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 (Revised June 27, 2000)

 

 

ARMED SERVICES BOARD OF CONTRACT APPEALS

 

Approved 1 May 1962

Revised 1 May 1969

Revised 1 September 1973

Revised 1 July 1979

 

Part 1--Charter

 

      1.  There is created the Armed Services Board of Contract Appeals which is hereby designated as the authorized representative of the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy and the Secretary of the Air Force, in hearing, considering and determining appeals by contractors from decisions of contracting officers or their authorized representatives or other authorities on disputed questions.  These appeals may be taken (a) pursuant to the Contract Disputes Act of 1978

(41 U.S.C. Sect. 601, et seq.), (b) pursuant to the provisions of contracts requiring the decision by the Secretary of Defense or by a Secretary of a Military Department or their duly authorized representative or board, or (c)  pursuant to the provisions of any directive whereby the Secretary of Defense or the Secretary of a Military Department has granted a right of appeal not contained in the contract on any matter consistent with the contract appeals procedure.  The Board may determine contract disputes for other departments and agencies by agreement.  The Board shall operate under general policies established or approved by the Under Secretary of Defense (Research and Engineering).

 

      2.  Membership of the Board shall consist of attorneys at law who have been qualified in the manner prescribed by the Contract Disputes Act of 1978.  Members of the Board are hereby designated Administrative Judges.  There shall be appointed from members of the Board a chairman and two or more vice-chairmen.  Appointment of the chairman and vice-chairmen and other members of the Board shall be made by the Under Secretary of Defense (Research and Engineering) and the Assistant Secretaries of the Military Departments responsible for procurement.  The chairman and vice-chairmen shall serve in that capacity for a two-year term unless sooner removed or reappointed for an additional term or terms.  The Under Secretary will also designate the order in which the vice-chairmen will act for the chairman in his absence.  In the absence of a vice-chairman, the chairman or acting chairman may designate a member of the Board to serve as a temporary vice-chairman.

 

      3.  It shall be the duty and obligation of the members of the Armed Services Board of Contract Appeals to decide appeals on the record of the appeal to the best of their knowledge and ability in accordance with applicable contract provisions and in accordance with law and regulation pertinent thereto.

 

      4.  The chairman of the Board shall be responsible for establishing appropriate divisions of the Board to provide for the most effective and expeditious handling of appeals.  He shall be responsible for assigning appeals to the divisions for decision without regard to the military department or other procuring agency which entered into the contract.  A division may consist of one or more members of the Board.  The chairman shall designate one member of each division as the division head.  The division heads and the chairman and vice-chairmen shall constitute the senior deciding group of the Board.  A majority of the members of a division or of the senior deciding group shall constitute a quorum for the transaction of the business of each, respectively.  Decisions of the Board shall be by majority vote of the members of a division participating and the chairman and a vice-chairman, unless the chairman refers the appeal for decision by the senior deciding group.  The decision of the Board in cases so referred to the senior deciding group shall be by majority vote of the participating members of that group.  The chairman may refer an appeal of unusual difficulty, significant precedential importance, or serious dispute within the normal decision process for decision by the senior deciding group.  An appeal involving $50,000 or less may be decided by a single member of fewer members of the Board than hereinbefore provided for cases of unlimited dollar amount, under accelerated or expedited procedures as provided in the Rules of the Board and the Contract Disputes Act of 1978.

 

      5.  The Board shall have all powers necessary and incident to the proper performance of its duties.  Subject to the approval of the Under Secretary of Defense (Research and Engineering) and the Assistant Secretaries of the Military Departments responsible for procurement, the Board shall adopt its own methods of procedure, and rules and regulations for its conduct and for the preparation and presentation of appeals and issuance of opinions.  The Military Departments and other procuring agencies shall provide legal personnel to prepare and present the contentions of the departments or agencies in relation to appeals filed with the Board.  It shall not be necessary for the Board, unless it otherwise desires, to communicate with more than one trial attorney in each of the departments or agencies concerning the preparation and presentation of appeals and the obtaining of all records deemed by the Board to be pertinent thereto.

 

      6.  Any member of the Board or any examiner, designated by the chairman, shall be authorized to hold hearings, examine witnesses, and receive evidence and argument for consideration and determination of the appeal by the designated division.  A member of the Board shall have authority to administer oaths and issue subpoenas as specified in Section 11 of the Contract Disputes Act of 1978.  The chairman may request orders of the court in cases of contumacy or refusal to obey a subpoena in the manner prescribed in that Section.

 

      7.  The chairman shall be responsible for the internal organization of the Board and for its administration.  He shall provide within approved ceilings for the staffing of the Board with non-member personnel, including hearing examiners, as may be required for the performance of the functions of the Board.  The chairman shall appoint a recorder of the Board.  Such personnel shall be responsible to and shall function under the direction, supervision and control of the chairman.

 

      8.  The Board will be serviced by the Department of the Army for administrative support for its operations as required.  Administrative support will include budgeting, funding, fiscal control, manpower control and utilization, personnel administration, security administration, supplies, and other administrative services.  The Departments of the Army, Navy, Air Force and the Office of the Secretary of Defense will participate in financing the Board’s operations on an equal basis and to the extent determined by the Assistant Secretary of Defense (Comptroller).  The cost of processing appeals for departments and agencies other than those in the Department of Defense will be reimbursed.

 

      9.  The chairman of the Board will furnish the Secretary of Defense and to the Secretaries of the Military Departments by October 31 of each year a report containing an account of the Board’s transactions and proceedings for the preceding fiscal year.  Within 30 days following the close of a calendar quarter, the chairman shall forward a report of the Board’s proceedings for the quarter to the Under Secretary of Defense (Research and Engineering), the Assistant Secretaries of the Military Departments responsible for procurement, and to the Director of the Defense Logistics Agency.  Such reports shall disclose the number of appeals received, cases heard, opinions rendered, current reserve of pending matters, and such other information as may be required.

 

      10.  The Board shall have a seal bearing the following inscription:  “Armed Services Board of Contract Appeals.”  This seal shall be affixed to all authentications of copies of records and to such other instruments as the Board may determine.

 

      11.  This revised charter is effective April 21, 1980.

 

 

      APPROVED:

 

W. GRAHAM CLAYTOR, JR.

Deputy Secretary of Defense

 

CLIFFORD L. ALEXANDER, JR.

Secretary of the Army

 

E. HIDALGO

Secretary of the Navy

 

HANS M. MARK

Secretary of the Air Force

 

 


ARMED SERVICES BOARD OF CONTRACT APPEALS

 

Part 2--Rules

 

Approved 15 July 1963

Revised 1 May 1969

Revised 1 September 1973

Revised 30 June 1980

 

PREFACE

 

I.  JURISDICTION FOR CONSIDERING APPEALS

 

      The Armed Services Board of Contract Appeals (referred to herein as the Board) shall consider and determine appeals from decisions of contracting officers pursuant to the Contract Disputes Act of 1978 (Public Law 95-563, 41 U.S.C. 601-613) relating to contracts made by (i) the Departments of Defense, Army, Navy and Air Force or (ii) any other executive agency when such agency or the Administrator for Federal Procurement Policy has designated the Board to decide the appeal.

 

II.  LOCATION AND ORGANIZATION OF THE BOARD

 

      (a)  The Board’s address is Skyline Six, 5109 Leesburg Pike, 7th Floor, Falls Church, VA  22041-3217, telephone (703) 681-8500 (receptionist), (703) 681-8502 (recorder).

 

      (b)  The Board consists of a chairman, two or more vice-chairmen, and other members, all of whom are attorneys at law duly licensed by a state, commonwealth, territory, or the District of Columbia.  Board members are designated Administrative Judges.

 

      (c)  There are a number of divisions of the Armed Services Board of Contract Appeals, established by the Chairman of the Board in such manner as to provide for the most effective and expeditious handling of appeals.  The Chairman and a Vice-Chairman of the Board act as members of each division.  Appeals are assigned to the divisions for decision without regard to the military department or other procuring agency which entered into the contract involved.  Hearing may be held by a designated member (Administrative Judge), or by a duly authorized examiner.  Except for appeals processed under the expedited or accelerated procedure, the decision of a majority of a division constitutes the decision of the Board, unless the chairman refers the appeal to the Board’s Senior Deciding Group (consisting of the chairman,, vice-chairmen and all division heads), in which event a decision of a majority of that group constitutes the decision of the Board.  Appeals referred to the Senior Deciding Group are those of unusual difficulty, significant precedential importance, or serious dispute within the normal division decision process.  For decisions of appeals processed under the expedited or accelerated procedure, see Rules 12.2(c) and 12.3(b).

 

PRELIMINARY PROCEDURES

 

      1.  Appeals, How Taken

 

              (a)  Notice of an appeal shall be in writing and mailed or otherwise furnished to the Board within 90 days from the date of receipt of a contracting officer’s decision.  A copy thereof shall be furnished to the contracting officer from whose decision the appeal is taken.

 

              (b)  Where the contractor has submitted a claim of $50,000 or less to the contracting officer and has requested a written decision within 60 days from receipt of the request, and the contracting officer has not done so, the contractor may file a notice of appeal as provided in subparagraph (a) above, citing the failure of the contracting officer to issue a decision.

 

              (c)  Where the contractor has submitted a properly certified claim over $50,000 to the contracting officer or has requested a decision by the contracting officer which presently involves no monetary amount pursuant to the Disputes clause, and the contracting officer has failed to issue a decision within a reasonable time, taking into account such factors as the size and complexity of the claim, the contractor may file a notice of appeal as provided in subparagraph (a) above, citing the failure of the contracting officer to issue a decision.

 

              (d)  Upon docketing of appeals filed pursuant to (b) or (c) hereof, the Board may, at its option, stay further proceedings pending issuance of a final decision by the contracting officer within such period of time as is determined by the Board.

 

              (e)  In lieu of filing a notice of appeal under (b) or (c) hereof, the contractor may request the Board to direct the contracting officer to issue a decision in a specified period of time, as determined by the Board, in the event of undue delay on the part of the contracting officer.

 

      2.  Notice of Appeal, Contents of

 

      A notice of appeal should indicate that an appeal is being taken and should identify the contract (by number), the department and/or agency involved in the dispute, the decision from which the appeal is taken, and the amount in dispute, if known.  The notice of appeal should be signed personally by the appellant (the contractor taking the appeal), or by the appellant’s duly authorized representative or attorney.  The complaint referred to in Rule 6 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

 

      3.  Docketing of Appeals

 

      When a notice of appeal in any form has been received by the Board, it shall be docketed promptly.  Notice in writing shall be given to the appellant with a copy of these rules, and to the contracting officer.

 

      4.  Preparation, Content, Organization, Forwarding, and Status of Appeal File

 

              (a)  Duties of Contracting Officer--Within 30 days of receipt of an appeal, or notice that an appeal has been filed, the contracting officer shall assemble and transmit to the Board an appeal file consisting of all documents pertinent to the appeal, including:

 

                    (1)  the decision from which the appeal is taken;

 

                    (2)  the contract, including pertinent specifications, amendments, plans and drawings;

 

                    (3)  all correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;

 

                    (4)  transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and

 

                    (5)  any additional information considered relevant to the appeal.  Within the same time above specified the contracting officer shall furnish the appellant a copy of each document he transmits to the Board, except those in subparagraph (a)(2) above.  As to the latter, a list furnished appellant indicating specific contractual documents transmitted will suffice.

 

              (b)  Duties of the Appellant--Within 30 days after receipt of a copy of the appeal file assembled by the contracting officer, the appellant shall transmit to the Board any documents not contained therein which he considered relevant to the appeal, and furnish two copies of such documents to the government trial attorney.

 

              (c)  Organization of Appeal File--Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

 

              (d)  Lengthy Documents--Upon request by either party, the Board may waive the requirement to furnish to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when inclusion would be burdensome.  At the time a party files with the Board a document as to which such a waiver has been granted he shall notify the other party that the document or a copy is available for inspection at the offices of the Board or of the party filing same.

 

              (e)  Status of Documents in Appeal File--Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Board will render its decision.  However, a party may object, for reasons stated, to consideration of a particular document or documents reasonably in advance of hearing or, if there is no hearing, of settling the record.  If such objection is made, the Board shall remove the document or documents from the appeal file and permit the party offering the document to move its admission as evidence in accordance with Rules 13 and 20.

 

              (f)  Notwithstanding the foregoing, the filing of the Rule 4(a) and (b) documents may be dispensed with by the Board either upon request of the appellant in his notice of appeal or thereafter upon stipulation of the parties.

 

      5.  Motions

 

              (a)  Any motion addressed to the jurisdiction of the Board shall be promptly filed.  Hearing on the motion shall be afforded on application of either party.  However, the Board may defer its decision on the motion pending hearing on both the merits and the motion.  The Board shall have the right at any time and on its own initiative to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon.

 

              (b)  The Board may entertain and rule upon other appropriate motions.

 

      6.  Pleadings

 

              (a)  Appellant--Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise and direct statements of each of its claims.  Appellant shall also set forth the basis, with appropriate reference to contract provisions, of each claim and the dollar amount claimed, to the extent known.  This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form is required.  Upon receipt of the complaint, the Board shall serve a copy of it upon the Government.  Should the complaint not be received within 30 days, appellant’s claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth its complaint and the Government shall be so notified.

 

              (b)  Government--Within 30 days from receipt of the complaint, or the aforesaid notice from the Board, the Government shall prepare and file with the Board an original and two copies of an answer thereto.  The answer shall set forth simple, concise and direct statements of Government’s defenses to each claim asserted by appellant, including any affirmative defenses available.  Upon receipt of the answer, the Board shall serve a copy upon appellant.  Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified.

 

              (c)  A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.  The Board, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rules 11, 13 or 20.  The determination of foreign law shall be treated as a ruling on a question of law.

 

      7.  Amendments of Pleadings or Record 

 

      The Board upon its own initiative or upon application by a party may order a party to make a more definite statement of the complaint or answer, or to reply to an answer.  The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend its pleading upon conditions fair to both parties.  When issues within the proper scope of the appeal, but not raised by the pleadings, are tried by express or implied consent of the parties, or by permission of the Board, they shall be treated in all respects as if they had been raised therein.  In such instances, motions to amend the pleadings to conform to the proof may be entered, but are not required.  If evidence is objected to a hearing on the ground that it is not within the issues raised by the pleadings, it may be admitted within the proper scope of the appeal, provided, however, that the objecting party may be granted a continuance if necessary to enable it to meet such evidence.

 

      8.  Hearing Election

 

      After filing of the Government’s answer or notice from the Board that it has entered a general denial on behalf of the Government, each party shall advise whether it desires a hearing as prescribed in Rules 17 through 25, or whether it elects to submit its case on the record without a hearing, as prescribed in Rule 11.

 

      9.  Prehearing Briefs

 

      Based on an examination of the pleadings, and its determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to Rule 8.  If the Board does not require prehearing briefs either party may, in its discretion and upon appropriate and sufficient notice to the other party, furnish a prehearing brief to the Board.  In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall simultaneously be furnished to the other party as previously arranged.

 

      10.  Prehearing or Presubmission Conference

 

              (a)  Whether the case is to be submitted pursuant to Rule 11, or heard pursuant to Rules 17 through 25, the Board may upon its own initiative, or upon the application of either party, arrange a telephone conference or call upon the parties to appear before an administrative judge or examiner of the Board for a conference to consider:

 

                    (1)  simplification, clarification, or severing of the issues;

 

                    (2)  the possibility of obtaining stipulations, admissions, agreements and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;

 

                    (3)  agreements and rulings to facilitate discovery;

 

                    (4)  limitation of the number of expert witnesses, or avoidance of similar cumulative evidence;

 

                    (5)  the possibility of agreement disposing of any or all of the issues in dispute; and

 

                    (6)  such other matters as may aid in the disposition of the appeal.

 

              (b)  The administrative judge or examiner of the Board shall make such rulings and orders as may be appropriate to aid in the disposition of the appeal.  The results of pre-trial conferences, including any rulings and orders, shall be reduced to writing by the administrative judge or examiner and this writing shall thereafter constitute a part of the record.

 

      11.  Submission Without a Hearing

 

      Either party may elect to waive a hearing and to submit its case upon the record before the Board, as settled pursuant to Rule 13.  Submission of a case without hearing does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses.  Affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the Board record.  The Board may permit such submissions to be supplemented by oral argument (transcribed if requested), and by briefs arranged in accordance with Rule 23.

 

      12.  Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures

 

      These procedures are available solely at the election of the appellant.

 

      12.1  Elections to Utilize SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures

 

              (a)  In appeals where the amount in dispute is $10,000 or less, the appellant may elect to have the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure requiring decision of the appeal, whenever possible, within 120 days after the Board receives written notice of the appellant’s election to utilize this procedure.  The details of this procedure appear in section 12.2 of this Rule.  An appellant may elect the ACCELERATED procedure rather than the SMALL CLAIMS (EXPEDITED) procedure for any appeal eligible for the SMALL CLAIMS (EXPEDITED) procedure.

 

              (b)  In appeals where the amount in dispute is $50,000 or less, the appellant may elect to have the appeal processed under an ACCELERATED procedure requiring decision of the appeal, whenever possible, within 180 days after the Board receives written notice of the appellant’s election to utilize this procedure.  The details of this procedure appear in section 12.3 of this Rule.

 

              (c)  The appellant’s election of either the SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure may be made by written notice within 60 days after receipt of notice of docketing, unless such period is extended by the Board for good cause.  The election may not be withdrawn except with permission of the Board and for good cause.

 

      12.2  The SMALL CLAIMS (EXPEDITED) Procedure

 

              (a)  In cases proceeding under the SMALL CLAIMS (EXPEDITED) procedure, the following time periods shall apply:

 

                    (1)  Within 10 days from the Government’s first receipt from either the appellant or the Board of a copy of the appellant’s notice of election of the SMALL CLAIMS (EXPEDITED) procedure, the Government shall send the Board a copy of the contract, the contracting officer’s final decision, and the appellant’s claim letter or letters, if any; remaining documents required under Rule 4 shall be submitted in accordance with times specified in that rule unless the Board otherwise directs.

 

                    (2)  Within 15 days after the Board has acknowledged receipt of appellant’s notice of election, the assigned administrative judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:  (i) identify and simplify the issues; (ii) establish a simplified procedure appropriate to the particular appeal involved; (iii) determine whether either party wants a hearing, and if so, fix a time and place therefore; (iv) require the Government to furnish all the additional documents relevant to the appeal; and (v) establish an expedited schedule for resolution of the appeal.

 

              (b)  Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the requirement to conduct the hearing on the date scheduled, or if no hearing is scheduled, to close the record on a date that will allow decisions within the 120-day limit.  The Board, in its discretion, may impose shortened time periods for any actions prescribed or allowed under these rules, as necessary to enable the Board to decide the appeal within the 120-day limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.

 

              (c)  Written decision by the Board in cases processed under the SMALL CLAIMS (EXPEDITED) procedure will be short and contain only summary findings of fact and conclusions.  Decisions will be rendered for the Board by a single administrative judge.  If there has been a hearing, the administrative judge presiding at the hearing may, in the judge’s discretion, at the conclusion of the hearing and after entertaining such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal.  Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the starting date for the period for filing a motion for reconsideration under Rule 29.

 

              (d)  A decision against the Government or the contractor shall have no value as precedent, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside.

 

      12.3  The ACCELERATED Procedure

 

              (a)  In cases proceeding under the ACCELERATED procedure, the parties are encouraged, to the extent possible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.  The Board, in its discretion, may shorten time periods prescribed or allowed elsewhere in these Rules, including Rule 4, as necessary to enable the Board to decide the appeal within 180 days after the Board has received the appellant’s notice of election of the ACCELERATED procedure, and may reserve 30 days for preparation of the decision.

 

              (b)  Written decision by the Board in cases processed under the ACCELERATED procedure will normally be short and contain only summary findings of fact and conclusions.  Decisions will be rendered for the Board by a single administrative judge with the concurrence of a vice-chairman, or by a majority among these two and the chairman in case of disagreement.  Alternatively, in cases where the amount in dispute is $10,000 or less to which the ACCELERATED procedure has been elected and in which there has been a hearing, the single administrative judge presiding at the hearing may, with the concurrence of both parties, at the conclusion of the hearing and after entertaining such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal.  Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes, and to establish the starting date for the period for filing a motion for reconsideration under Rule 29.

 

      12.4  Motions for Reconsideration in Rule 12 Cases

 

      Motions for Reconsideration of cases decided under either the SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be decided within the original 120-day or 180-day limit, but all such motions shall be processed and decided rapidly so as to fulfill the intent of this Rule.

 

      13.  Settling the Record

 

              (a)  The record upon which the Board’s decision will be rendered consists of the documents furnished under Rules 4 and 12, to the extent admitted in evidence, and the following items, if any:  pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, post-hearing briefs, and documents which the Board has specifically designated be made a part of the record.  The record will, at all reasonable times, be available for inspection by the parties at the office of the Board.

 

              (b)  Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.

 

              (c)  The weight to be attached to any evidence of record will rest within the sound discretion of the Board.  The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.

 

      14.  Discovery¾Depositions

 

              (a)  General Policy and Protective Orders--The parties are encouraged to engage in voluntary discovery procedures.  In connection with any deposition or other discovery procedure, the Board may make any order required to protect a party or person from annoyance, embarrassment, or undue burden or expense.  Those orders may include limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

 

              (b)  When Depositions Permitted--After an appeal has been docketed and complaint filed, the parties may mutually agree to, or the Board may, upon application of either party, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purpose of discovery.  The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.

 

              (c)  Orders on Depositions--The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or failing such agreement, governed by order of the Board.

 

              (d)  Use as Evidence--No testimony taken by depositions shall be considered as part of the evidence in the hearing of an appeal until such testimony is offered and received in evidence at such hearing.  It will not ordinarily be received in evidence if the deponent is present and can testify at the hearing.  In such instances, however, the deposition may be used to contradict or impeach the testimony of the deponent given at the hearing.  In cases submitted on the record, the Board may, in its discretion, receive depositions to supplement the record.

 

              (e)  Expenses--Each party shall bear its own expenses associated with the taking of any deposition.

 

              (f)  Subpoenas--Where appropriate, a party may request the issuance of a subpoena under the provisions of Rule 21.

 

      15.  Interrogatories to Parties, Admission of Facts, and Production and Inspection of Documents

 

      After an appeal has been docketed and complaint filed with the Board, a party may serve on the other party:  (a) written interrogatories to be answered separately in writing, signed under oath and answered or objected to within 45 days after service; (b) a request for the admission of specified facts and/or the authenticity of any documents, to be answered or objected to within 45 days after service; the factual statements and the authenticity of the documents to be deemed admitted upon failure of a party to respond to the request; and (c) a request for the production, inspection and copying of any documents or objects not privileged, which reasonably may lead to the discovery of admissible evidence, to be answered or objected to within 45 days after service.  The Board may allow a shorter or longer time.  Any discovery engaged in under this Rule shall be subject to the provisions of Rule 14(a) with respect to general policy and protective orders, and of Rule 35 with respect to sanctions.

 

      16.  Service of Papers Other Than Subpoenas

 

      Papers shall be served personally or by mail, addressed to the party upon whom service is to be made.  Copies of complaints, answers and briefs shall be filed directly with the Board.  The party filing any other paper with the Board shall send a copy thereof to the opposing party, noting on the paper filed with the Board that a copy has been so furnished.  Subpoenas shall be served as provided in Rule 21.

 

HEARINGS

 

      17.  Where and When Held

 

      Hearings will be held at such places determined by the Board to best serve the interests of the parties and the Board.  Hearings will be scheduled at the discretion of the Board with due consideration to the regular order of appeals, Rule 12 requirements, and other pertinent factors.  On request or motion by either party and for good cause, the Board may, in its discretion, adjust the date of a hearing.

 

      18.  Notice of Hearings

 

      The parties shall be given at least 15 days notice of the time and place set for hearings.  In scheduling hearings, the Board will consider the desires of the parties and the requirement for just and inexpensive determination of appeals without unnecessary delay.  Notices of hearings shall be promptly acknowledged by the parties.

 

 

      19.  Unexcused Absence of a Party

 

      The unexcused absence of a party at the time and place set for hearing will not be occasion for delay.  In the event of such absence, the hearing will proceed and the case will be regarded as submitted by the absent party as provided in Rule 11.

 

      20.  Hearings:  Nature, Examination of Witnesses

 

              (a)  Nature of Hearings--Hearings shall be as informal as may be reasonable and appropriate under the circumstances.  Appellant and the Government may offer such evidence as they deem appropriate and as would be admissible under the Federal Rules of Evidence or in the sound discretion of the presiding administrative judge or examiner.  Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing.  The parties may stipulate the testimony that would be given by a witness if the witness were present.  The Board may require evidence in addition to that offered by the parties.

 

              (b)  Examination of Witnesses--Witnesses before the Board will be examined orally under oath or affirmation, unless the presiding administrative judge or examiner shall otherwise order.  If the testimony of a witness is not given under oath, the Board may advise the witness that his statements may be subject to the provisions of Title 18, United States Code, sections 287 and 1001, and any other provision of law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any department or agency thereof.

 

      21.  Subpoenas

 

              (a)  General--Upon written request of either party filed with the recorder, or on his own initiative, the administrative judge to whom a case is assigned or who is otherwise designated by the chairman may issue a subpoena requiring:

 

                    (i)  testimony at a deposition--the deposing of a witness in the city or county where he resides or is employed or transacts his business in person, or at another location convenient for him that is specifically determined by the Board;

 

                    (ii)  testimony at a hearing--the attendance of a witness for the purpose of taking testimony at a hearing; and

 

                    (iii)  production of books and papers--in addition to (i) or (ii), the production by the witness at the deposition or hearing of books and papers designated in the subpoena.

 

              (b)  Voluntary Cooperation--Each party is expected (i) to cooperate and make available witnesses and evidence under its control as requested by the other party, without issuance of a subpoena, and (ii) to secure voluntary attendance of desired third-party witnesses and production of desired third-party books, papers, documents, or tangible things whenever possible.

 

              (c)  Requests for Subpoena

 

                    (1)  A request for subpoena shall normally be filed at least:

 

                          (i)  15 days before a scheduled deposition where the attendance of a witness at a deposition is sought; or

 

                          (ii)  30 days before a scheduled hearing where the attendance of a witness at a hearing is sought.

 

      In its discretion the Board may honor requests for subpoenas not made within these time limitations.

 

                    (2)  A request for a subpoena shall state the reasonable scope and general relevance to the case of the testimony and of any books and papers sought.

 

              (d)  Requests to Quash or Modify--Upon written request by the person subpoenaed or by a party, made within 10 days after service but in any event not later than the time specified in the subpoena for compliance, the Board may (i) quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown, or (ii) require the person in whose behalf the subpoena was issued to advance the reasonable cost of producing subpoenaed books and papers.  Where circumstances require, the Board may act upon such a request at any time after a copy has been served upon the opposing party.

 

              (e)  From; Issuance

 

                    (1)  Every subpoena shall state the name of the Board and the title of the appeal, and shall command each person to whom it is directed to attend and give testimony, and if appropriate, to produce specified books and papers at a time and place therein specified.  In issuing a subpoena to a requesting party, the administrative judge shall sign the subpoena and may, in his discretion, enter the name of the witness and otherwise leave it blank.  The party to whom the subpoena is issued shall complete the subpoena before service.

 

                    (2)  Where the witness is located in a foreign country, a letter rogatory or subpoena may be issued and served under the circumstances and in the manner provided in 28 U.S.C. 1781-1784.

 

              (f)  Service

 

                    (1)  The party requesting issuance of a subpoena shall arrange for service.

 

                    (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 personally delivering a copy to that person and tendering the fees for one day’s attendance and the mileage provided 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.

 

                    (3)  The party at whose instance a subpoena is issued shall be responsible for the payment of fees and mileage of the witness and of the officer who serves the subpoena.  The failure to make payment of such charges on demand may be deemed by the Board as a sufficient ground for striking the testimony of the witness and the books or papers the witness has produced.

 

              (g)  Contumacy or Refusal to Obey a Subpoena--In 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 will apply to the Court through the Attorney General of the United States for an order requiring the person to appear before the Board or a member thereof to give testimony or produce evidence or both.  Any failure of any such person to obey the order of the Court may be punished by the Court as a contempt thereof.

 

      22.  Copies of Papers

 

      When books, records, papers, or documents have been received in evidence, a true copy thereof or of such part thereof as may be material or relevant may be substituted therefor, during the hearing or at the conclusion thereof.

 

      23.  Post-Hearing Briefs

 

      Post-hearing briefs may be submitted upon such terms as may be directed by the presiding administrative judge or examiner at the conclusion of the hearing.

 

      24.  Transcript of Proceedings

 

      Testimony and argument at hearings shall be reported verbatim, unless the Board otherwise orders.  Waiver of transcript may be especially suitable for hearings under Rule 12.2.  Transcripts of the proceedings shall be supplied to the parties at such rates as may be established by contract between the Board and the reporter, provided that ordinary copy of transcript shall be supplied to the appellant at an amount no greater than the cost of duplication.

 

      25.  Withdrawal of Exhibits

 

      After a decision has become final the Board may, upon request and after notice to the other party, in its discretion permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto.  The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.

 

REPRESENTATION

 

      26.  The Appellant

 

      An individual appellant may appear before the Board in person, a corporation by one of its officers; and a partnership or joint venture by one of its members; or any of  these by an attorney at law duly licensed in any state, commonwealth, territory, the District of Columbia, or in a foreign country.  An attorney representing an appellant shall file a written notice of appearance with the Board.

 


      27.  The Government

 

      Government counsel may, in accordance with their authority, represent the interest of the Government before the Board.  They shall file notices of appearance with the Board, and notice thereof will be given appellant or appellant’s attorney in the form specified by the Board from time to time.

 

DECISIONS

 

      28.  Decisions

 

              (a)  Decisions of the Board will be made in writing and authenticated copies of the decision will be forwarded simultaneously to both parties.  The rules of the Board and all final orders and decisions (except those required for good cause to be held confidential and not cited as precedents) shall be open for public inspection at the offices of the Board.  Decisions of the Board will be made solely upon the record, as described in Rule 13.

 

              (b)  Any monetary award to a contractor by the Board shall be promptly paid in accordance with the procedures provided by section 1302 of the Act of July 27, 1956

(70 Stat. 694, as amended; 31 U.S.C. 724a).  To assure prompt payment the Recorder will forward a waiver form to each party with the decision.  If the parties do not contemplate an appeal or motion for reconsideration, they will execute waivers which so state, and return them to the Recorder.  The Recorder will forward the waivers and a certified copy of the award decision to the General Accounting Office for certification for payment.

 

MOTION FOR RECONSIDERATION

 

      29.  Motion for Reconsideration

 

      A motion for reconsideration may be filed by either party.  It shall set forth specifically the grounds relied upon to sustain the motion.  The motion shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion.

 

SUSPENSION, DISMISSALS AND DEFAULTS: REMANDS

 

      30.  Suspensions; Dismissal Without Prejudice

 

      The Board may suspend the proceedings by agreement of counsel for settlement discussions, or for good cause shown.  In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board.  Where the suspension has continued, or may continue, for an inordinate length of time, the Board may, in its discretion, dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed.  Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice.

 

      31.  Dismissal or Default for Failure to Prosecute or Defend

 

      Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may, in the case of a default by the appellant, issue an order to show cause why the appeal should not be dismissed or, in the case of a default by the Government, issue an order to show cause why the Board should not act thereon pursuant to Rule 35.  If good cause is not shown, the Board may take appropriate action.

 

      32.  Remand from Court

 

      Whenever any court remands a case to the Board for further proceedings, each of the parties shall, within 20 days of such remand, submit a report to the Board recommending procedures to be followed so as to comply with the court’s order.  The Board shall consider the reports and enter special orders governing the handling of the remanded case.  To the extent the court’s directive and time limitations permit, such orders shall conform to these rules.

 

TIME, COMPUTATION AND EXTENSIONS

 

      33.  Time, Computation and Extensions

 

              (a)  Where possible, procedural actions should be taken in less time than the maximum time allowed.  Where appropriate and justified, however, extensions of time will be granted.  All requests for extensions of time shall be in writing.

 

              (b)  In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.

 

EX PARTE COMMUNICATIONS

 

      34.  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, regarding any matter at issue in an appeal.  This provision does not apply to consultation among Board members or to ex parte communications concerning the Board’s administrative functions or procedures.

 

SANCTIONS

 

      35.  Sanctions

 

      If any party fails or refuses to obey an order issued by the Board, the Board may then make such order as it considers necessary to the just and expeditious conduct of the appeal.

 

EFFECTIVE DATE AND APPLICABILITY

 

      36.  Effective Date

 

      These rules shall apply (i) mandatorily, to all appeals relating to contracts entered into on or after 1 March 1979, and (ii) at the contractor’s election, to appeals relating to earlier contracts, with respect to claims pending before the contracting officer on

1 March 1979 or initiated thereafter.

 

      Pursuant to the Charter of the Armed Services Board of Contract Appeals, the attached rules are hereby approved for use and application to appeals to the Armed Services Board of Contract Appeals under the Contract Disputes Act of 1978.

 

 

 

 

(signed) WILLIAM J. PERRY (30 JUN 1980)

UNDER SECRETARY OF DEFENSE FOR

RESEARCH AND ENGINEERING

 

(signed) PERCY A. PIERRE

ASSISTANT SECRETARY OF THE ARMY

(RESEARCH, DEVELOPMENT AND

ACQUISITION)

 

(signed) J. A. DOYLE

ASSISTANT SECRETARY OF THE NAVY

(MANPOWER, RESERVE AFFAIRS AND

LOGISTICS)

 

(signed) EUGENE H. KOPF

(ACTING) ASSISTANT SECRETARY OF THE AIR FORCE

(RESEARCH, DEVELOPMENT AND LOGISTICS)

 

 

 


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