Last week the Defense Acquisition Regulations System issued new revisions to the Rules of the Armed Services Board of Contracts Appeals (the “Board” or “ASBCA”) previously published on May 2011. These Rules apply to all appeals filed on or after the July 21, 2014, and will apply to “those appeals filed before that date, unless that application is inequitable or unfair.” Rule 24. Per the Federal Register, the new rules “propose[] to revise and reorder the Board’s Rules for clarity and consistency and account for changes in technology, remove contradictions, resolve ambiguities, provide updated contact information to allow for some electronic communication by litigants appearing before the Board, and added two addendums: Equal Access to Justice Act Procedures and Alternative Methods of Dispute Resolution, previously not formally contained in the Rules.”
Although many of the revisions are in the vein of reordering the Rules, clarifying prior language and improving the Rules’ overall readability, there are a few noteworthy changes that practitioners before the Board should know, including:
- Rule 2 (“Filing Documents”) provides more detailed information about how documents may be filed with the ASBCA, including electronic filings by e-mail.
- Rule 7 (“Motions”) has been expanded to provide specific requirements to facilitate the disposition of motions generally, jurisdictional motions, summary judgment motions, and responses to these motions.
- Rule 20 (“Motion for Reconsideration”) was revised to now expressly allow an opposing party to file a cross-motion to a motion for reconsideration (“. . . any cross-motion for reconsideration [must be filed] within 30 days of its receipt of the motion for reconsideration.”).
- Rule 21 (“Remand from Court”) now enlarges the time in which parties have to submit individual reports to the Board from 20 to 30 days following the receipt of any Courts’ remand to the Board.
While none of these revisions are “game-changers,” practitioners should be advised to review all revisions to avoid non-compliance with the Board’s Rules.
Finally, we were slightly disappointed that the Rules were not revised to require the government to file a complaint when a contractor appeals a contracting officer’s final decision asserting an affirmative government claim – like a termination for default or defective pricing claim. Under the current framework, contractors are often left in an awkward position of filing a complaint to appeal an affirmative Government claim. Hopefully this will be addressed in the next round of revisions.
