[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)]
[Proposed Rules]
[Pages 13211-13221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06269]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 6101 and 6102
[CBCA Case 2018-61-1; Docket No. 2018-0006; Sequence No. 1]
RIN 3090-AK02
Civilian Board of Contract Appeals; Rules of Procedure for
Contract Disputes Act Cases
AGENCY: Civilian Board of Contract Appeals; General Services
Administration (GSA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Board of Contract Appeals (Board) proposes to
amend its rules of procedure for cases arising under the Contract
Disputes Act, and for disputes between insurance companies and the
Department of Agriculture's Risk Management Agency in which decisions
of the Federal Crop Insurance Corporation are brought before the Board
under the Federal Crop Insurance Act. The Board's current rules were
issued in 2008 and were last amended in 2011.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before May 29, 2018 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to CBCA Amendment 2018-01, BCA
Case 2018-61-1, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``BCA Case
2018-61-1.'' Select the link ``Comment Now'' that corresponds with
``BCA Case 2018-61-1.'' Follow the instructions provided at the screen.
Please include your name, company name (if any), and ``BCA Case 2018-
61-1'' on your attached document.
Mail: Civilian Board of Contract Appeals, Office of the
Chief Counsel (GA), 1800 M Street NW, Sixth Floor, Washington, DC
20036.
Instructions: Please submit comments only and cite CBCA Amendment
2018-01, BCA Case 2018-61-1, in all correspondence related to this
notice. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business
confidential information provided. To confirm receipt of your
comment(s), please check http://www.regulations.gov, approximately two
to three days after submission to verify posting (except allow 30 days
for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr. J. Gregory Parks, Chief Counsel,
Civilian Board of Contract Appeals, 1800 M Street NW, Suite 600,
Washington, DC 20036; at 202-606-8787; or email at [email protected],
for clarification of content. For information pertaining to the status
or publication schedules, contact the Regulatory Secretariat at 202-
501-4755. Please cite BCA Case 2018-61-1.
SUPPLEMENTARY INFORMATION:
A. Background
The Board was established within GSA by section 847 of the National
Defense Authorization Act for Fiscal Year 2006, Public Law 109-163.
Board members are administrative judges appointed by the Administrator
of General Services under 41 U.S.C. 7105(b)(2). Among its other
functions, the Board hears and decides contract disputes between
Government contractors and most civilian Executive agencies under the
Contract Disputes Act, 41 U.S.C. 7101-7109, and its implementing
regulations, and disputes pursuant to the Federal Crop Insurance Act, 7
U.S.C. 1501 et seq., between insurance companies and the Department of
Agriculture's Risk Management Agency (RMA) involving actions of the
Federal Crop Insurance Corporation (FCIC).
The Board's rules of procedure for Contract Disputes Act cases and
Federal Crop Insurance Act cases were adopted in May 2008 (73 FR 26947)
and were last amended in August 2011 (76 FR 50926). The proposed rule
simplifies and modernizes access to the Board by establishing a
preference for electronic filing, increases conformity between the
Board's rules and the Federal Rules of
[[Page 13212]]
Civil Procedure, streamlines the wording of the Board's rules, and
clarifies current rules and practices.
The proposed rule makes stylistic or other changes to Board Rules
1-35, 51-54, and 202. In addition, the Board will provide template
forms for certain filings on its website rather than as an appendix to
its rules. Proposed changes to the Board's rules of procedure include:
Rule 4, Appeal file, is revised to make filing documentary
evidence electronically in pdf format, rather than on paper, the
default for Contract Disputes Act cases.
Rule 6, governing pleadings, is revised to require the
opposing party's consent to amend a pleading once without permission of
the Board. This change is appropriate to practice under the Contract
Disputes Act, as it will encourage opposing parties to raise any
objections they may have to the Board's jurisdiction under the Act to
hear new claims or defenses.
Rule 8, Motions, is revised to, among other things, extend
from 20 days to 30 days the time to file a brief in opposition to a
substantive motion; set a deadline to respond to a procedural motion;
and replace the term ``summary relief'' with the more common ``summary
judgment.''
Rule 9 is reorganized to clarify that the record on the
basis of which the Board will decide a case under the Contract Disputes
Act consists of evidence and other materials that are not evidence.
Rule 12, Stays and dismissals, is revised to eliminate a
provision for suspending (rather than staying) a case, and a provision
purporting to convert a voluntary dismissal without prejudice to a
dismissal with prejudice after 180 days. The provisions being
eliminated are potentially misleading in light of the strict limits on
the Board's jurisdiction under the Contract Disputes Act, and are
rarely used.
Several rules are revised to cross-reference and
incorporate standards of corresponding Rules of the Federal Rules of
Civil Procedure. See proposed Rule 13(b) and (c), concerning the scope
of discovery; Rule 14(b), Interrogatories; Rule 14(d), Requests for
admission; Rule 14(f), Supplementing and correcting (discovery)
responses; Rule 15(b), on the use of depositions; Rule 16(b), (e), and
(f), on the issuance, service, and review of subpoenas; Rule 26,
Reconsideration; and Rule 27, Relief from decision or order. These
changes will allow the Board to adopt and apply case law applying the
relevant Federal Rules, as well as any future amendments to those
Federal Rules, without revising the Board's rules again. Practicioners
before the Board are familiar with or can readily research current
principles of Federal civil procedure.
The appendix is deleted. It contained Forms 1 through 5,
which litigants could elect to use as templates for certain filings.
These nonmandatory forms are obsolete or will be posted on the Board's
website.
Rule 202 is revised to update cross-references to the
rules of procedure for Contract Disputes Act cases.
B. Regulatory Flexibility Act
GSA certifies that this proposed 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. 602 et seq., and
the Small Business Regulatory Enforcement Fairness Act of 1996, Public
Law 104-121, because the proposed rule does not impose any additional
costs on small or large businesses.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply
because proposed rule does not impose any information collection
requirements that require the approval of the Office of Management and
Budget.
D. Congressional Review Act
The proposed rule is exempt from Congressional review under Public
Law 104-121 because it relates solely to agency organization,
procedure, and practice and does not substantially affect the rights or
obligations of non-agency parties.
E. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993, or E.O. 13563, Improving
Regulation and Regulatory Review, dated January 18, 2011. This proposed
rule is not a major rule under 5 U.S.C. 804.
F. Executive Order 13771
Executive Order 13771, dated February 3, 2017, sets deregulatory
goals for agencies and requires the rescission of two regulations for
each new regulation issued. This proposed rule is not a new regulation,
but an update to the Board's existing rules of procedure, so Executive
Order 13771 does not apply.
List of Subjects in 48 CFR Parts 6101 and 6102
Administrative practice and procedure; Government procurement;
Agriculture.
Dated: March 20, 2018.
Jeri Kaylene Somers,
Chair, Civilian Board of Contract Appeals, General Services
Administration.
Therefore, GSA proposes to amend 48 CFR parts 6101 and 6102 as set
forth below:
0
1. Revise part 6101 to read as follows:
PART 6101--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT
APPEALS
Sec.
6101.1 General information; definitions [Rule 1].
6101.2 Filing appeals, applications, and petitions; consolidation
[Rule 2].
6101.3 Computing and extending time [Rule 3].
6101.4 Appeal file [Rule 4].
6101.5 Appearing; notice of appearance [Rule 5].
6101.6 Pleadings; amending pleadings [Rule 6].
6101.7 Service of documents [Rule 7].
6101.8 Motions [Rule 8].
6101.9 Record; content and access [Rule 9].
6101.10 Admissibility of evidence [Rule 10].
6101.11 Conferences [Rule 11].
6101.12 Stays and dismissals [Rule 12].
6101.13 Discovery generally [Rule 13].
6101.14 Interrogatories; requests for production; requests for
admission [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 Record submission without a hearing [Rule 19].
6101.20 Scheduling hearings [Rule 20].
6101.21 Hearing procedures [Rule 21].
6101.22 Transcripts [Rule 22].
6101.23 Briefs [Rule 23].
6101.24 Closing the record [Rule 24].
6101.25 Decisions and settlements [Rule 25].
6101.26 Reconsideration [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].
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6101.30 Award of fees and other expenses [Rule 30].
6101.31 Payment of award [Rule 31].
6101.32 Appeal from Board decision [Rule 32].
6101.33 Remand from appellate Court [Rule 33].
6101.34 Ex parte communications [Rule 34].
6101.35 Standards of conduct; sanctions [Rule 35].
6101.36 Board seal [Rule 36].
6101.37-6101.50 [Reserved].
6101.51 Alternative procedures [Rule 51].
6101.52 Small claims procedure [Rule 52].
6101.53 Accelerated procedure [Rule 53].
6101.54 Alternative dispute resolution [Rule 54].
Authority: 41 U.S.C. 7101-7109.
6101.1 General information; definitions [Rule 1].
(a) Scope. The rules of this chapter govern cases filed with the
Board on or after [DATE], and all further proceedings in cases then
pending, unless the Board decides that using these rules in a case
pending on their effective date would be inequitable or infeasible. The
Board may alter these procedures on its own initiative or on request of
a party to promote the just, informal, expeditious, and inexpensive
resolution of a case.
(b) Definitions.
Appeal; appellant. ``Appeal'' means a contract dispute filed with
the Board under the Contract Disputes Act (CDA), 41 U.S.C. 7101-7109,
or under a disputes clause in a non-CDA contract that allows for Board
review. An ``appellant'' is the contractor filing an appeal.
Appeal file. ``Appeal file'' means the submissions to the Board
under Rule 4.
Application; applicant. ``Application'' means a submission to the
Board under Rule 30 of a request for an award of fees and other
expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. 504, or
another provision authorizing such an award. An ``applicant'' is a
party filing an application.
Attorney. ``Attorney'' means a person licensed to practice law in a
state, commonwealth, or territory of the United States or in the
District of Columbia.
Board judge; judge. ``Board judge'' or ``judge'' means a member of
the Board.
Business days and hours. The Board's business days are days other
than Saturdays, Sundays, federal holidays, days on which the Board is
required to close before 4:30 p.m., or days on which the Board does not
open for any reason, such as inclement weather. The Board's business
hours are 8:00 a.m. to 4:30 p.m. Eastern Time.
Case. ``Case'' means an appeal, petition, or application.
Clerk of the Board. The ``Clerk'' of the Board receives filings,
dockets cases, and prepares official correspondence for the Board.
Efile; efiling. The Clerk accepts electronic filings (``efiles''),
meaning documents submitted through the Board's email system
(``efiled''). Parties may efile documents by sending an email (usually
with attachments) to [email protected], except for documents that are
classified or submitted in camera or under protective order (Rule 9).
Efiling occurs upon receipt by the Board's email server, except that
attachments must be in .pdf format and 18 megabytes (MB) or smaller or
they will be rejected.
Electronically stored information. ``Electronically stored
information'' means information created, manipulated, communicated,
stored, and best used in digital form with computer hardware and
software.
Equal Access to Justice Act (EAJA), 5 U.S.C. 504. This statute
governs applications for awards of fees and other expenses in certain
cases.
Facsimile (fax) transmissions. The Board sends and accepts
facsimile transmissions. A document is filed by fax at the time the
Board receives all of it. The Board does not automatically extend
filing deadlines if its fax machine is busy or otherwise unavailable.
Filing. A notice of appeal or application is filed upon the earlier
of its receipt by the Clerk or, if mailed through the United States
Postal Service (USPS), the date it is mailed to the Board. A USPS
postmark is prima facie evidence of a mailing date. Any other document
is filed upon receipt by the Clerk.
Party. ``Party'' means an appellant, applicant, petitioner, or
respondent.
Petition; petitioner. ``Petition'' means a request that the Board
direct a contracting officer to issue a written decision on a claim. A
``petitioner'' is a party submitting a petition.
Receipt. The Board deems a party's ``receipt'' of a document to
occur upon the earlier of the emailing of the document to the party's
email address of record (without notice of delivery failure) or the
party's possession of a document sent by other means.
Respondent. A ``respondent'' is the government agency whose
decision, action, or inaction is the subject of an appeal, petition, or
application.
(c) Construction. The Board construes these rules to promote the
just, informal, expeditious, and inexpensive resolution of every case.
The Board may apply principles of the Federal Rules of Civil Procedure
to resolve issues not covered by these rules.
(d) Panels. The Board assigns each case to a panel of three judges,
one of whom presides. The presiding judge sets the case schedule,
oversees discovery, and conducts conferences, hearings, and other
proceedings. The presiding judge may without participation by other
panel members decide any appeal under the small claims procedure of
Rule 52, any nondispositive motion, or any petition, and may dismiss a
case as permitted by Rule 12(d). The Board decides all other matters by
majority vote of a panel unless the full Board decides a matter under
Rule 28. Only panel and full Board decisions are precedential.
(e) Location and addresses. The Board is physically located at 1800
M Street NW, 6th Floor, Washington, DC 20036. The mailing address is
1800 F Street NW, Washington, DC 20405. The Clerk's telephone number is
(202) 606-8800. The Clerk's fax number is (202) 606-0019. The Clerk's
email address for efiling is [email protected]. The Board's website
is http://www.cbca.gov.
(f) Clerk's office hours. The Clerk's office is open to the public
during business hours (Rule 1(b)). Efilings received after midnight are
considered filed the next business day. The Clerk's office is closed
when the Board's physical address is closed for any reason, including
any closure of the federal Government in the Washington, DC,
metropolitan area.
6101.2 Filing appeals, applications, and petitions; consolidation
[Rule 2].
(a) Filing an appeal. A notice of appeal shall be in writing;
signed by the appellant, the appellant's attorney, or an authorized
representative (see Rule 5); and filed with the Board, with a copy to
the contracting officer who received or issued the claim, or the
successor contracting officer. A notice of appeal should include:
(1) The name, telephone number, and mailing and email addresses of
the appellant and/or its attorney or authorized representative;
(2) The contract number;
(3) The name of the contracting officer who received or issued the
claim, with that person's telephone number, mailing address, and email
address;
(4) A copy of the claim with any certification; and
(5) A copy of the contracting officer's decision on the claim or a
statement that the appeal is from a failure to issue a decision (``a
deemed denial'').
(b) Filing a petition. A petition shall be in writing; signed by
the petitioner, the petitioner's attorney, or an
[[Page 13214]]
authorized representative (see Rule 5); and filed with the Board, with
a copy to the contracting officer who received the claim, or the
successor contracting officer. A petition shall ask the Board to order
the contracting officer to issue a decision and should include:
(1) The name, telephone number, and mailing and email addresses of
the petitioner and/or its attorney or authorized representative;
(2) The contract number;
(3) The name of the contracting officer who received the claim,
with that person's telephone number, mailing address, and email
address; and
(4) A copy of the claim with any certification.
(c) Filing an EAJA application. See Rule 30.
(d) Time limits.
(1) Under the CDA, a notice of appeal must be filed within 90
calendar days after the date of receipt of a contracting officer's
decision on a claim.
(2) Alternatively, under the CDA, a contractor may appeal when a
contracting officer has not issued a decision on a claim within the
time allowed by the CDA or the time set by a tribunal acting on a
petition.
(3) Under the CDA, a petition may be filed in the period between
(a) receipt of notice from a contracting officer, within 60 days after
the submission of a claim, that the contracting officer intends to
issue a decision on the claim more than 60 days after its submission,
and (b) the due date stated by the contracting officer.
(4) Under EAJA, an application must be filed within 30 days after
the date that the decision in the underlying appeal becomes no longer
subject to appeal.
(e) Notice of docketing. Upon receipt of a notice of appeal, a
petition, or an application, the Clerk issues a written notice of
docketing to all parties.
(f) Consolidation. The Board may consolidate cases wholly or in
part if they involve common questions of law or fact.
6101.3 Computing and extending time [Rule 3].
(a) Computing time. Consistent with Rule 6 of the Federal Rules of
Civil Procedure, in computing any time period, omit the day of the
event from which the period begins to run. Omit nonbusiness days only
if the period is less than 11 days; otherwise include them. A period
ends on a business day. If a computed period would otherwise end on a
nonbusiness day, it ends on the next business day.
(b) Extensions. Parties should act sooner than required whenever
practicable. However, the Board extends time when appropriate. A motion
for an extension shall be in writing and shall state the other party's
position on the motion or describe the movant's effort to learn the
other party's position. The Board cannot extend statutory deadlines.
6101.4 Appeal file [Rule 4].
(a) Filing. Within 30 days after receiving the Board's docketing
notice, the respondent shall file and serve all documents relevant to
the appeal, including:
(1) The contracting officer's decision on the claim;
(2) The contract, including all pertinent specifications,
amendments, plans, drawings, and incorporated proposals or parts
thereof;
(3) All correspondence between the parties relevant to the appeal;
(4) The claim with any certification;
(5) Relevant affidavits, witness statements, or transcripts of
testimony taken before the appeal;
(6) All documents relied on by the contracting officer to decide
the claim; and
(7) Relevant internal memoranda, reports, and notes.
(b) Organization of electronic appeal file.
(1) Unless otherwise ordered, parties shall file the appeal file
and supplements thereto in an electronic storage medium (e.g., hard
disk or solid state drive, compact disc (CD), or digital versatile
disc(DVD)), labeled with the docket number, case name, and range of
exhibit numbers.
(2) A party may efile an appeal file or a supplement thereto by
permission of the Board.
(3) Appeal file exhibits shall be in .pdf format or will be
rejected. The appeal file index and each exhibit shall be separate
documents, without embedded documents.
(4) Appeal file exhibits shall be complete, legible, arranged in
chronological order, numbered, and indexed. Parties shall avoid filing
duplicative exhibits and shall number exhibits continuously and
consecutively from one filing to the next, so that a complete appeal
file consists of one set of consecutively numbered exhibits.
(5) Parties shall number the pages of each exhibit consecutively,
unless an exhibit is already paginated in another logical manner.
(6) The appeal file index shall describe each exhibit by date and
content.
(7) Parties may file documents in camera only by permission of the
Board.
(c) Organization of paper appeal file.
(1) Appeal files and supplements thereto may be filed on paper only
by permission of the Board.
(2) Appeal file exhibits shall be complete, legible, arranged in
chronological order, tabbed, and indexed. Parties shall avoid filing
duplicative exhibits and shall number exhibits continuously and
consecutively from one filing to the next, so a complete appeal file
consists of one set of consecutively tabbed exhibits.
(3) Parties shall number the pages of each paper exhibit
consecutively, unless an exhibit is already paginated in another
logical manner.
(4) Parties shall file exhibits in 3-ring binders with spines no
wider than 3 inches, labeled on the cover and spine with the name of
the appeal, CBCA number, and tab numbers in each binder. Include in
each binder the index of the entire filing.
(5) The appeal file index shall describe each exhibit by date and
content.
(6) Parties shall separately file and index documents submitted in
camera or under a protective order. However, documents may be submitted
in camera only by permission of the Board.
(d) Supplements. Within 30 days after the respondent files the
appeal file, the appellant may file non duplicative documents relevant
to the claim, organized as instructed in Rule 4(b) or (c), starting
with the next available exhibit number.
(e) Classified or protected material. Neither classified nor
protected material may be efiled.
(f) Submission by order. The Board may order a party to supplement
the appeal file, including by filing an exhibit in another format.
(g) Status of exhibits. The Board considers appeal file exhibits
part of the record for decision under Rule 9(a) unless a party objects
to an exhibit within the time set by the Board and the Board sustains
the objection.
(h) Other procedures. The Board may postpone or waive the filing of
an appeal file.
6101.5 Appearing; notice of appearance [Rule 5].
(a) Appearing before the Board.
(1) Appellant; petitioner; applicant. An appellant, petitioner, or
applicant may appear before the Board through an attorney. An
individual appellant, petitioner, or applicant may appear for himself
or herself. A corporation, trust, or association may appear by one of
its officers. A limited liability corporation, partnership, or joint
venture may appear by one of its members. Each individual appearing on
behalf of an appellant,
[[Page 13215]]
petitioner, or applicant must have legal authority to appear.
(2) Respondent. A respondent may appear before the Board through an
attorney or, if allowed by the agency, by the contracting officer or
the contracting officer's authorized representative.
(3) Others. The Board may permit a special or limited appearance of
or for a nonparty, such as an amicus curiae.
(b) Notice of appearance. The Board deems the person who signed a
notice of appeal, petition, or application to have appeared for the
appellant, petitioner, or applicant. The Board deems the head of the
respondent's litigation office to have appeared for the respondent
unless otherwise notified. Other participating attorneys shall file
notices of appearance including all of the information required by the
sample notice of appearance posted on the Board's website. Attorneys
representing parties before the Board shall list their bar numbers or
other identifying data for each state bar to which they are admitted.
(c) Withdrawal of appearance. Anyone who has filed a notice of
appearance and wishes to withdraw from a case must file a motion
identifying by name, telephone number, mailing address, and email
address the person who will assume responsibility for representing the
party in question. The motion must state grounds for withdrawal, unless
the motion represents that the party in question will meet the existing
case schedule.
6101.6 Pleadings; amending pleadings [Rule 6].
(a) Complaint. Within 30 days after receiving the notice of
docketing, the appellant shall file a complaint stating in simple,
concise, and direct terms the factual basis for each claim and the
amount in controversy. Alternatively, the appellant or the Board may
designate as a complaint the notice of appeal, a claim submission, or
any other document containing the information required in a complaint.
The Board may in its discretion order a respondent asserting a claim to
file a complaint.
(b) Answer. Within 30 days after receiving the complaint or a
designation of a complaint, the respondent (or the appellant, if so
ordered) shall file an answer stating in simple, concise, and direct
terms its responses to the allegations of the complaint and any
affirmative defenses it chooses to assert.
(c) Amendments. A party may amend a pleading once, before a
responsive pleading is filed, with permission of the other party.
Amending a pleading restarts the time to respond, if any. The Board may
allow a party to amend a pleading in other circumstances.
(d) Motion in lieu of answer. The Board may allow a party to file a
dispositive motion or to move for a more definite statement in lieu of
filing an answer.
6101.7 Service of documents [Rule 7].
A party filing any document not submitted in camera (see Rule
9(c)(2)) shall send a copy to the other party by a method at least as
fast as the filing method. The filing party shall indicate the method
and address of service, otherwise the Board may consider a document not
served and not properly filed.
6101.8 Motions [Rule 8].
(a) Generally. A party may make a motion for a Board action orally
on the record in the presence of the other party or in a written
filing. A written motion shall be a document titled as a motion and
shall state the relief sought and the legal basis (see Rule 23(b)).
Except for joint or dispositive motions, all motions shall represent
that the movant tried to resolve the motion with the other party before
filing. The Board may hold oral argument on a motion.
(b) Jurisdictional motions. A party challenging the Board's
jurisdiction should file such a motion promptly.
(c) Procedural motions. A party may move for an extension of time
(Rule 3(b)). The Board may in its discretion consider motions on other
procedural matters. A procedural motion shall state the other party's
position on the motion or describe the movant's effort to learn the
other party's position.
(d) Discovery motions. See Rule 13(e).
(e) Motions to dismiss for failure to state a claim. A party may
move to dismiss all or part of a claim for failure to state grounds on
which the Board could grant relief. In deciding such motions, the Board
looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for
guidance.
(f) Summary judgment motions. A party may move for summary judgment
on all or part of a claim or defense if the party believes in good
faith it is entitled to judgment as a matter of law based on undisputed
material facts. In deciding motions for summary judgment, the Board
looks to Rule 56 of the Federal Rules of Civil Procedure for guidance.
(1) Statement of undisputed material facts. The movant shall file
with its summary judgment motion a separate document titled,
``Statement of Undisputed Material Facts.'' This document shall set
forth facts supporting the motion in separate, numbered paragraphs,
citing appeal file exhibits, admissions in pleadings, and/or evidence
filed with the motion.
(2) Statement of genuine issues. The opposing party shall file with
its opposition a separate document titled, ``Statement of Genuine
Issues.'' This document shall respond to specific paragraphs of the
movant's Statement of Undisputed Material Facts by identifying material
facts in genuine dispute, citing appeal file exhibits, admissions in
pleadings, and/or evidence filed with the opposition.
(g) Briefing. A party may file a brief in opposition to a motion
under Rule 26, Rule 27, Rule 28, or Rule 29 only by permission of the
Board. Unless otherwise ordered, a brief in opposition to any other
nonprocedural motion is due 30 days after receipt of the motion, and a
movant's reply brief is due 15 days after receipt of an opposition
brief. A nonmovant may file a surreply only by permission of the Board.
Unless otherwise ordered, a brief in opposition to a procedural motion
is due 5 days after receipt of the motion, and there shall be no reply.
(h) Effect of pending motion. Unless otherwise stated in these
rules, the filing of a motion does not affect a party's obligations
under the Board's rules or orders.
6101.9 Record; content and access [Rule 9].
(a) Record for decision. The record on which the Board will decide
a case includes the following:
(1) Evidence. Evidence in a case includes:
a. Rule 4 appeal file exhibits other than those to which an
objection is sustained;
b. Other documents or parts thereof admitted as evidence;
c. Tangible things admitted as evidence;
d. Transcripts or recordings of testimony before the Board; and
e. Factual stipulations and factual admissions.
(2) Other material. The Board may also rely on to decide a case:
a. The notice of appeal, petition, or application;
b. The complaint, answer, and amendments thereto;
c. Motions and briefs on motions;
d. Other briefs;
e. Demonstrative hearing exhibits; and
f. Anything else the Board may expressly admit or take notice of.
(b) Other contents of case file. The Board's administrative record
may be broader than the record for decision. Material in the Board's
case file that is not listed in Rule 9(a) is part of the administrative
record but is not part of the record for decision.
[[Page 13216]]
(c) Enlarging or reopening the record. The Board may enlarge or
reopen the record for decision on terms fair to the parties.
(d) Protected and in camera submissions. The Board may limit access
to specified material in a record for decision.
(1) Protective orders. The Board may limit access to specified
material in a record for decision if the Board finds good cause to
treat the material as privileged, confidential, or otherwise sensitive.
(2) In camera submissions. The Board may allow a party to submit a
document solely for the Board's review in camera if:
a. The party submits the document to explain a discovery dispute;
b. The Board denies a motion for protective order, and the movant
asks that the record include a document that the party would have used
in the case with a protective order, for possible later review of the
Board's denial; or
c. Good cause exists to find that in camera review may limit or
prevent needless harm to a party, witness, or other person.
(3) Status in record. A document submitted and accepted under a
protective order or in camera is part of the record for decision. If
the Board's decision is judicially reviewed, the Board will endeavor to
preserve the protected or in camera nature of the document to the
extent consistent with judicial review.
(e) Review and copying. The Clerk makes records for decision,
except evidence submitted under a protective order or in camera,
available for review on reasonable notice during business hours, and
provides copies of such available documents for a reasonable fee. The
Clerk will not relinquish possession of material in the Board's files.
6101.10 Admissibility of evidence [Rule 10].
The Board may in its discretion receive any evidence to which no
party objects. In ruling on evidentiary objections, the Board is guided
but not bound by the Federal Rules of Evidence, except that the Board
generally admits hearsay unless the Board finds it unreliable.
6101.11 Conferences [Rule 11].
The Board may order a conference of the parties for any purpose.
Conferences are usually telephonic and are rarely recorded or
transcribed. No one may record a conference by any means without Board
approval. If the Board issues a memorandum or order memorializing a
conference, a party has 5 days from receipt of the memorandum or order
to object in writing to the memorialization.
6101.12 Stays and dismissals [Rule 12].
(a) Stays. The Board may stay a case for a specific duration, or
until a specific event, for good cause.
(b) Dismissals.
(1) Generally. The Board may dismiss a case or part of a case
either on motion of a party or after permitting a response to an order
to show cause. Dismissal is with prejudice unless a Board order or
other applicable law provides otherwise.
(2) Voluntary dismissal. Subject to Rule 12(b)(3), the Board will
dismiss all or part of a case on the terms requested if the appellant,
petitioner, or applicant moves for dismissal with prejudice or moves
jointly with the respondent for dismissal with or without prejudice.
(3) For lack of jurisdiction. If the Board finds that it lacks
jurisdiction to decide all or part of a case, the Board will dismiss
the case or the part of the case, regardless of the parties' positions
on jurisdiction or dismissal.
(4) For failure to prosecute. The Board may dismiss all or part of
a case for failure to prosecute.
(c) Dismissal orders and decisions. The presiding judge acting
alone may stay a case or grant voluntary dismissal with or without
prejudice. A panel or the full Board may dismiss a case on other
grounds.
(d) Admonition. Dismissal of a party's case without prejudice does
not necessarily mean that the party may later refile the case at the
Board, or in another forum, under the jurisdictional and procedural
laws applicable to the case.
6101.13 Discovery generally [Rule 13].
(a) Methods. Parties may obtain discovery by depositions,
interrogatories, requests for production, and requests for admission.
(b) Scope. Unless otherwise ordered, the scope of discovery is the
same as under Rule 26(b)(1) of the Federal Rules of Civil Procedure.
(c) Limits. The Board may limit the frequency or extent of
discovery for a reason stated in Rule 26(b)(2) of the Federal Rules of
Civil Procedure.
(d) Timing. The Board encourages parties to agree on a discovery
plan that the Board may adopt in a scheduling order. The Board may
modify an agreed discovery plan.
(e) Disputes.
(1) Objections. A party objecting to a written discovery request
must make the objection in writing no later than the date that its
response to the discovery request is due.
(2) Duty to cooperate. Parties shall try in good faith to resolve
objections to discovery requests without involving the Board. The Board
may impose an appropriate sanction under Rule 35 on a party that does
not meet its discovery obligations.
(3) Motions to compel. A party may move to compel a response or a
supplemental response to a discovery request. The movant shall attach
to its motion a copy of each discovery request and response at issue,
and shall represent in the motion that the movant complied with Rule
13(e)(2).
(f) Subpoenas. A party may request a subpoena under Rule 16.
6101.14 Interrogatories; requests for production; requests for
admission [Rule 14].
(a) Generally. Interrogatories, requests for production, requests
for admission, and responses thereto shall be in writing and served on
the other party.
(b) Interrogatories. Interrogatories shall be answered or objected
to separately in writing, under signed oath, within 30 days of service.
A party may answer an interrogatory by specifying records from which
the answer may be derived or ascertained when that response would be
allowed under Rule 33(d) of the Federal Rules of Civil Procedure.
(c) Requests for production. Responses and objections to requests
for production, inspection, and/or copying of documents, electronically
stored information, or tangible things are due within 30 days of
service of the requests and shall state when and how the responding
party will make responsive material available.
(d) Requests for admission.
(1) Content. A party may serve requests for admission that would be
proper under Rule 36(a)(1) of the Federal Rules of Civil Procedure.
(2) Responses and failure to respond. Responses and objections
shall comply with Rule 36(a)(4) and (5) of the Federal Rules of Civil
Procedure. If the served party does not respond within 30 days of
service of a request, the Board may on motion deem a matter admitted
and conclusively established solely for the pending case.
(3) Relief from admission. The Board may allow a party to withdraw
or amend an admission for good cause.
(e) Altering time to respond. The parties may agree to alter
deadlines to respond to discovery requests. The Board may alter the
deadlines to meet the needs of a case.
(f) Supplementing and correcting responses. A party must supplement
or
[[Page 13217]]
correct a response to a discovery request if and when this action would
be required by Rule 26(e)(1) of the Federal Rules of Civil Procedure.
6101.15 Depositions [Rule 15].
(a) Generally. Unless otherwise ordered, parties may take
depositions after service of the answer. If the parties agree in
writing on the deponent, time, place, recording method, and maximum
duration of a deposition, no formal deposition notice is needed. The
Board may order a deposition on motion under Rule 8 or by subpoena
under Rule 16.
(b) Use. Parties may use deposition testimony in a case to the
extent that would be permitted by Rule 32(a) of the Federal Rules of
Civil Procedure.
(c) To perpetuate testimony. If the Board has decided a case, and
either the time to appeal has not expired or an appeal has been taken,
the Board may for good cause grant leave to take a deposition as if the
case were still before the Board in order to preserve testimony for
possible further proceedings before the Board.
6101.16 Subpoenas [Rule 16].
(a) Expectation of cooperation in lieu of subpoena. Subpoenas
should rarely be necessary, as the Board expects parties to respond
cooperatively to discovery requests and to try in good faith to secure
the cooperation of third parties who have or may have evidence
responsive to discovery requests.
(b) Generally. The Board may issue a subpoena for a purpose for
which a United States district court may issue a subpoena under Rule
45(a)(1) of the Federal Rules of Civil Procedure. Parties and the Board
shall take all reasonable steps to avoid imposing undue burden on a
person subject to a subpoena.
(c) How requested; form. A party may ask the Board to issue a
subpoena by motion under Rule 8, substantially before the proposed
compliance date. The movant shall attach to its motion a completed
subpoena form for signing by a Board judge, and shall explain in the
motion why the proposed subpoena scope is reasonable and how the
evidence sought is relevant to the case.
(d) Production cost. The Board's policy is to require a requesting
party to advance a subpoenaed person the reasonable cost of producing
subpoenaed material.
(e) Service. The requesting party shall serve a subpoena and
provide proof of service as would be required by Rule 45(b) of the
Federal Rules of Civil Procedure.
(f) Motion to quash or modify. On or before the date specified for
compliance, a subpoenaed person may file a motion to quash or modify
the subpoena for a reason stated in Rule 45(d)(3) of the Federal Rules
of Civil Procedure. The Board may rule on the motion anytime after the
party that served the subpoena receives the motion.
(g) Enforcement. As necessary, the Board may ask the Attorney
General of the United States to petition a United States district court
to enforce a Board subpoena.
(h) Letter rogatory in lieu of subpoena. If a person to be
subpoenaed resides in a foreign country, the Board may facilitate the
issuance of a letter rogatory to the person by the United States
Department of State under 28 U.S.C. 1781-1784.
6101.17 Exhibits [Rule 17].
(a) Marking exhibits. Unless otherwise ordered, parties shall, to
the fullest extent practicable, submit exhibits for inclusion in the
appeal file before a hearing starts under Rule 20 or before the first
brief is filed when a case is submitted on the written record under
Rule 19. Parties shall mark any exhibits offered in evidence thereafter
as sequential additions to the appeal file. Such exhibits shall become
part of the appeal file if admitted as evidence.
(b) Copies. The Board expects all document exhibits to be true,
complete, and legible copies rather than originals. The Board may order
a party to substitute a better copy or to make an original document
available for inspection.
(c) Withdrawal. The Board may allow a party to withdraw an exhibit
from the appeal file and the record for decision on terms fair to the
other party.
(d) Disposition. Unless the Board advises the parties of another
deadline, the Board may discard physical (non-electronic) exhibits in
its possession 90 days after the time to appeal the Board's decision in
the case expires.
6101.18 Election of hearing or record submission [Rule 18].
(a) Generally. The Board will hold a hearing in a case if the Board
must find facts and either party elects a hearing. A party may elect to
submit its case for decision on the written record under Rule 19. The
presiding judge will set the deadline for an election under this rule.
(b) Hybrid election. A party may elect to submit its case on the
written record under Rule 19 and also elect to appear at a hearing,
solely to cross-examine the other party's witnesses and to object to
evidence offered at the hearing.
6101.19 Record submission without a hearing [Rule 19].
(a) Generally. If a party elects to submit its case on the record
without a hearing, the Board will set a schedule for the parties to
complete the evidentiary record and file briefs.
(b) Evidence and objections. When a party elects submission on the
record without a hearing, that party may submit material for inclusion
in the record no later than the date the party files its initial brief.
Unless otherwise ordered, the other party may object to the admission
of such material as evidence within 5 days after receiving the
submission. If one party elects a hearing and the other party elects
record submission (or makes a hybrid election under Rule 18(b)), the
evidentiary record shall close at the end of the hearing. The Board may
rule on objections either before or in its decision.
(c) Briefs and argument. The Board may receive briefs and/or oral
argument on a record submission. If one party elects a hearing and the
other party elects record submission, the first brief of the party
submitting its case on the record shall be due no later than the start
of the hearing.
6101.20 Scheduling hearings [Rule 20].
(a) Generally. The Board will set the time, place, duration, and
subject matter of a hearing in a written order after consulting with
the parties.
(b) Subject matter. The Board may schedule for hearing all or some
of the claims or issues in a case, or all or some of the claims,
issues, or questions of fact or law common to more than one case.
(c) Unexcused absence. If a party fails without good excuse to
appear at a hearing of which it received notice under this rule, the
Board will deem that party to have elected to submit its case on the
record under Rule 19.
6101.21 Hearing procedures [Rule 21].
(a) Generally. The Board generally holds hearings in public hearing
rooms. Except as necessary under a protective order or in camera
procedures, hearings are open to the public. The Board entrusts the
conduct of hearings to the discretion of the presiding judge.
(b) Witnesses, evidence, other exhibits. A party that intends to
offer testimony, other evidence, or other material for the record at a
hearing shall arrange for the witness, evidence, or other material to
be present in the hearing room. The Board may in its discretion allow
testimony by telephone or video.
(c) Exclusion of witnesses. The Board may exclude witnesses from a
hearing, other than one designated representative for each party or a
person authorized by statute to be present, so that witnesses
[[Page 13218]]
are not influenced by the testimony of other witnesses.
(d) Sworn testimony. Hearing witnesses shall testify under oath or
affirmation. If a person called as a witness refuses to so swear or
affirm, the Board may receive the person's testimony under penalty of
making a materially false statement in a federal proceeding under 18
U.S.C. 1001. Alternatively, the Board may disallow the testimony and
may draw inferences from the person's refusal to swear or affirm.
6101.22 Transcripts [Rule 22].
The Board arranges transcription of hearings, other than hearings
under the small claims procedure of Rule 52. The Board may, but
generally does not, arrange transcription of conferences or other
proceedings. No one may record or transcribe a Board proceeding without
the Board's permission. The Board may order or acknowledge corrections
to an official transcript. Each party is responsible for obtaining its
own copy of a transcript.
6101.23 Briefs [Rule 23].
(a) Generally. The Board may order or invite briefs on any issue in
a case at any time. Briefs shall be formatted for 82 by 11-inch paper,
double spaced, with body and footnote text no smaller than 13 point.
(b) Prehearing, post-hearing, and other briefs. Prehearing and
post-hearing briefs, briefs filed under Rule 19, and briefs on non-
procedural motions shall cite record evidence for factual statements
and legal authority for legal arguments.
6101.24 Closing the record [Rule 24].
(a) Closing the evidentiary record. Unless otherwise ordered, the
evidence as defined in Rule 9(a)(1) is closed at the end of a hearing
under Rule 20 or at the start of merits briefing when a case is
submitted on the record under Rule 19.
(b) Closing the record for decision. Unless otherwise ordered, the
record for decision as defined in Rule 9(a) is closed when the Board
receives the final scheduled brief on the matters to be decided.
6101.25 Decisions and settlements [Rule 25].
(a) Decisions. The Board issues decisions in writing, except as
allowed by Rule 52. The Board will send a copy of a decision to each
party, requesting confirmation of receipt (see Rule 1), and will post
the decision on its website. If a decision reserves any part of a case
for later proceedings, it is conclusive as to the matters it resolves,
except as provided in Rules 26 and 28.
(b) Settlements. Parties may settle a case by stipulating to an
award. The Board may issue a decision making the stipulated award if:
(1) The Board is satisfied that it has jurisdiction, and
(2) The stipulation states that no party will seek reconsideration
of, seek relief from, or appeal the Board's decision.
6101.26 Reconsideration [Rule 26].
(a) Grounds. The Board may on motion reconsider a decision or order
for a reason recognized in Rule 59 of the Federal Rules of Civil
Procedure. Arguments and evidence previously presented are not grounds
for reconsideration.
(b) Time limit for motion. A party may move for reconsideration of
a decision or order on an appeal or petition within 30 days after that
party receives the decision or order. A party may move for
reconsideration of a decision or order on an application within 7 days
after receiving the decision or order. The Board does not extend these
time limits.
(c) Effect of motion. A pending reconsideration motion does not
affect any obligation to comply with a decision or order.
6101.27 Relief from decision or order [Rule 27].
(a) Grounds. The Board may grant relief, for a reason recognized in
Rule 60 of the Federal Rules of Civil Procedure, from a decision or
order that, alone or in conjunction with prior decisions or orders,
resolves all of an appeal, petition, or application.
(b) Time limit for motion. A party may move for relief under this
rule within 120 days after that party receives the decision or order at
issue.
(c) Effect of motion. A pending motion for relief under this rule
does not affect any obligation to comply with a decision or order.
6101.28 Full Board consideration [Rule 28].
(a) By motion. The full Board may consider a decision or order when
necessary to maintain uniformity of Board decisions or if the matter is
exceptionally important. Motions for full Board consideration are
disfavored and are decided by a majority of the Board. A party may move
for full Board consideration within 10 days after that party receives
the decision or order at issue. An order granting full Board
consideration will include concurring or dissenting opinions, if any.
(b) By Board initiative. A majority of the Board may initiate full
Board consideration of any matter in a case, up to 10 days after a
judge or panel issues a decision or order on that matter. The full
Board will inform the parties by order of the matter or matters to be
considered. The order will include concurring or dissenting opinions,
if any.
(c) Full Board decision. The full Board decides matters by majority
vote. A full Board decision will include concurring or dissenting
opinions, if any.
(d) Effect of motion. A pending motion for full Board consideration
does not affect any obligation to comply with a decision or order.
6101.29 Clerical mistakes; harmless error [Rule 29].
(a) Clerical mistakes. The Board may correct clerical mistakes
while a case is pending, or within 60 days thereafter if a decision has
not been appealed. If a Board decision is appealed, the Board may
correct clerical mistakes only by leave of the appellate Court.
(b) Harmless error. The Board disregards errors that do not affect
a substantive right of a party. No error in a ruling, order, or
decision of the Board will be grounds for a new hearing or for
vacating, reconsidering, modifying, or otherwise disturbing a decision
or order unless refusing to correct the error will prejudice a party or
work a substantial injustice.
6101.30 Award of fees and other expenses [Rule 30].
(a) Application for fees and other expenses. A party in an appeal
may apply for an award of fees and other expenses as permitted under
EAJA or any other provision that may entitle the party to such an
award.
(b) Time for filing. A party may file an application for fees and
other expenses only after the time to seek appellate review of a Board
decision has expired. A party may file an application within 30
calendar days after that date.
(c) Application requirements. An application for fees and other
expenses shall:
(1) Specify the applicant, appeal, and amount sought;
(2) Explain why the applicant is legally eligible for an award;
(3) Provide a schedule of fees and expenses with supporting
documentation;
(4) Be signed by the applicant or a person appearing for the
applicant, with a declaration under penalty of perjury that the
information in the application is correct;
(5) Provide evidence of the applicant's small business status or
net worth; and
(6) Justify any request for attorney fees exceeding the statutory
rate.
(d) Proceedings.
[[Page 13219]]
(1) Within 30 days after receiving an application, the respondent
may file an answer with any objections to the award requested,
supported by facts and legal analysis.
(2) The Board may order further proceedings if necessary for a full
and fair resolution of issues arising from an application.
(e) Decision. The Board will issue a written decision on an
application.
6101.31 Payment of award [Rule 31].
When permitted by law, Board awards under contracts may be paid
from the permanent indefinite judgment fund under 31 U.S.C. 1304 and 31
CFR part 256. An EAJA award is paid from funds of the respondent.
6101.32 Appeal from Board decision [Rule 32].
(a) Notice. A party filing a notice of appeal with the United
States Court of Appeals for the Federal Circuit (or with a district
court in an admiralty case) shall provide a copy of the notice to the
Board.
(b) Record on review. The record on appellate review is the record
for decision under Rule 9(a) and any other material in a case file that
the appellate Court may require.
(c) Certified list. The Clerk will provide the clerk of the
appellate Court a certified list as required by the Court's rules.
(d) Inspection or copying of record. The Clerk will make a record
on appeal available for inspection and copying in accordance with the
rules of the appellate Court.
6101.33 Remand from appellate Court [Rule 33].
If a Court remands a case to the Board for further proceedings,
each party shall, within 30 days of receipt of the appellate mandate,
recommend procedures to comply with the remand order. The Board will
then issue an order on further proceedings.
6101.34 Ex parte communications [Rule 34].
No member of the Board or of the Board's staff will communicate
with a party about any material issue in a case outside of the presence
of the other party, and no one shall attempt such communications on
behalf of a party. This rule does not bar such communications about the
Board's administrative functions or procedures.
6101.35 Standards of conduct; sanctions [Rule 35].
(a) Standards of conduct. All parties and their representatives,
attorneys, and any expert or consultant retained by them or their
attorneys shall obey directions and orders of the Board and adhere to
standards of conduct applicable to such parties and persons. Standards
applying to an attorney include the rules of professional conduct and
ethics of the jurisdictions in which the 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.
(b) Sanctions. If a party or its representative, attorney, expert,
or consultant fails to comply with any direction or order of 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. Sanctions may include, but are not limited to:
(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 who is not at fault;
(2) Forbidding the challenge of the accuracy of any evidence;
(3) Refusing to allow the party to support or oppose designated
claims or defenses;
(4) Prohibiting the party from introducing into evidence designated
claims or defenses;
(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, expert, or consultant from further
participation in the case;
(8) Drawing evidentiary inferences adverse to the party; or
(9) Imposing such other sanctions as the Board deems appropriate.
(c) Denial of access to protected material. 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.
(d) Disciplinary proceedings.
(1) Sanctions. The Board may discipline individual party
representatives, attorneys, experts, or consultants for violating any
Board order, direction, or standard of conduct if the violation
seriously affects the integrity of the Board, its process, or its
proceedings. Sanctions may be public or private, and may include
admonishment, reprimand, disqualification from a particular matter,
referral to an appropriate licensing authority, or other action that
circumstances may warrant.
(2) Suspension. The Board may suspend an individual from appearing
before the Board as a party representative, attorney, expert, or
consultant, if, after affording such individual notice and opportunity
to be heard, a majority of the members of the full Board determine such
a sanction is warranted.
6101.36 Board seal [Rule 36].
The seal of the Board is a circular logo with ``Civilian Board of
Contract Appeals'' on the outer margin. The seal is a means of
authenticating records, notices, orders, dismissals, opinions,
subpoenas, and certificates issued by the Board.
6101.37-50 [Reserved]
6101.51 Alternative procedures [Rule 51].
An appellant in an eligible case may elect the small claims
procedure under Rule 52 or the accelerated procedure under Rule 53.
Parties may jointly elect alternative dispute resolution under Rule 54.
6101.52 Small claims procedure [Rule 52].
(a) Election. The small claims procedure is available solely at an
appellant's election, when there is a monetary amount in dispute and
either (1) the amount in dispute is $50,000 or less, or (2) the
appellant is a small business (under the Small Business Act, 15 U.S.C.
631 et seq., and regulations under that Act) and the amount in dispute
is $150,000 or less. An appellant may elect the small claims procedure
up to 30 days after receiving the respondent's answer.
(b) Procedure. The respondent may object to an election, on the
grounds that Rule 52(a) is not satisfied, within 10 days after
receiving the election. If the small claims procedure is used, the
Board will set a schedule for timely resolution of the appeal. The
schedule may restrict or eliminate pleadings, discovery, and other
prehearing activities.
(c) Decision. The presiding judge may issue a decision in summary
form. A decision is final and conclusive, shall not be set aside except
for fraud, and is not precedential. If possible, the Board will resolve
the appeal within 120 days after the appellant elects the small claims
procedure. The Board may extend the appeal schedule if an appellant
does not adhere to the established schedule.
[[Page 13220]]
6101.53 Accelerated procedure [Rule 53].
(a) Election. The accelerated procedure is available solely at an
appellant's election and is limited to appeals in which there is a
monetary amount in dispute and that amount is $100,000 or less. The
appellant may elect the accelerated procedure up to 30 days after
receiving the respondent's answer.
(b) Procedure. The respondent may object to an election, on the
grounds that Rule 53(a) is not satisfied, within 10 days after
receiving the election. If the accelerated procedure is used, the Board
will set a schedule for timely resolution of the appeal. The schedule
may restrict or eliminate pleadings, discovery, and other prehearing
activities.
(c) Decision. The presiding judge may issue a decision with the
concurrence of at least one panel member. If the presiding judge and a
panel member disagree, the panel will decide the appeal. If possible,
the Board will resolve the appeal within 180 days after the appellant
elects the accelerated procedure. The Board may extend the appeal
schedule if an appellant does not adhere to the established schedule.
6101.54 Alternative dispute resolution [Rule 54].
(a) Availability. The CDA states that boards of contract appeals
``shall . . . to the fullest extent practicable provide informal,
expeditious, and inexpensive resolution of disputes.'' Resolution of a
dispute at the earliest stage feasible, by the fastest and least
expensive method possible, benefits both parties. The Board provides
alternative dispute resolution (ADR) services for pre-claim and pre-
final decision matters, as well as appeals pending before the Board.
The Board may also conduct ADR proceedings for any federal agency. The
use of ADR proceedings does not toll any statutory time limits.
(b) Procedures for requesting ADR. Parties may jointly ask the
Board Chair to appoint a judge as an ADR Neutral. The parties may
request a particular judge or judges, to include the presiding judge.
To facilitate full, frank, and open participation, a Neutral will not
discuss the substance of the case or the parties' conduct in ADR with
other Board personnel, and a Neutral who participates in a nonbinding
ADR procedure that does not resolve the dispute is recused from further
participation in the matter unless the parties agree otherwise in
writing and the Board concurs.
(c) Confidentiality. Written material prepared for use in ADR, oral
presentations made in ADR, and all discussions between the parties and
the Neutral are confidential, subject to 5 U.S.C. 574, and, unless
otherwise specifically agreed by the parties, inadmissible as evidence
in any Board proceeding, although evidence otherwise admissible before
the Board is not rendered inadmissible merely because of its use in
ADR.
(d) ADR agreement. Parties shall agree in writing to an ADR method
and the procedures and requirements for implementing it. The ADR
agreement shall provide that the parties and counsel will not subpoena
the Neutral in any legal action or administrative proceeding of any
kind to provide documents or testimony relating to the ADR.
(e) Types of ADR. Parties and the Board may agree on any type of
binding or nonbinding ADR suited to a dispute.
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(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) A notice of appeal is filed upon its receipt by the Office of
the Clerk of the Board, not when it is mailed.
(3) The terms ``petition'' and ``petitioner'' do not apply to FCIC
cases.
(b) Rule 2.
(1) Rule 2(a) 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, 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 Rule 2(a), the references to ``contracting officer'' are
references to ``Deputy Administrator.''
(3) Rule 2(b) does not apply to FCIC cases.
(4) In Rule 2(d)(1), 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 Rule 2(d)(2), 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 Rule 4, the references to ``contracting officer'' are
references to ``Deputy Administrator.''
(2) In 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;
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(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 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 Rule 5(a)(2), the references to ``contracting
officer'' are references to ``Deputy Administrator.''
(e) Rule 15. In Rule 15(c), the final sentence does not apply to
FCIC cases.
(f) Rule 16. Rules 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. 304.
(g) Rule 25. In Rule 25(a), the phrase, ``except as allowed by Rule
52,'' does not apply to FCIC cases.
(h) Rule 32. 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 filing such a suit shall provide the Board with a copy of the
complaint.
(i) Rule 52. Rule 52 does not apply to FCIC cases.
(j) Rule 53. Rule 53 does not apply to FCIC cases.
[FR Doc. 2018-06269 Filed 3-27-18; 8:45 am]
BILLING CODE 6820-AL-P