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[Federal Register: March 24, 2010 (Volume 75, Number 56)]
[Rules and Regulations]               
[Page 14095-14096]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr10-13]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Chapter 2

 
Defense Federal Acquisition Regulation Supplement; Appendix A, 
Armed Services Board of Contract Appeals, Part 1--Charter

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing the updated Charter of the Armed Services Board 
of Contract Appeals (ASBCA), dated May 14, 2007. The ASBCA is chartered 
to serve as the authorized representative of the Secretary of Defense 
and the Secretaries of the Army, Navy, and Air Force in hearing, 
considering, and determining appeals by contractors from decisions of 
contracting officers or their authorized representatives or other 
authorities regarding claims on contracts under the Contract Disputes 
Act of 1978 or other remedy-granting provisions.

DATES: Effective Date: March 24, 2010.

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense 
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense 
Pentagon, Room 3B855, Washington, DC 20301-3060, Telephone 703-602-
1302; facsimile 703-602-0350.

SUPPLEMENTARY INFORMATION:

A. Background

    This publication of Appendix A of the Defense Federal Acquisition 
Regulation Supplement (DFARS) updates the Charter of the ASBCA from the 
most recent prior version, dated July 1, 1979, to its latest version, 
dated May 14, 2007. The updated Charter implements changes to ASBCA 
internal administration to better support the Board's mission of 
hearing, considering, and determining appeals by contractors from 
decisions of contracting officers or their authorized representatives 
or other authorities on disputed questions. In addition to minor 
administrative changes, the following substantive changes are made to 
the Charter:
    1. The two-year term limits for the Chairman and Vice-Chairmen are 
removed at paragraph 2.
    2. The Board is granted, at paragraph 5, all powers necessary and 
incident to the proper performance of its duties, including authority 
to issue methods of procedures and rules and regulations for its 
conduct and for the preparation and presentation of appeals and 
issuance of opinions.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule. This 
final rule does not constitute a significant DFARS revision within the 
meaning of FAR 1.501 and public comment is not required in accordance 
with 41 U.S.C. 418b(a).

C. Paperwork Reduction Act

    This rule does not impose any new information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Appendix A

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, DoD is amending 48 CFR Appendix A to Chapter 2 as follows:
0
1. The authority citation for 48 CFR Appendix A to Chapter 2 continues 
to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.


0
2. Appendix A is amended by revising Part 1--Charter, to read as 
follows:

Appendix A to Chapter 2--Armed Services Board of Contract Appeals

* * * * *
(Revised DATE)

Armed Services Board of Contract Appeals

Approved 1 May 1962.
Revised 1 May 1969.
Revised 1 September 1973.
Revised 1 July 1979.
Revised 27 June 2000.
Revised 14 May 2007.

Part 1--Charter

    1. There is created the Armed Services Board of Contract Appeals 
which is hereby designated as the authorized representative of the 
Secretary of Defense, the Secretary of the Army, the Secretary of 
the Navy and the Secretary of the Air Force, in hearing, considering 
and determining appeals by contractors from decisions of contracting 
officers or their authorized representatives or other authorities on 
disputed questions. These appeals may be taken (a) pursuant to the 
Contract Disputes Act of 1978 (41 U.S.C. Sect. 601, et seq.), (b) 
pursuant to the provisions of contracts requiring the decision by 
the Secretary of Defense or by a Secretary of a Military Department 
or their duly authorized representative, or (c) pursuant to the 
provisions of any directive whereby the Secretary of Defense or the 
Secretary of a Military Department or their authorized 
representative has granted a right of appeal not contained in the 
contract on any matter consistent with the contract appeals 
procedure. The Board may determine contract disputes for other 
departments and agencies by agreement as permitted by law. The Board 
shall operate under general policies established or approved by the 
Under Secretary of Defense for Acquisition, Technology and Logistics 
and may perform other duties as directed not inconsistent with the 
Contract Disputes Act of 1978.
    2. Membership of the Board shall consist of attorneys at law who 
have been qualified in the manner prescribed by the Contract 
Disputes Act of 1978. Members of the Board are hereby designated 
Administrative Judges. There shall be appointed from the Judges of 
the Board a Chairman and two or more Vice-Chairmen. Appointment of 
the Chairman and

[[Page 14096]]

Vice-Chairmen and other Judges of the Board shall be made by the 
Under Secretary of Defense for Acquisition, Technology and 
Logistics, the General Counsel of the Department of Defense, and the 
Assistant Secretaries of the Military Departments responsible for 
acquisition. The Chairman may designate a Judge of the Board to 
serve as an Acting Chairman or Acting Vice Chairman.
    3. It shall be the duty and obligation of the Judges of the 
Armed Services Board of Contract Appeals to decide appeals on the 
record of the appeal to the best of their knowledge and ability in 
accordance with applicable contract provisions and in accordance 
with law and regulation pertinent thereto.
    4. The Chairman of the Board shall be responsible for 
establishing appropriate divisions of the Board to provide for the 
most effective and expeditious handling of appeals. The Chairman 
shall designate one Judge of each division as the division head. The 
Chairman may refer an appeal of unusual difficulty, significant 
precedential importance, or serious dispute within the normal 
decision process for decision by the senior deciding group. The 
division heads and the Chairman and Vice-Chairmen, together with, if 
applicable, the author of the decision so referred, shall constitute 
the senior deciding group of the Board. The decision of the Board in 
cases so referred to the senior deciding group shall be by majority 
vote of the participating Judges of that group. A majority of the 
Judges of a division shall constitute a quorum for the transaction 
of the business of each, respectively. Decisions of the Board shall 
be by majority vote of the Judges of a division participating and 
the Chairman and a Vice-Chairman, unless the Chairman refers the 
appeal for decision by the senior deciding group. An appeal 
involving a small claim as defined by the Contract Disputes Act of 
1978 may be decided by a single Judge or fewer Judges of the Board 
than hereinbefore provided for cases of unlimited dollar amount, 
under accelerated or expedited procedures as provided in the Rules 
of the Board and the Contract Disputes Act of 1978.
    5. The Board shall have all powers necessary and incident to the 
proper performance of its duties. The Board has the authority to 
issue methods of procedure and rules and regulations for its conduct 
and for the preparation and presentation of appeals and issuance of 
opinions.
    6. Any Judge of the Board or any examiner, designated by the 
Chairman, shall be authorized to hold hearings, examine witnesses, 
and receive evidence and argument. A Judge of the Board shall have 
authority to administer oaths and issue subpoenas as specified in 
the Contract Disputes Act of 1978. In cases of contumacy or refusal 
to obey a subpoena, the Chairman may request orders of the court in 
the manner prescribed in the Contract Disputes Act of 1978.
    7. The Chairman shall be responsible for the internal 
organization of the Board and for its administration. He shall 
provide within approved ceilings for the staffing of the Board with 
non-Judge personnel, including hearing examiners, as may be required 
for the performance of the functions of the Board. The Chairman 
shall appoint a Recorder of the Board. All personnel shall be 
responsible to and shall function under the direction, supervision 
and control of the Chairman. Judges shall decide cases 
independently.
    8. The Board will be serviced by the Department of the Army for 
administrative support as required for its operations. 
Administrative support will include budgeting, funding, fiscal 
control, manpower control and utilization, personnel administration, 
security administration, supplies, and other administrative 
services. The Departments of the Army, Navy, Air Force and the 
Office of the Secretary of Defense will participate in financing the 
Board's operations on an equal basis and to the extent determined by 
the Under Secretary of Defense (Comptroller). The cost of processing 
appeals for departments and agencies other than those in the 
Department of Defense will be reimbursed.
    9. Within 30 days following the close of a calendar quarter, the 
Chairman shall forward a report of the Board's proceedings for the 
quarter to the Under Secretary of Defense for Acquisition, 
Technology and Logistics, the General Counsel of the Department of 
Defense, the Assistant Secretaries of the Military Departments 
responsible for acquisition, and to the Director of the Defense 
Logistics Agency. The Chairman of the Board will also furnish the 
Secretary of Defense, the General Counsel of the Department of 
Defense, the Secretaries of the Military Departments, and the 
Director of the Defense Logistics Agency, an annual report 
containing an account of the Board's transactions and proceedings 
for the preceding fiscal year.
    10. The Board shall have a seal bearing the following 
inscription: ``Armed Services Board of Contract Appeals.'' This seal 
shall be affixed to all authentications of copies of records and to 
such other instruments as the Board may determine.
    11. This revised charter is effective May 14, 2007.

    Approved:

(signed) Kenneth J. Krieg (14 May 2007),

Under Secretary of Defense (Acquisition, Technology and Logistics).

(signed) William J. Haynes II,

General Counsel of the Department of Defense.

(signed) Claude M. Bolton, Jr.,

Assistant Secretary of the Army (Acquisition, Logistics, & 
Technology).

(signed) Delores M. Etter,

Assistant Secretary of the Navy (Research, Development & 
Acquisition).

(signed) Sue C. Peyton,

Assistant Secretary of the Air Force (Acquisition).
* * * * *
[FR Doc. 2010-6524 Filed 3-23-10; 8:45 am]
BILLING CODE 5001-08-P
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