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[Federal Register Volume 79, Number 139 (Monday, July 21, 2014)]
[Rules and Regulations]
[Pages 42214-42223]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17056]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

[Docket No. DARS-2014-0011]

48 CFR Chapter 2, Appendix A

Defense Federal Acquisition Regulation Supplement: Rules of the 
Armed Services Board of Contract Appeals (No DFARS Case)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to update the Rules of the 
Armed Services Board of Contract Appeals (ASBCA). The final rule 
revises and reorders the Board's Rules for clarity and consistency and 
accounts for changes in technology, provides updated contact 
information, and adds two addendums.

DATES: Effective July 21, 2014.

FOR FURTHER INFORMATION CONTACT: Jeffrey Gardin, Deputy General 
Counsel, ASBCA, 703-681-8502, or Catherine Stanton, General Counsel, 
ASBCA, 703-681-8501.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 28, 2014, DoD published a proposed rule in the Federal 
Register at 79 FR 11374 to revise the DFARS to update the Rules of the 
Armed Services Board of Contract Appeals at 48 CFR Chapter 2, Appendix 
A, Part 2. The rule proposed to revise and reorder the Board's Rules 
for clarity and consistency and account for changes in technology, 
remove contradictions, resolve ambiguities, provide updated contact 
information to allow for some electronic communication by litigants 
appearing before the Board, and added two addendums: Equal Access to 
Justice Act Procedures and Alternative Methods of Dispute Resolution, 
previously not formally contained in the Rules.
    Two respondents submitted public comments in response to the 
proposed rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments is provided below. Minor changes 
were made to the final rule based on the comments.

A. Analysis of Public Comments

    Comment 1: One respondent recommended that the Board consider 
implementing an electronic filing standard equivalent to the systems 
utilized by the federal court system.
    Response: The Board's proposed Rules provide for electronic filing, 
formalizing the guidance currently issued to the parties concerning 
electronic filings. The Board has not identified advantages sufficient 
to justify an electronic filing system similar to those in use in the 
federal courts. Moreover, the Board has pro se and foreign appellants 
that sometimes do not have the capability to send or receive documents 
electronically. The Board considers this proposed change unnecessary.
    Comment 2: Rule 1(a). One respondent recommended allowing the copy 
of the notice of appeal that the appellant sends to the contracting 
officer be transmitted in accordance with the methods outlined in Rule 
2(a) and that, if the electronic mail option is used, the appellant 
must use an address reasonably calculated to reach the contracting 
officer.
    Response: The proposed Rules currently allow notices of appeal to 
be transmitted via the methods set out in Rule 2(a). The Board sees no 
reason to single out copies of notices of appeal sent to contracting 
officers for special treatment. The Board considers this proposed 
change unnecessary.
    Comment 3: Rule 1(b). One respondent commented that Rule 1(b) 
should include a requirement that appeals having an amount in dispute 
over $100,000 shall contain the certification required by FAR 
33.207(c). The respondent stated that this would ensure that the 
mandate at FAR 33.207(f) is met as it would correct any defective 
certification ``prior to the entry of . . . a decision by an agency 
BCA.''
    Response: Notices of appeal are not required to be certified under 
the Contract Disputes Act or the Federal Acquisition Regulation. Claims 
are required to be certified by the Contract Disputes Act, not the 
Board's Rules. The Board considers this proposed change unnecessary.
    Comment 4: Rule 1(c). One respondent recommended that the Board 
provide its notification of docketing electronically and that, 
therefore, the filed appeal would need to include a valid email address 
for both

[[Page 42215]]

the appellant and the contracting officer.
    Response: There is no reason that notices of docketing should be 
sent electronically, and no requirement that any party have the 
capability to send or receive documents electronically. The Board 
considers this proposed change unnecessary.
    Comment 5: Rule 2. One respondent recommended that section 2(a)(3) 
be changed to read as follows:

    ``Electronic Mail-Documents, except appeal files submitted 
pursuant to Rule 4, hearing exhibits, classified documents, and 
documents submitted in camera or under a protective order, may be 
filed via electronic mail (email). Email attachments must be, absent 
Board permission, in PDF format. Email attachments may not, absent 
Board permission, exceed 10 megabytes total . . .''

The respondent commented that the proposed change provides the Board 
the discretion to accept documents in other formats and larger sized 
attachments, if the Board desires, and as technology changes.

    Response: The Board already possesses discretion to grant 
exceptions to administrative requirements of its Rules on a case-by-
case basis. The Board considers this proposed change unnecessary.
    Comment 6: Rule 2(a)(3). One respondent recommended allowing 
electronic filing for documents submitted pursuant to Rule 4 and 
hearing exhibits.
    Response: The Board approves the filing of appeal files and 
exhibits on CDs on a case-by-case basis, upon the request of a party, 
reserving the right to require the filing of a paper copy. The Board 
has not permitted the filing of appeal files as attachments to emails 
but has discretion to allow it should the Board deem it advisable. The 
Board considers this proposed change unnecessary.
    Comment 7: Rules 2(b) and 3. One respondent noted that documents 
may be served, and copies to opposing parties may be transmitted, in 
accordance with the methods outlined in Rule 2(a) and recommended that, 
if the electronic mail option is used, the appellant must use an 
address reasonably calculated to reach the opposing party.
    Response: This comment addresses a perceived problem that the Board 
has not encountered. The Board considers this proposed change 
unnecessary.
    Comment 8: Rule 4(a). One respondent recommended that section (a) 
be changed to read as follows:

    ``(a) Duties of the Government. Within 30 days from receipt of 
the complaint or with the submission of the answer, whichever comes 
later, the Government shall transmit to the Board and the appellant 
an appeal file consisting of the documents the Government considers 
relevant to the appeal, including . . .''

The respondent noted that, currently the Rule 4 file is due 30 days 
from notice that an appeal has been filed, which is before the 
complaint is due. Often times it is difficult to know based on the 
claim and the final decision alone, what documents are relevant to the 
appeal. The complaint often provides the information needed to help 
determine which documents are relevant. Additionally, it can also be a 
challenge getting the base to send the Government trial attorneys the 
documents needed in the Rule 4 file by the deadline. To avoid having to 
request extensions or later supplement the Rule 4 file, the Rule 4 file 
should, at the very earliest, be due 30 days from receipt of the 
complaint or with the submission of the answer, whichever is later.

    Response: The requirement for the government to file the appeal 
file within 30 days from notice of filing of the appeal has been in 
place for many decades. The government, having reviewed or asserted the 
claim and issued a contracting officer's decision, should be familiar 
with the facts and circumstances it considers relevant to the dispute. 
Appeal files almost always need to be supplemented as discovery 
progresses and requests for extensions are dealt with routinely. The 
Board has no documents concerning the substance of the appeal that pre-
date the contracting officer's decision until the appeal file is filed, 
and therefore the Board is unable to analyze any aspect of the appeal 
until the appeal file is received. The Board considers this proposed 
change unnecessary.
    Comment 9: Rule 4(b). One respondent recommended that section (b) 
be changed to read as follows:

    ``(b) Duties of the Parties. Either party may supplement the 
Rule 4 file at any time during or after the close of discovery and a 
reasonable amount of time prior to a scheduled hearing.''

The respondent stated that, in practice, this recommended change is 
accomplished by the Board's scheduling order for submission of hearing 
exhibits. Also, there is no practical reason to require appellant to 
supplement within 30 days of the government's submission of the Rule 4 
File. Appellants rarely follow this rule and the government rarely 
objects because final supplementation occurs after discovery.

    Response: The Board perceives no reason to eliminate the current 
practice that requires appellants to timely file an appeal file.
    Comment 10: Rule 4(c). One respondent commented that this Rule 
should clarify whether ``numbered sequentially'' applies to the 
individual documents in the appeal file, the page numbers within each 
document, or Bates numbers for the entire appeal file.
    Response: The Rule will be modified to make it clear that 
``numbered sequentially'' refers to the individually tabbed documents 
in the appeal file.
    Comment 11: Rule 4(c). Two respondents recommended that this Rule 
be changed to allow documents to be submitted by email or on compact 
discs, digital versatile discs, or other electronic means.
    Response: The Board approves the filing of appeal files and 
exhibits on CDs on a case-by-case basis, upon the request of a party, 
reserving the right to require the filing of a paper copy. The Board 
has not permitted the filing of appeal files as attachments to emails 
but has discretion to allow it should the Board deem it advisable. The 
Board considers this proposed change unnecessary.
    Comment 12: Rule 5. One respondent recommended the Board 
incorporate its snow and other emergency day guidance in this Rule as 
it pertains to filing deadlines.
    Response: Since the Board hears appeals nationally and 
internationally, we prefer to deal with emergency situations on a case-
by-case basis so that rulings can be tailored to the relevant 
circumstances. The Board considers this proposed change unnecessary.
    Comment 13: Rule 6. One respondent recommended that section (b) be 
changed to read as follows:

    ``(b) Government. Within 30 days from receipt of the complaint, 
or the aforesaid notice from the Board, the Government shall file 
with the Board an answer thereto. The answer shall admit or deny the 
allegations of the complaint and shall set forth simple, concise, 
and direct statements of the Government's defenses to each claim 
asserted by the appellant, including any affirmative defenses. If 
the Board has deemed appellant's claim and notice of appeal to set 
forth its complaint, pursuant to Rule 6(a), the Government shall 
file an answer within 30 days of receiving the Board's 
determination, in which the Government will make a reasonable 
attempt to admit or deny the factual allegations in appellant's 
claim and notice of appeal and state the Government's defenses to 
each claim asserted by the appellant. Should the answer not be 
timely received, the Board may enter a general denial on behalf of 
the Government, and the parties will be notified.''

The respondent stated that this change addresses the issue of how the

[[Page 42216]]

Government should file its answer when the Appellant's notice of appeal 
and claim are deemed sufficient by the Board to serve as Appellant's 
complaint.

    Response: Government pleadings in response to claims and/or notices 
of appeal that have been deemed to be appellants' complaint have not 
been a source of problems at the Board. The rules of pleading currently 
give government counsel sufficient flexibility to admit or deny on 
various bases the factual allegations in a deemed complaint. The Board 
considers this proposed change unnecessary.
    Comment 14: Rule 9. One respondent recommended adding the following 
to the final sentence: ``In an effort to implement cost saving 
measures, whenever feasible to meet the intended goals of the 
conference, the Board will make use of telephonic and video conferences 
to the full extent possible.''
    Response: The Board routinely allows party representatives and 
witnesses to appear by telephone or electronic means when appropriate. 
The Board considers this proposed change unnecessary.
    Comment 15: Rule 12(d). One respondent recommended adding the 
following final sentence: ``To the extent necessary to make adequate 
presentation of their factual and legal positions, the parties are 
encouraged to engage in voluntary discovery procedures and cooperative 
meetings to reach mutual consent on the scope, method, time, and place 
for discovery, and provisions for governing the disclosure of 
information or documents.''
    Response: Rule 12.2(a)(2),(b) and Rule 12.3(a),(b) address these 
matters. The Board considers this proposed change to Rule 12.1(d) to be 
unnecessary.
    Comment 16: Rule 19. One respondent recommended that, as with the 
Expedited and Accelerated procedures under Rule 12, the Board should 
establish a maximum time in which decisions will be rendered under 
regular procedures.
    Response: The Contract Disputes Act establishes time periods within 
which decisions should be rendered for expedited and accelerated 
appeals. No such time period is established for other appeals. The 
Board considers that other appeals vary so substantially in complexity 
and the need for extensive discovery and pre-trial motions, that any 
fixed time period would be arbitrary.
    Comment 17: Rule 19(a). One respondent recommended adding language 
that would enable the Board to transmit its decisions electronically.
    Response: The Board does transmit its decisions electronically when 
necessary. The Board considers this proposed change unnecessary.
    Comment 18: Rule 22. One respondent recommended changing subsection 
(c)(l)(iii) to subsection (c)(2) since (iii) does not follow from 
(c)(l). In turn, this would necessitate changing (c)(2) to (c)(3). 
Also, respondent recommended deleting the word ``contumacy,'' since the 
concept is already captured with ``refusal to obey'' and the word does 
not appear to comply with the Government's requirement to use plain 
language.
    Response: The subsection confusion the respondent references is a 
result of a formatting error in the editing process after submittal by 
the Board. The Rule has been edited and renumbered. The language the 
respondent proposes be deleted is from 41 U.S.C. 7105(f). The Board 
considers this proposed change to be unnecessary.

B. Other Changes

    DoD has incorporated other non-substantive editorial changes in the 
final rule consisting of minor wording and paragraph numbering changes 
for clarity.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule revises and reorders the Rules of the Armed Services 
Board of Contract Appeals for clarity and consistency, removes 
contradictions, resolves ambiguities, accounts for changes in 
technology, provides updated contact information to allow for some 
electronic communication by parties appearing before the Board, and 
adds two addendums, previously not formally contained in the Rules, 
that reflect current practice before the Board.

V. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Chapter 2, Appendix A

    Government procurement.

Amy G. Williams,
Deputy Director, Defense Acquisition Regulations System.

    Therefore, 48 CFR chapter 2 is amended as follows:

CHAPTER 2--DEFENSE ACQUISITION REGULATIONS SYSTEM, DEPARTMENT OF 
DEFENSE

0
1. The authority citation for Appendix A to Chapter 2 continues to read 
as follows:

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

0
2. Appendix A to Chapter 2 is amended by revising Part 2--Rules to read 
as follows:

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

Armed Services Board of Contract Appeals

* * * * *

Part 2--Rules

Approved 15 July 1963
Revised 1 May 1969
Revised 1 September 1973
Revised 30 June 1980
Revised 11 May 2011
Revised 21 July 2014

Preface

I. Jurisdiction for Considering Appeals

    The Armed Services Board of Contract Appeals (referred to herein 
as the Board) has jurisdiction to decide any appeal from a final 
decision of a contracting officer, pursuant to the Contract Disputes 
Act, 41 U.S.C. 7101-7109, or its Charter, 48 CFR Chap. 2, App. A, 
Pt. 1, relative to a contract made by the Department of Defense, the 
Department of the Army, the Department of the Navy, the Department 
of the Air Force, the National Aeronautics and Space Administration 
or any other department or agency, as permitted by law.

II. Location and Organization of the Board

    (a) The Board's address is Skyline Six, Room 703, 5109 Leesburg 
Pike, Falls Church, VA 22041-3208; telephone 703-681-8500 (general), 
703-681-8502 (Recorder). The Board's facsimile number is 703-681-
8535. The Board's Recorder's email address is 
asbca.recorder@mail.mil. The Board's Web site address is http://www.asbca.mil.
    (b) The Board consists of a Chairman, two or more Vice Chairmen, 
and other Members,

[[Page 42217]]

all of whom are attorneys at law duly licensed by a state, 
commonwealth, territory, or the District of Columbia. Board Members 
are designated Administrative Judges.
    (c) There are a number of divisions of the Board, established by 
the Chairman in such manner as to provide for the most effective and 
expeditious handling of appeals. The Chairman and a Vice Chairman 
act as members of each division. Hearings may be held by an 
Administrative Judge or by a duly authorized examiner. Except for 
appeals processed under the expedited or accelerated procedure (see 
Rules 12.2(c) and 12.3(c)), the decision of a majority of a division 
constitutes the decision of the Board, unless the Chairman refers 
the appeal to the Board's Senior Deciding Group (consisting of the 
Chairman, Vice Chairmen, all division heads, and the Judge who 
drafted the decision), in which event a decision of a majority of 
that group constitutes the decision of the Board. Appeals referred 
to the Senior Deciding Group are those of unusual difficulty or 
significant precedential importance, or that have occasioned serious 
dispute within the normal division decision process.
    (d) The Board will to the fullest extent practicable provide 
informal, expeditious, and inexpensive resolution of disputes.

Table of Contents

Rules of the Armed Services Board of Contract Appeals

Rule 1 Appeals
Rule 2 Filing Documents
Rule 3 Service Upon Other Parties
Rule 4 Preparation, Content, Organization, Forwarding, and Status of 
Appeal File
Rule 5 Time, Computation, and Extensions
Rule 6 Pleadings
Rule 7 Motions
Rule 8 Discovery
Rule 9 Pre-Hearing or Pre-Submission Conference
Rule 10 Hearings
Rule 11 Submission Without a Hearing
Rule 12 Optional Small Claims (Expedited) and Accelerated Procedures
Rule 13 Settling the Record in Appeals with a Hearing
Rule 14 Briefs
Rule 15 Representation
Rule 16 Sanctions
Rule 17 Dismissal or Default for Failure to Prosecute or Defend
Rule 18 Suspensions; Dismissal without Prejudice
Rule 19 Decisions
Rule 20 Motion for Reconsideration
Rule 21 Remand from Court
Rule 22 Subpoenas
Rule 23 Ex Parte Communications
Rule 24 Effective Date

Addendums

Addendum I: Equal Access to Justice Act Procedures
Addendum II: Alternative Methods of Dispute Resolution

Rules

Rule 1. Appeals

    (a) Taking an Appeal--For appeals subject to the Contract 
Disputes Act, notice of an appeal shall be in writing and mailed or 
otherwise furnished to the Board within 90 days from the date of 
receipt of a contracting officer's decision. The appellant 
(contractor) should also furnish a copy of the notice of appeal to 
the contracting officer. For appeals not subject to the Contract 
Disputes Act, the contractor should refer to the Disputes clause in 
its contract for the time period in which it must file a notice of 
appeal.
    (1) Where the contractor has submitted a claim of $100,000 or 
less to the contracting officer and has requested a written decision 
within 60 days from receipt of the request, and the contracting 
officer has not provided a decision within that period, or where 
such a contractor request has not been made and the contracting 
officer has not issued a decision within a reasonable time, the 
contractor may file a notice of appeal as provided in paragraph (a) 
of this Rule, citing the failure of the contracting officer to issue 
a decision.
    (2) Where the contractor has submitted a properly certified 
claim over $100,000 to the contracting officer or has submitted a 
claim that involves no monetary amount, and the contracting officer, 
within 60 days of receipt of the claim, fails to issue a decision or 
fails to provide the contractor with a reasonable date by which a 
decision will be issued, and the contracting officer has failed to 
issue a decision within a reasonable time, the contractor may file a 
notice of appeal as provided in paragraph (a) of this Rule, citing 
the failure of the contracting officer to issue a decision.
    (3) A reasonable time shall be determined by taking into account 
such factors as the size and complexity of the claim and the 
adequacy of the information provided by the contractor to support 
the claim.
    (4) Where an appeal is before the Board pursuant to paragraph 
(a)(1) or (a)(2) of this Rule, the Board may, at its option, stay 
further proceedings pending issuance of a final decision by the 
contracting officer within such period of time as is determined by 
the Board.
    (5) In lieu of filing a notice of appeal under paragraph (a)(1) 
or (a)(2) of this Rule, the contractor may petition the Board to 
direct the contracting officer to issue a decision in a specified 
period of time as determined by the Board.
    (b) Contents of Notice of Appeal--A notice of appeal shall 
indicate that an appeal is being taken and should identify the 
contract by number, the department and/or agency involved in the 
dispute, the decision from which the appeal is taken, and the amount 
in dispute, if any. A copy of the contracting officer's final 
decision, if any, should be attached to the notice of appeal. The 
notice of appeal should be signed by the appellant or by the 
appellant's duly authorized representative or attorney. The 
complaint referred to in Rule 6 may be filed with the notice of 
appeal, or the appellant may designate the notice of appeal as a 
complaint, if it otherwise fulfills the requirements of a complaint.
    (c) Docketing of Appeal--When a notice of appeal has been 
received by the Board, it will be docketed. The Board will provide a 
written notice of docketing to the appellant and to the Government.

Rule 2. Filing Documents

    (a) Documents may be filed with the Board by the following 
methods:
    (1) Governmental Postal Service--Documents may be filed via a 
governmental postal service. Filing occurs when the document, 
properly addressed and with sufficient postage, is transferred into 
the custody of the postal service. Contact the Recorder before 
submitting classified documents.
    (2) Courier--Documents may be filed via courier. Filing occurs 
when the document is delivered to the Board. Contact the Recorder 
before submitting classified documents.
    (3) Electronic Mail--Documents, except appeal files submitted 
pursuant to Rule 4, hearing exhibits, classified documents, and 
documents submitted in camera or under a protective order, may be 
filed via electronic mail (email). Email attachments should be in 
PDF format and the attachments may not exceed 10 megabytes total. 
The transmittal email should include the ASBCA docket number(s), if 
applicable, and the name of the appellant in the ``Subject:'' line. 
Filing occurs upon receipt by the Board's email server. When a 
document is successfully filed via email, the document should not 
also be submitted by any other means, unless so directed by the 
Board. Submit emails to: asbca.recorder@mail.mil.
    (4) Facsimile Transmission--Documents, except appeal files 
submitted pursuant to Rule 4, hearing exhibits, classified 
documents, and documents submitted in camera or under a protective 
order, may be filed via facsimile (fax) machine. Due to equipment 
constraints, transmissions over 10 pages should not be made absent 
Board permission. Filing occurs upon receipt by the Board. When a 
document is successfully filed via fax, the document should not also 
be submitted by any other means, unless so directed by the Board.
    (b) Copies to Opposing Party--The party filing any document with 
the Board will send a copy to the opposing party unless the Board 
directs otherwise, noting on the document filed with the Board that 
a copy has been so furnished.

Rule 3. Service Upon Other Parties

    Documents may be served personally or by mail, addressed to the 
party upon whom service is to be made, unless the parties have 
agreed to an alternate means of service. Subpoenas shall be served 
as provided in Rule 22.

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

    (a) Duties of the Government--Within 30 days of notice that an 
appeal has been filed, the Government shall transmit to the Board 
and the appellant an appeal file consisting of the documents the 
Government considers relevant to the appeal, including:
    (1) The decision from which the appeal is taken;
    (2) The contract, including pertinent specifications, 
amendments, plans, and drawings;
    (3) All correspondence between the parties relevant to the 
appeal, including any claim in response to which the decision was 
issued.

[[Page 42218]]

    The Government's appeal file may be supplemented at such times 
as are fair and reasonable and as ordered by the Board.
    (b) Duties of the Appellant--Within 30 days after receipt of a 
copy of the Government's appeal file, the appellant shall transmit 
to the Board and the Government any documents not contained therein 
that the appellant considers relevant to the appeal. Appellant's 
appeal file may be supplemented at such times as are fair and 
reasonable and as ordered by the Board.
    (c) Organization of Appeal File--Documents in the appeal file 
may be originals or legible copies, and shall be arranged in 
chronological order where practicable, tabbed with sequential 
numbers, and indexed to identify the contents of the file. Any 
document without internal page numbers shall have page numbers 
added. All documents must be in English or include an English 
translation. Documents shall be submitted in 3-ring binders, with 
spines not wider than 3 inches wide, with labels identifying the 
name of the appeal, ASBCA number and tab numbers contained in each 
volume, on the front and spine of each volume. Each volume shall 
contain an index of the documents contained in the entire Rule 4 
submission.
    (d) Status of Documents in Appeal File--Documents contained in 
the appeal file are considered, without further action by the 
parties, as part of the record upon which the Board will render its 
decision. However, a party may object, for reasons stated, to the 
admissibility of a particular document reasonably in advance of 
hearing or, if there is no hearing, of settling the record, or in 
any case as ordered by the Board. If such objection is made, the 
Board will constructively remove the document from the appeal file 
and permit the party offering the document to move its admission as 
evidence in accordance with Rules 10, 11, and 13.

Rule 5. Time, Computation, and Extensions

    (a) Where practicable, actions should be taken in less time than 
the time allowed. Where appropriate and justified, however, 
extensions of time will be granted. All requests for extensions of 
time should be in writing and indicate that the other party was 
contacted to seek its concurrence.
    (b) In computing any period of time, the day of the event from 
which the designated period of time begins to run will not be 
included, but the last day of the period will be included unless it 
is a Saturday, Sunday, or a Federal holiday, in which event the 
period will run to the next business day.

Rule 6. Pleadings

    (a) Appellant--Within 30 days after receipt of notice of 
docketing of the appeal, the appellant shall file with the Board a 
complaint setting forth simple, concise, and direct statements of 
each of its claims. The complaint shall also set forth the basis, 
with appropriate reference to contract provisions, of each claim and 
the dollar amount claimed, if any. This pleading shall fulfill the 
generally recognized requirements of a complaint, although no 
particular form is required. Should the complaint not be timely 
received, the appellant's claim and notice of appeal may be deemed 
to set forth its complaint if, in the opinion of the Board, the 
issues before the Board are sufficiently defined, and the parties 
will be notified.
    (b) Government--Within 30 days from receipt of the complaint, or 
the aforesaid notice from the Board, the Government shall file with 
the Board an answer thereto. The answer shall admit or deny the 
allegations of the complaint and shall set forth simple, concise, 
and direct statements of the Government's defenses to each claim 
asserted by the appellant, including any affirmative defenses. 
Should the answer not be timely received, the Board may enter a 
general denial on behalf of the Government, and the parties will be 
notified.
    (c) Foreign Law--A party who intends to raise an issue 
concerning the law of a foreign country shall give notice in its 
pleadings or other reasonable written notice. The Board, in 
determining foreign law, may consider any relevant material or 
source, including testimony, whether or not submitted by a party or 
admissible under Rules 10, 11, or 13. The determination of foreign 
law shall be treated as a ruling on a question of law.
    (d) Further Pleadings--The Board upon its own initiative or upon 
motion may order a party to make a more definite statement of the 
complaint or answer, or to reply to an answer. The Board may permit 
either party to amend its pleading upon conditions fair to both 
parties. When issues within the proper scope of the appeal, but not 
raised by the pleadings, are tried by express or implied consent of 
the parties, or by permission of the Board, they shall be treated in 
all respects as if they had been raised therein. In such instances, 
motions to amend the pleadings to conform to the proof may be 
entered, but are not required. If evidence is objected to at a 
hearing on the ground that it is not within the issues raised by the 
pleadings, it may be admitted within the proper scope of the appeal, 
provided however, that the objecting party may be granted an 
opportunity to meet such evidence.

Rule 7. Motions

    (a) Motions Generally--The Board may entertain and rule upon 
motions and may defer ruling as appropriate. The Board will rule on 
motions so as to secure, to the fullest extent practicable, the 
informal, expeditious, and inexpensive resolution of appeals. All 
motions should be filed as separate documents with an appropriate 
heading describing the motion. Oral argument on motions is subject 
to the discretion of the Board.
    (b) Jurisdictional Motions--Any motion addressed to the 
jurisdiction of the Board should be promptly filed. An evidentiary 
hearing to address disputed jurisdictional facts will be afforded on 
application of either party or by order of the Board. The Board may 
defer its decision on the motion pending hearing on the merits. The 
Board may at any time and on its own initiative raise the issue of 
its jurisdiction, and shall do so by an appropriate order, affording 
the parties an opportunity to be heard thereon.
    (c) Summary Judgment Motions--
    (1) To facilitate disposition of such a motion, the parties 
should adhere to the following procedures. Where the parties agree 
that disposition by summary judgment or partial summary judgment is 
appropriate, they may file a stipulation of all material facts 
necessary for the Board to rule on the motion. Otherwise, the moving 
party should file with its motion a ``Statement of Undisputed 
Material Facts,'' setting forth the claimed undisputed material 
facts in separate, numbered paragraphs. The non-moving party should 
file a ``Statement of Genuine Issues of Material Fact,'' responding 
to each numbered paragraph proposed, demonstrating, where 
appropriate, the existence of material facts in dispute and if 
appropriate propose additional facts. The moving party and the non-
moving party should submit a memorandum of law supporting or 
opposing summary judgment.
    (2) In deciding motions for summary judgment, the Board looks to 
Rule 56 of the Federal Rules of Civil Procedure for guidance. The 
parties should explicitly state and support by specific evidence all 
facts and legal arguments necessary to sustain a party's position. 
Each party should cite to the record and attach any additional 
evidence upon which it relies (e.g., affidavits, declarations, 
excerpts from depositions, answers to interrogatories, admissions). 
The Board may accept a fact properly proposed and supported by one 
party as undisputed, unless the opposing party properly responds and 
establishes that it is in dispute.
    (d) Response to Motions--A non-moving party has 30 days from 
receipt of a motion to file its response, unless a different period 
is ordered by the Board. A moving party has 30 days from receipt of 
a non-moving party's response to file a reply, unless a different 
period is ordered by the Board.

Rule 8. Discovery

    (a) General Policy and Protective Orders--The parties are 
encouraged to engage in voluntary discovery procedures. Within 45 
days after the pleadings have been filed, the parties must confer 
concerning each party's discovery needs, including the scheduling of 
discovery and the production of electronically stored information. 
Absent stipulation or a Board order, no discovery may be served 
prior to this conference. Any motion pertaining to a discovery 
dispute shall include a statement that the movant has in good faith 
attempted to resolve the discovery dispute without involvement of 
the Board. In connection with any discovery procedure, the Board may 
issue orders to protect a party or person from annoyance, 
embarrassment, or undue burden or expense. Those orders may include 
limitations on the scope, method, time, and place for discovery, and 
provisions for governing the disclosure of information or documents. 
Any discovery under this Rule shall be subject to the provisions of 
Rule 16 with respect to sanctions.
    (b) Depositions--When Permitted--Subject to paragraph (a) of 
this Rule, a party may take, or the Board may upon motion order the 
taking of, testimony of any person by deposition upon oral 
examination or written interrogatories before any officer authorized 
to administer oaths at the place of examination, for use as evidence 
or for

[[Page 42219]]

purpose of discovery. The Board expects the parties to make persons 
under their control available for deposition. The motion for an 
order shall specify whether the purpose of the deposition is 
discovery or for use as evidence.
    (1) Depositions--Orders--The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing 
such agreement, governed by order of the Board.
    (2) Depositions--Use as Evidence--No testimony taken by 
deposition shall be considered as part of the evidence in the 
hearing of an appeal until such testimony is offered and received in 
evidence at such hearing. It will not ordinarily be received in 
evidence if the deponent can testify at the hearing. The deposition 
may be used to contradict or impeach the testimony of the deponent 
given at a hearing. In cases submitted on the record, the Board may 
receive depositions to supplement the record.
    (3) Depositions--Expenses--Each party shall bear its own 
expenses associated with the taking of any deposition, absent an 
agreement by the parties or a Board order to the contrary.
    (4) Depositions--Subpoenas--Where appropriate, a party may 
request the issuance of a subpoena under the provisions of Rule 22.
    (c) Interrogatories, Requests for Admissions, Requests for 
Production--Subject to paragraph (a) of this Rule, a party may 
serve, or the Board may upon motion order:
    (1) Written interrogatories to be answered separately in 
writing, signed under oath and answered or objected to within 45 
days after service;
    (2) A request for the admission of specified facts and/or of the 
authenticity of any documents, to be answered or objected to within 
45 days after service, the factual statements and/or the 
authenticity of the documents to be deemed admitted upon failure of 
a party to respond to the request; and
    (3) A request for the production, inspection, and copying of any 
documents, electronic or otherwise, or objects, not privileged, 
which reasonably may lead to the discovery of admissible evidence, 
to be answered or objected to within 45 days after service. The 
Board may allow a shorter or longer time.

Rule 9. Pre-Hearing or Pre-Submission Conference

    The Board may, upon its own initiative, or upon the request of 
either party, arrange a conference or order the parties to appear 
before an Administrative Judge or examiner for a conference to 
address any issue related to the prosecution of the appeal.

Rule 10. Hearings

    (a) Where and When Held--Hearings will be held at such times and 
places determined by the Board to best serve the interests of the 
parties and the Board.
    (b) Unexcused Absence--The unexcused absence of a party at the 
time and place set for hearing will not be occasion for delay. In 
the event of such absence, the hearing will proceed and the 
evidentiary record will consist solely of the evidence of record at 
the conclusion of the hearing, except as ordered otherwise by the 
Board.
    (c) Nature of Hearings--Hearings shall be as informal as may be 
reasonable and appropriate under the circumstances. The parties may 
offer such evidence as they deem appropriate and as would be 
admissible under the Federal Rules of Evidence or in the sound 
discretion of the presiding Administrative Judge or examiner. The 
Federal Rules of Evidence are not binding on the Board but may guide 
the Board's rulings. The parties may stipulate the testimony that 
would be given by a witness if the witness were present. The Board 
may require evidence in addition to that offered by the parties.
    (d) Examination of Witnesses--Witnesses will be examined orally 
under oath or affirmation, unless the presiding Administrative Judge 
or examiner shall otherwise order. If the testimony of a witness is 
not given under oath or affirmation, the Board may advise the 
witness that his or her testimony may be subject to any provision of 
law imposing penalties for knowingly making false representations in 
connection with claims.
    (e) Interpreters--In appropriate cases, the Board may order that 
an interpreter be used. An interpreter must be qualified and must be 
placed under oath or affirmation to give a complete and true 
translation.
    (f) Transcripts--Testimony and argument at hearings will be 
reported verbatim, unless the Board otherwise orders. The Board will 
contract for a reporter. No other recordings of the proceedings will 
be made.

Rule 11. Submission Without a Hearing

    (a) Either party may elect to waive a hearing and to submit its 
case upon the record. Submission of a case without hearing does not 
relieve the parties from the necessity of proving the facts 
supporting their allegations or defenses. Affidavits, declarations, 
depositions, admissions, answers to interrogatories, and 
stipulations may be employed in addition to the Rule 4 file if moved 
and accepted into evidence. Such submissions may be supplemented by 
briefs. The Board may designate, with notice to the parties, any 
document to be made part of the record.
    (b) As appropriate, the Board may also rely on pleadings, 
prehearing conference memoranda, orders, briefs, stipulations and 
other documents contained in the Board's file.
    (c) Except as the Board may otherwise order, no evidence will be 
received after notification by the Board that the record is closed.
    (d) The weight to be given to any evidence will rest within the 
discretion of the Board. The Board may require either party, with 
appropriate notice to the other party, to submit additional evidence 
on any matter relevant to the appeal.
    (e) The record will at all reasonable times be available for 
inspection by the parties at the offices of the Board.

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

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

    (a) In appeals where the amount in dispute is $50,000 or less, 
or in the case of a small business concern (as defined in the Small 
Business Act and regulations under that Act), $150,000 or less, the 
appellant may elect to have the appeal processed under a Small 
Claims (Expedited) procedure requiring decision of the appeal, 
whenever possible, within 120 days after the Board receives written 
notice of the appellant's election to utilize this procedure. The 
details of this procedure appear in section 12.2 of this Rule. An 
appellant may elect the Accelerated procedure rather than the Small 
Claims (Expedited) procedure for any appeal where the amount in 
dispute is $50,000 or less.
    (b) In appeals where the amount in dispute is $100,000 or less, 
the appellant may elect to have the appeal processed under an 
Accelerated procedure requiring decision of the appeal, whenever 
possible, within 180 days after the Board receives written notice of 
the appellant's election to utilize this procedure. The details of 
this procedure appear in section 12.3 of this Rule.
    (c) The appellant's election of either the Small Claims 
(Expedited) procedure or the Accelerated procedure shall be made by 
written notice within 60 days after receipt of notice of docketing, 
unless such period is extended by the Board for good cause. The 
election, once made, may not be changed or withdrawn except with 
permission of the Board and for good cause.
    (d) The 45-day conference required by Rule 8(a) does not apply 
to Rule 12 appeals.

12.2 Small Claims (Expedited) Procedure

    (a) In appeals proceeding under the Small Claims (Expedited) 
procedure, the following time periods shall apply:
    (1) Within 10 days from the Government's receipt of the 
appellant's notice of election of the Small Claims (Expedited) 
procedure, the Government shall send the Board a copy of the 
contract, the contracting officer's final decision, and the 
appellant's claim letter or letters, if any. Any other documents 
required under Rule 4 shall be submitted in accordance with times 
specified in that Rule unless the Board otherwise directs.
    (2) Within 15 days after the Board has acknowledged receipt of 
the appellant's notice of election, the assigned Administrative 
Judge should take the following actions, if feasible, in a pre-
hearing conference:
    (i) Identify and simplify the issues;
    (ii) Establish a simplified procedure, including discovery, 
appropriate to the particular appeal involved;
    (iii) Determine whether either party elects a hearing, and if 
so, fix a time and place therefor; and
    (iv) Establish an expedited schedule for the timely resolution 
of the appeal.
    (b) Pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct a 
hearing, or if no hearing is elected, to close the record on a date 
that will allow the

[[Page 42220]]

timely issuance of the decision. The Board may shorten time periods 
prescribed or allowed under these Rules as necessary to enable the 
Board to decide the appeal within the 120-day period.
    (c) Written decisions by the Board in appeals processed under 
the Small Claims (Expedited) procedure will be short and will 
contain only summary findings of fact and conclusions. Decisions 
will be rendered for the Board by a single Administrative Judge. If 
there has been a hearing, the Administrative Judge presiding at the 
hearing may at the conclusion of the hearing and after entertaining 
such oral argument as deemed appropriate, render on the record oral 
summary findings of fact, conclusions, and a decision of the appeal. 
Whenever such an oral decision is rendered, the Board will 
subsequently furnish the parties an authenticated copy of such oral 
decision for record and payment purposes and to establish the 
starting date for the period for filing a motion for reconsideration 
under Rule 20.
    (d) A decision under Rule 12.2 shall have no value as precedent, 
and in the absence of fraud, shall be final and conclusive and may 
not be appealed or set aside.

12.3 Accelerated Procedure

    (a) In appeals proceeding under the Accelerated procedure, the 
parties are encouraged, to the extent possible consistent with 
adequate presentation of their factual and legal positions, to waive 
pleadings, discovery, and briefs. The Board may shorten time periods 
prescribed or allowed under these Rules as necessary to enable the 
Board to decide the appeal within the 180-day period.
    (b) Within 30 days after the Board has acknowledged receipt of 
the appellant's notice of election, the assigned Administrative 
Judge should take the following actions, if feasible, in a pre-
hearing conference:
    (1) Identify and simplify the issues;
    (2) Establish a simplified procedure, including discovery, 
appropriate to the particular appeal involved;
    (3) Determine whether either party elects a hearing, and if so, 
fix a time and place therefor; and
    (4) Establish an accelerated schedule for the timely resolution 
of the appeal.
    (c) Written decisions by the Board in appeals processed under 
the Accelerated procedure will normally be short and contain only 
summary findings of fact and conclusions. Decisions will be rendered 
for the Board by a single Administrative Judge with the concurrence 
of a Vice Chairman, or by a majority among these two and the 
Chairman in case of disagreement.

12.4 Motions for Reconsideration in Rule 12 Appeals

    Motions for reconsideration of appeals decided under either the 
Small Claims (Expedited) procedure or the Accelerated procedure need 
not be decided within the original 120-day or 180-day limit, but all 
such motions will be processed and decided promptly so as to be 
consistent with the intent of this Rule.

Rule 13. Settling the Record in Appeals With a Hearing

    (a) The record upon which the Board's decision will be rendered 
consists of the documents admitted under Rule 4, the documents 
admitted into evidence as hearing exhibits, together with the 
hearing transcript. The Board may designate with notice to the 
parties, any document to be made part of the record.
    (b) As appropriate, the Board may also rely on pleadings, pre-
hearing conference memoranda, orders, briefs, stipulations, and 
other documents contained in the Board's file.
    (c) Except as the Board may otherwise order, no evidence will be 
received after completion of an oral hearing.
    (d) The weight to be given to any evidence will rest within the 
discretion of the Board. The Board may require either party, with 
appropriate notice to the other party, to submit additional evidence 
on any matter relevant to the appeal.
    (e) The record will at all reasonable times be available for 
inspection by the parties at the offices of the Board.

Rule 14. Briefs

    (a) Pre-Hearing Briefs--The Board may require the parties to 
submit pre-hearing briefs. If the Board does not require pre-hearing 
briefs, either party may, upon appropriate and sufficient notice to 
the other party, furnish a pre-hearing brief to the Board.
    (b) Post-Hearing Briefs--Post-hearing briefs may be submitted 
upon such terms as may be directed by the presiding Administrative 
Judge or examiner at the conclusion of the hearing.

Rule 15. Representation

    (a) An individual appellant may represent his or her interests 
before the Board; a corporation may be represented by one of its 
officers; and a partnership or joint venture by one of its members; 
or any of these by an attorney at law duly licensed in any state, 
commonwealth, territory, the District of Columbia, or in a foreign 
country. Anyone representing an appellant shall file a written 
notice of appearance with the Board.
    (b) The Government shall be represented by counsel. Counsel for 
the Government shall file a written notice of appearance with the 
Board.

Rule 16. Sanctions

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

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

    Whenever the record discloses the failure of either party to 
file documents required by these Rules, respond to notices or 
correspondence from the Board, comply with orders of the Board, or 
otherwise indicates an intention not to continue the prosecution or 
defense of an appeal, the Board may, in the case of a default by the 
appellant, issue an order to show cause why the appeal should not be 
dismissed with prejudice for failure to prosecute. In the case of a 
default by the Government, the Board may issue an order to show 
cause why the Board should not act thereon pursuant to Rule 16. If 
good cause is not shown, the Board may take appropriate action.

Rule 18. Suspensions; Dismissal Without Prejudice

    (a) The Board may suspend the proceedings by agreement of the 
parties for settlement discussions, or for good cause shown.
    (b) In certain cases, appeals docketed before the Board are 
required to be placed in a suspense status and the Board is unable 
to proceed with disposition thereof for reasons not within the 
control of the Board. Where the suspension has continued, or may 
continue, for an inordinate length of time, the Board may dismiss 
such appeals from its docket for a period of time without prejudice 
to their restoration. Unless either party or the Board moves to 
reinstate the appeal within the time period set forth in the 
dismissal order, or if no time period is set forth, within one year 
from the date of the dismissal order, the dismissal shall be deemed 
to be with prejudice.

Rule 19. Decisions

    (a) Decisions of the Board will be made in writing and 
authenticated copies of the decision will be sent simultaneously to 
both parties. All orders and decisions, except those as may be 
required by law to be held confidential, will be available to the 
public. Decisions of the Board will be made solely upon the record.
    (b) Any monetary award shall be promptly paid.
    (c) In awards that may be paid from the Judgment Fund, 31 U.S.C. 
1304, the Recorder will forward the required forms to each party 
with the decision. If the parties do not contemplate an appeal or 
motion for reconsideration, they will execute the forms indicating 
that no judicial review will be sought. The Government agency will 
forward the required forms with a copy of the decision to the 
Department of the Treasury for certification of payment.
    (d) When the parties settle an appeal in favor of the appellant, 
they may file with the Board a stipulation setting forth the amount 
of the settlement due to the appellant. By joint motion, the parties 
may request that the Board issue a decision in the nature of a 
consent judgment, awarding the stipulated amount to the appellant. 
These decisions will be processed in accordance with paragraph (c) 
of this Rule.
    (e) After a decision has become final the Board may, upon 
request of a party and after notice to the other party, grant the 
withdrawal of original exhibits, or any part thereof. The Board may 
require the substitution of true copies of exhibits or any part 
thereof as a condition of granting permission for such withdrawal.

Rule 20. Motion for Reconsideration

    A motion for reconsideration may be filed by either party. It 
shall set forth specifically the grounds relied upon to grant the 
motion. The motion must be filed within 30 days from the date of the 
receipt of a copy of the

[[Page 42221]]

decision of the Board by the party filing the motion. An opposing 
party must file any cross-motion for reconsideration within 30 days 
from its receipt of the motion for reconsideration. Extensions in 
the period to file a motion will not be granted. Extensions to file 
a memorandum in support of a timely-filed motion may be granted.

Rule 21. Remand from Court

    Whenever any Court remands an appeal to the Board for further 
proceedings, each of the parties shall, within 30 days of receipt of 
such remand, submit a report to the Board recommending procedures to 
be followed so as to comply with the Court's remand. The Board will 
consider the reports and enter an order governing the remanded 
appeal.

Rule 22. Subpoenas

    (a) Voluntary Cooperation--Each party is expected:
    (1) To cooperate and make available witnesses and evidence under 
its control as requested by the other party without issuance of a 
subpoena, and
    (2) To secure voluntary attendance of desired third-party 
witnesses and production of desired third-party books, records, 
documents, or tangible things whenever possible.
    (b) General--Upon written request of either party, or on his or 
her own initiative, an Administrative Judge may issue a subpoena 
requiring:
    (1) Testimony at a deposition--The deposing of a witness in the 
city or county where the witness resides or is employed or transacts 
business in person, or at another location convenient for the 
witness that is specifically determined by the Board;
    (2) Testimony at a hearing--The attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of books and records--The production by the 
witness at the deposition or hearing of books and records (including 
electronically stored information and other tangible things) 
designated in the subpoena.
    (c) Request for Subpoena--
    (1) A request for subpoena shall normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance 
of a witness at a deposition is sought; or
    (ii) 30 days before a scheduled hearing where the attendance of 
a witness at a hearing is sought.
    (2) The Board may honor a request for subpoena not made within 
the time limitations set forth in paragraph (c)(1) of this Rule.
    (3) A request for a subpoena shall state the reasonable scope 
and general relevance to the case of the testimony and of any books 
and records sought. The Board may require resubmission of a request 
that does not provide this information.
    (d) Requests to Quash or Modify--Upon written request by the 
person subpoenaed or by a party, made within 10 days after service 
but in any event not later than the time specified in the subpoena 
for compliance, the Board may quash or modify the subpoena if it is 
unreasonable or oppressive or for other good cause shown, or require 
the person in whose behalf the subpoena was issued to advance the 
reasonable cost of producing subpoenaed books and papers. Where 
circumstances require, the Board may act upon such a request at any 
time after a copy of the request has been served upon the opposing 
party.
    (e) Form of Subpoena--
    (1) Every subpoena shall state the name of the Board and the 
caption of the appeal, and shall command each person to whom it is 
directed to attend and give testimony, and if appropriate, to 
produce specified books and records at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge will sign the subpoena, enter the name of the 
witness and may otherwise leave it blank. The party to whom the 
subpoena is issued shall complete the subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory may be issued and served under the circumstances and in the 
manner provided in 28 U.S.C. 1781.
    (f) Service--
    (1) The party requesting issuance of a subpoena shall arrange 
for service.
    (2) A subpoena requiring the attendance of a witness at a 
deposition or hearing may be served in any state, commonwealth, 
territory, or the District of Columbia. A subpoena may be served by 
a United States marshal or deputy marshal, or by any other person 
who is not a party and not less than 18 years of age. Service of a 
subpoena upon a person named therein shall be made by personally 
delivering a copy to that person and tendering the fees for one 
day's attendance and the mileage provided by 28 U.S.C. 1821 or other 
applicable law. However, where the subpoena is issued on behalf of 
the Government, payment need not be tendered in advance of 
attendance.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and 
of the officer who serves the subpoena. The failure to make payment 
of such charges on demand may be deemed by the Board as a sufficient 
ground for striking such evidence as the Board deems appropriate.
    (g) Contumacy or Refusal to Obey a Subpoena--In case of 
contumacy or refusal to obey a subpoena by a person who resides, is 
found, or transacts business within the jurisdiction of a United 
States District Court, the Board may apply to the Court through the 
Attorney General of the United States for an order requiring the 
person to appear before the Board to give testimony or produce 
evidence or both. Any failure of any such person to obey the order 
of the Court may be punished by the Court as a contempt thereof.

Rule 23. Ex Parte Communications

    No member of the Board or of the Board's staff shall entertain, 
nor shall any person directly or indirectly involved in an appeal, 
submit to the Board or the Board's staff, ex parte, any evidence, 
explanation, analysis, or advice, whether written or oral, regarding 
any matter at issue in an appeal. This Rule does not apply to 
consultation among Board members or its staff or to ex parte 
communications concerning the Board's administrative functions or 
procedures.

Rule 24. Effective Date

    These rules and addendums are applicable to appeals processed 
under the Contract Disputes Act (CDA), 41 U.S.C. 7101-7109, and 
other appeals to the extent consistent with law. They apply to all 
appeals filed on or after the date of final publication in the 
Federal Register, and to those appeals filed before that date, 
unless that application is inequitable or unfair.

ADDENDUM I

EQUAL ACCESS TO JUSTICE ACT PROCEDURES

    (a) Definitions--
    For the purpose of these procedures:
    (1) ``Equal Access to Justice Act,'' or ``EAJA,'' means 5 U.S.C. 
504, as amended;
    (2) ``Board'' means the Armed Services Board of Contract 
Appeals; and
    (3) ``Contract Disputes Act'' means the Contract Disputes Act, 
41 U.S.C. 7101-7109 (CDA).
    (b) Scope of procedures--These procedures are intended to assist 
the parties in the processing of EAJA applications for award of fees 
and other expenses incurred in connection with appeals pursuant to 
the CDA.
    (c) Eligibility of applicants--
    (1) To be eligible for an EAJA award, an applicant must be a 
party appellant that has prevailed in a CDA appeal before the Board 
and must be one of the following:
    (i) An individual with a net worth which did not exceed 
$2,000,000 at the time the appeal was filed; or
    (ii) Any owner of an unincorporated business, or any 
partnership, corporation, association, unit of local Government, or 
organization, the net worth of which does not exceed $7,000,000 and 
which does not have more than 500 employees; except:
    (A) Certain charitable organizations or cooperative 
associations; and
    (B) For the purposes of 5 U.S.C. 504(a)(4), a small entity as 
defined in 5 U.S.C. 601, need not comply with any net worth 
requirement (see 5 U.S.C. 504(b)(1)(B)).
    (2) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
underlying CDA appeal was filed with the Board.
    (d) Standards of awards--A prevailing eligible applicant shall 
receive an award of fees and expenses incurred in connection with a 
CDA appeal, unless the position of the Government over which the 
applicant prevailed was substantially justified, or if special 
circumstances make the award unjust.
    (e) Allowable fees and other expenses--
    (1) Fees and other expenses must be reasonable. Awards will be 
based upon the prevailing market rates, subject to paragraph (e)(2) 
of this section, for the kind and quality of services furnished by 
attorneys, agents, and expert witnesses.
    (2) No award for the fee of an attorney or agent may exceed $125 
per hour. No expert witness shall be compensated at a rate in excess 
of the highest rate of compensation for expert witnesses paid by the 
agency involved.

[[Page 42222]]

    (3) The reasonable cost of any study, analysis, engineering 
report, test, or project, prepared on behalf of a party may be 
awarded, to the extent that the study or other matter was necessary 
in connection with the appeal and the charge for the service does 
not exceed the prevailing rate for similar services.
    (f) Time for filing of applications--An application may be filed 
after an appellant has prevailed in the CDA appeal within 30 days 
after the Board's disposition of the appeal has become final.
    (g) Application contents--
    (1) An EAJA application shall comply with each of the following:
    (i) Show that the applicant is a prevailing party;
    (ii) Show that the applicant is eligible to receive an award;
    (iii) Allege that the position of the government was not 
substantially justified; and
    (iv) Show the amount of fees and other expenses sought, 
including an itemized statement thereof.
    (2) An original and one copy of the application and exhibits 
should be filed with the Board. The applicant will forward one copy 
to the Government.
    (3) When a compliant application has been timely filed, the 
Board, in order to obtain more detailed information, may require 
supplementation of the application.
    (h) Net worth exhibit--Each applicant for which a determination 
of net worth is required under the EAJA should provide with its 
application a detailed net worth exhibit showing the net worth of 
the applicant when the CDA appeal was filed. The exhibit may be in 
any form convenient to the applicant that provides full disclosure 
of assets, liabilities, and net worth.
    (i) Fees and other expenses exhibit--The application should be 
accompanied by a detailed fees and other expenses exhibit fully 
documenting the fees and other expenses, including the cost of any 
study, analysis, engineering report, test, or project, for which an 
award is sought. The date and a description of all services rendered 
or costs incurred should be indicated. A separate itemized statement 
should be submitted for each professional firm or individual whose 
services are covered by the application showing the hours spent in 
connection with the CDA appeal by each individual, a description of 
the particular services performed by specific date, the rate at 
which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total 
amount paid or payable by the applicant or by any other person or 
entity for the services provided. The Board may require the 
applicant to provide vouchers, receipts, or other substantiation for 
any expenses sought.
    (j) Answer to application--
    (1) Within 30 days after receipt by the Government of an 
application, the Government may file an answer. Unless the 
Government requests an extension of time for filing or files a 
statement of intent to negotiate under paragraph (2) below, failure 
to file an answer within the 30-day period may be treated by the 
Board at its discretion as a general denial to the application on 
behalf of the Government.
    (2) If the Government and the applicant believe that the matters 
raised in the application can be resolved by mutual agreement, they 
may jointly file a statement of intent to negotiate a settlement. 
Filing of this statement will extend the time for filing an answer 
for an additional 30 days. Further extensions may be requested by 
the parties.
    (3) The answer will explain in detail any objections to the 
award requested and identify the facts relied upon in support of the 
Government's position.
    (4) An original and one copy of the answer should be filed with 
the Board. The Government will forward one copy to the applicant.
    (k) Reply--Within 15 days after receipt of an answer, the 
applicant may file a reply. An original and one copy of the reply 
will be filed with the Board. The applicant will forward one copy to 
the Government.
    (l) Award proceedings--
    (1) The Board may enter an order prescribing the procedure to be 
followed or take such other action as may be deemed appropriate 
under the EAJA. Further proceedings will be held only when necessary 
for full and fair resolution of the issues arising from the 
application.
    (2) A request that the Board order further proceedings under 
this paragraph will describe the disputed issues, explain why the 
additional proceedings are deemed necessary to resolve the issues 
and specifically identify any information sought and its 
relationship to the disputed issues.
    (m) Evidence--
    (1) Decisions on the merits--When a CDA appeal is decided on the 
merits, other than by a consent judgment, the record relating to 
whether the Government's position under the EAJA was substantially 
justified will be limited to the record in the CDA appeal. Evidence 
relevant to other issues in the award proceeding may be submitted.
    (2) Other dispositions--When a CDA appeal is settled, or decided 
by a consent judgment, either party in proceedings under the EAJA 
may, for good cause shown, supplement the record established in the 
CDA appeal with affidavits and other supporting evidence relating to 
whether the position of the agency was substantially justified or 
other issues in the award proceeding.
    (n) Decision--Decisions under the EAJA will be rendered by the 
Administrative Judge or a majority of the judges who would have 
participated in a motion for reconsideration of the underlying CDA 
appeal. The decision of the Board will include written findings and 
conclusions and the basis therefor. The Board's decision on an 
application for fees and other expenses under the EAJA will be the 
final administrative decision regarding the EAJA application.
    (o) Motions for reconsideration--Either party may file a motion 
for reconsideration. Motions for reconsideration must be filed 
within 30 days of receipt of the Board's EAJA decision. Extensions 
in the period to file a motion will not be granted. Extensions to 
file a memorandum in support of a timely filed motion may be 
granted.
    (p) Payment of Awards--The Board's EAJA awards will be paid 
directly by the contracting agency over which the applicant 
prevailed in the underlying CDA appeal.

ADDENDUM II

Alternative Methods of Dispute Resolution

    1. The Contract Disputes Act (CDA), 41 U.S.C. 7105(g)(1), states 
that boards of contract appeals ``shall . . . to the fullest extent 
practicable provide informal, expeditious, and inexpensive 
resolution of disputes.'' Resolution of a dispute at the earliest 
stage feasible, by the fastest and least expensive method possible, 
benefits both parties. To that end, the parties are encouraged to 
consider Alternative Dispute Resolution (ADR) procedures for pre-
claim and pre-final decision matters, as well as appeals pending 
before the Board. The Board may also conduct ADRs for any Federal 
agency. However, if the matter is not pending before the Board under 
its CDA jurisdiction, any settlement may not be paid out of the 
Judgment Fund.
    2. The ADR methods described in this Addendum are intended to 
suggest techniques that have worked in the past. Any appropriate 
method that brings the parties together in settlement, or partial 
settlement, of their disputes is a good method. The ADR methods 
listed are not intended to preclude the parties' use of other ADR 
techniques that do not require the Board's participation, such as 
settlement negotiations, fact-finding conferences or procedures, 
mediation, or minitrials not involving use of the Board's personnel. 
Any method, or combination of methods, including one that will 
result in a binding decision, may be selected by the parties without 
regard to the dollar amount in dispute.
    3. The parties must jointly request ADR procedures at the Board. 
The request must be approved by the Board. The Board may also 
schedule a conference to explore the desirability and selection of 
an ADR method and related procedures. If an ADR involving the 
Board's participation is requested and approved by the Board, a 
Neutral will be appointed. If an Administrative Judge has already 
been assigned to an appeal, the same judge will normally be assigned 
to be the Neutral in an ADR. If an Administrative Judge has not yet 
been assigned to the appeal, or if the subject of the ADR is a 
matter pending before the contracting officer prior to any appeal, 
the Board will appoint an Administrative Judge to be the Neutral. In 
such instances, as well as situations in which the parties prefer 
that an assigned Administrative Judge not be appointed to serve as 
the Neutral, the parties may submit a list of at least three 
preferred Administrative Judges and the Board will endeavor to 
accommodate their preferences.
    4. To facilitate full, frank and open discussion and 
presentations, any Neutral who has participated in a non-binding ADR 
procedure that has failed to resolve the underlying dispute will be 
recused from further participation in the matter unless the parties 
expressly agree otherwise in writing and the Board concurs. Further, 
the recused Neutral will not discuss the merits of the dispute or 
substantive matters involved in

[[Page 42223]]

the ADR proceedings with other Board personnel.
    5. Written material prepared specifically for use in an ADR 
proceeding, oral presentations made at an ADR proceeding, and all 
discussions in connection with such proceedings between the parties 
and the Neutral are confidential and, unless otherwise specifically 
agreed by the parties, inadmissible as evidence in any pending or 
future Board proceeding involving the parties or matter in dispute. 
However, evidence otherwise admissible before the Board is not 
rendered inadmissible because of its use in the ADR proceeding.
    6. The ADR method and the procedures and requirements 
implementing the ADR method will be prescribed by the written 
agreement of the parties and approved by the Board. ADR methods can 
be used successfully at any stage of the litigation.
    7. The following are examples of ADR methods commonly used at 
the Board:
    (a) Nonbinding--
    Mediations: A Neutral is an Administrative Judge who will not 
normally hear or have any formal or informal decision-making 
authority in the matter and who is appointed for the purpose of 
facilitating settlement. In many circumstances, settlement can be 
fostered by a frank, in-depth discussion of the strengths and 
weaknesses of each party's position with the Neutral. The agenda for 
meetings with the Neutral will be flexible to accommodate the 
requirements of the case. To further the settlement effort, the 
Neutral may meet with the parties either jointly or individually. A 
Neutral's recommendations are not binding on the parties. When this 
method is selected, the ADR agreement must contain a provision in 
which the parties and counsel agree not to subpoena the Neutral in 
any legal action or administrative proceeding of any kind to produce 
any notes or documents related to the ADR proceeding or to testify 
concerning any such notes or documents or concerning his/her 
thoughts or impressions.
    (b) Binding--
    Summary Proceeding With Binding Decision: A summary proceeding 
with binding decision is a procedure whereby the resolution of the 
appeal is expedited and the parties try their appeal informally 
before an Administrative Judge. A binding ``bench'' decision may be 
issued upon conclusion of the proceeding, or a binding summary 
written decision will be issued by the judge no later than ten days 
following the later of conclusion of the proceeding or receipt of a 
transcript. The parties must agree in the ADR agreement that all 
decisions, rulings, and orders by the Board under this method shall 
be final, conclusive, not appealable, and may not be set aside, 
except for fraud. All such decisions, rulings, and orders will have 
no precedential value. Pre-hearing, hearing, and post-hearing 
procedures and rules applicable to appeals generally will be 
modified or eliminated to expedite resolution of the appeal.
    (c) Other Agreed Methods--
    The parties and the Board may agree upon other informal methods, 
binding or nonbinding that are structured and tailored to suit the 
requirements of the individual case.
    8. The above-listed ADR procedures are intended to shorten and 
simplify the Board's more formalized procedures. Generally, if the 
parties resolve their dispute by agreement, they benefit in terms of 
cost and time savings and maintenance or restoration of amicable 
relations. The Board will not view the parties' participation in ADR 
proceedings as a sign of weakness. Any method adopted for dispute 
resolution depends upon both parties having a firm, good faith 
commitment to resolve their differences. Absent such intention, the 
best structured dispute resolution procedure is unlikely to be 
successful.

[FR Doc. 2014-17056 Filed 7-18-14; 8:45 am]
BILLING CODE 5001-06-P
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