[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Rules and Regulations]
[Pages 4360-4362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02531]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Chapter 2
[Docket DARS-2019-0003]
RIN 0750-AK46
Defense Federal Acquisition Regulation Supplement; Appendix A,
Armed Services Board of Contract Appeals, Part 1--Charter
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing the updated Charter of the Armed Services Board
of Contract Appeals (ASBCA), dated April 9, 2018. The ASBCA is
chartered to serve as the authorized representative of the Secretary of
Defense and the Secretaries of the Army, Navy, and Air Force in
hearing, considering, and determining appeals by contractors from
decisions of contracting officers or their authorized representatives
or other authorities regarding claims on contracts under the Contract
Disputes Act of 1978 or other remedy-granting provisions.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Defense
Acquisition Regulations System, OUSD(A&S)DPAP(DARS), 3060 Defense
Pentagon, Room 3B941, Washington, DC 20301-3060, Telephone 571-372-
6115.
SUPPLEMENTARY INFORMATION:
I. Background
This publication of Appendix A of the Defense Federal Acquisition
Regulation
[[Page 4361]]
Supplement (DFARS) updates the Charter of the ASBCA from the most
recent prior version, dated May 14, 2007, to its latest version, dated
April 9, 2018. The updated Charter implements changes to ASBCA internal
administration to better support the Board's mission of hearing,
considering, and determining appeals by contractors from decisions of
contracting officers or their authorized representatives or other
authorities on disputed questions. In addition to minor administrative
changes and a rearranging of paragraphs to improve the logical flow of
the document and add clarity, the following substantive changes were
made to the Charter:
References to ``Under Secretary of Defense for
Acquisition, Technology and Logistics'' were changed to ``Under
Secretary of Defense responsible for acquisition.''
Former paragraph 4 (new paragraph 3) was shortened to
clearly state the Board Chairman's broad powers and responsibilities
and to remove detailed processes deemed not appropriate for this type
of document.
The requirement for the Board to forward quarterly reports
of the Board's proceedings to various Defense officials was removed.
The requirement for annual reports was retained.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is the Office of Federal Procurement
Policy statute (codified at title 41 of the United States Code).
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy,
regulation, procedure or form (including an amendment or modification
thereof) must be published for public comment if it relates to the
expenditure of appropriated funds, and has either a significant effect
beyond the internal operating procedures of the agency issuing the
policy, regulation, procedure, or form, or has a significant cost or
administrative impact on contractors or offerors. This final rule only
publishes the updated ASBCA charter and is therefore not required to be
published for public comment, because the rule does not have a
significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure or form.
III. Executive Orders 12866 and 13563
Executive Order (E.O.) 12866, Regulatory Planning and Review; and
E.O. 13563, Improving Regulation and Regulatory Review, 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). This rule is
not a major rule as defined at 5 U.S.C. 804(2).
IV. Executive Order 13771
This rule is not an E.O. 13771 regulatory action, because this rule
concerns regulations related to agency organization, management, or
personnel.
III. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section II of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required and none has been prepared.
V. Paperwork Reduction Act
This rule does not impose any new information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Appendix A
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, DoD is amending 48 CFR appendix A to chapter 2 as
follows:
Appendix A to Chapter 2--Armed Services Board of Contract Appeals
0
1. The authority citation for 48 CFR appendix A to chapter 2 is revised
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Appendix A is amended by revising the introductory text and Part 1--
Charter to read as follows:
Appendix A to Chapter 2--Armed Services Board of Contract Appeals
* * * * *
Armed Services Board of Contract Appeals
Approved 1 May 1962
Revised 1 May 1969
Revised 1 September 1973
Revised 1 July 1979
Revised 14 May 2007
Revised 9 April 2018
Part 1--Charter
1. There is created the Armed Services Board of Contract Appeals
which is hereby designated as the authorized representative of the
Secretary of Defense, the Secretary of the Army, the Secretary of
the Navy and the Secretary of the Air Force, in hearing, considering
and determining appeals by contractors from decisions of contracting
officers or their authorized representatives or other authorities on
disputed questions. These appeals may be taken (a) pursuant to the
Contract Disputes Act of 1978 (41 U.S.C. Sections 7101-7109), (b)
pursuant to the provisions of contracts requiring the decision by
the Secretary of Defense or by a Secretary of a Military Department
or their duly authorized representative, or (c) pursuant to the
provisions of any directive whereby the Secretary of Defense or the
Secretary of a Military Department or their authorized
representative has granted a right of appeal not contained in the
contract on any matter consistent with the contract appeals
procedure. The Board may determine contract disputes for other
departments and agencies by agreement as permitted by law. The Board
shall operate under general policies established or approved by the
Under Secretary of Defense responsible for acquisition and may
perform other duties as directed not inconsistent with the Contract
Disputes Act of 1978. The Board shall decide the matters before it
independently.
2. Membership of the Board shall consist of attorneys at law who
have been qualified in the manner prescribed by the Contract
Disputes Act of 1978. Members of the Board are hereby designated
Administrative Judges. There shall be appointed from the Judges of
the Board a Chairman and two or more Vice Chairmen. Appointment of
the Chairman and Vice Chairmen and other Judges of the Board shall
be made by the Under Secretary of Defense responsible for
acquisition, the General Counsel of the Department of Defense, and
the Assistant Secretaries of the Military Departments responsible
for acquisition. The Chairman may designate a Judge of the Board to
serve as an Acting Chairman or Acting Vice Chairman.
3. The Chairman of the Board shall be responsible for
establishing appropriate divisions of the Board to provide for the
most effective and expeditious handling of appeals. The Chairman
shall have authority to establish procedures for the issuance of
Board decisions. The Chairman may refer an appeal of unusual
difficulty, significant precedential importance, or serious dispute
within the normal decision process for decision by a Senior Deciding
Group established by the Chairman which shall have the authority to
overturn prior Board precedent.
4. It shall be the duty and obligation of the Judges of the
Armed Services Board of Contract Appeals to decide appeals on the
[[Page 4362]]
record of the appeal to the best of their knowledge and ability in
accordance with applicable contract provisions and in accordance
with law and regulation pertinent thereto.
5. Any Judge of the Board or any examiner, designated by the
Chairman, shall be authorized to hold hearings, examine witnesses,
and receive evidence and argument. A Judge of the Board shall have
authority to administer oaths and issue subpoenas as specified in
the Contract Disputes Act of 1978. In cases of contumacy or refusal
to obey a subpoena, the Chairman may request orders of the court in
the manner prescribed in the Contract Disputes Act of 1978.
6. The Board shall have all powers necessary and incident to the
proper performance of its duties. The Board has the authority to
issue methods of procedure and rules and regulations for its conduct
and for the preparation and presentation of appeals and issuance of
opinions.
7. The Chairman shall be responsible for the internal
organization of the Board and for its administration. The Chairman
shall provide within approved ceilings for the staffing of the Board
with non-Judge personnel, including hearing examiners, as may be
required for the performance of the functions of the Board. The
Chairman shall appoint a Recorder of the Board. All personnel shall
be responsible to and shall function under the direction,
supervision and control of the Chairman.
8. The Board will be serviced by the Department of the Army for
administrative support as required for its operations.
Administrative support will include budgeting, funding, fiscal
control, manpower control and utilization, personnel administration,
security administration, supplies, and other administrative
services. The Departments of the Army, Navy, Air Force and the
Office of the Secretary of Defense will participate in financing the
Board's operations on an equal basis and to the extent determined by
the Under Secretary of Defense (Comptroller). The cost of processing
appeals for departments and agencies other than those in the
Department of Defense will be reimbursed.
9. Within 30 days following the close of a fiscal year, the
Chairman shall forward a report of the Board's transactions and
proceedings for the preceding fiscal year to the Under Secretary of
Defense responsible for acquisition, the General Counsel of the
Department of Defense, and the Assistant Secretaries of the Military
Departments responsible for acquisition.
10. The Board shall have a seal bearing the following
inscription: ``Armed Services Board of Contract Appeals.'' This seal
shall be affixed to all authentications of copies of records and to
such other instruments as the Board may determine.
11. This revised charter is effective April 9, 2018.
APPROVED:
(signed) Ellen M. Lord (9 April 2018),
Under Secretary of Defense (Acquisition & Sustainment).
(signed) William S. Castle,
Acting General Counsel of the Department of Defense.
(signed) Dr. Bruce D. Jette,
Assistant Secretary of the Army (Acquisition, Logistics &
Technology).
(signed) James F. Geurts,
Assistant Secretary of the Navy (Research, Development &
Acquisition).
(signed) Dr. Will Roper,
Assistant Secretary of the Air Force (Acquisition).
* * * * *
[FR Doc. 2019-02531 Filed 2-14-19; 8:45 am]
BILLING CODE 5001-06-P