[Federal Register Volume 62, Number 88 (Wednesday, May 7, 1997)]
[Rules and Regulations]
[Pages 24804-24808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11728]


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DEPARTMENT OF ENERGY

10 CFR Parts 703 and 1023

RIN 1901-AA30


Board of Contract Appeals; Contract Appeals

AGENCY: Board of Contract Appeals, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy amends its regulations concerning 
proceedings and functions of the Board of Contract Appeals. This action 
is necessary to update the rules and to reorganize and supplement the 
existing rules to provide the public with a better understanding of the 
Board and its functions. This rule adds an overview of the Board's 
organization, authorities and various functions, enunciates 
longstanding policies favoring the use of Alternative Dispute 
Resolution (ADR), and confirms the Board's authority to engage in ADR 
and provide an array of ADR neutral services, modifies the Rules of 
Practice for Contract Disputes Act (CDA) appeals to implement changes 
made to the CDA by the Federal Acquisition Streamlining Act (FASA), and 
removes unnecessary and obsolete rules related to the Board's non-CDA 
appeals and Contract Adjustment Board functions.

DATES: This rule is effective June 6, 1997.

    Applicability date: In accordance with Sec. 1023.102, rule 1(a) and 
(b) of Sec. 1023.120 shall apply to appeals filed on or after October 
1, 1995.

FOR FURTHER INFORMATION CONTACT: E. Barclay Van Doren, Chair, 
Department of Energy, Board of Contract Appeals, (202) 426-9316.

SUPPLEMENTARY INFORMATION:

I. Background
    A. Discussion
II. Procedural Requirements
    A. Review under Executive Order 12866
    B. Review under Executive Order 12988
    C. Review under the Regulatory Flexibility Act
    D. Review under the Paperwork Reduction Act
    E. Review under the National Environmental Policy Act
    F. Review under Executive Order 12612
    G. Review Under Small Business Regulatory Enforcement Fairness 
Act of 1996
    H. Review Under the Unfunded Mandates Reform Act of 1995

I. Background

A. Discussion

    On October 30, 1996, the Department published a proposed rule in 
the Federal Register (61 FR 55932) to update and reorganize the various 
rules previously issued by the Energy Board of Contract Appeals. The 
Department now adopts the proposed rule as final.
    This Rulemaking has several purposes. First, the Overview, 
Secs. 1023.1-1023.9, set out a statement of the organization, 
functions, and authorities of the Board of Contract Appeals (Board or 
EBCA) of the Department of Energy (DOE) and principles applicable to 
all the Board's functions. The Board has functions other than the 
resolution of disputes brought under the Contract Disputes Act (CDA), 
yet the previous rules did not list and describe these functions and 
their associated authorities in any single place. This proved confusing 
to some who were unfamiliar with the Board. The revised rules, in one 
place, describe and cross-reference all of the standing functions and 
rules of the Board. This change should help those unfamiliar with the 
Board to understand its several functions and the limits of its 
authority, and to assist potential appellants to determine whether the 
Board is the proper forum for the resolution of a particular dispute. 
Moreover, the rule provides, for informational purposes, the Board's 
delegated general authorities, which are set forth in a delegation 
order from the Secretary of Energy.
    Second, this Rulemaking enunciates in Sec. 1023.8, the Board's and 
DOE's policy favoring the use of ADR in the resolution of contract and 
other disputes. The previous rules did not recognize ADR nor the 
authority of the Board and its members to employ and participate in ADR 
procedures. The Board has a longstanding policy to encourage the 
consensual resolution of disputes. These revised rules contain an 
explicit statement of the Board's and DOE's policy regarding ADR. In 
addition to the statement of policy contained in Section 1023.8, 
express Board ADR authorities are set forth in Secs. 1023.1(d), 
1023.3(b), 1023.4, 1023.5, and 1023.6. Included are authorities 
permitting the Chair to exchange neutrals with other Boards of Contract 
Appeals. Further, the Board is authorized to provide neutral services 
for certain contract disputes below the prime contract level in 
instances specified in Section 1023(d).
    Third, the Federal Acquisition Streamlining Act (FASA) modified the 
CDA with respect to matters involving claim certification and 
availability of certain appeal procedures. This Rulemaking updates the 
Board's rules of practice (Rules 1, 6, 13, and 14) to conform to these 
changes. The Streamlining Act increased the threshold for CDA claim 
certification to $100,000, from $50,000. The Act also increased the 
amounts under which a claim is eligible for either accelerated 
procedures or small claims procedures. Claims under $100,000 
(previously $50,000) will be eligible for accelerated procedures and 
claims under $50,000 (previously $10,000) will be, at the contractor's 
election, resolved under the small claims procedures.
    Fourth, this Rulemaking removes the separate rules of practice (10 
CFR part 703) for contract and subcontract appeals which are not 
governed by the CDA (non-CDA appeals) and the rules of the Contract 
Adjustment Board (10 CFR part 1023, subpart B). No pre-CDA appeals have 
been filed with the Board for more than eight years and separate rules 
are no longer necessary. The rules of practice for CDA appeals (10 CFR 
part 1023, subpart A) will be applicable to both CDA appeals and non-
CDA appeals from contracting officer decisions and to any subcontractor 
disputes over which the Board has jurisdiction. In non-CDA appeals, the 
Board may make procedural modifications determined by the Board to be 
appropriate, such as disregarding rule provisions pertaining

[[Page 24805]]

to claim certification. Regulatory authority for appeals to the 
Contract Adjustment Board no longer exists and the rules of the 
Contract Adjustment Board are removed hereby.
    Finally, the Rulemaking renumbers the rules of practice for 
contract appeals to the Board to allow for the inclusion of the 
Statement of Organization, Functions, and Authorities and minor 
conforming changes would be made to the Rules of Practice.
    No comments were received following publication of the proposed 
rule. However, Sec. 1023.2(a) has been revised to reflect that the 
Board has moved and has new addresses and telephone numbers. No other 
changes have been made.

II. Procedural Requirements

A. Review Under Executive Order 12866

    This regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
sections 3(a) and 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The rules were reviewed under the Regulatory Flexibility Act of 
1980, 5 U.S.C. 601, et seq., which requires preparation of an initial 
regulatory flexibility analysis for any proposed rule which is likely 
to have a significant economic impact on a substantial number of small 
entities. In the notice of proposed rulemaking, DOE certified that the 
rules will not have a significant economic impact on a substantial 
number of small entities; therefore, no regulatory flexibility analysis 
has been prepared.

D. Review Under the Paperwork Reduction Act

    The DOE has determined that the rules are exempt from the 
requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et 
seq.) by virtue of 44 U.S.C. 3518(c)(1)(B), which provides that the 
Paperwork Reduction Act does not apply to the collection of information 
during the conduct of an administrative action involving an agency 
against specific individuals or entities.

E. Review Under the National Environmental Policy Act

    The DOE has concluded that the promulgation of these rules does not 
represent a major Federal action having significant impact on the human 
environment under the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321, et seq.), or the Council on Environmental Quality 
Regulations (40 CFR parts 1500-08), and the DOE guidelines (10 CFR part 
1021), and, therefore, does not require an environmental impact 
statement or an environment assessment pursuant to NEPA.

F. Review Under Executive Order 12612

    Executive Order 12612, 52 FR 41685 (October 30, 1987), requires 
that regulations, rules, legislation, and any other policy actions be 
reviewed for any substantial direct effects on States, on the 
relationship between the national government and the States, and in the 
distribution of power and responsibilities among various levels of 
government. If there are sufficient substantial direct effects, then 
the Executive Order requires preparation of a federalism assessment to 
be used in all decisions involved in promulgating and implementing a 
policy action.
    This rule revises certain policy and procedural requirements. 
However, the DOE has determined that none of the revisions will have a 
substantial direct effect on the institutional interests or traditional 
functions of States.

G. Review Under Small Business Regulatory Enforcement Fairness Act of 
1996

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of the rule prior to its effective date. 5 U.S.C. 801. The 
report will state that it has been determined that the rule is not a 
``major rule'' as defined by 5 U.S.C. 804(3).

H. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. The impact of this rulemaking impact is less than $100 
million.

List of Subjects in 10 CFR Parts 703 and 1023

    Administrative practice and procedure, Government contracts, 
Government procurement.

    Issued in Washington, DC on April 28, 1997.
E. Barclay Van Doren,
Chair, Department of Energy, Board of Contract Appeals.

    For the reasons set forth in the preamble, parts 703 and 1023 of 
title 10 of the Code of Federal Regulations are amended as set forth 
below:

PART 703--CONTRACT APPEALS [REMOVED]

    1. Under the authority of 42 U.S.C. 2201(p), 42 U.S.C. 5814 (b) & 
(h) and 42 U.S.C. 7151, part 703 is removed.

PART 1023--CONTRACT APPEALS

    2. The authority citation for part 1023 is added to read as 
follows:

    Authority: 42 U.S.C. 2201, 5814, 7151, 7251; 5 U.S.C. 301; 41 
U.S.C. 321, 322, 601-613; 5 U.S.C. 571-583; 9 U.S.C. 1-16 unless 
otherwise noted.

    3. Part 1023 is amended by adding an undesignated center heading 
and Secs. 1023.1 through 1023.9 before subpart A to read as follows:

[[Page 24806]]

Overview: Organization, Functions and Authorities

Sec.
1023.1  Introductory material on the Board and its functions.
1023.2  Organization and location of the Board.
1023.3  Principles of general applicability.
1023.4  Authorities.
1023.5  Duties and responsibilities of the Chair.
1023.6  Duties and responsibilities of Board members and staff.
1023.7  Board decisions; assignment of judges.
1023.8  Alternative dispute resolution (ADR).
1023.9  General guidelines.


Sec. 1023.1  Introductory material on the Board and its functions.

    (a) The Energy Board of Contract Appeals (``EBCA'' or ``Board'') 
functions as a separate quasi-judicial entity within the Department of 
Energy (DOE). The Secretary has delegated to the Board's Chair the 
appropriate authorities necessary for the Board to maintain its 
separate operations and decisional independence.
    (b) The Board's primary function is to hear and decide appeals from 
final decisions of DOE contracting officers on claims pursuant to the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. 601 et seq. The Board's 
Rules of Practice for these appeals are set forth in subpart A of this 
part. Rules relating to recovery of attorney fees and other expenses 
under the Equal Access to Justice Act are set forth in subpart C of 
this part.
    (c) In addition to its functions under the CDA, the Secretary in 
Delegation Order 0204-162 has authorized the Board to:
    (1) Adjudicate appeals from agency contracting officers' decisions 
not taken pursuant to the CDA (non-CDA disputes) under the Rules of 
Practice set forth in subpart A of this part;
    (2) Perform other quasi-judicial functions that are consistent with 
the Board members' duties under the CDA as directed by the Secretary;
    (3) Serve as the Energy Financial Assistance Appeals Board to hear 
and decide certain appeals by the Department's financial assistance 
recipients as provided in 10 CFR 600.22, under Rules of Procedure set 
forth in 10 CFR part 1024;
    (4) Serve as the Energy Invention Licensing Appeals Board to hear 
and decide appeals from license terminations, denials of license 
applications and petitions by third-parties for license terminations, 
as provided in 10 CFR part 781, under Rules of Practice set forth in 
subpart A of this part, modified by the Board as determined to be 
necessary and appropriate with advance notice to the parties; and
    (5) Serve as the Energy Patent Compensation Board to hear and 
decide, as provided in 10 CFR part 780, certain applications and 
petitions filed under authority provided by the Atomic Energy Act of 
1954, ch. 1073, 68 Stat. 919 (1954), and the Invention Secrecy Act, 35 
U.S.C. 181-188, including:
    (i) Whether a patent is affected with the public interest;
    (ii) Whether a license to a patent affected by the public interest 
should be granted and equitable terms therefor; and
    (iii) Whether there should be allotment of royalties, award, or 
compensation to a party contributing to the making of certain 
categories of inventions or discoveries, or an owner of a patent within 
certain categories, under Rules of Practice set forth in subpart A of 
this part, modified by the Board as determined to be necessary and 
appropriate, with advance notice to the parties.
    (d) The Board provides alternative disputes resolution neutral 
services and facilities, as agreed between the parties and the Board, 
for:
    (1) Disputes related to the Department's prime contracts and to 
financial assistance awards made by the Department.
    (2) Disputes related to contracts between the Department's cost-
reimbursement contractors, including Management and Operating 
Contractors (M&Os) and Environmental Remediation Contractors (ERMCs), 
and their subcontractors. Additionally, with the consent of both the 
responsible prime DOE cost-reimbursement contractor and the cognizant 
DOE Contracting Officer, the Board may provide neutral services and 
facilities for disputes under second tier subcontracts where the costs 
of litigating the dispute might be ultimately charged to the DOE as 
allowable costs through the prime contract.
    (3) Other matters involving DOE procurement and financial 
assistance, as appropriate.


Sec. 1023.2  Organization and location of the Board.

    (a) Location of the Board. (1) The Board's offices are located at, 
and hand and commercial parcel deliveries should be made to: Board of 
Contract Appeals, U.S. Department of Energy, 950 L'Enfant Plaza, SW., 
Suite 810, Washington, DC 20024.
    (2) The Board's mailing address is as follows. The entire nine 
digit ZIP code should be used to avoid delay: Board of Contract 
Appeals, U.S. Department of Energy, HG-50, Building 950, Washington, DC 
20585-0116.
    (3) The Board's telephone numbers are (202) 426-9316 (voice) and 
(202) 426-0215 (facsimile).
    (b) Organization of the Board. As required by the CDA, the Board 
consists of a Chair, a Vice Chair, and at least one other member. 
Members are designated Administrative Judges. The Chair is designated 
Chief Administrative Judge and the Vice Chair, Deputy Chief 
Administrative Judge.


Sec. 1023.3  Principles of general applicability.

    (a) Adjudicatory functions. The following principles shall apply to 
all adjudicatory activities whether pursuant to the authority of the 
CDA, authority delegated under this part, or authority of other laws, 
rules, or directives.
    (1) The Board shall hear and decide each case independently, 
fairly, and impartially.
    (2) Decisions shall be based exclusively upon the record 
established in each case. Written or oral communication with the Board 
by or for one party is not permitted without participation or notice to 
other parties. Except as provided by law, no person or agency, directly 
or indirectly involved in a matter before the Board, may submit off the 
record to the Board or the Board's staff any evidence, explanation, 
analysis, or advice (whether written or oral) regarding any matter at 
issue in an appeal, nor shall any member of the Board or of the Board's 
staff accept or consider ex parte communications from any person. This 
provision does not apply to consultation among Board members or staff 
or to other persons acting under authority expressly granted by the 
Board with notice to parties. Nor does it apply to communications 
concerning the Board's administrative functions or procedures, 
including ADR.
    (3) Decisions of the Board shall be final agency decisions and 
shall not be subject to administrative appeal or administrative review.
    (b) Alternative Dispute Resolution (ADR) Functions. (1) Board 
judges and personnel shall perform ADR related functions impartially, 
with procedural fairness, and with integrity and diligence.
    (2) Ex parte communications with Board staff and judges limited to 
the nature, procedures, and availability of ADR through the Board are 
permitted and encouraged. Once parties have agreed to engage in ADR and 
have entered into an ADR agreement accepted by the Board, ex parte 
communications by Board neutrals,

[[Page 24807]]

support staff and parties shall be as specified by any applicable 
agreements or protocols and as is consistent with law, integrity, and 
fairness.
    (3) Board-supplied neutrals and support personnel shall keep ADR 
matters confidential and comply with any confidentiality requirements 
of ADR agreements accepted by the Board. Board personnel may not 
disclose any confidential information unless permitted by the parties 
or required to do so by law.


Sec. 1023.4  Authorities.

    (a) Contract Disputes Act Authorities. The CDA imposes upon the 
Board the duty, and grants it the powers necessary, to hear and decide, 
or to otherwise resolve through agreed procedures, appeals from 
decisions made by agency contracting officers on contractor claims 
relating to contracts entered into by the DOE or relating to contracts 
of another agency, as provided in Section 8(d) of the CDA, 41 U.S.C. 
607(d). The Board may issue rules of practice or procedure for 
proceedings pursuant to the CDA. The CDA also imposes upon the Board 
the duty, and grants it powers necessary, to act upon petitions for 
orders directing contracting officers to issue decisions on claims 
relating to such contracts, 41 U.S.C. 605(c)(4). The Board may apply 
through the Attorney General to an appropriate United States District 
Court for an order requiring a person, who has failed to obey a 
subpoena issued by the Board, to produce evidence or to give testimony, 
or both, 41 U.S.C. 610.
    (b) General Powers and Authorities. The Board's general powers 
include, but are not limited to, the powers to:
    (1) Manage its cases and docket; issue procedural orders; conduct 
conferences and hearings; administer oaths; authorize and manage 
discovery, including depositions and the production of documents or 
other evidence; take official notice of facts within general knowledge; 
call witnesses on its own motion; engage experts; dismiss actions with 
or without prejudice; decide all questions of fact or law raised in an 
action; and make and publish rules of practice and procedure;
    (2) Exercise, in proceedings to which it applies, all powers 
granted to arbitrators by the Federal Arbitration Act, 9 U.S.C. 1-14, 
including the power to issue summonses.
    (c) In addition to its authorities under the CDA, the Board has 
been delegated by Delegation Order 0204-162 issued by the Secretary of 
Energy, the following authorities:
    (1) Issue rules, including rules of procedure, not inconsistent 
with this section and departmental regulations;
    (2) Issue subpoenas under the authority of Sec. 161.c of the Atomic 
Energy Act of 1954, 42 U.S.C. 2201(c), as applicable;
    (3) Such other authorities as the Secretary may delegate.


Sec. 1023.5  Duties and Responsibilities of the Chair.

    The Chair shall be responsible for the following:
    (a) The proper administration of the Board;
    (b) Assignment and reassignment of cases, including alternative 
dispute resolution (ADR) proceedings, to administrative judges, hearing 
officers, and decision panels;
    (c) Monitoring the progress of individual cases to promote their 
timely resolution;
    (d) Appointment and supervision of a Recorder;
    (e) Arranging for the services of masters, mediators, and other 
neutrals;
    (f) Issuing delegations of Board authority to individual 
administrative judges, panels of judges, commissioners, masters, and 
hearing officers within such limits, if any, which a majority of the 
members of the Board shall establish;
    (g) Designating an acting chair during the absence of both the 
Chair and the Vice Chair;
    (h) Designating a member of another Federal board of contract 
appeals to serve as the third member of a decision panel if the Board 
is reduced to less than three members because of vacant positions, 
protracted absences, disabilities or disqualifications;
    (i) Authorizing and approving ADR arrangements for Board cases; 
obtaining non-Board personnel to serve as settlement judges, third-
party neutrals, masters and similar capacities; authorizing the use of 
Board-provided personnel and facilities in ADR capacities, for matters 
before the Board, and for other matters when requested by officials of 
the DOE; and entering into arrangements with other Federal 
administrative forums for the provision of personnel to serve in ADR 
capacities on a reciprocal basis;
    (j) Recommending to the Secretary the selection of qualified and 
eligible members. New members shall, upon selection, be appointed to 
serve as provided in the CDA;
    (k) Determining whether member duties are consistent with the CDA; 
and
    (l) Reporting Board activities to the Secretary not less often than 
biennially.


Sec. 1023.6  Duties and responsibilities of Board members and staff.

    (a) As is consistent with the Board's functions, Board members and 
staff shall perform their duties with the highest integrity and 
consistent with the principles set forth in Sec. 1023.3.
    (b) Members of the Board and Board attorneys may serve as 
commissioners, magistrates, masters, hearing officers, arbitrators, 
mediators, and neutrals and in other similar capacities.
    (c) Except as may be ordered by a court of competent jurisdiction, 
members of the Board and its staff are permanently barred from ex parte 
disclosure of information concerning any Board deliberations.


Sec. 1023.7  Board decisions; assignment of judges.

    (a) In each case, the Chair shall assign an administrative judge as 
the Presiding Administrative Judge to hear a case and develop the 
record upon which the decision will be made. A Presiding Judge has 
authority to act for the Board in all non-dispositive matters, except 
as otherwise provided in this Part. This subparagraph shall not 
preclude the Presiding Administrative Judge from taking dispositive 
actions as provided in this Part or by agreement of the parties. Other 
persons acting as commissioners, magistrates, masters, or hearing 
officers shall have such powers as the Board shall delegate.
    (b) Except as provided by law, rule, or agreement of the parties, 
contract appeals and other cases are assigned to a deciding panel 
established by the Board Chair consisting of two or more administrative 
judges.
    (c) The concurring votes of a majority of a deciding panel shall be 
sufficient to decide an appeal. All members assigned to a panel shall 
vote unless unavailable. The Chair will assign an additional member if 
necessary to resolve tie votes.


Sec. 1023.8  Alternative dispute resolution (ADR).

    (a) Statement of Policy. It is the policy of the DOE and of the 
Board to facilitate consensual resolution of disputes and to employ ADR 
in all of the Board's functions when agreed to by the parties. ADR is a 
core judicial function performed by the Board and its judges.
    (b) ADR for Docketed Cases. Pursuant to the agreement of the 
parties, the Board, in an exercise of discretion, may approve either 
the use of Board-annexed ADR (ADR which is conducted under Board 
auspices and pursuant to Board order) or the suspension of the Board's 
procedural schedule to permit the parties to engage in ADR outside of 
the Board's purview. While any form of

[[Page 24808]]

ADR may be employed, the forms of ADR commonly employed using Board 
judges as neutrals are: case evaluation by a settlement judge (with or 
without mediation by the judge); arbitration; mini-trial; summary (time 
and procedurally limited) trial with one-judge; summary binding (non-
appealable) bench decision; and fact-finding.
    (c) ADR for Non-Docketed Disputes. As a general matter the earlier 
a dispute is identified and resolved, the less the financial and other 
costs incurred by the parties. When a contract is not yet complete 
there may be opportunities to eliminate tensions through ADR and to 
confine and resolve problems in a way that the remaining performance is 
eased and improved. For these reasons, the Board is available to 
provide a full range of ADR services and facilities before, as well as 
after, a case is filed with the Board. A contracting officer's decision 
is not a prerequisite for the Board to provide ADR services and such 
services may be furnished whenever they are warranted by the overall 
best interests of the parties. The forms of ADR most suitable for mid-
performance disputes are often the non-dispositive forms such as 
mediation, facilitation and fact-finding, mini-trials, or non-binding 
arbitration, although binding arbitration is also available.
    (d) Availability of Information on ADR. Parties are encouraged to 
consult with the Board regarding the Board's ADR services at the 
earliest possible time. A handbook describing Board ADR is available 
from the Board upon request.


Sec. 1023.9  General guidelines.

    (a) The principles of this Overview shall apply to all Board 
functions unless a specific provision of the relevant rules of practice 
applies. It is, however, impractical to articulate a rule to fit every 
circumstance. Accordingly, this part, and the other Board Rules 
referenced in it, will be interpreted and applied consistent with the 
Board's responsibility to provide just, expeditious, and inexpensive 
resolution of cases before it. When Board rules of procedure do not 
cover a specific situation, a party may contend that the Board should 
apply pertinent provisions from the Federal Rules of Civil Procedure. 
However, while the Board may refer to the Federal Rules of Civil 
Procedure for guidance, such Rules are not binding on the Board absent 
a ruling or order to the contrary.
    (b) The Board is responsible to the parties, the public, and the 
Secretary for the expeditious resolution of cases before it. 
Accordingly, subject to the objection of a party, the procedures and 
time limitations set forth in rules of procedure may be modified, 
consistent with law and fairness. Presiding judges and hearing officers 
may issue prehearing orders varying procedures and time limitations if 
they determine that purposes of the CDA or the interests of justice 
would be advanced thereby and provided both parties consent. Parties 
should not consume an entire period authorized for an action if the 
action can be sooner completed. Informal communication between parties 
is encouraged to reduce time periods whenever possible.
    (c) The Board shall conduct proceedings in compliance with the 
security regulations and requirements of the Department or other agency 
involved.
    4. Subpart A is amended by removing Secs. 1023.1 through 
Sec. 1023.6, redesignating Sec. 1023.20 as Sec. 1023.120 and adding 
Secs. 1023.101 and 1023.102, reading as follows:


Sec. 1023.101  Scope and purpose.

    The rules of the Board of Contract Appeals are intended to govern 
all appeal procedures before the Department of Energy Board of Contract 
Appeals (Board) which are within the scope of the Contract Disputes Act 
of 1978 (41 U.S.C. 601 et seq.). The rules, with modifications 
determined by the Board to be appropriate to the nature of the dispute, 
also apply to all other contract and subcontract related appeals which 
are properly before the Board.


Sec. 1023.102  Effective date.

    The rules of the Board of Contract Appeals shall apply to all 
proceedings filed on or after June 6, 1997, except that Rule 1 (a) and 
(b) of Sec. 1023.120 shall apply only to appeals filed on or after 
October 1, 1995.


Sec. 1023.120  [Amended]

    5. Newly designated section 1023.120 is amended by revising 
``$50,000'' to read ``$100,000'' in the following paragraphs:

Rule 1, paragraph (b)
Rule 1, paragraph (c)
Rule 6, paragraph (b)
Rule 14, paragraph (a)

    6. Newly designated section 1023.120 is amended by revising 
``$10,000'' to read ``$50,000'' in the following paragraphs:

Rule 6, paragraph (b)
Rule 13, paragraph (a)

Subpart B--[Removed and Reserved]

    7. Subpart B--is removed and reserved.


Sec. 1023.327  [Amended]

    8. Section 1023.327 of subpart C is amended by revising ``10 CFR 
1023.20'' to read ``10 CFR 1023.120.''

[FR Doc. 97-11728 Filed 5-6-97; 8:45 am]
BILLING CODE 6450-01-P