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.