[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48508-48510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19566]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Chapter 2
[Docket DARS-2019-0058]
RIN 0750-AK73
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 May 23, 2019. 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 September 13, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Defense
Acquisition Regulations System, OUSD(A&S)DPC(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 Supplement (DFARS) updates the Charter of the ASBCA from the
most recent prior version, dated April 9, 2018, to its latest version,
dated May 23, 2019. The updated Charter revises paragraph 2 to reflect
that appointment of ASBCA members and designation of the Chairman and
Vice Chairmen of the ASBCA shall now be made by the Secretary of
Defense, rather than 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.
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
[[Page 48509]]
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 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 to chapter 2 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
Revised 23 May 2019
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. Appointment of Board members shall be made by the
Secretary of Defense. Members of the Board are hereby designated
Administrative Judges. There shall be designated from among the
appointed Judges of the Board a Chairman and two or more Vice Chairmen.
Designation of the Chairman and Vice Chairmen shall be made by the
Secretary of Defense, of nominees from Judges of the Board recommended
by the Under Secretary of Defense responsible for acquisition, in
coordination with the General Counsel of the Department of Defense, and
the Assistant Secretaries of the Military Departments responsible for
acquisition. When there is a vacancy, the incumbent is unavailable, or
for appropriate Board administrative reasons, the Under Secretary of
Defense responsible for acquisition or 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 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
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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 upon the date of the
signature of the Secretary of Defense.
Approved: Patrick M. Shanahan (23 May 2019),
Acting Secretary of Defense.
[FR Doc. 2019-19566 Filed 9-12-19; 8:45 am]
BILLING CODE 5001-06-P