11374 Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Proposed Rules 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

[Docket No. DARS–2014–0011] 

48 CFR Chapter 2 

Defense Federal Acquisition 

Regulation Supplement: Rules of the 

Armed Services Board of Contract 

Appeals (No DFARS Case) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

update the Rules of the Armed Services 

Board of Contract Appeals (ASBCA). 

The proposed rule revises and reorders 

the Board’s Rules for clarity and 

consistency and accounts for changes in 

technology, provides updated contact 

information, and adds two addendums. 

DATES: Comment date: Comments on the 

proposed rule should be submitted in 

writing to the addresses shown below 

on or before April 29, 2014, to be 

considered in the formation of a final 

rule. 

ADDRESSES: Submit comments 

identified by Docket No. DARS 2014– 

0011, using any of the following 

methods: 

Æ Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘Docket No. DARS 2014–0011’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘Docket No. DARS 

2014–0011.’’ Follow the instructions 

provided at the ‘‘Submit a Comment’’ 

screen. Please include your name, 

company name (if any), and ‘‘Docket 

No. DARS 2014–0011’’ on your attached 

document. 

Æ Email: asbca.recorder@mail.mil. 

Include Docket No. DARS 2014–0011 in 

the subject line of the message. 

Æ Fax: 703–681–8535. 

Æ Mail: Armed Services Board of 

Contract Appeals, Attn: Jeffrey Gardin, 

Skyline Six, Room 703, 5109 Leesburg 

Pike, Falls Church, VA 22041–3208. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Gardin, Deputy General Counsel, 

ASBCA, 703–681–8502, or Catherine 

Stanton, General Counsel, ASBCA, 703– 

681–8501; both at email address: 

asbca.recorder@mail.mil. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This proposed rule is being issued on 

behalf of Judge Paul Williams, 

Chairman, Armed Services Board of 

Contract Appeals. The rule proposes to 

amend the DFARS to update the Rules 

of the Armed Services Board of Contract 

Appeals at 48 CFR Chapter 2, Appendix 

A, Part 2. It revises and reorders the 

Board’s Rules for clarity and 

consistency and accounts for changes in 

technology, removes contradictions, 

resolves ambiguities, provides updated 

contact information to allow for some 

electronic communication by litigants 

appearing before the Board, and adds 

two addendums: Equal Access to Justice 

Act Procedures and Alternative Methods 

of Dispute Resolution, previously not 

formally contained in the Rules. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule revises the Rules of the 

Armed Services Board of Contract 

Appeals to improve clarity and to 

remove ambiguities and contradictions. 

Therefore, an initial regulatory 

flexibility analysis has not been 

performed. DoD invites comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD will also consider comments from 

small entities concerning the existing 

regulations in subparts affected by this 

rule in accordance with 5 U.S.C. 610. 

Interested parties must submit such 

comments separately and should cite 5 

U.S.C 610 (Rules of the Armed Services 

Board of Contract Appeals), in 

correspondence. 

IV. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR, Chapter 2, 

Appendix A, Part 2 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR chapter 2 is 

amended as follows: 

■ 1. The authority citation for 48 CFR 

chapter 2 continues to read as follows: 

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

chapter 1. 

CHAPTER 2—DEFENSE ACQUISITION 

REGULATIONS SYSTEM, DEPARTMENT OF 

DEFENSE 

■ 2. Appendix A to Chapter 2 is 

amended by revising Part 2—Rules to 

read as follows: 

Appendix A to Chapter 2—Armed 

Services Board of Contract Appeals 

Armed Services Board of Contract 

Appeals 

Part 2—Rules 

Approved 15 July 1963 

Revised 1 May 1969 

Revised 1 September 1973 

Revised 30 June 1980 

Revised 11 May 2011 

Revised [DATE] 

Preface 

I. Jurisdiction for Considering Appeals 

The Armed Services Board of Contract 

Appeals (referred to herein as the Board) has 

jurisdiction to decide any appeal from a final 

decision of a contracting officer, pursuant to 

the Contract Disputes Act, 41 U.S.C. 7101– 

7109, or its Charter, 48 CFR Chap. 2, App. 

A, Pt. 1, relative to a contract made by the 

Department of Defense, the Department of the 

Army, the Department of the Navy, the 

Department of the Air Force, the National 

Aeronautics and Space Administration or 

any other department or agency, as permitted 

by law. 

II. Location and Organization of the Board 

(a) The Board’s address is Skyline Six, 

Room 703, 5109 Leesburg Pike, Falls Church, 

VA 22041–3208; telephone 703–681–8500 


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(general), 703–681–8502 (Recorder). The 

Board’s facsimile number is 703–681–8535. 

The Board’s Recorder’s email address is 

asbca.recorder@mail.mil. The Board’s Web 

site address is http://www.asbca.mil. 

(b) The Board consists of a Chairman, two 

or more Vice Chairmen, and other Members, 

all of whom are attorneys at law duly 

licensed by a state, commonwealth, territory, 

or the District of Columbia. Board Members 

are designated Administrative Judges. 

(c) There are a number of divisions of the 

Board, established by the Chairman in such 

manner as to provide for the most effective 

and expeditious handling of appeals. The 

Chairman and a Vice Chairman act as 

members of each division. Hearings may be 

held by an Administrative Judge or by a duly 

authorized examiner. Except for appeals 

processed under the expedited or accelerated 

procedure (see Rules 12.2(c) and 12.3(c)), the 

decision of a majority of a division 

constitutes the decision of the Board, unless 

the Chairman refers the appeal to the Board’s 

Senior Deciding Group (consisting of the 

Chairman, Vice Chairmen, all division heads, 

and the Judge who drafted the decision), in 

which event a decision of a majority of that 

group constitutes the decision of the Board. 

Appeals referred to the Senior Deciding 

Group are those of unusual difficulty or 

significant precedential importance, or that 

have occasioned serious dispute within the 

normal division decision process. 

(d) The Board will to the fullest extent 

practicable provide informal, expeditious, 

and inexpensive resolution of disputes. 

Table of Contents 

Rules of the Armed Services Board of 

Contract Appeals 

Rule 1 Appeals 

Rule 2 Filing Documents 

Rule 3 Service Upon Other Parties 

Rule 4 Preparation, Content, Organization, 

Forwarding, and Status of Appeal File 

Rule 5 Time, Computation, and Extensions 

Rule 6 Pleadings 

Rule 7 Motions 

Rule 8 Discovery 

Rule 9 Pre-Hearing or Pre-Submission 

Conference 

Rule 10 Hearings 

Rule 11 Submission Without a Hearing 

Rule 12 Optional Small Claims (Expedited) 

and Accelerated Procedures 

Rule 13 Settling the Record in Appeals with 

a Hearing 

Rule 14 Briefs 

Rule 15 Representation 

Rule 16 Sanctions 

Rule 17 Dismissal or Default for Failure to 

Prosecute or Defend 

Rule 18 Suspensions; Dismissal without 

Prejudice 

Rule 19 Decisions 

Rule 20 Motion for Reconsideration 

Rule 21 Remand from Court 

Rule 22 Subpoenas 

Rule 23 Ex Parte Communications 

Rule 24 Effective Date 

Addendums 

Addendum I: Equal Access to Justice Act 

Procedures 

Addendum II: Alternative Methods of 

Dispute Resolution 

RULES 

Rule 1. Appeals 

(a) Taking an Appeal—For appeals subject 

to the Contract Disputes Act, notice of an 

appeal shall be in writing and mailed or 

otherwise furnished to the Board within 90 

days from the date of receipt of a contracting 

officer’s decision. The appellant (contractor) 

should also furnish a copy of the notice of 

appeal to the contracting officer. For appeals 

not subject to the Contract Disputes Act, the 

contractor should refer to the Disputes clause 

in its contract for the time period in which 

it must file a notice of appeal. 

(1) Where the contractor has submitted a 

claim of $100,000 or less to the contracting 

officer and has requested a written decision 

within 60 days from receipt of the request, 

and the contracting officer has not provided 

a decision within that period, or where such 

a contractor request has not been made and 

the contracting officer has not issued a 

decision within a reasonable time, the 

contractor may file a notice of appeal as 

provided in paragraph (a) of this Rule, citing 

the failure of the contracting officer to issue 

a decision. 

(2) Where the contractor has submitted a 

properly certified claim over $100,000 to the 

contracting officer or has submitted a claim 

that involves no monetary amount, and the 

contracting officer, within 60 days of receipt 

of the claim, fails to issue a decision or fails 

to provide the contractor with a reasonable 

date by which a decision will be issued, and 

the contracting officer has failed to issue a 

decision within a reasonable time, the 

contractor may file a notice of appeal as 

provided in paragraph (a) of this Rule, citing 

the failure of the contracting officer to issue 

a decision. 

(3) A reasonable time shall be determined 

by taking into account such factors as the size 

and complexity of the claim and the 

adequacy of the information provided by the 

contractor to support the claim. 

(4) Where an appeal is before the Board 

pursuant to paragraph (a)(1) or (a)(2) of this 

Rule, the Board may, at its option, stay 

further proceedings pending issuance of a 

final decision by the contracting officer 

within such period of time as is determined 

by the Board. 

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

(a)(1) or (a)(2) of this Rule, the contractor may 

petition the Board to direct the contracting 

officer to issue a decision in a specified 

period of time as determined by the Board. 

(b) Contents of Notice of Appeal—A notice 

of appeal shall indicate that an appeal is 

being taken and should identify the contract 

by number, the department and/or agency 

involved in the dispute, the decision from 

which the appeal is taken, and the amount 

in dispute, if any. A copy of the contracting 

officer’s final decision, if any, should be 

attached to the notice of appeal. The notice 

of appeal should be signed by the appellant 

or by the appellant’s duly authorized 

representative or attorney. The complaint 

referred to in Rule 6 may be filed with the 

notice of appeal, or the appellant may 

designate the notice of appeal as a complaint, 

if it otherwise fulfills the requirements of a 

complaint. 

(c) Docketing of Appeal—When a notice of 

appeal has been received by the Board, it will 

be docketed. The Board will provide a 

written notice of docketing to the appellant 

and to the Government. 

Rule 2. Filing Documents 

(a) Documents may be filed with the Board 

by the following methods: 

(1) Governmental Postal Service— 

Documents may be filed via a governmental 

postal service. Filing occurs when the 

document, properly addressed and with 

sufficient postage, is transferred into the 

custody of the postal service. Contact the 

Recorder before submitting classified 

documents. 

(2) Courier—Documents may be filed via 

courier. Filing occurs when the document is 

delivered to the Board. Contact the Recorder 

before submitting classified documents. 

(3) Electronic Mail—Documents, except 

appeal files submitted pursuant to Rule 4, 

hearing exhibits, classified documents, and 

documents submitted in camera or under a 

protective order, may be filed via electronic 

mail (email). Email attachments should be in 

PDF format and the attachments may not 

exceed 10 megabytes total. The transmittal 

email should include the ASBCA docket 

number(s), if applicable, and the name of the 

appellant in the ‘‘Subject:’’ line. Filing occurs 

upon receipt by the Board’s email server. 

When a document is successfully filed via 

email, the document should not also be 

submitted by any other means, unless so 

directed by the Board. Submit emails to: 

asbca.recorder@mail.mil. 

(4) Facsimile Transmission—Documents, 

except appeal files submitted pursuant to 

Rule 4, hearing exhibits, classified 

documents, and documents submitted in 

camera or under a protective order, may be 

filed via facsimile (fax) machine. Due to 

equipment constraints, transmissions over 10 

pages should not be made absent Board 

permission. Filing occurs upon receipt by the 

Board. When a document is successfully filed 

via fax, the document should not also be 

submitted by any other means, unless so 

directed by the Board. 

(b) Copies to Opposing Party—The party 

filing any document with the Board will send 

a copy to the opposing party unless the Board 

directs otherwise, noting on the document 

filed with the Board that a copy has been so 

furnished. 

Rule 3. Service Upon Other Parties 

Documents may be served personally or by 

mail, addressed to the party upon whom 

service is to be made, unless the parties have 

agreed to an alternate means of service. 

Subpoenas shall be served as provided in 

Rule 22. 

Rule 4. Preparation, Content, Organization, 

Forwarding, and Status of Appeal File 

(a) Duties of the Government—Within 30 

days of notice that an appeal has been filed, 

the Government shall transmit to the Board 


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and the appellant an appeal file consisting of 

the documents the Government considers 

relevant to the appeal, including: 

(1) The decision from which the appeal is 

taken; 

(2) The contract, including pertinent 

specifications, amendments, plans, and 

drawings; 

(3) All correspondence between the parties 

relevant to the appeal, including any claim 

in response to which the decision was 

issued. 

The Government’s appeal file may be 

supplemented at such times as are fair and 

reasonable and as ordered by the Board. 

(b) Duties of the Appellant—Within 30 

days after receipt of a copy of the 

Government’s appeal file, the appellant shall 

transmit to the Board and the Government 

any documents not contained therein that the 

appellant considers relevant to the appeal. 

Appellant’s appeal file may be supplemented 

at such times as are fair and reasonable and 

as ordered by the Board. 

(c) Organization of Appeal File— 

Documents in the appeal file may be 

originals or legible copies, and shall be 

arranged in chronological order where 

practicable, numbered sequentially, tabbed, 

and indexed to identify the contents of the 

file. Any document without internal page 

numbers shall have page numbers added. All 

documents must be in English or include an 

English translation. Documents shall be 

submitted in 3-ring binders, with spines not 

wider than 3 inches wide, with labels 

identifying the name of the appeal, ASBCA 

number and tab numbers contained in each 

volume, on the front and spine of each 

volume. Each volume shall contain an index 

of the documents contained in the entire 

Rule 4 submission. 

(d) Status of Documents in Appeal File— 

Documents contained in the appeal file are 

considered, without further action by the 

parties, as part of the record upon which the 

Board will render its decision. However, a 

party may object, for reasons stated, to the 

admissibility of a particular document 

reasonably in advance of hearing or, if there 

is no hearing, of settling the record, or in any 

case as ordered by the Board. If such 

objection is made, the Board will 

constructively remove the document from the 

appeal file and permit the party offering the 

document to move its admission as evidence 

in accordance with Rules 10, 11, and 13. 

Rule 5. Time, Computation, and Extensions 

(a) Where practicable, actions should be 

taken in less time than the time allowed. 

Where appropriate and justified, however, 

extensions of time will be granted. All 

requests for extensions of time should be in 

writing and indicate that the other party was 

contacted to seek its concurrence. 

(b) In computing any period of time, the 

day of the event from which the designated 

period of time begins to run will not be 

included, but the last day of the period will 

be included unless it is a Saturday, Sunday, 

or a Federal holiday, in which event the 

period will run to the next business day. 

Rule 6. Pleadings 

(a) Appellant—Within 30 days after receipt 

of notice of docketing of the appeal, the 

appellant shall file with the Board a 

complaint setting forth simple, concise, and 

direct statements of each of its claims. The 

complaint shall also set forth the basis, with 

appropriate reference to contract provisions, 

of each claim and the dollar amount claimed, 

if any. This pleading shall fulfill the 

generally recognized requirements of a 

complaint, although no particular form is 

required. Should the complaint not be timely 

received, the appellant’s claim and notice of 

appeal may be deemed to set forth its 

complaint if, in the opinion of the Board, the 

issues before the Board are sufficiently 

defined, and the parties will be notified. 

(b) Government—Within 30 days from 

receipt of the complaint, or the aforesaid 

notice from the Board, the Government shall 

file with the Board an answer thereto. The 

answer shall admit or deny the allegations of 

the complaint and shall set forth simple, 

concise, and direct statements of the 

Government’s defenses to each claim asserted 

by the appellant, including any affirmative 

defenses. Should the answer not be timely 

received, the Board may enter a general 

denial on behalf of the Government, and the 

parties will be notified. 

(c) Foreign Law—A party who intends to 

raise an issue concerning the law of a foreign 

country shall give notice in its pleadings or 

other reasonable written notice. The Board, 

in determining foreign law, may consider any 

relevant material or source, including 

testimony, whether or not submitted by a 

party or admissible under Rules 10, 11, or 13. 

The determination of foreign law shall be 

treated as a ruling on a question of law. 

(d) Further Pleadings—The Board upon its 

own initiative or upon motion may order a 

party to make a more definite statement of 

the complaint or answer, or to reply to an 

answer. The Board may permit either party 

to amend its pleading upon conditions fair to 

both parties. When issues within the proper 

scope of the appeal, but not raised by the 

pleadings, are tried by express or implied 

consent of the parties, or by permission of the 

Board, they shall be treated in all respects as 

if they had been raised therein. In such 

instances, motions to amend the pleadings to 

conform to the proof may be entered, but are 

not required. If evidence is objected to at a 

hearing on the ground that it is not within 

the issues raised by the pleadings, it may be 

admitted within the proper scope of the 

appeal, provided however, that the objecting 

party may be granted an opportunity to meet 

such evidence. 

Rule 7. Motions 

(a) Motions Generally—The Board may 

entertain and rule upon motions and may 

defer ruling as appropriate. The Board will 

rule on motions so as to secure, to the fullest 

extent practicable, the informal, expeditious, 

and inexpensive resolution of appeals. All 

motions should be filed as separate 

documents with an appropriate heading 

describing the motion. Oral argument on 

motions is subject to the discretion of the 

Board. 

(b) Jurisdictional Motions—Any motion 

addressed to the jurisdiction of the Board 

should be promptly filed. An evidentiary 

hearing to address disputed jurisdictional 

facts will be afforded on application of either 

party or by order of the Board. The Board 

may defer its decision on the motion pending 

hearing on the merits. The Board may at any 

time and on its own initiative raise the issue 

of its jurisdiction, and shall do so by an 

appropriate order, affording the parties an 

opportunity to be heard thereon. 

(c) Summary Judgment Motions— 

(1) To facilitate disposition of such a 

motion, the parties should adhere to the 

following procedures. Where the parties 

agree that disposition by summary judgment 

or partial summary judgment is appropriate, 

they may file a stipulation of all material 

facts necessary for the Board to rule on the 

motion. Otherwise, the moving party should 

file with its motion a ‘‘Statement of 

Undisputed Material Facts,’’ setting forth the 

claimed undisputed material facts in 

separate, numbered paragraphs. The nonmoving 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 


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under this Rule shall be subject to the 

provisions of Rule 16 with respect to 

sanctions. 

(b) Depositions—when permitted—Subject 

to paragraph (a) of this Rule, a party may 

take, or the Board may upon motion order the 

taking of, testimony of any person by 

deposition upon oral examination or written 

interrogatories before any officer authorized 

to administer oaths at the place of 

examination, for use as evidence or for 

purpose of discovery. The Board expects the 

parties to make persons under their control 

available for deposition. The motion for an 

order shall specify whether the purpose of 

the deposition is discovery or for use as 

evidence. 

(1) Depositions—Orders—The time, place, 

and manner of taking depositions shall be as 

mutually agreed by the parties, or failing 

such agreement, governed by order of the 

Board. 

(2) Depositions—Use as Evidence—No 

testimony taken by deposition shall be 

considered as part of the evidence in the 

hearing of an appeal until such testimony is 

offered and received in evidence at such 

hearing. It will not ordinarily be received in 

evidence if the deponent can testify at the 

hearing. The deposition may be used to 

contradict or impeach the testimony of the 

deponent given at a hearing. In cases 

submitted on the record, the Board may 

receive depositions to supplement the record. 

(3) Depositions—Expenses—Each party 

shall bear its own expenses associated with 

the taking of any deposition, absent an 

agreement by the parties or a Board order to 

the contrary. 

(4) Depositions—Subpoenas—Where 

appropriate, a party may request the issuance 

of a subpoena under the provisions of Rule 

22. 

(c) Interrogatories, Requests for 

Admissions, Requests for Production— 

Subject to paragraph (a) of this Rule, a party 

may serve, or the Board may upon motion 

order: 

(i) Written interrogatories to be answered 

separately in writing, signed under oath and 

answered or objected to within 45 days after 

service; 

(ii) A request for the admission of specified 

facts and/or of the authenticity of any 

documents, to be answered or objected to 

within 45 days after service, the factual 

statements and/or the authenticity of the 

documents to be deemed admitted upon 

failure of a party to respond to the request; 

and 

(iii) A request for the production, 

inspection, and copying of any documents, 

electronic or otherwise, or objects, not 

privileged, which reasonably may lead to the 

discovery of admissible evidence, to be 

answered or objected to within 45 days after 

service. The Board may allow a shorter or 

longer time. 

Rule 9. Pre-Hearing or Pre-Submission 

Conference 

The Board may, upon its own initiative, or 

upon the request of either party, arrange a 

conference or order the parties to appear 

before an Administrative Judge or examiner 

for a conference to address any issue related 

to the prosecution of the appeal. 

Rule 10. Hearings 

(a) Where and When Held—Hearings will 

be held at such times and places determined 

by the Board to best serve the interests of the 

parties and the Board. 

(b) Unexcused Absence—The unexcused 

absence of a party at the time and place set 

for hearing will not be occasion for delay. In 

the event of such absence, the hearing will 

proceed and the evidentiary record will 

consist solely of the evidence of record at the 

conclusion of the hearing, except as ordered 

otherwise by the Board. 

(c) Nature of Hearings—Hearings shall be 

as informal as may be reasonable and 

appropriate under the circumstances. The 

parties may offer such evidence as they deem 

appropriate and as would be admissible 

under the Federal Rules of Evidence or in the 

sound discretion of the presiding 

Administrative Judge or examiner. The 

Federal Rules of Evidence are not binding on 

the Board but may guide the Board’s rulings. 

The parties may stipulate the testimony that 

would be given by a witness if the witness 

were present. The Board may require 

evidence in addition to that offered by the 

parties. 

(d) Examination of Witnesses—Witnesses 

will be examined orally under oath or 

affirmation, unless the presiding 

Administrative Judge or examiner shall 

otherwise order. If the testimony of a witness 

is not given under oath or affirmation, the 

Board may advise the witness that his or her 

testimony may be subject to any provision of 

law imposing penalties for knowingly 

making false representations in connection 

with claims. 

(e) Interpreters—In appropriate cases, the 

Board may order that an interpreter be used. 

An interpreter must be qualified and must be 

placed under oath or affirmation to give a 

complete and true translation. 

(f) Transcripts—Testimony and argument 

at hearings will be reported verbatim, unless 

the Board otherwise orders. The Board will 

contract for a reporter. No other recordings of 

the proceedings will be made. 

Rule 11. Submission Without a Hearing 

(a) Either party may elect to waive a 

hearing and to submit its case upon the 

record. Submission of a case without hearing 

does not relieve the parties from the 

necessity of proving the facts supporting 

their allegations or defenses. Affidavits, 

declarations, depositions, admissions, 

answers to interrogatories, and stipulations 

may be employed in addition to the Rule 4 

file if moved and accepted into evidence. 

Such submissions may be supplemented by 

briefs. The Board may designate, with notice 

to the parties, any document to be made part 

of the record. 

(b) As appropriate, the Board may also rely 

on pleadings, prehearing conference 

memoranda, orders, briefs, stipulations and 

other documents contained in the Board’s 

file. 

(c) Except as the Board may otherwise 

order, no evidence will be received after 

notification by the Board that the record is 

closed. 

(d) The weight to be given to any evidence 

will rest within the discretion of the Board. 

The Board may require either party, with 

appropriate notice to the other party, to 

submit additional evidence on any matter 

relevant to the appeal. 

(e) The record will at all reasonable times 

be available for inspection by the parties at 

the offices of the Board. 

Rule 12. Optional Small Claims (Expedited) 

and Accelerated 

Procedures 

12.1 Elections To Utilize Small Claims 

(Expedited) and Accelerated Procedures 

(a) In appeals where the amount in dispute 

is $50,000 or less, or in the case of a small 

business concern (as defined in the Small 

Business Act and regulations under that Act), 

$150,000 or less, the appellant may elect to 

have the appeal processed under a Small 

Claims (Expedited) procedure requiring 

decision of the appeal, whenever possible, 

within 120 days after the Board receives 

written notice of the appellant’s election to 

utilize this procedure. The details of this 

procedure appear in section 12.2 of this Rule. 

An appellant may elect the Accelerated 

procedure rather than the Small Claims 

(Expedited) procedure for any appeal where 

the amount in dispute is $50,000 or less. 

(b) In appeals where the amount in dispute 

is $100,000 or less, the appellant may elect 

to have the appeal processed under an 

Accelerated procedure requiring decision of 

the appeal, whenever possible, within 180 

days after the Board receives written notice 

of the appellant’s election to utilize this 

procedure. The details of this procedure 

appear in section 12.3 of this Rule. 

(c) The appellant’s election of either the 

Small Claims (Expedited) procedure or the 

Accelerated procedure shall be made by 

written notice within 60 days after receipt of 

notice of docketing, unless such period is 

extended by the Board for good cause. The 

election, once made, may not be changed or 

withdrawn except with permission of the 

Board and for good cause. 

(d) The 45-day conference required by Rule 

8(a) does not apply to Rule 12 appeals. 

12.2 Small Claims (Expedited) Procedure 

(a) In appeals proceeding under the Small 

Claims (Expedited) procedure, the following 

time periods shall apply: 

(1) Within 10 days from the Government’s 

receipt of the appellant’s notice of election of 

the Small Claims (Expedited) procedure, the 

Government shall send the Board a copy of 

the contract, the contracting officer’s final 

decision, and the appellant’s claim letter or 

letters, if any. Any other documents required 

under Rule 4 shall be submitted in 

accordance with times specified in that Rule 

unless the Board otherwise directs. 

(2) Within 15 days after the Board has 

acknowledged receipt of the appellant’s 

notice of election, the assigned 

Administrative Judge should take the 

following actions, if feasible, in a pre-hearing 

conference: 

(i) Identify and simplify the issues; 

(ii) Establish a simplified procedure, 

including discovery, appropriate to the 

particular appeal involved; 


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(iii) Determine whether either party elects 

a hearing, and if so, fix a time and place 

therefor; and 

(iv) Establish an expedited schedule for the 

timely resolution of the appeal. 

(b) Pleadings, discovery, and other 

prehearing activity will be allowed only as 

consistent with the requirement to conduct a 

hearing, or if no hearing is elected, to close 

the record on a date that will allow the 

timely issuance of the decision. The Board 

may shorten time periods prescribed or 

allowed under these Rules as necessary to 

enable the Board to decide the appeal within 

the 120-day period. 

(c) Written decisions by the Board in 

appeals processed under the Small Claims 

(Expedited) procedure will be short and will 

contain only summary findings of fact and 

conclusions. Decisions will be rendered for 

the Board by a single Administrative Judge. 

If there has been a hearing, the 

Administrative Judge presiding at the hearing 

may at the conclusion of the hearing and 

after entertaining such oral argument as 

deemed appropriate, render on the record 

oral summary findings of fact, conclusions, 

and a decision of the appeal. Whenever such 

an oral decision is rendered, the Board will 

subsequently furnish the parties an 

authenticated copy of such oral decision for 

record and payment purposes and to 

establish the starting date for the period for 

filing a motion for reconsideration under 

Rule 20. 

(d) A decision under Rule 12.2 shall have 

no value as precedent, and in the absence of 

fraud, shall be final and conclusive and may 

not be appealed or set aside. 

12.3 Accelerated Procedure 

(a) In appeals proceeding under the 

Accelerated procedure, the parties are 

encouraged, to the extent possible consistent 

with adequate presentation of their factual 

and legal positions, to waive pleadings, 

discovery, and briefs. The Board may shorten 

time periods prescribed or allowed under 

these Rules as necessary to enable the Board 

to decide the appeal within the 180-day 

period. 

(b) Within 30 days after the Board has 

acknowledged receipt of the appellant’s 

notice of election, the assigned 

Administrative Judge should take the 

following actions, if feasible, in a 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 prehearing 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 


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notice to the other party, grant the 

withdrawal of original exhibits, or any part 

thereof. The Board may require the 

substitution of true copies of exhibits or any 

part thereof as a condition of granting 

permission for such withdrawal. 

Rule 20. Motion for Reconsideration 

A motion for reconsideration may be filed 

by either party. It shall set forth specifically 

the grounds relied upon to grant the motion. 

The motion must be filed within 30 days 

from the date of the receipt of a copy of the 

decision of the Board by the party filing the 

motion. An opposing party must file any 

cross-motion for reconsideration within 30 

days from its receipt of the motion for 

reconsideration. Extensions in the period to 

file a motion will not be granted. Extensions 

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

Rule 21. Remand From Court 

Whenever any Court remands an appeal to 

the Board for further proceedings, each of the 

parties shall, within 30 days of receipt of 

such remand, submit a report to the Board 

recommending procedures to be followed so 

as to comply with the Court’s remand. The 

Board will consider the reports and enter an 

order governing the remanded appeal. 

Rule 22. Subpoenas 

(a) Voluntary Cooperation—Each party is 

expected: 

(1) To cooperate and make available 

witnesses and evidence under its control as 

requested by the other party without issuance 

of a subpoena, and 

(2) To secure voluntary attendance of 

desired third-party witnesses and production 

of desired third-party books, records, 

documents, or tangible things whenever 

possible. 

(b) General—Upon written request of either 

party, or on his or her own initiative, an 

Administrative Judge may issue a subpoena 

requiring: 

(1) Testimony at a deposition—The 

deposing of a witness in the city or county 

where the witness resides or is employed or 

transacts business in person, or at another 

location convenient for the witness that is 

specifically determined by the Board; 

(2) Testimony at a hearing—The 

attendance of a witness for the purpose of 

taking testimony at a hearing; and 

(3) Production of books and records—The 

production by the witness at the deposition 

or hearing of books and records (including 

electronically stored information and other 

tangible things) designated in the subpoena. 

(c) Request for Subpoena— 

(1) A request for subpoena shall normally 

be filed at least: 

(i) 15 days before a scheduled deposition 

where the attendance of a witness at a 

deposition is sought; or 

(ii) 30 days before a scheduled hearing 

where the attendance of a witness at a 

hearing is sought. 

(iii) The Board may honor a request for 

subpoena not made within these time 

limitations. 

(2) A request for a subpoena shall state the 

reasonable scope and general relevance to the 

case of the testimony and of any books and 

records sought. The Board may require 

resubmission of a request that does not 

provide this information. 

(d) Requests to Quash or Modify—Upon 

written request by the person subpoenaed or 

by a party, made within 10 days after service 

but in any event not later than the time 

specified in the subpoena for compliance, the 

Board may quash or modify the subpoena if 

it is unreasonable or oppressive or for other 

good cause shown, or require the person in 

whose behalf the subpoena was issued to 

advance the reasonable cost of producing 

subpoenaed books and papers. Where 

circumstances require, the Board may act 

upon such a request at any time after a copy 

of the request has been served upon the 

opposing party. 

(e) Form of Subpoena— 

(1) Every subpoena shall state the name of 

the Board and the caption of the appeal, and 

shall command each person to whom it is 

directed to attend and give testimony, and if 

appropriate, to produce specified books and 

records at a time and place therein specified. 

In issuing a subpoena to a requesting party, 

the Administrative Judge will sign the 

subpoena, enter the name of the witness and 

may otherwise leave it blank. The party to 

whom the subpoena is issued shall complete 

the subpoena before service. 

(2) Where the witness is located in a 

foreign country, a letter rogatory may be 

issued and served under the circumstances 

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

1781. 

(f) Service— 

(1) The party requesting issuance of a 

subpoena shall arrange for service. 

(2) A subpoena requiring the attendance of 

a witness at a deposition or hearing may be 

served in any state, commonwealth, territory, 

or the District of Columbia. A subpoena may 

be served by a United States marshal or 

deputy marshal, or by any other person who 

is not a party and not less than 18 years of 

age. Service of a subpoena upon a person 

named therein shall be made by personally 

delivering a copy to that person and 

tendering the fees for one day’s attendance 

and the mileage provided by 28 U.S.C. § 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. 


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Awards will be based upon the prevailing 

market rates, subject to paragraph (e)(2) of 

this section, for the kind and quality of 

services furnished by attorneys, agents, and 

expert witnesses. 

(2) No award for the fee of an attorney or 

agent may exceed $125 per hour. No expert 

witness shall be compensated at a rate in 

excess of the highest rate of compensation for 

expert witnesses paid by the agency 

involved. 

(3) The reasonable cost of any study, 

analysis, engineering report, test, or project, 

prepared on behalf of a party may be 

awarded, to the extent that the study or other 

matter was necessary in connection with the 

appeal and the charge for the service does not 

exceed the prevailing rate for similar 

services. 

(f) Time for filing of applications—An 

application may be filed after an appellant 

has prevailed in the CDA appeal within 30 

days after the Board’s disposition of the 

appeal has become final. 

(g) Application contents— 

(1) An EAJA application shall comply with 

each of the following: 

(i) Show that the applicant is a prevailing 

party; 

(ii) Show that the applicant is eligible to 

receive an award; 

(iii) Allege that the position of the 

government was not substantially justified; 

and 

(iv) Show the amount of fees and other 

expenses sought, including an itemized 

statement thereof. 

(2) An original and one copy of the 

application and exhibits should be filed with 

the Board. The applicant will forward one 

copy to the Government. 

(3) When a compliant application has been 

timely filed, the Board, in order to obtain 

more detailed information, may require 

supplementation of the application. 

(h) Net worth exhibit—Each applicant for 

which a determination of net worth is 

required under the EAJA should provide 

with its application a detailed net worth 

exhibit showing the net worth of the 

applicant when the CDA appeal was filed. 

The exhibit may be in any form convenient 

to the applicant that provides full disclosure 

of assets, liabilities, and net worth. 

(i) Fees and other expenses exhibit—The 

application should be accompanied by a 

detailed fees and other expenses exhibit fully 

documenting the fees and other expenses, 

including the cost of any study, analysis, 

engineering report, test, or project, for which 

an award is sought. The date and a 

description of all services rendered or costs 

incurred should be indicated. A separate 

itemized statement should be submitted for 

each professional firm or individual whose 

services are covered by the application 

showing the hours spent in connection with 

the CDA appeal by each individual, a 

description of the particular services 

performed by specific date, the rate at which 

each fee has been computed, any expenses 

for which reimbursement is sought, the total 

amount claimed, and the total amount paid 

or payable by the applicant or by any other 

person or entity for the services provided. 

The Board may require the applicant to 

provide vouchers, receipts, or other 

substantiation for any expenses sought. 

(j) Answer to application— 

(1) Within 30 days after receipt by the 

Government of an application, the 

Government may file an answer. Unless the 

Government requests an extension of time for 

filing or files a statement of intent to 

negotiate under paragraph (2) below, failure 

to file an answer within the 30-day period 

may be treated by the Board at its discretion 

as a general denial to the application on 

behalf of the Government. 

(2) If the Government and the applicant 

believe that the matters raised in the 

application can be resolved by mutual 

agreement, they may jointly file a statement 

of intent to negotiate a settlement. Filing of 

this statement will extend the time for filing 

an answer for an additional 30 days. Further 

extensions may be requested by the parties. 

(3) The answer will explain in detail any 

objections to the award requested and 

identify the facts relied upon in support of 

the Government’s position. 

(4) An original and one copy of the answer 

should be filed with the Board. The 

Government will forward one copy to the 

applicant. 

(k) Reply—Within 15 days after receipt of 

an answer, the applicant may file a reply. An 

original and one copy of the reply will be 

filed with the Board. The applicant will 

forward one copy to the Government. 

(l) Award proceedings— 

(1) The Board may enter an order 

prescribing the procedure to be followed or 

take such other action as may be deemed 

appropriate under the EAJA. Further 

proceedings will be held only when 

necessary for full and fair resolution of the 

issues arising from the application. 

(2) A request that the Board order further 

proceedings under this paragraph will 

describe the disputed issues, explain why the 

additional proceedings are deemed necessary 

to resolve the issues and specifically identify 

any information sought and its relationship 

to the disputed issues. 

(m) Evidence—(1) Decisions on the merits. 

When a CDA appeal is decided on the merits, 

other than by a consent judgment, the record 

relating to whether the Government’s 

position under the EAJA was substantially 

justified will be limited to the record in the 

CDA appeal. Evidence relevant to other 

issues in the award proceeding may be 

submitted. 

(2) Other dispositions. When a CDA appeal 

is settled, or decided by a consent judgment, 

either party in proceedings under the EAJA 

may, for good cause shown, supplement the 

record established in the CDA appeal with 

affidavits and other supporting evidence 

relating to whether the position of the agency 

was substantially justified or other issues in 

the award proceeding. 

(n) Decision—Decisions under the EAJA 

will be rendered by the Administrative Judge 

or a majority of the judges who would have 

participated in a motion for reconsideration 

of the underlying CDA appeal. The decision 

of the Board will include written findings 

and conclusions and the basis therefor. The 

Board’s decision on an application for fees 

and other expenses under the EAJA will be 

the final administrative decision regarding 

the EAJA application. 

(o) Motions for reconsideration—Either 

party may file a motion for reconsideration. 

Motions for reconsideration must be filed 

within 30 days of receipt of the Board’s EAJA 

decision. Extensions in the period to file a 

motion will not be granted. Extensions to file 

a memorandum in support of a timely filed 

motion may be granted. 

(p) Payment of Awards—The Board’s EAJA 

awards will be paid directly by the 

contracting agency over which the applicant 

prevailed in the underlying CDA appeal. 

Addendum II 

Alternative Methods of Dispute Resolution 

1. The Contract Disputes Act (CDA), 41 

U.S.C. 7105(g)(1), states that boards of 

contract appeals ‘‘shall . . . to the fullest 

extent practicable provide informal, 

expeditious, and inexpensive resolution of 

disputes’’. Resolution of a dispute at the 

earliest stage feasible, by the fastest and least 

expensive method possible, benefits both 

parties. To that end, the parties are 

encouraged to consider Alternative Dispute 

Resolution (ADR) procedures for 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. 


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4. To facilitate full, frank and open 

discussion and presentations, any Neutral 

who has participated in a non-binding ADR 

procedure that has failed to resolve the 

underlying dispute will be recused from 

further participation in the matter unless the 

parties expressly agree otherwise in writing 

and the Board concurs. Further, the recused 

Neutral will not discuss the merits of the 

dispute or substantive matters involved in 

the ADR proceedings with other Board 

personnel. 

5. Written material prepared specifically 

for use in an ADR proceeding, oral 

presentations made at an ADR proceeding, 

and all discussions in connection with such 

proceedings between the parties and the 

Neutral are confidential and, unless 

otherwise specifically agreed by the parties, 

inadmissible as evidence in any pending or 

future Board proceeding involving the parties 

or matter in dispute. However, evidence 

otherwise admissible before the Board is not 

rendered inadmissible because of its use in 

the ADR proceeding. 

6. The ADR method and the procedures 

and requirements implementing the ADR 

method will be prescribed by the written 

agreement of the parties and approved by the 

Board. ADR methods can be used 

successfully at any stage of the litigation. 

7. The following are examples of ADR 

methods commonly used at the Board: 

(a) Nonbinding— 

Mediations: A Neutral is an Administrative 

Judge who will not normally hear or have 

any formal or informal decision-making 

authority in the matter and who is appointed 

for the purpose of facilitating settlement. In 

many circumstances, settlement can be 

fostered by a frank, in-depth discussion of 

the strengths and weaknesses of each party’s 

position with the Neutral. The agenda for 

meetings with the Neutral will be flexible to 

accommodate the requirements of the case. 

To further the settlement effort, the Neutral 

may meet with the parties either jointly or 

individually. A Neutral’s recommendations 

are not binding on the parties. When this 

method is selected, the ADR agreement must 

contain a provision in which the parties and 

counsel agree not to subpoena the Neutral in 

any legal action or administrative proceeding 

of any kind to produce any notes or 

documents related to the ADR proceeding or 

to testify concerning any such notes or 

documents or concerning his/her thoughts or 

impressions. 

(b) Binding— 

Summary Proceeding With Binding 

Decision: A summary proceeding with 

binding decision is a procedure whereby the 

resolution of the appeal is expedited and the 

parties try their appeal informally before an 

Administrative Judge. A binding ‘‘bench’’ 

decision may be issued upon conclusion of 

the proceeding, or a binding summary 

written decision will be issued by the judge 

no later than ten days following the later of 

conclusion of the proceeding or receipt of a 

transcript. The parties must agree in the ADR 

agreement that all decisions, rulings, and 

orders by the Board under this method shall 

be final, conclusive, not appealable, and may 

not be set aside, except for fraud. All such 

decisions, rulings, and orders will have no 

precedential value. Pre-hearing, hearing, and 

post-hearing procedures and rules applicable 

to appeals generally will be modified or 

eliminated to expedite resolution of the 

appeal. 

(c) Other Agreed Methods—The parties and 

the Board may agree upon other informal 

methods, binding or nonbinding that are 

structured and tailored to suit the 

requirements of the individual case. 

8. The above-listed ADR procedures are 

intended to shorten and simplify the Board’s 

more formalized procedures. Generally, if the 

parties resolve their dispute by agreement, 

they benefit in terms of cost and time savings 

and maintenance or restoration of amicable 

relations. The Board will not view the 

parties’ participation in ADR proceedings as 

a sign of weakness. Any method adopted for 

dispute resolution depends upon both parties 

having a firm, good faith commitment to 

resolve their differences. Absent such 

intention, the best structured dispute 

resolution procedure is unlikely to be 

successful. 

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

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 229 and 252 

RIN 0750–AI19 

Defense Federal Acquisition 

Regulation Supplement: Clauses With 

Alternates—Taxes (DFARS Case 2013– 

D025) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

create an overarching prescription for a 

tax-related clause with an alternate and 

adds a separate prescription for the 

basic clause. The rule also proposes to 

include in the regulation the full text of 

the alternate clause. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before April 

29, 2014, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2013–D025, 

using any of the following methods: 

Æ Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2013–D025’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2013– 

D025.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2013– 

D025’’ on your attached document. 

Æ Email: dfars@mail.mil. Include 

DFARS Case 2013–D025 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Annette 

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

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: 

Annette Gray, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP/DARS, Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6093. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is undertaking a revision of 

provisions and clauses with alternates 

and the associated prescriptions, in 

order to clarify usage and facilitate the 

use of automated contract writing 

systems. These changes do not affect the 

meaning or applicability of the 

provisions or clauses. 

II. Discussion 

This proposed rule addresses the 

single DFARS part 229 clause that has 

an alternate, 252.229–7001, Tax Relief. 

The naming convention results in 

proposed new clause titles, i.e., Tax 

Relief—Basic and Tax Relief—Alternate 

I. 

An umbrella prescription is proposed 

for the elements common to the basic 

clause and the alternate. The specific 

prescriptions for the basic clause and 

the alternate address only the 

requirements for their use that enable 

the selection of the basic or the 

alternate. The planned changes will 

increase the clarity and ease of use but 

will not revise the applicability in any 

way. The presentation of the text of the 

clause alternate in the regulations 

would no longer consist solely of 

paragraph (d) with a reference to the 

basic clause, but would include the 

entire text of paragraphs (a) through (c) 


emcdonald on DSK67QTVN1PROD with PROPOSALS