[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29694]


[[Page Unknown]]

[Federal Register: December 2, 1994]


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GENERAL SERVICES ADMINISTRATION

Board of Contract Appeals

48 CFR Part 6101

 

Rules of Procedure of the General Services Administration Board 
of Contract Appeals

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Proposed rule; Request for comments.

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SUMMARY: This document contains revisions to the rules of procedure of 
the GSA Board of Contract Appeals (Board), which will govern all 
proceedings before the Board. The revisions are intended to implement 
certain provisions of the Federal Acquisition Streamlining Act of 1994 
(Pub. L. 103-355) (FASA or Act) which have amended the Brooks Automatic 
Data Processing Act, under which the Board hears and decides protests 
of procurements involving automatic data processing (ADP) equipment, 
and the Contract Disputes Act of 1978, under which the Board hears and 
decides contract disputes. The revisions are intended to conform the 
Board's rules of procedure to the amendments made to its two 
jurisdictional statutes. The Board intends to issue final, revised 
rules after considering all comments on the proposed revisions.

DATES: Comments must be submitted by January 31, 1995.

ADDRESSES: Comments concerning these proposed rules may be mailed to 
GSA Board of Contract Appeals, 18th & F Streets NW., Washington, DC 
20405.

FOR FURTHER INFORMATION CONTACT:
Wilbur T. Miller, Chief Counsel, GSA Board of Contract Appeals, (202) 
501-0891.

SUPPLEMENTARY INFORMATION: 

A. Regulatory Flexibility Act

    The General Services Administration certifies that these revisions 
will not have a significant economic impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.).

B. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
revisions do not impose recordkeeping or information collection 
requirements, or the collection of information from offerors, 
contractors, or members of the public which require the approval of OMB 
under 44 U.S.C. 3501 et seq.

C. Background

    The Brooks Automatic Data Processing Act (40 U.S.C. 759(f)) 
provides that protests involving ADP procurements may be filed with the 
Board. That Act also provides that the Board is to adopt and issue 
rules and procedures necessary for the expeditious resolution of such 
protests. In addition, the Administrator of General Services has 
delegated to the Board the authority to adopt and issue rules necessary 
for the resolution of contract disputes under the Contract Disputes Act 
of 1978 (41 U.S.C. 601-613). The proposed rules have been approved by 
majority vote of the Board's members.

D. Effective Dates

    Pursuant to Sections 10001 and 10002 of the FASA, the Board 
proposes to make the final revised rules, as well as sections 1432-
1434, 1436-1438, and 2351(c)-(d) of the Act, applicable to all 
proceedings filed on or after a date to be specified in the final 
rules. Section 1435 of the Act shall be applicable to cost applications 
where the underlying protest is filed on or after such date. The date 
specified in the final rules shall be at least thirty days after the 
publication of such rules.

E. Highlights of Proposed Changes

    Subtitle D of Title I of the FASA names and amends the Brooks 
Automatic Data Processing Act (40 U.S.C. 759(f)), under which the Board 
hears and decides protests. Subtitle D of Title II of the FASA amends 
the Contract Disputes Act of 1978 (41 U.S.C. 601-613), which gives the 
Board jurisdiction to hear and decide contract disputes. The proposed 
revisions to the Board's rules contain changes necessitated by the 
amendment of both the Brooks Act and the Contract Disputes Act. In 
addition, Section 155 of the Energy Policy Act of 1992 (42 U.S.C. 8287) 
authorized the Board to review decisions regarding the qualification of 
firms to enter into energy savings contracts. The Foreword to the rules 
now includes a statement that, in conducting such reviews, the Board 
will apply the rules pertinent to protests to the extent practicable.

Definitions

    A definition of ``prevailing party'' (Sec. 6101.1(b)(12)) has been 
added to the rules to conform to section 1435(b) of the FASA. In a 
protest, a ``prevailing party'' is one who has demonstrated that a 
challenged action of a Federal agency violates a statute or regulation 
or the conditions of a delegation of procurement authority. Similarly, 
the definition of ``protest'' (Sec. 6101.1(b)(13)) has been changed to 
that specified in section 1438 of the Act. Finally, in order to conform 
to the language prescribed in section 1437 of the Act, the term 
``working day'' (Sec. 6101.1(b)(16)) is now defined as any day other 
than a Saturday, Sunday, or ``legal'' (rather than ``Federal'') 
holiday.

Computing Time

    Section 6101.2(c) has been revised to parallel the changes required 
by section 1433 of the FASA. This section provides that when a period 
of time prescribed or allowed in the rules is less than 11 days, 
intervening Saturdays, Sundays, and legal holidays are not counted; in 
other words, only working days are counted. When the time period is 11 
days or more, intervening Saturdays, Sundays, and legal holidays are 
counted, i.e., all calendar days are counted. The revision states that 
the only exceptions are the 5-day period after a debriefing date and 
the 10-day period after contract award for filing a protest that 
requests a suspension hearing; for these, all calendar days are 
counted. This computation change affects three other sections of the 
current rules: (1) Section 6101.19(a)(2) has been amended to provided 
that a protest which requests a suspension hearing must be filed no 
later than 10 calendar days after contract award or 5 calendar days 
after the debriefing date; (2) Section 6101.19(a)(3) has been amended 
to provide that the hearing on the merits of a protest shall commence 
no later than 35 calendar days after the protest is filed (rather than 
25 working days); and (3) Section 6101.29(b) now provides that a 
decision on the merits of a protest shall be decided no later than 65 
calendar days after the protest is filed (rather than 45 working days).

Small Claims and Accelerated Procedures

    The small claims dollar threshold has been changed from $100,000 to 
$50,000 (Sec. 6101.13(a)), and the accelerated procedure dollar 
threshold has been changed from $50,000 to $10,000 (Sec. 6101.14(a)). 
These changes parallel the amendments to sections 608(a) and 607(f) of 
the Contract Disputes Act of 1978 by subsections 2351 (c) and (d) of 
the FASA.

Dismissals; Sanctions

    Section 6101.28(a)(2) has been added to conform to the language 
specified in Section 1434 of the FASA. The proposed rule provides that 
the Board may dismiss a protest that it determines is frivolous; has 
been brought or pursued in bad faith; or does not state on its face a 
valid basis for protest. Section 6101.18(b) has been amended to provide 
that the Board may impose appropriate sanctions if it expressly finds 
that (1) a protest or portion of a protest is frivolous or has been 
brought or pursued in bad faith; or (2) that any person has willfully 
abused the Board's process during the course of a protest.

Suspension Hearing and Decision

    Section 6101.19(a)(2) has been amended to change the timing of a 
protest suspension hearing in order to conform to Section 1433(a)(2) of 
the FASA. A protest suspension hearing is one in which the Board 
determines whether to suspend the Administrator's procurement authority 
or delegation of procurement authority until the protest can be 
decided. An interested party may request a suspension hearing if the 
underlying protest if filed on the later of (1) the tenth day after the 
date of contract award; or (2) the fifth day after the debriefing date 
for any debriefing that is requested and required. The Board must hold 
the suspension hearing within 5 days after the date the protest was 
filed, or in the case of a request for debriefing, within 5 days after 
the later of the date of the filing of the protest or the date of the 
debriefing.
    Section 6101.19(d) (Suspension decision) has been amended to 
include language specified by Section 1433(a)(1)(C) of the FASA. If a 
contract award has not been made, a suspension shall not preclude the 
Federal agency whose procurement authority has been suspended from 
continuing the procurement process up to but not including contract 
award, unless the Board determines such action is not in the best 
interests of the United States.

Settlement Agreements

    A new paragraph has been added to Section 6101.28 (Dismissals) 
which incorporates the language specified by Section 1436 of the FASA. 
Section 6101.28(d) provides that any settlement agreement that 
dismisses a protest and involves a direct or indirect expenditure of 
appropriated funds shall be submitted to the Board and made part of the 
public record, subject to any protective order considered appropriate 
by the Board. If a Federal agency is a party to the agreement, the 
submission of the agreement to the Board must include a memorandum 
signed by the contracting officer that describes in detail the 
procurement, the grounds for protest, the Government's position 
regarding those grounds, the terms of the settlement, and the agency's 
position regarding the propriety of the award or proposed award of the 
contract at issue in the protest.

List of Subjects in 48 CFR Chapter 61, Part 6101

    Administrative practice and procedure, Government procurement.

    For the reasons set out in the preamble, 41 CFR Part 6101 is 
proposed to be amended as follows:

PART 6101--RULES OF THE GENERAL SERVICES ADMINISTRATION BOARD OF 
CONTRACT APPEALS

    1. The authority citation for Part 6101 continues to read as 
follows:

    Authority: 40 U.S.C. 759(f); 41 U.S.C. 601-613.

    2. Section 6101.0 is revised to read as follows:


6101.0  Foreward.

    The General Services Administration Board of Contract Appeals was 
established under the Contract Disputes Act of 1978, 41 U.S.C. 601-613, 
as an independent tribunal to hear and decide contract disputes between 
government contractors and the General Services Administration (GSA) 
and other executive agencies of the United States. The Board also hears 
and decides protests filed under the Brooks Automatic Data Processing 
Act, 40 U.S.C. 759(f), which involve procurements subject to that Act, 
and conducts proceedings as required under other laws. (The Board also 
is empowered to review decisions regarding the qualifications of firms 
to enter into energy savings contracts pursuant to 42 U.S.C. 8287. In 
conducting such reviews, the Board will apply the rules pertinent to 
protests to the extent practicable.) The Board will act in accordance 
with these rules and applicable standards of conduct so that the 
integrity, impartiality, and independence of the Board are preserved.
    3. In section 6101.1, paragraph (b)(2) is revised; paragraphs 
(b)(12) through (15) are redesignated as paragraphs (b)(13) through 
(16), respectively, and revised; and a new paragraph (b)(12) is added 
to read as follows:


6101.1  Scope of rules; definitions; construction; rulings and orders; 
panels; situs [Rule 1].

* * * * *
    (b) Definitions.
    (1) * * *
    (2) Application; applicant. The term ``application'' means a 
submission to the Board of a request for reimbursement of costs, under 
the Equal Access to Justice Act, 5 U.S.C. 504, or the Brooks Automatic 
Data Processing Act, 40 U.S.C. 759(f)(5)(C), pursuant to 6101.35. The 
term ``applicant'' means a party filing an application.
* * * * *
    (12) Prevailing party. In a protest, a prevailing party is a party 
who has demonstrated that a challenged action of a Federal agency 
violates a statute or regulation or the conditions of a delegation of 
procurement authority.
    (13) Protest; protester. (i) The term ``protest'' means a written 
objection by an interested party to any of the following:
    (A) A solicitation or other request by a Federal agency for bids or 
proposals for a contract for the procurement of property or services;
    (B) The cancellation of such a solicitation or other request;
    (C) An award or proposed award of such a contract;
    (D) A termination or cancellation of an award of such a contract, 
if the written objection contains an allegation that the termination or 
cancellation is based in whole or in part on improprieties concerning 
the award of the contract.
    (ii) The term ``protester'' means an interested party who files a 
protest with the Board and who has not filed a protest with the GAO 
concerning the same procurement.
    (14) Respondent. The term ``respondent'' means the Government 
agency whose decision, action, or inaction is the subject of an appeal, 
protest, petition, or application.
    (15) Working day. The term ``working day'' means any day other than 
a Saturday, Sunday, or legal holiday.
    (16) Working hours. The Board's working hours are 8:00 a.m. to 4:30 
p.m., Eastern Time, on each working day.
* * * * *
    4. Section 6101.2 is amended by revising paragraph (c) to read as 
follows:


6101.2  Time; enlargement; computation [Rule 2].

* * * * *
    (c) Computing time. Except as otherwise required by law, in 
computing a period of time prescribed by the rules in this part or by 
order of the Board, the day from which the designated period of time 
begins to run shall not be counted, but the last day of the period 
shall be counted, unless that day is (i) a Saturday, a Sunday, or a 
legal holiday, or (ii) a day on which the Office of the Clerk of the 
Board is required to close earlier than 4:30 p.m., or does not open at 
all, as in the case of inclement weather, in which event the period 
shall include the next working day. Except as otherwise provided in 
this paragraph, when the period of time prescribed or allowed is less 
than 11 days, any intervening Saturday, Sunday, or legal holiday shall 
not be counted. When the period of time prescribed or allowed is 11 
days or more, and in the cases of the 5-day period after a debriefing 
date and the 10-day period after contract award for filing a protest 
that requests a suspension hearing (both described in 6101.19(a)(2)), 
intervening Saturdays, Sundays, and legal holidays shall be counted. 
Time for filing any document or copy thereof with the Board expires 
when the Office of the Clerk of the Board closes on the last day on 
which such filing may be made.
    5. Section 6101.13 is amended by revising the first sentence of 
paragraph (a)(1) and (a)(2) to read as follows:


6101.13  Small claims procedures in appeals [Rule 13].

    (a) Election. (1) The small claims procedure is available solely at 
the appellant's election, and only when there is a monetary amount in 
dispute and that amount is $50,000 or less. * * *
    (2) At the request of the Government, or on its own initiative, the 
Board may determine whether the amount in dispute is greater than 
$50,000, such that the election is inappropriate. * * *
* * * * *
    6. Section 6101.14 is amended by revising the first sentence of 
paragraph (a)(1) and (a)(2) to read as follows:


6101.14  Accelerated procedure in appeals [Rule 14].

    (a) Election. (1) The accelerated procedure is available solely at 
the appellant's election, and only when there is a monetary amount in 
dispute and that amount is $100,000 or less. * * *
    (2) At the request of the Government, or on its own initiative, the 
Board may determine whether the amount in dispute is greater than 
$100,000, such that the election is inappropriate. * * *
* * * * *
    7. Section 6101.18 is amended by revising paragraph (b) to read as 
follows:


6101.18  Sanctions and other proceedings [Rule 18].

* * * * *
    (b) Sanctions. If the Board expressly finds that (i) a protest or a 
portion of a protest is frivolous or has been brought or pursued in bad 
faith; or (ii) that any person has willfully abused the Board's process 
during the course of a protest, the Board may impose appropriate 
sanctions. In any type of case, when a party or its representative or 
attorney or any expert/consultant fails to comply with any direction or 
order issued by the Board (including an order to provide or permit 
discovery), or engages in misconduct affecting the Board, its process, 
or its proceedings, the Board may make such orders as are just, 
including the imposition of appropriate sanctions. The sanctions 
include:
* * * * *
    8. Section 6101.19 is amended by revising paragraphs (a)(2), 
(a)(3), and (d) to read as follows:


6101.19  Hearings; scheduling; notice; unexcused absences; suspension 
decisions [Rule 19].

    (a) Scheduling of hearings.
    (1) * * *
    (2) Protest suspension hearing. The Board will, upon timely request 
by an interested party, hold a hearing to determine whether the Board 
should suspend the procurement authority of the Administrator or the 
Administrator's delegation of procurement authority for the protested 
procurement on an interim basis until the Board can decide the protest. 
Such a request is timely if the underlying protest is filed on the 
later of (i) the tenth day after the date of contract award; or (ii) 
the fifth day after the debriefing date offered to an unsuccessful 
offeror for any debriefing that is requested and, when requested, is 
required. The Board will hold the requested hearing within 5 days after 
the date of the filing of the protest or, in the case of a request for 
debriefing under the provisions of 10 U.S.C. 2305(b)(5), or 41 U.S.C. 
253b, within 5 days after the later of the date of the filing of the 
protest or the date of the debriefing.
    (3) Protest hearing on merits. Any hearing on the merits of a 
protest will commence no later than 35 calendar days after the filing 
of the protest.
* * * * *
    (d) Suspension decision. The Board shall suspend the respondent's 
procurement authority, or a delegation thereof, pending a decision on 
the merits of the protest, unless the respondent establishes at hearing 
that: (1) Absent suspension, contract award, if not already made, is 
likely to occur within 30 calendar days; and (2) urgent and compelling 
circumstances which significantly affect interests of the United States 
will not permit waiting for the decision of the Board. If a contract 
award has not been made, a suspension shall not preclude the Federal 
agency concerned from continuing the procurement process up to but not 
including award of the contract unless the Board determines such action 
is not in the best interests of the United States. The decision 
regarding suspension will be by order of the panel chairman and may be 
oral, to be reduced to writing as soon as practicable.
    9. Section 6101.28 is amended by redesignating the three sentences 
of paragraph (a) as (a)(1) and adding new paragraphs (a)(2) and (d) to 
read as follows:


6101.28  Dismissals [Rule 28]:

    (a) Generally.
    (2) Protests. The Board may also dismiss a protest that the Board 
determines (i) is frivolous; (ii) has been brought or pursued in bad 
faith; or (iii) does not state on its face a valid basis for protest.
* * * * *
    (d) Settlement agreements. Any agreement that provides for the 
dismissal of a protest and involves a direct or indirect expenditure of 
appropriated funds shall be submitted to the Board and shall be made a 
part of the public record (subject to any protective order considered 
appropriate by the Board) before dismissal of the protest. If a Federal 
agency is a party to a settlement agreement, the submission of the 
agreement to the Board shall include a memorandum, signed by the 
contracting officer concerned, that describes in detail the 
procurement, the grounds for protest, the Federal Government's position 
regarding the grounds for protest, the terms of the settlement, and the 
agency's position regarding the propriety of the award or proposed 
award of the contract at issue in the protest.
    10. Section 6101.29 is amended by revising paragraph (b) to read as 
follows:


6101.29  Decisions [Rule 29].

* * * * *
    (b) Timing of protest decisions. (1) A decision on the merits of a 
protest will be issued within 65 calendar days after the filing of the 
protest, unless the chairman of the Board determines that the specific 
and unique circumstances of the protest require a longer period. In 
that event, the Board shall issue a decision within the longer period 
determined by the chairman of the Board.
    (2) In a protest, the Board ordinarily will, within the 65-
calendar-day period applicable to the original protest, decide all 
issues, including those raised by amendment or intervention, that are 
necessary to the resolution of the case. The Board will whenever 
possible notify the parties prior to the originally scheduled hearing 
date, or date for record submission, if it believes that because of a 
new ground of protest raised by an amendment or by an intervention, the 
protest might not be decided within the original 65-calendar-day 
period.
    11. Section 6101.35 is amended by revising the first sentence of 
paragraph (a) to read as follows:


6101.35  Award of costs [Rule 35].

    (a) Requests for costs. An appropriate prevailing party in a 
proceeding before the Board may apply for an award of costs, including 
if applicable an award of attorney fees, under the Brooks Automatic 
Data Processing Act, 40 U.S.C. 759(f), the Equal Access to Justice Act, 
5 U.S.C. 504, or any other provision that may entitle that party to 
such an award, subsequent to the Board's decision in the proceeding. * 
* *
* * * * *
    12. Section 6101.36 is amended by revising the third sentence of 
paragraph (c) to read as follows:


6101.36  Payment of Board awards [Rule 36].

* * * * *
    (c) Procedure for filing of certificates of finality. * * * When 
the form is executed on behalf of an appellant or applicant by an 
attorney or other representative, proof of signatory authority shall 
also be furnished. * * *
* * * * *
    Dated: November 29, 1994.
Stephen M. Daniels,
Chairman, GSA Board of Contract Appeals.
[FR Doc. 94-29694 Filed 12-1-94; 8:45 am]
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