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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions