[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36794-36819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3064]



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Part III





General Services Administration





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48 CFR Parts 6101, 6102, et al.



 Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure of 
the Civilian Board of Contract Appeals; Interim Rule

  Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules 
and Regulations  

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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 6101, 6102, 6103, 6104, and 6105

[GSA BCA Amendment 2006-01; BCA Case 2006-61-1]
RIN 3090-AI29


Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure 
of the Civilian Board of Contract Appeals

AGENCY: General Services Administration (GSA), Civilian Board of 
Contract Appeals.

ACTION: Interim rule.

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SUMMARY: This document contains the rules of procedure of the Civilian 
Board of Contract Appeals (Board), which will govern all proceedings 
before the Board. The Board was established within GSA by section 847 
of the National Defense Authorization Act for Fiscal Year 2006 to hear 
and decide contract disputes between Government contractors and 
Executive agencies (other than the Department of Defense, the 
Department of the Army, the Department of the Navy, the Department of 
the Air Force, the National Aeronautics and Space Administration, the 
United States Postal Service, the Postal Rate Commission, and the 
Tennessee Valley Authority) under the provisions of the Contract 
Disputes Act of 1978 and regulations and rules issued thereunder. 
Effective January 6, 2007, boards of contract appeals that existed at 
the General Services Administration and the Departments of Agriculture, 
Energy, Housing and Urban Development, Interior, Labor, Transportation, 
and Veterans Affairs were terminated, and their cases were transferred 
to the new Civilian Board of Contract Appeals. The Board has 
jurisdiction as provided by section 8(d) of the Contract Disputes Act 
of 1978, 41 U.S.C. 607(d). In addition, the Board will conduct 
proceedings as required or permitted under other statutes or 
regulations. The Board intends to issue final, revised rules after 
considering all comments on the interim rule.

DATES: Effective Date: This interim rule is effective July 5, 2007.
    Comment Date: Interested parties should submit written comments to 
the Board of Contract Appeals on or before September 28, 2007, to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by CBCA Amendment 2006-01, BCA 
case 2006-61-1, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``General Services Administration'' as the agency of 
choice. At the ``Keyword'' prompt, type in the BCA case number (for 
example, BCA Case 2006-61-1) and click on the ``Submit'' button. You 
may also search for any document by clicking on the ``Advanced search/
document search'' tab at the top of the screen, selecting from the 
agency field ``General Services Administration'', and typing the BCA 
case number in the keyword field. Select the ``Submit'' button.
     Fax: 202-606-0019.
     Mail: General Services Administration, Civilian Board of 
Contract Appeals, ATTN: Margaret Pfunder, 1800 F Street, NW, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite CBCA Amendment 
2006-01, BCA case 2006-61-1, in all correspondence related to this 
case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business 
confidential information provided.

FOR FURTHER INFORMATION CONTACT Margaret S. Pfunder, Chief Counsel, 
Civilian Board of Contract Appeals, telephone (202) 606-8800, internet 
address [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    The Civilian Board of Contract Appeals was established within the 
General Services Administration (GSA) by section 847 of the National 
Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163. 
Effective January 6, 2007, the boards of contract appeals that existed 
at the General Services Administration and the Departments of 
Agriculture, Energy, Housing and Urban Development, Interior, Labor, 
Transportation, and Veterans Affairs were terminated, and their cases 
were transferred to the new Civilian Board of Contract Appeals. The 
Civilian Board was established to hear and decide contract disputes 
between Government contractors and Executive agencies (other than the 
Department of Defense, the Department of the Army, the Department of 
the Navy, the Department of the Air Force, the National Aeronautics and 
Space Administration, the United States Postal Service, the Postal Rate 
Commission, and the Tennessee Valley Authority) under the provisions of 
the Contract Disputes Act of 1978 and regulations and rules issued 
thereunder. The Board will also conduct other proceedings as required 
or permitted under statutes or regulations.
    Such other proceedings include the resolution of disputes involving 
grants and contracts under the Indian Self-Determination and Education 
Assistance Act, 25 U.S.C. 450, et seq. Because jurisdiction over these 
disputes is vested by statue, 25 U.S.C. 450m-1(d), in the Department of 
the Interior Board of Contract Appeals, section 847(e) of the National 
Defense Authorization Act for Fiscal Year 2006 reassigns that 
jurisdiction to the Civilian Board of Contract Appeals.
    Such other proceedings also include the resolution of disputes 
between insurance companies and the Department of Agriculture's Risk 
Management Agency (RMA) involving actions of the Federal Crop Insurance 
Corporation (FCIC) pursuant to the Federal Crop Insurance Act, 7 U.S.C. 
1501, et seq. These disputes were formerly resolved by the Department 
of Agriculture Board of Contract Appeals, and this authority has been 
transferred to the Civilian Board of Contract Appeals under an 
agreement with the Secretary of Agriculture, as permitted under section 
42(c)(2) of the Office of Federal Procurement Policy Act, 41 U.S.C. 
438(c)(2).
    In addition, other proceedings that the Civilian Board will conduct 
include several types of cases heard by the General Services Board of 
Contract Appeals by delegation from the Administrator of General 
Services. Effective January 6, 2007, the Administrator of General 
Services redelegated those cases to the Civilian Board of Contract 
Appeals. Those cases include the following:
     Pursuant to 31 U.S.C. 3726(i)(1), requests by carriers or 
freight forwarders to review actions taken by the Audit Division of the 
General Services Administration's Office of Transportation and Property 
Management;
     Pursuant to 31 U.S.C. 3702, claims by Federal civilian 
employees against the United States for reimbursement of (1) expenses 
incurred while on official temporary duty travel and (2) expenses 
incurred in connection with relocation to a new duty station; and
     Pursuant to section 204 of the General Accounting Office 
Act of 1996, Pub. L. 104-316, requests of agency disbursing or 
certifying officials, or agency heads, on questions involving payment 
of travel or relocation expenses that were formerly considered by the 
Comptroller General under 31 U.S.C. 3529.

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    These rules of procedure are based on and do not differ in any 
substantial way from the rules of procedure which existed at the 
predecessor civilian agency boards. The rules of the predecessor 
civilian agency boards all had the same general intent and coverage. 
There were differences among the rules in terms of both structure and 
wording, and no two civilian agency boards had identical sets of rules. 
In drafting rules of procedure for the Civilian Board, we studied the 
rules of procedure of all of the civilian agency boards and developed 
an interim final rule which blends those rules. The interim final rule 
maintains most of the rules all of the former boards had in place.
    Questions have been raised about the scope of the Board's subpoena 
authority over federal agencies. The Department of Justice has recently 
provided advice concluding that the statute that granted subpoena 
authority to the separate agency boards of contract appeals, and that 
provides such authority to the consolidated Board, does not provide the 
necessary legal authority for a board to enforce a subpoena against a 
federal agency. Therefore, the agency does not interpret the term 
``person'' where it is used in 6101.16 to include the United States or 
component federal agencies.

B. Regulatory Flexibility Act

    The General Services Administration certifies that this final 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., because the rule does not impose any additional 
costs on either small or large businesses.

C. Executive Order 12866, Regulatory Planning and Review

    OMB reviewed this rule under Executive Order 12866 (entitled, 
``Regulatory Planning and Review''). OMB determined that this rule is a 
``significant regulatory action'' as defined in section 3(f) of the 
Order (although not an economically significant regulatory action under 
the Order).

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes do 
not impose recordkeeping or information collection requirements, or 
otherwise collect information from offerors, contractors, or members of 
the public that require approval of the Office of Management and Budget 
under 44 U.S.C. 3501, et seq.

E. Determination to Issue an Interim Rule

    Pursuant to 5 U.S.C. Sec.  553(b)(B), we have determined that it 
would be impracticable, unnecessary, and contrary to the public 
interest to publish this as a Notice of Proposed Rulemaking because to 
do so would result in the Board being operational but unable to perform 
its essential functions. Accordingly, we find that good cause exists to 
publish as an interim rule. For the same reasons, we have determined 
that this interim rule should be issued without a delayed effective 
date. However, we are interested in comments regarding this interim 
rule.

List of Subjects in 48 CFR Parts 6101, 6102, 6103, 6104, and 6105

    Administrative practice and procedure, Agriculture, Freight 
forwarders, Government procurement, Travel and relocation expenses.

    Dated: June 8, 2007.
Stephen M. Daniels,
Chairman, Civilian Board of Contract Appeals, General Services 
Administration.

0
Therefore, GSA amends 48 CFR chapter 61 as set forth below:

Chapter 61--Civilian Board of Contract Appeals

0
1. Revise part 6101 to read as follows:

PART 6101--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT 
APPEALS

Sec.
6101.1 Scope of rules; definitions; construction; rulings, orders, 
and directions; panels; location and address [Rule 1].
6101.2 Filing cases; time limits for filing; notice of docketing; 
consolidation [Rule 2].
6101.3 Time: enlargement; computation [Rule 3].
6101.4 Appeal file [Rule 4].
6101.5 Appearances; notice of appearance [Rule 5].
6101.6 Pleadings and amendment of pleadings [Rule 6].
6101.7 Service of papers other than subpoenas [Rule 7].
6101.8 Motions [Rule 8].
6101.9 Record of Board proceedings; review and copying [Rule 9].
6101.10 Admissibility and weight of evidence [Rule 10].
6101.11 Conferences; conference memorandum [Rule 11].
6101.12 Suspensions and dismissals [Rule 12].
6101.13 General provisions governing discovery [Rule 13].
6101.14 Interrogatories to parties; requests for admission; requests 
for production [Rule 14].
6101.15 Depositions [Rule 15].
6101.16 Subpoenas [Rule 16].
6101.17 Exhibits [Rule 17].
6101.18 Election of hearing or record submission [Rule 18].
6101.19 Submission on the record without a hearing [Rule 19].
6101.20 Hearings: scheduling; notice; unexcused absences [Rule 20].
6101.21 Hearing procedures [Rule 21].
6101.22 Transcripts of proceedings; corrections [Rule 22].
6101.23 Briefs and memoranda of law [Rule 23].
6101.24 Closing the record [Rule 24].
6101.25 Decisions; settlements [Rule 25].
6101.26 Reconsideration; amendment of decisions; new hearings [Rule 
26].
6101.27 Relief from decision or order [Rule 27].
6101.28 Full Board consideration [Rule 28].
6101.29 Clerical mistakes; harmless error [Rule 29].
6101.30 Award of fees and other expenses [Rule 30].
6101.31 Payment of Board awards [Rule 31].
6101.32 Appeal from a Board decision [Rule 32].
6101.33 Ex parte contact; sanctions and other proceedings [Rule 33].
6101.34 Seal of the Board [Rule 34].
6101.35--6101.50 [Reserved]
6101.51 Variation from standard proceedings [Rule 51].
6101.52 Small claims procedure [Rule 52].
6101.53 Accelerated procedure [Rule 53].
6101.54 Alternate dispute resolution [Rule 54].

Appendix to Part 6101--Form Nos. 1-5.

    Authority: 41 U.S.C. 601-613.


6101.1   Scope of rules; definitions; construction; rulings, orders, 
and directions; panels; location and address [Rule 1].

    (a) Scope. The rules of this chapter govern proceedings in all 
cases filed with the Board on or after January 6, 2007, and all further 
proceedings in cases then pending, except to the extent that, in the 
opinion of the Board, their use in a particular case pending on the 
effective date would be infeasible or would work an injustice. The 
rules of this chapter will remain in effect until the Board issues 
final rules of procedure or June 30, 2008, whichever occurs earlier. 
The Board will look to the rules of this chapter for guidance in 
conducting other proceedings authorized by law.
    (b) Definitions--(1) Appeal; appellant. The term ``appeal'' means a 
contract dispute filed with the Board. The term ``appellant'' means a 
party filing an appeal.
    (2) Application; applicant. The term ``application'' means a 
submission to the Board of a request for award of fees and other 
expenses, under the Equal Access to Justice Act, 5 U.S.C. 504, pursuant 
to 6101.30 (Rule 30). The term ``applicant'' means a party filing an 
application.

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    (3) Board judge; judge. The term ``Board judge'' or ``judge'' means 
a member of the Board.
    (4) Case. The term ``case'' means an appeal, petition, or 
application.
    (5) Filing. (i) Any document, other than a notice of appeal or an 
application for award of fees and other expenses, is filed when it is 
received by the Office of the Clerk of the Board during the Board's 
working hours. A notice of appeal or an application for award of fees 
and other expenses is filed upon the earlier of its receipt by the 
Office of the Clerk of the Board or if mailed, the date on which it is 
mailed. A United States Postal Service postmark shall be prima facie 
evidence that the document with which it is associated was mailed on 
the date of the postmark.
    (ii) Facsimile transmissions to the Board and the parties are 
permitted. The filing of a document by facsimile transmission occurs 
upon receipt by the Board of the entire printed submission. Parties are 
specifically cautioned that a deadline for filing will not be extended 
merely because the Board's facsimile machine is busy or otherwise 
unavailable when a filing is due. Parties are expected to submit their 
facsimile machine numbers with their filings.
    (6) Party. The term ``party'' means an appellant, applicant, 
petitioner, or respondent.
    (7) Petition; petitioner. The term ``petition'' means a request 
filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting 
officer to issue a written decision on a claim. The term ``petitioner'' 
means a party submitting a petition.
    (8) Respondent. The term ``respondent'' means the government agency 
whose decision, action, or inaction is the subject of an appeal, 
petition, or application.
    (9) Working day. The term ``working day'' means any day other than 
a Saturday, Sunday, federal holiday, day on which the Office of the 
Clerk is required to close earlier than 4:30 p.m., or day on which the 
Office of the Clerk does not open at all, as in the event of inclement 
weather.
    (10) Working hours. The Board's working hours are 8:00 a.m. to 4:30 
p.m., Eastern Time, on each working day.
    (c) Construction. The rules of this chapter shall be construed to 
secure the just, informal, expeditious, and inexpensive resolution of 
every case. The Board looks to the Federal Rules of Civil Procedure for 
guidance in construing those Board rules which are similar to Federal 
Rules.
    (d) Rulings, orders, and directions. The Board may apply the rules 
of this chapter and make such rulings and issue such orders and 
directions as are necessary to secure the just, informal, expeditious, 
and inexpensive resolution of every case before the Board. Any ruling, 
order, or direction that the Board may make or issue pursuant to the 
rules of this chapter may be made on the motion or request of any party 
or on the initiative of the Board. The Board may also amend, alter, or 
vacate a ruling, order, or direction upon such terms as it deems just. 
In making rulings and issuing orders and directions pursuant to the 
rules of this chapter, the Board takes into consideration those Federal 
Rules of Civil Procedure which address matters not specifically covered 
herein.
    (e) Panels. Each case will be assigned to a panel consisting of 
three judges, with one member designated as the panel chair, in 
accordance with such procedures as may be established by the Board. The 
panel chair is responsible for processing the case, including 
scheduling and conducting proceedings and hearings. In addition, the 
panel chair may, without participation by other panel members, decide 
an appeal under the small claims procedure in 6101.52 (Rule 52), rule 
on nondispositive motions (except for amounts in controversy under 
6101.52(a)(2) (Rule 52(a)(2))), and dismiss a case as permitted by 
6101.12(e) (Rule 12(e)). All other matters, except for those before the 
full Board under 6101.28 (Rule 28), are decided for the Board by a 
majority of the panel.
    (f) Location and address. The location of the Office of the Clerk 
of the Board is: 1800 M Street, NW, 6th Floor, Washington, DC 20036. 
The mailing address of the Office of the Clerk of the Board is: 1800 F 
Street, NW, Washington, DC 20405. The Clerk's telephone number is: 
(202) 606-8800. The Clerk's facsimile machine number is: (202) 606-
0019.


6101.2   Filing cases; time limits for filing; notice of docketing; 
consolidation [Rule 2].

    (a) Filing cases. Filing of a case occurs as provided in 
6101.1(b)(5) (Rule 1(b)(5)).
    (1) Notice of appeal. (i) A notice of appeal shall be in writing 
and shall be signed by the appellant or by the appellant's attorney or 
authorized representative. If the appeal is from a contracting 
officer's decision, the notice of appeal should describe the decision 
in enough detail to enable the Board to differentiate that decision 
from any other; the appellant can satisfy this requirement by attaching 
to the notice of appeal a copy of the contracting officer's decision. 
If an appeal is taken from the failure of a contracting officer to 
issue a decision, the notice of appeal should describe in detail the 
claim that the contracting officer has failed to decide; the appellant 
can satisfy this requirement by attaching a copy of the written claim 
submission to the notice of appeal.
    (ii) A written notice in any form, including the one specified in 
the Appendix to the rules in this chapter, is sufficient to initiate an 
appeal. The notice of appeal should include the following information:
    (A) The number and date of the contract;
    (B) The name of the government agency and the component thereof 
against which the claim has been asserted;
    (C) The name, address, and telephone number of the contracting 
officer whose decision is appealed and the date of the decision;
    (D) If the appeal is from the failure of the contracting officer to 
decide a claim, the name, address, and telephone number of the 
contracting officer who received the claim;
    (E) A brief account of the circumstances giving rise to the appeal; 
and
    (F) An estimate of the amount of money in controversy, if any and 
if known.
    (iii) The appellant must send a copy of the notice of appeal to the 
contracting officer whose decision is appealed or, if there has been no 
decision, to the contracting officer before whom the appellant's claim 
is pending.
    (2) Petition. (i) A petition shall be in writing and signed by the 
petitioner or by the petitioner's attorney or authorized 
representative. The petition should describe in detail the claim that 
the contracting officer has failed to decide; the contractor can 
satisfy this requirement by attaching to the petition a copy of the 
written claim submission.
    (ii) The petition should include the following information:
    (A) The number and date of the contract;
    (B) The name of the government agency and the component thereof 
against which the claim has been asserted; and
    (C) The name, address, and telephone number of the contracting 
officer whose decision is sought.
    (3) Application. An application for fees and other expenses shall 
meet all requirements specified in 6101.30 (Rule 30).
    (b) Time limits for filing--(1) Appeals. (i) An appeal from a 
decision of a contracting officer shall be filed no later

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than 90 calendar days after the date the appellant receives that 
decision.
    (ii) An appeal may be filed with the Board if the contracting 
officer fails or refuses to issue a timely decision on a claim 
submitted in writing, properly certified if required.
    (2) Applications. An application for fees and other expenses shall 
be filed within 30 calendar days of a final disposition in the 
underlying appeal, as provided in 6101.30 (Rule 30).
    (c) Notice of docketing. Notices of appeal, petitions, and 
applications will be docketed by the Office of the Clerk of the Board, 
and a written notice of docketing will be sent promptly to all parties.
    (d) Consolidation. When cases involving common questions of law or 
fact are filed, the Board may:
    (1) Order the cases consolidated; or
    (2) Make such other orders concerning the proceedings as are needed 
to avoid unnecessary costs or delay.


6101.3   Time: enlargement; computation [Rule 3].

    (a) Time for performing required actions. All time limitations 
prescribed in the rules of this chapter or in any order or direction 
given by the Board are maximums, and the action required should be 
accomplished in less time whenever possible.
    (b) Enlarging time. Upon request of a party for good cause shown, 
the Board may enlarge any time prescribed by the rules in this chapter 
or by an order or direction of the Board except the time limit for 
filing appeals (6101.2(b)(1) (Rule 2(b)(1))). A written request is 
required, but in exigent circumstances an oral request may be made and 
followed by a written request. An enlargement of time may be granted 
even though the request was filed after the time for taking the 
required action expired, but the party requesting the enlargement must 
show good cause for its inability to make the request before that time 
expired.
    (c) Computing time. Except as otherwise required by law, in 
computing a period of time prescribed by the rules in this chapter 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 a Saturday, a Sunday, or a federal 
holiday, or 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 federal holiday shall not 
be counted. When the period of time prescribed or allowed is 11 days or 
more, intervening Saturdays, Sundays, and federal 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.


6101.4   Appeal file [Rule 4].

    (a) Submission to the Board by the respondent. Within 30 calendar 
days from receipt of notice that an appeal has been filed, or within 
such time as the Board may allow, the respondent shall file with the 
Board appeal file exhibits consisting of all documents and other 
tangible things relevant to the claim and to the contracting officer's 
decision which has been appealed. Exhibits will be numbered as required 
by 6101.4(b) (Rule 4(b)) and will include:
    (1) The contracting officer's decision, if any, from which the 
appeal is taken;
    (2) The contract, if any, including amendments, specifications, 
plans, and drawings;
    (3) All correspondence between the parties that are relevant to the 
appeal, including the written claim or claims that are the subject of 
the appeal, and evidence of their certification, if any;
    (4) Affidavits or statements of any witnesses concerning the matter 
in dispute and transcripts of any testimony taken before the filing of 
the notice of appeal;
    (5) All documents and other tangible things on which the 
contracting officer relied in making the decision, and any related 
correspondence;
    (6) The abstract of bids, if relevant; and
    (7) Any additional existing evidence or information necessary to 
determine the merits of the appeal, such as internal memoranda and 
notes to the file.
    (b) Organization of the appeal file. Appeal file exhibits may be 
originals or true, legible, and complete copies. They shall be arranged 
in chronological order, earliest documents first; bound in a loose-leaf 
binder on the left margin except where size or shape makes such binding 
impracticable; numbered; tabbed; and indexed. The loose-leaf binders 
cannot exceed four inches in depth. The numbering shall be consecutive, 
in whole Arabic numerals (no letters, decimals, or fractions), and 
continuous from one submission to the next, so that the complete file, 
after all submissions, will consist of one set of consecutively 
numbered exhibits. In addition, the pages within each exhibit 
containing more than three pages shall be numbered consecutively unless 
the exhibit already is paginated in a logical manner. Consecutive 
pagination of the entire file is not required. The index shall include 
the date and a brief description of each exhibit and shall identify 
which exhibits, if any, have been filed with the Board in camera or 
under protective order or otherwise have not been served on the other 
party.
    (c) Service. The respondent shall serve a copy of the appeal file 
on the appellant at the same time that the respondent files it with the 
Board, except that the respondent need not serve on the appellant those 
documents furnished the Board in camera pursuant to 6101.9(c) (Rule 
9(c)), and the respondent shall serve documents submitted under 
protective order only on those individuals who have been granted access 
to such documents by the Board. However, the respondent must serve on 
the appellant a list identifying the specific documents filed in camera 
or under protective order with the Board, giving sufficient details 
necessary for their recognition. This list must also be filed with the 
Board as an exhibit to the appeal file.
    (d) Submission to the Board by the appellant. Within 30 calendar 
days after the respondent files its appeal file exhibits, or within 
such time as the Board may allow, the appellant shall file with the 
Board for inclusion in the appeal file documents or other tangible 
things relevant to the appeal that have not been submitted by the 
respondent. The appellant shall serve a copy of its additional exhibits 
upon the respondent at the same time as it files them with the Board, 
and shall organize the file as required by 6101.4(b) (Rule 4(b)).
    (e) Submissions on order of the Board. The Board may, at any time 
during the pendency of the appeal, require any party to file other 
documents and tangible things as additional exhibits. The Board may 
also require a party to file either copies of electronic records or 
printed versions of electronic records.
    (f) Lengthy or bulky materials. The Board may waive the requirement 
to furnish the other party copies or duplicates of bulky, lengthy, or 
outsized materials submitted to the Board as exhibits if furnishing 
copies would impose an undue burden, so long as the materials are 
available to the opposing party for inspection.
    (g) Use of appeal file as evidence. All exhibits in the appeal 
file, except for those as to which an objection has been sustained, are 
part of the evidentiary record upon which the Board will render its 
decision. Unless otherwise ordered by the Board, objection to any 
exhibit may be made at any time before

[[Page 36798]]

the first witness is sworn or, if the appeal is submitted on the record 
without a hearing pursuant to 6101.19 (Rule 19), at any time prior to 
or concurrent with the first record submission. The Board may enlarge 
the time for such objections and will consider an objection made during 
a hearing if the ground for objection could not reasonably have been 
earlier known to the objecting party. If an objection is sustained, the 
Board will so note in the record.
    (h) When appeal file not required. Upon motion of a party, the 
Board may postpone or dispense with the submission of any or all appeal 
file exhibits.


6101.5   Appearances; notice of appearance [Rule 5].

    (a) Appearances before the Board--(1) Appellant; petitioner; 
applicant. Any appellant, petitioner, or applicant may appear before 
the Board by an attorney-at-law licensed to practice in a state, 
commonwealth, or territory of the United States, or in the District of 
Columbia. An individual appellant, petitioner, or applicant may appear 
in his or her own behalf; a corporation, trust, or association may 
appear by one of its officers; and a partnership may appear by one of 
its members.
    (2) Respondent. The respondent may appear before the Board by an 
attorney-at-law licensed to practice in a state, commonwealth, or 
territory of the United States, or in the District of Columbia. 
Alternatively, if not prohibited by agency regulation or otherwise, the 
respondent may appear by the contracting officer or by the contracting 
officer's authorized representative.
    (3) Others. The Board may, on motion, in its discretion, permit a 
special or limited appearance, such as by an amicus curiae. Permission 
to appear, if granted, will be for such purposes and in such manner as 
allowed by the presiding judge.
    (b) Notice of appearance. Unless a notice of appearance is filed by 
some other person, the person signing the notice of appeal, petition, 
or application shall be deemed to have appeared on behalf of the 
appellant, petitioner, or applicant, and the head of the respondent 
agency's litigation office shall be deemed to have appeared on behalf 
of the respondent. Other attorneys actively participating in the 
proceedings before the Board must file notices of appearance. A notice 
of appearance in the form specified in the Appendix to the rules of 
this chapter is sufficient. Attorneys representing parties before the 
Board are required to list the state bars to which they are admitted 
and their state bar numbers or other bar identifiers.
    (c) Withdrawal of appearance. Any person who has filed a notice of 
appearance and who wishes to withdraw from a case must file a motion 
which includes the name, address, telephone number, and facsimile 
machine number of the person who will assume responsibility for 
representation of the party in question. The motion shall state the 
grounds for withdrawal unless it is accompanied by a representation 
from the successor representative or existing co-counsel that the 
established case schedule will be met.


6101.6   Pleadings and amendment of pleadings [Rule 6].

    (a) Pleadings required and permitted. Except as the Board may 
otherwise order, the Board requires the submission of a complaint and 
an answer. In appropriate circumstances, the Board may order or permit 
a reply to an answer.
    (b) Complaint. No later than 30 calendar days after the docketing 
of the appeal, the appellant shall file with the Board a complaint 
setting forth its claim or claims in simple, concise, and direct terms. 
The complaint should set forth the factual basis of the claim or 
claims, with appropriate reference to the contract provisions, and 
should state the amount in controversy, or an estimate thereof, if any 
and if known. No particular form is prescribed for a complaint, and the 
Board may designate the notice of appeal, a claim submission, or any 
other document as the complaint, either on its own initiative or on 
request of the appellant, if such document sufficiently states the 
factual basis and amount of the claim.
    (c) Answer. No later than 30 calendar days after the filing of the 
complaint or of the Board's designation of a complaint, the respondent 
shall file with the Board an answer setting forth simple, concise, and 
direct statements of its defenses to the claim or claims asserted in 
the complaint, as well as any affirmative defenses it chooses to 
assert. One-word responses stating an allegation is denied are 
discouraged. A dispositive motion or a motion for a more definite 
statement may be filed in lieu of the answer only with the permission 
of the Board. If no answer is timely filed, the Board may enter a 
general denial, in which case the respondent may thereafter amend the 
answer to assert affirmative defenses only by leave of the Board and as 
otherwise prescribed by paragraph (e) of this section. The Board will 
inform the parties when it enters a general denial on behalf of the 
respondent.
    (d) Small claims and accelerated procedures. When an appellant 
elects to use the small claims or accelerated procedures described in 
6101.52 and 6101.53 (Rules 52 and 53), the Board may shorten the time 
for filing the complaint and the answer.
    (e) Amendment of pleadings. Each party to an appeal may amend its 
pleadings once without leave of the Board at any time before a 
responsive pleading is filed. The Board may permit other amendments on 
conditions fair to both parties. A response to an amended pleading will 
be filed within the time set by the Board.
    (f) Amendments to conform to the evidence. When issues within the 
proper scope of a case, but not raised in the pleadings, have been 
raised without objection or with permission of the Board at a hearing 
or in record submissions, they shall be treated in all respects as if 
they had been raised in the pleadings. The Board may order the parties 
to amend the pleadings to conform to the proof or may order that the 
record be deemed to contain amended pleadings.


6101.7   Service of papers other than subpoenas [Rule 7].

    (a) On whom and when service must be made. Except for subpoenas 
(6101.16 (Rule 16)) and documents filed in camera (6101.9(c) (Rule 
9(c))), when a party sends a document to the Board it must at the same 
time send a copy to the other party by mail or some other equally or 
more expeditious means of transmittal. Any papers required to be served 
on a party (except requests for discovery and responses thereto, unless 
ordered by the Board to be filed) shall be filed with the Board before 
service or within a reasonable time thereafter.
    (b) Proof of service. A party sending a document to the Board must 
represent to the Board that a copy has also been sent to the other 
party. This may be done by certificate of service, by the notation of a 
photostatic copy (cc:), or by any other means that can reasonably be 
expected to show the Board that the other party has been provided a 
copy.
    (c) Failure to make service. If a document sent to the Board by a 
party does not show that a copy has been served on the other party, the 
Board may return the document to the party that submitted it with such 
directions as it considers appropriate, or the Board may inquire 
whether a party has received a copy and note on the record the fact of 
inquiry and the response, and may also direct the party that submitted 
the document to serve a copy on the

[[Page 36799]]

other party. In the absence of proof of service a document may be 
treated by the Board as not properly filed.


6101.8   Motions [Rule 8].

    (a) How motions are made. Motions may be oral or written. A written 
motion shall state the relief sought and, either in the text of the 
motion or in an accompanying legal memorandum, the grounds therefor. In 
addition, a motion for summary relief shall comply with the 
requirements of paragraph (g) of this section. Section 6101.23 (Rule 
23) prescribes the form and content of legal memoranda. Oral motions 
shall be made on the record and in the presence of the other party. 
Except for joint motions by the parties, all motions must represent 
that the moving party has attempted to discuss the grounds for the 
motion with the non-moving party and tried to resolve the matter 
informally.
    (b) When motions may be made. A motion filed in lieu of an answer 
pursuant to 6101.6(c) (Rule 6(c)) shall be filed no later than the date 
on which the answer is required to be filed or such later date as may 
be established by the Board. Any other dispositive motion shall be made 
as soon as practicable after the grounds therefor are known. Any other 
motion shall be made promptly or as required by the rules of this 
chapter.
    (c) Dispositive motions. The following dispositive motions may 
properly be made before the Board:
    (1) Motions to dismiss for lack of jurisdiction or for failure to 
state a claim upon which relief can be granted;
    (2) Motions to dismiss for failure to prosecute;
    (3) Motions for summary relief (analogous to summary judgment); and
    (4) Any other motion to dismiss.
    (d) Other motions. Other motions may be made in good faith and in 
proper form. When filing a motion for an enlargement of time, the 
moving party shall state that it has contacted the opposing party about 
the request and shall inform the Board whether the opposing party 
consents to the request or will file an opposition.
    (e) Jurisdictional questions. The Board may at any time consider 
the issue of its jurisdiction to decide a case. When all facts touching 
upon the Board's jurisdiction are not of record, or in other 
appropriate circumstances, a decision on a jurisdictional question may 
be deferred pending a hearing on the merits or the filing of record 
submissions.
    (f) Procedure. Unless otherwise directed by the Board, a party may 
respond to a written motion other than a motion pursuant to 6101.26, 
6101.27, 6101.28, or 6101.29 (Rules 26, 27, 28, or 29) at any time 
within 20 calendar days after the filing of the motion. Responses to 
motions pursuant to 6101.26, 6101.27, 6101.28, or 6101.29 (Rules 26, 
27, 28, or 29) may be made only as permitted or directed by the Board. 
The Board may permit hearing or oral argument on written motions and 
may require additional submissions from any of the parties.
    (g) Motions for summary relief. (1) A motion for summary relief 
should be filed only when a party believes that, based upon uncontested 
material facts, it is entitled to relief in whole or in part as a 
matter of law. A motion for summary relief should be filed as soon as 
feasible, to allow the Board to rule on the motion in advance of a 
scheduled hearing date.
    (2) With each motion for summary relief, there shall be served and 
filed a separate document titled Statement of Uncontested Facts, which 
shall contain in separately numbered paragraphs all of the material 
facts upon which the moving party bases its motion and as to which it 
contends there is no genuine issue. This statement shall include 
references to the supporting affidavits or declarations and documents, 
if any, and to the 6101.4 (Rule 4) appeal file exhibits relied upon to 
support such statement.
    (3) An opposing party shall file with its opposition (or cross-
motion) a separate document titled Statement of Genuine Issues. This 
document shall identify, by reference to specific paragraph numbers in 
the moving party's Statement of Uncontested Facts, those facts as to 
which the opposing party claims there is a genuine issue necessary to 
be litigated. An opposing party shall state the precise nature of its 
disagreement and give its version of the facts. This statement shall 
include references to the supporting affidavits or declarations and 
documents, if any, and to the 6101.4 (Rule 4) appeal file exhibits that 
demonstrate the existence of a genuine dispute. An opposing party may 
also file a Statement of Uncontested Facts as to any relevant matters 
not covered by the moving party's statement.
    (4) When a motion for summary relief is made and supported as 
provided in 6101.8 (Rule 8), an opposing party may not rest upon the 
mere allegations or denials of its pleadings. The opposing party's 
response, by affidavits or as otherwise provided by 6101.8 (Rule 8), 
must set forth specific facts showing that there is a genuine issue of 
material fact. If the opposing party does not so respond, summary 
relief, if appropriate, shall be entered against that party. For good 
cause shown, if an opposing party cannot present facts essential to 
justify its opposition, the Board may defer ruling on the motion to 
permit affidavits to be obtained or depositions to be taken or other 
discovery to be conducted, or may make such other order as is just.
    (h) Effect of pending motion. Except as the rules of this chpater 
provide or the Board may order, a pending motion shall not excuse the 
parties from proceeding with the case in accordance with the rules of 
this chapter and the orders and directions of the Board.


6101.9   Record of Board proceedings; review and copying [Rule 9].

    (a) Composition of the record for decision. The record upon which 
any decision of the Board will be rendered consists of:
    (1) The notice of appeal, petition, or application;
    (2) Appeal file exhibits other than those as to which an objection 
has been sustained;
    (3) Hearing exhibits other than those as to which an objection has 
been sustained;
    (4) Pleadings;
    (5) Motions and responses thereto;
    (6) Memoranda, orders, rulings, and directions to the parties 
issued by the Board;
    (7) Documents and other tangible things admitted in evidence by the 
Board;
    (8) Written transcripts or electronic recordings of proceedings;
    (9) Stipulations and admissions by the parties;
    (10) Depositions, or parts thereof, received in evidence;
    (11) Written interrogatories and responses received in evidence;
    (12) Briefs and memoranda of law; and
    (13) Anything else that the Board may designate. All other papers 
and documents are part of the administrative record of the proceedings 
and are not included in the record upon which the Board's decision will 
be rendered.
    (b) Enlargement of the record. The Board may at any time require or 
permit enlargement of the record with additional evidence and briefs. 
It may reopen the record to receive additional evidence and oral 
argument at a hearing.
    (c) Protected and in camera submissions. (1) A party may by motion 
request that the Board receive and hold materials under conditions that 
would limit access to them on the ground that such documents are 
privileged or confidential, or sensitive in some other way. The moving 
party must state the grounds for such limited access. The Board may 
also determine on its own

[[Page 36800]]

initiative to hold materials under such conditions. The manner in which 
such materials will be held, the persons who shall have access to them, 
and the conditions (if any) under which such access will be allowed 
will be specified in an order of the Board. If the materials are held 
under such an order, they will be part of the record of the case. If 
the Board denies the motion, the materials may be returned to the party 
that submitted them. If the moving party asks, however, that the 
materials be placed in the administrative record, in camera, for the 
purpose of possible later review of the Board's denial, the Board will 
comply with the request.
    (2) A party may also ask, or the Board may direct, that testimony 
be received under protective order or in camera. The procedures under 
paragraph (c)(1) of this section shall be followed with respect to such 
request or direction.
    (d) Review and copying. Except for any part thereof that is subject 
to a protective order or deemed an in camera submission, the record in 
a Board proceeding shall be made available for review at the Office of 
the Clerk of the Board during the Board's normal working hours, as soon 
as practicable given the demands on the Board of processing the subject 
case and other cases. If a request is made for copies of documents, and 
if making such copies involves more than minimal costs to the Board, 
reimbursement will be required. If a request is made for a copy of a 
transcript which was prepared pursuant to a contract with the Board, 
the fee charged by the Board for a copy of the transcript will be at 
the rate established by the contract. When required, the Office of the 
Clerk will certify copies of papers and documents as a true record of 
the Board. Except as provided in 6101.17 and 6101.32 (Rules 17 and 32), 
the Office of the Clerk will not release any part of the record in its 
possession to anyone.


6101.10   Admissibility and weight of evidence [Rule 10].

    (a) Admissibility. In general, any relevant and material evidence 
will be admitted into the record. The Board may exclude evidence to 
avoid unfair prejudice, confusion of the issues, undue delay, waste of 
time, or needless presentation of cumulative evidence. Hearsay evidence 
is admissible unless the Board finds it unreliable or untrustworthy. As 
a general matter, and subject to the other provisions of 6101.10 (Rule 
10), the Board will look to the Federal Rules of Evidence for guidance 
when it makes evidentiary rulings.
    (b) Weight and credibility. The Board will determine the weight to 
be given to evidence and the credibility to be accorded witnesses.


6101.11   Conferences; conference memorandum [Rule 11].

    (a) Conferences. The Board may convene the parties in conference, 
either by telephone or in person, for any purpose. The conference may 
be stenographically or electronically recorded, at the discretion of 
the Board. Matters to be considered and actions to be taken at a 
conference may include:
    (1) Simplifying, clarifying, or severing the issues;
    (2) Stipulations, admissions, agreements, and rulings to govern the 
admissibility of evidence, understandings on matters already of record, 
or other similar means of avoiding unnecessary proof;
    (3) Plans, schedules, and rulings to facilitate discovery;
    (4) Limiting the number of witnesses and other means of avoiding 
cumulative evidence;
    (5) Stipulations or agreements disposing of matters in dispute; or
    (6) Ways to expedite disposition of the case or to facilitate 
settlement of the dispute, including, if the parties and the Board 
agree, the use of alternative dispute resolution techniques, as 
provided in 6101.51 and 6101.54 (Rules 51 and 54).
    (b) Conference memorandum. The Board may issue a memorandum of the 
results of a conference, an order reflecting any actions taken, or 
both. A memorandum or order so issued shall be placed in the record of 
the case and sent to each party. Each party shall have 5 working days 
after receipt of a memorandum to object to the substance of it.


6101.12   Suspensions and dismissals [Rule 12].

    (a) Suspension of proceedings to obtain contracting officer's 
decision. The Board may in its discretion suspend proceedings to permit 
a contracting officer to issue a decision when an appeal has been taken 
from the contracting officer's alleged failure to render a timely 
decision.
    (b) Suspension for other cause. The Board may suspend proceedings 
in a case for good cause, such as to permit the parties to finalize a 
settlement. The order suspending proceedings will prescribe the 
duration of the suspension or the conditions on which it will expire. 
The order may also prescribe actions to be taken by the parties during 
the period of suspension or following its expiration.
    (c) Dismissal, generally. A case may be dismissed by the Board on 
motion of either party. A case may also be dismissed for reasons cited 
by the Board in a show cause order to which a response has been 
permitted. Every dismissal shall be with prejudice to reinstatement of 
the case except as specified in paragraph (d) of this section.
    (d) Dismissal without prejudice. When circumstances beyond the 
control of the Board prevent the continuation of proceedings in a case, 
the Board may, in lieu of issuing an order suspending proceedings, 
dismiss the case without prejudice to reinstatement within 180 calendar 
days after the date of the dismissal. When a case has been dismissed 
without prejudice and neither party has timely requested that the case 
be reinstated, the case shall be deemed to be dismissed with prejudice 
on the last day such a request could have been made.
    (e) Issuance of order. The panel chair alone may issue an order 
suspending proceedings. An order of dismissal shall be issued by the 
panel of judges to which the case has been assigned if the motion is 
contested or if the Board is acting consequent to its own show cause 
order. An order of dismissal may be issued by the panel chair alone if 
the motion to dismiss is not contested.


6101.13   General provisions governing discovery [Rule 13].

    (a) Discovery methods. The parties are encouraged to exchange 
documents and other information voluntarily. In addition, the parties 
may obtain discovery by one or more of the following methods:
    (1) Depositions upon oral examination or written questions;
    (2) Written interrogatories;
    (3) Requests for production of documents, electronic records, or 
other tangible or intangible things; and
    (4) Requests for admission.
    (b) Scope of discovery. Except as otherwise limited by order of the 
Board, the parties may obtain discovery regarding any matter, not 
privileged, which is relevant to the subject matter involved in the 
pending case, whether it relates to the claim or defense of a party, 
including the existence, description, nature, custody, condition, and 
location of any books, documents, electronic records, or other tangible 
or intangible things, and the identity and location of persons having 
knowledge of any discoverable matter. It is not a ground for objection 
that the information sought will be inadmissible if the information 
sought appears

[[Page 36801]]

reasonably calculated to lead to the discovery of admissible evidence.
    (c) Discovery limits. The Board may limit the frequency or extent 
of use of the discovery methods set forth in 6101.13 (Rule 13) if it 
determines that:
    (1) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (2) The party seeking discovery has had ample opportunity by 
discovery in the case to obtain the information sought; or
    (3) The discovery is unduly burdensome and expensive, taking into 
account the needs of the case, the amount in controversy, limitations 
on the parties' resources, and the importance of the issues at stake.
    (d) Conduct of discovery. Parties may engage in discovery only to 
the extent the Board enters an order which either incorporates an 
agreed plan and schedule acceptable to the Board or otherwise permits 
such discovery as the moving party can demonstrate is required for the 
expeditious, fair, and reasonable resolution of the case.
    (e) Discovery conference. Upon request of a party or on its own 
initiative, the Board may at any time hold an informal meeting or 
telephone conference with the parties to identify the issues for 
discovery purposes; establish a plan and schedule for discovery; set 
limitations on discovery, if any; and determine such other matters as 
are necessary for the proper management of discovery. The Board may 
include in the conference such other matters as it deems appropriate in 
accordance with 6101.11 (Rule 11).
    (f) Discovery objections. (1) In connection with any discovery 
procedure, the Board, on motion or on its own initiative, may make any 
order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including, but not limited to, one or more of the following:
    (i) That the discovery not be had;
    (ii) That the discovery be had only on specified terms and 
conditions, including a designation of the time and place, or that the 
scope of discovery be limited to certain matters;
    (iii) That the discovery be conducted with no one present except 
persons designated by the Board; and
    (iv) That confidential information not be disclosed or that it be 
disclosed only in a designated way.
    (2) Unless otherwise ordered by the Board, any objection to a 
discovery request must be filed within 15 calendar days after receipt. 
A party shall fully respond to any discovery request to which it does 
not file a timely objection. The parties are required to make a good 
faith effort to resolve objections to discovery requests informally.
    (3) A party receiving an objection to a discovery request, or a 
party which believes that another party's response to a discovery 
request is incomplete or entirely absent, may file a motion to compel a 
response, but such a motion must include a representation that the 
moving party has tried in good faith, prior to filing the motion, to 
resolve the matter informally. The motion to compel shall include a 
copy of each discovery request at issue and the response, if any.
    (g) Failure to make or cooperate in discovery. If a party fails to 
appear for a deposition, after being served with a proper notice; to 
serve answers or objections to interrogatories submitted under 6101.14 
(Rule 14), after proper service of interrogatories; or to serve a 
written response to a request for inspection, production, and copying 
of any documents, electronic records, and things under 6101.14 (Rule 
14), the party seeking discovery may move the Board to impose 
appropriate sanctions under 6101.33 (Rule 33).
    (h) Subpoenas. A party may request the issuance of a subpoena in 
aid of discovery under the provisions of 6101.16 (Rule 16).


6101.14   Interrogatories to parties; requests for admission; requests 
for production [Rule 14].

    Upon order from the Board permitting such discovery, a party may 
serve on another party written interrogatories, requests for admission, 
and requests for production.
    (a) Written interrogatories. Written interrogatories shall be 
answered separately in writing, signed under oath or accompanied by a 
declaration under penalty of perjury, and answered within 30 calendar 
days after service. Objections shall be filed within the time limits 
set forth in 6101.13(f)(2) (Rule 13(f)(2)).
    (b) Option to produce business records. Where the answer to an 
interrogatory may be derived or ascertained from the business records 
of the party upon which the interrogatory has been served, or from an 
examination, audit, or inspection of such business records, including a 
compilation, abstract, or summary thereof, and the burden of deriving 
or ascertaining the answer is substantially the same for the party 
serving the interrogatory as for the party served, it is a sufficient 
answer to such interrogatory to specify the records from which the 
answer may be derived or ascertained and to afford to the party serving 
the interrogatory reasonable opportunity to examine, audit, or inspect 
such records and to make copies, compilations, abstracts, or summaries 
thereof. Such specification shall be in sufficient detail to permit the 
interrogating party to locate and to identify, as readily as can the 
party served, the records from which the answer may be ascertained.
    (c) Written requests for admission. A written request for the 
admission of the truth of any matter, within the proper scope of 
discovery, that relates to statements or opinions of fact or of the 
application of law to fact, including the genuineness of any documents 
or electronic records, is to be answered in writing and signed within 
30 calendar days after service. Objections shall be filed within the 
time limits set forth in 6101.13(f)(2) (Rule 13(f)(2)). Otherwise, the 
matter therein may be deemed to be admitted. Any matter admitted is 
conclusively established for the purpose of the pending action, unless 
the Board on motion permits withdrawal or amendment of the admission. 
Any admission made by a party under this paragraph (c) is for the 
purpose of the pending action only and is not an admission for any 
other purpose, nor may it be used against the party in any other 
proceeding.
    (d) Written requests for production. A written request for the 
production, inspection, and copying of any documents, electronic 
records, or things shall be answered within 30 calendar days after 
service. Objections shall be filed within the time limits set forth in 
6101.13(f)(2) (Rule 13(f)(2)).
    (e) Change in time for response. Upon request of a party, or on its 
own initiative, the Board may prescribe a period of time other than 
that specified in 6101.14 (Rule 14).
    (f) Responses. A party that has responded to written 
interrogatories, requests for admission, or requests for production of 
documents, electronic records, or things, upon becoming aware of 
deficiencies or inaccuracies in its original responses, or upon 
acquiring additional information or additional documents, electronic 
records, or things relevant thereto, shall, as quickly as practicable, 
and as often as necessary, supplement its responses to the requesting 
party with correct and sufficient additional information and such 
additional documents, electronic records, and things as are necessary 
to give a complete and accurate response to the request.

[[Page 36802]]

6101.15   Depositions [Rule 15].

    (a) When depositions may be taken. Upon request of a party, the 
Board may order the taking of testimony of any person by deposition 
upon oral examination or written questions before an officer authorized 
to administer oaths at the place of examination. Attendance of 
witnesses may be compelled by subpoena as provided in 6101.16 (Rule 
16), and the Board may upon motion order that the testimony at a 
deposition be recorded by other than stenographic means, in which event 
the order may designate the manner of recording, preserving, and filing 
the deposition and may include other provisions to ensure that the 
recorded testimony will be accurate and trustworthy. In addition, if 
the Board orders deposition testimony to be recorded by other than 
stenographic means, the Board will also determine who shall bear the 
burden of the cost of such recording, and shall permit the non-moving 
party to arrange to have a stenographic transcription made at its own 
expense.
    (b) Depositions: time; place; manner of taking. The time, place, 
and manner of taking depositions, including the taking of depositions 
by telephone, shall be as agreed upon by the parties or, failing such 
agreement, as ordered by the Board. A deposition taken by telephone is 
taken at the place where the deponent is to answer questions.
    (c) Use of depositions. At a hearing on the merits or upon a motion 
or interlocutory proceeding, any part or all of a deposition, so far as 
admissible and as though the witness were then present and testifying, 
may be used against a party who was present or represented at the 
taking of the deposition or who had reasonable notice thereof, in 
accordance with any of the following provisions:
    (1) Any deposition may be used by a party for the purpose of 
contradicting or impeaching the testimony of the deponent as a witness.
    (2) The deposition of a party or of anyone who at the time of 
taking the deposition was an officer, director, or managing agent, or a 
person designated to testify on behalf of a corporation, partnership, 
association, or government agency which is a party may be used by an 
adverse party for any purpose.
    (3) The deposition of a witness, whether or not a party, may be 
used by a party for any purpose in its own behalf if the Board finds 
that:
    (i) The witness is dead;
    (ii) The attendance of the witness at the place of hearing cannot 
be reasonably obtained, unless it appears that the absence of the 
witness was procured by the party offering the deposition;
    (iii) The witness is unable to attend or testify because of 
illness, infirmity, age, or imprisonment;
    (iv) The party offering the deposition has been unable to procure 
the attendance of the witness by subpoena; or
    (v) Upon request and notice, exceptional circumstances exist which 
make it desirable in the interest of justice and with due regard to the 
importance of presenting the testimony of witnesses orally in open 
hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require the offering party to introduce any other 
part which in fairness ought to be considered with the part introduced.
    (d) Depositions pending appeal from a decision of the Board. If an 
appeal has been taken from a decision of the Board, or before the 
taking of an appeal if the time therefor has not expired, the Board may 
allow the taking of depositions of witnesses to perpetuate their 
testimony for use in the event of further proceedings before the Board. 
In such case, the party that desires to perpetuate testimony may make a 
motion before the Board for leave to take the depositions as if the 
action were pending before the Board. The motion shall show:
    (1) The names and addresses of the persons to be examined and the 
substance of the testimony which the moving party expects to elicit 
from each; and
    (2) The reasons for perpetuating the testimony of the persons 
named. If the Board finds that the perpetuation of testimony is proper 
to avoid a failure or a delay of justice, it may order the depositions 
to be taken and may make orders of the character provided for in 
6101.13 (Rule 13) and in 6101.15 (Rule 15). Thereupon, the depositions 
may be taken and used as prescribed in the rules of this chapter for 
depositions taken in actions pending before the Board. Upon request and 
for good cause shown, a judge may issue or obtain a subpoena, in 
accordance with 6101.16 (Rule 16), for the purpose of perpetuating 
testimony by deposition during the pendency of an appeal from a Board 
decision.


6101.16   Subpoenas [Rule 16].

    (a) Voluntary cooperation in lieu of subpoena. Each party is 
expected to:
    (1) Cooperate by making available witnesses and evidence under its 
control, when requested by another party, without issuance of a 
subpoena; and
    (2) Secure the cooperation of third-party witnesses and production 
of evidence by third parties, when practicable, without issuance of a 
subpoena.
    (b) General. Upon the written request of any party filed with the 
Office of the Clerk of the Board, or upon the initiative of a judge, a 
subpoena may be issued that commands the person to whom it is directed 
to:
    (1) Attend and give testimony at a deposition in a city or county 
where that person resides or is employed or transacts business in 
person, or at another location convenient to that person that is 
specifically determined by the Board;
    (2) Attend and give testimony at a hearing; and
    (3) Produce the books, papers, documents, electronic records, and 
other tangible and intangible things designated in the subpoena.
    (c) Request for subpoena. A request for a subpoena shall contain 
the name of the assigned judge, the name of the case, and the docket 
number of the case. It shall state the reasonable scope and general 
relevance to the case of the testimony and of any evidence sought. A 
request for a subpoena shall be filed at least 15 calendar days before 
the testimony of a witness or evidence is to be provided. The Board 
may, in its discretion, honor requests for subpoenas not made within 
this time limitation.
    (d) Form; issuance. (1) Every subpoena shall be in the form 
specified in the Appendix to the rules of this chapter and this form 
shall not be altered. Unless a party has the approval of a judge to 
submit a subpoena in blank (in whole or in part), a party shall submit 
to the judge a completed subpoena (save the ``Return on Service'' 
portion). In issuing a subpoena to a requesting party, the judge shall 
sign the subpoena. The party to whom the subpoena is issued shall 
complete the subpoena before service.
    (2) If the person subpoenaed is located in a foreign country, a 
letter rogatory or a subpoena may be issued and served under the 
circumstances and in the manner provided in 28 U.S.C. 1781-1784.
    (e) Service. (1) The party requesting a subpoena shall arrange for 
service. Service shall be made as soon as practicable after the 
subpoena has been issued.
    (2) A subpoena requiring the attendance of a witness at a 
deposition or hearing may be served at any place. A subpoena may be 
served by a United States marshal or deputy marshal, or by any other 
person who is not a party and not less than 18 years of age. Service of 
a subpoena upon a person named therein shall be made by personal

[[Page 36803]]

delivery of a copy to that person and tender of the fees for one day's 
attendance and the mileage allowed by 28 U.S.C. 1821 or other 
applicable law; however, where the subpoena is issued on behalf of the 
Government, money payments need not be tendered in advance of 
attendance.
    (f) Proof of service. The person serving the subpoena shall make 
proof of service thereof to the Board promptly and in any event before 
the date on which the person served must respond to the subpoena. Proof 
of service shall be made by completion and execution and submission to 
the Board of the ``Return on Service'' portion of a duplicate copy of 
the subpoena issued by a judge. If service is made by a person other 
than a United States marshal or his deputy, that person shall make an 
affidavit as proof by executing the ``Return on Service'' in the 
presence of a notary.
    (g) Motion to quash or to modify. Upon written motion by the person 
subpoenaed or by a party, made within 14 calendar days after service, 
but in any event not later than the time specified in the subpoena for 
compliance, the Board may quash or modify the subpoena if it is 
unreasonable and oppressive or for other good cause shown, or require 
the party in whose behalf the subpoena was issued to advance the 
reasonable cost of producing subpoenaed evidence. Where circumstances 
require, the Board may act upon such a motion at any time after a copy 
has been served upon opposing parties.
    (h) Contumacy or refusal to obey a subpoena. In a case of contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States district 
court, the Board shall apply to the court through the Attorney General 
of the United States for an order requiring the person to appear before 
the Board to give testimony, produce evidence, or both.


6101.17   Exhibits [Rule 17].

    (a) Marking of exhibits. (1) Documents and other tangible things 
offered in evidence by a party will be marked for identification by the 
Board during the hearing or, if ordered by the Board, will be added to 
the appeal file as exhibits before the commencement of the hearing in 
order, for example, to eliminate the introduction of additional 
exhibits at the hearing.
    (2) If a party elects to proceed on the record without a hearing 
pursuant to 6101.19 (Rule 19), documentary evidence submitted by that 
party will be numbered consecutively as appeal file exhibits.
    (b) Copies as exhibits. Except upon objection sustained by the 
Board for good cause shown, copies of documents may be offered and 
received into evidence as exhibits, provided they are of equal 
legibility and quality as the originals, and such copies shall have the 
same force and effect as if they were the originals. If the Board 
directs, a party offering a copy of a document as an exhibit shall have 
the original available at the hearing for examination by the Board and 
any other party. When the original of a document has been received into 
evidence as an exhibit, an accurate copy may be substituted in evidence 
for the original by leave of the Board at any time. The Board may 
require a party to provide either copies of electronic records or 
printed versions of electronic records to be included in the record.
    (c) Withdrawal of exhibits and other items. With the permission of 
the Board, a party that submits an exhibit or any other item may 
withdraw the exhibit or item from the record during the course of a 
proceeding.
    (d) Disposition of physical exhibits. Any physical (as opposed to 
documentary) exhibit may be disposed of by the Board at any time more 
than 90 calendar days after the expiration of the period for appeal 
from the decision of the Board.


6101.18   Election of hearing or record submission [Rule 18].

    Each party shall inform the Board, in writing, whether it elects a 
hearing or submission of its case on the record pursuant to 6101.19 
(Rule 19). Such an election may be filed at any time unless a time for 
filing is prescribed by the Board. In most cases, the Board will 
require the parties to make an election soon after discovery closes. A 
party electing to submit its case on the record pursuant to 6101.19 
(Rule 19) may also elect to appear at a hearing solely to cross-examine 
any witness presented by the opposing party, provided that the Board is 
informed of that party's intention within 10 working days of its 
receipt of notice of the election of hearing by the other party. If a 
hearing is elected, the election should state where and when the 
electing party desires the hearing to be held and should explain the 
reasons for its choices. A hearing will be held if either party elects 
one. If a party's decision whether to elect a hearing is dependent upon 
the intentions of the other party, it shall consult with the other 
party before filing its election. If there is to be a hearing, it will 
be held at a time and place prescribed by the Board after consultation 
with the party or parties electing the hearing. The record submissions 
from a party that has elected to submit its case on the record shall be 
due as provided in 6101.19 (Rule 19).


6101.19   Submission on the record without a hearing [Rule 19].

    (a) Submission on the record. A party may elect to submit its case 
on the record without a hearing. A party submitting its case on the 
record may include in its written record submission or submissions:
    (1) Any relevant documents or other tangible things it wishes the 
Board to admit into evidence;
    (2) Affidavits, depositions, and other discovery materials that set 
forth relevant evidence; and
    (3) A brief or memorandum of law. The Board may require the 
submission of additional evidence or briefs and may order oral argument 
in a case submitted on the record.
    (b) Time for submission. (1) If both parties have elected to submit 
the case on the record, the Board will issue an order prescribing the 
time for initial and, if appropriate, reply record submissions.
    (2) If one party has elected a hearing and the other party has 
elected to submit its case on the record, the party submitting on the 
record shall make its initial submission no later than the commencement 
of the hearing or at an earlier date if the Board so orders, and a 
further submission in the form of a brief at the time for submission of 
posthearing briefs.
    (c) Objections to evidence. Unless otherwise directed by the Board, 
objections to evidence (other than the appeal file and supplements 
thereto) in a record submission may be made within 10 working days 
after the filing of the submission, and replies to such objections, if 
any, may be made within 10 working days after the filing of the 
objection. The Board may rule on such objections either before it 
issues its decision or at the time it issues its decision.


6101.20   Hearings: scheduling; notice; unexcused absences [Rule 20].

    (a) Scheduling of hearings. Hearings will be held at the time and 
place ordered by the Board and will be scheduled at the discretion of 
the Board. In scheduling hearings, the Board will consider the 
requirements of the rules of this chapter, the need for orderly 
management of the Board's caseload, and the stated desires of the 
parties as expressed in their elections filed

[[Page 36804]]

pursuant to 6101.18 (Rule 18) or otherwise. The time or place for 
hearing may be changed by the Board at any time.
    (b) Notice of hearing. Notice of hearing will be by written order 
of the Board. Notice of changes in the hearing schedule will also be by 
written order when practicable but may be oral in exigent 
circumstances. Except as the Board may otherwise order, each party that 
plans to attend the hearing shall, within 10 working days of receipt of 
a written notice of hearing or any notice of a change in hearing 
schedule stating that an acknowledgment is required, notify the Board 
in writing that it will attend the hearing. If a party fails to 
acknowledge a notice of hearing as required, the Board will deem the 
party to have consented to the time and place of hearing.
    (c) Unexcused absence from hearing. In the event of the unexcused 
absence of a party from a hearing, the hearing will proceed, and the 
absent party will be deemed to have elected to submit its case on the 
record pursuant to 6101.19 (Rule 19).


6101.21   Hearing procedures [Rule 21].

    (a) Nature and conduct of hearings. (1) Except when necessary to 
maintain the confidentiality of protected material or testimony, or 
material submitted in camera, all hearings on the merits of cases shall 
be open to the public and conducted insofar as is convenient in regular 
hearing rooms. All other acts or proceedings may be done or conducted 
by the Board either in its offices or at other places.
    (2) When cases involving common questions of law or fact are 
pending, the Board may order a joint hearing of any or all of the 
matters, claims, or issues in the cases.
    (3) The Board may order a separate hearing of any matters, claims, 
or issues pending in any case. The Board may enter appropriate orders 
or decisions with respect to any matters, claims, or issues that are 
heard separately.
    (4) Upon the agreement of the parties or upon its own initiative, 
the Board may notify the parties before a hearing begins that it will 
limit the hearing to those issues of law and fact relating to the right 
of a party to recover, reserving the determination of the amount of 
recovery, if any, for other proceedings.
    (5) Before the hearing begins, the Board may prescribe a time 
within which the presentation of evidence must be concluded, and may 
establish time limits on the direct and cross-examination of witnesses.
    (6) Upon the request of either party or if the Board deems it 
advisable, the Board will order witnesses to be excluded from the 
hearing room so they cannot hear the testimony of other witnesses. The 
Board will not exclude a party who is an individual, the designated 
representative of a party which is an entity, a person whose presence 
is essential to the presentation of a party's case, or someone 
authorized by statute to be present.
    (b) Continuances; change of location. Whenever practicable, a 
hearing will be conducted in one continuous session or a series of 
consecutive sessions at a single location. However, the Board may at 
any time continue the hearing to a future date and may arrange to 
conduct the hearing in more than one location. The Board may also 
continue a hearing to permit a party to conduct additional discovery on 
conditions established by the Board. In exercising its discretion to 
continue a hearing or to change its location, the Board will give due 
consideration to the same elements (set forth in 6101.20(a) (Rule 
20(a))) that it considers in scheduling hearings.
    (c) Availability of witnesses, documents, and other tangible 
things. It is the responsibility of a party desiring to call any 
witness, or to use any document or other tangible thing as an exhibit 
in the course of a hearing, to ensure that whomever it wishes to call 
and whatever it wishes to use is available at the hearing. If a witness 
cannot be made available at the site of the hearing, the party who 
wishes to call the witness may file a motion that the witness be 
allowed to testify remotely, whether by telephone, video conference, or 
some other method.
    (d) Enlargement of the record. The Board may at any time during the 
conduct of a hearing require evidence or argument in addition to that 
put forth by the parties.
    (e) Examination of witnesses. Witnesses before the Board will 
testify under oath or affirmation. A party or the Board may obtain an 
answer from any witness to any question that is not the subject of an 
objection that the Board sustains.
    (f) Refusal to be sworn. If a person called as a witness refuses to 
be sworn or to affirm before testifying, the Board may direct that 
witness to be sworn or to affirm and, in the event of continued 
refusal, the Board may permit the taking of testimony without oath or 
affirmation. If the Board permits a witness to testify without oath or 
affirmation, the Board will explain that statements made during the 
hearing are subject to provisions of federal law imposing penalties, 
including criminal penalties, for knowingly making false 
representations. Alternatively, the Board may refuse to permit the 
examination of that witness, in which event it may state for the record 
the inferences it draws from the witness's refusal to testify under 
oath or affirmation. Alternatively, the Board may issue a subpoena to 
compel that witness to testify under oath or affirmation and, in the 
event of the witness's continued refusal to be sworn or to affirm, may 
seek enforcement of that subpoena pursuant to 6101.16(h) (Rule 16(h)).
    (g) Refusal to answer. If a witness refuses to answer a question 
put to him in the course of his testimony, the Board may direct that 
witness to answer and, in the event of continued refusal, the Board may 
state for the record the inferences it draws from the refusal to 
answer. Alternatively, the Board may issue a subpoena to compel that 
witness to testify and, in the event of the witness's continued refusal 
to testify, may seek enforcement of that subpoena pursuant to 
6101.16(h) (Rule 16(h)).
    (h) Issues not raised by pleadings. If evidence is objected to at a 
hearing on the ground that it is not within the issues raised by the 
pleadings, it may nevertheless be admitted by the Board if it is within 
the proper scope of the case. If such evidence is admitted, the Board 
may grant the objecting party a continuance to enable it to meet such 
evidence. If such evidence is admitted, the pleadings may be amended to 
conform to the evidence, as provided by 6101.6(f) (Rule 6(f)).
    (i) Delay by parties. If the Board determines that the hearing is 
being unreasonably delayed by the failure of a party to produce 
evidence, or by the undue prolongation of the presentation of evidence, 
it may, during the hearing, prescribe a time or times within which the 
presentation of evidence must be concluded, establish time limits on 
the direct or cross-examination of witnesses, and enforce such order or 
ruling by appropriate sanctions.


6101.22   Transcripts of proceedings; corrections [Rule 22].

    (a)Transcripts. Except as the Board may otherwise order, all 
hearings, other than those under the small claims procedure prescribed 
by 6101.52 (Rule 52), will be stenographically or electronically 
recorded and transcribed. Any other hearing or conference will be 
recorded or transcribed only by order of the Board. Each party is 
responsible for obtaining its own copy of the transcript if one is 
prepared.
    (b) Corrections. Corrections to an official transcript will be made 
only when they involve errors affecting its substance. The Board may 
order such corrections on motion or on its own

[[Page 36805]]

initiative, and only after notice to the parties giving them 
opportunity to object. Such corrections will ordinarily be made either 
by hand with pen and ink or by the appending of an errata sheet, but 
when no other method of correction is practicable the Board may require 
the reporter to provide substitute or additional pages.


6101.23   Briefs and memoranda of law [Rule 23].

    (a) Form and content of briefs and memoranda of law. Briefs and 
memoranda of law shall be on standard size 8-1/2 by 11-inch paper. They 
shall be double-spaced with text in the body and in the footnotes no 
smaller than 12 point. Otherwise, no particular form or organization is 
prescribed. Posthearing briefs should, at a minimum, succinctly set 
forth:
    (1) The facts of the case with citations to those places in the 
record where supporting evidence can be found; and
    (2) Argument with citations to supporting legal authorities.
    (b) Submission of posthearing briefs. Except as the Board may 
otherwise order, posthearing briefs shall be filed 30 calendar days 
after the Board's receipt of the transcript; reply briefs, if filed, 
shall be filed 15 calendar days after the parties' receipt of the 
initial posthearing briefs. The Board will notify the parties of the 
date of its receipt of the transcript. In the event one party has 
elected a hearing and the other party has elected to submit its case on 
the record pursuant to 6101.19 (Rule 19), the filing of record 
submissions in the form of briefs shall be governed by 6101.23 (Rule 
23).


6101.24   Closing the record [Rule 24].

    (a) Closing of the record. Except as the Board may otherwise order, 
no proof shall be received in evidence after a hearing is completed or, 
in cases submitted on the record without a hearing, after notice by the 
Board to the parties that the record is closed and that the case is 
ready for decision.
    (b) Notice that the case is ready for decision. The Board will give 
written notice to the parties when the record is closed and the case is 
ready for decision.


6101.25   Decisions; settlements [Rule 25].

    (a) Decisions. (1) Except as provided in 6101.52 (Rule 52) (small 
claims procedure), decisions of the Board will be made in writing upon 
the record as prescribed in 6101.9 (Rule 9). The Board may also take 
notice of any fact or law of which a court could take judicial notice. 
Each of the parties will be furnished a copy of the decision certified 
by the Office of the Clerk of the Board, and the date of the receipt 
thereof by each party will be established in the record.
    (2) In its decision, the Board may reserve determination of the 
amount of recovery for other proceedings, regardless of whether there 
is evidence in the record concerning the amount of recovery, provided 
the Board notified the parties before the hearing began that its 
decision would not address the amount of any recovery. In any instance 
in which the Board has reserved its determination of the amount of 
recovery for other proceedings, as provided in 6101.21(a)(4) (Rule 
21(a)(4)), its decision on the question of the right to recover shall 
be final so far as proceedings at the Board are concerned, subject to 
the provisions of 6101.26 through 6101.28 (Rules 26 through 28).
    (b) Settlements. When an appeal or application is settled, the 
parties may file with the Board a stipulation setting forth the amount 
of the award. The Board will adopt the parties' stipulation by 
decision, provided the stipulation states the parties will not seek 
reconsideration of, or relief from, the Board's decision, and they will 
not appeal the decision. The Board's decision under this paragraph (b) 
is an adjudication of the case on the merits.


6101.26   Reconsideration; amendment of decisions; new hearings [Rule 
26].

    (a) Grounds. Reconsideration may be granted, a decision or order 
may be altered or amended, or a new hearing may be granted, for any of 
the reasons stated in 6101.27(a) (Rule 27(a)) and the reasons 
established by the rules of common law or equity applicable as between 
private parties in the courts of the United States. Reconsideration or 
a new hearing may be granted on all or any of the issues. Arguments 
already made and reinterpretations of old evidence are not sufficient 
grounds for granting reconsideration, for altering or amending a 
decision, or for granting a new hearing. Upon granting a motion for a 
new hearing, the Board will take additional testimony and, if a 
decision has been issued, either amend its findings of fact and 
conclusions or law or issue a new decision.
    (b) Procedure. Any motion under 6101.26 (Rule 26) shall comply with 
the provisions of 6101.8 (Rule 8) and shall set forth:
    (1) The reason or reasons why the Board should consider the motion; 
and
    (2) The relief sought and the grounds therefor. If the Board 
concludes that the reasons asserted for its consideration of the motion 
are insufficient, it may deny the motion without considering the relief 
sought and the grounds asserted therefor. If the Board grants the 
motion, it will issue an appropriate order which may include directions 
to the parties for further proceedings.
    (c) Time for filing. In an appeal or petition, a motion for 
reconsideration, to alter or amend a decision or order, or for a new 
hearing shall be filed within 30 calendar days after the date the 
moving party receives the decision or order. In an application, such a 
motion shall be filed within 7 working days after the date the moving 
party receives the decision or order. Not later than 30 calendar days 
after issuance of a decision or order, the Board may, on its own 
initiative, order reconsideration or a new hearing or alter or amend a 
decision or order for any reason that would justify such action on 
motion of a party.
    (d) Effect of motion. A motion pending under 6101.26 (Rule 26) does 
not affect the finality of a decision or suspend its operation.


6101.27   Relief from decision or order [Rule 27].

    (a) Grounds. The Board may relieve a party from the operation of a 
final decision or order for any of the following reasons:
    (1) Newly discovered evidence which could not have been earlier 
discovered, even through due diligence;
    (2) Justifiable or excusable mistake, inadvertence, surprise, or 
neglect;
    (3) Fraud, misrepresentation, or other misconduct of an adverse 
party;
    (4) The decision has been satisfied, released, or discharged, or a 
prior decision upon which it is based has been reversed or otherwise 
vacated, and it is no longer equitable that the decision should have 
prospective application;
    (5) The decision is void, whether for lack of jurisdiction or 
otherwise; or
    (6) Any other ground justifying relief from the operation of the 
decision or order.
    (b) Procedure. Any motion under 6101.27 (Rule 27) shall comply with 
the provisions of 6101.8 and 6101.26(b) (Rules 8 and 26(b)), and will 
be considered and ruled upon by the Board as provided in 6101.26 (Rule 
26).
    (c) Time for filing. Any motion under 6101.27 (Rule 27) shall be 
filed as soon as practicable after the discovery of the reasons 
therefor, but in any event no later than 120 calendar days after the 
date of the moving party's receipt of the decision or order from which 
relief is sought. In considering the timeliness of a motion filed under 
6101.27 (Rule 27), the Board may consider when the

[[Page 36806]]

grounds therefor should reasonably have been known to the moving party.
    (d) Effect of motion. A motion pending under 6101.27 (Rule 27) does 
not affect the finality of a decision or suspend its operation.


6101.28   Full Board consideration [Rule 28].

    (a) Requests by parties. (1) A request for full Board consideration 
is not favored. Ordinarily, full Board consideration will be ordered 
only when it is necessary to secure or maintain uniformity of Board 
decisions, or the matter to be referred is one of exceptional 
importance.
    (2) A request for full Board consideration may be made by either 
party on any date which is both after the panel to which the case is 
assigned has issued its decision on a motion for reconsideration or 
relief from decision and within 10 working days after the date on which 
that party receives that decision. Any party making a request for full 
Board consideration shall state concisely in the motion the precise 
grounds on which the request is based.
    (3) Promptly after such a request is made, a ballot will be taken 
among the judges; if a majority of them favors the request, the request 
will be granted. The result of the vote will promptly be reported by 
the Board through an order. The concurring or dissenting view of any 
judge who wishes to express such a view may issue at the time of such 
order or at any time thereafter.
    (b) Initiation by Board. A majority of the judges may initiate full 
Board consideration of a matter at any time while the case is before 
the Board, no later than the last date on which any party may file a 
motion for reconsideration or relief from decision or order, or if such 
a motion is filed by a party, within ten days after a panel has 
resolved it. The parties will be informed promptly, through an order, 
of the matter to be considered by the full Board. The concurring or 
dissenting view of any judge who wishes to express such a view may 
issue at the time of such order or at any time thereafter.
    (c) Decisions. If full Board consideration is granted at the 
request of a party or initiated by the Board, a vote shall be taken 
promptly on the pending matter. After this vote is taken, the Board 
shall promptly, by order, issue its determination, which shall include 
the concurring or dissenting view of any judge who wishes to express 
such a view.
    (d) Effect of motion. A pending request for full Board 
consideration, whether initiated by a party or by the Board, does not 
affect the finality of a decision or suspend its operation.


6101.29   Clerical mistakes; harmless error [Rule 29].

    (a) Clerical mistakes. Clerical mistakes in decisions, orders, or 
other parts of the record, and errors arising therein through oversight 
or inadvertence, may be corrected by the Board at any time on its own 
initiative or upon motion of a party on such terms, if any, as the 
Board may prescribe. During the pendency of an appeal to another 
tribunal, such mistakes may be corrected only with leave of the 
appellate tribunal.
    (b) Harmless error. No error in the admission or exclusion of 
evidence, and no error or defect in any ruling, order, or decision of 
the Board, and no other error in anything done or not done by the Board 
will be a ground for granting a new hearing or for vacating, 
reconsidering, modifying, or otherwise disturbing a decision or order 
of the Board unless refusal to act upon such error will prejudice a 
party or work a substantial injustice. At every stage of the 
proceedings the Board will disregard any error or defect that does not 
affect the substantial rights of the parties.


6101.30   Award of fees and other expenses [Rule 30].

    (a) Applications for fees and other expenses. An appropriate party 
in a proceeding before the Board may apply for an award of fees and 
other expenses, including if applicable an award of attorney fees, 
under 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. Until it issues a decision, the 
Board will not consider a request for fees and other expenses.
    (b) Time for filing. A party seeking an award may submit an 
application no later than 30 calendar days after a final disposition in 
the underlying appeal. The Board's decision becomes final (for purposes 
of 6101.30 (Rule 30) when it is not appealed to the United States Court 
of Appeals for the Federal Circuit within the time permitted for appeal 
or, if the decision is appealed, when the time for petitioning the 
Supreme Court for certiorari has expired.
    (c) Application requirements. An application for fees and other 
expenses shall:
    (1) Identify the applicant and the appeal for which fees and other 
expenses are sought, and the amount being sought;
    (2) Establish that all applicable prerequisites for an award have 
been satisfied, including a succinct statement of why the applicant is 
eligible for an award of fees and other expenses;
    (3) Be accompanied by an exhibit fully documenting any fees or 
expenses being sought, including the cost of any study, analysis, 
engineering report, test, project, or similar matter. The date and a 
description of all services rendered or costs incurred shall be 
submitted for each professional firm or individual whose services are 
covered by the application, showing the hours spent in connection with 
the proceeding by each individual, a description of the particular 
services performed by specific date, the rate at which each fee has 
been computed, any expenses for which reimbursement is sought, and the 
total amount paid or payable by the applicant. Except in exceptional 
circumstances, all exhibits supporting applications for fees or 
expenses sought shall be publicly available. The Board may require the 
applicant to provide vouchers, receipts, or other substantiation for 
any fees and other expenses claimed and/or to submit to an audit by the 
Government of the claimed fees and other expenses;
    (4) Be signed by the applicant or an authorized officer, employee, 
or attorney of the applicant;
    (5) Contain or be accompanied by a written verification under oath 
or affirmation, or declaration under penalty of perjury, that the 
information provided in the application is true and correct;
    (6) If the applicant asserts that it is a qualifying small business 
concern, contain evidence thereof; and
    (7) 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) Within 30 calendar days after receipt by the 
respondent of an application under 6101.30 (Rule 30), the respondent 
may file an answer. The answer shall explain in detail any objections 
to the award requested and set out the legal and factual bases 
supporting the respondent's position. If the 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, the respondent shall include in 
the answer evidence of such highest rate.
    (2) Further proceedings shall be held only by order of the Board 
and only

[[Page 36807]]

when necessary for full and fair resolution of the issues arising from 
the application. Such proceedings shall be minimized to the extent 
possible and shall not include relitigation of the case on the merits. 
A request that the Board order further proceedings under 6101.30 (Rule 
30) shall describe the disputed issues and explain why additional 
proceedings are necessary to resolve those issues.
    (e) Decision. Any award ordered by the Board shall be paid pursuant 
to 6101.31 (Rule 31).


6101.31   Payment of Board awards [Rule 31].

    (a) Generally. When permitted by law, payment of Board awards may 
be made in accordance with 31 U.S.C. 1304. Awards by the Board pursuant 
to the Equal Access to Justice Act shall be directly payable by the 
respondent agency over which the applicant has prevailed in the 
underlying appeal.
    (b) Conditions for payment. Before a party may obtain payment of a 
Board award pursuant to 31 U.S.C. 1304, one of the following must 
occur:
    (1) Both parties must, by execution of a Certificate of Finality, 
waive their rights to relief under 6101.26 and 6101.27 (Rules 26 and 
27) and also their rights to appeal the decision of the Board; or
    (2) The time for filing an appeal must expire.
    (c) Procedure. Whenever the Board issues a decision or an order 
awarding an appellant any amount of money, it will attach to the copy 
of the decision sent to each party forms such as those contained in the 
Appendix to the rules of this chapter. Unless the appellant files a 
timely appeal from the decision, the appellant will complete the 
Certificate of Finality, sign it, and forward it to the person or 
persons who entered an appearance in the appeal on behalf of the 
government agency. Upon receipt of a completed and executed Certificate 
of Finality, unless the government agency files a timely appeal from 
the decision, the person or persons who entered an appearance in the 
appeal on behalf of the government agency will promptly transmit the 
appellant's Certificate of Finality, along with a certified copy of the 
Board's decision and any other necessary documentation, to the United 
States Department of the Treasury for payment.


6101.32   Appeal from a Board decision [Rule 32].

    (a) Record on review. When a party has appealed a Board decision to 
the United States Court of Appeals for the Federal Circuit, the record 
on review shall consist of the decision sought to be reviewed, the 
record before the Board as described in 6101.9(a)(1) through (a)(13) 
(Rule 9(a)(1) through (a)(13)), and such other material contained in 
the Board's file as may be required by the Court of Appeals.
    (b) Notice. At the same time a party seeking review of a Board 
decision files a notice of appeal, that party shall provide a copy of 
the notice to the Board.
    (c) Filing of certified list of record materials. Promptly after 
service upon the Board of a copy of the notice of appeal of a Board 
decision, the Office of the Clerk of the Board shall file with the 
Clerk of the United States Court of Appeals for the Federal Circuit a 
certified list of all documents, transcripts of testimony, exhibits, 
and other materials constituting the record, or a list of such parts 
thereof as the parties may designate, adequately describing each. The 
Board will retain the record and transmit any part thereof to the Court 
upon the Court's order during the pendency of the appeal.
    (d) Request by attorney of record to review record. When a case is 
on appeal, an attorney of record may request permission from the Board 
to sign out for a reasonable period of time the record on appeal to 
review and to copy if the attorney is unable to gain access to the 
record from another source.


6101.33   Ex parte contact; sanctions and other proceedings [Rule 33].

    (a) Standards. All parties and their representatives, attorneys, 
and any expert/consultant retained by them or their attorneys, must 
obey directions and orders prescribed by the Board and adhere to 
standards of conduct applicable to such parties and persons. As to an 
attorney, the standards include the rules of professional conduct and 
ethics of the jurisdictions in which that attorney is licensed to 
practice, to the extent that those rules are relevant to conduct 
affecting the integrity of the Board, its process, or its proceedings. 
The Board will also look to voluntary professional guidelines in 
evaluating an individual's conduct.
    (b) Ex parte communications. No member of the Board or of the 
Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, without the knowledge and consent of the 
adverse party, regarding any matter at issue in that appeal. This 
provision does not apply to consultation among Board members or to ex 
parte communications concerning the Board's administrative functions or 
procedures.
    (c) Sanctions. 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 may 
include:
    (1) Taking the facts pertaining to the matter in dispute to be 
established for the purpose of the case in accordance with the 
contention of the party submitting the discovery request;
    (2) Forbidding challenge of the accuracy of any evidence;
    (3) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses;
    (4) Prohibiting the disobedient party from introducing in evidence 
designated documents or items of testimony;
    (5) Striking pleadings or parts thereof, or staying further 
proceedings until the order is obeyed;
    (6) Dismissing the case or any part thereof;
    (7) Enforcing the protective order and disciplining individuals 
subject to such order for violation thereof, including disqualifying a 
party's representative, attorney, or expert/consultant from further 
participation in the case; or
    (8) Imposing such other sanctions as the Board deems appropriate.
    (d) Denial of access to protected material for prior violations of 
protective orders. The Board may in its discretion deny access to 
protected material to any person found to have previously violated a 
protective order, regardless of who issued the order.
    (e) Disciplinary proceedings. (1) In addition to the procedures in 
this section 6101.33 (Rule 33), the Board may discipline individual 
party representatives, attorneys, and experts/consultants for a 
violation of any Board order or direction or standard of conduct 
applicable to such individual where the violation seriously affects the 
integrity of the Board, its process, or its proceedings. Sanctions may 
be public or private, and may include admonishment, disqualification 
from a particular matter, referral to an appropriate licensing 
authority, or such other action as circumstances may warrant.
    (2) The Board in its discretion may suspend an individual from 
appearing before the Board as a party representative, attorney, or 
expert/consultant if, after affording such

[[Page 36808]]

individual notice and an opportunity to be heard, a majority of the 
members of the full Board determines such a sanction is warranted.


6101.34   Seal of the Board [Rule 34].

    The Seal of the Board shall be a circular boss, the outer margin of 
which shall bear the legend ``Civilian Board of Contract Appeals.'' The 
Seal shall be the means of authentication of all records, notices, 
orders, dismissals, opinions, subpoenas, and certificates issued by the 
Board.


6101.35--6101.50   [Reserved]


6101.51   Variation from standard proceedings [Rule 51].

    The ultimate purpose of any Board proceeding is to resolve fairly 
and expeditiously any dispute properly before the Board. When, during 
the normal course of a Board proceeding, the parties agree that a 
change in established procedure will promote this purpose, the Board 
will make that change if it is deemed to be feasible and in the best 
interest of the parties, the Board, and the resolution of the issue(s) 
in controversy. Individuals and small business may find variations from 
standard proceedings to be especially useful. The following are 
examples of these changes:
    (a) Establishing an expedited schedule of proceedings, such as by 
limiting the times provided in 6101.1 through 6101.34 (Rules 1 through 
34) for various filings, to facilitate a prompt resolution of the case;
    (b) Developing a record and rendering a decision on the issue of 
entitlement prior to reviewing the issue of quantum in a party's claim;
    (c) Developing a record and rendering a decision on any legal or 
factual issue in advance of others when that issue is deemed critical 
to resolving the case or effecting a settlement of any items in 
dispute; and
    (d) Developing a record regarding relevant facts through an on-the-
record round-table discussion with sworn witnesses, counsel, and the 
panel chair rather than through formal direct and cross-examination of 
each of these same witnesses. This discussion shall be controlled by 
the panel chair. It may be conducted, for example, through the 
presentation of narrative statements of witnesses or on an issue by 
issue basis. The panel chair may also request that the parties' counsel 
or representatives present opening and/or closing statements in lieu of 
written briefs.


6101.52   Small claims procedure [Rule 52].

    (a) Election. (1) The small claims procedure is available solely at 
the appellant's election. Such election shall be made no later than 30 
calendar days after the appellant's receipt of the agency answer, 
unless the panel chair enlarges the time for good cause shown. The 
appellant may elect this procedure when:
    (i) There is a monetary amount in dispute and that amount is 
$50,000 or less, or
    (ii)(A) There is a monetary amount in dispute and that amount is 
$150,000 or less, and
    (B) The appellant is a small business concern (as that term is 
defined in the Small Business Act and regulations promulgated under 
that Act).
    (2) At the request of the Government, or on its own initiative, the 
Board may determine whether the amount in dispute and/or the 
appellant's status makes the election inappropriate. The Government 
shall raise any objection to the election no later than 10 working days 
after receipt of a notice of election.
    (b) Decision. The panel chair may issue a decision, which may be in 
summary form, orally or in writing. A decision which is issued orally 
shall be reduced to writing; however, such a decision takes effect at 
the time it is rendered, prior to being reduced to writing. A decision 
shall be final and conclusive and shall not be set aside except in case 
of fraud. A decision shall have no value as precedent.
    (c) Procedure. Promptly after receipt of the appellant's election 
of the small claims procedure, the Board shall establish a schedule of 
proceedings that will allow for the timely resolution of the appeal. 
Pleadings, discovery, and other prehearing activities may be restricted 
or eliminated.
    (d) Time of decision. Whenever possible, the panel chair shall 
resolve an appeal under this procedure within 120 calendar days from 
the Board's receipt of the election. The time for processing an appeal 
under this procedure may be extended if the appellant has not adhered 
to the established schedule. Either party's failure to abide by the 
Board's schedule may result in the Board drawing evidentiary inferences 
adverse to the party at fault.


6101.53   Accelerated procedure [Rule 53].

    (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. Such election shall be 
made no later than 30 calendar days after the appellant's receipt of 
the agency answer, unless the panel chair enlarges the time for good 
cause shown.
    (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. The Government shall 
raise any objection to the election no later than 10 working days after 
receipt of a notice of election.
    (b) Decision. Each decision shall be rendered by the panel chair 
with the concurrence of one of the other judges assigned to the panel; 
in the event the two judges disagree, the third judge assigned to the 
panel will participate in the decision.
    (c) Procedure. Promptly after receipt of the appellant's election 
of the accelerated procedure, the Board shall establish a schedule of 
proceedings that will allow for the timely resolution of the appeal. 
Pleadings may be simplified, and discovery and other prehearing 
activities may be restricted or eliminated.
    (d) Time of decision. Whenever possible, the Board shall resolve an 
appeal under this procedure within 180 calendar days from the Board's 
receipt of the election. The time for processing an appeal under this 
procedure may be extended if the appellant has not adhered to the 
established schedule. Either party's failure to abide by the Board's 
schedule may result in the Board drawing evidentiary inferences adverse 
to the party at fault.


6101.54   Alternative dispute resolution [Rule 54].

    (a) Availability of alternative dispute resolution (ADR) procedures 
at the Board. The Board will make its services available for ADR 
proceedings to help resolve issues in controversy and claims involving 
procurements, contracts (including interagency agreements), and grants. 
The use of ADR will not toll any relevant statutory time limitations.
    (1) Matters not on Board's Contract Disputes Act (CDA) docket. Upon 
request, the Board will make an ADR Neutral available for an ADR 
proceeding, even if a contracting officer's decision has not been 
issued or is not contemplated. To initiate an ADR proceeding for all 
matters other than docketed CDA appeals, the parties shall jointly 
request ADR in writing and direct such a request to the Board Chairman. 
For agencies whose issues in controversy do not fall within the Board's 
jurisdiction, the Board may provide ADR services on a reimbursable 
basis.
    (2) Docketed CDA appeals. Parties are encouraged to consider the 
advantages of using ADR techniques at any stage of an appeal. Joint 
requests for ADR services for docketed appeals should be

[[Page 36809]]

addressed to the Board Chairman, with a copy to the presiding judge. 
ADR may be used concurrently with standard litigation proceedings such 
as the filing of pleadings and discovery, or the presiding judge may 
suspend such proceedings for a reasonable period of time while the 
parties attempt to resolve the appeal using ADR.
    (b) Conduct of ADR--(1) Selection of ADR Neutral. The parties may 
ask the Board Chairman to appoint a judge(s) to serve as the ADR 
Neutral(s). If desired, the parties may request the appointment of a 
particular judge(s). In a docketed appeal, the parties may also request 
that the presiding judge serve as the ADR Neutral for the ADR 
proceeding. If the parties elect a non-binding ADR procedure and the 
implementation of the procedure does not result in a settlement, where 
the procedure has involved ex parte contact, the ADR Neutral may retain 
the case for adjudication as the presiding judge, but only if the 
parties and the presiding judge all agree to such retention. If the 
procedure has not involved ex parte contact, the ADR Neutral, after 
considering the parties' views, may retain the case as the presiding 
judge at his/her discretion.
    (2) The ADR agreement. Before an ADR proceeding can occur, the 
parties must execute a written ADR agreement. This agreement should set 
forth, among other things, the identity of the ADR Neutral to be used, 
the role and authority of the Neutral, the ADR techniques to be 
employed, the scope and extent of any discovery relating to ADR, the 
location and schedule for the ADR proceeding, and the extent to which 
dispute resolution communications in conjunction with the ADR 
proceeding are to be kept confidential (6101.54(b)(3) (Rule 54(b)(3))).
    (3) Confidentiality of ADR communications and materials. Written 
material prepared specifically for use in an ADR proceeding, oral 
presentations made at an ADR proceeding, and all discussions in 
connection with such proceedings are considered ``dispute resolution 
communications'' as defined in 5 U.S.C. 571(5) and are subject to the 
confidentiality requirements of 5 U.S.C. 574. Unless otherwise 
specifically agreed by the parties, confidential dispute resolution 
communications shall be inadmissible as evidence in any pending or 
future Board proceeding involving the parties or the issue in 
controversy which is the subject of the ADR proceeding. However, 
evidence otherwise admissible before the Board is not rendered 
inadmissible because of its use in an ADR proceeding. The Board will 
not retain written materials used in an ADR proceeding after the 
proceeding is concluded or otherwise terminated. Parties may request a 
protective order in an ADR proceeding in the manner provided in 
6101.9(c) (Rule 9(c)).
    (c) Types of ADR. ADR is not defined by any single procedure or set 
of procedures. Board judges, when engaged as ADR Neutrals, most 
commonly use a combination of facilitative and evaluative mediation 
approaches, as explained in paragraphs (c)(1) through (c)(7) of this 
section. However, the Board will consider the use of any ADR technique 
or combination of techniques proposed by the parties in their ADR 
agreement which is deemed to be fair, reasonable, and in the best 
interest of the parties, the Board, and the resolution of the issue(s) 
in controversy. The following are descriptions of some available 
techniques:
    (1) Facilitative mediation. Facilitative mediations usually begin 
with a joint session, where the parties each make informal 
presentations to one another and the ADR Neutral regarding the facts 
and circumstances giving rise to the issues in controversy as well as 
an explanation of their respective legal positions. The ADR Neutral, as 
a mediator, aids the parties in settling their dispute, frequently by 
meeting with each party separately in confidential sessions and 
engaging in ex parte discussions with each of the parties, for the 
purpose of facilitating the formulation and transmission of settlement 
offers.
    (2) Evaluative mediation. In addition to engaging in facilitative 
mediation, if authorized under the terms of the parties' ADR agreement, 
the ADR Neutral may also discuss informally the strengths and 
weaknesses of the parties' respective positions in either joint 
sessions or confidential sessions.
    (3) Mini-trial. The parties make abbreviated presentations to an 
ADR Neutral who sits with the parties' designated principal 
representatives as a mini-trial panel to hear and evaluate evidence 
relating to an issue in controversy. The ADR Neutral may thereafter 
meet with the principal representatives to attempt to mediate a 
settlement. The mini-trial process may also be a prelude to the 
Neutral's provision of a non-binding advisory opinion (6101.54(c)(4) 
(Rule 54(c)(4))) or to the Neutral's rendering of a binding decision 
(6101.54(c)(5) (Rule 54(c)(5))).
    (4) Non-binding advisory opinion. The parties present to the ADR 
Neutral information upon which the Neutral bases a non-binding, 
advisory opinion regarding the merits of the dispute. The opinion may 
be delivered to the parties jointly, either orally or in writing. The 
manner in which the information is presented will vary, depending upon 
the circumstances of the dispute and the terms of the parties' ADR 
agreement. Presentations may range from an informal proffer of evidence 
together with limited argument from the parties, to a more formal 
presentation, with oral testimony, exchange of documentary evidence, 
and argument from counsel.
    (5) Summary binding decision. This is a binding ADR procedure 
similar to binding arbitration under which, by prior agreement of the 
parties, the ADR Neutral renders a brief written decision which is 
binding, non-precedential, and non-appealable. As in a procedure under 
which the Neutral provides a non-binding advisory opinion, the manner 
in which information is presented for a summary binding decision may 
vary depending on the circumstances of the particular dispute and the 
wishes of the parties as set out in their ADR agreement.
    (6) Other procedures. In addition to other ADR techniques, 
including modifications to those listed in paragraphs (c)(1) through 
(c)(5) of this section, the parties may use ADR neutrals outside the 
Board and techniques which do not require direct Board involvement.
    (7) Selective use of standard procedures. Parties considering ADR 
proceedings are encouraged to adapt for their purposes any provisions 
in 6101.1 through 6101.34 (Rules 1 through 34) of the Board's rules 
which they believe will be useful.

Appendix to Part 6101--Form Nos. 1-5

[[Page 36810]]

    Form 1, GSA Form 2465, Notice of Appeal.
    [GRAPHIC] [TIFF OMITTED] TR05JY07.000
    

[[Page 36811]]


    Form 2, Notice of Appearance.
    [GRAPHIC] [TIFF OMITTED] TR05JY07.001
    

[[Page 36812]]


    Form 3, GSA Form 9534, Subpoena.
    [GRAPHIC] [TIFF OMITTED] TR05JY07.002
    

[[Page 36813]]


[GRAPHIC] [TIFF OMITTED] TR05JY07.003


[[Page 36814]]


    Form 4, Government Certificate of Finality.
    [GRAPHIC] [TIFF OMITTED] TR05JY07.004
    

[[Page 36815]]


    Form 5, Appellant/Applicant Certificate of Finality.
    [GRAPHIC] [TIFF OMITTED] TR05JY07.005
    

[[Page 36816]]



0
2. Revise part 6102 to read as follows:

PART 6102--CROP INSURANCE CASES

Sec.
6102.201 Scope of rules [Rule 201].
6102.202 Rules for crop insurance cases [Rule 202].

    Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. 438(c)(2).


6102.201   Scope of rules [Rule 201].

    These procedures govern the Board's resolution of disputes between 
insurance companies and the Department of Agriculture's Risk Management 
Agency (RMA) involving actions of the Federal Crop Insurance 
Corporation (FCIC). Prior to the creation of this Board, the Department 
of Agriculture Board of Contract Appeals resolved this variety of 
dispute pursuant to statute, 7 U.S.C. 1501 et seq. (the Federal Crop 
Insurance Act), and regulation, 7 CFR 24.4(b) and 400.169. The Board 
has this authority under an agreement with the Secretary of 
Agriculture, as permitted under section 42(c)(2) of the Office of 
Federal Procurement Policy Act, 41 U.S.C. 438(c)(2).


6102.202   Rules for crop insurance cases [Rule 202].

    The rules of procedure for these cases are the same as the rules of 
procedure for Contract Disputes Act appeals, with these exceptions:
    (a) Rule 1. (1) In 6101.1(b)(1) (Rule 1(b)(1)), the term ``appeal'' 
means a dispute between an insurance company that is a party to a 
Standard Reinsurance Agreement (or other reinsurance agreement) and the 
RMA, and the term ``appellant'' means the insurance company filing an 
appeal.
    (2) In 6101.1(b)(5)(i) (Rule 1(b)(5)(i)), a notice of appeal is 
filed upon its receipt by the Office of the Clerk of the Board, not 
when it is mailed.
    (3) Section 6101.1(b)(7) (Rule 1(b)(7)) does not apply to FCIC 
cases.
    (b) Rule 2. (1) Section 6101.2(a)(1)(i) (Rule 2(a)(1)(i)) is 
replaced with the following for FCIC cases: A notice of appeal shall be 
in writing and shall be signed by the appellant or by the appellant's 
attorney or authorized representative. If the appeal is from a 
determination by the Deputy Administrator of Insurance Services 
regarding an action alleged not to be in accordance with the provisions 
of a Standard Reinsurance Agreement (or other reinsurance agreement), 
or if the appeal is from a determination by the Deputy Administrator of 
Compliance concerning a determination regarding a compliance matter, 
the notice of appeal should describe the determination in enough detail 
to enable the Board to differentiate that decision from any other; the 
appellant can satisfy this requirement by attaching to the notice of 
appeal a copy of the Deputy Administrator's determination. If an appeal 
is taken from the failure of the Deputy Administrator to make a timely 
determination (see 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii))), the notice of 
appeal should describe in detail the matter that the Deputy 
Administrator has failed to determine; the appellant can satisfy this 
requirement by attaching to the notice of appeal a copy of the written 
request for a determination it sent to the Deputy Administrator.
    (2) In 6101.2(a)(1)(ii) and (iii) (Rule 2(a)(1)(ii) and (iii)), the 
references to ``contracting officer'' are references to ``Deputy 
Administrator.''
    (3) Section 6101.2(a)(2) (Rule 2(a)(2)) does not apply to FCIC 
cases.
    (4) In 6101.2(b)(1)(i) (Rule 2(b)(1)(i)), an appeal from a 
determination of a Deputy Administrator shall be filed no later than 90 
calendar days after the date the appellant receives that determination. 
The Board is authorized to resolve only those appeals that are timely 
filed.
    (5) In 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii)), an appeal may be filed 
with the Board if the Deputy Administrator fails or refuses to issue a 
determination within 90 days after the appellant submits a request for 
a determination.
    (c) Rule 4. (1) In 6101.4 (Rule 4), the references to ``contracting 
officer'' are references to ``Deputy Administrator.''
    (2) In 6101.4(a), paragraphs (1) through (7) (Rule 4(a), paragraphs 
(1) through (7)), describing materials included in the appeal file, are 
replaced by the following:
    (i) The determination of the Deputy Administrator that is the 
subject of the dispute;
    (ii) The reinsurance agreement (with amendments or modifications) 
at issue in the dispute;
    (iii) Pertinent correspondence between the parties that is relevant 
to the dispute, including prior administrative determinations and 
related submissions;
    (iv) Documents and other tangible materials on which the Deputy 
Administrator relied in making the underlying determination; and
    (v) Any additional material pertinent to the authority of the Board 
or the resolution of the dispute.
    (3) The following subsection is added to 6101.4 (Rule 4): Media on 
which appeal file is to be submitted. All appeal file submissions, 
including the index, shall be submitted in two forms: paper and in a 
text or .pdf format submitted on a compact disk. Each compact disk 
shall be labeled with the name and docket number of the case. The judge 
may delay the submission of the compact disk copy of the appeal file 
until the close of the evidentiary record.
    (d) Rule 5. In 6101.5(a)(2) (Rule 5(a)(2)), the references to 
``contracting officer'' are references to ``Deputy Administrator.''
    (e) Rule 6. In 6101.6(d) (Rule 6(d)) does not apply to FCIC cases.
    (f) Rule 12. In 6101.12(a) (Rule 12(a)), the references to 
``contracting officer'' are references to ``Deputy Administrator.''
    (g) Rule 15. In 6101.15(d) (Rule 15(d)), the final sentence does 
not apply to FCIC cases.
    (h) Rule 16. In 6101.16(b) through (h) (Rule 16(b) through (h)) do 
not apply to FCIC cases. Instead, upon the written request of any party 
filed with the Office of the Clerk of the Board, or upon the initiative 
of a judge, a judge is authorized by delegation from the Secretary of 
Agriculture to request the appropriate United States Attorney to apply 
to the appropriate United States District Court for the issuance of 
subpoenas pursuant to 5 U.S.C. Sec.  304.
    (i) Rule 21. (1) In 6101.21(f) (Rule 21(f)), the final sentence 
does not apply to FCIC cases.
    (2) In 6101.21(g) (Rule 21(g)), the final sentence does not apply 
to FCIC cases.
    (j) Rule 25. In 6101.25(a) (Rule 25(a)), the initial phrase, 
``Except as provided in 6101.52 (Rule 52) (small claims procedure),'' 
does not apply to FCIC cases.
    (k) Rule 32. In 6101.32(a) through (c) (Rule 32(a) through (c)) are 
replaced with the following for FCIC cases:
    (1) Finality of Board decision. A decision of the Board is a final 
administrative decision.
    (2) Appeal permitted. An appellant may file suit in the appropriate 
United States District Court to challenge the Board's decision. An 
appellant which files such a suit shall provide the Board with a copy 
of the complaint.
    (l) Rule 52. 6101.52 (Rule 52) does not apply to FCIC cases.
    (m) Rule 53. 6101.53 (Rule 53) does not apply to FCIC cases.

0
3. Revise part 6103 to read as follows:

PART 6103--TRANSPORTATION RATE CASES

Sec.
6103.301 Scope [Rule 301].
6103.302 Filing claims [Rule 302].
6103.303 Responses to claims [Rule 303].
6103.304 Reply to the audit division and agency responses [Rule 
304].
6103.305 Proceedings [Rule 305].


[[Page 36817]]

6103.306 Decisions [Rule 306].
6103.307 Reconsideration of Board decision [Rule 307].
6103.308 Payment of successful claims [Rule 308].

    Authority: 31 U.S.C. 3726(i)(1); 41 U.S.C. 601-613; Sec. 201(o), 
Pub. L. 104-316, 110 Stat. 3826.


6103.301   Scope [Rule 301].

    (a) Authority. 31 U.S.C. 3726(i)(1) provides that a carrier or 
freight forwarder may request the Administrator of General Services to 
review an action taken by the Audit Division of the General Services 
Administration's Office of Transportation and Property Management (the 
Audit Division). The Administrator has redelegated those functions to 
the Civilian 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(i)(1). The Board will issue the final agency decision 
on a claim based on the information submitted by the claimant, the 
Audit Division, 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.


6103.302   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 Audit Division 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. The Board's mailing address is: 1800 F Street, NW, 
Washington, DC 20405. The Board is located at: 1800 M Street, NW, 6th 
Floor, Washington, DC 20036. The Clerk's telephone number is: (202) 
606-8800. The Clerk's facsimile machine number is: (202) 606-0019. 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 the Audit Division, 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 the Audit Division 
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 the Audit 
Division and the agency.


6103.303   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), the Audit Division 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 the Audit 
Division or the agency, as appropriate. To expedite proceedings, if 
either the Audit Division 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 the Audit Division or the agency, as 
appropriate, that it does not intend to file a response.


6103.304   Reply to the audit division and agency responses [Rule 304].

    A claimant may file with the Board and serve on the Audit Division 
and the agency a reply to the Audit Division 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, the Audit Division, and the agency.


6103.305   Proceedings [Rule 305].

    (a) Requests for additional time. The claimant, the Audit Division, 
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, the Audit Division, 
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, the Audit Division, or the 
agency may request an opportunity to make additional submissions; 
however, no such submission may be made unless authorized by the judge.


6103.306   Decisions [Rule 306].

    The judge will issue a written decision based upon the record, 
which includes submissions by the claimant, the Audit Division, and the 
agency, and information provided during conferences. The claimant, the 
Audit Division, 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.cbca.gsa.gov.


6103.307   Reconsideration of Board decision [Rule 307].

    A request for reconsideration may be made by the claimant, the 
Audit Division, 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.


6103.308   Payment of successful claims [Rule 308].

    The agency for which the services were provided shall pay amounts 
the Board determines are due the claimant.

0
4. Revise part 6104 to read as follows:

PART 6104--TRAVEL AND RELOCATION EXPENSES CASES

Sec.
6104.401 Scope [Rule 401].
6104.402 Filing claims [Rule 402].
6104.403 Response to claim [Rule 403].


[[Page 36818]]

6104.404 Reply to agency response [Rule 404].
6104.405 Proceedings [Rule 405].
6104.406 Decisions [Rule 406].
6104.407 Reconsideration of Board decision [Rule 407].
6104.408 Payment of successful claims [Rule 408].

    Authority: Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; 
Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C. 3702; 41 U.S.C. 
601-613.


6104.401   Scope [Rule 401].

    (a) Authority. These procedures govern the Board's resolution of 
claims by Federal civilian employees for certain travel or relocation 
expenses. 31 U.S.C. 3702 vests the authority to settle these claims in 
the Administrator of General Services, who has redelegated that 
function to the Civilian Board of Contract Appeals. The requirements 
contained in 31 U.S.C. 3702, including limitations on the time within 
which claims may be filed, apply to the Board's review of these claims.
    (b) Types of claims. These procedures are applicable to the review 
of two types of claims made against the United States by federal 
civilian employees:
    (1) Claims for reimbursement of expenses incurred while on official 
temporary duty travel; and
    (2) Claims for reimbursement of expenses incurred in connection 
with relocation to a new duty station.
    (c) Review of claims. Any claim for entitlement to travel or 
relocation expenses must first be filed with the claimant's own 
department or agency (the agency). The agency shall initially 
adjudicate the claim. A claimant disagreeing with the agency's 
determination may request review of the claim by the Board. The burden 
is on the claimant to establish the timeliness of the claim, the 
liability of the agency, and the claimant's right to payment. The Board 
will issue the final decision on a claim based on the information 
submitted by the claimant and the agency.


6104.402   Filing claims [Rule 402].

    (a) Filing claims. A claim may be sent to the Board in either of 
the following ways:
    (1) Claim filed by claimant. 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--
    (i) The name, address, telephone number, and facsimile machine 
number, if available, of the claimant;
    (ii) The name, address, telephone number, and facsimile machine 
number, if available, of the agency employee who denied the claim;
    (iii) A copy of the denial of the claim; and
    (iv) Any other information which the claimant believes the Board 
should consider.
    (2) Claim forwarded by agency on behalf of claimant. If an agency 
has denied a claim for travel or relocation expenses, it may, at the 
claimant's request, forward the claim to the Board. The agency shall 
include the information required by paragraph (a)(1) of this section 
and by 6104.403 (Rule 403).
    (3) Where claims are filed. Claims should be filed with the Office 
of the Clerk of the Board. The Board's mailing address is: 1800 F 
Street, NW, Washington, DC 20405. The Board is located at: 1800 M 
Street, NW, 6th Floor, Washington, DC 20036. The Clerk's telephone 
number is: (202) 606-8800. The Clerk's facsimile machine number is: 
(202) 606-0019. 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.
    (b) Notice of docketing. A request for review will be docketed by 
the Office of the Clerk of the Board. A written notice of docketing 
will be sent promptly to the claimant and the agency contact. The 
notice of docketing will identify the judge to whom the claim has been 
assigned.
    (c) Service of copy. The claimant shall send to the agency employee 
identified in paragraph (a)(1)(ii) of this section, or the individual 
otherwise identified by the agency to handle the claim, copies of all 
material provided to the Board. If an agency forwards a claim to the 
Board, it shall, at the same time, send to the claimant a copy of all 
material sent to the Board. All submissions to the Board shall indicate 
that a copy has been provided to the claimant or the agency.


6104.403   Response to claim [Rule 403].

    (a) Content of response. When a claim has been filed with the Board 
by a claimant, within 30 calendar days after docketing by the Board (or 
within 60 calendar days after docketing, if the agency office involved 
is located outside the 50 states and the District of Columbia), the 
agency shall 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 the agency considers necessary to 
the Board's review of the claim.
    (b) Service of copy. A copy of these submissions shall also be sent 
to the claimant. To expedite proceedings, if the agency believes its 
reasons for denying the claim were sufficiently explained in the 
material filed by the claimant, it should notify the Board and the 
claimant that it does not intend to file a response.


6104.404   Reply to agency response [Rule 404].

    A claimant may file a reply to the agency response within 30 
calendar days after receiving the response (or within 60 calendar days 
after receiving the response, if the claimant is located outside the 50 
states and the District of Columbia). If the claim has been forwarded 
by the agency, the claimant shall have 30 calendar days from the time 
the claim is docketed by the Board (or 60 calendar days after 
docketing, if the claimant is located outside the 50 states and the 
District of Columbia) to reply. To expedite proceedings, if the 
claimant does not wish to reply, the claimant should so notify the 
Board and the agency.


6104.405   Proceedings [Rule 405].

    (a) Requests for additional time. The claimant 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 and the agency 
contact, at any time, for any purpose. The judge may provide the 
participants a memorandum reflecting the results of a conference.
    (c) Additional submissions. The judge may require the submission of 
additional information at any time.


6104.406   Decisions [Rule 406].

    The judge will issue a written decision based upon the record, 
which includes submissions by the claimant and the agency, and 
information provided during conferences. The claimant 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.cbca.gsa.gov.


6104.407   Reconsideration of Board decision [Rule 407].

    A request for reconsideration may be made by the claimant or the 
agency. Such requests must be received by the Board within 30 calendar 
days after the date the decision was issued (or within

[[Page 36819]]

60 calendar days after the date the decision was issued, if the 
claimant or the 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.


6104.408   Payment of successful claims [Rule 408].

    The agency shall pay amounts the Board determines are due the 
claimant.
0
5. Revise part 6105 to read as follows:

PART 6105--DECISIONS AUTHORIZED UNDER 31 U.S.C. 3529

Sec.
6105.501 Scope [Rule 501].
6105.502 Request for decision [Rule 502].
6105.503 Additional submissions [Rule 503].
6105.504 Proceedings [Rule 504].
6105.505 Decisions [Rule 505].
6105.506 Reconsideration of Board decision [Rule 506].

    Authority: 31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613; 
Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. 
L. 104-53, 109 Stat. 535.


6105.501   Scope [Rule 501].

    These procedures govern the Board's issuance of decisions, upon the 
request of an agency disbursing or certifying official, or agency head, 
on questions involving payment of travel or relocation expenses that 
were formerly issued by the Comptroller General under 31 U.S.C. 3529. 
Section 204 of the General Accounting Office Act of 1996, Pub. L. 104-
316, transfers the authority to issue these decisions to the Director 
of the Office of Management and Budget, and authorizes the Director to 
delegate the authority to perform that function to another agency or 
agencies. The Director has delegated the authority to issue these 
decisions to the Administrator of General Services, who has redelegated 
that function to the Civilian Board of Contract Appeals.


6105.502   Request for decision [Rule 502].

    (a) Request for decision. (1) A disbursing or certifying official 
of an agency, or the head of an agency, may request from the Board a 
decision (referred to as a ``Section 3529 decision'') on a question 
involving a payment the disbursing official or head of agency will 
make, or a voucher presented to a certifying official for 
certification, which concerns the following type of claim made against 
the United States by a federal civilian employee:
    (i) A claim for reimbursement of expenses incurred while on 
official temporary duty travel; and
    (ii) A claim for reimbursement of expenses incurred in connection 
with relocation to a new duty station.
    (2) A request for a Section 3529 decision shall be in writing; no 
particular form is required. The request must refer to a specific 
payment or voucher; it may not seek general legal advice. The request 
should--
    (i) Explain why the official is seeking a Section 3529 decision, 
rather than taking action on his or her own regarding the matter;
    (ii) State the question presented and include citations to 
applicable statutes, regulations, and cases;
    (iii) Include--
    (A) The name, address, telephone number, and facsimile machine 
number (if available) of the official making the request;
    (B) The name, address, telephone number, and facsimile number (if 
available) of the employee affected by the specific payment or voucher; 
and
    (C) Any other information which the official believes the Board 
should consider; and
    (iv) Be delivered to the Office of the Clerk of the Board. The 
Board's mailing address is: 1800 F Street, NW, Washington, DC 20405. 
The Board is located at: 1800 M Street, NW, 6th Floor, Washington, DC 
20036. The Clerk's telephone number is: (202) 606-8800. The Clerk's 
facsimile machine number is: (202) 606-0019. 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.
    (b) Notice of docketing. A request for a Section 3529 decision will 
be docketed by the Office of the Clerk of the Board. A written notice 
of docketing will be sent promptly to the official and the affected 
employee. The notice of docketing will identify the judge to whom the 
request has been assigned.
    (c) Service of copy. The official submitting a request for a 
Section 3529 decision shall send to the affected employee copies of all 
material provided to the Board. All submissions to the Board shall 
indicate that a copy has been provided to the affected employee.


6105.503   Additional submissions [Rule 503].

    If the affected employee wishes to submit any additional 
information to the Board, he or she must submit such information within 
30 calendar days after receiving the copy of the request for decision 
and supporting material (or within 60 calendar days after receiving the 
copy, if the affected employee is located outside the 50 states and the 
District of Columbia). To expedite proceedings, if the employee does 
not wish to make an additional submission, the employee should so 
notify the Board and the agency.


6105.504   Proceedings [Rule 504].

    (a) Requests for additional time. The agency or the affected 
employee 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 request. 
The judge may hold a conference with the agency and the affected 
employee, at any time, for any purpose. The judge may provide the 
participants a memorandum reflecting the results of a conference.
    (c) Additional submissions. The judge may require the submission of 
additional information at any time.


6105.505   Decisions [Rule 505].

    The judge will issue a written decision based upon the record, 
which includes submissions by the agency and the affected employee, and 
information provided during conferences. The agency and the affected 
employee 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: http://www.cbca.gsa.gov.


6105.506   Reconsideration of Board decision [Rule 506].

    A request for reconsideration may be made by the agency or the 
affected employee. 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 agency or 
the affected employee 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.
[FR Doc. 07-3064 Filed 7-3-07; 8:45 am]
BILLING CODE 6820-AL-S