Rules of Procedure of the Government Accountability Office Contract Appeals Board, 60609-60611 [E8-24340]
Download as PDF
<![CDATA[
60609
Rules and Regulations
Federal Register
Vol. 73, No. 199
Tuesday, October 14, 2008
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
The President
3 CFR
Proclamation 8296—To Modify Dutyfree Treatment Under The Caribbean
Basin Economic Recovery Act and for
Other Purposes
Correction
In Presidential document E8–23562
beginning on page 57475 in the issue of
Friday, October 3, 2008, make the
following correction:
On page 57483 the Filed date should
read ‘‘10–2–08’’.
[FR Doc. Z8–23562 Filed 10–10–08; 8:45 am]
BILLING CODE 1505–01–D
GOVERNMENT ACCOUNTABILITY
OFFICE
4 CFR Part 22
Rules of Procedure of the Government
Accountability Office Contract Appeals
Board
AGENCY:
Government Accountability
Office.
ebenthall on PROD1PC60 with RULES
ACTION:
Final rule.
SUMMARY: This document contains the
final revisions to the interim rules of
procedures of the Government
Accountability Office (GAO) Contract
Appeals Board (Board), which was
published in the Federal Register on
June 26, 2008. These rules supersede the
interim rules of the Board and will
govern all proceedings before the Board
filed on or after October 1, 2007.
DATES: Effective Date: October 14, 2008.
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
VerDate Aug<31>2005
15:35 Oct 10, 2008
Jkt 217001
Federal Information Relay Service at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
The Board published in the Federal
Register at 73 FR 36257, June 26, 2008,
interim rules of procedure along with a
notice inviting comments on those
rules. This notice announced the
intention to promulgate final rules of
procedure, following the Board’s review
and consideration of all comments, to
govern all proceedings before the Board
that are filed on or after October 1, 2007.
The Board has considered all comments
received, revised the interim rules in
part (as explained below), and now
promulgates its final rules of procedure.
These rules are promulgated pursuant to
the Board’s authority contained in
section 1501(d) of title I of division H
of the Consolidated Appropriations Act
of 2008, and will be contained in 4 CFR
part 22.
Summary of Comments and Changes
The Board received comments from
two commentators, including one
legislative branch agency and one bar
association. The Board carefully
considered each comment and adopted
some of the suggestions made by the
commentators. In addition, the Board
made minor changes to the interim rules
to correct numbering of certain
paragraphs and to clarify discovery
rules to reflect current motions practice
before the Board. The comments and
changes are discussed below.
Sec. 22.2 [Board Consideration]. One
commentator suggested that the Board
clarify how all Board members ‘‘will be
in a position to make an informed
decision’’ in cases where a hearing is
conducted by only one member of a
three-member Board. In such cases, it is
the Board’s practice to make the entire
record, including the hearing transcript,
available to all members of the panel.
The Board does not believe that
clarification of the rules is necessary to
address this issue.
Secs. 22.3 [Appeals—How Taken] and
22.28 [Time]. One commentator raised
concern that the Board’s reference to
5:30 p.m. ‘‘Eastern Standard Time’’ in
paragraph (b) of section 22.3 and in
section 22.28 could cause confusion
because of the use of daylight savings
time. The commentator suggested that
the Board instead refer to 5:30 p.m.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
‘‘local time in Washington, DC.’’ The
Board agrees and has revised the
sections accordingly.
One commentator also suggested that
paragraph (d) of section 22.3, referring
to the Board’s issuance of a docketing
notice, be modified to indicate that the
Board will identify in the docketing
notice the presiding member of the
panel, as well as the availability of
alternative dispute resolution (ADR).
Current Board practice is to provide this
information in the docketing notices
issued in all cases. The Board believes
that these matters can be appropriately
addressed in its docketing notices and
declines to modify its rule.
Secs. 22.4 [Appeal File] and 22.5
[Pleadings]. One commentator suggested
that the Board reverse the order of these
sections. The Board declines to do so.
The Appeal file is commonly referred to
as the Rule 4 file and the placement of
the rule at section 22.4 [Rule 4] was
intentional so as to avoid confusion.
Reference to the ‘‘Rule 4’’ file is
consistent with other board practice and
with what is expected by experienced
practitioners in this field.
Sec. 22.8 [General Discovery
Procedures]. The interim rules have led
to confusion among some parties as to
whether motions concerning discovery
must be filed before the end date for
discovery. To clarify, the Board adds
paragraph (k) to section 22.8 to require
parties to file all motions concerning
discovery, including motions to compel
discovery, on or before the end date of
discovery to the maximum extent
possible. The revised rule further
provides that late-filed motions will not
be considered except for good cause
shown.
Sec. 22.13 [Requests for Admission].
Paragraphs (a)(1)(A) and (a)(1)(B) are
renumbered as (a)(1)(i) and (a)(1)(ii) to
be consistent with the numbering in
other sections and paragraphs.
Sec. 22.15 [Conferences and Orders].
One commentator suggested that the
Board consider holding a mandatory
initial scheduling conference after the
filing of the complaint and answer to
discuss procedural issues, discovery,
and case development and resolution.
The Board agrees that an initial
scheduling conference with the parties
is a useful tool to orderly case
development and resolution. Therefore,
the Board revises section 22.15 to
include a new paragraph (a), titled
E:\FR\FM\14OCR1.SGM
14OCR1
60610
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations
‘‘Initial Scheduling Conference,’’ which
states: ‘‘As soon as practicable after the
filing of the complaint and answer, the
Board shall schedule an initial status
conference to discuss the issues of case,
the procedures available under the
Board’s rules of resolution of the case,
and a tentative schedule for such
resolution, including the plan for
possible discovery required by Rule
8(c), the possibility of alternative
dispute resolution (see Rule 24), and the
possibility of dispositive motions.’’
Paragraphs (a) and (b) of the interim rule
are renumbered as paragraphs (b) and
(c).
Sec. 22.16 [Hearings]. One
commentator suggested that the Board
clarify whether the Board must honor a
party’s election of a hearing when the
other party elects to proceed without a
hearing. The Board intends to hold a
hearing if a hearing is requested. Thus,
paragraph (a) of section 22.16 is revised
to replace the word ‘‘may’’ with ‘‘shall.’’
Sec. 22.19 [Findings and Decisions of
the Board]. One commentator queried
how the Board’s decision will be made
available to the public, and how
judgments will be paid. As is the
current practice, Board decisions will be
made available on the Board Web site
(https://www.gao.gov) and through CCH,
Westlaw, and Lexis. The Board declines
to address the availability of its
decisions and the payment of judgments
in its rules.
Sec. 22.24 [Alternative Dispute
Resolution]. One commentator
suggested that the Board clarify the rule
to ‘‘enhance’’ the Board’s delivery of
ADR services, address confidentiality
restrictions with respect to the Board’s
use of ADR, and provide guidance
concerning available ADR techniques.
As the Board notes in its interim rules,
ADR guidelines, procedures, and
requirements for implementing ADR
will be prescribed by the agreement of
the parties and the Board. This
recognizes the uniqueness of each case
and provides the flexibility to adapt
ADR procedures to fit the needs and the
concerns of the parties. The Board
believes that specifying procedures in
its rules would serve only to limit the
possible uses of ADR and therefore
declines to revise its rule.
ebenthall on PROD1PC60 with RULES
List of Subjects in 4 CFR Part 22
Administrative practice and
procedure, Contract Appeals Board,
Government contracts.
■ Accordingly, the interim rule which
was published in the Federal Register at
73 FR 36257, June 26, 2008, is adopted
as a final rule with the following
changes to part 22.
VerDate Aug<31>2005
15:35 Oct 10, 2008
Jkt 217001
PART 22—RULES OF PROCEDURE OF
THE GOVERNMENT ACCOUNTABILITY
OFFICE CONTRACT APPEALS BOARD
1. The authority citation for part 22
continues to read as follows:
■
Authority: Sec. 1501, Pub. L. 110–161, 121
Stat. 2249.
2. Amend § 22.3 by revising paragraph
(b)(5) as follows:
■
§ 22.3
Appeals—How Taken [Rule 3].
*
*
*
*
*
(b) * * *
(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. local time in
Washington, DC, or on the next business
day if received after 5:30 p.m.
*
*
*
*
*
3. Amend § 22.8 by adding paragraph
(k) as follows:
■
§ 22.8
8].
General Discovery Procedures [Rule
*
*
*
*
*
(k) Discovery Motions, Timing. All
motions concerning discovery,
including motions to compel discovery,
shall be filed on or before the scheduled
end date of discovery to the maximum
extent practicable. Motions that are filed
after the end date of discovery will not
be considered except for good cause
shown.
§ 22.13
[Amended]
4. Amend § 22.13 by redesignating
paragraphs (a)(1)(A) and (a)(1)(B) as
paragraphs (a)(1)(i) and (a)(1)(ii).
■
■
5. Revise § 22.15 to read as follows:
§ 22.15
Conferences and Orders [Rule 15].
(a) Initial Status Conference. As soon
as practicable after the filing of the
complaint and answer, the Board shall
schedule an initial status conference to
discuss the issues of case, the
procedures available under the Board’s
rules of resolution of the case, and a
tentative schedule for such resolution,
including the plan for possible
discovery required by Rule 8(c), the
possibility of alternative dispute
resolution (see Rule 24), and the
possibility of dispositive motions.
(b) 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
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
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.
(c) 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.
6. Amend § 22.16 by revising
paragraph (a) to read as follows:
■
§ 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 § 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 shall
proceed with a hearing attended by the
remaining parties.
*
*
*
*
*
■ 7. Revise § 22.28 to read as follows:
§ 22.28
Time [Rule 28].
In computing any period of time
described in these rules, ‘‘days’’ refer to
calendar days, unless otherwise
specified in these rules. The first day
from which the period begins to run is
not counted, and when the last day of
the period is Saturday, Sunday, or a
Federal holiday, the period extends to
the next day that is not a Saturday,
E:\FR\FM\14OCR1.SGM
14OCR1
Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations
Sunday, or a Federal holiday.
Documents shall be deemed ‘‘filed’’ on
the date and time received by the Board
if received before 5:30 p.m. local time in
Washington, DC, or the next business
day if received after 5:30 p.m.
Dated: October 8, 2008.
James A. Spangenberg,
Chairman, Government Accountability
Contract Appeals Board.
[FR Doc. E8–24340 Filed 10–10–08; 8:45 am]
BILLING CODE 1610–02–P
Comments
Comments on the proposed rule were
requested by October 19, 2007. OPM
received one comment from a private
citizen who noticed a typographical
error in sections 316.302(b)(4) and
316.402(b)(4). We have corrected this
error by changing ‘‘of’’ to ‘‘or’’ the third
time it appears in each of those
paragraphs.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 315 and 316
RIN 3206–AL29
Disabled Veterans Documentation
U.S. Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
SUMMARY: The U.S. Office of Personnel
Management (OPM) is issuing final
regulations regarding documentation
required for appointments of disabled
veterans. The purpose of this change is
to provide consistency with the policy
implemented by the Department of
Veterans Affairs.
DATES: Effective Date: November 13,
2008.
FOR FURTHER INFORMATION CONTACT:
Darlene Phelps at (202) 606–0960, by
FAX on (202) 606–2329, TDD at (202)
418–3134, or by e-mail at
Darlene.Phelps@opm.gov.
On August
20, 2007, OPM proposed regulations at
72 FR 46410 regarding documentation
required for noncompetitive temporary
and term appointments, and conversion
of 30 percent or more disabled veterans
from nonpermanent appointments. The
Department of Veterans Affairs (VA)
considers any VA disability letter issued
for purposes of establishing veterans’
preference in employment proof of a
permanent record of disability, unless
the letter specifically states otherwise.
We proposed to modify sections
315.707(a)(2)(ii) and (iii), 316.302(b)(4),
and 316.402(b)(4) of title 5, Code of
Federal Regulations. In addition, in
section 315.707(a)(2)(ii) and (iii), we are
adding a reference to disability
determinations from a branch of the
Armed Forces, as these entities may also
certify the existence of 30 percent or
more disability. These modifications
will clarify that a 30 percent or more
disabled veteran who has proof of
disability from the VA or a branch of the
ebenthall on PROD1PC60 with RULES
SUPPLEMENTARY INFORMATION:
VerDate Aug<31>2005
15:35 Oct 10, 2008
Jkt 217001
Armed Forces dated 1991 or later is
eligible for a noncompetitive temporary
or term appointment. The employee
may be noncompetitively converted to a
permanent appointment in the
competitive service at any time during
such an appointment. Lastly, we are
adding the word ‘‘so’’ in section
315.707(a)(2)(iii) to clarify that ‘‘rated’’
refers to a service-connected disability
rating of 30 percent or more. We
inadvertently omitted this clarification
in the proposed regulation.
E.O. 12866, Regulatory Review
This rule has been reviewed by the
Office of Management and Budget in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities
because it will apply only to Federal
agencies and employees.
Paperwork Reduction Act
The information collection
requirements contained in this final rule
are currently approved by OMB under
3206–0001. This final regulation does
not modify this approved collection.
List of Subjects in 5 CFR Parts 315 and
316
Government employees.
U.S. Office of Personnel Management.
Michael W. Hager,
Acting Director.
Accordingly, OPM is amending 5 CFR
parts 315 and 316 as follows:
■
PART 315—CAREER AND CAREER
CONDITIONAL EMPLOYMENT
1. The authority citation for part 315
continues to read as follows:
■
Authority: 5 U.S.C. 1302, 3301, and 3302;
E.O. 10577, 3 CFR, 1954–1958 Comp. p. 218,
unless otherwise noted; and E.O. 13162.
Secs. 315.601 and 315.609 also issued under
22 U.S.C. 3651 and 3652. Secs. 315.602 and
315.604 also issued under 5 U.S.C. 1104. Sec.
315.603 also issued under 5 U.S.C. 8151.
Section 315.605 also issued under E.O.
12034, 3 CFR, 1978 Comp. p. 111. Section
315.606 also issued under E.O. 11219, 3 CFR,
1964–1965 Comp. p. 303. Sec 315.607 also
issued under 22 U.S.C. 2506. Sec. 315.608
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
60611
also issued under E.O. 12721, 3 CFR, 1990
Comp. p. 293. Sec. 315.610 also issued under
5 U.S.C. 3304(d). Sec. 315.611 also issued
under Section 511, Pub. L. 106–117, 113 Stat.
1575–76. Sec. 315.708 also issued under E.O.
13318. Sec. 315.710 also issued under E.O.
12596, 3 CFR, 1987 Comp. p. 229. Subpart I
also issued under 5 U.S.C. 3321, E.O. 12107,
3 CFR, 1978 Comp. p. 264.
Subpart G—Conversion to Career or
Career-Conditional Employment From
Other Types of Employment
2. In 315.707, revise paragraphs
(a)(2)(ii) and (iii) to read as follows:
■
§ 315.707
Disabled veterans.
(a) * * *
(2) * * *
(ii) Have been rated by the
Department of Veterans Affairs since
1991 or later, or by a branch of the
Armed Forces at any time, as having a
compensable service-connected
disability of 30 percent or more; or
(iii) Have been so rated by the
Department of Veterans Affairs, or by a
branch of the Armed Forces, at the time
of a qualifying temporary appointment
effected within the year immediately
preceding, or a term appointment
effected within four years immediately
preceding, the conversion.
*
*
*
*
*
PART 316—TEMPORARY AND TERM
EMPLOYMENT
3. The authority citation for part 316
continues to read as follows:
■
Authority: 5 U.S.C. 3301, 3302; E.O. 10577,
3 CFR, 1954–1958 Comp., p. 218.
Subpart C—Term Employment
4. In 316.302, revise paragraph (b)(4)
to read as follows:
■
§ 316.302
Selection of term employees.
*
*
*
*
*
(b) * * *
(4) Appointment under 5 U.S.C. 3112
(veterans with compensable serviceconnected disability of 30 percent or
more). The disability must be
documented by a notice of retirement or
discharge due to service-connected
disability from active military service
dated at any time, or by a notice of
compensable disability rating from the
Department of Veterans Affairs, dated
1991 or later;
*
*
*
*
*
Subpart D—Temporary Limited
Employment
5. In 316.402, revise paragraph (b)(4)
to read as follows:
■
E:\FR\FM\14OCR1.SGM
14OCR1
]]>Agencies
[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Rules and Regulations]
[Pages 60609-60611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24340]
=======================================================================
-----------------------------------------------------------------------
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 22
Rules of Procedure of the Government Accountability Office
Contract Appeals Board
AGENCY: Government Accountability Office.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document contains the final revisions to the interim
rules of procedures of the Government Accountability Office (GAO)
Contract Appeals Board (Board), which was published in the Federal
Register on June 26, 2008. These rules supersede the interim rules of
the Board and will govern all proceedings before the Board filed on or
after October 1, 2007.
DATES: Effective Date: October 14, 2008.
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 Board published in the Federal Register at 73 FR 36257, June
26, 2008, interim rules of procedure along with a notice inviting
comments on those rules. This notice announced the intention to
promulgate final rules of procedure, following the Board's review and
consideration of all comments, to govern all proceedings before the
Board that are filed on or after October 1, 2007. The Board has
considered all comments received, revised the interim rules in part (as
explained below), and now promulgates its final rules of procedure.
These rules are promulgated pursuant to the Board's authority contained
in section 1501(d) of title I of division H of the Consolidated
Appropriations Act of 2008, and will be contained in 4 CFR part 22.
Summary of Comments and Changes
The Board received comments from two commentators, including one
legislative branch agency and one bar association. The Board carefully
considered each comment and adopted some of the suggestions made by the
commentators. In addition, the Board made minor changes to the interim
rules to correct numbering of certain paragraphs and to clarify
discovery rules to reflect current motions practice before the Board.
The comments and changes are discussed below.
Sec. 22.2 [Board Consideration]. One commentator suggested that the
Board clarify how all Board members ``will be in a position to make an
informed decision'' in cases where a hearing is conducted by only one
member of a three-member Board. In such cases, it is the Board's
practice to make the entire record, including the hearing transcript,
available to all members of the panel. The Board does not believe that
clarification of the rules is necessary to address this issue.
Secs. 22.3 [Appeals--How Taken] and 22.28 [Time]. One commentator
raised concern that the Board's reference to 5:30 p.m. ``Eastern
Standard Time'' in paragraph (b) of section 22.3 and in section 22.28
could cause confusion because of the use of daylight savings time. The
commentator suggested that the Board instead refer to 5:30 p.m. ``local
time in Washington, DC.'' The Board agrees and has revised the sections
accordingly.
One commentator also suggested that paragraph (d) of section 22.3,
referring to the Board's issuance of a docketing notice, be modified to
indicate that the Board will identify in the docketing notice the
presiding member of the panel, as well as the availability of
alternative dispute resolution (ADR). Current Board practice is to
provide this information in the docketing notices issued in all cases.
The Board believes that these matters can be appropriately addressed in
its docketing notices and declines to modify its rule.
Secs. 22.4 [Appeal File] and 22.5 [Pleadings]. One commentator
suggested that the Board reverse the order of these sections. The Board
declines to do so. The Appeal file is commonly referred to as the Rule
4 file and the placement of the rule at section 22.4 [Rule 4] was
intentional so as to avoid confusion. Reference to the ``Rule 4'' file
is consistent with other board practice and with what is expected by
experienced practitioners in this field.
Sec. 22.8 [General Discovery Procedures]. The interim rules have
led to confusion among some parties as to whether motions concerning
discovery must be filed before the end date for discovery. To clarify,
the Board adds paragraph (k) to section 22.8 to require parties to file
all motions concerning discovery, including motions to compel
discovery, on or before the end date of discovery to the maximum extent
possible. The revised rule further provides that late-filed motions
will not be considered except for good cause shown.
Sec. 22.13 [Requests for Admission]. Paragraphs (a)(1)(A) and
(a)(1)(B) are renumbered as (a)(1)(i) and (a)(1)(ii) to be consistent
with the numbering in other sections and paragraphs.
Sec. 22.15 [Conferences and Orders]. One commentator suggested that
the Board consider holding a mandatory initial scheduling conference
after the filing of the complaint and answer to discuss procedural
issues, discovery, and case development and resolution. The Board
agrees that an initial scheduling conference with the parties is a
useful tool to orderly case development and resolution. Therefore, the
Board revises section 22.15 to include a new paragraph (a), titled
[[Page 60610]]
``Initial Scheduling Conference,'' which states: ``As soon as
practicable after the filing of the complaint and answer, the Board
shall schedule an initial status conference to discuss the issues of
case, the procedures available under the Board's rules of resolution of
the case, and a tentative schedule for such resolution, including the
plan for possible discovery required by Rule 8(c), the possibility of
alternative dispute resolution (see Rule 24), and the possibility of
dispositive motions.'' Paragraphs (a) and (b) of the interim rule are
renumbered as paragraphs (b) and (c).
Sec. 22.16 [Hearings]. One commentator suggested that the Board
clarify whether the Board must honor a party's election of a hearing
when the other party elects to proceed without a hearing. The Board
intends to hold a hearing if a hearing is requested. Thus, paragraph
(a) of section 22.16 is revised to replace the word ``may'' with
``shall.''
Sec. 22.19 [Findings and Decisions of the Board]. One commentator
queried how the Board's decision will be made available to the public,
and how judgments will be paid. As is the current practice, Board
decisions will be made available on the Board Web site (https://
www.gao.gov) and through CCH, Westlaw, and Lexis. The Board declines to
address the availability of its decisions and the payment of judgments
in its rules.
Sec. 22.24 [Alternative Dispute Resolution]. One commentator
suggested that the Board clarify the rule to ``enhance'' the Board's
delivery of ADR services, address confidentiality restrictions with
respect to the Board's use of ADR, and provide guidance concerning
available ADR techniques. As the Board notes in its interim rules, ADR
guidelines, procedures, and requirements for implementing ADR will be
prescribed by the agreement of the parties and the Board. This
recognizes the uniqueness of each case and provides the flexibility to
adapt ADR procedures to fit the needs and the concerns of the parties.
The Board believes that specifying procedures in its rules would serve
only to limit the possible uses of ADR and therefore declines to revise
its rule.
List of Subjects in 4 CFR Part 22
Administrative practice and procedure, Contract Appeals Board,
Government contracts.
0
Accordingly, the interim rule which was published in the Federal
Register at 73 FR 36257, June 26, 2008, is adopted as a final rule with
the following changes to part 22.
PART 22--RULES OF PROCEDURE OF THE GOVERNMENT ACCOUNTABILITY OFFICE
CONTRACT APPEALS BOARD
0
1. The authority citation for part 22 continues to read as follows:
Authority: Sec. 1501, Pub. L. 110-161, 121 Stat. 2249.
0
2. Amend Sec. 22.3 by revising paragraph (b)(5) as follows:
Sec. 22.3 Appeals--How Taken [Rule 3].
* * * * *
(b) * * *
(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. local time
in Washington, DC, or on the next business day if received after 5:30
p.m.
* * * * *
0
3. Amend Sec. 22.8 by adding paragraph (k) as follows:
Sec. 22.8 General Discovery Procedures [Rule 8].
* * * * *
(k) Discovery Motions, Timing. All motions concerning discovery,
including motions to compel discovery, shall be filed on or before the
scheduled end date of discovery to the maximum extent practicable.
Motions that are filed after the end date of discovery will not be
considered except for good cause shown.
Sec. 22.13 [Amended]
0
4. Amend Sec. 22.13 by redesignating paragraphs (a)(1)(A) and
(a)(1)(B) as paragraphs (a)(1)(i) and (a)(1)(ii).
0
5. Revise Sec. 22.15 to read as follows:
Sec. 22.15 Conferences and Orders [Rule 15].
(a) Initial Status Conference. As soon as practicable after the
filing of the complaint and answer, the Board shall schedule an initial
status conference to discuss the issues of case, the procedures
available under the Board's rules of resolution of the case, and a
tentative schedule for such resolution, including the plan for possible
discovery required by Rule 8(c), the possibility of alternative dispute
resolution (see Rule 24), and the possibility of dispositive motions.
(b) 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.
(c) 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.
0
6. Amend Sec. 22.16 by revising paragraph (a) to read as follows:
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 shall proceed with a hearing attended by the
remaining parties.
* * * * *
0
7. Revise Sec. 22.28 to read as follows:
Sec. 22.28 Time [Rule 28].
In computing any period of time described in these rules, ``days''
refer to calendar days, unless otherwise specified in these rules. The
first day from which the period begins to run is not counted, and when
the last day of the period is Saturday, Sunday, or a Federal holiday,
the period extends to the next day that is not a Saturday,
[[Page 60611]]
Sunday, or a Federal holiday. Documents shall be deemed ``filed'' on
the date and time received by the Board if received before 5:30 p.m.
local time in Washington, DC, or the next business day if received
after 5:30 p.m.
Dated: October 8, 2008.
James A. Spangenberg,
Chairman, Government Accountability Contract Appeals Board.
[FR Doc. E8-24340 Filed 10-10-08; 8:45 am]
BILLING CODE 1610-02-P
