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pdfPART 6100 [RESERVED]
PART 6101—CONTRACT DISPUTE
CASES
Sec.
6101.1 Scope of rules; definitions; construction; rulings, orders, and directions; panels; location and address [Rule 1].
6101.2 Filing cases; time limits for filing;
notice of docketing; consolidation [Rule
2].
6101.3 Time:
enlargement;
computation
[Rule 3].
6101.4 Appeal file [Rule 4].
6101.5 Appearances; notice of appearance
[Rule 5].
6101.6 Pleadings and amendment of pleadings [Rule 6].
6101.7 Service of papers other than subpoenas [Rule 7].
6101.8 Motions [Rule 8].
6101.9 Record of Board proceedings; review
and copying [Rule 9].
6101.10 Admissibility of evidence [Rule 10].
6101.11 Conferences;
conference
memorandum [Rule 11].
6101.12 Suspensions and dismissals [Rule 12].
6101.13 General provisions governing discovery [Rule 13].
6101.14 Interrogatories to parties; requests
for admission; requests for production
[Rule 14].
6101.15 Depositions [Rule 15].
6101.16 Subpoenas [Rule 16].
6101.17 Exhibits [Rule 17].
6101.18 Election of hearing or record submission [Rule 18].
6101.19 Submission on the record without a
hearing [Rule 19].
6101.20 Hearings: scheduling; notice; unexcused absences [Rule 20].
6101.21 Hearing procedures [Rule 21].
6101.22 Transcripts of proceedings; corrections [Rule 22].
6101.23 Briefs and memoranda of law [Rule
23].
6101.24 Closing the record [Rule 24].
6101.25 Decisions; settlements [Rule 25].
6101.26 Reconsideration; amendment of decisions; new hearings [Rule 26].
6101.27 Relief from decision or order [Rule
27].
6101.28 Full Board consideration [Rule 28].
6101.29 Clerical mistakes; harmless error
[Rule 29].
6101.30 Award of fees and other expenses
[Rule 30].
6101.31 Payment of Board awards [Rule 31].
6101.32 Appeal from a Board decision [Rule
32].
6101.33 Ex parte contact; sanctions and
other proceedings [Rule 33].
6101.34 Seal of the Board [Rule 34].
6101.35–6101.50 [Reserved]
6101.51 Variation from standard proceedings
[Rule 51].
6101.52 Small claims procedure [Rule 52].
6101.53 Accelerated procedure [Rule 53].
6101.54 Alternate dispute resolution [Rule
54].
APPENDIX TO PART 6101—FORM NOS. 1–5
AUTHORITY: 41 U.S.C. 7101–7109.
SOURCE: 72 FR 36795, July 5, 2007, unless
otherwise noted.
6101.1 Scope of rules; definitions; construction; rulings, orders, and directions; panels; location and address [Rule 1].
(a) Scope. The rules of this chapter
govern proceedings in all cases filed
with the Board on or after January 6,
2007, and all further proceedings in
cases then pending, except to the extent that, in the opinion of the Board,
their use in a particular case pending
on the effective date would be infeasible or would work an injustice. The
Board will look to the rules of this
chapter for guidance in conducting
other proceedings authorized by law.
(b) Definitions—(1) Appeal; appellant.
The term ‘‘appeal’’ means a contract
dispute filed with the Board. The term
‘‘appellant’’ means a party filing an appeal.
(2) Application; applicant. The term
‘‘application’’ means a submission to
the Board of a request for award of fees
and other expenses, under the Equal
Access to Justice Act, 5 U.S.C. 504, pursuant to 6101.30 (Rule 30). The term
‘‘applicant’’ means a party filing an application.
(3) Board judge; judge. The term
‘‘Board judge’’ or ‘‘judge’’ means a
member of the Board.
(4) Case. The term ‘‘case’’ means an
appeal, petition, or application.
(5) Filing. (i) Any document, other
than a notice of appeal or an application for award of fees and other expenses, is filed when it is received by
the Office of the Clerk of the Board
during the Board’s working hours. A
notice of appeal or an application for
award of fees and other expenses is
filed upon the earlier of its receipt by
the Office of the Clerk of the Board or
if mailed, the date on which it is
mailed to the Board. A United States
Postal Service postmark shall be prima
facie evidence that the document with
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6101.1
48 CFR Ch. 61 (10–1–14 Edition)
which it is associated was mailed on
the date of the postmark.
(ii) Facsimile transmissions to the
Board and the parties are permitted.
The filing of a document by facsimile
transmission occurs upon receipt by
the Board of the entire submission by
facsimile. Parties are specifically cautioned that a deadline for filing will
not be extended merely because the
Board’s facsimile machine is busy or
otherwise unavailable when a filing is
due. Parties are expected to submit
their facsimile machine numbers with
their filings.
(iii) Filings submitted by electronic
mail (e-mail) are permitted, with the
exception of appeal files submitted pursuant to 6101.4 (Rule 4), classified documents, and filings submitted in camera
or under protective order pursuant to
6101.9(c) (Rule 9(c)). Filings by e-mail
shall
be
submitted
to:
[email protected]. Filings must be in
PDF format and may not exceed 18
megabytes (MB) total. Filings that are
not in PDF format or over 18 MB will
not be accepted. The filing of a document by e-mail occurs upon receipt by
the Board on a working day, as defined
in 6101.1(b)(9) (Rule 1(b)(9)). All e-mail
filings received by 4:30 p.m., Eastern
Time, on a working day will be considered to be filed on that day. E-mail filings received after that time will be
considered to be filed on the next working day.
(6) Party. The term ‘‘party’’ means an
appellant, applicant, petitioner, or respondent.
(7) Petition; petitioner. The term ‘‘petition’’ means a request filed under 41
U.S.C. 605(c)(4) that the Board direct a
contracting officer to issue a written
decision on a claim. The term ‘‘petitioner’’ means a party submitting a petition.
(8) Respondent. The term ‘‘respondent’’ means the government agency
whose decision, action, or inaction is
the subject of an appeal, petition, or
application.
(9) Working day. The term ‘‘working
day’’ means any day other than a Saturday, Sunday, federal holiday, day on
which the Office of the Clerk is required to close earlier than 4:30 p.m., or
day on which the Office of the Clerk
does not open at all, as in the event of
inclement weather.
(10) Working hours. The Board’s working hours are 8:00 a.m. to 4:30 p.m.,
Eastern Time, on each working day.
(c) Construction. The rules of this
chapter shall be construed to secure
the just, informal, expeditious, and inexpensive resolution of every case. The
Board looks to the Federal Rules of
Civil Procedure for guidance in construing those Board rules which are
similar to Federal Rules.
(d) Rulings, orders, and directions. The
Board may apply the rules of this chapter and make such rulings and issue
such orders and directions as are necessary to secure the just, informal, expeditious, and inexpensive resolution
of every case before the Board. Any
ruling, order, or direction that the
Board may make or issue pursuant to
the rules of this chapter may be made
on the motion or request of any party
or on the initiative of the Board. The
Board may also amend, alter, or vacate
a ruling, order, or direction upon such
terms as it deems just. In making rulings and issuing orders and directions
pursuant to the rules of this chapter,
the Board takes into consideration
those Federal Rules of Civil Procedure
which address matters not specifically
covered herein.
(e) Panels. Each case will be assigned
to a panel consisting of three judges,
with one member designated as the
presiding judge, in accordance with
such procedures as may be established
by the Board. The presiding judge is responsible for processing the case, including scheduling and conducting proceedings and hearings. In addition, the
presiding judge may, without participation by other panel members, decide
an appeal under the small claims procedure in 6101.52 [Rule 52], rule on nondispositive
motions
(except
for
amounts
in
controversy
under
6101.52(a)(2)
[Rule
52(a)(2)]
and
6101.53(a)(2) [Rule 53(a)(2)]), and dismiss
a case as permitted by 6101.12(e) [Rule
12(e)]). All other matters, except for
those before the full Board under
6101.28 [Rule 28], are decided for the
Board by a majority of the panel.
(f) Location and address. The location
of the Office of the Clerk of the Board
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GSA Board of Contract Appeals
6101.2
is: 1800 M Street, NW, 6th Floor, Washington, DC 20036. The mailing address
of the Office of the Clerk of the Board
is: 1800 F Street, NW, Washington, DC
20405. The Clerk’s telephone number is:
(202) 606–8800. The Clerk’s facsimile machine number is: (202) 606–0019. The
Clerk’s e-mail address for receipt of filings is: [email protected].
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008; 74 FR 66585, Dec. 16,
2009; 76 FR 50927, Aug. 17, 2011]
6101.2 Filing cases; time limits for filing; notice of docketing; consolidation [Rule 2].
(a) Filing cases. Filing of a case occurs as provided in 6101.1(b)(5) (Rule
1(b)(5)).
(1) Notice of appeal. (i) A notice of appeal shall be in writing and shall be
signed by the appellant or by the appellant’s attorney or authorized representative. If the appeal is from a contracting officer’s decision, the notice of
appeal should describe the decision in
enough detail to enable the Board to
differentiate that decision from any
other; the appellant can satisfy this requirement by attaching to the notice
of appeal a copy of the contracting officer’s decision. If an appeal is taken
from the failure of a contracting officer to issue a decision, the notice of appeal should describe in detail the claim
that the contracting officer has failed
to decide; the appellant can satisfy this
requirement by attaching a copy of the
written claim submission to the notice
of appeal.
(ii) A written notice in any form, including the one specified in the appendix to the rules in this chapter, is sufficient to initiate an appeal. The notice
of appeal should include the following
information:
(A) The number and date of the contract;
(B) The name of the government
agency and the component thereof
against which the claim has been asserted;
(C) The name, address, telephone
number, facsimile machine number,
and e-mail address, if available, of the
contracting officer whose decision is
appealed and the date of the decision;
(D) If the appeal is from the failure of
the contracting officer to decide a
claim, the name, address, telephone
number, facsimile machine number,
and e-mail address, if available, of the
contracting officer who received the
claim;
(E) A brief account of the circumstances giving rise to the appeal;
and
(F) An estimate of the amount of
money in controversy, if any and if
known.
(iii) The appellant must send a copy
of the notice of appeal to the contracting officer whose decision is appealed or, if there has been no decision,
to the contracting officer before whom
the appellant’s claim is pending.
(2) Petition. (i) A petition shall be in
writing and signed by the petitioner or
by the petitioner’s attorney or authorized
representative.
The
petition
should describe in detail the claim that
the contracting officer has failed to decide; the contractor can satisfy this requirement by attaching to the petition
a copy of the written claim submission.
(ii) The petition should include the
following information:
(A) The number and date of the contract;
(B) The name of the government
agency and the component thereof
against which the claim has been asserted; and
(C) The name, address, telephone
number, facsimile machine number,
and e-mail address, if available, of the
contracting officer whose decision is
sought.
(3) Application. An application for
fees and other expenses shall meet all
requirements specified in 6101.30 (Rule
30).
(b) Time limits for filing—(1) Appeals.
(i) An appeal from a decision of a contracting officer shall be filed no later
than 90 calendar days after the date
the appellant receives that decision.
(ii) An appeal may be filed with the
Board if the contracting officer fails or
refuses to issue a timely decision on a
claim submitted in writing, properly
certified if required.
(2) Applications. An application for
fees and other expenses shall be filed
within 30 calendar days of a final disposition in the underlying appeal, as
provided in 6101.30 (Rule 30).
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6101.3
48 CFR Ch. 61 (10–1–14 Edition)
(c) Notice of docketing. Notices of appeal, petitions, and applications will be
docketed by the Office of the Clerk of
the Board, and a written notice of
docketing will be sent promptly to all
parties.
(d) Consolidation. When cases involving common questions of law or fact
are filed, the Board may:
(1) Order the cases consolidated; or
(2) Make such other orders concerning the proceedings as are needed
to avoid unnecessary costs or delay.
[72 FR 36795, July 5, 2007,, as amended at 76
FR 50927, Aug. 17, 2011]
6101.3 Time: enlargement; computation [Rule 3].
(a) Time for performing required actions. All time limitations prescribed in
the rules of this chapter or in any
order or direction given by the Board
are maximums, and the action required
should be accomplished in less time
whenever possible.
(b) Enlarging time. Upon request of a
party for good cause shown, the Board
may enlarge any time prescribed by
the rules in this chapter or by an order
or direction of the Board except the
time
limit
for
filing
appeals
(6101.2(b)(1) (Rule 2(b)(1))). A written request is required, but in exigent circumstances an oral request may be
made and followed by a written request. An enlargement of time may be
granted even though the request was
filed after the time for taking the required action expired, but the party requesting the enlargement must show
good cause for its inability to make the
request before that time expired.
(c) Computing time. Except as otherwise required by law, in computing a
period of time prescribed by the rules
in this chapter or by order of the
Board, the day from which the designated period of time begins to run
shall not be counted, but the last day
of the period shall be counted unless
that day is a Saturday, a Sunday, or a
federal holiday, or a day on which the
Office of the Clerk of the Board is required to close earlier than 4:30 p.m., or
does not open at all, as in the case of
inclement weather, in which event the
period shall include the next working
day. Except as otherwise provided in
this paragraph, when the period of time
prescribed or allowed is less than 11
days, any intervening Saturday, Sunday, or federal holiday shall not be
counted. When the period of time prescribed or allowed is 11 days or more,
intervening Saturdays, Sundays, and
federal holidays shall be counted. Time
for filing any document or copy thereof
with the Board expires when the Office
of the Clerk of the Board closes on the
last day on which such filing may be
made.
6101.4 Appeal file [Rule 4].
(a) Submission to the Board by the respondent. Within 30 calendar days from
receipt of the Board’s docketing notice
or within such time as the Board may
allow, the respondent shall file with
the Board appeal file exhibits consisting of all documents and other tangible things relevant to the claim and
to the contracting officer’s decision
which has been appealed. Exhibits will
be numbered as required by 6101.4(b)
[Rule 4(b)] and will include, if any:
(1) The contracting officer’s decision
from which the appeal is taken;
(2) The contract, including amendments, specifications, plans, and drawings;
(3) All correspondence between the
parties that is relevant to the appeal,
including the written claim or claims
that are the subject of the appeal, and
evidence of their certification;
(4) Affidavits or statements of any
witnesses concerning the matter in dispute and transcripts of any testimony
taken before the filing of the notice of
appeal;
(5) All documents and other tangible
things on which the contracting officer
relied in making the decision, and any
related correspondence;
(6) The abstract of bids, if relevant;
and
(7) Any additional existing evidence
or information necessary to determine
the merits of the appeal, such as internal memoranda and notes to the file.
(b) Organization of the appeal file. Appeal file exhibits may be originals or
true, legible, and complete copies.
They shall be arranged in chronological order, earliest documents first;
bound in a loose-leaf binder on the left
margin except where size or shape
makes such binding impracticable;
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GSA Board of Contract Appeals
6101.5
numbered; tabbed; and indexed. The
loose-leaf binders cannot exceed four
inches in depth. The numbering shall
be consecutive, in whole Arabic numerals (no letters, decimals, or fractions),
and continuous from one submission to
the next, so that the complete file,
after all submissions, will consist of
one set of consecutively numbered exhibits. In addition, the pages within
each exhibit containing more than
three pages shall be numbered consecutively unless the exhibit already is
paginated in a logical manner. Consecutive pagination of the entire file is
not required. The index shall include
the date and a brief description of each
exhibit and shall identify which exhibits, if any, have been filed with the
Board in camera or under protective
order or otherwise have not been
served on the other party.
(c) Service. The respondent shall serve
a copy of the appeal file on the appellant at the same time that the respondent files it with the Board, except that
the respondent need not serve on the
appellant those documents furnished
the Board in camera pursuant to
6101.9(c) (Rule 9(c)), and the respondent
shall serve documents submitted under
protective order only on those individuals who have been granted access to
such documents by the Board. However, the respondent must serve on the
appellant a list identifying the specific
documents filed in camera or under protective order with the Board, giving
sufficient details necessary for their
recognition. This list must also be filed
with the Board as an exhibit to the appeal file.
(d) Submission to the Board by the appellant. Within 30 calendar days after
the respondent files its appeal file exhibits, or within such time as the
Board may allow, the appellant shall
file with the Board for inclusion in the
appeal file documents or other tangible
things relevant to the appeal that have
not been submitted by the respondent.
The appellant shall serve a copy of its
additional exhibits upon the respondent at the same time as it files them
with the Board, and shall organize the
file as required by 6101.4(b) (Rule 4(b)).
(e) Submissions on order of the Board.
The Board may, at any time during the
pendency of the appeal, require any
party to file other documents and tangible things as additional exhibits. The
Board may also require a party to file
either copies of electronically stored
information or printed versions of electronically stored information.
(f) Lengthy or bulky materials. The
Board may waive the requirement to
furnish the other party copies or duplicates of bulky, lengthy, or outsized
materials submitted to the Board as
exhibits if furnishing copies would impose an undue burden, so long as the
materials are available to the opposing
party for inspection.
(g) Use of appeal file as evidence. All
exhibits in the appeal file, except for
those as to which an objection has been
sustained, are part of the evidentiary
record upon which the Board will
render its decision. Unless otherwise
ordered by the Board, objection to any
exhibit may be made at any time before the first witness is sworn or, if the
appeal is submitted on the record without a hearing pursuant to 6101.19 [Rule
19], at any time prior to or concurrent
with the first record submission. The
Board may shorten or enlarge the time
for such objections and will consider an
objection made during a hearing if the
ground for objection could not reasonably have been earlier known to the objecting party. If an objection is sustained, the Board will so note in the
record.
(h) When appeal file not required. Upon
motion of a party, the Board may postpone or dispense with the submission of
any or all appeal file exhibits.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008]
6101.5 Appearances; notice of appearance [Rule 5].
(a) Appearances before the Board—(1)
Appellant; petitioner; applicant. Any appellant, petitioner, or applicant may
appear before the Board by an attorney-at-law licensed to practice in a
state, commonwealth, or territory of
the United States, or in the District of
Columbia. An individual appellant, petitioner, or applicant may appear in his
or her own behalf; a corporation, trust,
or association may appear by one of its
officers; and a partnership may appear
by one of its members.
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6101.6
48 CFR Ch. 61 (10–1–14 Edition)
(2) Respondent. The respondent may
appear before the Board by an attorney-at-law licensed to practice in a
state, commonwealth, or territory of
the United States, or in the District of
Columbia. Alternatively, if not prohibited by agency regulation or otherwise,
the respondent may appear by the contracting officer or by the contracting
officer’s authorized representative.
(3) Others. The Board may, on motion, in its discretion, permit a special
or limited appearance, such as by an
amicus curiae. Permission to appear, if
granted, will be for such purposes and
in such manner as allowed by the presiding judge.
(b) Notice of appearance. Unless a notice of appearance is filed by some
other person, the person signing the
notice of appeal, petition, or application shall be deemed to have appeared
on behalf of the appellant, petitioner,
or applicant, and the head of the respondent agency’s litigation office
shall be deemed to have appeared on
behalf of the respondent. Other attorneys actively participating in the proceedings before the Board must file notices of appearance. A notice of appearance in the form specified in the appendix to the rules of this chapter is sufficient. Attorneys representing parties
before the Board are required to list
the state bars to which they are admitted and their state bar numbers or
other bar identifiers.
(c) Withdrawal of appearance. Any
person who has filed a notice of appearance and who wishes to withdraw from
a case must file a motion which includes the name, address, telephone
number, facsimile machine number,
and e-mail address, if available, of the
person who will assume responsibility
for representation of the party in question. The motion shall state the
grounds for withdrawal unless it is accompanied by a representation from
the successor representative or existing co-counsel that the established
case schedule will be met.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008; 76 FR 50928, Aug. 17,
2011]
6101.6 Pleadings and amendment of
pleadings [Rule 6].
(a) Pleadings required and permitted.
Except as the Board may otherwise
order, the Board requires the submission of a complaint and an answer. In
appropriate circumstances, the Board
may order or permit a reply to an answer.
(b) Complaint. No later than 30 calendar days after the docketing of the
appeal, the appellant shall file with the
Board a complaint setting forth its
claim or claims in simple, concise, and
direct terms. The complaint should set
forth the factual basis of the claim or
claims, with appropriate reference to
the contract provisions, and should
state the amount in controversy, or an
estimate thereof, if any and if known.
No particular form is prescribed for a
complaint, and the Board may designate the notice of appeal, a claim
submission, or any other document as
the complaint, either on its own initiative or on request of the appellant, if
such document sufficiently states the
factual basis and amount of the claim.
(c) Answer. No later than 30 calendar
days after the filing of the complaint
or of the Board’s designation of a complaint, the respondent shall file with
the Board an answer setting forth simple, concise, and direct statements of
its defenses to the claim or claims asserted in the complaint, as well as any
affirmative defenses it chooses to assert. A dispositive motion or a motion
for a more definite statement may be
filed in lieu of the answer only with the
permission of the Board. If no answer is
timely filed, the Board may enter a
general denial, in which case the respondent may thereafter amend the answer to assert affirmative defenses
only by leave of the Board and as otherwise prescribed by paragraph (e) of
this section. The Board will inform the
parties when it enters a general denial
on behalf of the respondent.
(d) Small claims and accelerated procedures. When an appellant elects to use
the small claims or accelerated procedures described in 6101.52 and 6101.53
(Rules 52 and 53), the Board may shorten the time for filing the complaint
and the answer.
(e) Amendment of pleadings. Each
party to an appeal may amend its
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31
GSA Board of Contract Appeals
6101.8
pleadings once without leave of the
Board at any time before a responsive
pleading is filed. The Board may permit other amendments on conditions
fair to both parties. A response to an
amended pleading will be filed within
the time set by the Board.
(f) Amendments to conform to the evidence. When issues within the proper
scope of a case, but not raised in the
pleadings, have been raised without objection or with permission of the Board
at a hearing or in record submissions,
they shall be treated in all respects as
if they had been raised in the pleadings. The Board may order the parties
to amend the pleadings to conform to
the proof or may order that the record
be deemed to contain amended pleadings.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008]
6101.7 Service of papers other than
subpoenas [Rule 7].
(a) On whom and when service must be
made. Except for subpoenas (6101.16
[Rule 16]) and documents filed in camera (6101.9(c) [Rule 9(c)]), when a party
sends a document to the Board it must
at the same time send a copy to the
other party by an equally or more expeditious means of transmittal. The
parties will confer and agree upon the
method they will use to serve one another. They may agree to use electronic mail, facsimile, overnight courier, hand delivery, or any other mutually acceptable method for accomplishing service promptly and efficiently.
(b) Proof of service. A party sending a
document to the Board must represent
to the Board that a copy has also been
sent to the other party. This may be
done by certificate of service, by the
notation of a photostatic copy (cc:), or
by any other means that can reasonably be expected to show the Board
that the other party has been provided
a copy.
(c) Failure to make service. If a document sent to the Board by a party does
not show that a copy has been served
on the other party, the Board may return the document to the party that
submitted it with such directions as it
considers appropriate, or the Board
may inquire whether a party has re-
ceived a copy and note on the record
the fact of inquiry and the response,
and may also direct the party that submitted the document to serve a copy
on the other party. In the absence of
proof of service a document may be
treated by the Board as not properly
filed.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008]
6101.8 Motions [Rule 8].
(a) How motions are made. Motions
may be oral or written. A written motion shall state the relief sought and,
either in the text of the motion or in
an accompanying legal memorandum,
the grounds therefor. In addition, a
motion for summary relief shall comply with the requirements of paragraph
(g) of this section. Section 6101.23 (Rule
23) prescribes the form and content of
legal memoranda. Oral motions shall
be made on the record and in the presence of the other party. Except for
joint motions by the parties, all motions must represent that the moving
party has attempted to discuss the
grounds for the motion with the nonmoving party and tried to resolve the
matter informally.
(b) When motions may be made. A motion filed in lieu of an answer pursuant
to 6101.6(c) (Rule 6(c)) shall be filed no
later than the date on which the answer is required to be filed or such
later date as may be established by the
Board. Any other dispositive motion
shall be made as soon as practicable
after the grounds therefor are known.
Any other motion shall be made
promptly or as required by the rules of
this chapter.
(c) Dispositive motions. The following
dispositive motions may properly be
made before the Board:
(1) Motions to dismiss for lack of jurisdiction or for failure to state a
claim upon which relief can be granted;
(2) Motions to dismiss for failure to
prosecute;
(3) Motions for summary relief (analogous to summary judgment); and
(4) Any other motion to dismiss.
(d) Other motions. Other motions may
be made in good faith and in proper
form. When filing a motion for an enlargement of time, the moving party
shall state that it has contacted the
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6101.9
48 CFR Ch. 61 (10–1–14 Edition)
opposing party about the request and
shall inform the Board whether the opposing party consents to the request or
will file an opposition.
(e) Jurisdictional questions. The Board
may at any time consider the issue of
its jurisdiction to decide a case.
(f) Procedure. Unless otherwise directed by the Board, a party may respond to a written motion other than a
motion pursuant to 6101.26, 6101.27,
6101.28, or 6101.29 (Rules 26, 27, 28, or 29)
at any time within 20 calendar days
after the filing of the motion. Responses to motions pursuant to 6101.26,
6101.27, 6101.28, or 6101.29 (Rules 26, 27,
28, or 29) may be made only as permitted or directed by the Board. The
Board may permit hearing or oral argument on written motions and may
require additional submissions from
any of the parties.
(g) Motions for summary relief. (1) A
motion for summary relief should be
filed only when a party believes that,
based upon uncontested material facts,
it is entitled to relief in whole or in
part as a matter of law. A motion for
summary relief should be filed as soon
as feasible, to allow the Board to rule
on the motion in advance of a scheduled hearing date.
(2) With each motion for summary relief, there shall be served and filed a
separate document titled Statement of
Uncontested Facts, which shall contain
in separately numbered paragraphs all
of the material facts upon which the
moving party bases its motion and as
to which it contends there is no genuine issue. This statement shall include references to the supporting affidavits or declarations and documents,
if any, and to the 6101.4 (Rule 4) appeal
file exhibits relied upon to support
such statement.
(3) An opposing party shall file with
its opposition (or cross-motion) a separate document titled Statement of
Genuine Issues. This document shall
identify, by reference to specific paragraph numbers in the moving party’s
Statement of Uncontested Facts, those
facts as to which the opposing party
claims there is a genuine issue necessary to be litigated. An opposing
party shall state the precise nature of
its disagreement and give its version of
the facts. This statement shall include
references to the supporting affidavits
or declarations and documents, if any,
and to the 6101.4 (Rule 4) appeal file exhibits that demonstrate the existence
of a genuine dispute. An opposing party
may
also
file
a
Statement
of
Uncontested Facts as to any relevant
matters not covered by the moving
party’s statement.
(4) When a motion for summary relief
is made and supported as provided in
6101.8 (Rule 8), an opposing party may
not rest upon the mere allegations or
denials of its pleadings. The opposing
party’s response, by affidavits or as
otherwise provided by 6101.8 (Rule 8),
must set forth specific facts showing
that there is a genuine issue of material fact. If the opposing party does not
so respond, summary relief, if appropriate, shall be entered against that
party. For good cause shown, if an opposing party cannot present facts essential to justify its opposition, the
Board may defer ruling on the motion
to permit affidavits to be obtained or
depositions to be taken or other discovery to be conducted, or may make
such other order as is just.
(h) Effect of pending motion. Except as
the rules of this chpater provide or the
Board may order, a pending motion
shall not excuse the parties from proceeding with the case in accordance
with the rules of this chapter and the
orders and directions of the Board.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26950, May 12, 2008]
6101.9 Record of Board proceedings;
review and copying [Rule 9].
(a) Composition of the record for decision. The record upon which any decision of the Board will be rendered consists of:
(1) The notice of appeal, petition, or
application;
(2) Appeal file exhibits other than
those as to which an objection has been
sustained;
(3) Hearing exhibits other than those
as to which an objection has been sustained;
(4) Pleadings;
(5) Motions and responses thereto;
(6) Memoranda, orders, rulings, and
directions to the parties issued by the
Board;
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GSA Board of Contract Appeals
6101.11
(7) Documents and other tangible
things admitted in evidence by the
Board;
(8) Written transcripts or electronic
recordings of proceedings;
(9) Stipulations and admissions by
the parties;
(10) Depositions, or parts thereof, received in evidence;
(11) Written interrogatories and responses received in evidence;
(12) Briefs and memoranda of law;
and
(13) Anything else that the Board
may designate. All other papers and
documents are part of the administrative record of the proceedings and are
not included in the record upon which
the Board’s decision will be rendered.
(b) Enlargement of the record. The
Board may at any time require or permit enlargement of the record with additional evidence and briefs. It may reopen the record to receive additional
evidence and oral argument at a hearing.
(c) Protected and in camera submissions. (1) A party may by motion request that the Board receive and hold
materials under conditions that would
limit access to them on the ground
that such documents are privileged or
confidential, or sensitive in some other
way. The moving party must state the
grounds for such limited access. The
Board may also determine on its own
initiative to hold materials under such
conditions. The manner in which such
materials will be held, the persons who
shall have access to them, and the conditions (if any) under which such access will be allowed will be specified in
an order of the Board. If the materials
are held under such an order, they will
be part of the record of the case. If the
Board denies the motion, the materials
may be returned to the party that submitted them. If the moving party asks,
however, that the materials be placed
in the administrative record, in camera,
for the purpose of possible later review
of the Board’s denial, the Board will
comply with the request.
(2) A party may also ask, or the
Board may direct, that testimony be
received under protective order or in
camera. The procedures under paragraph (c)(1) of this section shall be fol-
lowed with respect to such request or
direction.
(d) Review and copying. Except for
any part thereof that is subject to a
protective order or deemed an in camera submission, the record in a Board
proceeding shall be made available for
review at the Office of the Clerk of the
Board during the Board’s normal working hours, as soon as practicable given
the demands on the Board of processing
the subject case and other cases. If a
request is made for copies of documents, and if making such copies involves more than minimal costs to the
Board, reimbursement will be required.
If a request is made for a copy of a
transcript which was prepared pursuant to a contract with the Board, the
fee charged by the Board for a copy of
the transcript will be at the rate established by the contract. When required,
the Office of the Clerk will certify copies of papers and documents as a true
record of the Board. Except as provided
in 6101.17 and 6101.32 (Rules 17 and 32),
the Office of the Clerk will not release
any part of the record in its possession
to anyone.
6101.10 Admissibility
[Rule 10].
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evidence
In general, any relevant and material
evidence will be admitted into the
record. The Board may exclude evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste
of time, or needless presentation of cumulative evidence. Hearsay evidence is
admissible unless the Board finds it unreliable or untrustworthy. As a general
matter, and subject to the other provisions of 6101.10 [Rule 10], the Board will
look to the Federal Rules of Evidence
for guidance when it makes evidentiary
rulings.
[73 FR 26950, May 12, 2008]
6101.11 Conferences;
conference
memorandum [Rule 11].
(a) Conferences. The Board may convene the parties in conference, either
by telephone or in person, for any purpose. The conference may be stenographically or electronically recorded,
at the discretion of the Board. Matters
to be considered and actions to be
taken at a conference may include:
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6101.12
48 CFR Ch. 61 (10–1–14 Edition)
(1) Simplifying, clarifying, or severing the issues;
(2) Stipulations, admissions, agreements, and rulings to govern the admissibility of evidence, understandings
on matters already of record, or other
similar means of avoiding unnecessary
proof;
(3) Plans, schedules, and rulings to
facilitate discovery;
(4) Limiting the number of witnesses
and other means of avoiding cumulative evidence;
(5) Stipulations or agreements disposing of matters in dispute; or
(6) Ways to expedite disposition of
the case or to facilitate settlement of
the dispute, including, if the parties
and the Board agree, the use of alternative dispute resolution techniques,
as provided in 6101.51 and 6101.54 (Rules
51 and 54).
(b) Conference memorandum. The
Board may issue a memorandum of the
results of a conference, an order reflecting any actions taken, or both. A
memorandum or order so issued shall
be placed in the record of the case and
sent to each party. Each party shall
have 5 working days after receipt of a
memorandum to object to the substance of it.
6101.12 Suspensions and dismissals
[Rule 12].
(a) Suspension of proceedings to obtain
contracting officer’s decision. The Board
may in its discretion suspend proceedings to permit a contracting officer to issue a decision when an appeal
has been taken from the contracting
officer’s alleged failure to render a
timely decision.
(b) Suspension for other cause. The
Board may suspend proceedings in a
case for good cause, such as to permit
the parties to finalize a settlement.
The order suspending proceedings will
prescribe the duration of the suspension or the conditions on which it will
expire. The order may also prescribe
actions to be taken by the parties during the period of suspension or following its expiration.
(c) Dismissal, generally. A case may be
dismissed by the Board on motion of either party. A case may also be dismissed for reasons cited by the Board
in a show cause order to which a re-
sponse has been permitted. Every dismissal shall be with prejudice to reinstatement of the case except as specified in paragraph (d) of this section.
(d) Dismissal without prejudice. When
circumstances beyond the control of
the Board prevent the continuation of
proceedings in a case, the Board may,
in lieu of issuing an order suspending
proceedings, dismiss the case without
prejudice to reinstatement within 180
calendar days after the date of the dismissal. When a case has been dismissed
without prejudice and neither party
has timely requested that the case be
reinstated, the case shall be deemed to
be dismissed with prejudice on the last
day such a request could have been
made.
(e) Issuance of order. The presiding
judge alone may issue an order suspending proceedings. An order of dismissal shall be issued by the panel of
judges to which the case has been assigned if the motion is contested or if
the Board is acting consequent to its
own show cause order. An order of dismissal may be issued by the presiding
judge alone if the motion to dismiss is
not contested.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
6101.13 General provisions governing
discovery [Rule 13].
(a) Discovery methods. The parties are
encouraged to exchange documents and
other information voluntarily. In addition, the parties may obtain discovery
by one or more of the following methods:
(1) Depositions upon oral examination or written questions;
(2) Written interrogatories;
(3) Requests for production of documents, electronically stored information, or other tangible or intangible
things; and
(4) Requests for admission.
(b) Scope of discovery. Except as otherwise limited by order of the Board,
the parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter
involved in the pending case, whether
it relates to the claim or defense of a
party, including the existence, description, nature, custody, condition, and
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GSA Board of Contract Appeals
6101.13
location of any books, documents, electronically stored information, or other
tangible or intangible things, and the
identity and location of persons having
knowledge of any discoverable matter.
It is not a ground for objection that
the information sought will be inadmissible if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.
(c) Discovery limits. The Board may
limit the frequency or extent of use of
the discovery methods set forth in
6101.13 (Rule 13) if it determines that:
(1) The discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that
is more convenient, less burdensome,
or less expensive;
(2) The party seeking discovery has
had ample opportunity by discovery in
the case to obtain the information
sought; or
(3) The discovery is unduly burdensome and expensive, taking into account the needs of the case, the
amount in controversy, limitations on
the parties’ resources, and the importance of the issues at stake.
(d) Conduct of discovery. Parties may
engage in discovery only to the extent
the Board enters an order which either
incorporates an agreed plan and schedule acceptable to the Board or otherwise permits such discovery as the
moving party can demonstrate is required for the expeditious, fair, and
reasonable resolution of the case.
(e) Discovery conference. Upon request
of a party or on its own initiative, the
Board may at any time hold an informal meeting or telephone conference
with the parties to identify the issues
for discovery purposes; establish a plan
and schedule for discovery; set limitations on discovery, if any; and determine such other matters as are necessary for the proper management of
discovery. The Board may include in
the conference such other matters as it
deems appropriate in accordance with
6101.11 (Rule 11).
(f) Discovery objections. (1) In connection with any discovery procedure, the
Board, on motion or on its own initiative, may make any order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or ex-
pense, including, but not limited to,
one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery be had only on
specified terms and conditions, including a designation of the time and place,
or that the scope of discovery be limited to certain matters;
(iii) That the discovery be conducted
with no one present except persons designated by the Board; and
(iv) That confidential information
not be disclosed or that it be disclosed
only in a designated way.
(2) Unless otherwise ordered by the
Board, any objection to a discovery request must be filed within 15 calendar
days after receipt. A party shall fully
respond to any discovery request to
which it does not file a timely objection. The parties are required to make
a good faith effort to resolve objections
to discovery requests informally.
(3) A party receiving an objection to
a discovery request, or a party which
believes that another party’s response
to a discovery request is incomplete or
entirely absent, may file a motion to
compel a response, but such a motion
must include a representation that the
moving party has tried in good faith,
prior to filing the motion, to resolve
the matter informally. The motion to
compel shall include a copy of each discovery request at issue and the response, if any.
(g) Failure to make or cooperate in discovery. If a party fails to appear for a
deposition, after being served with a
proper notice; to serve answers or objections to interrogatories submitted
under 6101.14 [Rule 14], after proper
service of interrogatories; or to serve a
written response to a request for inspection, production, and copying of
any documents, electronically stored
information, and things under 6101.14
[Rule 14], the party seeking discovery
may move the Board to impose appropriate sanctions under 6101.33 [Rule 33].
(h) Subpoenas. A party may request
the issuance of a subpoena in aid of discovery under the provisions of 6101.16
(Rule 16).
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
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6101.14
48 CFR Ch. 61 (10–1–14 Edition)
6101.14 Interrogatories to parties; requests for admission; requests for
production [Rule 14].
Upon order from the Board permitting such discovery, a party may serve
on another party written interrogatories, requests for admission, and requests for production.
(a) Written interrogatories. Written interrogatories shall be answered separately in writing, signed under oath or
accompanied by a declaration under
penalty of perjury, and answered within 30 calendar days after service. Objections shall be filed within the time limits set forth in 6101.13(f)(2) (Rule
13(f)(2)).
(b) Option to produce business records.
Where the answer to an interrogatory
may be derived or ascertained from the
business records of the party upon
which the interrogatory has been
served, or from an examination, audit,
or inspection of such business records,
including a compilation, abstract, or
summary thereof, and the burden of deriving or ascertaining the answer is
substantially the same for the party
serving the interrogatory as for the
party served, it is a sufficient answer
to such interrogatory to specify the
records from which the answer may be
derived or ascertained and to afford to
the party serving the interrogatory
reasonable opportunity to examine,
audit, or inspect such records and to
make copies, compilations, abstracts,
or summaries thereof. Such specification shall be in sufficient detail to permit the interrogating party to locate
and to identify, as readily as can the
party served, the records from which
the answer may be ascertained.
(c) Written requests for admission. A
written request for the admission of
the truth of any matter, within the
proper scope of discovery, that relates
to statements or opinions of fact or of
the application of law to fact, including the genuineness of any documents
or electronically stored information, is
to be answered in writing and signed
within 30 calendar days after service.
Objections shall be filed within the
time limits set forth in 6101.13(f)(2)
[Rule 13(f)(2)]. Otherwise, the matter
therein may be deemed to be admitted.
Any matter admitted is conclusively
established for the purpose of the pend-
ing action, unless the Board on motion
permits withdrawal or amendment of
the admission. Any admission made by
a party under this paragraph (c) is for
the purpose of the pending action only
and is not an admission for any other
purpose, nor may it be used against the
party in any other proceeding.
(d) Written requests for production. A
written request for the production, inspection, and copying of any documents, electronically stored information, or things shall be answered within 30 calendar days after service. Objections shall be filed within the time limits set forth in 6101.13(f)(2) [Rule
13(f)(2)].
(e) Change in time for response. Upon
request of a party, or on its own initiative, the Board may prescribe a period
of time other than that specified in
6101.14 (Rule 14).
(f) Responses. A party that has responded to written interrogatories, requests for admission, or requests for
production of documents, electronically stored information, or things,
upon becoming aware of deficiencies or
inaccuracies in its original responses,
or upon acquiring additional information or additional documents, electronically
stored
information,
or
things relevant thereto, shall, as
quickly as practicable, and as often as
necessary, supplement its responses to
the requesting party with correct and
sufficient additional information and
such additional documents, electronically stored information, and things as
are necessary to give a complete and
accurate response to the request.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
6101.15
Depositions [Rule 15].
(a) When depositions may be taken.
Upon request of a party, the Board may
order the taking of testimony of any
person by deposition upon oral examination or written questions before an
officer authorized to administer oaths
at the place of examination. Attendance of witnesses may be compelled by
subpoena as provided in 6101.16 (Rule
16), and the Board may upon motion
order that the testimony at a deposition be recorded by other than stenographic means, in which event the
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GSA Board of Contract Appeals
6101.15
order may designate the manner of recording, preserving, and filing the deposition and may include other provisions to ensure that the recorded testimony will be accurate and trustworthy. In addition, if the Board orders
deposition testimony to be recorded by
other than stenographic means, the
Board will also determine who shall
bear the burden of the cost of such recording, and shall permit the non-moving party to arrange to have a stenographic transcription made at its own
expense.
(b) Depositions: time; place; manner of
taking. The time, place, and manner of
taking depositions, including the taking of depositions by telephone, shall
be as agreed upon by the parties or,
failing such agreement, as ordered by
the Board. A deposition taken by telephone is taken at the place where the
deponent is to answer questions.
(c) Use of depositions. At a hearing on
the merits or upon a motion or interlocutory proceeding, any part or all of
a deposition, so far as admissible and
as though the witness were then
present and testifying, may be used
against a party who was present or represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the
following provisions:
(1) Any deposition may be used by a
party for the purpose of contradicting
or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of
anyone who at the time of taking the
deposition was an officer, director, or
managing agent, or a person designated
to testify on behalf of a corporation,
partnership, association, or government agency which is a party may be
used by an adverse party for any purpose.
(3) The deposition of a witness,
whether or not a party, may be used by
a party for any purpose in its own behalf if the Board finds that:
(i) The witness is dead;
(ii) The attendance of the witness at
the place of hearing cannot be reasonably obtained, unless it appears that
the absence of the witness was procured by the party offering the deposition;
(iii) The witness is unable to attend
or testify because of illness, infirmity,
age, or imprisonment;
(iv) The party offering the deposition
has been unable to procure the attendance of the witness by subpoena; or
(v) Upon request and notice, exceptional circumstances exist which make
it desirable in the interest of justice
and with due regard to the importance
of presenting the testimony of witnesses orally in open hearing, to allow
the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse
party may require the offering party to
introduce any other part which in fairness ought to be considered with the
part introduced.
(d) Depositions pending appeal from a
decision of the Board. If an appeal has
been taken from a decision of the
Board, or before the taking of an appeal if the time therefor has not expired, the Board may allow the taking
of depositions of witnesses to perpetuate their testimony for use in the
event of further proceedings before the
Board. In such case, the party that desires to perpetuate testimony may
make a motion before the Board for
leave to take the depositions as if the
action were pending before the Board.
The motion shall show:
(1) The names and addresses of the
persons to be examined and the substance of the testimony which the
moving party expects to elicit from
each; and
(2) The reasons for perpetuating the
testimony of the persons named. If the
Board finds that the perpetuation of
testimony is proper to avoid a failure
or a delay of justice, it may order the
depositions to be taken and may make
orders of the character provided for in
6101.13 (Rule 13) and in 6101.15 (Rule 15).
Thereupon, the depositions may be
taken and used as prescribed in the
rules of this chapter for depositions
taken in actions pending before the
Board. Upon request and for good cause
shown, a judge may issue or obtain a
subpoena, in accordance with 6101.16
(Rule 16), for the purpose of perpetuating testimony by deposition during
the pendency of an appeal from a Board
decision.
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6101.16
6101.16
48 CFR Ch. 61 (10–1–14 Edition)
Subpoenas [Rule 16].
(a) Voluntary cooperation in lieu of
subpoena. Each party is expected to:
(1) Cooperate by making available
witnesses and evidence under its control, when requested by another party,
without issuance of a subpoena; and
(2) Secure the cooperation of thirdparty witnesses and production of evidence by third parties, when practicable, without issuance of a subpoena.
(b) General. Upon the written request
of any party filed with the Office of the
Clerk of the Board, or upon the initiative of a judge, a subpoena may be
issued that commands the person to
whom it is directed to:
(1) Attend and give testimony at a
deposition in a city or county where
that person resides or is employed or
transacts business in person, or at another location convenient to that person that is specifically determined by
the Board;
(2) Attend and give testimony at a
hearing; and
(3) Produce the books, papers, documents, electronically stored information, and other tangible and intangible
things designated in the subpoena.
(c) Request for subpoena. A request for
a subpoena shall contain the name of
the assigned judge, the name of the
case, and the docket number of the
case. It shall state the reasonable scope
and general relevance to the case of the
testimony and of any evidence sought.
A request for a subpoena shall be filed
at least 15 calendar days before the testimony of a witness or evidence is to be
provided. The Board may, in its discretion, honor requests for subpoenas not
made within this time limitation.
(d) Form; issuance. (1) Every subpoena
shall be in the form specified in the appendix to the rules of this chapter and
this form shall not be altered. Unless a
party has the approval of a judge to
submit a subpoena in blank (in whole
or in part), a party shall submit to the
judge a completed subpoena (save the
‘‘Return on Service’’ portion). In
issuing a subpoena to a requesting
party, the judge shall sign the subpoena. The party to whom the subpoena is issued shall complete the subpoena before service.
(2) If the person subpoenaed is located in a foreign country, a letter rogatory or a subpoena may be issued and
served under the circumstances and in
the manner provided in 28 U.S.C. 17811784.
(e) Service. (1) The party requesting a
subpoena shall arrange for service.
Service shall be made as soon as practicable after the subpoena has been
issued.
(2) A subpoena requiring the attendance of a witness at a deposition or
hearing may be served at any place. A
subpoena may be served by a United
States marshal or deputy marshal, or
by any other person who is not a party
and not less than 18 years of age. Service of a subpoena upon a person named
therein shall be made by personal delivery of a copy to that person and tender of the fees for one day’s attendance
and the mileage allowed by 28 U.S.C.
1821 or other applicable law; however,
where the subpoena is issued on behalf
of the Government, money payments
need not be tendered in advance of attendance.
(f) Proof of service. The person serving
the subpoena shall make proof of service thereof to the Board promptly and
in any event before the date on which
the person served must respond to the
subpoena. Proof of service shall be
made by completion and execution and
submission to the Board of the ‘‘Return
on Service’’ portion of a duplicate copy
of the subpoena issued by a judge. If
service is made by a person other than
a United States marshal or his deputy,
that person shall make an affidavit as
proof by executing the ‘‘Return on
Service’’ in the presence of a notary.
(g) Motion to quash or to modify. Upon
written motion by the person subpoenaed or by a party, made within 14 calendar days after service, but in any
event not later than the time specified
in the subpoena for compliance, the
Board may quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown, or
require the party in whose behalf the
subpoena was issued to advance the
reasonable cost of producing subpoenaed evidence. Where circumstances
require, the Board may act upon such a
motion at any time after a copy has
been served upon opposing parties.
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GSA Board of Contract Appeals
6101.19
(h) Contumacy or refusal to obey a subpoena. In a case of contumacy or refusal to obey a subpoena by a person
who resides, is found, or transacts business within the jurisdiction of a United
States district court, the Board shall
apply to the court through the Attorney General of the United States for an
order requiring the person to appear
before the Board to give testimony,
produce evidence, or both.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
6101.17
Exhibits [Rule 17].
(a) Marking of exhibits. (1) Documents
and other tangible things offered in
evidence by a party will be marked for
identification by the Board during the
hearing or, if ordered by the Board,
will be added to the appeal file as exhibits before the commencement of the
hearing in order, for example, to eliminate the introduction of additional exhibits at the hearing.
(2) If a party elects to proceed on the
record without a hearing pursuant to
6101.19 (Rule 19), documentary evidence
submitted by that party will be numbered consecutively as appeal file exhibits.
(b) Copies as exhibits. Except upon objection sustained by the Board for good
cause shown, copies of documents may
be offered and received into evidence as
exhibits, provided they are of equal
legibility and quality as the originals,
and such copies shall have the same
force and effect as if they were the
originals. If the Board directs, a party
offering a copy of a document as an exhibit shall have the original available
at the hearing for examination by the
Board and any other party. When the
original of a document has been received into evidence as an exhibit, an
accurate copy may be substituted in
evidence for the original by leave of
the Board at any time. The Board may
require a party to provide either copies
of electronically stored information or
printed versions of electronically
stored information to be included in
the record.
(c) Withdrawal of exhibits and other
items. With the permission of the
Board, a party that submits an exhibit
or any other item may withdraw the
exhibit or item from the record during
the course of a proceeding.
(d) Disposition of physical exhibits. Any
physical (as opposed to documentary)
exhibit may be disposed of by the
Board at any time more than 90 calendar days after the expiration of the
period for appeal from the decision of
the Board.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
6101.18 Election of hearing or record
submission [Rule 18].
Each party shall inform the Board, in
writing, whether it elects a hearing or
submission of its case on the record
pursuant to 6101.19 (Rule 19). Such an
election may be filed at any time unless a time for filing is prescribed by
the Board. In most cases, the Board
will require the parties to make an
election soon after discovery closes. A
party electing to submit its case on the
record pursuant to 6101.19 (Rule 19)
may also elect to appear at a hearing
solely to cross-examine any witness
presented by the opposing party, provided that the Board is informed of
that party’s intention within 10 working days of its receipt of notice of the
election of hearing by the other party.
If a hearing is elected, the election
should state where and when the electing party desires the hearing to be held
and should explain the reasons for its
choices. A hearing will be held if either
party elects one. If a party’s decision
whether to elect a hearing is dependent
upon the intentions of the other party,
it shall consult with the other party
before filing its election. If there is to
be a hearing, it will be held at a time
and place prescribed by the Board after
consultation with the party or parties
electing the hearing. The record submissions from a party that has elected
to submit its case on the record shall
be due as provided in 6101.19 (Rule 19).
6101.19 Submission on the record
without a hearing [Rule 19].
(a) Submission on the record. A party
may elect to submit its case on the
record without a hearing. A party submitting its case on the record may include in its written record submission
or submissions:
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6101.20
48 CFR Ch. 61 (10–1–14 Edition)
(1) Any relevant documents or other
tangible things it wishes the Board to
admit into evidence;
(2) Affidavits, depositions, and other
discovery materials that set forth relevant evidence; and
(3) A brief or memorandum of law.
The Board may require the submission
of additional evidence or briefs and
may order oral argument in a case submitted on the record.
(b) Time for submission. (1) If both parties have elected to submit the case on
the record, the Board will issue an
order prescribing the time for initial
and, if appropriate, reply record submissions.
(2) If one party has elected a hearing
and the other party has elected to submit its case on the record, the party
submitting on the record shall make
its initial submission no later than the
commencement of the hearing or at an
earlier date if the Board so orders, and
a further submission in the form of a
brief at the time for submission of
posthearing briefs.
(c) Objections to evidence. Unless otherwise directed by the Board, objections to evidence (other than the appeal file and supplements thereto) in a
record submission may be made within
10 working days after the filing of the
submission, and replies to such objections, if any, may be made within 10
working days after the filing of the objection. The Board may rule on such
objections either before it issues its decision or at the time it issues its decision.
6101.20 Hearings: scheduling; notice;
unexcused absences [Rule 20].
(a) Scheduling of hearings. Hearings
will be held at the time and place ordered by the Board and will be scheduled at the discretion of the Board. In
scheduling hearings, the Board will
consider the requirements of the rules
of this chapter, the need for orderly
management of the Board’s caseload,
and the stated desires of the parties as
expressed in their elections filed pursuant to 6101.18 (Rule 18) or otherwise.
The time or place for hearing may be
changed by the Board at any time.
(b) Notice of hearing. Notice of hearing will be by written order of the
Board. Notice of changes in the hearing
schedule will also be by written order
when practicable but may be oral in exigent circumstances. Except as the
Board may otherwise order, each party
that plans to attend the hearing shall,
within 10 working days of receipt of a
written notice of hearing or any notice
of a change in hearing schedule stating
that an acknowledgment is required,
notify the Board in writing that it will
attend the hearing. If a party fails to
acknowledge a notice of hearing as required, the Board will deem the party
to have consented to the time and
place of hearing.
(c) Unexcused absence from hearing. In
the event of the unexcused absence of a
party from a hearing, the hearing will
proceed, and the absent party will be
deemed to have elected to submit its
case on the record pursuant to 6101.19
(Rule 19).
6101.21 Hearing procedures [Rule 21].
(a) Nature and conduct of hearings. (1)
Except when necessary to maintain the
confidentiality of protected material
or testimony, or material submitted in
camera, all hearings on the merits of
cases shall be open to the public and
conducted insofar as is convenient in
regular hearing rooms. All other acts
or proceedings may be done or conducted by the Board either in its offices or at other places.
(2) When cases involving common
questions of law or fact are pending,
the Board may order a joint hearing of
any or all of the matters, claims, or
issues in the cases.
(3) The Board may order a separate
hearing of any matters, claims, or
issues pending in any case. The Board
may enter appropriate orders or decisions with respect to any matters,
claims, or issues that are heard separately.
(4) Upon the agreement of the parties
or upon its own initiative, the Board
may notify the parties before a hearing
begins that it will limit the hearing to
those issues of law and fact relating to
the right of a party to recover, reserving the determination of the amount of
recovery, if any, for other proceedings.
(5) Before the hearing begins, the
Board may prescribe a time within
which the presentation of evidence
must be concluded, and may establish
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GSA Board of Contract Appeals
6101.21
time limits on the direct and cross-examination of witnesses.
(6) Upon the request of either party
or if the Board deems it advisable, the
Board will order witnesses to be excluded from the hearing room so they
cannot hear the testimony of other
witnesses. The Board will not exclude a
party who is an individual, the designated representative of a party which
is an entity, a person whose presence is
essential to the presentation of a party’s case, or someone authorized by
statute to be present.
(b) Continuances; change of location.
Whenever practicable, a hearing will be
conducted in one continuous session or
a series of consecutive sessions at a
single location. However, the Board
may at any time continue the hearing
to a future date and may arrange to
conduct the hearing in more than one
location. The Board may also continue
a hearing to permit a party to conduct
additional discovery on conditions established by the Board. In exercising
its discretion to continue a hearing or
to change its location, the Board will
give due consideration to the same elements (set forth in 6101.20(a) (Rule
20(a))) that it considers in scheduling
hearings.
(c) Availability of witnesses, documents,
and other tangible things. It is the responsibility of a party desiring to call
any witness, or to use any document or
other tangible thing as an exhibit in
the course of a hearing, to ensure that
whomever it wishes to call and whatever it wishes to use is available at the
hearing. If a witness cannot be made
available at the site of the hearing, the
party who wishes to call the witness
may file a motion that the witness be
allowed to testify remotely, whether
by telephone, video conference, or
some other method.
(d) Enlargement of the record. The
Board may at any time during the conduct of a hearing require evidence or
argument in addition to that put forth
by the parties.
(e) Examination of witnesses. Witnesses before the Board will testify
under oath or affirmation. A party or
the Board may obtain an answer from
any witness to any question that is not
the subject of an objection that the
Board sustains.
(f) Refusal to be sworn. If a person
called as a witness refuses to be sworn
or to affirm before testifying, the
Board may direct that witness to be
sworn or to affirm and, in the event of
continued refusal, the Board may permit the taking of testimony without
oath or affirmation. If the Board permits a witness to testify without oath
or affirmation, the Board will explain
that statements made during the hearing are subject to provisions of federal
law imposing penalties, including
criminal penalties, for knowingly making
false
representations.
Alternatively, the Board may refuse to permit the examination of that witness, in
which event it may state for the record
the inferences it draws from the
witness’s refusal to testify under oath
or affirmation. Alternatively, the
Board may issue a subpoena to compel
that witness to testify under oath or
affirmation and, in the event of the
witness’s continued refusal to be sworn
or to affirm, may seek enforcement of
that subpoena pursuant to 6101.16(h)
(Rule 16(h)).
(g) Refusal to answer. If a witness refuses to answer a question put to him
in the course of his testimony, the
Board may direct that witness to answer and, in the event of continued refusal, the Board may state for the
record the inferences it draws from the
refusal to answer. Alternatively, the
Board may issue a subpoena to compel
that witness to testify and, in the
event of the witness’s continued refusal
to testify, may seek enforcement of
that subpoena pursuant to 6101.16(h)
(Rule 16(h)).
(h) Issues not raised by pleadings. If
evidence is objected to at a hearing on
the ground that it is not within the
issues raised by the pleadings, it may
nevertheless be admitted by the Board
if it is within the proper scope of the
case. If such evidence is admitted, the
Board may grant the objecting party a
continuance to enable it to meet such
evidence. If such evidence is admitted,
the pleadings may be amended to conform to the evidence, as provided by
6101.6(f) (Rule 6(f)).
(i) Delay by parties. If the Board determines that the hearing is being unreasonably delayed by the failure of a
party to produce evidence, or by the
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31
6101.22
48 CFR Ch. 61 (10–1–14 Edition)
undue prolongation of the presentation
of evidence, it may, during the hearing,
prescribe a time or times within which
the presentation of evidence must be
concluded, establish time limits on the
direct or cross-examination of witnesses, and enforce such order or ruling
by appropriate sanctions.
6101.22 Transcripts of
corrections [Rule 22].
proceedings;
(a)Transcripts. Except as the Board
may otherwise order, all hearings,
other than those under the small
claims procedure prescribed by 6101.52
(Rule 52), will be stenographically or
electronically recorded and transcribed. Any other hearing or conference will be recorded or transcribed
only by order of the Board. Each party
is responsible for obtaining its own
copy of the transcript if one is prepared.
(b) Corrections. Corrections to an official transcript will be made only when
they involve errors affecting its substance. The Board may order such corrections on motion or on its own initiative, and only after notice to the parties giving them opportunity to object.
Such corrections will ordinarily be
made either by hand with pen and ink
or by the appending of an errata sheet,
but when no other method of correction is practicable the Board may require the reporter to provide substitute
or additional pages.
6101.23 Briefs and memoranda of law
[Rule 23].
(a) Form and content of briefs and
memoranda of law. Briefs and memoranda of law shall be on standard size
81⁄2 by 11-inch paper. They shall be double-spaced with text in the body and in
the footnotes no smaller than 12 point.
Otherwise, no particular form or organization is prescribed. The presiding
judge may request prehearing and
posthearing briefs and may also request, at any point in the proceedings,
memoranda of law. Prehearing and
posthearing briefs should, at a minimum, succinctly set forth:
(1) The facts of the case with citations to those places in the record
where supporting evidence can be
found; and
(2) Argument with citations to supporting legal authorities.
(b) Submission of posthearing briefs.
Except as the Board may otherwise
order, posthearing briefs shall be filed
30 calendar days after the Board’s receipt of the transcript; reply briefs, if
filed, shall be filed 15 calendar days
after the parties’ receipt of the initial
posthearing briefs. The Board will notify the parties of the date of its receipt of the transcript. In the event one
party has elected a hearing and the
other party has elected to submit its
case on the record pursuant to 6101.19
(Rule 19), the filing of record submissions in the form of briefs shall be governed by 6101.23 (Rule 23).
[72 FR 36795, July 5, 2007, as amended at 73
FR 26951, May 12, 2008]
6101.24
Closing the record [Rule 24].
(a) Closing of the record. Except as the
Board may otherwise order, no proof
shall be received in evidence after a
hearing is completed or, in cases submitted on the record without a hearing, after notice by the Board to the
parties that the record is closed and
that the case is ready for decision.
(b) Notice that the case is ready for decision. The Board will give written notice to the parties when the record is
closed and the case is ready for decision.
6101.25 Decisions;
25].
settlements
(a) Decisions. (1) Except as provided in
6101.52 (Rule 52) (small claims procedure), decisions of the Board will be
made in writing upon the record as prescribed in 6101.9 (Rule 9). The Board
may also take notice of any fact or law
of which a court could take judicial notice. Each of the parties will be furnished a copy of the decision certified
by the Office of the Clerk of the Board,
and the date of the receipt thereof by
each party will be established in the
record. In addition, all Board decisions
are posted weekly on the Internet. The
Board’s Internet address is: http://
www.cbca.gov.
(2) In its decision, the Board may reserve determination of the amount of
recovery for other proceedings, regardless of whether there is evidence in the
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31
GSA Board of Contract Appeals
6101.27
record concerning the amount of recovery, provided the Board notified the
parties before the hearing began that
its decision would not address the
amount of any recovery. In any instance in which the Board has reserved
its determination of the amount of recovery for other proceedings, as provided in 6101.21(a)(4) (Rule 21(a)(4)), its
decision on the question of the right to
recover shall be final so far as proceedings at the Board are concerned,
subject to the provisions of 6101.26
through 6101.28 (Rules 26 through 28).
(b) Settlements. When an appeal or application is settled, the parties may
file with the Board a stipulation setting forth the amount of the award.
The Board will adopt the parties’ stipulation by decision, provided the stipulation states the parties will not seek
reconsideration of, or relief from, the
Board’s decision, and they will not appeal the decision. The Board’s decision
under this paragraph (b) is an adjudication of the case on the merits.
[72 FR 36795, July 5, 2007,, as amended at 76
FR 50928, Aug. 17, 2011]
6101.26 Reconsideration; amendment
of decisions; new hearings [Rule
26].
(a) Grounds. Reconsideration may be
granted, a decision or order may be altered or amended, or a new hearing
may be granted, for any of the reasons
stated in 6101.27(a) (Rule 27(a)) and the
reasons established by the rules of
common law or equity applicable as between private parties in the courts of
the United States. Reconsideration or
a new hearing may be granted on all or
any of the issues. Arguments already
made and reinterpretations of old evidence are not sufficient grounds for
granting reconsideration, for altering
or amending a decision, or for granting
a new hearing. Upon granting a motion
for a new hearing, the Board will take
additional testimony and, if a decision
has been issued, either amend its findings of fact and conclusions or law or
issue a new decision.
(b) Procedure. Any motion under
6101.26 (Rule 26) shall comply with the
provisions of 6101.8 (Rule 8) and shall
set forth:
(1) The reason or reasons why the
Board should consider the motion; and
(2) The relief sought and the grounds
therefor. If the Board concludes that
the reasons asserted for its consideration of the motion are insufficient, it
may deny the motion without considering the relief sought and the grounds
asserted therefor. If the Board grants
the motion, it will issue an appropriate
order which may include directions to
the parties for further proceedings.
(c) Time for filing. In an appeal or petition, a motion for reconsideration, to
alter or amend a decision or order, or
for a new hearing shall be filed within
30 calendar days after the date the
moving party receives the decision or
order. In an application, such a motion
shall be filed within 7 working days
after the date the moving party receives the decision or order. Not later
than 30 calendar days after issuance of
a decision or order, the Board may, on
its own initiative, order reconsideration or a new hearing or alter or
amend a decision or order for any reason that would justify such action on
motion of a party.
(d) Effect of motion. A motion pending
under 6101.26 (Rule 26) does not affect
the finality of a decision or suspend its
operation.
6101.27 Relief from decision or order
[Rule 27].
(a) Grounds. The Board may relieve a
party from the operation of a final decision or order for any of the following
reasons:
(1) Newly discovered evidence which
could not have been earlier discovered,
even through due diligence;
(2) Justifiable or excusable mistake,
inadvertence, surprise, or neglect;
(3) Fraud, misrepresentation, or
other misconduct of an adverse party;
(4) The decision has been satisfied,
released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is
no longer equitable that the decision
should have prospective application;
(5) The decision is void, whether for
lack of jurisdiction or otherwise; or
(6) Any other ground justifying relief
from the operation of the decision or
order.
(b) Procedure. Any motion under
6101.27 (Rule 27) shall comply with the
provisions of 6101.8 and 6101.26(b) (Rules
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6101.28
48 CFR Ch. 61 (10–1–14 Edition)
8 and 26(b)), and will be considered and
ruled upon by the Board as provided in
6101.26 (Rule 26).
(c) Time for filing. Any motion under
6101.27 (Rule 27) shall be filed as soon as
practicable after the discovery of the
reasons therefor, but in any event no
later than 120 calendar days after the
date of the moving party’s receipt of
the decision or order from which relief
is sought. In considering the timeliness
of a motion filed under 6101.27 (Rule
27), the Board may consider when the
grounds therefor should reasonably
have been known to the moving party.
(d) Effect of motion. A motion pending
under 6101.27 (Rule 27) does not affect
the finality of a decision or suspend its
operation.
6101.28 Full
Board
consideration
[Rule 28].
(a) Requests by parties. (1) A request
for full Board consideration is not favored. Ordinarily, full Board consideration will be ordered only when it is
necessary to secure or maintain uniformity of Board decisions, or the matter to be referred is one of exceptional
importance.
(2) A request for full Board consideration may be made by either party on
any date which is both after the panel
to which the case is assigned has issued
its decision on a motion for reconsideration or relief from decision and within
10 working days after the date on
which that party receives that decision. Any party making a request for
full Board consideration shall state
concisely in the motion the precise
grounds on which the request is based.
(3) Promptly after such a request is
made, a ballot will be taken among the
judges; if a majority of them favors the
request, the request will be granted.
The result of the vote will promptly be
reported by the Board through an
order. The concurring or dissenting
view of any judge who wishes to express such a view may issue at the time
of such order or at any time thereafter.
(b) Initiation by Board. A majority of
the judges may initiate full Board consideration of a matter at any time
while the case is before the Board, no
later than the last date on which any
party may file a motion for reconsideration or relief from decision or order,
or if such a motion is filed by a party,
within ten days after a panel has resolved it. The parties will be informed
promptly, through an order, of the
matter to be considered by the full
Board. The concurring or dissenting
view of any judge who wishes to express such a view may issue at the time
of such order or at any time thereafter.
(c) Decisions. If full Board consideration is granted at the request of a
party or initiated by the Board, a vote
shall be taken promptly on the pending
matter. After this vote is taken, the
Board shall promptly, by order, issue
its determination, which shall include
the concurring or dissenting view of
any judge who wishes to express such a
view.
(d) Effect of motion. A pending request
for full Board consideration, whether
initiated by a party or by the Board,
does not affect the finality of a decision or suspend its operation.
6101.29 Clerical mistakes;
error [Rule 29].
(a) Clerical mistakes. Clerical mistakes in decisions, orders, or other
parts of the record, and errors arising
therein through oversight or inadvertence, may be corrected by the Board at
any time on its own initiative or upon
motion of a party on such terms, if
any, as the Board may prescribe. During the pendency of an appeal to another tribunal, such mistakes may be
corrected only with leave of the appellate tribunal.
(b) Harmless error. No error in the admission or exclusion of evidence, and
no error or defect in any ruling, order,
or decision of the Board, and no other
error in anything done or not done by
the Board will be a ground for granting
a new hearing or for vacating, reconsidering, modifying, or otherwise disturbing a decision or order of the Board
unless refusal to act upon such error
will prejudice a party or work a substantial injustice. At every stage of the
proceedings the Board will disregard
any error or defect that does not affect
the substantial rights of the parties.
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31
GSA Board of Contract Appeals
6101.30
6101.30 Award of fees and other expenses [Rule 30].
(a) Applications for fees and other expenses. An appropriate party in a proceeding before the Board may apply for
an award of fees and other expenses, including if applicable an award of attorney fees, under the Equal Access to
Justice Act, 5 U.S.C. 504, or any other
provision that may entitle that party
to such an award, subsequent to the
Board’s decision in the proceeding.
Until it issues a decision, the Board
will not consider a request for fees and
other expenses.
(b) Time for filing. A party seeking an
award may submit an application no
later than 30 calendar days after a final
disposition in the underlying appeal.
The Board’s decision becomes final (for
purposes of 6101.30 [Rule 30]) when it is
not appealed to the United States
Court of Appeals for the Federal Circuit within the time permitted for appeal or, if the decision is appealed,
when the time for petitioning the Supreme Court for certiorari has expired.
An application for fees or other expenses may not be filed before the
Board’s decision is final; a request for
fees or other expenses made before the
Board’s decision is final does not constitute an application.
(c) Application requirements. An application for fees and other expenses
shall:
(1) Identify the applicant and the appeal for which fees and other expenses
are sought, and the amount being
sought;
(2) Establish that all applicable prerequisites for an award have been satisfied, including a succinct statement of
why the applicant is eligible for an
award of fees and other expenses;
(3) Be accompanied by an exhibit
fully documenting any fees or expenses
being sought, including the cost of any
study, analysis, engineering report,
test, project, or similar matter. The
date and a description of all services
rendered or costs incurred shall be submitted for each professional firm or individual whose services are covered by
the application, showing the hours
spent in connection with the proceeding by each individual, a description of the particular services performed by specific date, the rate at
which each fee has been computed, any
expenses for which reimbursement is
sought, and the total amount paid or
payable by the applicant. Except in exceptional circumstances, all exhibits
supporting applications for fees or expenses sought shall be publicly available. The Board may require the applicant to provide vouchers, receipts, or
other substantiation for any fees and
other expenses claimed and/or to submit to an audit by the Government of
the claimed fees and other expenses;
(4) Be signed by the applicant or an
authorized officer, employee, or attorney of the applicant;
(5) Contain or be accompanied by a
written verification under oath or affirmation, or declaration under penalty
of perjury, that the information provided in the application is true and correct;
(6) If the applicant asserts that it is
a qualifying small business concern,
contain evidence thereof; and
(7) If the application requests reimbursement of attorney fees that exceed
the statutory rate, explain why an increase in the cost of living or a special
factor, such as the limited availability
of qualified attorneys for the proceedings involved, justifies such fees.
(d) Proceedings. (1) Within 30 calendar
days after receipt by the respondent of
an application under 6101.30 (Rule 30),
the respondent may file an answer. The
answer shall explain in detail any objections to the award requested and set
out the legal and factual bases supporting the respondent’s position. If
the respondent contends that any fees
for consultants or expert witnesses for
which reimbursement is sought in the
application exceed the highest rate of
compensation for expert witnesses paid
by the agency, the respondent shall include in the answer evidence of such
highest rate.
(2) Further proceedings shall be held
only by order of the Board and only
when necessary for full and fair resolution of the issues arising from the application. Such proceedings shall be
minimized to the extent possible and
shall not include relitigation of the
case on the merits. A request that the
Board order further proceedings under
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31
6101.31
48 CFR Ch. 61 (10–1–14 Edition)
6101.30 (Rule 30) shall describe the disputed issues and explain why additional proceedings are necessary to resolve those issues.
(e) Decision. Any award ordered by
the Board shall be paid pursuant to
6101.31 (Rule 31).
[72 FR 36795, July 5, 2007, as amended at 73
FR 26952, May 12, 2008]
6101.31 Payment
[Rule 31].
of
Board
awards
(a) Generally. When permitted by law,
payment of Board awards may be made
in accordance with 31 U.S.C. 1304.
Awards by the Board pursuant to the
Equal Access to Justice Act shall be directly payable by the respondent agency over which the applicant has prevailed in the underlying appeal.
(b) Conditions for payment. Before a
party may obtain payment of a Board
award pursuant to 31 U.S.C. 1304, one of
the following must occur:
(1) Both parties must, by execution of
a Certificate of Finality, waive their
rights to relief under 6101.26 and 6101.27
(Rules 26 and 27) and also their rights
to appeal the decision of the Board; or
(2) The time for filing an appeal must
expire.
(c) Procedure. Whenever the Board
issues a decision or an order awarding
an appellant any amount of money, it
will attach to the copy of the decision
sent to each party forms such as those
contained in the appendix to the rules
of this chapter. Unless the appellant
files a timely appeal from the decision,
the appellant will complete the Certificate of Finality, sign it, and forward it
to the person or persons who entered
an appearance in the appeal on behalf
of the respondent. Upon receipt of a
completed and executed Certificate of
Finality, unless the respondent files a
timely appeal from the decision, the
person or persons who entered an appearance in the appeal on behalf of the
respondent will promptly transmit the
appellant’s Certificate of Finality,
along with a certified copy of the
Board’s decision and any other necessary documentation, to the United
States Department of the Treasury for
payment.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26952, May 12, 2008]
6101.32 Appeal from a Board decision
[Rule 32].
(a) Record on review. When a party
has appealed a Board decision to the
United States Court of Appeals for the
Federal Circuit, the record on review
shall consist of the decision sought to
be reviewed, the record before the
Board as described in 6101.9(a)(1)
through (a)(13) (Rule 9(a)(1) through
(a)(13)), and such other material contained in the Board’s file as may be required by the Court of Appeals.
(b) Notice. At the same time a party
seeking review of a Board decision files
a notice of appeal, that party shall provide a copy of the notice to the Board.
(c) Filing of certified list of record materials. Promptly after service upon the
Board of a copy of the notice of appeal
of a Board decision, the Office of the
Clerk of the Board shall file with the
Clerk of the United States Court of Appeals for the Federal Circuit a certified
list of all documents, transcripts of
testimony, exhibits, and other materials constituting the record, or a list
of such parts thereof as the parties
may designate, adequately describing
each. The Board will retain the record
and transmit any part thereof to the
Court upon the Court’s order during
the pendency of the appeal.
(d) Request by attorney of record to review record. When a case is on appeal,
an attorney of record may request permission from the Board to sign out for
a reasonable period of time the record
on appeal to review and to copy if the
attorney is unable to gain access to the
record from another source.
6101.33 Ex parte contact; sanctions
and other proceedings [Rule 33].
(a) Standards. All parties and their
representatives, attorneys, and any expert/consultant retained by them or
their attorneys, must obey directions
and orders prescribed by the Board and
adhere to standards of conduct applicable to such parties and persons. As to
an attorney, the standards include the
rules of professional conduct and ethics
of the jurisdictions in which that attorney is licensed to practice, to the
extent that those rules are relevant to
conduct affecting the integrity of the
Board, its process, or its proceedings.
The Board will also look to voluntary
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GSA Board of Contract Appeals
6101.51
professional guidelines in evaluating
an individual’s conduct.
(b) Ex parte communications. No member of the Board or of the Board’s staff
shall entertain, nor shall any person
directly or indirectly involved in an
appeal submit to the Board or the
Board’s staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, without the
knowledge and consent of the adverse
party, regarding any matter at issue in
that appeal. This provision does not
apply to consultation among Board
members or to ex parte communications concerning the Board’s administrative functions or procedures.
(c) Sanctions. When a party or its representative or attorney or any expert/
consultant fails to comply with any direction or order issued by the Board
(including an order to provide or permit discovery), or engages in misconduct affecting the Board, its process, or its proceedings, the Board may
make such orders as are just, including
the imposition of appropriate sanctions. The sanctions may include:
(1) Taking the facts pertaining to the
matter in dispute to be established for
the purpose of the case in accordance
with the contention of the party submitting the discovery request;
(2) Forbidding challenge of the accuracy of any evidence;
(3) Refusing to allow the disobedient
party to support or oppose designated
claims or defenses;
(4) Prohibiting the disobedient party
from introducing in evidence designated documents or items of testimony;
(5) Striking pleadings or parts thereof, or staying further proceedings until
the order is obeyed;
(6) Dismissing the case or any part
thereof;
(7) Enforcing the protective order and
disciplining individuals subject to such
order for violation thereof, including
disqualifying a party’s representative,
attorney, or expert/consultant from
further participation in the case; or
(8) Imposing such other sanctions as
the Board deems appropriate.
(d) Denial of access to protected material for prior violations of protective orders. The Board may in its discretion
deny access to protected material to
any person found to have previously
violated a protective order, regardless
of who issued the order.
(e) Disciplinary proceedings. (1) In addition to the procedures in this section
6101.33 (Rule 33), the Board may discipline individual party representatives, attorneys, and experts/consultants for a violation of any Board order
or direction or standard of conduct applicable to such individual where the
violation seriously affects the integrity of the Board, its process, or its
proceedings. Sanctions may be public
or private, and may include admonishment, disqualification from a particular matter, referral to an appropriate licensing authority, or such
other action as circumstances may
warrant.
(2) The Board in its discretion may
suspend an individual from appearing
before the Board as a party representative, attorney, or expert/consultant if,
after affording such individual notice
and an opportunity to be heard, a majority of the members of the full Board
determines such a sanction is warranted.
6101.34
Seal of the Board [Rule 34].
The Seal of the Board shall be a circular boss, the outer margin of which
shall bear the legend ‘‘Civilian Board
of Contract Appeals.’’ The Seal shall be
the means of authentication of all
records, notices, orders, dismissals,
opinions, subpoenas, and certificates
issued by the Board.
6101.35–6101.50
[Reserved]
6101.51 Variation from standard proceedings [Rule 51].
The ultimate purpose of any Board
proceeding is to resolve fairly and expeditiously any dispute properly before
the Board. When, during the normal
course of a Board proceeding, the parties agree that a change in established
procedure will promote this purpose,
the Board will make that change if it is
deemed to be feasible and in the best
interest of the parties, the Board, and
the resolution of the issue(s) in controversy. Although any party may ask
the Board to vary from standard proceedings, individuals and small businesses may find such variations to be
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6101.52
48 CFR Ch. 61 (10–1–14 Edition)
especially useful. The following are examples of these changes:
(a) Establishing an expedited schedule of proceedings, such as by limiting
the times provided in 6101.1 through
6101.34 (Rules 1 through 34) for various
filings, to facilitate a prompt resolution of the case;
(b) Developing a record and rendering
a decision on the issue of entitlement
prior to reviewing the issue of quantum
in a party’s claim;
(c) Developing a record and rendering
a decision on any legal or factual issue
in advance of others when that issue is
deemed critical to resolving the case or
effecting a settlement of any items in
dispute; and
(d) Developing a record regarding relevant facts through an on-the-record
round-table discussion with sworn witnesses, counsel, and the presiding judge
rather than through formal direct and
cross-examination of each of these
same witnesses. This discussion shall
be controlled by the presiding judge. It
may be conducted, for example,
through the presentation of narrative
statements of witnesses or on an issue
by issue basis. The presiding judge may
also request that the parties’ counsel
or representatives present opening and/
or closing statements in lieu of written
briefs.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26952, May 12, 2008]
6101.52 Small claims procedure [Rule
52].
(a) Election. (1) The small claims procedure is available solely at the appellant’s election. Such election shall be
made no later than 30 calendar days
after the appellant’s receipt of the
agency answer, unless the presiding
judge enlarges the time for good cause
shown. The appellant may elect this
procedure when:
(i) There is a monetary amount in
dispute and that amount is $50,000 or
less, or
(ii)(A) There is a monetary amount
in dispute and that amount is $150,000
or less, and
(B) The appellant is a small business
concern (as that term is defined in the
Small Business Act and regulations
promulgated under that Act).
(2) At the request of the respondent,
or on its own initiative, the Board may
determine whether the amount in dispute and/or the appellant’s status
makes the election inappropriate. The
respondent shall raise any objection to
the election no later than 10 working
days after receipt of a notice of election.
(b) Decision. The presiding judge may
issue a decision, which may be in summary form, orally or in writing. A decision which is issued orally shall be reduced to writing; however, such a decision takes effect at the time it is rendered, prior to being reduced to writing. A decision shall be final and conclusive and shall not be set aside except in case of fraud. A decision shall
have no value as precedent.
(c) Procedure. Promptly after receipt
of the appellant’s election of the small
claims procedure, the Board shall establish a schedule of proceedings that
will allow for the timely resolution of
the appeal. Pleadings, discovery, and
other prehearing activities may be restricted or eliminated.
(d) Time of decision. Whenever possible, the presiding judge shall resolve
an appeal under this procedure within
120 calendar days from the Board’s receipt of the election. The time for processing an appeal under this procedure
may be extended if the appellant has
not adhered to the established schedule. Either party’s failure to abide by
the Board’s schedule may result in the
Board drawing evidentiary inferences
adverse to the party at fault.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26952, May 12, 2008]
6101.53 Accelerated procedure [Rule
53].
(a) Election. (1) The accelerated procedure is available solely at the appellant’s election, and only when there is
a monetary amount in dispute and that
amount is $100,000 or less. Such election shall be made no later than 30 calendar days after the appellant’s receipt
of the agency answer, unless the presiding judge enlarges the time for good
cause shown.
(2) At the request of the respondent,
or on its own initiative, the Board may
determine whether the amount in dispute is greater than $100,000, such that
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GSA Board of Contract Appeals
6101.54
the election is inappropriate. The respondent shall raise any objection to
the election no later than 10 working
days after receipt of a notice of election.
(b) Decision. Each decision shall be
rendered by the presiding judge with
the concurrence of one of the other
judges assigned to the panel; in the
event the two judges disagree, the
third judge assigned to the panel will
participate in the decision.
(c) Procedure. Promptly after receipt
of the appellant’s election of the accelerated procedure, the Board shall establish a schedule of proceedings that
will allow for the timely resolution of
the appeal. Pleadings may be simplified, and discovery and other prehearing activities may be restricted or
eliminated.
(d) Time of decision. Whenever possible, the Board shall resolve an appeal
under this procedure within 180 calendar days from the Board’s receipt of
the election. The time for processing
an appeal under this procedure may be
extended if the appellant has not adhered to the established schedule. Either party’s failure to abide by the
Board’s schedule may result in the
Board drawing evidentiary inferences
adverse to the party at fault.
[72 FR 36795, July 5, 2007, as amended at 73
FR 26952, May 12, 2008]
6101.54 Alternative dispute resolution
[Rule 54].
(a) Availability of alternative dispute
resolution (ADR) procedures at the Board.
The Board will make its services available for ADR proceedings to help resolve issues in controversy and claims
involving procurements, contracts (including interagency agreements), and
grants. The use of ADR will not toll
any relevant statutory time limitations.
(1) Matters not on Board’s Contract
Disputes Act (CDA) docket. Upon request, the Board will make an ADR
Neutral available for an ADR proceeding, even if a contracting officer’s
decision has not been issued or is not
contemplated. To initiate an ADR proceeding for all matters other than
docketed CDA appeals, the parties
shall jointly request ADR in writing
and direct such a request to the Board
Chairman. For agencies whose issues in
controversy do not fall within the
Board’s jurisdiction, the Board may
provide ADR services on a reimbursable basis.
(2) Docketed CDA appeals. Parties are
encouraged to consider the advantages
of using ADR techniques at any stage
of an appeal. Joint requests for ADR
services for docketed appeals should be
addressed to the Board Chairman, with
a copy to the presiding judge. ADR
may be used concurrently with standard litigation proceedings such as the
filing of pleadings and discovery, or the
presiding judge may suspend such proceedings for a reasonable period of
time while the parties attempt to resolve the appeal using ADR.
(b) Conduct of ADR—(1) Selection of
ADR Neutral. The parties may ask the
Board Chairman to appoint a judge(s)
to serve as the ADR Neutral(s). If desired, the parties may request the appointment of a particular judge(s). In a
docketed appeal, the parties may also
request that the presiding judge serve
as the ADR Neutral for the ADR proceeding. If the parties elect a non-binding ADR procedure and the implementation of the procedure does not result
in a settlement, where the procedure
has involved ex parte contact, the ADR
Neutral may retain the case for adjudication as the presiding judge, but
only if the parties and the presiding
judge all agree to such retention. If the
procedure has not involved ex parte
contact, the ADR Neutral, after considering the parties’ views, may retain the
case as the presiding judge at his/her
discretion.
(2) The ADR agreement. Before an
ADR proceeding can occur, the parties
must execute a written ADR agreement. This agreement should set forth,
among other things, the identity of the
ADR Neutral to be used, the role and
authority of the Neutral, the ADR
techniques to be employed, the scope
and extent of any discovery relating to
ADR, the location and schedule for the
ADR proceeding, and the extent to
which dispute resolution communications in conjunction with the ADR proceeding are to be kept confidential
(6101.54(b)(3) (Rule 54(b)(3))).
(3) Confidentiality of ADR communications and materials. Written material
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6101.54
48 CFR Ch. 61 (10–1–14 Edition)
prepared specifically for use in an ADR
proceeding, oral presentations made at
an ADR proceeding, and all discussions
in connection with such proceedings
are considered ‘‘dispute resolution
communications’’ as defined in 5 U.S.C.
571(5) and are subject to the confidentiality requirements of 5 U.S.C. 574.
Unless otherwise specifically agreed by
the parties, confidential dispute resolution communications shall be inadmissible as evidence in any pending or future Board proceeding involving the
parties or the issue in controversy
which is the subject of the ADR proceeding. However, evidence otherwise
admissible before the Board is not rendered inadmissible because of its use in
an ADR proceeding. The Board will not
retain written materials used in an
ADR proceeding after the proceeding is
concluded or otherwise terminated.
Parties may request a protective order
in an ADR proceeding in the manner
provided in 6101.9(c) (Rule 9(c)).
(c) Types of ADR. ADR is not defined
by any single procedure or set of procedures. Board judges, when engaged as
ADR Neutrals, most commonly use a
combination of facilitative and evaluative mediation approaches, as explained in paragraphs (c)(1) through
(c)(7) of this section. However, the
Board will consider the use of any ADR
technique or combination of techniques proposed by the parties in their
ADR agreement which is deemed to be
fair, reasonable, and in the best interest of the parties, the Board, and the
resolution of the issue(s) in controversy. The following are descriptions of some available techniques:
(1) Facilitative mediation. Facilitative
mediations usually begin with a joint
session, where the parties each make
informal presentations to one another
and the ADR Neutral regarding the
facts and circumstances giving rise to
the issues in controversy as well as an
explanation of their respective legal
positions. The ADR Neutral, as a mediator, aids the parties in settling their
dispute, frequently by meeting with
each party separately in confidential
sessions and engaging in ex parte discussions with each of the parties, for
the purpose of facilitating the formulation and transmission of settlement offers.
(2) Evaluative mediation. In addition
to engaging in facilitative mediation,
if authorized under the terms of the
parties’ ADR agreement, the ADR Neutral may also discuss informally the
strengths and weaknesses of the parties’ respective positions in either joint
sessions or confidential sessions.
(3) Mini-trial. The parties make abbreviated presentations to an ADR
Neutral who sits with the parties’ designated principal representatives as a
mini-trial panel to hear and evaluate
evidence relating to an issue in controversy. The ADR Neutral may thereafter meet with the principal representatives to attempt to mediate a
settlement. The mini-trial process may
also be a prelude to the Neutral’s provision of a non-binding advisory opinion (6101.54(c)(4) (Rule 54(c)(4))) or to
the Neutral’s rendering of a binding decision (6101.54(c)(5) (Rule 54(c)(5))).
(4) Non-binding advisory opinion. The
parties present to the ADR Neutral information upon which the Neutral
bases a non-binding, advisory opinion
regarding the merits of the dispute.
The opinion may be delivered to the
parties jointly, either orally or in writing. The manner in which the information is presented will vary, depending
upon the circumstances of the dispute
and the terms of the parties’ ADR
agreement. Presentations may range
from an informal proffer of evidence
together with limited argument from
the parties, to a more formal presentation, with oral testimony, exchange
of documentary evidence, and argument from counsel.
(5) Summary binding decision. This is a
binding ADR procedure similar to binding arbitration under which, by prior
agreement of the parties, the ADR
Neutral renders a brief written decision
which is binding, non-precedential, and
non-appealable. As in a procedure
under which the Neutral provides a
non-binding advisory opinion, the manner in which information is presented
for a summary binding decision may
vary depending on the circumstances of
the particular dispute and the wishes
of the parties as set out in their ADR
agreement.
(6) Other procedures. In addition to
other ADR techniques, including modifications to those listed in paragraphs
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GSA Board of Contract Appeals
Pt. 6101, App.
(c)(1) through (c)(5) of this section, the
parties may use ADR neutrals outside
the Board and techniques which do not
require direct Board involvement.
(7) Selective use of standard procedures.
Parties considering ADR proceedings
are encouraged to adapt for their purposes any provisions in 6101.1 through
6101.34 (Rules 1 through 34) of the
Board’s rules which they believe will be
useful.
APPENDIX TO PART 6101—FORM NOS. 1–5
FORM 1, GSA FORM 2465, NOTICE OF APPEAL.
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Pt. 6101, App.
48 CFR Ch. 61 (10–1–14 Edition)
FORM 2, NOTICE OF APPEARANCE.
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ER05JY07.000
232
GSA Board of Contract Appeals
Pt. 6101, App.
FORM 3, GSA FORM 9534, SUBPOENA.
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233
Pt. 6101, App.
48 CFR Ch. 61 (10–1–14 Edition)
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ER05JY07.002
234
GSA Board of Contract Appeals
Pt. 6101, App.
FORM 4, GOVERNMENT CERTIFICATE OF FINALITY.
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ER05JY07.003
235
Pt. 6101, App.
48 CFR Ch. 61 (10–1–14 Edition)
FORM 5, APPELLANT/APPLICANT CERTIFICATE OF FINALITY.
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ER05JY07.004
236
GSA Board of Contract Appeals
Pt. 6102
6102.202 Rules for crop insurance cases [Rule
202].
PART 6102—CROP INSURANCE
CASES
Sec.
6102.201
AUTHORITY: 7 U.S.C. 1501 et seq.; 41 U.S.C.
438(c)(2).
Scope of rules [Rule 201].
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ER05JY07.005
237
| File Type | application/pdf |
| File Modified | 2014-12-04 |
| File Created | 2014-12-04 |