United States: CBCA Issues New Rules Of Procedures

Eric S Crusius is Partner in Holland & Knight's Tysons office

Mitchell A Bashur is Associate in Holland & Knight's Tysons office

On Aug. 17, 2018, the Civilian Board of Contract Appeals (CBCA) published a final rule amending its rules of procedures which will be effective for cases filed with the board on or after Sept. 17, 2018. The CBCA's current rules were issued in 2008 and were last amended in 2011. The new rules simplify and modernize access to the board by establishing a preference for electronic filing, increase conformity between the CBCA's rules and the Federal Rules of Civil Procedure, streamline the wording of the board's rules, and clarify current rules and practices. In addition, the time for filing is amended from 4:30 p.m. to midnight Eastern Time, and the stated monetary limitations for electing the accelerated and small claims procedures are deleted and replaced with references to the requirements stated in the Contract Disputes Act.

Some highlights of the many changes made to the rules include:

Rules Regarding General Procedural Matters

  • Rule 1 – General Information; definitions
    • The new rules allow for electronic filing of documents through the CBCA's email system (referred to in the rules as "efiling") except for documents that are classified or submitted in camera or under protective order.  Efiling occurs upon receipt by the board's email server, except that attachments must be in PDF format and total 18 megabytes (MB) or smaller or they will be rejected.
    • Adds a definition of "receipt" to deem a party's receipt of a document to occur upon the earlier of the emailing of the document to the party's email address of record (without notice of delivery failure) or the party's possession of a document sent by other means.
    • Removes definitions of "working days" and "working hours."
    • Adds that for the construction of the rules, "the board may apply principles of the Federal Rules of Civil Procedure (28 U.S.C. App.) to resolve issues not covered by this part."
    • Adds that "efilings received after midnight are considered filed the next business day."
  • Rule 2 – Filing appeals, petitions, and applications; consolidation
    • Adds a requirement for the notice of appeal to include: "The name, telephone number, and mailing and email addresses of the appellant and/or its attorney or authorized representative."
    • Removes a requirement to have the date of the contract from the appeal.
    • Removes a requirement to include fax for the contracting officer.
    • Removes a requirement of "an estimate of the amount of money in controversy, if any and if known."
    • Adds a requirement to include a copy of any claim with any certification with notice of appeal or petition.
    • Rewords the requirements for a deemed denial appeal to be: "Alternatively, under the CDA, a contractor may appeal when a contracting officer has not issued a decision on a claim within the time allowed by the CDA or the time set by a tribunal acting on a petition."
    • For a petition to direct a contracting officer to issue a written decision, the timing is now: "(i) Receipt of notice from a contracting officer, within 60 days after the submission of a claim, that the contracting officer intends to issue a decision on the claim more than 60 days after its submission, and (ii) The due date stated by the contracting officer."
  • Rule 3 – Computing and extending time
    • Motions to extend time must now include movant's effort to learn the other party's position.  The new rule also states that the board cannot extend statutory deadlines.
  • Rule 23 – Briefs
    • Increases the size of font for briefs from 12 point to 13 point.
    • Removes timing details on post-hearing briefs because a general rule is now provided.
  • Rule 54 – Alternative dispute resolution
    • Adds "The ADR agreement shall provide that the parties and counsel will not subpoena the Neutral in any legal action or administrative proceeding of any kind to provide documents or testimony relating to the ADR."
    • In general, the new rules simplify Rule 54 and do not list or limit the types of ADR that can be pursued.

Rules Regarding Pleadings, Motions, and Filings

  • Rule 4 – Appeal file
    • The contents of the Rule 4 file have been changed to include "the contract, including all pertinent specifications, amendments, plans, drawings, and incorporated proposals or parts thereof."
    • Amends subpart 7 of the Rule 4 file from "any additional existing evidence or information necessary to determine the merits of the appeal, such as internal memoranda and notes to the file" to "Relevant internal memoranda, reports, and notes."
    • The Rule 4 file may now be filed in an electronic medium (e.g., hard disk or solid state drive, compact disc (CD), or digital versatile disc (DVD)). 
    • The Rule 4 file may now be efiled, along with any supplement thereto by permission of the board.
    • Each exhibit must be in a PDF format and each exhibit must be a separate document without embedded documents.
    • Exhibits must be consecutive.
    • A paper Rule 4 file may only be filed by permission of the board.
    • Adds that the time to object to exhibits will be set by the board.
  • Rule 6 – Pleadings; amending pleadings
    • Amending a pleading once now requires the permission of the other party.
  • Rule 7 – Service of documents
    • Adds "A party filing any document not submitted in camera (see Rule 9(c)(2) (48 CFR 6101.9(c)(2)) shall send a copy to the other party by a method at least as fast as the filing method."
  • Rule 8 – Motions
    • Changes the timing of jurisdictional motions from "the board may at any time consider the issue of its jurisdiction to decide a case" to "a party challenging the board's jurisdiction should file such a motion promptly."
    • Summary judgment now also requires a statement of genuine issues.
    • The new rules set a timing for allowed oppositions for nonprocedural motions to be 30 days with a reply due 15 days after.  For procedural motions, an opposition is 5 days after receipt of the motion and there is no reply.  No oppositions are allowed for Rule 26, Rule 27, Rule 28, or Rule 29 (motions for reconsideration, relief from decision or order, full board consideration, and clerical mistakes or harmless error), unless by permission of the CBCA.
  • Rule 10 – Admissibility of evidence
    • Rules of evidence are changed from a presumption of that relevant and material evidence will be admitted into the record to the board having discretion to receive the evidence.  The new rules also note that the board is guided, but not bound by the Federal Rules of Evidence. 
      • "In general, any relevant and material evidence will be admitted into the record. The board may exclude evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. Hearsay evidence is admissible unless the board finds it unreliable or untrustworthy. As a general matter, and subject to the other provisions of Rule 10, the board will look to the Federal Rules of Evidence for guidance when it makes evidentiary rulings." to "The board may in its discretion receive any evidence to which no party objects. In ruling on evidentiary objections, the board is guided but not bound by the Federal Rules of Evidence, except that the board generally admits hearsay unless the board finds it unreliable."
  • Rule 12 – Stays and dismissals
    • Simplifies the rule to make clear that the board may stay a case for good cause,  without discussing specific example situations such as waiting for the CO's final decision.
    • Adds an admonition that "dismissal of a party's case without prejudice does not necessarily mean that the party may later refile the case at the board or in another forum under the jurisdictional and procedural laws applicable to the case."

Rules Regarding Discovery

  • Rule 13 – Discovery generally
    • Adds that discovery will be conducted in the same manner as  Federal Rule 25(b)(1) unless otherwise ordered.
    • Adds a duty to cooperate in good faith to resolve objections to discovery requests without involving the board.  The CBCA may impose a sanction under Rule 35 for failure to meet discovery obligations.
  • Rule 14 – Interrogatories; requests for production; requests for admission
    • Allows relief from an admission due to failure to respond to a request for admission for good cause.
  • Rule 15 – Depositions
    • Adds "If the parties agree in writing on the deponent, time, place, recording method, and maximum duration of a deposition, no formal deposition notice is needed."
    • Adds "Unless otherwise ordered, parties may take depositions after service of the answer."
  • Rule 16 – Subpoenas
    • Adds "Subpoenas should rarely be necessary, as the board expects parties to respond cooperatively to discovery requests and to try in good faith to secure the cooperation of third parties who have or may have evidence responsive to discovery requests."
    • Adds "The board's policy is to require a requesting party to advance a subpoenaed person the reasonable cost of producing subpoenaed material."
    • Adds "If a person to be subpoenaed resides in a foreign country, the board may facilitate the issuance of a letter rogatory to the person by the United States Department of State under 28 U.S.C. 1781-1784."

Rules Regarding Hearings Before the Board

  • Rule 18 – Election of hearing or record submission
    • Provides a standard assumption of a hearing:  "The board will hold a hearing in a case if the board must find facts and either party elects a hearing.  A party may elect to submit its case for decision on the written record under Rule 19."
    • Adds new hybrid model: "A party may elect to submit its case on the written record under Rule 19 (48 CFR 6101.19) and also elect to appear at a hearing, solely to cross-examine the other party's witnesses and to object to evidence offered at the hearing."
  • Rule 19 – Record submission without a hearing
    • Reduces the time to object to material evidence submitted from 10 days to 5 days.
  • Rule 20 – Scheduled hearing
    • Changes the unexcused absence provision to remove "the hearing will proceed."  It is not clear whether this is intended to mean that the hearing will not now proceed, as both versions state that the absent party will have elected to submit its case on the record.
  • Rule 21 – Hearing Procedures
    • Cuts down on the amount of detail provided for hearing procedures, including removing a section on delay by parties.
  • Rule 22 – Transcripts
    • Makes clear that "no one may record or transcribe a board proceeding without the board's permission."
    • Removes details regarding correcting a transcript.
  • New Rule 35 (Old Rule 33) – Standards of conduct; sanctions
    • Adds a new potential sanction of "Drawing evidentiary inferences adverse to the party."

Rules Regarding Post-Hearing Matters

  • Rule 24 – Closing the record
    • Provides new details as to when the record is closed for a decision. "Unless otherwise ordered, the record for decision as defined in Rule 9(a) (48 CFR 6101.9(a)) is closed when the board receives the final scheduled brief on the matters to be decided."
  • Rule 25 – Decisions and settlements
    • Removes a sentence that the "board may also take notice of any fact or law of which a court could take judicial notice."
    • For settlements, it is now permissive ("may") that the board issue a decision entering the stipulated award and adds that the board must be satisfied that it has jurisdiction.
  • Rule 26 – Reconsideration
    • Removes details of grounds for reconsideration and references Rule 59 of the Federal Rules of Civil Procedure.
    • Adds note that the board cannot extend the time limits for reconsideration.
  • Rule 27 – Relief from decision or order
    • Removes detail of grounds for relief from a decision and cites to Rule 60 of the Federal Rules of Civil Procedure.
  • Rule 29 – Clerical mistakes; harmless error
    • Sets a 60 day limit to correct clerical errors if the decision has not been appealed.
  • Rule 31 – Payment of award
    • Removes conditions and procedures necessary before payment of board and EAJA awards.
  • New Rule 33 – Remand for Appellate Court
    • Adds "If a Court remands a case to the board for further proceedings, each party shall, within 30 days of receipt of the appellate mandate, recommend procedures to comply with the remand order. The board will then issue an order on further proceedings."

The CBCA's amendments modernize the process before it while addressing uncertainties in the current rules. The changes are significant and too numerous to fully address in this blog, so practitioners and contractors with matters before the board should take note.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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