Defense Federal Acquisition Regulation Supplement; Appendix A, Armed Services Board of Contract Appeals, Part 1-Charter, 48508-48510 [2019-19566]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48508-48510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19566]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Chapter 2

[Docket DARS-2019-0058]
RIN 0750-AK73


Defense Federal Acquisition Regulation Supplement; Appendix A, 
Armed Services Board of Contract Appeals, Part 1--Charter

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing the updated Charter of the Armed Services Board 
of Contract Appeals (ASBCA), dated May 23, 2019. The ASBCA is chartered 
to serve as the authorized representative of the Secretary of Defense 
and the Secretaries of the Army, Navy, and Air Force in hearing, 
considering, and determining appeals by contractors from decisions of 
contracting officers or their authorized representatives or other 
authorities regarding claims on contracts under the Contract Disputes 
Act of 1978 or other remedy-granting provisions.

DATES: Effective September 13, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Defense 
Acquisition Regulations System, OUSD(A&S)DPC(DARS), 3060 Defense 
Pentagon, Room 3B941, Washington, DC 20301-3060, Telephone 571-372-
6115.

SUPPLEMENTARY INFORMATION:

I. Background

    This publication of Appendix A of the Defense Federal Acquisition 
Regulation Supplement (DFARS) updates the Charter of the ASBCA from the 
most recent prior version, dated April 9, 2018, to its latest version, 
dated May 23, 2019. The updated Charter revises paragraph 2 to reflect 
that appointment of ASBCA members and designation of the Chairman and 
Vice Chairmen of the ASBCA shall now be made by the Secretary of 
Defense, rather than by the Under Secretary of Defense responsible for 
acquisition, the General Counsel of the Department of Defense, and the 
Assistant Secretaries of the Military Departments responsible for 
acquisition.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is the Office of Federal Procurement 
Policy statute (codified at title 41 of the United States Code). 
Specifically, 41 U.S.C 1707(a)(1) requires that a procurement policy, 
regulation, procedure or form (including an amendment or modification 
thereof) must be published for public comment if it relates to the 
expenditure of appropriated funds, and has either a significant effect 
beyond the internal operating procedures of the agency issuing the 
policy, regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule only 
publishes the updated ASBCA charter and is therefore not required to be 
published for public comment, because the rule does not have a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure or form.

III. Executive Orders 12866 and 13563

    Executive Order (E.O.) 12866, Regulatory Planning and Review; and 
E.O. 13563, Improving Regulation and Regulatory Review, direct agencies 
to assess all costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
E.O. 13563 emphasizes the importance of quantifying both costs

[[Page 48509]]

and benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This is not a significant regulatory action and, 
therefore, was not subject to review under section 6(b). This rule is 
not a major rule as defined at 5 U.S.C. 804(2).

IV. Executive Order 13771

    This rule is not an E.O. 13771 regulatory action, because this rule 
concerns regulations related to agency organization, management, or 
personnel.

III. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section II of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

V. Paperwork Reduction Act

    This rule does not impose any new information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Appendix A

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
    Therefore, DoD is amending 48 CFR Appendix A to Chapter 2 as 
follows:

Appendix A to Chapter 2--Armed Services Board of Contract Appeals

0
1. The authority citation for Appendix A to Chapter 2 is revised to 
read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.


0
2. Appendix A to chapter 2 is amended by revising the introductory text 
and Part 1--Charter, to read as follows:

Appendix A to Chapter 2--Armed Services Board of Contract Appeals

* * * * *

Armed Services Board of Contract Appeals

Approved 1 May 1962
Revised 1 May 1969
Revised 1 September 1973
Revised 1 July 1979
Revised 14 May 2007
Revised 9 April 2018
Revised 23 May 2019

Part 1--Charter

    1. There is created the Armed Services Board of Contract Appeals 
which is hereby designated as the authorized representative of the 
Secretary of Defense, the Secretary of the Army, the Secretary of the 
Navy, and the Secretary of the Air Force, in hearing, considering and 
determining appeals by contractors from decisions of contracting 
officers or their authorized representatives or other authorities on 
disputed questions. These appeals may be taken (a) pursuant to the 
Contract Disputes Act of 1978 (41 U.S.C. Sections 7101-7109), (b) 
pursuant to the provisions of contracts requiring the decision by the 
Secretary of Defense or by a Secretary of a Military Department or 
their duly authorized representative, or (c) pursuant to the provisions 
of any directive whereby the Secretary of Defense or the Secretary of a 
Military Department or their authorized representative has granted a 
right of appeal not contained in the contract on any matter consistent 
with the contract appeals procedure. The Board may determine contract 
disputes for other departments and agencies by agreement as permitted 
by law. The Board shall operate under general policies established or 
approved by the Under Secretary of Defense responsible for acquisition 
and may perform other duties as directed not inconsistent with the 
Contract Disputes Act of 1978. The Board shall decide the matters 
before it independently.
    2. Membership of the Board shall consist of attorneys at law who 
have been qualified in the manner prescribed by the Contract Disputes 
Act of 1978. Appointment of Board members shall be made by the 
Secretary of Defense. Members of the Board are hereby designated 
Administrative Judges. There shall be designated from among the 
appointed Judges of the Board a Chairman and two or more Vice Chairmen. 
Designation of the Chairman and Vice Chairmen shall be made by the 
Secretary of Defense, of nominees from Judges of the Board recommended 
by the Under Secretary of Defense responsible for acquisition, in 
coordination with the General Counsel of the Department of Defense, and 
the Assistant Secretaries of the Military Departments responsible for 
acquisition. When there is a vacancy, the incumbent is unavailable, or 
for appropriate Board administrative reasons, the Under Secretary of 
Defense responsible for acquisition or the Chairman may designate a 
Judge of the Board to serve as an Acting Chairman or Acting Vice 
Chairman.
    3. The Chairman of the Board shall be responsible for establishing 
appropriate divisions of the Board to provide for the most effective 
and expeditious handling of appeals. The Chairman shall have authority 
to establish procedures for the issuance of Board decisions. The 
Chairman may refer an appeal of unusual difficulty, significant 
precedential importance, or serious dispute within the normal decision 
process for decision by a Senior Deciding Group established by the 
Chairman which shall have the authority to overturn prior Board 
precedent.
    4. It shall be the duty and obligation of the Judges of the Armed 
Services Board of Contract Appeals to decide appeals on the record of 
the appeal to the best of their knowledge and ability in accordance 
with applicable contract provisions and in accordance with law and 
regulation pertinent thereto.
    5. Any Judge of the Board or any examiner, designated by the 
Chairman, shall be authorized to hold hearings, examine witnesses, and 
receive evidence and argument. A Judge of the Board shall have 
authority to administer oaths and issue subpoenas as specified in the 
Contract Disputes Act of 1978. In cases of contumacy or refusal to obey 
a subpoena, the Chairman may request orders of the court in the manner 
prescribed in the Contract Disputes Act of 1978.
    6. The Board shall have all powers necessary and incident to the 
proper performance of its duties. The Board has the authority to issue 
methods of procedure and rules and regulations for its conduct and for 
the preparation and presentation of appeals and issuance of opinions.
    7. The Chairman shall be responsible for the internal organization 
of the Board and for its administration. The Chairman shall provide 
within approved ceilings for the staffing of the Board with non-Judge 
personnel, including hearing examiners, as may be required for the 
performance of the functions of the Board. The Chairman shall appoint a 
Recorder of the Board. All personnel shall be responsible to and shall 
function under the direction, supervision and control of the Chairman.
    8. The Board will be serviced by the Department of the Army for 
administrative support as required for its operations. Administrative 
support will include budgeting, funding, fiscal control, manpower 
control and utilization, personnel administration, security 
administration, supplies, and other administrative services. The 
Departments of the Army, Navy, Air

[[Page 48510]]

Force and the Office of the Secretary of Defense will participate in 
financing the Board's operations on an equal basis and to the extent 
determined by the Under Secretary of Defense (Comptroller). The cost of 
processing appeals for departments and agencies other than those in the 
Department of Defense will be reimbursed.
    9. Within 30 days following the close of a fiscal year, the 
Chairman shall forward a report of the Board's transactions and 
proceedings for the preceding fiscal year to the Under Secretary of 
Defense responsible for acquisition, the General Counsel of the 
Department of Defense, and the Assistant Secretaries of the Military 
Departments responsible for acquisition.
    10. The Board shall have a seal bearing the following inscription: 
``Armed Services Board of Contract Appeals.'' This seal shall be 
affixed to all authentications of copies of records and to such other 
instruments as the Board may determine.
    11. This revised charter is effective upon the date of the 
signature of the Secretary of Defense.

Approved: Patrick M. Shanahan (23 May 2019),

Acting Secretary of Defense.

[FR Doc. 2019-19566 Filed 9-12-19; 8:45 am]
BILLING CODE 5001-06-P