[Federal Register Volume 60, Number 64 (Tuesday, April 4, 1995)]
[Rules and Regulations]
[Pages 17023-17028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8135]



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GENERAL SERVICES ADMINISTRATION

Board of Contract Appeals

48 CFR Part 6101

RIN Number 3090-AF62


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

AGENCY: Board of Contract Appeals, General Services Administration.

ACTION: Final rule.

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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 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 conform the Board's rules of 
procedure to the amendments made to its jurisdictional statutes.

EFFECTIVE DATE: May 5, 1995.

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. Effective Dates

    Pursuant to Sections 10001 and 10002 of the FASA, these rules (as 
well as Sections 1432-1434, 1436-1438, and 2351 (c)-(d) of the Act) are 
applicable to all proceedings filed on or after May 5, 1995. Section 
1435 of the Act shall be applicable to cost applications where 
[[Page 17024]] the underlying protest is filed on or after May 5, 1995.

D. Background

    On December 2, 1994, the Board published a proposed rule with 
request for comments [59 FR 61861] containing revisions to the Board's 
rules of procedure. The background information accompanying the 
proposed rule explained that the revisions were necessitated by the 
amendment of the Board's jurisdictional statutes, the Contract Disputes 
Act of 1978 (41 U.S.C. 601-613) and the Brooks Automatic Data 
Processing Act (40 U.S.C. 759(f)), by the FASA. Interested persons were 
invited to submit comments by January 31, 1995, and the Board received 
comments from components of two federal agencies, two bar association 
groups, and one industry association. After consideration of these 
comments, the Board's members adopted the proposed rules, as revised, 
by majority vote.
    The most significant changes made by the revisions to the Board's 
rules are highlighted in the next section of the preamble. Following 
that section, the preamble summarizes the more significant comments 
received by the Board during the comment period and indicates how these 
comments were addressed in preparing this final rule.

E. Highlights of 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 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-calendar-day period after a debriefing 
date and the 10-calendar-day period after contract award for filing a 
protest that requests a suspension hearing.
    Three other sections relating to timing have also been revised: (1) 
Section 6101.19(a)(2) provides 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) 
Sec. 6101.19(a)(3) provides 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); (3) Sec. 6101.29(b) provides that 
a decision on the merits of a protest shall be issued 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 $10,000 to 
$50,000 (Sec. 6101.13(a)), and the accelerated procedure dollar 
threshold has been changed from $50,000 to $100,000 (Sec. 6101.14(a)). 
These changes implement the amendments to sections 9(a) and 8(f) of the 
Contract Disputes Act of 1978 (41 U.S.C. Secs. 608(a), 607(f)) 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) 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 is filed by the later of (1) the tenth calendar day 
after the date of contract award or (2) the fifth calendar day after 
the debriefing date for any debriefing that is requested and required. 
The Board must hold the suspension hearing within 5 working days after 
the date the protest was filed, or in the case of a request for 
debriefing, within 5 working 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 [[Page 17025]] award or 
proposed award of the contract at issue in the protest.

Award of Costs

    Section 6101.35(a) has been amended to conform to Section 1435 of 
the FASA by stating that an appropriate party applying for an award of 
costs must also be a prevailing party. Also, two additions are made to 
the application requirements in Sec. 6101.35(c): (1) An applicant 
asserting that it is a qualifying small business must provide evidence 
of that fact in its cost application; and (2) an applicant requesting 
reimbursement of attorney fees that exceed the statutory rate must 
explain why such fees are justified. Finally, Sec. 6101.35(d) now 
provides that if the Government contends that fees for consultants or 
expert witnesses for which reimbursement is sought exceed the highest 
rate of compensation for expert witnesses paid by the agency (in 
appeals), or by the Federal Government (in protests), then it must 
include evidence of the relevant highest rate in the answer filed in 
response to the cost application.

F. Summary of Comments

    The Board received written comments from five commentators: 
components of two federal agencies, two bar association groups, and one 
industry association. The majority of the comments focused on five of 
the rules. The Board carefully considered each comment and adopted some 
of the suggestions made. The more significant comments are discussed 
below in a section-by-section format.

Section 6101.2  (Time: Enlargement; Computation)

    One commentator noted that the Board's proposed rules retained 
working days as the basis for calculating time periods that are less 
than 11 days, and suggested that using calendar days to calculate all 
time periods would be less confusing and more consistent with the FASA, 
which defines all time limits in calendar days. The Board last changed 
the method of calculating short time deadlines on January 3, 1994, when 
the Board rules were amended. At the same time, to reduce confusion, 
the rules were amended to specify working days or calendar days for 
each time frame given. Since then, litigants have become familiar with 
the current system of computing short time frames, and the Board 
determined that the advantages of leaving that system in place 
outweighed any advantage to be gained by making the suggested change.

Section 6101.18  (Sanctions and Other Proceedings)

    As required by the FASA, Section 6106.18 has been amended to 
provide that the Board may impose appropriate sanctions if it finds 
that a protest is frivolous or has been brought or pursued in bad 
faith, or that a person has willfully abused the Board's process during 
a protest. One commentator suggested that it would be useful for the 
Board to provide advice in this summary as to the type of conduct that 
it is likely to view as frivolous or in bad faith. After careful 
consideration, the Board determined that such matters are more 
appropriately decided in the context of specific cases. The Board will 
look to the decisions of the United States Court of Appeals for the 
Federal Circuit and other case law in determining appropriate 
sanctions.

Section 6101.19  (Hearings; Scheduling; Notice; Unexcused Absences; 
Suspension Decision)

    In order to conform to Section 1433(a)(2) of the FASA, the Board 
amended Sec. 6101.19(a)(2) to permit an interested party to request a 
suspension hearing if the underlying protest is filed by the later of 
(1) the tenth calendar day after the date of contract award; or (2) the 
fifth calendar day after the debriefing date for any debriefing that is 
requested and required. According to two commentators, Congress 
intended to provide meaningful relief to a protester filing a protest 
within 5 calendar days of a required debriefing, and to obviate the 
protester's need to file a so-called ``defensive'' protest before 
receiving all information which the FASA requires the agency to 
provide. Current Board rules nevertheless require that protests be 
filed within 10 working days of the date on which the protester knew or 
should have known of the grounds for its protest 
(Sec. 6101.5(b)(3)(ii)). Thus, according to the commentators, for 
protests based on information known or constructively known at the time 
an award is announced, the 10-working-day period for filing a protest 
may expire before a required debriefing is held. Consequently, a 
protest filed after a required debriefing will be timely for purposes 
of a suspension hearing but untimely as a protest. The commentators 
suggest that the rules should provide that a protest (other than one 
based on information that was known or should have been known prior to 
contract award), will be considered timely if: (1) It is filed within 
10 days after the protester knew (or should have known) of the basis of 
protest; or (2) it would trigger a suspension under Section 1433(a) of 
the FASA.
    The Board disagrees with this interpretation of the FASA's intent. 
By providing for agency debriefings, the FASA seeks to remedy the 
situation in which a protester must file a protest before the basis is 
known, in order to timely request a suspension hearing. The Act does 
not change the requirement that a protest be filed within 10 working 
days of the date on which the basis for the protest is known. When 
information that serves as the basis for the protest was learned at the 
debriefing, if a protester files within 5 calendar days after a 
debriefing, that is also within 10 working days of knowing the basis 
for the protest. When information that serves as the basis for the 
protest was learned prior to the debriefing, however, making the change 
suggested by the commentators would allow the protester to delay its 
filing and thereby prolong the period of time before contract 
performance can proceed. The Board decided that to amend its rules for 
this purpose would be inconsistent with Congress' intent that protests 
not delay procurements unnecessarily.
    Section 6106.19(d) (Proceedings) has been amended to conform to the 
FASA. It now provides that if contract award has not been made, a 
suspension shall not preclude an agency 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. One commentator suggested that the Board include a ``best 
interests'' test in the rule to minimize the potential for factual 
disputes and evidentiary hearings. The Board believes, however, that 
``best interests'' are more appropriately determined on a case-by-case 
basis.

Section 6101.29  (Decisions)

    One commentator suggested that this rule include the requirement 
contained in Section 1433 of the FASA which provides that a protest 
amendment which adds a new ground of protest should be resolved, to the 
maximum extent possible, within the time limits established for 
resolving the initial protest. The Board agrees with this comment, and 
has added language to Sec. 6101.29(b)(2) that reflects the statute.

Section 6106.35  (Award of Costs)

    Section 1435 of the FASA permits a successful protester to recover 
reasonable consultant and expert witness fees, but limits such fees 
(except for small businesses) to the ``highest rate [[Page 17026]] of 
compensation for expert witnesses paid by the Federal Government.'' One 
commentator encouraged the Board to provide guidance in the rules on 
the manner in which this language will be implemented, for example, by 
publishing any uniform cap that it intends to impose on consultant 
fees. In addition, the commentator suggested that if consultant fee 
caps are to be determined on a case-by-case basis, the Board should 
indicate which party will have the burden of establishing the fee cap 
and the factors the Board will consider in determining the applicable 
cap. The commentator suggested that since the Government is in the best 
position to obtain the information, it should have the burden of 
providing evidence of ``the highest rate of compensation for expert 
witnesses'' paid by the Government. Finally, the commentator suggested 
that the Board's rules include procedures under which it will allow 
recovery of attorney fees at higher than the $150 per hour rate 
established by the FASA.
    The Board carefully considered the suggestions made by this 
commentator and has incorporated several of them in the final rules. 
First, although the Board determined that it would consider requests 
for reimbursement of attorney fees that exceed the statutory rate on a 
case-by-case basis, it amended Rule 6101.35(c)(6) to specify that the 
applicant must show why such an increase is justified, e.g., an 
increase in the cost of living or a special factor, such as the limited 
availability of qualified attorneys for the proceedings involved. 
Similarly, the Board added Sec. 6101.35(c)(5), which provides that an 
applicant asserting that it is a qualifying small business (and thus 
exempt from the fee limitations) must include evidence thereof in its 
application.
    The Board also determined that it would determine consultant fee 
caps on a case-by-case basis. However, Sec. 6101.35(d)(1) now provides 
that if the Government contends that any consultant or expert witness 
fees claimed by the applicant exceed the highest rate of compensation 
for expert witnesses paid by the agency (in appeals), or the Federal 
Government (in protests), it must include in the answer evidence of the 
relevant highest rate.

List of Subjects in 48 CFR Part 6101

    Administrative practice and procedure, Government procurement.

    For the reasons set out in the preamble, 41 CFR Part 6101 is 
amended as set forth below:

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)(7); 41 U.S.C. 607(f).

    2. Section 6101.0 is revised to read as follows:


Sec. 6101.0  Foreword.

    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 qualification 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 Sec. 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:


Sec. 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:


Sec. 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 (1) a Saturday, a Sunday, or a 
legal holiday, or (2) 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 [[Page 17027]] 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 title and the first 
sentence of paragraph (a)(1) and of (a)(2) to read as follows:


Sec. 6101.13  Small claims procedure 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 of (a)(2) to read as follows:


Sec. 6101.14  Acceleratd 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) 
introductory text to read as follows:


Sec. 6101.18  Sanctions and other proceedings [Rule 18].

* * * * *
    (b) Sanctions. If the Board expressly finds that a protest or a 
portion of a protest is frivolous or has been brought or pursued in bad 
faith; or 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:


Sec. 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 by the 
later of (i) the tenth calendar day after the date of contract award; 
or (ii) the fifth calendar 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 working 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 working 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 that 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:


Sec. 6101.28  Dismissals [Rule 28].

    (a) Generally.
    (1) * * *
    (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:


Sec. 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 will, to the maximum extent practicable 
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. [[Page 17028]] 
    11. Section 6101.35 is amended by revising the first sentence of 
paragraph (a), adding paragraphs (c)(5) and (c)(6), and adding a 
sentence of the end of paragraph (d)(1) to read as follows:


Sec. 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. * 
* *
* * * * *
    (c) Application requirements. * * *
    (5) If the applicant asserts that it is a qualifying small business 
concern, contain evidence thereof.
    (6) If the application requests reimbursement of attorney fees that 
exceed the statutory rate, explain why an increase in the cost of 
living or a special factor, such as the limited availability of 
qualified attorneys for the proceedings involved, justifies such fees.
    (d) Proceedings.
    (1) * * * If respondent contends that any fees for consultants or 
expert witnesses for which reimbursement is sought in the application 
exceed the highest rate of compensation for expert witnesses paid by 
the agency (appeals), or by the Federal Government (protests), 
respondent shall include in the answer evidence of such highest rate.
* * * * *
    12. Section 6101.36 is amended by revising the third sentence of 
paragraph (c) to read as follows:


Sec. 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. * * *
* * * * *
    13. In the appendix to part 6101, Form No. 4 (Government 
Certificate of Finality) and Form No. 5 (Appellant/Protester/
Intervenor/Applicant Certificate of Finality) are revised to read as 
follows:
APPENDIX--FORM NOS. 1-5
* * * * *

Form 4--Board of Contract Appeals

General Services Administration, Washington, DC 20405
GSBCA------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

Contract/Solicitation No.

----------------------------------------------------------------------

GOVERNMENT CERTIFICATE OF FINALITY

    A. Date claim(s) filed with the contracting officer:
    B. Amount to be paid: $________
    C. Agency address (regional office if other than central 
office):
    D. Agency Certification.

----------------------------------------------------------------------
hereby certifies that:

    (1) it has not initiated and will not initiate any proceeding at 
the Board for the reconsideration of, or relief from, this award;
    (2) it has not initiated and will not initiate any appeal of 
this award to the United States Court of Appeals for the Federal 
Circuit.

Date-------------------------------------------------------------------

Government Agency

By---------------------------------------------------------------------
Signature and Title

    Note: This format shall not be printed, reproduced, or stocked 
by the Central office or regional offices and shall be used only as 
a guide for individual preparation.

Form 5--Board of Contract Appeals

General Services Administration, Washington, DC 20405
GSBCA------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

Contract/Solicitation No.

----------------------------------------------------------------------

APPELLANT/PROTESTER/INTERVENOR/APPLICANT CERTIFICATE OF FINALITY

    A. Address to which check should be sent (if check is to be sent 
to counsel, enclose a power of attorney):
    B. Appellant/Protester/Intervenor/Applicant Certification

----------------------------------------------------------------------
hereby certifies that:

    (1) it has not initiated and will not initiate any proceeding at 
the Board for the reconsideration of, or relief from, this award;
    (2) it has not initiated and will not initiate any appeal of 
this award to the United States Court of Appeals for the Federal 
Circuit; and
    (3) it agrees to accept the amount awarded, plus any interest 
awarded, in accordance with the Board's decision in this case, in 
full and final satisfaction of its case.

Date-------------------------------------------------------------------

Appellant/Protester/Intervenor/Applicant

By---------------------------------------------------------------------
Signature and Title

    Note: This format shall not be printed, reproduced, or stocked 
by the Central office or regional offices and shall be used only as 
a guide for individual preparation.

    Dated: March 23, 1995.
Stephen M. Daniels,
Chairman, GSA Board of Contract Appeals.
[FR Doc. 95-8135 Filed 4-3-95; 8:45 am]
BILLING CODE 6820-RW-M