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CBCA Proposes Changes to its Rules

On March 28, 2018, the Federal Register published proposed changes to the Civilian Board of Contract Appeals’ (“Board”) Rules of Procedure regarding appeals under the Contract Disputes Act (“CDA”).  These proposed rules indicate that the Board wishes to: simplify and modernize access to the Board, clarify certain rules, and increase conformity between its rules and the Federal Rules of Civil Procedure (“Federal Rules”).  Our key takeaways are below, and a side-by-side comparison between the Board’s current and proposed rules can be found here.  Interested parties may submit comments by May 29, 2018.

Summary of Key Proposed Changes

As reflected in the Federal Register, the Board seeks to revise 40 procedural rules regarding CDA appeals.  Below is a summary of the key proposed changes:

  • Discovery.  Although the current rules permit the Board to consider the Federal Rules when resolving discovery matters, the proposed rules leave no doubt as to the significance of the Federal Rules.  The proposed rules seek to directly incorporate certain aspects of the Federal Rules regarding the scope of discovery, submitting and responding to requests for admissions, responding to interrogatories, the use of deposition testimony, and supplementing discovery responses.  The proposed rules also require that objections be made by the date the response to the discovery request is due instead of within 15 days after receiving the discovery request.  These changes are intended to “allow the Board to adopt and apply case law applying the relevant Federal Rules, as well as any future amendments to those Federal Rules, without revising the Board’s rules again.”
  • Evidentiary Record.  Proposed Rule 4 requires the parties to submit the appeal file in electronic format (rather than hardcopy) unless classified or protected materials are involved.  Proposed Rule 9 clarifies that the evidentiary record consists of “evidence” (e.g., exhibits and testimony transcripts) and “other materials” (e.g., pleadings, motions, and demonstrative hearing exhibits), and that the Board “may also rely” on the latter category “to decide a case.”
  • Pleadings.  Proposed Rule 6 formally recognizes that the “Board may in its discretion order a respondent [i.e., the Government] asserting a claim to file a complaint.”  This is consistent with past Board decisions, and should allow for more efficient proceedings.
  • Admissibility of Evidence.  Although it is unclear why the Board’s admissibility rule was substantially re-written, Proposed Rule 10 still maintains that the Board will use the Federal Rules of Evidence as a guidepost, and that the Board generally will admit hearsay evidence unless deemed unreliable.
  • Motions Practice.  For substantive motions (e.g., a motion to dismiss or a motion for summary judgment), Proposed Rule 8 extends the deadline to file an opposition brief from 20 days to 30 days, and the movant’s reply is due 15 days thereafter.
  • Voluntary Dismissals.  Under the current rules, the Board may, in lieu of issuing an order suspending proceedings, dismiss the case without prejudice and reinstate the case within 180 days.  When a case has been dismissed without prejudice and neither party has timely requested that the case be reinstated, the Board deems the case dismissed with prejudice.  Proposed Rule 12 would eliminate a provision purporting to convert a voluntary dismissal withoutprejudice to a dismissal with prejudice after 180 days.  The Board has indicated that this change is based on limits to the Board’s jurisdiction under the CDA.

Effective Date

The proposed rules, if and once finalized, would govern future cases, as well as “all further proceedings in cases then pending” unless the Board decides that using the new rules in a pending case would be inequitable or infeasible.

Finding the Right Balance

As we discussed in an article last year, one of the significant recent trends at the Board has been its increase in publishing discovery-related decisions.  We suggested that the increase in published discovery decisions has the potential to enable parties to better assess the bounds of permissible discovery, thereby allowing the parties to spend less time sidelined by discovery issues and more time focused on the underlying merits of appeals.  Explicitly aligning the Board’s discovery rules with the Federal Rules has the potential to provide even more predictability in discovery and further establish expectations.  Nonetheless, one challenge the Board may face in implementing the proposed rules is striking the balance between following the often formalistic Federal Rules and maintaining the efficiencies and informalities that generally are hallmarks of Board practice.

© 2021 Covington & Burling LLPNational Law Review, Volume VIII, Number 102

About this Author

Justin Ganderson, government contracts lawyer, Covington
Special Counsel

Justin Ganderson is Special Counsel in the firm’s Washington, DC office and a member of the Government Contracts Practice Group. Mr. Ganderson focuses his practice in the areas of claims and disputes resolution, internal investigations, public and private partnerships, utility privatizations, and general federal government contract counseling.

Mr. Ganderson has extensive experience in preparing and crafting requests for equitable adjustments and Contract Disputes Act (CDA) claims, and resolving disputes with government agencies prior to the commencement of...

Brian Byrd, Covington Burling Law Firm, Government Contracting Attorney

Bryan Byrd has experience advising clients across a broad range of issues arising from their participation in government contracting.

Mr. Byrd’s practice covers multiple subject-matter areas, including: contract negotiations, bid protests, flow-down requirements, schedule contracts, compliance, and performance disputes. He works with clients in many industries, including life sciences, defense, and construction.

Jason Workmaster, Litigation attorney, Covington
Of Counsel

Jason Workmaster focuses his practice on government contracts-related litigation, including civil False Claims Act (FCA) cases, contract disputes, and bid protests. He has represented a host of clients in these types of cases in U.S. District Court, the U.S. Court of Federal Claims (COFC), and the Government Accountability Office (GAO).

A nationally recognized leader on FCA issues, Mr. Workmaster has appeared on NBC’s The TODAY Show and Canadian TV’s National News to discuss the highly publicized FCA case against the cyclist Lance Armstrong. Mr....

202 662 5412
Pierre Hines, Covington, Government Contracts Attorney

Pierre Hines provides counseling, investigation, and litigation services to government contractors – particularly those in the defense, healthcare, and information technology industries. He counsels clients in connection with M&A due diligence involving government contractors, along with complex issues arising under the FAR. He conducts internal investigations involving alleged fraud and FCA violations.  Mr. Hines also litigates contract disputes in federal courts and administrative tribunals.

Prior to joining Covington, Mr. Hines was a law clerk to the...