Rules of Procedure of the Government Accountability Office Contract Appeals Board, 36257-36267 [E8-14355]

Agencies

• Government Accountability Office

[Federal Register Volume 73, Number 124 (Thursday, June 26, 2008)]
[Rules and Regulations]
[Pages 36257-36267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14355]



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Federal Register / Vol. 73, No. 124 / Thursday, June 26, 2008 / Rules 
and Regulations

[[Page 36257]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 22


Rules of Procedure of the Government Accountability Office 
Contract Appeals Board

AGENCY: Government Accountability Office.

ACTION: Interim rule.

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SUMMARY: This document contains the rules of procedures of the 
Government Accountability Office (GAO) Contract Appeals Board (Board), 
which will govern all proceedings before the Board. The Board was 
established pursuant to sec. 1501 of title I of division H of the 
Consolidated Appropriations Act of 2008 to hear appeals from decisions 
of contracting officers with respect to any contract entered into by a 
legislative branch agency. The following rules of procedure are 
promulgated pursuant to sec. 1501(d) of that act and are applicable to 
all appeals filed with the Board on or after October 1, 2007. The Board 
invites comments on this interim rule and intends to publish a final 
rule after considering all comments received on or before the closing 
date for comments.

DATES: Comments must be submitted on or before August 25, 2008.

ADDRESSES: Comments may be submitted by e-mail at cab@gao.gov or by 
facsimile at 202-512-9749. Due to delivery delays, submission by 
regular mail is discouraged. Comments may be sent by Federal Express 
(FedEx) or United Parcel Service (UPS) addressed to: James A. 
Spangenberg, Chairman, Government Accountability Office Contract 
Appeals Board, 441 G Street, NW., Room 7182, Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT: James A. Spangenberg (Chairman), David 
Ashen (Vice Chairman), or Sharon L. Larkin (Member), 202-512-3342, 
cab@gao.gov. Hearing or speech impaired individuals may contact the 
Board via TTY by calling the toll-free Federal Information Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The Armed Services Board of Contract Appeals and the Civilian Board 
of Contract Appeals has been established to resolve appeals of 
contracting officers' decisions involving contracts with executive 
branch agencies, pursuant to the Contracts Disputes Act of 1978 (CDA), 
Public Law 95-563, 41 U.S.C. 601 et seq. However, no such permanent 
board has existed to resolve similar appeals involving contracts with 
legislative branch agencies. Previously, the GAO provided qualified 
attorneys to staff various contract appeals boards that were created on 
an ad hoc basis to consider appeals involving contracts of the 
Architect of the Capitol. These ad hoc boards were created under either 
direct appointment by congressional committees or by agreement with the 
Architect of the Capitol under the Economy Act, 31 U.S.C. 1535. In 
addition, an ad hoc contract appeals board staffed by qualified GAO 
attorneys was established in 2006 to consider appeals concerning 
contracts of the Government Printing Office pursuant to a memorandum of 
understanding between these agencies under the Economy Act. As a result 
of the Consolidated Appropriations Act of 2008, further described 
below, the GAO will no longer decide contract appeals through the 
various ad hoc boards, but will hear and resolve all newly filed 
appeals involving contracts with legislative branch agencies through a 
permanent Board that was established pursuant to the Act. Appeals that 
are filed on or after October 1, 2007, will be decided by the newly 
established Board. Appeals that were filed before October 1, 2007, and 
which are pending before various ad hoc boards, are not affected by 
this interim rule; the rules of procedure issued by those boards will 
remain in effect for those appeals.

Statutory Authority

    Section 1501 of title I of division H of the Consolidated 
Appropriations Act of 2008, Public Law 110-161, 121 Stat. 1844, 2249-50 
(Dec. 26, 2007) (to be codified at 31 U.S.C. 720 note (2008)), 
established a permanent Board within the GAO to consider appeals 
involving contracts with legislative branch agencies. Legislative 
branch agencies are defined to include the Architect of the Capitol; 
United States Botanic Gardens; GAO; Government Printing Office; Library 
of Congress; Congressional Budget Office; United States Capitol Police; 
and any other agency, board, or commissions established in the 
legislative branch of Government. Six members of the Board, including a 
Chairman and Vice Chairman, have been competitively appointed, all of 
whom are GAO attorneys with at least 5 years of public contract 
experience. The Board shall operate as an independent function within 
GAO's Office of General Counsel.
    With certain identified exceptions, sec. 1501 of title I of 
division H of the Consolidated Appropriation Act of 2008 applies the 
CDA to appeals filed with the Board. One notable exception to the CDA, 
contained within sec. 1501(d), is that contractors do not have a right 
to directly appeal a decision of a contracting officer to the Court of 
Federal Claims as is authorized under the CDA. Another exception under 
sec. 1501(d) is that contractors are required to certify claims 
exceeding $50,000, instead of the $100,000 required by the CDA, as a 
prerequisite to filing an appeal of a contracting officer's decision.
    The rules of procedure for the newly established Board are 
promulgated pursuant to sec. 1501(d) of title I of division H of the 
Consolidated Appropriations Act of 2008, which requires the Comptroller 
General to prescribe regulations for procedures for appeals to the 
Board that are consistent with procedures under the CDA. This authority 
has been delegated to the Chairman of the Board. These rules of 
procedure are based on rules previously issued by the GAO to govern 
procedures of the various ad hoc boards, as well as those promulgated 
by the Armed Services Board of Contract Appeals and the Civilian Board 
of Contract Appeals, with adaptations to achieve greater efficiency in 
case management and resolution.

[[Page 36258]]

Comments Invited

    The GAO is not subject to the Administrative Procedures Act and, 
accordingly, the Board is not required by law to seek comments before 
issuing a final rule. However, the Board has decided to invite 
interested persons to participate in this rulemaking by submitting 
written comments regarding the proposed revisions. Application of the 
Administrative Procedures Act to the GAO or the Board is not to be 
inferred from this invitation for comments.
    The Board will consider all comments received on or before the 
closing date for comments. The Board may revise the interim rule based 
on comments received.

List of Subjects in 4 CFR Part 22

    Administrative practice and procedure, Contract Appeals Board, 
Government contracts.

0
For the reasons set out in this preamble, in title 4, chapter I, 
subchapter B of the Code of Federal Regulations, part 22 is added to 
read as follows:

PART 22--RULES OF PROCEDURE OF THE GOVERNMENT ACCOUNTABILITY OFFICE 
CONTRACT APPEALS BOARD

Sec.
22.1 Applicability of Rules [Rule 1].
22.2 Board Consideration [Rule 2].
22.3 Appeal--How Taken [Rule 3].
22.4 Appeal File [Rule 4].
22.5 Pleadings [Rule 5].
22.6 Motions, Briefs, and Other Statements [Rule 6].
22.7 Copies and Service Thereof [Rule 7].
22.8 General Discovery Procedures [Rule 8].
22.9 Subpoenas [Rule 9].
22.10 Sanctions [Rule 10].
22.11 Depositions [Rule 11].
22.12 Interrogatories [Rule 12].
22.13 Requests for Admission [Rule 13].
22.14 Production of Documents, Electronically Stored Information, 
Other Tangible Things, or Entry Onto Land [Rule 14].
22.15 Conferences and Orders [Rule 15].
22.16 Hearings [Rule 16].
22.17 Submission on the Record Without a Hearing [Rule 17].
22.18 Closing the Record [Rule 18].
22.19 Findings and Decisions of the Board [Rule 19].
22.20 Mistakes and Corrections [Rule 20].
22.21 Motion for Reconsideration [Rule 21].
22.22 Accelerated and Small Claims Procedures [Rule 22].
22.23 Suspension of Proceedings [Rule 23].
22.24 Alternative Dispute Resolution [Rule 24].
22.25 Protective Orders and In Camera Review [Rule 25].
22.26 Representation of the Parties [Rule 26].
22.27 Ex Parte Communications [Rule 27].
22.28 Time [Rule 28].
22.29 Inspection of the Record [Rule 29].

    Authority: Sec. 1501, Public Law 110-161, 121 Stat. 2249.


Sec.  22.1  Applicability of Rules [Rule 1].

    The Government Accountability Office Contract Appeals Board is 
authorized to hear appeals from decisions of contracting officers with 
respect to any contract entered into by a legislative branch agency. 
These rules shall apply to all appeals filed with the Board on or after 
October 1, 2007.


Sec.  22.2  Board Consideration [Rule 2].

    (a) Offices. The office of the Board shall be at the Government 
Accountability Office, 441 G Street, NW., Washington, DC 20548, or in 
such other place as may from time to time hereafter be assigned for its 
use. All files and records of the Board shall be kept at such office. 
All communications, pleadings, and/or documents addressed to the Board 
shall be addressed or delivered to the Board at the Government 
Accountability Office, 441 G Street, NW., Room 7182, Washington, DC 
20548; Telephone: 202-512-3342; Facsimile: 202-512-9749; E-mail: 
cab@gao.gov.
    (b) Three Member Panel. Generally, all appeals will be assigned to 
a panel of three members of the Board appointed by the Chairman of the 
Board; said panel may or may not include the Chairman of the Board as a 
member. Each panel will include a presiding member who is responsible 
for case management, including scheduling, and who may, without 
participation of the other panel members, rule on non-dispositive 
motions and resolve procedural disputes. Hearings on appeals may be 
held by one or more of the panel members of the Board. Appeals resolved 
under the Board's small claims or accelerated procedures (see Sec.  
22.22 of this part [Rule 22]) may be decided by a single member of the 
Board. Requests for consideration of a matter by all members of the 
Contract Appeals Board will not be granted in any appeal filed under 
these rules.
    (c) Absence or Disability of Chairman. The activities of the Board 
shall be performed under the supervision of the Chairman of the Board. 
In the absence of, or during the disability of, the Chairman, the Vice 
Chairman of the Board shall act as the Chairman.


Sec.  22.3  Appeals--How Taken [Rule 3].

    (a) Form. An appeal by the contractor shall be filed with the Board 
in the form of a written notice of appeal. The notice shall identify 
the contract by number, the name of the government agency and/or 
department against which the claim is asserted, the contracting officer 
for the subject dispute, the decision from which the appeal is taken, 
an estimate of the amount of money in controversy, if any, and shall be 
signed personally by the appellant (the contractor making the appeal) 
or by his representative or attorney. The complaint referred to in 
Sec.  22.5(a) of this part [Rule 5(a)] 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. The 
appellant shall promptly provide a copy of the appeal and complaint to 
the contracting officer.
    (b) Timeliness. (1) For claims where a contracting officer has 
issued a final decision, the contractor may file an appeal no later 
than 90 days after it receives the contracting officer's final 
decision.
    (2) For certified claims submitted to the contracting officer in 
excess of $50,000 where the contracting officer has not issued a final 
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 citing the failure of the contracting officer to issue a 
decision.
    (3) For claims submitted to the contracting officer in the amount 
of $50,000 or less where the contracting officer has not issued a final 
decision within 60 days of the contractor's request that a final 
decision be issued within that time, the contractor may file a notice 
of appeal citing the failure of the contracting officer to issue a 
decision.
    (4) In lieu of a notice of appeal filed under paragraphs (b)(2) or 
(b)(3) of this section [Rules 3(b)(2) or 3(b)(3)], the contractor may 
request that the Board direct a contracting officer to issue a decision 
within a specified period of time, as determined by the Board, in the 
event of undue delay by the contracting officer in issuing a decision.
    (5) An appeal filed with the Board will be deemed ``filed'' on the 
date actually received by the Board if received by 5:30 p.m. Eastern 
Standard Time (EST), or on the next business day if received after 5:30 
p.m. EST.
    (c) Service of the Appeal; Copies. An original plus 3 copies of the 
appeal shall be filed with the Board by hand delivery, express or 
priority mail, approved commercial carrier (e.g., UPS or FedEx), 
facsimile, or e-mail, although e-mail is the preferred method of 
delivery in all Board matters. The use of first class or parcel post 
mail is strongly discouraged because the delivery delays and screening 
process for government

[[Page 36259]]

mail could result in untimely filed appeals. If filed by e-mail or 
facsimile, the appellant shall provide the original plus 3 copies to 
the Board by hand delivery or commercial carrier within 2 business days 
of the e-mailed or facsimile transmitted filing. The appellant shall 
furnish a copy of the appeal to the contracting officer from whose 
decision, or failure to issue the decision, the appeal is taken using 
the same method or service as for the Board, or an equal or more 
expeditious method of service. For service of documents once an appeal 
has commenced, see Sec.  22.7(b) of this part [Rule 7(b)].
    (d) Docketing. When the Board receives a notice of appeal from the 
appellant, the Board will promptly docket the appeal and provide 
written notice of docketing to all parties, or their counsel, with a 
copy of these rules.
    (e) Consolidation. The Board, in its discretion, may consolidate 
cases involving common issues of law or fact.


Sec.  22.4  Appeal File [Rule 4].

    (a) Duties of the Contracting Officer. (1) Within 30 days after 
receipt of the complaint, or within such other period of time as may be 
established by the Board, the contracting officer shall assemble and 
transmit to the Board an appeal file consisting of all documents 
pertinent to the appeal, including:
    (i) The decision from which the appeal is taken;
    (ii) The contract, including relevant specifications, amendments, 
plans, and drawings;
    (iii) All correspondence between the parties relevant to the 
appeal, including the letter or letters of claim in response to which 
the decision was issued;
    (iv) All documents and other tangible things on which the 
contracting officer relied in making the decision, and any 
correspondence relating thereto;
    (v) 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
    (vi) Any additional information or evidence considered relevant to 
the appeal.
    (2) Within the same time specified above, the contracting officer 
shall furnish the appellant a copy of each document he or she transmits 
to the Board, except those in paragraph (a)(1)(ii) of this section 
[Rule 4(a)(1)(ii)]. As to the latter, a list furnished to the appellant 
indicating specific contractual documents transmitted will suffice. 
Documents filed under this rule, and any supplements, shall be 
organized and filed in accordance with paragraph (d) of this section 
[Rule 4(d)].
    (b) Duties of the Appellant. Within 30 days after receipt of a copy 
of the appeal file provided pursuant to paragraph (a) of this section 
[Rule 4(a)], or within such other period of time as may be established 
by the Board, the appellant shall transmit to the Board for inclusion 
in the appeal file any documents not contained therein which the 
appellant considers to be relevant to the appeal. Within the same 
period of time, the appellant shall furnish a copy of such documents to 
the contracting officer or counsel for the government. Documents filed 
under this rule shall be organized and filed in accordance with 
paragraph (d) of this section [Rule 4(d)].
    (c) Continuing Duty to Supplement the Record. All parties have a 
continuing duty to supplement the record with relevant documents and 
tangible things, and the appeal file may be supplemented by any party 
at any time before the closing of the record. In cases where a hearing 
is requested, these supplements shall be provided well in advance of 
the pre-hearing conference so that objections to admissibility may be 
heard and resolved, to the maximum extent possible, in advance of the 
hearing. All supplements to the appeal file shall be organized and 
filed in accordance with paragraph (d) of this section [Rule 4(d)].
    (d) Organization of Appeal File. Only relevant documents and 
tangible things should be provided as part of the appeal file. Appeal 
file documents may be originals or true, legible, and complete copies 
or facsimiles. The appeal file shall be arranged in chronological order 
with the earliest documents first; bound in a 3-ring binder (or 
binders) or similar loose-leaf binder(s) no larger than 4 inches in 
width, except where size or shape makes such binding impracticable; 
numbered; tabbed; and indexed. Numbering of pages shall be consecutive 
and continuous from one page to the next (i.e., ``Bates'' numbered), so 
that the complete file, including any supplements, will consist of one 
set of consecutively numbered pages. Preceding each Bates number shall 
be a designation ``A'' for appellant or ``R'' for respondent, 
indicating which party provided the document. Multiple binders shall be 
consecutively numbered and include references on the outside cover and 
binding that state the range of tab numbers and Bates numbers contained 
therein. Within each binder, tabs shall separate each document; 
multiple documents shall not be placed behind a single tab, unless each 
document is separated by a divider. The appeal file shall include an 
index identifying each document included in the appeal file by date, 
brief description of the document, and the tab and Bates numbers where 
the document can be located in the appeal file. The Board may, in its 
discretion or upon request of a party, order an alternative 
organization of the appeal file. If an alternative organization of the 
appeal file is permitted, such as by document type or topic, documents 
within that grouping must be presented in chronological order to the 
extent possible. The Board may impose special requirements on the 
production of electronic documents and, if any portion of the Sec.  
22.4 [Rule 4] file or supplement contains electronic documents, the 
party submitting such documents shall contact the Board before 
submission for guidance.
    (e) Submissions on Order of the Board. The Board may, at any time 
during the pendency of the appeal, require any party to file documents 
or tangible things as additional exhibits. The Board may also require a 
party to file printed versions of electronic records or, conversely, 
may require electronic versions of printed documents.
    (f) Status of Documents in the Record. 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 to consideration of a particular document 
or documents by filing a written objection. Such objections shall be 
raised by motion pursuant to Sec.  22.6 of this part [Rule 6] and shall 
be filed as early as necessary to allow the Board, to the maximum 
extent possible, to resolve the objection in advance of a scheduled 
hearing, or before the record is closed if no hearing is held.


Sec.  22.5  Pleadings [Rule 5].

    (a) Complaint. Within 15 days after receipt of the docketing notice 
from the Board, or within such other period of time as may be 
established by the Board, the appellant will file with the Board, if 
not previously filed with the notice of appeal, a complaint setting 
forth simple, concise, and direct statements of each of its claims 
showing that it is entitled to relief; identifying the contract 
provision or provisions under which relief is claimed; and stating the 
amount in controversy or an estimate thereof, if known, and/or the 
relief requested. The complaint shall be limited to those requests for 
relief which have been presented to the contracting officer and were 
either denied or not ruled upon by the contracting officer in 
accordance with Sec.  22.3 of this part [Rule 3]. No

[[Page 36260]]

technical form is required, but each claim should be separately 
identified. In the event that the complaint is not filed within the 
time stated above, the appeal may be dismissed by the Board for lack of 
prosecution.
    (b) Answer. Within 30 days after receipt of the complaint, or 
within such other period of time as may be established by the Board, 
the contracting officer or counsel for the government shall prepare and 
file with the Board an answer thereto. The answer shall set forth 
simple, concise, and direct statements of the government's defenses to 
each claim asserted by the appellant. Each defense shall be stated with 
as much particularity as is practicable. Defenses which go to the 
Board's jurisdiction may be included in the answer, or may be raised by 
motion pursuant to the provisions of Sec.  22.6 of this part [Rule 6]. 
Motions in lieu of an answer may be filed only with the advance 
permission of the Board.
    (c) Small Claims and Accelerated Procedures. When an appellant 
elects to use the small claims or accelerated procedures described in 
Sec.  22.22 of this part [Rule 22], the Board may shorten the time for 
filing the complaint and answer.
    (d) Amendment of Pleadings. At any time before a hearing on the 
merits, or before the closing of the record when a hearing is not held, 
the Board in its discretion may permit a party to amend its complaint 
or answer concerning matters that are within the proper scope of the 
appeal, upon conditions that are just to both parties. The Board, upon 
its own initiative or upon application by a party, may in its 
discretion order a party to make a more definite statement of its 
complaint or answer, or to reply to an answer. When issues within the 
proper scope of the appeal, but not raised by the complaint and answer, 
are determined by express or implied consent of the parties as having 
been raised, they shall be treated in all respects as if they had been 
raised in the pleadings. Such amendment of the complaint and answer as 
may be necessary to cause them to conform to the evidence may be made 
upon motion at any time, but failure to so amend does not affect the 
result of the hearing of these issues. If evidence is objected to at 
the hearing on the ground that it is not within the issues raised by 
the complaint and answer, the Board may allow the pleadings to be 
amended within the proper scope of the appeal and shall do so freely 
when the presentation of the merits of the action will be served 
thereby and the objecting party fails to satisfy the Board that the 
admission of such evidence would prejudice it in maintaining its appeal 
or defense on the merits. The Board may, however, grant a continuance 
to enable the objecting party to respond to such evidence.


Sec.  22.6  Motions, Briefs, and Other Statements [Rule 6].

    (a) Motions, Generally. Motions shall be made in writing, indicate 
the relief sought and include the grounds therefor, and be filed with 
the Board as soon as practicable after the grounds therefor are known 
and as early as necessary to allow the Board to rule on the motion in 
advance of a scheduled hearing. Except for motions submitted under 
paragraph (d) of this section [Rule 6(d)], any party may respond to a 
motion by submitting a written response to the motion within 10 days of 
receipt of the motion, and the moving party may reply to the response 
within 5 days of receipt of the response, except that the Board, in its 
discretion, may shorten or lengthen the time for the response and reply 
based on the nature of the motion, the nature and timing of the case, 
and the scheduling needs of the Board. The Board may request additional 
submissions from the parties and may decide motions on the written 
submissions without oral argument. The Board shall decide all motions 
before the hearing on the merits unless the Board determines that a 
ruling be deferred pending a hearing on both the merits and the motion. 
Jurisdictional and procedural defenses may be raised at any time by 
motion, but should be raised as soon as the grounds therefor are known; 
and the Board, at any time and on its own initiative, may raise an 
issue of jurisdiction and may decline to proceed with an appeal in 
which it lacks authority to decide the issues. All motions, responses, 
replies, and additional submissions required by the Board shall be 
filed in accordance with paragraphs (b) and (c) of this section [Rules 
6(b) and 6(c)].
    (b) Briefs and Citations. In addition to submissions required by 
these rules, the Board may require the parties to file legal or factual 
briefs concerning any matter that may aid in the disposition of the 
appeal. When such briefs or submissions are required (by rule or by the 
Board), the brief or submission shall contain citations to the record 
and legal authority as appropriate, and follow such other format as may 
be directed by the Board. Citations to the record must be specific 
(i.e., to Bates number or other similar designation) so that the Board 
can locate the exact proposition or matter to which the party is 
referring. The parties should not expect the Board to search the record 
for evidence in support of either party's position. Briefs and 
submissions that are not submitted in the required format, or which do 
not contain adequate citations to the record or legal authority, may be 
rejected by the Board or returned to the party with an order that the 
party resubmit the brief or submission with appropriate revisions.
    (c) Declarations, Affidavits, or Other Statements. Any declaration, 
affidavit, or other statement that is submitted to explain the record 
must, to the maximum extent possible, include citations to the record 
in support of the statement, argument, or analysis made. Citations to 
the record must be specific (i.e., to Bates number or similar 
designation). Declarations, affidavits, or other statements containing 
inadequate citations may be returned to the party with an order that 
the party resubmit the statement with appropriate revisions.
    (d) Motions for Summary Judgment--(1) Generally. Motions for 
summary judgment or partial summary judgment shall be filed only when a 
party believes, based on uncontested material facts, that it is 
entitled to relief, in whole or in part, as a matter of law. Such 
motions shall be filed as soon as practicable to allow the Board to 
rule on the motion in advance of a scheduled hearing. In considering a 
motion, or partial motion, for summary judgment, the Board will 
consider the pleadings, depositions, answers to interrogatories, 
admissions of record, and affidavits provided, and will grant such 
motion if there is no genuine issue of material fact and the moving 
party is entitled to judgment as a matter of law. In deciding motions 
for summary judgment, the Board will look to Rule 56 of the Federal 
Rules of Civil Procedure for guidance.
    (2) Requirements. Where both parties agree that disposition by 
summary judgment or partial summary judgment is appropriate, they shall 
file a stipulation of all material facts necessary for the Board to 
rule on the motion. Otherwise, the moving party shall file with its 
motion a ``Statement of Undisputed Material Facts'' setting forth the 
claimed undisputed material facts in separately numbered paragraphs, 
each of which shall be supported by citations to the Sec.  22.4 [Rule 
4] file or other evidence establishing the facts. The non-moving party 
shall file a ``Statement of Genuine Issues of Material Facts,'' 
responding to each numbered paragraph, demonstrating the existence of 
genuine issues of material facts where appropriate, and including for 
each fact citations to the Sec.  22.4 [Rule 4] file or

[[Page 36261]]

other evidence in support. A fact properly proposed by one party may be 
accepted by the Board as undisputed unless the opposing party properly 
responds and establishes that the fact is in dispute. An opposing party 
may not rely on mere allegations or denials in its pleadings to 
demonstrate the existence of a genuine issue of material fact. Either 
party may rely on affidavits, depositions, answers to interrogatories, 
or admissions of record to establish the existence of, or to dispute, a 
material fact. The moving party and non-moving party each shall submit 
a memorandum of law supporting or opposing summary judgment, and the 
moving party may file a reply to the non-moving party's opposition of 
the motion.
    (3) Time. Generally, the non-moving party shall file its opposition 
to a motion for summary judgment or partial summary judgment within 20 
days of receipt of the motion, and the moving party's reply is due 
within 10 days of receipt of the opposition, except that the Board, in 
its discretion, may shorten or lengthen the time for opposition and 
reply based on the nature of the motion, the nature and timing of the 
case, and the scheduling needs of the Board.
    (4) Citations. All motions for summary judgment, oppositions to 
such motions, briefs, and statements in support of the motions or 
opposition to the motions shall be filed in conformance with paragraphs 
(b) and (c) of this section [Rules 6(b) and 6(c)].


Sec.  22.7  Copies and Service Thereof [Rule 7].

    (a) Rule 4 File. For documents provided pursuant to Sec.  22.4 of 
this part [Rule 4], the original and one copy shall be provided to the 
Board, and one copy shall be provided to each party. Documents shall be 
provided by hand delivery, express or priority mail, or approved 
commercial carrier (e.g., UPS or FedEx); first class and parcel post 
mail are not permitted unless authorized by the Board.
    (b) Other Submissions Filed with the Board. Except as otherwise 
authorized by the Board, all correspondence and submissions, other than 
documents provided pursuant to Sec.  22.4 of this part [Rule 4] and 
appeals filed under Sec.  22.3(c) of this part [Rule 3(c)], shall be 
provided to the Board by e-mail at cab@gao.gov, with a courtesy copy of 
the submission provided by e-mail to each of the members of the Board. 
All e-mails to cab@gao.gov must identify the case name and docket 
number in the subject line of the e-mail. In addition, unless the Board 
directs otherwise, the original plus 3 copies of the e-mailed 
submission also shall be provided to the Board by hand delivery, 
express or priority mail, or approved commercial carrier (e.g., UPS or 
FedEx) within 2 business days of the e-mailed filing (except that the 
original and one copy are required for appeals involving small claims 
or using accelerated procedures). Delivery to the Board by first class 
or parcel post mail is not permitted. However, the Board may at any 
time modify the number of copies required or authorize alternative 
methods of delivery to the Board.
    (c) Service on Parties. All correspondence and submissions to the 
Board must be provided to all other parties using the same method of 
service as used for the Board, or an equal or more expeditious method 
of service. Except for documents provided pursuant to Sec.  22.4 of 
this part [Rule 4], e-mail service is preferred. However, where the 
parties agree to other methods of service, such other methods of 
service to parties are permitted.
    (d) Proof of Service. A party sending a document to the Board must 
represent to the Board that a copy has been sent to the other parties, 
identify the date on which service was made, and identify the method of 
delivery used. This may be done by certificate of service, by 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, the date on which the copy was provided, and the method of 
delivery used to provide the copy. Proof of service must be provided to 
the Board at the time of filing. If proof of service is not provided, 
the Board may decline to consider the document in the appeal.


Sec.  22.8  General Discovery Procedures [Rule 8].

    (a) General Policy and Methods of Discovery. The parties are 
encouraged to engage in voluntary discovery procedures and may obtain 
discovery by one or more of the following methods: Depositions; written 
interrogatories; requests for admissions; and requests for production 
of documents, electronically stored information, other tangible things, 
or entry onto land.
    (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 involving the 
pending appeal, whether it relates to a claim or defense of a party, 
including the existence, description, nature, custody, condition, and 
location of any books, documents, electronically stored information, or 
other tangible things, and the identity and location of persons having 
knowledge of any discoverable matter. It is not a ground for objection 
that the information sought will be inadmissible if the information 
sought appears reasonably calculated to lead to the discovery of 
admissible evidence.
    (c) Discovery Plan, Conferences, and Orders. Within 30 days of the 
initial filing of documents in accordance with Sec.  22.4(a) of this 
part [Rule 4(a)], the parties shall confer and file with the Board a 
proposed discovery plan, which shall include estimated time frames and 
proposed dates for completing discovery and when the parties anticipate 
that a hearing can be scheduled. 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 outstanding issues 
relating to discovery; establish a plan and schedule for discovery; set 
limitations on discovery; compel compliance with discovery; and issue 
such orders or determine such other matters as are necessary for the 
proper management of discovery, including imposing sanctions on the 
parties as may be appropriate.
    (d) Discovery Limits. On motion or on its own initiative, the Board 
may make any order necessary to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense. Such 
order may impose limitations on the scope, method, time and place for 
discovery, and include provisions for protecting the secrecy of 
confidential information or documents.
    (e) Discovery Objections. Unless otherwise ordered by the Board, 
any objection to a discovery request must be filed with the Board 
within 15 days of receipt of the request. Objections must be filed in 
writing and state with specificity the grounds therefor. Upon receipt, 
the Board will establish a schedule for resolving the objections, which 
may include additional briefing by the parties or oral argument, and 
will determine the extent to which discovery will be permitted. A party 
shall fully respond to any discovery request to which it does not file 
a timely objection, in accordance with paragraph (f) of this section 
[Rule 8(f)]. The parties are required to make a good faith effort to 
resolve objections to discovery requests informally prior to seeking 
relief from the Board.
    (f) Discovery Responses. Unless otherwise ordered by the Board, a 
party is required to respond to written interrogatories, requests for 
admission, and requests for production of documents, electronically 
stored information, other tangible things, or entry onto land within 30 
days of receipt.

[[Page 36262]]

    (g) Duty to Supplement Discovery Responses. A party that has 
responded to written interrogatories, requests for admission, or 
requests for production of documents, electronically stored 
information, or other tangible things, upon becoming aware of 
deficiencies or inaccuracies in its original responses, or upon 
acquiring additional information or documents 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 as are necessary 
to give a complete and accurate response to the request.
    (h) Voluntary Cooperation. Each party is expected to cooperate by 
making available witnesses and evidence under its control when 
requested by another party, and to secure the voluntary attendance of 
third-party witnesses and production of evidence by third parties, when 
practicable.
    (i) Motions to Compel Discovery. If a party refuses to comply with 
a discovery request, or a party's response to a discovery request is 
incomplete or entirely absent, any other party may file a motion to 
compel a response. However, such 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.
    (j) Sanctions. If, after being properly served with such discovery 
request, a party fails to appear for deposition, respond to 
interrogatories or requests for admissions, or respond to a request for 
production of documents, electronically stored information, other 
tangible things, or entry onto land, the party seeking discovery may 
move the Board to impose sanctions under Sec.  22.10 of this part [Rule 
10].


Sec.  22.9  Subpoenas [Rule 9].

    (a) Issuance. Upon the written request of any party, or on the 
initiative of the Board, a subpoena may be issued that commands the 
person to whom it is directed to attend and give testimony at a 
deposition or hearing, and/or produce documents or electronically 
stored information (including writings, papers, books, accounts, 
photographs, drawings, graphs, charts, recordings, and other data or 
data compilations) or other tangible things designated in the subpoena, 
or to permit entry onto designated premises for inspection or other 
purposes. Requests for subpoenas shall identify the Board and state the 
name and docket number of the appeal; identify the name of the person 
to whom the subpoena is directed; command the person to whom the 
subpoena is directed to, at a specific place and time, appear and 
testify, or produce designated documents, electronically stored 
information, or other tangible things, or permit the inspection of 
designated premises; and state the scope and relevance of the requested 
testimony or evidence to the appeal. All requests for subpoenas shall 
be filed at least 15 days before the testimony or evidence is to be 
provided, except that the Board may, in its discretion, honor requests 
for subpoenas not made within this time limitation.
    (b) Service. The party requesting the subpoena shall cause the 
subpoena to be served upon the person named in the subpoena as soon as 
practicable after the subpoena has been issued and shall provide proof 
of service to the Board. Service shall be made by any person who is not 
a party and not less than 18 years of age by personal delivery to the 
person named in the subpoena, and shall include tender of the fees for 
one day attendance and the mileage allowed by 28 U.S.C. 1821 or other 
applicable law; however, where the subpoena is issued on behalf of the 
government, money payments need not be tendered in advance of 
attendance.
    (c) Motions to Quash. Upon written motion of the person named in 
the subpoena or a party, the Board may quash or modify the subpoena if 
it is unreasonable and oppressive or for other good cause shown, or the 
Board may require the party in whose behalf the subpoena was issued to 
advance the reasonable costs of producing subpoenaed evidence. Motions 
to quash or modify a subpoena must be filed within 10 days of service 
of the subpoena or by the date and time specified in the subpoena for 
compliance, whichever is earlier.
    (d) Contumacy. In the 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 
may apply to the court through the Attorney General of the United 
States for an order requiring the person to appear before the Board to 
give testimony, produce evidence, or both.


Sec.  22.10  Sanctions [Rule 10].

    (a) Standards. All parties and their representatives, attorneys, 
and any experts/consultants retained by them or their attorneys, must 
obey directions and orders prescribed by the Board and adhere to 
standards of conduct applicable to such parties and persons. As to an 
attorney, the standards include the rules of professional conduct and 
ethics of the jurisdictions in which an attorney is licensed to 
practice, to the extent that those rules are relevant to conduct 
affecting the integrity of the Board, its process, and its proceedings. 
The Board will also look to professional guidelines in evaluating an 
individual's conduct.
    (b) Imposition of Sanctions. (1) When a party or its representative 
or attorney or any expert/consultant fails to comply with any direction 
or order issued by the Board (including an order to provide or permit 
discovery), or engages in misconduct affecting the Board, its process, 
or its proceedings, the Board may make such orders as are just, 
including the imposition of appropriate sanctions. The sanctions may 
include:
    (i) Taking the facts pertaining to the matter in dispute to be 
established for the purpose of the appeal in accordance with the 
contention of the party submitting the discovery request;
    (ii) Forbidding challenge of the accuracy of any evidence;
    (iii) Refusing to allow the noncompliant party to support or pose 
designated claims or defenses;
    (iv) Prohibiting the noncompliant party from introducing in 
evidence designated documents or items of testimony;
    (v) Striking pleadings or parts thereof, or staying further 
proceedings until the order is obeyed;
    (vi) Dismissing the appeal or any part thereof; and/or
    (vii) Imposing such other sanctions as the Board deems appropriate.
    (2) Prior to imposing sanctions, the Board will provide the 
noncompliant party with notice and an opportunity to be heard on the 
issue of whether sanctions should be imposed. The opportunity to be 
heard does not mean that the party is entitled to a hearing; the 
opportunity to provide written argument shall satisfy this requirement.
    (c) Disciplinary Proceedings. In addition to the above procedures, 
the Board may discipline individual party representatives, attorneys, 
and experts/consultants for a violation of any Board order or direction 
or standard of conduct applicable to such individual where the 
violation affects the integrity of the Board's process or proceedings. 
Sanctions may be public or private and may include admonishment, 
disqualification from a particular matter, referral to an appropriate 
licensing authority, or such other action as circumstances may warrant. 
The Board, in its discretion, may suspend an individual from appearing 
before the Board as a party representative, attorney, or expert/
consultant if, after

[[Page 36263]]

affording such individual notice and an opportunity to be heard, a 
majority of all members of the Contact Appeals Board determines that 
such sanction is warranted.


Sec.  22.11  Depositions [Rule 11].

    (a) When Depositions May Be Taken. After an appeal has been 
docketed by the Board and a complaint has been filed, either party may 
take the testimony of any person by deposition upon oral examination or 
written questions, for the purpose of discovery or for use as evidence 
in the appeal proceedings, or for both purposes.
    (b) Time, Place, and Manner of Taking. The time, place, and manner 
of taking depositions shall be as mutually agreed to by the parties or, 
failing such agreement, be governed by order of the Board.
    (c) Limits. The number of depositions taken shall not be limited 
except as the Board may require to protect a party from annoyance, 
burden, or harassment.
    (d) Use as Evidence. No testimony taken by deposition shall be 
considered as part of the evidence in the hearing of an appeal unless 
and until such testimony is offered and received in evidence at the 
hearing. Depositions ordinarily will not be received in evidence if the 
deponent is present and can testify personally at the hearing; however, 
depositions may be used to contradict or impeach the testimony of a 
deponent as a witness. If only a 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. In any case, the Board, upon the agreement of the 
parties, may permit the introduction of relevant portions of 
depositions as designated by the parties. If no hearing has been 
conducted and the appeal has been submitted on the record pursuant to 
Sec.  22.17 of this part [Rule 17], the Board, in its discretion, may 
receive depositions in evidence to supplement the record.


Sec.  22.12  Interrogatories [Rule 12].

    (a) When Interrogatories May Be Served. After an appeal has been 
docketed by the Board and a complaint has been filed, a party may serve 
on an adverse party written interrogatories to be answered by the party 
served or, if the party served is a public or private corporation or a 
partnership or association, by any officer or agent who shall furnish 
such information as is available to the party.
    (b) Answers. The interrogatories shall be answered separately and 
fully in writing, signed under oath by the person answering them, and 
served on the party submitting the interrogatories. Objections to the 
interrogatories shall be signed by counsel for the party responding to 
the interrogatories. An interrogatory is not necessarily objectionable 
merely because an answer to the interrogatory may involve an opinion or 
contention that relates to fact or the application of law to fact; 
however, the Board may order that such interrogatory need not be 
answered until after discovery has been completed or some other event 
has occurred.
    (c) Scope and Use as Evidence. Interrogatories may relate to any 
matters which can be inquired into under Sec.  22.11 of this part [Rule 
11] (Depositions), and the answers may be used to the same extent as 
provided for the use of the deposition of a party.
    (d) Limits. The number of interrogatories or sets of 
interrogatories to be served shall not be limited except as the Board 
may require to protect a party from annoyance, burden, or harassment.
    (e) 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, 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 record(s) from 
which the answer may be derived or ascertained and to afford the party 
serving the interrogatory a reasonable opportunity to examine, audit, 
or inspect such records and to make copies 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 
record(s) from which the answer may be ascertained.


Sec.  22.13  Requests for Admission [Rule 13].

    (a) When Requests for Admission May Be Served. (1) After an appeal 
has been docketed by the Board and a complaint has been filed, a party 
may serve on the opposing party a written request for the admission by 
the latter of the genuineness of any relevant documents described in 
and exhibited with the request, or of the truth of any relevant matters 
of fact set forth in the request. Each of the matters for which an 
admission is requested shall be deemed admitted unless, within the 
period designated in Sec.  22.8(c) and Sec.  22.8(f) of this part 
[Rules 8(e) and 8(f)] for responding to discovery requests, the party 
to whom the request is directed serves upon the party requesting the 
admission either:
    (A) A sworn statement denying specifically the matters for which an 
admission is requested or setting forth in detail the reasons why he or 
she cannot truthfully admit or deny those matters, or
    (B) Written objections on the ground that some or all of the 
requested admissions are privileged or irrelevant or that the request 
is otherwise improper in whole or in part.
    (2) If written objections to a part of the request are made, the 
remainder of the request shall be answered within the period designated 
in Rule 8(f). A denial shall fairly meet the substance of the requested 
admission and, when good faith requires that a party deny only a part 
of a matter for which an admission is requested, he or she shall 
specify so much of it as is true and deny only the remainder.
    (b) Limits. The number of requests for admissions served shall not 
be limited except as the Board may require to protect a party from 
annoyance, burden, or harassment.
    (c) Use as Evidence. 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.


Sec.  22.14  Production of Documents, Electronically Stored 
Information, Other Tangible Things, or Entry Onto Land [Rule 14].

    (a) When Documents, Electronically Stored Information, Other 
Tangible Things, or Entry Onto Land May Be Requested. After an appeal 
has been docketed by the Board and a complaint has been filed, any 
party may serve on any other party a request--
    (1) To produce and permit the inspection, copying, or photographing 
of any designated documents or electronically stored information 
(including writings, papers, books, accounts, photographs, drawings, 
graphs, charts, recordings, and other data or data compilations), or 
other tangible things, not privileged, which are in his, her, or its 
possession, custody, or control and which are within the scope of 
discovery as described in Sec.  22.8(b) of this part [Rule 8(b)]; or
    (2) To permit entry onto designated land or other property in his 
or its possession or control for the purpose of inspecting, measuring, 
surveying, filming, or photographing the property or any designated 
object or operation thereon which is within the scope of

[[Page 36264]]

discovery as described in Sec.  22.8(b) of this part [Rule 8(b)].
    (b) Time, Place, and Manner. The request shall specify the time, 
place, and manner of making the inspection and taking the copies and 
photographs. The Board may make an order that the inspection, copying, 
measuring, surveying, filming, or photographing shall be limited to 
certain matters; or the Board may make any other order which, in its 
discretion, it deems appropriate to protect the party from annoyance, 
burden, or harassment.


Sec.  22.15  Conferences and Orders [Rule 15].

    (a) Status Conferences and Reports. At any time during the appeal, 
the Board, upon its own initiative or upon the request of one of the 
parties, may call upon the parties or their attorneys or 
representatives to appear before the Board (or one or more members 
thereof) for a status conference to consider or report on whatever 
matters are necessary to aid in the disposition of the appeal. Such 
matters may include, for example, the simplification or clarification 
of issues, the necessity or desirability of amendments to the 
pleadings, agreements and rulings to facilitate discovery, progress 
reports during discovery, and pre-hearing procedures and scheduling. 
Status conferences may be conducted in person or by telephone, and the 
Board generally will make an order which recites the action taken at 
the conference(s). From time to time, the Board also may require one or 
more of the parties, either jointly or individually, to provide status 
reports concerning any matter that aids in the disposition of the 
appeal.
    (b) Rulings, Orders, and Directions. The Board may make such 
rulings and issue such orders and directions as are necessary to secure 
the 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 Board may be made on the 
motion 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 appropriate. In making rulings and issuing orders and 
directions, the Board will take into consideration those Federal Rules 
of Civil Procedure and Federal Rules of Evidence which address matters 
not specifically covered herein.


Sec.  22.16  Hearings [Rule 16].

    (a) Election of Hearing or Record Submission. Each party shall 
inform the Board, in writing, whether it elects a hearing or submission 
of the case on the record pursuant to Sec.  22.17 of this part [Rule 
17]. Such election shall occur no later than 15 days after the 
conclusion of discovery, unless the Board directs otherwise. In the 
event that only one party waives a hearing and submits its case on the 
record, the Board may proceed with a hearing attended by the remaining 
parties.
    (b) Pre-Hearing Schedule. (1) Within 30 days of the conclusion of 
discovery, the parties shall meet and confer and provide the Board with 
a joint proposed schedule for pre-hearing and hearing disclosures, 
submissions, and key events. In the absence of agreement, each party 
shall submit its own proposed schedule. The schedule shall address, at 
a minimum, deadlines for submitting the following:
    (i) Dispositive motions, motions for summary judgment, and motions 
in limine, which allow sufficient time for the Board to resolve the 
motions before the hearing;
    (ii) Pre-hearing briefs or statements of the case;
    (iii) The identification of lay and expert witnesses for hearing, 
the general substance of testimony to be offered by each witness, and 
any depositions that will be used in lieu of witness testimony;
    (iv) The exchange of expert reports and statements (if not done 
during discovery);
    (v) Proposed stipulations of fact;
    (vi) The exchange of hearing exhibit books;
    (vii) The production of any additional documents to be used at the 
hearing that are not already part of the Sec.  22.4 [Rule 4] file;
    (viii) Objections to proposed evidence or Sec.  22.4 [Rule 4] file 
submissions;
    (ix) Date for conducting a pre-hearing conference;
    (x) Dates and duration of the hearing; and
    (xi) Any other matter necessary for resolution before the hearing.
    (2) As soon as practicable after receipt of the parties' proposed 
schedule(s), the Board will issue an order establishing a schedule for 
pre-hearing submissions and events, taking into account the parties' 
proposed schedule, the nature of the case, and the scheduling needs of 
the Board.
    (c) Pre-Hearing Conference. Prior to the hearing, the Board will 
conduct a pre-hearing conference to discuss such matters as may be 
necessary to conduct an orderly and efficient hearing. Objections to 
evidence may be resolved during the pre-hearing conference or at such 
other time as established by the Board.
    (d) Pre-Hearing Briefs. At least 20 days before a scheduled 
hearing, each party shall file, in accordance with Sec.  22.6(b) of 
this part [Rule 6(b)], a pre-hearing statement of the case, which shall 
include the party's legal and factual analysis of the relevant issues, 
and how the party intends to prove its case.
    (e) Location of Hearing. Hearings will be held at 441 G Street, 
NW., Washington, DC 20548, unless otherwise ordered by the Board. The 
Board will consider a request for a hearing at another location if 
compelling reasons are timely presented.
    (f) Notice of Hearing. The parties, or their counsel, will be given 
at least 15 days notice of the time and place of a hearing on the 
merits, provided that the parties may, with the approval of the Board, 
waive notice and fix a mutually satisfactory time for the hearing. 
Continuances will not be granted except upon written request and for 
good cause.
    (g) Nature of Hearing. Hearings may be held by one or more of the 
panel members of the Board and shall be as informal as may be 
reasonable and appropriate under the circumstances. Each party may 
offer the testimony of witnesses, who shall be subject to cross-
examination by the opposing party, and such relevant and material 
evidence as they deem appropriate and as would be admissible under 
paragraph (h) of this section [Rule 16(h)], subject, however, to the 
sound discretion of the presiding Board member in supervising the 
extent and manner of presentation of such evidence. Stipulations of 
fact agreed upon by the parties must be in writing, must be filed with 
the Board, and may be used as evidence at the hearing. The parties may 
also stipulate to the testimony that would be given by a witness if the 
witness were present. The Board may at any time during the hearing 
require evidence or argument in addition to that put forth by the 
parties.
    (h) Admissibility and Weight of Evidence. In general, any relevant 
and material evidence that would be admissible under the Federal Rules 
of Evidence will be admitted to the record. However, evidence which may 
not be admissible under the Federal Rules of Evidence, including 
hearsay, may be admitted at the discretion of the presiding Board 
member. The Board may also exclude evidence to avoid unfair prejudice, 
confusion of the issues, undue delay, waste of time, or needless 
presentation of cumulative evidence. The weight to be attached to 
evidence and credibility to be accorded

[[Page 36265]]

witnesses will be determined by the Board, in its discretion.
    (i) Examination of Witnesses. Witnesses before the Board will be 
examined orally under oath or affirmation, unless the facts are 
stipulated or the Board shall otherwise order. If the testimony of a 
witness is not given under oath, the Board may warn the witness that 
his or her statements may be subject to the provisions of title 18, 
United States Code, secs. 287 and 1001, and any other provisions 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.
    (j) Availability of Witnesses, Documents, and Other Tangible 
Things. It is the responsibility of a party desiring to call any 
witness, or to use any document or other tangible thing as an exhibit 
in the course of a hearing, to ensure that whoever it wishes to call 
and whatever it wishes to use is available at the hearing. In the event 
that a witness does not appear or refuses to answer a question, or 
evidence requested by the Board is not produced, the Board may draw an 
adverse inference of the fact in question against the party responsible 
for providing the witness or evidence.
    (k) Issues Not Raised by the Pleadings. If evidence is objected to 
at a hearing on the ground that it is not within the issues raised by 
the pleadings, it may nevertheless be admitted by the Board, in its 
discretion, if it is within the proper scope of the appeal. If such 
evidence is admitted, the pleadings may be amended to conform to the 
evidence. The Board may also grant the objecting party a continuance to 
enable it to respond to the evidence.
    (l) Delay by the Parties. If the Board determines that the hearing 
is being unreasonably delayed by the failure of a party to produce 
evidence, or by the undue prolongation of the presentation of evidence, 
it may, by written order or by ruling from the bench, prescribe a time 
or times within which the presentation of evidence must be concluded, 
establish time limits on the direct or cross-examination of witnesses, 
and enforce such order or ruling by appropriate sanctions.
    (m) Exhibits. Unless otherwise directed by the Board, each party 
shall prepare (jointly or individually) hearing exhibit books for use 
during the hearing, and shall provide such books to the Board and 
opposing counsel at least 3 days before the hearing commences. The 
books shall consist of documents (or relevant excerpts from documents) 
placed in a 3-ring binder or similar loose-leaf binder bound on the 
left margin, separated by numbered tabs, with an index of the documents 
in the front of each binder. The index shall identify the document by 
name and, where applicable, the Sec.  22.4 [Rule 4] file citation (tab 
and Bates numbers). Each document page included in the exhibit books 
must be marked with the corresponding Bates number or applicable 
numerical markings used in the Sec.  22.4 [Rule 4] file. Documents not 
contained within the hearing books shall be marked by the Board during 
the hearing. Documents contained in the hearing book that are not 
admitted into evidence during the hearing will not become part of the 
record unless already part of the Sec.  22.4 [Rule 4] file, or unless 
their inclusion in the record is requested by the presenting party and 
permitted by the Board.
    (n) Copies. Copies of documents may be offered and received into 
evidence as exhibits, provided that they are of equal legibility and 
quality as the originals, and such copies shall have the same force and 
effect as if they were the originals. If the Board so directs, the 
party offering a copy of a document as an exhibit shall have the 
original available at the hearing for examination by the Board and any 
other party. When the original of a document has been received in 
evidence, an accurate copy thereof may be substituted in evidence for 
the original by leave of the Board at any time.
    (o) Absence of Parties or Counsel. The unexcused absence of a party 
or his authorized representative at the time and place set for the 
hearing will not be occasion for delay. In such event, the hearing will 
proceed and the case will be regarded as submitted by the absent party 
unless he or she appears before the conclusion of the hearing and 
offers additional evidence.
    (p) Transcripts. Unless the Board orders otherwise, all hearings 
will be stenographically or electronically recorded and transcribed. 
Other conferences and proceedings may be recorded or transcribed by 
order of the Board. Generally, the Board will arrange for the 
stenographer to record and transcribe the proceeding. Each party is 
responsible for purchasing its own copy of the transcript(s) or 
recording(s). Waiver of recordation and transcription may be especially 
suitable for appeals resolved under the small claims procedure 
prescribed in Sec.  22.22(c) of this part [Rule 22(c)].
    (q) Post-Hearing Briefs. The Board may require the submission of 
post-hearing briefs. In such