Rules of Practice of the Postal Service Board of Contract Appeals, 6844-6852 [E9-2843]

Agencies

• Postal Service

[Federal Register Volume 74, Number 27 (Wednesday, February 11, 2009)]
[Proposed Rules]
[Pages 6844-6852]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2843]


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POSTAL SERVICE

39 CFR Part 955


Rules of Practice of the Postal Service Board of Contract Appeals

AGENCY: Postal Service.

ACTION: Proposed rule.

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SUMMARY: This document contains the rules of procedure of the Postal 
Service Board of Contract Appeals (Board) which will govern all 
proceedings before the Board. The Board was re-established by the 
National Defense Authorization Act for Fiscal Year 2006, to hear and 
decide contract disputes relative to a contract entered into by the 
United States Postal Service or the Postal Regulatory Commission. In 
addition the Board has jurisdiction over other matters assigned to it 
by the Postmaster General, and over matters otherwise authorized by 
applicable law. The Board intends to issue final, revised rules after 
considering all comments on the proposed rules.

[[Page 6845]]


DATES: Comments must be received on or before March 13, 2009.

ADDRESSES: Judicial Officer Department, United States Postal Service, 
2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.

FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro, 
Board Member, (703) 812-1910.

SUPPLEMENTARY INFORMATION: The Postal Service Board of Contract Appeals 
was re-established by section 847 of the National Defense Authorization 
Act for Fiscal Year 2006 (Pub. L. 109-163, 119 Stat. 3136), codified at 
section 8(c) of the Contract Disputes Act, 41 U.S.C. 607(c), to hear 
and decide contract disputes relative to a contract entered into by the 
United States Postal Service or the Postal Regulatory Commission.
    These revised rules of procedure have the same general intent and 
coverage as the existing rules. However, the revised rules have been 
updated, are more comprehensive than the existing rules, and are 
intended to reflect more precisely actual practice in proceedings 
before the Board.
    These revised rules will completely replace the existing rules of 
practice and once adopted as a final rule, will be effective for all 
appeals docketed by the Board on and after their effective date. While 
the language of the proposed rules may have changed considerably to 
enhance clarity and consistency, and to reflect more precisely the 
practices of the Board, we here identify the most significant changes 
of substance.
    The proposed rules provide that the Board may consider the Federal 
Rules of Civil Procedure and the Federal Rules of Evidence, where 
appropriate, for guidance in construing its rules and in processing 
appeals.
    The proposed rules provide that requests for extensions of time 
shall represent that the moving party has contacted the opposing party 
about the request, and indicate whether the opposing party consents to 
the extension, and if filed after the time for taking the required 
action has expired, indicate the reasons for the party's failure to 
have submitted the request timely.
    The proposed rules require the filing party to serve complaints and 
answers upon the opposing party. The only documents that should not be 
served on the opposing party are simultaneous briefs. The proposed 
rules also allow for filing by fax but provide that the Board may 
determine not to extend a filing deadline solely because the Board's 
fax machine is busy or unavailable, or the fax is incomplete or 
illegible. The rules do not permit electronic filing at this time.
    The proposed rules formalize Board precedent that notices of appeal 
may be filed either with the contracting officer or directly with the 
Board. Notices of appeal filed with the contracting officer are 
required to be forwarded by the contracting officer to the Board along 
with a copy of the contracting officer's final decision on which the 
appeal is based.
    The proposed rules require Postal Service counsel to file the 
appeal file within thirty days from receipt by Postal Service counsel 
of the Board's docketing notice, a change from the existing rules that 
require filing within thirty days from the date the contracting officer 
receives notice of an appeal. Objections to appeal file documents are 
to be made at least ten days prior to a hearing or the date specified 
for settling the record. The proposed rules require the appellant to 
file the complaint within forty-five days after receipt of the notice 
of docketing, a change from the existing rules that require filing 
within thirty days after receipt of the notice of docketing. The 
proposed rules also formalize Board practice that the Board may order 
the Postal Service to file the complaint in appeals involving 
affirmative claims by the Postal Service.
    The proposed rules specifically provide for summary judgment 
motions, and describe the requirements and limitations thereon.
    The proposed rules formalize the Board's practices regarding 
discovery and the requirements and limitations that may be prescribed 
thereon. Procedures for the production of documents have been 
specified. Requirements for motions to compel discovery responses have 
been clarified.
    The proposed rules clarify that hearings may be held at the Board's 
hearing room in Arlington, Virginia, or in another location convenient 
to the parties and witnesses. The proposed rules formalize the Board's 
practices regarding exclusion of witnesses at hearings. The proposed 
rules also provide that both parties will be provided transcripts or 
copies of proceedings without charge.
    The proposed rules require an attorney who has filed a notice of 
appearance and who wishes to withdraw from a case to file a motion or 
notice identifying the person that will assume responsibility for the 
party in the appeal and the contact information therefor. The proposed 
rules detail the Board's sanction powers over parties and attorneys.

List of Subjects in 39 CFR Part 955

    Administrative practice and procedure, Contract Disputes Act of 
1978, Postal Service.

    For the reasons stated in the preamble, the Postal Service proposes 
to revise 39 CFR Part 955 to read as follows:
    1. Part 955 is revised to read as follows:

PART 955--RULES OF PRACTICE BEFORE THE POSTAL SERVICE BOARD OF 
CONTRACT APPEALS

Sec.
955.1 Jurisdiction, procedure, service of papers.
955.2 Notice of appeals.
955.3 Contents of notice of appeal.
955.4 Forwarding of appeals.
955.5 Preparation, contents, organization, forwarding, and status of 
appeal file.
955.6 Motions.
955.7 Pleadings.
955.8 Amendments of pleadings or record.
955.9 Hearing election.
955.10 Prehearing briefs.
955.11 Prehearing or presubmission conference.
955.12 Submission without a hearing.
955.13 Optional Small Claims (Expedited) and Accelerated Procedures.
955.14 Settling the record.
955.15 Discovery.
955.16 Interrogatories to parties, admission of facts, and 
production and inspection of documents.
955.17 Depositions.
955.18 Hearings--where and when held.
955.19 Notice of hearings.
955.20 Unexcused absence of a party.
955.21 Nature of hearings.
955.22 Examination of witnesses.
955.23 Copies of papers, withdrawal of exhibits.
955.24 Posthearing briefs.
955.25 Transcript of proceedings.
955.26 Representation of the parties.
955.27 Withdrawal of attorney.
955.28 Suspension.
955.29 Decisions.
955.30 Motion for reconsideration.
955.31 Dismissal without prejudice.
955.32 Dismissal for failure to prosecute.
955.33 Ex parte communications.
955.34 Sanctions.
955.35 Subpoenas.
955.36 Effective Dates and Applicability.

    Authority:  39 U.S.C. 204, 401; 41 U.S.C. 607, 608.


Sec.  955.1  Jurisdiction, procedure, service of papers.

    (a) Jurisdiction for considering appeals. Pursuant to the Contract 
Disputes Act of 1978, 41 U.S.C. 601-613, the Postal Service Board of 
Contract Appeals (Board) has jurisdiction to consider and decide any 
appeal from a decision of a contracting officer of the United States 
Postal Service or the Postal Regulatory

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Commission relative to a contract made by either. In addition the Board 
has jurisdiction over other matters assigned to it by the Postmaster 
General, and over matters otherwise authorized by applicable law.
    (b) Organization and location of the Board. (1) The Board is 
located at 2101 Wilson Boulevard, Suite 600, Arlington, Virginia 22201-
3078. The Board's telephone number is (703) 812-1900, and its Web site 
is www.usps.gov/judicial. The Board's fax number is (703) 812-1901.
    (2) The Board consists of the Judicial Officer as Chairman, the 
Associate Judicial Officer as Vice Chairman, and the Judges of the 
Board, as appointed by the Postmaster General in accordance with the 
Contract Disputes Act of 1978, 41 U.S.C. 601-613. All members of the 
Board shall meet the qualifications established in the Contract 
Disputes Act. In general, appeals are assigned to a panel of at least 
three members of the Board. The decision of a majority of the panel 
constitutes the decision of the Board.
    (c) Board procedures--(1) Rules. Appeals to the Board are handled 
in accordance with the rules of the Board.
    (2) Administration and Interpretation of Rules. These rules will be 
interpreted so as to secure a just and inexpensive determination of 
appeals without unnecessary delay. Emphasis is placed upon the sound 
administration of these rules in specific cases, because it is 
impracticable to articulate a rule to fit every possible circumstance 
which may be encountered. The Board may consider the Federal Rules of 
Civil Procedure for guidance in construing those Board rules that are 
similar to Federal Rules and for matters not specifically covered 
herein.
    (3) Time, computation, and extensions. (i) All time limitations 
specified for various procedural actions are computed as maximums, and 
are not to be fully exhausted if the action described can be 
accomplished in a lesser period. These time limitations are similarly 
eligible for extension in appropriate circumstances.
    (ii) Except as otherwise provided by law, in computing any period 
of time prescribed by these rules or by any order of the Board, the day 
of the event from which the designated period of time begins to run 
shall not be included, but the last day of the period shall be included 
unless it is a Saturday, Sunday, or a federal holiday in which event 
the period shall run to the end of the next business day. Except as 
otherwise provided in these rules or an applicable order, prescribed 
periods of time are measured in calendar days rather than business 
days.
    (iii) Requests for extensions of time from either party shall be 
made in writing stating good cause therefor, shall represent that the 
moving party has contacted the opposing party about the request, and 
shall indicate whether the opposing party consents to the extension. If 
the request for extension of time is filed after the time for taking 
the required action has expired, the request should indicate the 
reasons for the party's failure to have submitted the request before 
that time expired.
    (4) Place of filings. Unless the Board otherwise directs, pleadings 
and other communications shall be filed with the Recorder of the Board 
at its office at 2101 Wilson Boulevard, Suite 600, Arlington, Virginia 
22201-3078. Generally, and unless otherwise prescribed by law, rule or 
applicable Board order, the Board considers documents filed upon the 
earlier of receipt by the Recorder of the Board during the Board's 
working hours or, if mailed, the date mailed to the Board. A United 
States Postal Service postmark shall be prima facie evidence that the 
document with which it is associated was mailed on the date of the 
postmark.
    (5) Service of papers. Papers shall be served personally or by 
mail, addressed to the party upon whom service is to be made. Copies of 
simultaneous briefs shall be filed directly with the Board for 
distribution and shall not be sent directly by the parties to each 
other. The party filing any other paper with the Board shall send a 
copy thereof to the opposing party, by an equally or more expeditious 
means of transmittal, noting on the paper filed with the Board, or on 
the transmitting letter, that a copy has been so furnished. The filing 
of a document by fax transmission occurs upon receipt by the Board of 
the entire legible submission by fax. The Board may determine not to 
extend a deadline for filing solely because the Board's fax machine is 
busy or otherwise unavailable when a filing is due.


Sec.  955.2  Notice of appeals.

    Notice of an appeal must be in writing, and the original, together 
with two copies, may be filed with the contracting officer from whose 
decision the appeal is taken, or may be filed directly with the Board. 
The notice of appeal must be mailed or otherwise filed within the time 
specified by applicable law.


Sec.  955.3  Contents of notice of appeal.

    (a) A notice of appeal from a contracting officer's decision should 
indicate that an appeal is thereby intended. It should identify the 
contract by number and identify the decision from which the appeal is 
taken, or it should attach a copy of the contracting officer's 
decision. If an appeal is taken from the failure of a contracting 
officer to issue a decision, the notice of appeal should describe in 
detail the claim that the contracting officer has failed to decide and/
or attach a copy of the claim that the contracting officer has failed 
to decide, and explain that the contracting officer has failed to 
decide the claim as required.
    (b) The notice of appeal should be signed personally by the 
appellant (the contractor taking the appeal), or by an officer of the 
appellant corporation or member of the appellant firm, or by the 
contractor's duly authorized representative or attorney. The complaint 
referred to in Sec.  955.7 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.


Sec.  955.4  Forwarding of appeals.

    Upon receipt of a notice of appeal in any form, the contracting 
officer shall indicate thereon the date of mailing (or date of receipt, 
if otherwise conveyed) and within 10 days shall forward said notice of 
appeal to the Board, and shall include a copy of the contracting 
officer's final decision if one has been issued. Following receipt by 
the Board of the original notice of an appeal (whether through the 
contracting officer or otherwise), the contractor and contracting 
officer will be advised promptly of its receipt, and the contractor 
will be furnished a copy of these rules.


Sec.  955.5  Preparation, contents, organization, forwarding, and 
status of appeal file.

    (a) Duties of the respondent. Within 30 days from receipt of the 
Board's docketing notice, or such other period as the Board may order, 
the respondent's counsel shall file with the Board an appeal file 
consisting of all documents pertinent to the appeal and shall provide a 
copy to the appellant. The appeal file shall include:
    (1) The claim and contracting officer's final decision from which 
the appeal is taken;
    (2) The contract, including pertinent specifications, amendments, 
plans and drawings;
    (3) All correspondence between the parties pertinent to the appeal;
    (4) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the 
matter in dispute made prior to

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the filing of the notice of appeal with the Board; and
    (5) Any additional information considered pertinent.
    (b) Duties of the appellant. Within 30 days after receipt of a copy 
of the appeal file, the appellant shall supplement the appeal file by 
transmitting to the Board any documents not contained therein 
considered to be pertinent to the appeal, and shall furnish copies of 
such documents to Postal Service counsel.
    (c) Organization of appeal file. Documents in the appeal file or 
supplement, as applicable, may be originals or legible copies thereof, 
and shall be arranged in chronological order where practicable, 
numbered sequentially, tabbed, and indexed to identify the contents. 
Page numbering shall be consecutive and continuous from one document to 
the next, so that the complete file or supplement, as applicable, will 
consist of one set of consecutively numbered pages.
    (d) Lengthy documents. The Board may waive the requirement of 
furnishing to the other party copies of bulky, lengthy, or out-of-size 
documents in the appeal file when a party has shown that doing so would 
impose an undue burden. The party filing with the Board a document as 
to which such a waiver has been granted, shall notify the other party 
at the time of filing that the document is available for inspection at 
the offices of the Board or of the party.
    (e) Status of documents in appeal file. Documents contained in the 
appeal file are considered, without further action by the parties, as 
part of the record upon which the Board will render its decision, 
unless a party objects to the consideration of a particular document. 
Unless otherwise provided by Board order, any such objection shall be 
made at least 10 days prior to a hearing or the date specified for 
settling the record in the event there is no hearing on the appeal. If 
timely objection to a document is made, the Board will rule upon its 
admissibility into the record as evidence in accordance with Sec. Sec.  
955.14 and 955.21.


Sec.  955.6  Motions.

    (a) Any motion addressed to the jurisdiction of the Board shall be 
promptly filed. Hearing on the motion may be afforded on application of 
either party. The Board may at any time and on its own motion raise the 
issue of its jurisdiction to proceed with a particular case.
    (b) A motion filed in lieu of an answer shall be filed no later 
than the date on which the answer is required to be filed or such later 
date as may be established by Board order. Any other dispositive motion 
shall be filed as soon as practicable after the grounds therefor are 
known.
    (c) Motions for summary judgment may be considered by the Board. 
However, the Board may defer ruling on a motion for summary judgment, 
in its discretion, until after a hearing or other presentation of 
evidence. Motions for summary judgment may be filed only when a party 
believes that, based upon uncontested material facts, it is entitled to 
relief as a matter of law. The parties are to consider proceeding by 
submission of the case without a hearing in accordance with Sec.  
955.12, in lieu of a motion for summary judgment.
    (1) Motions for summary judgment shall include a separate document 
titled Statement of Uncontested Facts, which shall contain in 
separately numbered paragraphs all of the material facts upon which the 
moving party bases its motion and as to which it contends there is no 
genuine issue. This statement shall include references to affidavits, 
declarations and/or documents relied upon to support such statement.
    (2) The opposing party shall file with its opposition a separate 
document titled Statement of Genuine Issues. This document shall 
identify, by reference to specific paragraph numbers in the moving 
party's Statement of Uncontested Facts, those facts as to which the 
opposing party claims there is a genuine issue necessary to be 
litigated. An opposing party shall state the precise nature of its 
disagreement, and support its opposition with references to affidavits, 
declarations and/or documents that demonstrate the existence of a 
genuine dispute.
    (3) The moving party and the non-moving party shall each submit a 
memorandum of law supporting or opposing summary judgment.
    (4) If, despite reasonable efforts, the opposing party cannot 
present facts essential to justify its opposition, the Board may defer 
ruling on the motion to permit affidavits to be obtained or depositions 
to be taken or other discovery to be conducted, or may issue such other 
order as is just. The parties should not expect the Board to search the 
record for evidence in support of either party's position.


Sec.  955.7  Pleadings.

    (a) Appellant. Within 45 days after receipt of notice of docketing 
of the appeal, the appellant shall file with the Board a complaint 
setting forth simple, concise and direct statements of each of its 
claims, alleging the basis, with appropriate reference to contract 
provisions, for each claim, and the dollar amount claimed, and shall 
serve the respondent with a copy. This pleading shall fulfill the 
generally recognized requirements of a complaint although no particular 
form or formality is required. Should the complaint not be filed within 
the time required, appellant's claim and appeal may, if in the opinion 
of the Board the issues before the Board are sufficiently defined, be 
deemed to constitute the complaint and the respondent shall be so 
notified.
    (b) Respondent. Within 30 days from receipt of said complaint, or 
the aforesaid notice from the Board, the respondent shall prepare and 
file with the Board an answer thereto, setting forth simple, concise, 
and direct statements of the respondent's defenses to each claim 
asserted by the appellant, and shall serve the appellant with a copy. 
This pleading shall fulfill the generally recognized requirements of an 
answer, and shall set forth any affirmative defenses or counterclaims 
as appropriate. Should the answer not be filed within the time 
required, the Board may, in its discretion, enter a general denial on 
behalf of the respondent, and the appellant shall be so notified.
    (c) Affirmative claims by the respondent. Where an appellant has 
appealed an affirmative claim by the respondent asserted in a final 
decision by a Postal Service contracting officer, such as a termination 
for default or a Postal Service claim that a contractor owes the Postal 
Service money under a contract, the Board may order the respondent to 
file the complaint as described in Sec.  955.7(a), and the appellant to 
file the answer as described in Sec.  955.7(b).


Sec.  955.8  Amendments of pleadings or record.

    (a) Upon its own initiative or upon application by a party, the 
Board may, in its discretion, order a party to submit a more definite 
statement of the complaint or answer, or to reply to an answer.
    (b) When issues within the proper scope of an appeal, but not 
raised in the pleadings, have been raised without objection or with 
permission of the Board at a hearing or in record submissions, they may 
be treated in all respects as if they had been raised in the pleadings. 
If evidence is objected to at a hearing on the ground that it is not 
within the issues raised by the pleadings, in its discretion the Board 
may admit the evidence and grant the objecting party a continuance or 
other relief if necessary to enable it to meet such evidence.

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Sec.  955.9  Hearing election.

    As directed by Board order, each party shall inform the Board, in 
writing, whether it desires a hearing as prescribed in Sec. Sec.  
955.18 through 955.25, or in the alternative submission of its case on 
the record without a hearing as prescribed in Sec.  955.12. If a 
hearing is elected, the election should state where and when the 
electing party desires the hearing to be conducted and should explain 
the reasons for its choices. In appropriate cases, the appellant shall 
also state whether the optional small claims (expedited) procedure or 
accelerated procedure prescribed in Sec.  955.13 is elected.


Sec.  955.10  Prehearing briefs.

    Based on an examination of the documentation described in Sec.  
955.5, the pleadings, and a determination of whether the arguments and 
authorities addressed to the issues are adequately set forth therein, 
the Board may, in its discretion, require the parties to submit 
prehearing briefs in any case in which a hearing has been elected 
pursuant to Sec.  955.9. In the absence of a Board requirement 
therefor, either party may, in its discretion and upon appropriate and 
sufficient notice to the other party, furnish a prehearing brief to the 
Board. In any case where a prehearing brief is submitted, it shall be 
furnished so as to be received by the Board at least 15 days prior to 
the date set for hearing, and a copy shall be furnished simultaneously 
to the other party.


Sec.  955.11  Prehearing or presubmission conference.

    (a) Whether the case is to be submitted pursuant to Sec.  955.12, 
or heard pursuant to Sec. Sec.  955.18 through 955.25, the Board may 
upon its own initiative or upon the application of either party, 
convene a conference to consider:
    (1) The simplification or clarification of the issues;
    (2) The possibility of obtaining stipulations, admissions, 
agreements on documents, understandings on matters already of record, 
or similar agreements which will avoid unnecessary proof;
    (3) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if the case is to be heard;
    (4) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (5) Such other matters as may aid in the disposition of the appeal.
    (b) The results of the conference shall be reduced to writing by 
the Board and this writing shall thereafter constitute part of the 
record.


Sec.  955.12  Submission without a hearing.

    Either party may elect to waive a hearing and to submit its case 
upon the record before the Board, as settled pursuant to Sec.  955.14. 
Submission of the case without hearing does not relieve the parties 
from the necessity of proving the facts supporting their allegations or 
defenses. Affidavits, depositions, admissions, answers to 
interrogatories, and stipulations may be employed to supplement other 
documentary evidence in the record. The Board may permit such 
submission to be supplemented by oral argument (transcribed if 
requested), and by briefs in accordance with Sec.  955.24.


Sec.  955.13  Optional Small Claims (Expedited) and Accelerated 
Procedures.

    (a) The Small Claims (Expedited) Procedure. (1) The Expedited 
Procedure is available solely at the election of the appellant. Such 
election requires decision of the appeal, whenever possible, within 120 
days after the Board receives written notice of the appellant's 
election to utilize this procedure.
    (2) The appellant may elect this procedure when:
    (i) There is a monetary amount in dispute and that amount is 
$50,000 or less, or
    (ii) There is a monetary amount in dispute and that amount is 
$150,000 or less and the appellant is a small business concern (as that 
term is defined in the Small Business Act and regulations promulgated 
under the Act).
    (3) In cases proceeding under the Expedited Procedure, the 
respondent shall send the Board a copy of the contract, the contracting 
officer's final decision, and the appellant's claim letter or letters, 
if any, within ten days from the respondent's first receipt from either 
the appellant or the Board of a copy of the appellant's notice of 
election of the Expedited Procedure. If either party requests an oral 
hearing in accordance with Sec.  955.9, the Board shall promptly 
schedule such a hearing for a mutually convenient time consistent with 
administrative due process and the 120-day limit for a decision, at a 
place determined under Sec.  955.18. If a hearing is not requested by 
either party, the appeal shall be deemed to have been submitted under 
Sec.  955.12 without a hearing.
    (4) Promptly after receipt of the appellant's election of the 
Expedited Procedure, the Board shall establish a schedule of 
proceedings that will allow for the timely resolution of the appeal. 
Pleadings, discovery, and other prehearing activities may be restricted 
or eliminated at the Board's discretion as necessary to enable the 
Board to decide the appeal within 120 days after the Board has received 
the appellant's notice of election of the Expedited Procedure. In so 
doing, the Board may reserve whatever time it considers necessary for 
preparation of the decision.
    (5) Written decisions by the Board in cases processed under the 
Expedited Procedure will be short and contain only summary findings of 
fact and conclusions. Decisions will be rendered for the Board by a 
single Judge. If there has been a hearing, the Judge presiding at the 
hearing may, in his or her discretion, at the conclusion of the hearing 
and after entertaining such oral arguments as he or she deems 
appropriate, render on the record oral summary findings of fact, 
conclusions of law, and a decision of the appeal. Whenever such an oral 
decision is rendered, the Board will subsequently furnish the parties a 
printed copy of such oral decision for the record and payment purposes 
and for the establishment of the commencement date of the period for 
filing a motion for reconsideration under Sec.  955.30.
    (6) Decisions of the Board under the Expedited Procedure will not 
be published, will have no value as precedents, and in the absence of 
fraud, cannot be appealed.
    (b) The Accelerated Procedure. (1) The Accelerated Procedure is 
available solely at the election of the appellant and shall apply only 
to appeals where there is a monetary amount in dispute and the amount 
in dispute is $100,000 or less. Such election requires decision of the 
appeal, whenever possible, within 180 days after the Board receives 
written notice of the appellant's election to utilize this procedure.
    (2) Promptly after receipt of the appellant's election of the 
Accelerated Procedure, the Board shall establish a schedule of 
proceedings that will allow for the timely resolution of the appeal. 
The Board, in its discretion, may shorten time periods prescribed 
elsewhere in these Rules as necessary to enable the Board to decide the 
appeal within 180 days after the Board has received the appellant's 
notice of election of the Accelerated Procedure.
    (3) Written decisions by the Board in cases processed under the 
Accelerated Procedure will normally be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Judge with the concurrence of the Chairman or Vice 
Chairman or other designated Judge, or by a majority among these two 
and an additional designated member in case of disagreement. In cases 
where the

[[Page 6849]]

amount in dispute is $50,000 or less and in which there has been a 
hearing, the single Judge presiding at the hearing may, with the 
concurrence of both parties, convert the appeal to an Expedited 
Proceeding and at the conclusion of the hearing, after entertaining 
such oral arguments as he or she deems appropriate, render on the 
record oral summary findings of fact, conclusions of law, and a 
decision of the appeal. Whenever such an oral decision is rendered, the 
Board will subsequently furnish the parties a printed copy of such oral 
decision for record and payment purposes and to establish the date of 
commencement of the period for filing a motion for reconsideration 
under Sec.  955.30.
    (c) Denial of election. At the request of the respondent, or on its 
own initiative, the Board may determine whether the amount in dispute 
and/or the appellant's status make the election of the Expedited 
Procedure or the Accelerated Procedure inappropriate.
    (d) Motions for Reconsideration in Cases Arising Under Sec.  
955.13. Motions for reconsideration of cases decided under either the 
Expedited Procedure or the Accelerated Procedure need not be decided 
within the time periods prescribed by this Sec.  955.13 for the initial 
decision of the appeal, but all such motions shall be processed and 
decided rapidly so as to fulfill the intent of this section.
    (e) General rule. Except as herein modified, the rules of this Part 
955 otherwise apply in all aspects.


Sec.  955.14  Settling the record.

    (a) The record upon which the Board's decision will be rendered 
consists of the appeal file described in Sec.  955.5, and to the extent 
the following items have been filed, pleadings, prehearing conference 
memoranda or orders, prehearing briefs, depositions or interrogatories 
received in evidence, admissions, stipulations, transcripts of 
conferences and hearings, hearing exhibits, posthearing briefs, and 
documents which the Board has specifically designated be made a part of 
the record. The record will at all reasonable times be available for 
inspection by the parties at the Board.
    (b) Except as the Board may otherwise order in its discretion, no 
proof shall be received in evidence after completion of an oral hearing 
or, in cases submitted on the record, after notification by the Board 
that the case is ready for decision.
    (c) The weight to be attached to any evidence of record will rest 
within the sound discretion of the Board. The Board may in any case 
require either party, with appropriate notice to the other party, to 
submit additional evidence on any matter relevant to the appeal.
    (d) The Board may consider the Federal Rules of Evidence for 
guidance regarding admissibility of evidence and other evidentiary 
issues in construing those Board rules that are similar to Federal 
Rules and for matters not specifically covered herein.


Sec.  955.15  Discovery.

    (a) The parties are encouraged to engage in voluntary discovery 
procedures. In connection with any deposition or other discovery 
procedure, the Board may issue any order which justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense, and those orders may include limitations on 
the scope, method, time and place for discovery, and provisions for 
protecting the secrecy of confidential information or documents.
    (b) The Board may limit the frequency or extent of use of discovery 
methods described in these rules. In doing so, generally the Board will 
consider whether: (1) The discovery sought is unreasonably cumulative 
or duplicative, or is obtainable from some other source that is more 
convenient, less burdensome, or less expensive; (2) the party seeking 
discovery has had ample opportunity by discovery in the case to obtain 
the information sought; or (3) the discovery is unduly burdensome and 
expensive, taking into account the needs of the case, the amount in 
controversy, limitations on the parties' resources, and the importance 
of the issues at stake. The parties are required to make a good faith 
effort to resolve objections to discovery requests informally. A party 
receiving an objection to a discovery request, or a party which 
believes that another party's response to a discovery request is 
incomplete or entirely absent, may file a motion to compel a response, 
but such a motion must include a representation that the moving party 
has tried in good faith, prior to filing the motion, to resolve the 
matter informally. The motion to compel shall include a copy of each 
discovery request at issue and the response, if any.
    (c) If a party fails to appear for a deposition, after being served 
with a proper notice, or fails to serve answers or objections to 
interrogatories, requests for admission of facts, or requests for the 
production or inspection of documents, after proper service, the party 
seeking discovery may request that the Board impose appropriate rulings 
or sanctions.


Sec.  955.16  Interrogatories to parties, admission of facts, and 
production and inspection of documents.

    (a) Interrogatories to parties. After an appeal has been filed with 
the Board, a party may serve on the other party written interrogatories 
to be answered separately in writing, signed under oath and returned 
within 30 days. Upon timely objection, the Board will determine the 
extent to which the interrogatories will be permitted. The scope and 
use of interrogatories will be controlled by Sec.  955.15.
    (b) Admission of facts. After an appeal has been filed with the 
Board, a party may serve upon the other party a request for the 
admission of specified facts. Within 30 days after service, the party 
served shall answer each requested fact or file objections thereto. The 
factual propositions set out in the request may be ordered by the Board 
as deemed admitted upon the failure of a party to respond timely and 
fully to the request for admissions.
    (c) Production and inspection of documents. After an appeal has 
been filed with the Board, a party may serve on the other party written 
requests for the production, inspection, and copying of any documents, 
electronically stored information, or things, to be answered within 30 
days. Upon timely objection, the Board will determine the extent to 
which the requests must be satisfied, and if the parties cannot 
themselves agree thereon, the Board shall specify just terms and 
conditions of compliance.


Sec.  955.17  Depositions.

    (a) When depositions permitted. After an appeal has been docketed 
and complaint filed, the parties may mutually agree to, or the Board 
may, upon application of either party and for good cause shown, order 
the taking of testimony of any person by deposition upon oral 
examination or written interrogatories before any officer authorized to 
administer oaths at the place of examination, for use as evidence or 
for purpose of discovery. The application for order shall specify 
whether the purpose of the deposition is discovery or for use as 
evidence.
    (b) Orders on depositions. The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing such 
agreement, governed by order of the Board.
    (c) 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 such 
hearing. It will not ordinarily be received in evidence if the

[[Page 6850]]

deponent is available to testify at the hearing. In such instances, 
however, the deposition may be used to contradict or impeach the 
testimony of the witness given at the hearing. In cases submitted on 
the record, the Board may, in its discretion, receive depositions as 
evidence in supplementation of that record.
    (d) Expenses. Each party shall bear its own expenses associated 
with the taking of any deposition.


Sec.  955.18  Hearings--where and when held.

    If there is to be a hearing, it will be held at a time and place 
prescribed by the Board after consultation with the party or parties 
electing the hearing. At the discretion of the Board, hearings may be 
held in the Board's hearing room in Arlington, VA or may be held at 
another location with due consideration to the just, informal, 
expeditious and inexpensive resolution of each case.


Sec.  955.19  Notice of hearings.

    The Board shall issue an order reasonably in advance of the hearing 
identifying the time and place thereof.


Sec.  955.20  Unexcused absence of a party.

    The unexcused absence of a party at the time and place set for 
hearing will not be occasion for delay. In the event of such absence, 
the hearing will proceed and the case will be regarded as submitted by 
the absent party as provided in Sec.  955.12.


Sec.  955.21  Nature of hearings.

    Hearings shall be as informal as may be reasonable and appropriate 
under the circumstances. The Board may exclude evidence to avoid unfair 
prejudice, confusion of the issues, undue delay, waste of time, or 
presentation of irrelevant, immaterial or cumulative evidence. Although 
the Board will consider the Federal Rules of Evidence as described in 
Sec.  955.14(d), letters or copies thereof, affidavits, or other 
evidence not ordinarily admissible under the Federal Rules, may be 
admitted in the discretion of the Board. The weight to be attached to 
evidence presented in any particular form will be within the discretion 
of the Board, taking into consideration all the circumstances of the 
particular case. Stipulations of fact agreed upon by the parties may be 
accepted as evidence at the hearing. The parties may stipulate the 
testimony that would be given by a witness if the witness were present. 
The Board may in any case require evidence in addition to that offered 
by the parties.


Sec.  955.22  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 
or affirmation, the Board may warn the witness that his or her 
statements may be subject to the provisions of 18 U.S.C. 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. Upon the request of either party or if the Board deems 
it advisable, the Board will exclude witnesses from the hearing room. 
The Board will not exclude a party who is an individual, the properly 
designated representative of a party which is an entity, a person whose 
presence is essential to the presentation of a party's case, or someone 
authorized by statute to be present.


Sec.  955.23  Copies of papers, withdrawal of exhibits.

    (a) When books, records, papers, or documents have been received in 
evidence, a true copy thereof or of such part thereof as may be 
material or relevant may be substituted therefor, during the hearing or 
at the conclusion thereof.
    (b) After a decision has become final, upon request and after 
notice to the other party, the Board in its discretion may permit the 
withdrawal of original exhibits, or any part thereof, by the party 
entitled thereto. The substitution of true copies of exhibits or any 
part thereof may be required by the Board in its discretion as a 
condition of granting permission for such withdrawal.


Sec.  955.24  Posthearing briefs.

    Posthearing briefs may be submitted upon such terms as may be 
ordered by the Board at the conclusion of the hearing. Ordinarily, they 
will be simultaneous briefs, submitted to the Board on a date 
established by the Board, following receipt of transcripts.


Sec.  955.25  Transcript of proceedings.

    Testimony and argument at hearings shall be reported verbatim, 
unless the Board otherwise orders. Transcripts or copies of the 
proceedings will be provided to the parties by the Board.


Sec.  955.26  Representation of the parties.

    (a) The term appellant means a party that has filed an appeal for 
resolution by the Board. An individual appellant may appear before the 
Board in his or her own behalf, a corporation may appear before the 
Board by an officer thereof, a partnership or joint venture may appear 
before the Board by a member thereof, or any of these may appear before 
the Board by an attorney at law duly licensed in any state, 
commonwealth, territory of the United States, or in the District of 
Columbia. An attorney representing an appellant shall file a written 
notice of appearance with the Board.
    (b) The term respondent means the U.S. Postal Service. Postal 
Service counsel, who shall be an attorney at law licensed to practice 
in a state, commonwealth, or territory of the United States, or in the 
District of Columbia, designated by the General Counsel, will represent 
the interest of the Postal Service before the Board. Postal Service 
counsel shall file a written notice of appearance with the Board.
    (c) References to contractor, appellant, contracting officer, 
respondent and parties shall include respective counsel for the 
parties, as soon as appropriate notices of appearance have been filed 
with the Board.


Sec.  955.27  Withdrawal of attorney.

    Any attorney for either party who has filed a notice of appearance 
and who wishes to withdraw from a case must file a motion or notice 
which includes the name, address, telephone number, and fax machine 
number of the person who will assume responsibility for representation 
of the party in question.


Sec.  955.28  Suspension.

    (a) Whenever at any time it appears that the parties are in 
agreement as to disposition of the controversy, the Board may suspend 
further processing of the appeal: Provided, however, That if the Board 
is advised thereafter by either party that the controversy has not been 
disposed of by agreement, the case shall be restored to the Board's 
active docket.
    (b) The Board may in its discretion suspend proceedings to permit a 
contracting officer to issue a decision when an appeal has been taken 
from the contracting officer's failure to render a timely decision, or 
for other good cause.


Sec.  955.29  Decisions.

    Decisions of the Board will be made in writing and sent 
simultaneously to both parties. The rules of the Board and all final 
orders and decisions shall be open for public inspection at the offices 
of the Board, and may be made available on its official Web site and to 
commercial publishers. Decisions of the Board will be made solely upon 
the record, as described in Sec.  955.14.


Sec.  955.30  Motion for reconsideration.

    A motion for reconsideration, if filed by either party, shall set 
forth

[[Page 6851]]

specifically the ground or grounds relied upon to sustain the motion, 
and shall be filed within 30 days from the date of the receipt of a 
copy of the decision of the Board by the party filing the motion. 
Arguments already made and reinterpretations of evidence generally are 
not sufficient grounds for granting reconsideration, or for altering or 
amending a decision.


Sec.  955.31  Dismissal without prejudice.

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


Sec.  955.32  Dismissal for failure to prosecute.

    Whenever a record discloses the failure of either party to file 
documents required by these rules, respond to notices or correspondence 
from the Board, comply with orders of the Board, or otherwise indicates 
an intention not to continue the prosecution or defense of an appeal, 
the Board may issue an order requiring the offending party to show 
cause why the appeal should not be either dismissed or granted, as 
appropriate. If the offending party shall fail to show such cause, the 
Board may take such action as it deems reasonable and proper under the 
circumstances.


Sec.  955.33  Ex parte communications.

    No member of the Board or of the Board's staff shall entertain, nor 
shall any person directly or indirectly involved in an appeal submit to 
the Board or the Board's staff, off the record, any evidence, 
explanation, analysis, or advice, whether written or oral, regarding 
any matter at issue in an appeal. This provision does not apply to 
consultation among Board members nor to ex parte communications 
concerning the Board's administrative functions or procedures.


Sec.  955.34  Sanctions.

    (a) All parties and their attorneys must obey directions and orders 
prescribed by the Board and adhere to standards of conduct applicable 
to such parties and attorneys. As to an attorney, the standards include 
the rules of professional conduct and ethics of the jurisdictions in 
which that attorney is licensed to practice, to the extent that those 
rules are relevant to conduct affecting the integrity of the Board, its 
process, or its proceedings.
    (b) If any party or its attorney fails to comply with any direction 
or order issued by the Board, or engages in misconduct affecting the 
Board, its process, or its proceedings, the Board may issue such orders 
as are just, including the imposition of appropriate sanctions. 
Sanctions may include:
    (1) Taking the facts pertaining to the matter in dispute to be 
established for the purpose of the case;
    (2) Forbidding challenge of the accuracy of any evidence;
    (3) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses;
    (4) Prohibiting the disobedient party from introducing in evidence 
designated documents or testimony;
    (5) Striking pleadings or parts thereof, or staying further 
proceedings until the order is obeyed;
    (6) Dismissing or granting the case or any part thereof;
    (7) Imposing such other sanctions as the Board deems appropriate.
    (c) In addition, the Board may sanction individual attorneys for a 
violation of any Board order or direction or standard of conduct 
applicable to such individual where the violation seriously affects the 
integrity of the Board, its process, or its proceedings. Sanctions may 
be public or private, and may include admonishment, disqualification 
from a particular matter, referral to an appropriate licensing 
authority, or such other action as circumstances may warrant.


Sec.  955.35  Subpoenas.

    (a) General. Upon written request of either party filed with the 
Recorder or on his or her own initiative, the Board may issue a 
subpoena requiring:
    (1) Testimony at a deposition. The deposing of a witness in the 
city or county where the witness resides or is employed or transacts 
business in person, or at another convenient location as determined by 
the Board;
    (2) Testimony at a hearing. The attendance of a witness for the 
purpose of taking testimony at a hearing; or
    (3) Production of books and papers. The production by a witness of 
books, papers, documents, electronically stored information, and other 
tangible and intangible things designated in the subpoena.
    (b) Voluntary cooperation. Each party is expected (1) To cooperate 
and make available witnesses and evidence under its control as 
requested by the other party, without issuance of a subpoena, and (2) 
To secure voluntary attendance of desired third-party witnesses, books, 
papers, documents, or tangible things whenever possible.
    (c) Requests for subpoenas. (1) A request for a subpoena shall 
normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought, and/or where the production by a 
witness of books, papers, documents, electronically stored information, 
and other tangible and intangible things is sought; and
    (ii) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought; except that
    (iii) In its discretion the Board may honor requests for subpoenas 
not made within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books, 
papers, documents, electronically stored information, and other 
tangible and intangible things sought.
    (d) Requests to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (1) quash or modify the subpoena if it is unreasonable 
and oppressive or for other good cause shown, or (2) require the person 
in whose behalf the subpoena was issued to advance the reasonable cost 
of compliance. Where circumstances require, the Board may act upon such 
a request at any time after a copy has been served upon the opposing 
party.
    (e) Form; issuance. (1) Every subpoena shall state the name of the 
Board and the title of the appeal and shall command each person to whom 
it is directed to attend and give testimony, and where appropriate, to 
produce specified books, papers, documents, electronically stored 
information, and other tangible and intangible things at a time and 
place therein specified. In issuing a subpoena to a requesting party, 
the Judge shall sign the subpoena and may enter the name of the witness 
and otherwise leave it blank. The party to whom the subpoena is issued 
shall complete the subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the

[[Page 6852]]

manner provided in 28 U.S.C. 1781-1784.
    (f) Service. (1) The party requesting issuance of a subpoena shall 
arrange for service.
    (2) A subpoena may be served by a United States marshal or deputy 
marshal, or by any other person who is not a party and not less than 18 
years of age. Service of a subpoena upon a person named therein shall 
be made by personally delivering a copy to that person and tendering 
the fees for one day's attendance and the mileage provided by 28 U.S.C. 
1821 or other applicable law.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of 
such charges on demand may be deemed by the Board as a sufficient 
ground for striking the testimony of the witness and the evidence the 
witness has produced.
    (g) Contumacy or refusal to obey a subpoena. In case of contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a U.S. District Court, 
the Board will apply to the Court through the Attorney General of the 
United States for an order requiring the person to appear before the 
Board or a member thereof to give testimony or produce evidence or 
both. Any failure of any such person to obey the order of the Court may 
be punished by the Court as a contempt thereof.


Sec.  955.36  Effective Dates and Applicability.

    These revised rules govern proceedings in all cases docketed by the 
Board on or after a date determined by the Board.

Stanley F. Mires,
Chief Counsel, Legislative.
 [FR Doc. E9-2843 Filed 2-10-09; 8:45 am]
BILLING CODE 7710-12-P