Last month, the Department of Defense (“DOD”) issued a final rule updating the Defense Acquisition Regulations Supplement to revise the Rules of the Armed Services Board of Contract Appeal (“ASBCA”). The express intent of the DOD rule is to revise and reorder the ASBCA Rules for clarity and consistency, and account for changes in technology. The ASBCA Rules had been last updated on May 11, 2011. Consistent with the stated purpose, the majority of the changes are simply re-wording or renumbering of the previous rules. Additionally, many of the changes either formalize what had already been the practice of many government contracts attorneys or provide additional guidance by expanding on the previous rules. A summary of notable changes that practitioners should be aware of are provided below.
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Rule 1(b)—Contents of Notice of Appeal: The rule now specifies that a Notice of Appeal should attach a copy of the contracting officer’s final decision, if any. While this is common practice, it was not a requirement under the previous rules.
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Rule 2—Filing Documents: The rule provides more detailed information about the methods for filing documents with the ASBCA, including electronic filings by e-mail. Rule 2(a)(3) also notes that when a document is successfully filed via e-mail, it should not also be submitted by any other means.
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Rule 4(b)—Duties of the Appellant with Respect to the Rule 4 File: As under the previous version of the rule, the Appellant has 30 days to supplement the Rule 4 File with any documents not contained therein that the appellant considers relevant to the appeal. However, the updated rule formalizes the Appellant’s ability to later supplement the Appeal File, stating, that “Appellant’s appeal file may be supplemented at such times as are fair and reasonable and as ordered by the Board.”
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Rule 5(a)—Extensions: When parties request an extension, the rule now requires that the request must indicate that the other party was contacted to seek its concurrence.
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Rule 7—Motions: The rule has been expanded to provide more specific guidance regarding jurisdictional motions and summary judgment motions, including required submissions to accompany summary judgment motions and responses thereto and the timing for filing a response and reply in connection with a summary judgment motion.
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Rule 8(a)—Discovery Conference: Within 45 days after the pleadings have been filed, parties are now required to confer concerning each party’s discovery needs, including the scheduling of discovery and the production of electronically stored information. Absent a stipulation or Board order, no discovery may be served prior to this conference. Rule 12.1(d) notes that the Rule 8(a) conference is not required for Rule 12 appeals pursued under the expedited or accelerated procedures.
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Rule 9—Pre-Hearing or Pre-Submission Conference: The updated rule broadens the previous version of the rule to clarify that the Administrative Judge may arrange or order the parties to appear before them to address “any issue related to the prosecution of the appeal.”
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Rule 10(c)—Nature of Hearings: Consistent with Board precedent, the rule adds a sentence clarifying that “the Federal Rules of Evidence are not binding on the Board but may guide the Board’s ruling.”
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Rule 11—Submission Without a Hearing: The rule now expands on the type of documents and information that the Board can rely in ruling on an appeal without a hearing and that the Board may designate, with notice to the parties, any document to be made part of the record.
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Rule 20—Motion for Reconsideration: The updated rule now explicitly permits a party to file a cross-motion for reconsideration within 30 days of receipt of a movant’s motion for reconsideration.
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Rule 21—Remand from Court: The rule now enlarges the amount of time a party has to submit a report to the Board when a Court remands an appeal, from 20 days to 30 days.
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Addendums: Two addendums were formally added to the rules: (1) Equal Access to Justice Procedures; and (2) Alternative Methods of Dispute Resolution..
A copy of the updated rules can be found on the ASBCA’s website or by clicking on the link below.
ASBCA Rules
