• GAO Establishes Rules of Procedure for New Contract Appeals Board
  • October 24, 2008 | Author: Jesse Williams
  • Law Firm: Sheppard, Mullin, Richter & Hampton LLP - Washington Office
  • GAO will soon issue final procedural rules for its newly-formed Contract Appeals Board, a body established by the Consolidated Appropriations Act of 2008 to hear appeals from decisions of contracting officers relating to contracts with an agency in the legislative branch.  On June 26, 2008, GAO published 25 pages of procedural rules as an interim agency rule subject to comment.  The comment period closed August 25.

    The GAO Board replaces a system of ad hoc contract appeals boards previously created by congressional committees or by agreement with the Architect of the Capitol under the Economy Act, 31 U.S.C. § 1535.  Under the Board's enabling legislation, appeals filed with the Board are governed by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq, with two notable exceptions:

    • First, contractors do not have a right to directly appeal a decision of a contracting officer to the Court of Federal Claims as is authorized under the CDA; and
    • Second, contractors pursuing a claim before the Board must certify claims exceeding $50,000, instead of the $100,000 required by the CDA, as a prerequisite to filing an appeal of a contracting officer's decision.

    Under the Board's interim rules, a contractor must file an appeal no later than 90 days after it receives the contracting officer's final decision.  The contracting officer is required to assemble and transmit to the Board an appeal file within 30 days after receipt of the complaint.  The file must include (1) the decision from which the appeal is taken; (2) the contract; (3) all relevant correspondence between the parties; (4) all documents on which the contracting officer relied in making its decision; (5) affidavits or statements, and transcripts of any testimony taken during the course of proceedings; and (6) any additional information considered relevant to the appeal.  It is the appellant's responsibility to produce, within 30 days after receipt of the appeal file, any additional documents which the appellant considers to be relevant to the appeal.

    If not previously filed with the notice of appeal, a complaint must be filed within 15 days after receipt of the docketing notice from the Board.  Such complaint must (1) set forth direct statements of each of the contractor's claims showing that it is entitled to relief; (2) identify the contract provision(s) under which relief is claimed; and (3) state the amount in controversy, and/or the relief requested.  Within 30 days after receipt of the complaint, the government must file with the Board an answer thereto, setting forth the government's defenses to each claim asserted by the appellant.

    The Board's interim procedural rules contemplate a panel of three members appointed by the Chairman of the Board.  Each panel includes a presiding member who rules on non-dispositive motions, resolves procedural disputes, and is responsible for case management, including scheduling.  Findings and decisions with respect to an appeal are made by a majority of the Board members constituted to hear that appeal.  All such findings and decisions must be in writing and must be forwarded to the parties.

    The Board's procedural rules are based on rules previously issued by GAO to govern procedures of the various ad hoc boards, as well as those promulgated by the Armed Services Board of Contract Appeals and the Civilian Board of Contract Appeals.  GAO has adapted those rules, however, to promote greater efficiency in case management and resolution.

    Six members of the Board, including a Chairman and Vice Chairman, have already been competitively appointed.  Each member is a GAO attorney with at least 5 years of public contract experience.

    The Board's jurisdiction extends to appeals from (1) the Architect of the Capitol; (2) U.S. Botanic Gardens; (3) GAO; (4) Government Printing Office; (5) Library of Congress; (6) Congressional Budget Office; (7) U.S. Capitol Police; and (8) any other agency, board, or commission established in the legislative branch of government.

    Appeals filed on or after October 1, 2007 will be decided by the newly established Board.  Appeals which were filed before that date, and which are pending before various ad hoc boards, are not affected by the interim procedural rules; such appeals will still be subject to the rules of procedure issued by those boards.