[Federal Register Volume 62, Number 91 (Monday, May 12, 1997)]
[Rules and Regulations]
[Pages 25865-25868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12382]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 6103
RIN Number 3090-AG05
Board of Contract Appeals; Rules of Procedure for Transportation
Rate Cases
AGENCY: Board of Contract Appeals, General Services Administration.
ACTION: Final rule.
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SUMMARY: This document specifies the rules of procedure of the GSA
Board of Contract Appeals applicable to the Board's review of claims
made by a carrier or freight forwarder pursuant to 31 U.S.C.
3726(g)(1). The rules are intended to implement section 201(o) of the
General Accounting Office Act of 1996 (Pub. L. 104-316), which
transferred the authority to resolve these claims to the Administrator
of General Services, who has redelegated that function to the Board.
EFFECTIVE DATE: This regulation is effective May 12, 1997.
FOR FURTHER INFORMATION CONTACT: Margaret S. Pfunder, Deputy Chief
Counsel, GSA Board of Contract Appeals, telephone (202) 501-0272,
Internet address: Margaret.P[email protected].
SUPPLEMENTARY INFORMATION:
A. Regulatory Flexibility Act
The General Services Administration certifies that this rule 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 rule does
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
These rules are applicable to all transportation rate cases filed
on or after May 12, 1997.
D. Background
On July 26, 1996, the Board published in the Federal Register (61
FR 39096) an interim rule specifying the rules of procedure the Board
would apply to its review of claims made by a carrier or freight
forwarder pursuant to 31 U.S.C. 3726(g)(1). The Board invited written
comments on the interim rules. The rules were intended to implement
section 211 of the Legislative Branch Appropriations Act, 1996 (Pub. L.
104-53), which, effective June 30, 1996, transferred certain functions
of the Comptroller General to the Director of the Office of Management
and Budget (OMB), and authorized the Director to delegate any of those
functions to another agency or agencies. Effective the same date, the
Director delegated the function contained in 31 U.S.C. 3726(g)(1)--the
authority to review rate
[[Page 25866]]
claims of a carrier or freight forwarder-- to the Administrator of
General Services, who redelegated that function to the GSA Board of
Contract Appeals.
On October 19, 1996, Congress enacted the General Accounting Office
Act of 1996 (Pub. L. 104-316). Section 201(o) of that Act directly
transfers the authority of the Comptroller General to resolve
transportation rate claims under 31 U.S.C. 3726(g)(1) to the
Administrator of General Services, who has continued to delegate this
function to the Board. In addition, the Administrator of General
Services has delegated to the Board the authority to adopt and issue
rules necessary for the resolution of these claims. This final rule has
been adopted by vote of the Board's judges.
E. Summary of Comments and Changes
The Board received written comments on the interim rules from three
commentators. Commentators included two motor freight carriers and an
association of motor freight carriers. The Board carefully considered
these comments, and adopted a number of the suggestions made by the
commentators. One commentator made no specific comments, but simply
expressed approval of the transfer of transportation rate claims from
the Comptroller General to the Administrator of General Services. The
other two commentators supported the interim rules and, in general,
suggested that some of the rules be more detailed. Their comments and
any revisions made, are discussed below in a section-by-section format.
Section 6103.2 (Filing Claims)
Two commentators suggested that the rule should state when a claim
is timely filed and/or provide a certain time by which the Board must
acknowledge receipt of a claim. They also suggested that the rule
permit filing a claim with the Board by facsimile transmission. In
response to these comments, the Board has added paragraph (b) to
Section 6103.2, which provides that a claim is filed when a written
copy is received by the Office of the Clerk of the Board during the
Board's working hours. Filing has been and is permitted by facsimile
transmission. All Board cases are date-stamped upon receipt and
docketed within one to two working days of receipt. In addition, the
notice of docketing sent to the claimant, OTA, and the agency states
the date the claim was filed with the Board. A claimant will thus be
able to verify the date the Board received the claim. In order to
facilitate the filing of claims, the address and the telephone and
facsimile machine numbers of the Clerk's office are provided, as are
the Board's working hours.
Section 6103.3 (Responses to Claims)
The Board made three changes to this section. First, the Board
revised the rule to increase from 30 to 60 calendar days after
docketing the time the agency has to respond to the claim, if the
agency office for which the services were provided is located outside
the United States. In the Board's experience, agency offices located
outside the United States have generally needed this additional time to
receive and respond to claims.
Second, the Board has redrafted Section 6103.3 to provide that all
responses submitted to the Board must indicate that a copy has been
provided to the claimant. Both commentators stated that the rule should
include some type of proof of service provision; one commentator wanted
the rule to provide for sanctions in the event that a party failed to
serve its submission on all participants. The Board believes that the
rule as revised is sufficient to ensure service on the claimant, and
that more formal proof of service requirements and specified sanctions
are unnecessary. Should the need arise, the judge to whom a case is
assigned may determine how to enforce the service requirements. The
Board has also added a parallel service of copy requirement to
paragraph (d) of Section 6103.2, which requires the claimant to send to
OTA and the agency a copy of all material provided to the Board, and to
indicate on all submissions to the Board that a copy has been provided
to OTA and the agency.
Third, in order to expedite proceedings, Section 6103.3 now
provides that, if either OTA or the agency does not wish to file a
response, it should so notify the Board and the claimant. If the Board
knows that OTA and/or the agency is not filing a response, it may
proceed with resolving the claim rather than waiting for the response
period to expire.
Section 6103.4 (Reply to OTA and Agency Responses)
This rule has been redrafted to require a claimant wishing to reply
to the OTA and agency responses to file and serve the reply within 30
calendar days after receiving the responses (or within 60 days if the
claimant is located outside the United States). The interim rule
required a claimant first to notify the Board within 10 days after
receiving the responses that it wished to file a reply, and then to
have the judge establish when the reply was due. One commentator
suggested that 10 days was too short a time to determine whether to
file a reply. The Board agrees, and has increased the amount of time
for a reply to 30 days, the amount of time given OTA and the agency to
file responses to a claim. The Board also concluded that it is
appropriate to permit a reply in all cases, such that each judge need
not make a case-by-case determination.
Both commentators were concerned that the exact date a carrier
received the responses would not be known with certainty by the Board,
and that either the date the response was mailed to the Board or the
date shown in a certificate of service should be determinative. The
Board did not incorporate either of these suggestions in the final
rule; such formality is unnecessary, given the time frames established
in the rules. The carrier will be aware of its receipt date(s), and,
therefore, can determine when a reply is due.
Section 6103.5 (Proceedings)
The Board added paragraph (a) to this section to clarify that the
claimant, OTA, or the agency may request additional time to make any of
the filings required or permitted by the rules. However, the Board may
not expand time limits established by statute. Both commentators
suggested that the rules should provide for discovery, citing the
carriers' past inability to obtain documents and other information
possessed by the Government needed to prove entitlement to payment. The
commentators and Board practice have not demonstrated a need for a rule
on discovery. Under Section 6103.5(c), judges retain the flexibility to
require participants to submit necessary additional information.
Section 6103.6 (Decisions)
In response to the suggestions made by both commentators, this
section makes explicit that it has been and is the Board's practice to
furnish the participants with a copy of the Board's decision. The
revised rule also explains that the Board's decisions are posted weekly
on the Internet, and provides the Board's Internet address.
Section 6103.7 (Reconsideration of Board Decision)
Both commentators suggested that 15 calendar days after the date a
decision is issued was too short a time in which to prepare a request
for reconsideration. The Board agrees, and has lengthened the time to
30 days after the date the decision was issued, or to 60 days if the
claimant or agency office making the request is located outside the
United States. One commentator suggested that all of the Board's rules
relating to
[[Page 25867]]
reconsideration of contract appeals be incorporated into the rules for
transportation rate cases. Neither the statute nor the Board envisions
these cases as formal, judicial proceedings. Specifically structured
reconsideration procedures are unnecessary. However, as made clear in
the revised rule, a request for reconsideration should not be a routine
practice in these cases. A request for reconsideration must be premised
on more than reargument or disagreement.
Section 6103.8 (Payment of Successful Claims)
Both commentators suggested that Section 6103.8 should provide that
an agency must pay any amount found due by the Board within 30 days of
the date of the Board's decision. Such a requirement comports with the
requirement of the Prompt Payment Act, 31 U.S.C. 3903, that payment is
due 30 days after the date the invoice is received by the agency. The
Board concludes that this matter is not appropriately resolved by a
rule of procedure, and that an agency receiving the Board's final
administrative decision on a claim will in fact promptly pay any amount
found owing the claimant, in accordance with applicable statutes.
List of Subjects in 48 CFR Part 6103
Administrative practice and procedure, Freight forwarders,
Government procurement.
For the reasons set out in the preamble, 48 CFR Part 6103 is
revised to read as follows:
PART 6103--RULES OF PROCEDURE FOR TRANSPORTATION RATE CASES
Sec.
6103.1 Scope [Rule 301].
6103.2 Filing claims [Rule 302].
6103.3 Responses to claims [Rule 303].
6103.4 Reply to OTA and agency responses [Rule 304].
6103.5 Proceedings [Rule 305].
6103.6 Decisions [Rule 306].
6103.7 Reconsideration of Board decision [Rule 307].
6103.8 Payment of successful claims [Rule 308].
Authority: 31 U.S.C. 3726(g)(1); 41 U.S.C. 601-613. Section
201(o), Pub. L. 104-316, 110 Stat. 3826.
Sec. 6103.1 Scope [Rule 301].
(a) Authority. Section 201(o) of the General Accounting Office Act
of 1996, Public Law 104-316, transfers certain functions of the
Comptroller General contained in 31 U.S.C. 3726(g)(1) to the
Administrator of General Services, who has redelegated those functions
to the General Services Administration Board of Contract Appeals.
(b) Type of claim; review of claim. These procedures are applicable
to the review of claims made by a carrier or freight forwarder pursuant
to 31 U.S.C. 3726(g)(1). The Board will issue the final agency decision
on a claim based on the information submitted by the claimant, the
General Services Administration Office of Transportation Audits (OTA),
and the department or agency (the agency) for which the services were
provided. The burden is on the claimant to establish the timeliness of
its claim, the liability of the agency, and the claimant's right to
payment.
Sec. 6103.2 Filing claims [Rule 302].
(a) Form. A claim shall be in writing and must be signed by the
claimant or by the claimant's attorney or authorized representative. No
particular form is required. The request should describe the basis for
the claim and state the amount sought. The request should also include:
(1) The name, address, telephone number, and facsimile machine
number, if available, of the claimant;
(2) The Government bill of lading or Government transportation
request number;
(3) The claimant's bill number;
(4) The Government voucher number and date of payment;
(5) The OTA claim number;
(6) The agency for which the services were provided; and
(7) Any other identifying information.
(b) When and where claims are filed. A claim is filed when it is
received by the Office of the Clerk of the Board during the Board's
working hours. Claims should be sent to the Board at the following
address: Office of the Clerk of the Board, Room 7022, General Services
Administration Building, 1800 F Street, NW, Washington, DC 20405. The
Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile
machine number is: (202) 501-0664. The Board's working hours are 8:00
a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday,
Sunday, or federal holiday.
(c) Notice of docketing. A claim will be docketed by the Office of
the Clerk of the Board, and a written notice of docketing will be sent
promptly to the claimant, the Director of OTA, and the agency for which
the services were provided. The notice of docketing will identify the
judge to whom the claim has been assigned.
(d) Service of copy. The claimant shall send to OTA and the agency
identified in paragraph (a)(6) of this section copies of all material
provided to the Board. All submissions to the Board by a claimant shall
indicate that a copy has been provided to OTA and the agency.
Sec. 6103.3 Responses to claims [Rule 303].
(a) Content of responses. Within 30 calendar days after docketing
by the Board (or within 60 calendar days after docketing if the agency
office for which the services were provided is located outside the 50
states and the District of Columbia), OTA and the agency for which the
services were provided shall each submit to the Board:
(1) A simple, concise, and direct statement of its response to the
claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information deemed necessary to the Board's
review of the claim.
(b) Service of copy. All responses submitted to the Board shall
indicate that a copy has been sent to the claimant and to OTA or the
agency, as appropriate. To expedite proceedings, if either OTA or the
agency will not file a response (e.g., it believes its reasons for
denying the claim were sufficiently explained in the material filed by
the claimant), it should notify the Board, the claimant, and OTA or the
agency, as appropriate, that it does not intend to file a response.
Sec. 6103.4 Reply to OTA and agency responses [Rule 304].
A claimant may file with the Board and serve on OTA and the agency
a reply to the OTA and agency responses within 30 calendar days after
receiving the responses (or within 60 calendar days after receiving the
responses, if the claimant is located outside the 50 states and the
District of Columbia). To expedite proceedings, if the claimant does
not wish to respond, the claimant should so notify the Board, OTA, and
the agency.
Sec. 6103.5 Proceedings [Rule 305].
(a) Requests for additional time. The claimant, OTA, or the agency
may request additional time to make any filing.
(b) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the claim.
The judge may hold a conference with the claimant, OTA, and the agency
at any time, for any purpose. The judge may provide the participants a
memorandum reflecting the results of a conference.
(c) Submissions. The judge may require the submission of additional
information at any time. The claimant, OTA, or the agency may request
an opportunity to make additional submissions; however, no such
[[Page 25868]]
submission may be made unless authorized by the judge.
Sec. 6103.6 Decisions [Rule 306].
The judge will issue a written decision based upon the record,
which includes submissions by the claimant, OTA, and the agency, and
information provided during conferences. The claimant, OTA, and the
agency will each be furnished a copy of the decision by the Office of
the Clerk of the Board. In addition, all Board decisions are posted
weekly on the Internet. The Board's Internet address is:
www.gsbca.gsa.gov.
Sec. 6103.7 Reconsideration of Board decision [Rule 307].
A request for reconsideration may be made by the claimant, OTA, or
the agency. Such requests must be received by the Board within 30
calendar days after the date the decision was issued (or within 60
calendar days after the date the decision was issued, if the claimant
or agency office making the request is located outside the 50 states
and the District of Columbia). The request for reconsideration should
state the reasons why the Board should consider the request. Mere
disagreement with a decision or re-argument of points already made is
not a sufficient ground for seeking reconsideration.
Sec. 6103.8 Payment of successful claims [Rule 308].
The agency for which the services were provided shall pay amounts
the Board determines are due the claimant.
Dated: May 7, 1997.
Stephen M. Daniels,
Chairman, GSA Board of Contract Appeals.
[FR Doc. 97-12382 Filed 5-9-97; 8:45 am]
BILLING CODE 6820-34-P