[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Rules and Regulations]
[Pages 60609-60611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24340]


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GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 22


Rules of Procedure of the Government Accountability Office 
Contract Appeals Board

AGENCY: Government Accountability Office.

ACTION: Final rule.

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SUMMARY: This document contains the final revisions to the interim 
rules of procedures of the Government Accountability Office (GAO) 
Contract Appeals Board (Board), which was published in the Federal 
Register on June 26, 2008. These rules supersede the interim rules of 
the Board and will govern all proceedings before the Board filed on or 
after October 1, 2007.

DATES: Effective Date: October 14, 2008.

FOR FURTHER INFORMATION CONTACT: James A. Spangenberg (Chairman), David 
Ashen (Vice Chairman), or Sharon L. Larkin (Member), 202-512-3342, 
<a href="/cdn-cgi/l/email-protection#2c4f4d4e6c4b4d43024b435a"><span class="__cf_email__" data-cfemail="4d2e2c2f0d2a2c22632a223b">[email protected]</span></a>. Hearing or speech impaired individuals may contact the 
Board via TTY by calling the toll-free Federal Information Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    The Board published in the Federal Register at 73 FR 36257, June 
26, 2008, interim rules of procedure along with a notice inviting 
comments on those rules. This notice announced the intention to 
promulgate final rules of procedure, following the Board's review and 
consideration of all comments, to govern all proceedings before the 
Board that are filed on or after October 1, 2007. The Board has 
considered all comments received, revised the interim rules in part (as 
explained below), and now promulgates its final rules of procedure. 
These rules are promulgated pursuant to the Board's authority contained 
in section 1501(d) of title I of division H of the Consolidated 
Appropriations Act of 2008, and will be contained in 4 CFR part 22.

Summary of Comments and Changes

    The Board received comments from two commentators, including one 
legislative branch agency and one bar association. The Board carefully 
considered each comment and adopted some of the suggestions made by the 
commentators. In addition, the Board made minor changes to the interim 
rules to correct numbering of certain paragraphs and to clarify 
discovery rules to reflect current motions practice before the Board. 
The comments and changes are discussed below.
    Sec. 22.2 [Board Consideration]. One commentator suggested that the 
Board clarify how all Board members ``will be in a position to make an 
informed decision'' in cases where a hearing is conducted by only one 
member of a three-member Board. In such cases, it is the Board's 
practice to make the entire record, including the hearing transcript, 
available to all members of the panel. The Board does not believe that 
clarification of the rules is necessary to address this issue.
    Secs. 22.3 [Appeals--How Taken] and 22.28 [Time]. One commentator 
raised concern that the Board's reference to 5:30 p.m. ``Eastern 
Standard Time'' in paragraph (b) of section 22.3 and in section 22.28 
could cause confusion because of the use of daylight savings time. The 
commentator suggested that the Board instead refer to 5:30 p.m. ``local 
time in Washington, DC.'' The Board agrees and has revised the sections 
accordingly.
    One commentator also suggested that paragraph (d) of section 22.3, 
referring to the Board's issuance of a docketing notice, be modified to 
indicate that the Board will identify in the docketing notice the 
presiding member of the panel, as well as the availability of 
alternative dispute resolution (ADR). Current Board practice is to 
provide this information in the docketing notices issued in all cases. 
The Board believes that these matters can be appropriately addressed in 
its docketing notices and declines to modify its rule.
    Secs. 22.4 [Appeal File] and 22.5 [Pleadings]. One commentator 
suggested that the Board reverse the order of these sections. The Board 
declines to do so. The Appeal file is commonly referred to as the Rule 
4 file and the placement of the rule at section 22.4 [Rule 4] was 
intentional so as to avoid confusion. Reference to the ``Rule 4'' file 
is consistent with other board practice and with what is expected by 
experienced practitioners in this field.
    Sec. 22.8 [General Discovery Procedures]. The interim rules have 
led to confusion among some parties as to whether motions concerning 
discovery must be filed before the end date for discovery. To clarify, 
the Board adds paragraph (k) to section 22.8 to require parties to file 
all motions concerning discovery, including motions to compel 
discovery, on or before the end date of discovery to the maximum extent 
possible. The revised rule further provides that late-filed motions 
will not be considered except for good cause shown.
    Sec. 22.13 [Requests for Admission]. Paragraphs (a)(1)(A) and 
(a)(1)(B) are renumbered as (a)(1)(i) and (a)(1)(ii) to be consistent 
with the numbering in other sections and paragraphs.
    Sec. 22.15 [Conferences and Orders]. One commentator suggested that 
the Board consider holding a mandatory initial scheduling conference 
after the filing of the complaint and answer to discuss procedural 
issues, discovery, and case development and resolution. The Board 
agrees that an initial scheduling conference with the parties is a 
useful tool to orderly case development and resolution. Therefore, the 
Board revises section 22.15 to include a new paragraph (a), titled

[[Page 60610]]

``Initial Scheduling Conference,'' which states: ``As soon as 
practicable after the filing of the complaint and answer, the Board 
shall schedule an initial status conference to discuss the issues of 
case, the procedures available under the Board's rules of resolution of 
the case, and a tentative schedule for such resolution, including the 
plan for possible discovery required by Rule 8(c), the possibility of 
alternative dispute resolution (see Rule 24), and the possibility of 
dispositive motions.'' Paragraphs (a) and (b) of the interim rule are 
renumbered as paragraphs (b) and (c).
    Sec. 22.16 [Hearings]. One commentator suggested that the Board 
clarify whether the Board must honor a party's election of a hearing 
when the other party elects to proceed without a hearing. The Board 
intends to hold a hearing if a hearing is requested. Thus, paragraph 
(a) of section 22.16 is revised to replace the word ``may'' with 
``shall.''
    Sec. 22.19 [Findings and Decisions of the Board]. One commentator 
queried how the Board's decision will be made available to the public, 
and how judgments will be paid. As is the current practice, Board 
decisions will be made available on the Board Web site (http://www.gao.gov) and through CCH, Westlaw, and Lexis. The Board declines to 
address the availability of its decisions and the payment of judgments 
in its rules.
    Sec. 22.24 [Alternative Dispute Resolution]. One commentator 
suggested that the Board clarify the rule to ``enhance'' the Board's 
delivery of ADR services, address confidentiality restrictions with 
respect to the Board's use of ADR, and provide guidance concerning 
available ADR techniques. As the Board notes in its interim rules, ADR 
guidelines, procedures, and requirements for implementing ADR will be 
prescribed by the agreement of the parties and the Board. This 
recognizes the uniqueness of each case and provides the flexibility to 
adapt ADR procedures to fit the needs and the concerns of the parties. 
The Board believes that specifying procedures in its rules would serve 
only to limit the possible uses of ADR and therefore declines to revise 
its rule.

List of Subjects in 4 CFR Part 22

    Administrative practice and procedure, Contract Appeals Board, 
Government contracts.

0
Accordingly, the interim rule which was published in the Federal 
Register at 73 FR 36257, June 26, 2008, is adopted as a final rule with 
the following changes to part 22.

PART 22--RULES OF PROCEDURE OF THE GOVERNMENT ACCOUNTABILITY OFFICE 
CONTRACT APPEALS BOARD

0
1. The authority citation for part 22 continues to read as follows:

    Authority: Sec. 1501, Pub. L. 110-161, 121 Stat. 2249.


0
2. Amend Sec.  22.3 by revising paragraph (b)(5) as follows:


Sec.  22.3  Appeals--How Taken [Rule 3].

* * * * *
    (b) * * *
    (5) An appeal filed with the Board will be deemed ``filed'' on the 
date actually received by the Board if received by 5:30 p.m. local time 
in Washington, DC, or on the next business day if received after 5:30 
p.m.
* * * * *


0
3. Amend Sec.  22.8 by adding paragraph (k) as follows:


Sec.  22.8   General Discovery Procedures [Rule 8].

* * * * *
    (k) Discovery Motions, Timing. All motions concerning discovery, 
including motions to compel discovery, shall be filed on or before the 
scheduled end date of discovery to the maximum extent practicable. 
Motions that are filed after the end date of discovery will not be 
considered except for good cause shown.

Sec.  22.13  [Amended]

0
4. Amend Sec.  22.13 by redesignating paragraphs (a)(1)(A) and 
(a)(1)(B) as paragraphs (a)(1)(i) and (a)(1)(ii).


0
5. Revise Sec.  22.15 to read as follows:


Sec.  22.15  Conferences and Orders [Rule 15].

    (a) Initial Status Conference. As soon as practicable after the 
filing of the complaint and answer, the Board shall schedule an initial 
status conference to discuss the issues of case, the procedures 
available under the Board's rules of resolution of the case, and a 
tentative schedule for such resolution, including the plan for possible 
discovery required by Rule 8(c), the possibility of alternative dispute 
resolution (see Rule 24), and the possibility of dispositive motions.
    (b) Status Conferences and Reports. At any time during the appeal, 
the Board, upon its own initiative or upon the request of one of the 
parties, may call upon the parties or their attorneys or 
representatives to appear before the Board (or one or more members 
thereof) for a status conference to consider or report on whatever 
matters are necessary to aid in the disposition of the appeal. Such 
matters may include, for example, the simplification or clarification 
of issues, the necessity or desirability of amendments to the 
pleadings, agreements and rulings to facilitate discovery, progress 
reports during discovery, and pre-hearing procedures and scheduling. 
Status conferences may be conducted in person or by telephone, and the 
Board generally will make an order which recites the action taken at 
the conference(s). From time to time, the Board also may require one or 
more of the parties, either jointly or individually, to provide status 
reports concerning any matter that aids in the disposition of the 
appeal.
    (c) Rulings, Orders, and Directions. The Board may make such 
rulings and issue such orders and directions as are necessary to secure 
the informal, expeditious, and inexpensive resolution of every case 
before the Board. Any ruling, order, or direction that the Board may 
make or issue pursuant to the rules of this Board may be made on the 
motion of any party or on the initiative of the Board. The Board may 
also amend, alter, or vacate a ruling, order, or direction upon such 
terms as it deems appropriate. In making rulings and issuing orders and 
directions, the Board will take into consideration those Federal Rules 
of Civil Procedure and Federal Rules of Evidence which address matters 
not specifically covered herein.


0
6. Amend Sec.  22.16 by revising paragraph (a) to read as follows:


Sec.  22.16  Hearings [Rule 16].

    (a) Election of Hearing or Record Submission. Each party shall 
inform the Board, in writing, whether it elects a hearing or submission 
of the case on the record pursuant to Sec.  22.17 of this part [Rule 
17]. Such election shall occur no later than 15 days after the 
conclusion of discovery, unless the Board directs otherwise. In the 
event that only one party waives a hearing and submits its case on the 
record, the Board shall proceed with a hearing attended by the 
remaining parties.
* * * * *

0
7. Revise Sec.  22.28 to read as follows:


Sec.  22.28   Time [Rule 28].

    In computing any period of time described in these rules, ``days'' 
refer to calendar days, unless otherwise specified in these rules. The 
first day from which the period begins to run is not counted, and when 
the last day of the period is Saturday, Sunday, or a Federal holiday, 
the period extends to the next day that is not a Saturday,

[[Page 60611]]

Sunday, or a Federal holiday. Documents shall be deemed ``filed'' on 
the date and time received by the Board if received before 5:30 p.m. 
local time in Washington, DC, or the next business day if received 
after 5:30 p.m.

    Dated: October 8, 2008.
James A. Spangenberg,
Chairman, Government Accountability Contract Appeals Board.
 [FR Doc. E8-24340 Filed 10-10-08; 8:45 am]
BILLING CODE 1610-02-P


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