an attorney of record may request 

permission from the Board to sign out 

for a reasonable period of time the 

record on appeal to review and to copy 

if the attorney is unable to gain access 

to the record from another source. 

6101.33 Ex parte contact; sanctions and 

other proceedings [Rule 33]. 

(a) Standards. All parties and their 

representatives, attorneys, and any 

expert/consultant retained by them or 

their attorneys, must obey directions 

and orders prescribed by the Board and 

adhere to standards of conduct 

applicable to such parties and persons. 

As to an attorney, the standards include 

the rules of professional conduct and 

ethics of the jurisdictions in which that 

attorney is licensed to practice, to the 

extent that those rules are relevant to 

conduct affecting the integrity of the 

Board, its process, or its proceedings. 

The Board will also look to voluntary 

professional guidelines in evaluating an 

individual’s conduct. 

(b) 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, without 

the knowledge and consent of the 

adverse party, regarding any matter at 

issue in that appeal. This provision does 

not apply to consultation among Board 

members or to ex parte communications 

concerning the Board’s administrative 

functions or procedures. 

(c) Sanctions. When a party or its 

representative or attorney or any expert/ 

consultant fails to comply with any 

direction or order issued by the Board 

(including an order to provide or permit 

discovery), or engages in misconduct 

affecting the Board, its process, or its 

proceedings, the Board may make such 

orders as are just, including the 

imposition of appropriate sanctions. 

The sanctions may include: 

(1) Taking the facts pertaining to the 

matter in dispute to be established for 

the purpose of the case in accordance 

with the contention of the party 

submitting the discovery request; 

(2) Forbidding challenge of the 

accuracy of any evidence; 

(3) Refusing to allow the disobedient 

party to support or oppose designated 

claims or defenses; 

(4) Prohibiting the disobedient party 

from introducing in evidence designated 

documents or items of testimony; 

(5) Striking pleadings or parts thereof, 

or staying further proceedings until the 

order is obeyed; 

(6) Dismissing the case or any part 

thereof; 

(7) Enforcing the protective order and 

disciplining individuals subject to such 

order for violation thereof, including 

disqualifying a party’s representative, 

attorney, or expert/consultant from 

further participation in the case; or 

(8) Imposing such other sanctions as 

the Board deems appropriate. 

(d) Denial of access to protected 

material for prior violations of 

protective orders. The Board may in its 

discretion deny access to protected 

material to any person found to have 

previously violated a protective order, 

regardless of who issued the order. 

(e) Disciplinary proceedings. (1) In 

addition to the procedures in this 

section 6101.33 (Rule 33), the Board 

may discipline individual party 

representatives, attorneys, and experts/ 

consultants for a violation of any Board 

order or direction or standard of 

conduct applicable to such individual 

where the violation seriously affects the 

integrity of the Board, its process, or its 

proceedings. Sanctions may be public or 

private, and may include 

admonishment, disqualification from a 

particular matter, referral to an 

appropriate licensing authority, or such 

other action as circumstances may 

warrant. 

(2) The Board in its discretion may 

suspend an individual from appearing 

before the Board as a party 

representative, attorney, or expert/ 

consultant if, after affording such 

mstockstill on PROD1PC66 with RULES3

36808 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

individual notice and an opportunity to 

be heard, a majority of the members of 

the full Board determines such a 

sanction is warranted. 

6101.34 Seal of the Board [Rule 34]. 

The Seal of the Board shall be a 

circular boss, the outer margin of which 

shall bear the legend ‘‘Civilian Board of 

Contract Appeals.’’ The Seal shall be the 

means of authentication of all records, 

notices, orders, dismissals, opinions, 

subpoenas, and certificates issued by 

the Board. 

6101.35—6101.50 [Reserved] 

6101.51 Variation from standard 

proceedings [Rule 51]. 

The ultimate purpose of any Board 

proceeding is to resolve fairly and 

expeditiously any dispute properly 

before the Board. When, during the 

normal course of a Board proceeding, 

the parties agree that a change in 

established procedure will promote this 

purpose, the Board will make that 

change if it is deemed to be feasible and 

in the best interest of the parties, the 

Board, and the resolution of the issue(s) 

in controversy. Individuals and small 

business may find variations from 

standard proceedings to be especially 

useful. The following are examples of 

these changes: 

(a) Establishing an expedited schedule 

of proceedings, such as by limiting the 

times provided in 6101.1 through 

6101.34 (Rules 1 through 34) for various 

filings, to facilitate a prompt resolution 

of the case; 

(b) Developing a record and rendering 

a decision on the issue of entitlement 

prior to reviewing the issue of quantum 

in a party’s claim; 

(c) Developing a record and rendering 

a decision on any legal or factual issue 

in advance of others when that issue is 

deemed critical to resolving the case or 

effecting a settlement of any items in 

dispute; and 

(d) Developing a record regarding 

relevant facts through an on-the-record 

round-table discussion with sworn 

witnesses, counsel, and the panel chair 

rather than through formal direct and 

cross-examination of each of these same 

witnesses. This discussion shall be 

controlled by the panel chair. It may be 

conducted, for example, through the 

presentation of narrative statements of 

witnesses or on an issue by issue basis. 

The panel chair may also request that 

the parties’ counsel or representatives 

present opening and/or closing 

statements in lieu of written briefs. 

6101.52 Small claims procedure [Rule 52]. 

(a) Election. (1) The small claims 

procedure is available solely at the 

appellant’s election. Such election shall 

be made no later than 30 calendar days 

after the appellant’s receipt of the 

agency answer, unless the panel chair 

enlarges the time for good cause shown. 

The appellant may elect this procedure 

when: 

(i) There is a monetary amount in 

dispute and that amount is $50,000 or 

less, or 

(ii)(A) There is a monetary amount in 

dispute and that amount is $150,000 or 

less, and 

(B) The appellant is a small business 

concern (as that term is defined in the 

Small Business Act and regulations 

promulgated under that Act). 

(2) At the request of the Government, 

or on its own initiative, the Board may 

determine whether the amount in 

dispute and/or the appellant’s status 

makes the election inappropriate. The 

Government shall raise any objection to 

the election no later than 10 working 

days after receipt of a notice of election. 

(b) Decision. The panel chair may 

issue a decision, which may be in 

summary form, orally or in writing. A 

decision which is issued orally shall be 

reduced to writing; however, such a 

decision takes effect at the time it is 

rendered, prior to being reduced to 

writing. A decision shall be final and 

conclusive and shall not be set aside 

except in case of fraud. A decision shall 

have no value as precedent. 

(c) Procedure. Promptly after receipt 

of the appellant’s election of the small 

claims procedure, the Board shall 

establish a schedule of proceedings that 

will allow for the timely resolution of 

the appeal. Pleadings, discovery, and 

other prehearing activities may be 

restricted or eliminated. 

(d) Time of decision. Whenever 

possible, the panel chair shall resolve an 

appeal under this procedure within 120 

calendar days from the Board’s receipt 

of the election. The time for processing 

an appeal under this procedure may be 

extended if the appellant has not 

adhered to the established schedule. 

Either party’s failure to abide by the 

Board’s schedule may result in the 

Board drawing evidentiary inferences 

adverse to the party at fault. 

6101.53 Accelerated procedure [Rule 53]. 

(a) Election. (1) The accelerated 

procedure is available solely at the 

appellant’s election, and only when 

there is a monetary amount in dispute 

and that amount is $100,000 or less. 

Such election shall be made no later 

than 30 calendar days after the 

appellant’s receipt of the agency answer, 

unless the panel chair enlarges the time 

for good cause shown. 

(2) At the request of the Government, 

or on its own initiative, the Board may 

determine whether the amount in 

dispute is greater than $100,000, such 

that the election is inappropriate. The 

Government shall raise any objection to 

the election no later than 10 working 

days after receipt of a notice of election. 

(b) Decision. Each decision shall be 

rendered by the panel chair with the 

concurrence of one of the other judges 

assigned to the panel; in the event the 

two judges disagree, the third judge 

assigned to the panel will participate in 

the decision. 

(c) Procedure. Promptly after receipt 

of the appellant’s election of the 

accelerated procedure, the Board shall 

establish a schedule of proceedings that 

will allow for the timely resolution of 

the appeal. Pleadings may be simplified, 

and discovery and other prehearing 

activities may be restricted or 

eliminated. 

(d) Time of decision. Whenever 

possible, the Board shall resolve an 

appeal under this procedure within 180 

calendar days from the Board’s receipt 

of the election. The time for processing 

an appeal under this procedure may be 

extended if the appellant has not 

adhered to the established schedule. 

Either party’s failure to abide by the 

Board’s schedule may result in the 

Board drawing evidentiary inferences 

adverse to the party at fault. 

6101.54 Alternative dispute resolution 

[Rule 54]. 

(a) Availability of alternative dispute 

resolution (ADR) procedures at the 

Board. The Board will make its services 

available for ADR proceedings to help 

resolve issues in controversy and claims 

involving procurements, contracts 

(including interagency agreements), and 

grants. The use of ADR will not toll any 

relevant statutory time limitations. 

(1) Matters not on Board’s Contract 

Disputes Act (CDA) docket. Upon 

request, the Board will make an ADR 

Neutral available for an ADR 

proceeding, even if a contracting 

officer’s decision has not been issued or 

is not contemplated. To initiate an ADR 

proceeding for all matters other than 

docketed CDA appeals, the parties shall 

jointly request ADR in writing and 

direct such a request to the Board 

Chairman. For agencies whose issues in 

controversy do not fall within the 

Board’s jurisdiction, the Board may 

provide ADR services on a reimbursable 

basis. 

(2) Docketed CDA appeals. Parties are 

encouraged to consider the advantages 

of using ADR techniques at any stage of 

an appeal. Joint requests for ADR 

services for docketed appeals should be 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36809 

addressed to the Board Chairman, with 

a copy to the presiding judge. ADR may 

be used concurrently with standard 

litigation proceedings such as the filing 

of pleadings and discovery, or the 

presiding judge may suspend such 

proceedings for a reasonable period of 

time while the parties attempt to resolve 

the appeal using ADR. 

(b) Conduct of ADR—(1) Selection of 

ADR Neutral. The parties may ask the 

Board Chairman to appoint a judge(s) to 

serve as the ADR Neutral(s). If desired, 

the parties may request the appointment 

of a particular judge(s). In a docketed 

appeal, the parties may also request that 

the presiding judge serve as the ADR 

Neutral for the ADR proceeding. If the 

parties elect a non-binding ADR 

procedure and the implementation of 

the procedure does not result in a 

settlement, where the procedure has 

involved ex parte contact, the ADR 

Neutral may retain the case for 

adjudication as the presiding judge, but 

only if the parties and the presiding 

judge all agree to such retention. If the 

procedure has not involved ex parte 

contact, the ADR Neutral, after 

considering the parties’ views, may 

retain the case as the presiding judge at 

his/her discretion. 

(2) The ADR agreement. Before an 

ADR proceeding can occur, the parties 

must execute a written ADR agreement. 

This agreement should set forth, among 

other things, the identity of the ADR 

Neutral to be used, the role and 

authority of the Neutral, the ADR 

techniques to be employed, the scope 

and extent of any discovery relating to 

ADR, the location and schedule for the 

ADR proceeding, and the extent to 

which dispute resolution 

communications in conjunction with 

the ADR proceeding are to be kept 

confidential (6101.54(b)(3) (Rule 

54(b)(3))). 

(3) Confidentiality of ADR 

communications and materials. 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 are considered ‘‘dispute 

resolution communications’’ as defined 

in 5 U.S.C. 571(5) and are subject to the 

confidentiality requirements of 5 U.S.C. 

574. Unless otherwise specifically 

agreed by the parties, confidential 

dispute resolution communications 

shall be inadmissible as evidence in any 

pending or future Board proceeding 

involving the parties or the issue in 

controversy which is the subject of the 

ADR proceeding. However, evidence 

otherwise admissible before the Board is 

not rendered inadmissible because of its 

use in an ADR proceeding. The Board 

will not retain written materials used in 

an ADR proceeding after the proceeding 

is concluded or otherwise terminated. 

Parties may request a protective order in 

an ADR proceeding in the manner 

provided in 6101.9(c) (Rule 9(c)). 

(c) Types of ADR. ADR is not defined 

by any single procedure or set of 

procedures. Board judges, when 

engaged as ADR Neutrals, most 

commonly use a combination of 

facilitative and evaluative mediation 

approaches, as explained in paragraphs 

(c)(1) through (c)(7) of this section. 

However, the Board will consider the 

use of any ADR technique or 

combination of techniques proposed by 

the parties in their ADR agreement 

which is deemed to be fair, reasonable, 

and in the best interest of the parties, 

the Board, and the resolution of the 

issue(s) in controversy. The following 

are descriptions of some available 

techniques: 

(1) Facilitative mediation. Facilitative 

mediations usually begin with a joint 

session, where the parties each make 

informal presentations to one another 

and the ADR Neutral regarding the facts 

and circumstances giving rise to the 

issues in controversy as well as an 

explanation of their respective legal 

positions. The ADR Neutral, as a 

mediator, aids the parties in settling 

their dispute, frequently by meeting 

with each party separately in 

confidential sessions and engaging in ex 

parte discussions with each of the 

parties, for the purpose of facilitating 

the formulation and transmission of 

settlement offers. 

(2) Evaluative mediation. In addition 

to engaging in facilitative mediation, if 

authorized under the terms of the 

parties’ ADR agreement, the ADR 

Neutral may also discuss informally the 

strengths and weaknesses of the parties’

respective positions in either joint 

sessions or confidential sessions. 

(3) Mini-trial. The parties make 

abbreviated presentations to an ADR 

Neutral who sits with the parties’

designated principal representatives as a 

mini-trial panel to hear and evaluate 

evidence relating to an issue in 

controversy. The ADR Neutral may 

thereafter meet with the principal 

representatives to attempt to mediate a 

settlement. The mini-trial process may 

also be a prelude to the Neutral’s 

provision of a non-binding advisory 

opinion (6101.54(c)(4) (Rule 54(c)(4))) or 

to the Neutral’s rendering of a binding 

decision (6101.54(c)(5) (Rule 54(c)(5))). 

(4) Non-binding advisory opinion. The 

parties present to the ADR Neutral 

information upon which the Neutral 

bases a non-binding, advisory opinion 

regarding the merits of the dispute. The 

opinion may be delivered to the parties 

jointly, either orally or in writing. The 

manner in which the information is 

presented will vary, depending upon 

the circumstances of the dispute and the 

terms of the parties’ ADR agreement. 

Presentations may range from an 

informal proffer of evidence together 

with limited argument from the parties, 

to a more formal presentation, with oral 

testimony, exchange of documentary 

evidence, and argument from counsel. 

(5) Summary binding decision. This is 

a binding ADR procedure similar to 

binding arbitration under which, by 

prior agreement of the parties, the ADR 

Neutral renders a brief written decision 

which is binding, non-precedential, and 

non-appealable. As in a procedure 

under which the Neutral provides a 

non-binding advisory opinion, the 

manner in which information is 

presented for a summary binding 

decision may vary depending on the 

circumstances of the particular dispute 

and the wishes of the parties as set out 

in their ADR agreement. 

(6) Other procedures. In addition to 

other ADR techniques, including 

modifications to those listed in 

paragraphs (c)(1) through (c)(5) of this 

section, the parties may use ADR 

neutrals outside the Board and 

techniques which do not require direct 

Board involvement. 

(7) Selective use of standard 

procedures. Parties considering ADR 

proceedings are encouraged to adapt for 

their purposes any provisions in 6101.1 

through 6101.34 (Rules 1 through 34) of 

the Board’s rules which they believe 

will be useful. 

Appendix to Part 6101—Form Nos. 1– 

5 

mstockstill on PROD1PC66 with RULES3

36810 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

Form 1, GSA Form 2465, Notice of 

Appeal. 


mstockstill on PROD1PC66 with RULES3ER05JY07.000</GPH><FNP>
Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36811 

Form 2, Notice of Appearance. 


mstockstill on PROD1PC66 with RULES3ER05JY07.001</GPH><FNP>
36812 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

Form 3, GSA Form 9534, Subpoena. 


mstockstill on PROD1PC66 with RULES3ER05JY07.002</GPH><FNP>
Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36813 


mstockstill on PROD1PC66 with RULES3ER05JY07.003</GPH><FNP>
36814 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

Form 4, Government Certificate of 

Finality. 


mstockstill on PROD1PC66 with RULES3ER05JY07.004</GPH><FNP>
Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36815 

Form 5, Appellant/Applicant 

Certificate of Finality. 


mstockstill on PROD1PC66 with RULES3ER05JY07.005</GPH><FNP>
36816 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

■ 2. Revise part 6102 to read as follows: 

PART 6102—CROP INSURANCE 

CASES 

Sec. 

6102.201 Scope of rules [Rule 201]. 

6102.202 Rules for crop insurance cases 

[Rule 202]. 

Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. 

438(c)(2). 

6102.201 Scope of rules [Rule 201]. 

These procedures govern the Board’s 

resolution of disputes between 

insurance companies and the 

Department of Agriculture’s Risk 

Management Agency (RMA) involving 

actions of the Federal Crop Insurance 

Corporation (FCIC). Prior to the creation 

of this Board, the Department of 

Agriculture Board of Contract Appeals 

resolved this variety of dispute pursuant 

to statute, 7 U.S.C. 1501 et seq. (the 

Federal Crop Insurance Act), and 

regulation, 7 CFR 24.4(b) and 400.169. 

The Board has this authority under an 

agreement with the Secretary of 

Agriculture, as permitted under section 

42(c)(2) of the Office of Federal 

Procurement Policy Act, 41 U.S.C. 

438(c)(2). 

6102.202 Rules for crop insurance cases 

[Rule 202]. 

The rules of procedure for these cases 

are the same as the rules of procedure 

for Contract Disputes Act appeals, with 

these exceptions: 

(a) Rule 1. (1) In 6101.1(b)(1) (Rule 

1(b)(1)), the term ‘‘appeal’’ means a 

dispute between an insurance company 

that is a party to a Standard Reinsurance 

Agreement (or other reinsurance 

agreement) and the RMA, and the term 

‘‘appellant’’ means the insurance 

company filing an appeal. 

(2) In 6101.1(b)(5)(i) (Rule 1(b)(5)(i)), 

a notice of appeal is filed upon its 

receipt by the Office of the Clerk of the 

Board, not when it is mailed. 

(3) Section 6101.1(b)(7) (Rule 1(b)(7)) 

does not apply to FCIC cases. 

(b) Rule 2. (1) Section 6101.2(a)(1)(i) 

(Rule 2(a)(1)(i)) is replaced with the 

following for FCIC cases: A notice of 

appeal shall be in writing and shall be 

signed by the appellant or by the 

appellant’s attorney or authorized 

representative. If the appeal is from a 

determination by the Deputy 

Administrator of Insurance Services 

regarding an action alleged not to be in 

accordance with the provisions of a 

Standard Reinsurance Agreement (or 

other reinsurance agreement), or if the 

appeal is from a determination by the 

Deputy Administrator of Compliance 

concerning a determination regarding a 

compliance matter, the notice of appeal 

should describe the determination in 

enough detail to enable the Board to 

differentiate that decision from any 

other; the appellant can satisfy this 

requirement by attaching to the notice of 

appeal a copy of the Deputy 

Administrator’s determination. If an 

appeal is taken from the failure of the 

Deputy Administrator to make a timely 

determination (see 6101.2(b)(1)(ii) (Rule 

2(b)(1)(ii))), the notice of appeal should 

describe in detail the matter that the 

Deputy Administrator has failed to 

determine; the appellant can satisfy this 

requirement by attaching to the notice of 

appeal a copy of the written request for 

a determination it sent to the Deputy 

Administrator. 

(2) In 6101.2(a)(1)(ii) and (iii) (Rule 

2(a)(1)(ii) and (iii)), the references to 

‘‘contracting officer’’ are references to 

‘‘Deputy Administrator.’’

(3) Section 6101.2(a)(2) (Rule 2(a)(2)) 

does not apply to FCIC cases. 

(4) In 6101.2(b)(1)(i) (Rule 2(b)(1)(i)), 

an appeal from a determination of a 

Deputy Administrator shall be filed no 

later than 90 calendar days after the date 

the appellant receives that 

determination. The Board is authorized 

to resolve only those appeals that are 

timely filed. 

(5) In 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii)), 

an appeal may be filed with the Board 

if the Deputy Administrator fails or 

refuses to issue a determination within 

90 days after the appellant submits a 

request for a determination. 

(c) Rule 4. (1) In 6101.4 (Rule 4), the 

references to ‘‘contracting officer’’ are 

references to ‘‘Deputy Administrator.’’

(2) In 6101.4(a), paragraphs (1) 

through (7) (Rule 4(a), paragraphs (1) 

through (7)), describing materials 

included in the appeal file, are replaced 

by the following: 

(i) The determination of the Deputy 

Administrator that is the subject of the 

dispute; 

(ii) The reinsurance agreement (with 

amendments or modifications) at issue 

in the dispute; 

(iii) Pertinent correspondence 

between the parties that is relevant to 

the dispute, including prior 

administrative determinations and 

related submissions; 

(iv) Documents and other tangible 

materials on which the Deputy 

Administrator relied in making the 

underlying determination; and 

(v) Any additional material pertinent 

to the authority of the Board or the 

resolution of the dispute. 

(3) The following subsection is added 

to 6101.4 (Rule 4): Media on which 

appeal file is to be submitted. All appeal 

file submissions, including the index, 

shall be submitted in two forms: paper 

and in a text or .pdf format submitted 

on a compact disk. Each compact disk 

shall be labeled with the name and 

docket number of the case. The judge 

may delay the submission of the 

compact disk copy of the appeal file 

until the close of the evidentiary record. 

(d) Rule 5. In 6101.5(a)(2) (Rule 

5(a)(2)), the references to ‘‘contracting 

officer’’ are references to ‘‘Deputy 

Administrator.’’

(e) Rule 6. In 6101.6(d) (Rule 6(d)) 

does not apply to FCIC cases. 

(f) Rule 12. In 6101.12(a) (Rule 12(a)), 

the references to ‘‘contracting officer’’

are references to ‘‘Deputy 

Administrator.’’

(g) Rule 15. In 6101.15(d) (Rule 15(d)), 

the final sentence does not apply to 

FCIC cases. 

(h) Rule 16. In 6101.16(b) through (h) 

(Rule 16(b) through (h)) do not apply to 

FCIC cases. Instead, upon the written 

request of any party filed with the Office 

of the Clerk of the Board, or upon the 

initiative of a judge, a judge is 

authorized by delegation from the 

Secretary of Agriculture to request the 

appropriate United States Attorney to 

apply to the appropriate United States 

District Court for the issuance of 

subpoenas pursuant to 5 U.S.C. § 304. 

(i) Rule 21. (1) In 6101.21(f) (Rule 

21(f)), the final sentence does not apply 

to FCIC cases. 

(2) In 6101.21(g) (Rule 21(g)), the final 

sentence does not apply to FCIC cases. 

(j) Rule 25. In 6101.25(a) (Rule 25(a)), 

the initial phrase, ‘‘Except as provided 

in 6101.52 (Rule 52) (small claims 

procedure),’’ does not apply to FCIC 

cases. 

(k) Rule 32. In 6101.32(a) through (c) 

(Rule 32(a) through (c)) are replaced 

with the following for FCIC cases: 

(1) Finality of Board decision. A 

decision of the Board is a final 

administrative decision. 

(2) Appeal permitted. An appellant 

may file suit in the appropriate United 

States District Court to challenge the 

Board’s decision. An appellant which 

files such a suit shall provide the Board 

with a copy of the complaint. 

(l) Rule 52. 6101.52 (Rule 52) does not 

apply to FCIC cases. 

(m) Rule 53. 6101.53 (Rule 53) does 

not apply to FCIC cases. 

■ 3. Revise part 6103 to read as follows: 

PART 6103—TRANSPORTATION RATE 

CASES 

Sec. 

6103.301 Scope [Rule 301]. 

6103.302 Filing claims [Rule 302]. 

6103.303 Responses to claims [Rule 303]. 

6103.304 Reply to the audit division and 

agency responses [Rule 304]. 

6103.305 Proceedings [Rule 305]. 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36817 

6103.306 Decisions [Rule 306]. 

6103.307 Reconsideration of Board 

decision [Rule 307]. 

6103.308 Payment of successful claims 

[Rule 308]. 

Authority: 31 U.S.C. 3726(i)(1); 41 U.S.C. 

601–613; Sec. 201(o), Pub. L. 104–316, 110 

Stat. 3826. 

6103.301 Scope [Rule 301]. 

(a) Authority. 31 U.S.C. 3726(i)(1) 

provides that a carrier or freight 

forwarder may request the 

Administrator of General Services to 

review an action taken by the Audit 

Division of the General Services 

Administration’s Office of 

Transportation and Property 

Management (the Audit Division). The 

Administrator has redelegated those 

functions to the Civilian Board of 

Contract Appeals. 

(b) Type of claim; review of claim. 

These procedures are applicable to the 

review of claims made by a carrier or 

freight forwarder pursuant to 31 U.S.C. 

3726(i)(1). The Board will issue the final 

agency decision on a claim based on the 

information submitted by the claimant, 

the Audit Division, and the department 

or agency (the agency) for which the 

services were provided. The burden is 

on the claimant to establish the 

timeliness of its claim, the liability of 

the agency, and the claimant’s right to 

payment. 

6103.302 Filing claims [Rule 302]. 

(a) Form. A claim shall be in writing 

and must be signed by the claimant or 

by the claimant’s attorney or authorized 

representative. No particular form is 

required. The request should describe 

the basis for the claim and state the 

amount sought. The request should also 

include—

(1) The name, address, telephone 

number, and facsimile machine number, 

if available, of the claimant; 

(2) The Government bill of lading or 

Government transportation request 

number; 

(3) The claimant’s bill number; 

(4) The Government voucher number 

and date of payment; 

(5) The Audit Division claim number; 

(6) The agency for which the services 

were provided; and 

(7) Any other identifying information. 

(b) When and where claims are filed. 

A claim is filed when it is received by 

the Office of the Clerk of the Board 

during the Board’s working hours. The 

Board’s mailing address is: 1800 F 

Street, NW, Washington, DC 20405. The 

Board is located at: 1800 M Street, NW, 

6th Floor, Washington, DC 20036. The 

Clerk’s telephone number is: (202) 606–

8800. The Clerk’s facsimile machine 

number is: (202) 606–0019. The Board’s 

working hours are 8:00 a.m. to 4:30 

p.m., Eastern Time, on each day other 

than a Saturday, Sunday, or federal 

holiday. 

(c) Notice of docketing. A claim will 

be docketed by the Office of the Clerk 

of the Board, and a written notice of 

docketing will be sent promptly to the 

claimant, the Director of the Audit 

Division, and the agency for which the 

services were provided. The notice of 

docketing will identify the judge to 

whom the claim has been assigned. 

(d) Service of copy. The claimant shall 

send to the Audit Division and the 

agency identified in paragraph (a)(6) of 

this section copies of all material 

provided to the Board. All submissions 

to the Board by a claimant shall indicate 

that a copy has been provided to the 

Audit Division and the agency. 

6103.303 Responses to claims [Rule 303]. 

(a) Content of responses. Within 30 

calendar days after docketing by the 

Board (or within 60 calendar days after 

docketing if the agency office for which 

the services were provided is located 

outside the 50 states and the District of 

Columbia), the Audit Division and the 

agency for which the services were 

provided shall each submit to the Board: 

(1) A simple, concise, and direct 

statement of its response to the claim; 

(2) Citations to applicable statutes, 

regulations, and cases; and 

(3) Any additional information 

deemed necessary to the Board’s review 

of the claim. 

(b) Service of copy. All responses 

submitted to the Board shall indicate 

that a copy has been sent to the claimant 

and to the Audit Division or the agency, 

as appropriate. To expedite proceedings, 

if either the Audit Division or the 

agency will not file a response (e.g., it 

believes its reasons for denying the 

claim were sufficiently explained in the 

material filed by the claimant), it should 

notify the Board, the claimant, and the 

Audit Division or the agency, as 

appropriate, that it does not intend to 

file a response. 

6103.304 Reply to the audit division and 

agency responses [Rule 304]. 

A claimant may file with the Board 

and serve on the Audit Division and the 

agency a reply to the Audit Division and 

agency responses within 30 calendar 

days after receiving the responses (or 

within 60 calendar days after receiving 

the responses, if the claimant is located 

outside the 50 states and the District of 

Columbia). To expedite proceedings, if 

the claimant does not wish to respond, 

the claimant should so notify the Board, 

the Audit Division, and the agency. 

6103.305 Proceedings [Rule 305]. 

(a) Requests for additional time. The 

claimant, the Audit Division, or the 

agency may request additional time to 

make any filing. 

(b) Conferences. The judge will not 

engage in ex parte communications 

involving the underlying facts or merits 

of the claim. The judge may hold a 

conference with the claimant, the Audit 

Division, and the agency at any time, for 

any purpose. The judge may provide the 

participants a memorandum reflecting 

the results of a conference. 

(c) Submissions. The judge may 

require the submission of additional 

information at any time. The claimant, 

the Audit Division, or the agency may 

request an opportunity to make 

additional submissions; however, no 

such submission may be made unless 

authorized by the judge. 

6103.306 Decisions [Rule 306]. 

The judge will issue a written 

decision based upon the record, which 

includes submissions by the claimant, 

the Audit Division, and the agency, and 

information provided during 

conferences. The claimant, the Audit 

Division, and the agency will each be 

furnished a copy of the decision by the 

Office of the Clerk of the Board. In 

addition, all Board decisions are posted 

weekly on the Internet. The Board’s 

Internet address is: www.cbca.gsa.gov. 

6103.307 Reconsideration of Board 

decision [Rule 307]. 

A request for reconsideration may be 

made by the claimant, the Audit 

Division, or the agency. Such requests 

must be received by the Board within 30 

calendar days after the date the decision 

was issued (or within 60 calendar days 

after the date the decision was issued, 

if the claimant or agency office making 

the request is located outside the 50 

states and the District of Columbia). The 

request for reconsideration should state 

the reasons why the Board should 

consider the request. Mere disagreement 

with a decision or re-argument of points 

already made is not a sufficient ground 

for seeking reconsideration. 

6103.308 Payment of successful claims 

[Rule 308]. 

The agency for which the services 

were provided shall pay amounts the 

Board determines are due the claimant. 

■ 4. Revise part 6104 to read as follows: 

PART 6104—TRAVEL AND 

RELOCATION EXPENSES CASES 

Sec. 

6104.401 Scope [Rule 401]. 

6104.402 Filing claims [Rule 402]. 

6104.403 Response to claim [Rule 403]. 

mstockstill on PROD1PC66 with RULES3

36818 Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 

6104.404 Reply to agency response [Rule 

404]. 

6104.405 Proceedings [Rule 405]. 

6104.406 Decisions [Rule 406]. 

6104.407 Reconsideration of Board 

decision [Rule 407]. 

6104.408 Payment of successful claims 

[Rule 408]. 

Authority: Secs. 202(n), 204, Pub. L. 104–

316, 110 Stat. 3826; Sec. 211, Pub. L. 104–

53, 109 Stat. 535; 31 U.S.C. 3702; 41 U.S.C. 

601–613. 

6104.401 Scope [Rule 401]. 

(a) Authority. These procedures 

govern the Board’s resolution of claims 

by Federal civilian employees for 

certain travel or relocation expenses. 31 

U.S.C. 3702 vests the authority to settle 

these claims in the Administrator of 

General Services, who has redelegated 

that function to the Civilian Board of 

Contract Appeals. The requirements 

contained in 31 U.S.C. 3702, including 

limitations on the time within which 

claims may be filed, apply to the 

Board’s review of these claims. 

(b) Types of claims. These procedures 

are applicable to the review of two types 

of claims made against the United States 

by federal civilian employees: 

(1) Claims for reimbursement of 

expenses incurred while on official 

temporary duty travel; and 

(2) Claims for reimbursement of 

expenses incurred in connection with 

relocation to a new duty station. 

(c) Review of claims. Any claim for 

entitlement to travel or relocation 

expenses must first be filed with the 

claimant’s own department or agency 

(the agency). The agency shall initially 

adjudicate the claim. A claimant 

disagreeing with the agency’s 

determination may request review of the 

claim by the Board. The burden is on 

the claimant to establish the timeliness 

of the claim, the liability of the agency, 

and the claimant’s right to payment. The 

Board will issue the final decision on a 

claim based on the information 

submitted by the claimant and the 

agency. 

6104.402 Filing claims [Rule 402]. 

(a) Filing claims. A claim may be sent 

to the Board in either of the following 

ways: 

(1) Claim filed by claimant. A claim 

shall be in writing and must be signed 

by the claimant or by the claimant’s 

attorney or authorized representative. 

No particular form is required. The 

request should describe the basis for the 

claim and state the amount sought. The 

request should also include—

(i) The name, address, telephone 

number, and facsimile machine number, 

if available, of the claimant; 

(ii) The name, address, telephone 

number, and facsimile machine number, 

if available, of the agency employee who 

denied the claim; 

(iii) A copy of the denial of the claim; 

and 

(iv) Any other information which the 

claimant believes the Board should 

consider. 

(2) Claim forwarded by agency on 

behalf of claimant. If an agency has 

denied a claim for travel or relocation 

expenses, it may, at the claimant’s 

request, forward the claim to the Board. 

The agency shall include the 

information required by paragraph (a)(1) 

of this section and by 6104.403 (Rule 

403). 

(3) Where claims are filed. Claims 

should be filed with the Office of the 

Clerk of the Board. The Board’s mailing 

address is: 1800 F Street, NW, 

Washington, DC 20405. The Board is 

located at: 1800 M Street, NW, 6th 

Floor, Washington, DC 20036. The 

Clerk’s telephone number is: (202) 606–

8800. The Clerk’s facsimile machine 

number is: (202) 606–0019. The Board’s 

working hours are 8:00 a.m. to 4:30 

p.m., Eastern Time, on each day other 

than a Saturday, Sunday, or federal 

holiday. 

(b) Notice of docketing. A request for 

review will be docketed by the Office of 

the Clerk of the Board. A written notice 

of docketing will be sent promptly to 

the claimant and the agency contact. 

The notice of docketing will identify the 

judge to whom the claim has been 

assigned. 

(c) Service of copy. The claimant shall 

send to the agency employee identified 

in paragraph (a)(1)(ii) of this section, or 

the individual otherwise identified by 

the agency to handle the claim, copies 

of all material provided to the Board. If 

an agency forwards a claim to the Board, 

it shall, at the same time, send to the 

claimant a copy of all material sent to 

the Board. All submissions to the Board 

shall indicate that a copy has been 

provided to the claimant or the agency. 

6104.403 Response to claim [Rule 403]. 

(a) Content of response. When a claim 

has been filed with the Board by a 

claimant, within 30 calendar days after 

docketing by the Board (or within 60 

calendar days after docketing, if the 

agency office involved is located outside 

the 50 states and the District of 

Columbia), the agency shall submit to 

the Board: 

(1) A simple, concise, and direct 

statement of its response to the claim; 

(2) Citations to applicable statutes, 

regulations, and cases; and 

(3) Any additional information the 

agency considers necessary to the 

Board’s review of the claim. 

(b) Service of copy. A copy of these 

submissions shall also be sent to the 

claimant. To expedite proceedings, if 

the agency believes its reasons for 

denying the claim were sufficiently 

explained in the material filed by the 

claimant, it should notify the Board and 

the claimant that it does not intend to 

file a response. 

6104.404 Reply to agency response [Rule 

404]. 

A claimant may file a reply to the 

agency response within 30 calendar 

days after receiving the response (or 

within 60 calendar days after receiving 

the response, if the claimant is located 

outside the 50 states and the District of 

Columbia). If the claim has been 

forwarded by the agency, the claimant 

shall have 30 calendar days from the 

time the claim is docketed by the Board 

(or 60 calendar days after docketing, if 

the claimant is located outside the 50 

states and the District of Columbia) to 

reply. To expedite proceedings, if the 

claimant does not wish to reply, the 

claimant should so notify the Board and 

the agency. 

6104.405 Proceedings [Rule 405]. 

(a) Requests for additional time. The 

claimant or the agency may request 

additional time to make any filing. 

(b) Conferences. The judge will not 

engage in ex parte communications 

involving the underlying facts or merits 

of the claim. The judge may hold a 

conference with the claimant and the 

agency contact, at any time, for any 

purpose. The judge may provide the 

participants a memorandum reflecting 

the results of a conference. 

(c) Additional submissions. The judge 

may require the submission of 

additional information at any time. 

6104.406 Decisions [Rule 406]. 

The judge will issue a written 

decision based upon the record, which 

includes submissions by the claimant 

and the agency, and information 

provided during conferences. The 

claimant and the agency will each be 

furnished a copy of the decision by the 

Office of the Clerk of the Board. In 

addition, all Board decisions are posted 

weekly on the Internet. The Board’s 

Internet address is: www.cbca.gsa.gov. 

6104.407 Reconsideration of Board 

decision [Rule 407]. 

A request for reconsideration may be 

made by the claimant or the agency. 

Such requests must be received by the 

Board within 30 calendar days after the 

date the decision was issued (or within 

mstockstill on PROD1PC66 with RULES3

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules and Regulations 36819 

60 calendar days after the date the 

decision was issued, if the claimant or 

the agency office making the request is 

located outside the 50 states and the 

District of Columbia). The request for 

reconsideration should state the reasons 

why the Board should consider the 

request. Mere disagreement with a 

decision or re-argument of points 

already made is not a sufficient ground 

for seeking reconsideration. 

6104.408 Payment of successful claims 

[Rule 408]. 

The agency shall pay amounts the 

Board determines are due the claimant. 

■ 5. Revise part 6105 to read as follows: 

PART 6105—DECISIONS AUTHORIZED 

UNDER 31 U.S.C. 3529 

Sec. 

6105.501 Scope [Rule 501]. 

6105.502 Request for decision [Rule 502]. 

6105.503 Additional submissions [Rule 

503]. 

6105.504 Proceedings [Rule 504]. 

6105.505 Decisions [Rule 505]. 

6105.506 Reconsideration of Board 

decision [Rule 506]. 

Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 

41 U.S.C. 601–613; Secs. 202(n), 204, Pub. L. 

104–316, 110 Stat. 3826; Sec. 211, Pub. L. 

104–53, 109 Stat. 535. 

6105.501 Scope [Rule 501]. 

These procedures govern the Board’s 

issuance of decisions, upon the request 

of an agency disbursing or certifying 

official, or agency head, on questions 

involving payment of travel or 

relocation expenses that were formerly 

issued by the Comptroller General 

under 31 U.S.C. 3529. Section 204 of the 

General Accounting Office Act of 1996, 

Pub. L. 104–316, transfers the authority 

to issue these decisions to the Director 

of the Office of Management and 

Budget, and authorizes the Director to 

delegate the authority to perform that 

function to another agency or agencies. 

The Director has delegated the authority 

to issue these decisions to the 

Administrator of General Services, who 

has redelegated that function to the 

Civilian Board of Contract Appeals. 

6105.502 Request for decision [Rule 502]. 

(a) Request for decision. (1) A 

disbursing or certifying official of an 

agency, or the head of an agency, may 

request from the Board a decision 

(referred to as a ‘‘Section 3529 

decision’’) on a question involving a 

payment the disbursing official or head 

of agency will make, or a voucher 

presented to a certifying official for 

certification, which concerns the 

following type of claim made against the 

United States by a federal civilian 

employee: 

(i) A claim for reimbursement of 

expenses incurred while on official 

temporary duty travel; and 

(ii) A claim for reimbursement of 

expenses incurred in connection with 

relocation to a new duty station. 

(2) A request for a Section 3529 

decision shall be in writing; no 

particular form is required. The request 

must refer to a specific payment or 

voucher; it may not seek general legal 

advice. The request should—

(i) Explain why the official is seeking 

a Section 3529 decision, rather than 

taking action on his or her own 

regarding the matter; 

(ii) State the question presented and 

include citations to applicable statutes, 

regulations, and cases; 

(iii) Include—

(A) The name, address, telephone 

number, and facsimile machine number 

(if available) of the official making the 

request; 

(B) The name, address, telephone 

number, and facsimile number (if 

available) of the employee affected by 

the specific payment or voucher; and 

(C) Any other information which the 

official believes the Board should 

consider; and 

(iv) Be delivered to the Office of the 

Clerk of the Board. The Board’s mailing 

address is: 1800 F Street, NW, 

Washington, DC 20405. The Board is 

located at: 1800 M Street, NW, 6th 

Floor, Washington, DC 20036. The 

Clerk’s telephone number is: (202) 606–

8800. The Clerk’s facsimile machine 

number is: (202) 606–0019. The Board’s 

working hours are 8:00 a.m. to 4:30 

p.m., Eastern Time, on each day other 

than a Saturday, Sunday, or federal 

holiday. 

(b) Notice of docketing. A request for 

a Section 3529 decision will be 

docketed by the Office of the Clerk of 

the Board. A written notice of docketing 

will be sent promptly to the official and 

the affected employee. The notice of 

docketing will identify the judge to 

whom the request has been assigned. 

(c) Service of copy. The official 

submitting a request for a Section 3529 

decision shall send to the affected 

employee copies of all material 

provided to the Board. All submissions 

to the Board shall indicate that a copy 

has been provided to the affected 

employee. 

6105.503 Additional submissions [Rule 

503]. 

If the affected employee wishes to 

submit any additional information to 

the Board, he or she must submit such 

information within 30 calendar days 

after receiving the copy of the request 

for decision and supporting material (or 

within 60 calendar days after receiving 

the copy, if the affected employee is 

located outside the 50 states and the 

District of Columbia). To expedite 

proceedings, if the employee does not 

wish to make an additional submission, 

the employee should so notify the Board 

and the agency. 

6105.504 Proceedings [Rule 504]. 

(a) Requests for additional time. The 

agency or the affected employee may 

request additional time to make any 

filing. 

(b) Conferences. The judge will not 

engage in ex parte communications 

involving the underlying facts or merits 

of the request. The judge may hold a 

conference with the agency and the 

affected employee, at any time, for any 

purpose. The judge may provide the 

participants a memorandum reflecting 

the results of a conference. 

(c) Additional submissions. The judge 

may require the submission of 

additional information at any time. 

6105.505 Decisions [Rule 505]. 

The judge will issue a written 

decision based upon the record, which 

includes submissions by the agency and 

the affected employee, and information 

provided during conferences. The 

agency and the affected employee will 

each be furnished a copy of the decision 

by the Office of the Clerk of the Board. 

In addition, all Board decisions are 

posted weekly on the Internet. The 

Board’s Internet address is: http:// 

www.cbca.gsa.gov. 

6105.506 Reconsideration of Board 

decision [Rule 506]. 

A request for reconsideration may be 

made by the agency or the affected 

employee. Such requests must be 

received by the Board within 30 

calendar days after the date the decision 

was issued (or within 60 calendar days 

after the date the decision was issued, 

if the agency or the affected employee 

making the request is located outside 

the 50 states and the District of 

Columbia). The request for 

reconsideration should state the reasons 

why the Board should consider the 

request. Mere disagreement with a 

decision or re-argument of points 

already made is not a sufficient ground 

for seeking reconsideration. 

[FR Doc. 07–3064 Filed 7–3–07; 8:45 am] 

BILLING CODE 6820–AL–S 

mstockstill on PROD1PC66 with RULES3