Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure of the Civilian Board of Contract Appeals, 36794-36819 [07-3064]

Agencies

• General Services Administration

[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36794-36819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3064]



[[Page 36793]]

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Part III





General Services Administration





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48 CFR Parts 6101, 6102, et al.



 Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure of 
the Civilian Board of Contract Appeals; Interim Rule

Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / Rules 
and Regulations

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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 6101, 6102, 6103, 6104, and 6105

[GSA BCA Amendment 2006-01; BCA Case 2006-61-1]
RIN 3090-AI29


Board of Contract Appeals; BCA Case 2006-61-1; Rules of Procedure 
of the Civilian Board of Contract Appeals

AGENCY: General Services Administration (GSA), Civilian Board of 
Contract Appeals.

ACTION: Interim rule.

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SUMMARY: This document contains the rules of procedure of the Civilian 
Board of Contract Appeals (Board), which will govern all proceedings 
before the Board. The Board was established within GSA by section 847 
of the National Defense Authorization Act for Fiscal Year 2006 to hear 
and decide contract disputes between Government contractors and 
Executive agencies (other than the Department of Defense, the 
Department of the Army, the Department of the Navy, the Department of 
the Air Force, the National Aeronautics and Space Administration, the 
United States Postal Service, the Postal Rate Commission, and the 
Tennessee Valley Authority) under the provisions of the Contract 
Disputes Act of 1978 and regulations and rules issued thereunder. 
Effective January 6, 2007, boards of contract appeals that existed at 
the General Services Administration and the Departments of Agriculture, 
Energy, Housing and Urban Development, Interior, Labor, Transportation, 
and Veterans Affairs were terminated, and their cases were transferred 
to the new Civilian Board of Contract Appeals. The Board has 
jurisdiction as provided by section 8(d) of the Contract Disputes Act 
of 1978, 41 U.S.C. 607(d). In addition, the Board will conduct 
proceedings as required or permitted under other statutes or 
regulations. The Board intends to issue final, revised rules after 
considering all comments on the interim rule.

DATES: Effective Date: This interim rule is effective July 5, 2007.
    Comment Date: Interested parties should submit written comments to 
the Board of Contract Appeals on or before September 28, 2007, to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by CBCA Amendment 2006-01, BCA 
case 2006-61-1, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``General Services Administration'' as the agency of 
choice. At the ``Keyword'' prompt, type in the BCA case number (for 
example, BCA Case 2006-61-1) and click on the ``Submit'' button. You 
may also search for any document by clicking on the ``Advanced search/
document search'' tab at the top of the screen, selecting from the 
agency field ``General Services Administration'', and typing the BCA 
case number in the keyword field. Select the ``Submit'' button.
     Fax: 202-606-0019.
     Mail: General Services Administration, Civilian Board of 
Contract Appeals, ATTN: Margaret Pfunder, 1800 F Street, NW, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite CBCA Amendment 
2006-01, BCA case 2006-61-1, in all correspondence related to this 
case. All comments received will be posted without change to https://
www.regulations.gov, including any personal and/or business 
confidential information provided.

FOR FURTHER INFORMATION CONTACT Margaret S. Pfunder, Chief Counsel, 
Civilian Board of Contract Appeals, telephone (202) 606-8800, internet 
address Margaret.Pfunder@gsa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    The Civilian Board of Contract Appeals was established within the 
General Services Administration (GSA) by section 847 of the National 
Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163. 
Effective January 6, 2007, the boards of contract appeals that existed 
at the General Services Administration and the Departments of 
Agriculture, Energy, Housing and Urban Development, Interior, Labor, 
Transportation, and Veterans Affairs were terminated, and their cases 
were transferred to the new Civilian Board of Contract Appeals. The 
Civilian Board was established to hear and decide contract disputes 
between Government contractors and Executive agencies (other than the 
Department of Defense, the Department of the Army, the Department of 
the Navy, the Department of the Air Force, the National Aeronautics and 
Space Administration, the United States Postal Service, the Postal Rate 
Commission, and the Tennessee Valley Authority) under the provisions of 
the Contract Disputes Act of 1978 and regulations and rules issued 
thereunder. The Board will also conduct other proceedings as required 
or permitted under statutes or regulations.
    Such other proceedings include the resolution of disputes involving 
grants and contracts under the Indian Self-Determination and Education 
Assistance Act, 25 U.S.C. 450, et seq. Because jurisdiction over these 
disputes is vested by statue, 25 U.S.C. 450m-1(d), in the Department of 
the Interior Board of Contract Appeals, section 847(e) of the National 
Defense Authorization Act for Fiscal Year 2006 reassigns that 
jurisdiction to the Civilian Board of Contract Appeals.
    Such other proceedings also include the resolution of disputes 
between insurance companies and the Department of Agriculture's Risk 
Management Agency (RMA) involving actions of the Federal Crop Insurance 
Corporation (FCIC) pursuant to the Federal Crop Insurance Act, 7 U.S.C. 
1501, et seq. These disputes were formerly resolved by the Department 
of Agriculture Board of Contract Appeals, and this authority has been 
transferred to the Civilian Board of Contract Appeals under an 
agreement with the Secretary of Agriculture, as permitted under section 
42(c)(2) of the Office of Federal Procurement Policy Act, 41 U.S.C. 
438(c)(2).
    In addition, other proceedings that the Civilian Board will conduct 
include several types of cases heard by the General Services Board of 
Contract Appeals by delegation from the Administrator of General 
Services. Effective January 6, 2007, the Administrator of General 
Services redelegated those cases to the Civilian Board of Contract 
Appeals. Those cases include the following:
     Pursuant to 31 U.S.C. 3726(i)(1), requests by carriers or 
freight forwarders to review actions taken by the Audit Division of the 
General Services Administration's Office of Transportation and Property 
Management;
     Pursuant to 31 U.S.C. 3702, claims by Federal civilian 
employees against the United States for reimbursement of (1) expenses 
incurred while on official temporary duty travel and (2) expenses 
incurred in connection with relocation to a new duty station; and
     Pursuant to section 204 of the General Accounting Office 
Act of 1996, Pub. L. 104-316, requests of agency disbursing or 
certifying officials, or agency heads, on questions involving payment 
of travel or relocation expenses that were formerly considered by the 
Comptroller General under 31 U.S.C. 3529.

[[Page 36795]]

    These rules of procedure are based on and do not differ in any 
substantial way from the rules of procedure which existed at the 
predecessor civilian agency boards. The rules of the predecessor 
civilian agency boards all had the same general intent and coverage. 
There were differences among the rules in terms of both structure and 
wording, and no two civilian agency boards had identical sets of rules. 
In drafting rules of procedure for the Civilian Board, we studied the 
rules of procedure of all of the civilian agency boards and developed 
an interim final rule which blends those rules. The interim final rule 
maintains most of the rules all of the former boards had in place.
    Questions have been raised about the scope of the Board's subpoena 
authority over federal agencies. The Department of Justice has recently 
provided advice concluding that the statute that granted subpoena 
authority to the separate agency boards of contract appeals, and that 
provides such authority to the consolidated Board, does not provide the 
necessary legal authority for a board to enforce a subpoena against a 
federal agency. Therefore, the agency does not interpret the term 
``person'' where it is used in 6101.16 to include the United States or 
component federal agencies.

B. Regulatory Flexibility Act

    The General Services Administration certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq., because the rule does not impose any additional 
costs on either small or large businesses.

C. Executive Order 12866, Regulatory Planning and Review

    OMB reviewed this rule under Executive Order 12866 (entitled, 
``Regulatory Planning and Review''). OMB determined that this rule is a 
``significant regulatory action'' as defined in section 3(f) of the 
Order (although not an economically significant regulatory action under 
the Order).

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes do 
not impose recordkeeping or information collection requirements, or 
otherwise collect information from offerors, contractors, or members of 
the public that require approval of the Office of Management and Budget 
under 44 U.S.C. 3501, et seq.

E. Determination to Issue an Interim Rule

    Pursuant to 5 U.S.C. Sec.  553(b)(B), we have determined that it 
would be impracticable, unnecessary, and contrary to the public 
interest to publish this as a Notice of Proposed Rulemaking because to 
do so would result in the Board being operational but unable to perform 
its essential functions. Accordingly, we find that good cause exists to 
publish as an interim rule. For the same reasons, we have determined 
that this interim rule should be issued without a delayed effective 
date. However, we are interested in comments regarding this interim 
rule.

List of Subjects in 48 CFR Parts 6101, 6102, 6103, 6104, and 6105

    Administrative practice and procedure, Agriculture, Freight 
forwarders, Government procurement, Travel and relocation expenses.

    Dated: June 8, 2007.
Stephen M. Daniels,
Chairman, Civilian Board of Contract Appeals, General Services 
Administration.

0
Therefore, GSA amends 48 CFR chapter 61 as set forth below:

Chapter 61--Civilian Board of Contract Appeals

0
1. Revise part 6101 to read as follows:

PART 6101--RULES OF PROCEDURE OF THE CIVILIAN BOARD OF CONTRACT 
APPEALS

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 and weight 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. 601-613.


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 
rules of this chapter will remain in effect until the Board issues 
final rules of procedure or June 30, 2008, whichever occurs earlier. 
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.

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    (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. A United States Postal Service postmark shall be prima facie 
evidence that the document with 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 printed submission. 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.
    (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 panel chair, in 
accordance with such procedures as may be established by the Board. The 
panel chair is responsible for processing the case, including 
scheduling and conducting proceedings and hearings. In addition, the 
panel chair 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 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 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.


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, and telephone number 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, and telephone number 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, and telephone number 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

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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).
    (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.


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 notice that an appeal has been filed, 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:
    (1) The contracting officer's decision, if any, from which the 
appeal is taken;
    (2) The contract, if any, including amendments, specifications, 
plans, and drawings;
    (3) All correspondence between the parties that are relevant to the 
appeal, including the written claim or claims that are the subject of 
the appeal, and evidence of their certification, if any;
    (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; 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 electronic records or 
printed versions of electronic records.
    (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

[[Page 36798]]

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 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.


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.
    (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, and facsimile 
machine number 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.


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. One-word responses stating an allegation is denied are 
discouraged. 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 
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.


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 mail or some other equally or 
more expeditious means of transmittal. Any papers required to be served 
on a party (except requests for discovery and responses thereto, unless 
ordered by the Board to be filed) shall be filed with the Board before 
service or within a reasonable time thereafter.
    (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 received 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

[[Page 36799]]

other party. In the absence of proof of service a document may be 
treated by the Board as not properly filed.


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 non-moving 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 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. When all facts touching 
upon the Board's jurisdiction are not of record, or in other 
appropriate circumstances, a decision on a jurisdictional question may 
be deferred pending a hearing on the merits or the filing of record 
submissions.
    (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.


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;
    (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

[[Page 36800]]

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 followed 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 and weight of evidence [Rule 10].

    (a) Admissibility. 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.
    (b) Weight and credibility. The Board will determine the weight to 
be given to evidence and the credibility to be accorded witnesses.


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:
    (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 response 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 panel chair 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 panel chair alone if 
the motion to dismiss is not contested.


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, electronic records, 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 
location of any books, documents, electronic records, 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

[[Page 36801]]

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 expense, 
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, electronic records, 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).


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 electronic records, 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 pending 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, electronic 
records, 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, electronic records, or things, upon becoming aware of 
deficiencies or inaccuracies in its original responses, or upon 
acquiring additional information or additional documents, electronic 
records, 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, electronic records, and things as are necessary 
to give a complete and accurate response to the request.

[[Page 36802]]

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 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.


6101.16   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 third-party 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, doc