RULES OF PROCEDURE

OF THE GENERAL SERVICES ADMINISTRATION

BOARD OF CONTRACT APPEALS

FOREWORD

PART I -- STANDARD PROCEEDINGS

Rule 101: SCOPE OF RULES; DEFINITIONS; CONSTRUCTION; RULINGS

AND ORDERS; PANELS; SITUS

(a) Scope

(b) Definitions

(d) Rulings, orders, and directions

(e) Panels

(f) Situs

Rule 102: TIME: ENLARGEMENT; COMPUTATION

(a) Time for performing required actions

(b) Enlarging time

Rule 103: SERVICE OF PAPERS

(a) On whom and when service must be made

(b) Proof of service

Rule 104: APPEAL FILE

(a)Submission to the Board by the contracting officer

(b)Submission to the Board by the appellant

(c)Submissions on order of the Board

(d)Organization of the appeal file

(e)Lengthy or bulky materials

(f)Use of appeal file as evidence

(g)When appeal file not required

Rule 105: FILING CASES; TIME LIMITS FOR FILING; DOCKETING

(a) Filing cases

(b) Time limits for filing

Rule 106: APPEARANCES; NOTICE OF APPEARANCE

(a) Appearances before the Board

(b) Notice of appearance

Rule 107: PLEADINGS IN APPEALS

(a) Pleadings required and permitted

(b) Complaint

(d) Reply to an answer

(e) Modifications to requirement for pleadings

(f) Amendment of pleadings

Rule 108: MOTIONS

(a) How motions are made

(b) When motions may be made

(d) Other motions

(e) Jurisdictional questions

(f) Procedure

(g) Motions for summary relief

(h) Effect of pending motion

Rule 109: ELECTION OF HEARING OR RECORD SUBMISSION

Rule 110: CONFERENCES; CONFERENCE MEMORANDUM; PREHEARING

ORDER; PREHEARING AND PRESUBMISSION BRIEFS

(a) Conferences

(b) Conference memorandum

(d) Prehearing or presubmission briefs

Rule 111: SUBMISSION ON THE RECORD WITHOUT A HEARING

(a) Submission on the record

(b) Time for submission

Rule 112: RECORD OF BOARD PROCEEDINGS

(a) Composition of the record for decision

(b) Time for entry into the record

(d) Notice that the case is ready for decision

(e) Amendments to conform to the evidence

(f) Enlargement of the record

(g) Inspection of the record of proceedings; release of any paper, document, or tangible thing prohibited

(h) Protected and in camera submissions

Rule 113: [RESERVED]

Rule 114: [RESERVED]

Rule 115: GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery methods

(b) Scope of discovery

(d) Conduct of discovery

(e) Discovery conference

(f) Discovery objections

(g) Failure to make or cooperate in discovery; sanctions

(h) Subpoenas

Rule 116: DEPOSITIONS

(a) When depositions may be taken

(b) Depositions: time; place; manner of taking

(d) Depositions pending appeal from a decision of the Board

Rule 117: INTERROGATORIES TO PARTIES; REQUESTS FOR ADMISSION;

REQUESTS FOR PRODUCTION OF DOCUMENTS

(a) Written interrogatories

(b) Option to produce business records

(d) Written requests for production of documents

(e) Change in time for response

(f) Responses

Rule 118: SANCTIONS AND OTHER PROCEEDINGS

(a) Standards

(b) Sanctions

(d) Disciplinary proceedings

Rule 119: HEARINGS: SCHEDULING; NOTICE; UNEXCUSED ABSENCES

(a) Scheduling of hearings

(b) Notice of hearing

Rule 120: SUBPOENAS

(a) Voluntary cooperation in lieu of subpoena

(b) General

(d) Form; issuance

(e) Service

(f) Proof of service

(g) Motion to quash or to modify

(h) Contumacy or refusal to obey a subpoena

Rule 121: HEARING PROCEDURES

(a) Nature and conduct of hearings

(b) Continuances; change of location

(d) Enlargement of the record

(e) Examination of witnesses

(f) Refusal to be sworn

(g) Refusal to answer

(h) Issues not raised by pleadings

(i) Delay by parties

Rule 122: ADMISSIBILITY AND WEIGHT OF EVIDENCE

(a) Admissibility

(b) Federal Rules of Evidence

(d) Submission of evidence in camera

Rule 123: EXHIBITS

(a) Marking of exhibits

(b) Copies as exhibits

(d) Disposition of physical exhibits

Rule 124: TRANSCRIPTS OF PROCEEDINGS; CORRECTIONS

(a) Transcripts

(b) Corrections

Rule 125:BRIEFS AND MEMORANDA OF LAW

(a) Form and content of briefs and memoranda of law

(b) Submission of posthearing briefs

Rule 126: CONSOLIDATION; SEPARATE HEARINGS; SEPARATE

DETERMINATION OF LIABILITY

(a) Consolidation

(b) Separate hearings

Rule 127: STAY OR SUSPENSION OF PROCEEDINGS;DISMISSALS IN

LIEU OF STAY OR SUSPENSION

(a) Stay of proceedings to obtain contracting officer's decision

(b) Suspension for other cause

Rule 128: DISMISSALS

(a)Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(b)Dismissal without prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(c)Issuance of order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Rule 129: DECISIONS: FORMAT; PROCEDURE

Rule 130: FULL BOARD CONSIDERATION

(a)Requests

(b)Consideration

(c)Decisions

Rule 131: CLERICAL MISTAKES

Rule 132: RECONSIDERATION; AMENDMENT OF DECISIONS; NEW

HEARINGS

(a)Grounds

(b)Procedure

(c)Time for filing

(d)Effect of motion

Rule 133: RELIEF FROM DECISION OR ORDER

(a)Grounds

(b)Procedure

(c)Time for filing

(d)Effect of motion

Rule 134: HARMLESS ERROR

Rule 135: AWARD OF COSTS

(a)Applications for costs

(b)Time for filing

(c)Application requirements

(d)Proceedings

(e)Decision

Rule 136: PAYMENT OF BOARD AWARDS

(a)Generally

(b)Conditions for payment

(c)Procedure for filing of certificates of finality

(d)Procedure in absence of certificate of finality

(e)Stipulated award

Rule 137: RECORD ON REVIEW OF A BOARD DECISION

(a)Record on review

(b)Notice

(c)Filing of certified list of record materials

(d)Request by attorney of record to review record

Rule 138: OFFICE OF THE CLERK OF THE BOARD

(a)Open for the filing of papers

(b)Decisions and orders

(c)Docket

(d)Copies and certification of papers

Rule 139: SEAL OF THE BOARD

Rule 140: FORMS

PART II -- EXPEDITED PROCEEDINGS

Rule 201: VARIATION FROM STANDARD PROCEEDINGS

Rule 202: SMALL CLAIMS PROCEDURE

(a) Election

(b) Decision

(d) Time of decision

Rule 203: ACCELERATED PROCEDURE

(a) Election

(b) Decision

(d) Time of decision

Rule 204: ALTERNATIVE DISPUTE RESOLUTION

(a) Availability of ADR procedures

(b) Conduct of ADR

APPENDIX: FORMS

Notice of Appeal

Notice of Appearance

Subpoena

Government Certificate of Finality

Appellant/Applicant Certificate of Finality

RULES OF PROCEDURE

OF THE GENERAL SERVICES ADMINISTRATION

BOARD OF CONTRACT APPEALS

FOREWORD

The General Services Administration Board of Contract Appeals was established under the Contract Disputes Act of 1978, 41 U.S.C. 601-613, as an independent tribunal to hear and decide contract disputes between government contractors and the General Services Administration (GSA) and other executive agencies of the United States.

As an agency board established under the Contract Disputes Act, the Board is required to "provide to the fullest extent practicable, informal, expeditious and inexpensive resolution of disputes." 41 U.S.C. 607(e). Part I of these rules represents the Board's concerted effort to be responsive to this charge in standard proceedings. In further response to this mandate, the Board also uses a variety of techniques intended to shorten and simplify, when appropriate, the proceedings normally used to resolve contract disputes. These techniques are described in Part II.

As indicated in Part II, the Board fully supports the use of alternative dispute resolution (ADR) in all appropriate cases. To encourage the prompt, expert, and inexpensive resolution of contract disputes as promoted by the Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243, the Board will also make a Board Neutral available for an ADR proceeding, as described in Rule 204, either before or after the issuance of a decision by a contracting officer of any agency if a joint written request is submitted to the Office of the Clerk of the Board by the parties.

The Board also conducts proceedings as required under other laws. In all matters before it, the Board will act in accordance with these rules and applicable standards of conduct so that the integrity, impartiality, and independence of the Board are preserved.

PART I -- STANDARD PROCEEDINGS

Rule 101

SCOPE OF RULES; DEFINITIONS; CONSTRUCTION;

RULINGS AND ORDERS; PANELS; SITUS

(a) Scope. These rules govern proceedings in all cases filed with the Board on or after October 7, 1996, and all further proceedings in cases then pending, except to the extent that, in the opinion of the Board, their use in a particular case pending on the effective date would be infeasible or would work an injustice, in which event the former procedure applies. The Board will look to these rules for guidance in conducting other proceedings authorized by law.

(b) Definitions.

(1) Appeal; appellant. The term "appeal" means a contract dispute filed with the Board. The term "appellant" means a party filing an appeal.

(2) Application; applicant. The term "application" means a submission to the Board of a request for award of costs, under the Equal Access to Justice Act, 5 U.S.C. 504, pursuant to Rule 135. The term "applicant" means a party filing an application.

(3) Board judge; judge. The term "Board judge" or "judge" means a member of the Board.

(4) Case. The term "case" means an appeal, petition, or application.

(5) Filing.

(i) Any document, other than a notice of appeal or an application for award of costs, is filed when it is received by the Office of the Clerk of the Board during the Board's working hours. A notice of appeal or an application for award of costs is filed upon the earlier of (A) its receipt by the Office of the Clerk of the Board or (B) if mailed, the date on which it is mailed. A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date thereof.

(ii) Facsimile transmissions to the Board and the parties are permitted. Parties are expected to submit their facsimile machine numbers with their filings. The Board's facsimile machine number is: (202) 501-0664. The filing of a document by facsimile transmission occurs upon receipt by the Board of the entire printed submission. Parties are specifically cautioned that deadlines for the filing of cases will not be extended merely because the Board's facsimile machine is busy or otherwise unavailable at the time on which the filing is due.

(6) Party. The term "party" means an appellant, applicant, petitioner, or respondent.

(7) Petition; petitioner. The term "petition" means a request filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting officer to issue a written decision on a claim. The term "petitioner" means a party submitting a petition.

(8) Respondent. The term "respondent" means the Government agency whose decision, action, or inaction is the subject of an appeal, petition, or application.

(9) Working day. The term "working day" means any day other than a Saturday, Sunday, or federal holiday.

(10) Working hours. The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each working day.

(c) Construction. These rules shall be construed to secure the just, speedy, and inexpensive resolution of every case. The Board looks to the Federal Rules of Civil Procedure for guidance in construing those Board rules which are similar to Federal Rules.

(d) Rulings, orders, and directions. The Board may apply these rules and make such rulings and issue such orders and directions as are necessary to secure the just, speedy, and inexpensive resolution of every case before the Board. Any ruling, order, or direction that the Board may make or issue pursuant to these rules may be made on the motion or request of any party or on the initiative of the Board. The Board may also amend, alter, or vacate a ruling, order, or direction upon such terms as are just. In making rulings and issuing orders and directions pursuant to these rules, the Board takes into consideration those Federal Rules of Civil Procedure which address matters not specifically covered herein.

(e) Panels. Each case will be assigned to a panel consisting of three judges, with one member designated as the panel chairman, in accordance with such procedures as may be established by the Board. The panel chairman is responsible for processing the case, including scheduling and conducting proceedings and hearings. In addition, the panel chairman may, without participation by other panel members, decide an appeal under the small claims procedure (Rule 202), rule on nondispositive motions (except for amounts in controversy under Rule 202(a)(2)), and dismiss a case if no party objects (Rule 128(c)). All other matters, except for those before the full Board under Rule 130, are decided for the Board by a majority of the panel.

(f) Situs. The address of the Office of the Clerk of the Board is: Room 7022, General Services Administration Building, 18th and F Streets, N.W., Washington, DC 20405. The Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile machine number is (202) 501-0664.

Rule 102

TIME: ENLARGEMENT; COMPUTATION

(a) Time for performing required actions. All time limitations prescribed in these rules or in any order or direction given by the Board are maximums, and the action required should be accomplished in less time whenever possible.

(b) Enlarging time. Upon request of a party for good cause shown, the Board may enlarge any time prescribed by these rules or by an order or direction of the Board. The exception is the time limit for filing appeals (Rule 105(b)(1)). A written request is required, but in exigent circumstances an oral request may be made and followed by a written request. An enlargement of time may be granted even though the request was filed after the time for taking the required action expired, but the party requesting the enlargement must show good cause for its inability to make the request before that time expired.

(c) Computing time. Except as otherwise required by law, in computing a period of time prescribed by these rules or by order of the Board, the day from which the designated period of time begins to run shall not be counted, but the last day of the period shall be counted unless that day is (i) a Saturday, a Sunday, or a federal holiday, or (ii) a day on which the Office of the Clerk of the Board is required to close earlier than 4:30 p.m., or does not open at all, as in the case of inclement weather, in which event the period shall include the next working day. Except as otherwise provided in this paragraph, when the period of time prescribed or allowed is less than 11 days, any intervening Saturday, Sunday, or federal holiday shall not be counted. When the period of time prescribed or allowed is 11 days or more, intervening Saturdays, Sundays, and federal holidays shall be counted. Time for filing any document or copy thereof with the Board expires when the Office of the Clerk of the Board closes on the last day on which such filing may be made.

Rule 103

SERVICE OF PAPERS

(a) On whom and when service must be made. When a party sends a document to the Board it must at the same time send a copy to the other party by mail or some other equally or more expeditious means of transmittal. Subpoenas (Rule 120) and documents filed in camera (Rule 112(h)) are exceptions to this requirement. Any papers required to be served on a party (except requests for discovery and responses thereto, unless ordered by the Board to be filed) shall be filed with the Board before service or within a reasonable time thereafter.

(b) Proof of service. Except when service is not required, a party sending a document to the Board must indicate to the Board that a copy has also been sent to the other party. This may be done by certificate of service, by the notation of a photostatic copy (cc:), or by any other means that can reasonably be expected to indicate to the Board that the other party has been provided a copy.

(c) Failure to make service. If a document sent to the Board by a party does not indicate that a copy has been served on the other party, the Board may return the document to the party that submitted it with such directions as it considers appropriate, or the Board may inquire whether a party has received a copy and note on the record the fact of inquiry and the response, and may also direct the party that submitted the document to serve a copy on the other party. In the absence of proof of service a document may be treated by the Board as not properly filed.

Rule 104

APPEAL FILE

(a) Submission to the Board by the contracting officer. Within 30 calendar days from receipt of notice that an appeal has been filed, or within such time as the Board may allow, the contracting officer shall file with the Board appeal file exhibits consisting of all documents and other tangible things relevant to the claim and to the contracting officer's decision which has been appealed, including:

(1) The contracting officer's decision, if any, from which the appeal is taken;

(2) The contract, if any, including amendments, specifications, plans, and drawings;

(3) All correspondence between the parties that is relevant to the appeal, including the written claim or claims that are the subject of the appeal, and evidence of their certification, if any;

(4) Affidavits or statements of any witnesses on the matter in dispute and transcripts of any testimony taken before the filing of the notice of appeal;

(5) All documents and other tangible things on which the contracting officer relied in making the decision, and any correspondence relating thereto;

(6) The abstract of bids, if relevant; and

(7) Any additional existing evidence or information deemed necessary to determine the merits of the appeal.

The contracting officer shall serve a copy of the appeal file on the appellant at the same time that the contracting officer files it with the Board, except that (i) the contracting officer need not serve on the appellant those documents furnished the Board in camera pursuant to Rule 112(h), and (ii) the contracting officer shall serve documents submitted under protective order only on those individuals who have been granted access to such documents by the Board. However, the contracting officer must serve on the appellant a list identifying the specific documents filed in camera or under protective order with the Board, giving sufficient details necessary for their recognition. This list must also be filed with the Board as an exhibit to the appeal file.

(b) Submission to the Board by the appellant. Within 30 calendar days after filing of the respondent's appeal file exhibits, or within such time as the Board may allow, the appellant shall file with the Board for inclusion in the appeal file documents or other tangible things relevant to the appeal that have not been submitted by the contracting officer. The appellant shall serve a copy of its additional exhibits upon the respondent at the same time as it files them with the Board.

(c) Submissions on order of the Board. The Board may, at any time during the pendency of the appeal, require any party to file other documents and tangible things as additional exhibits.

(d) Organization of the appeal file. Appeal file exhibits may be originals or true, legible, and complete copies. They shall be arranged in chronological order within each submission, earliest documents first; bound in a loose-leaf binder on the left margin except where size or shape makes such binding impracticable; numbered; tabbed; and indexed. The numbering shall be consecutive, in whole arabic numerals (no letters, decimals, or fractions), and continuous from one submission to the next, so that the complete file, after all submissions, will consist of one set of consecutively numbered exhibits. In addition, the pages within each exhibit shall be numbered consecutively unless the exhibit already is paginated in a logical manner. Consecutive pagination of the entire file is not required. The index should include the date and a brief description of each exhibit and shall indicate which exhibits, if any, have been filed with the Board in camera or under protective order or otherwise have not been served on every other party.

(e) Lengthy or bulky materials. The Board may waive the requirement to furnish other parties copies or duplicates of bulky, lengthy, or outsized materials submitted to the Board as exhibits.

(f) Use of appeal file as evidence. All exhibits in the appeal file, except for those as to which an objection has been sustained, are part of the record upon which the Board will render its decision. Unless otherwise ordered by the Board, objection to any exhibit may be made at any time before the first witness is sworn or, if the appeal is submitted on the record pursuant to Rule 111, at any time prior to or concurrent with the first record submission. The Board may enlarge the time for such objections and will consider an objection made during a hearing if the ground for objection could not reasonably have been earlier known to the objecting party. If an objection is sustained, the Board will so note in the record.

(g) When appeal file not required. Upon motion of a party, the Board may postpone or dispense with the submission of any or all appeal file exhibits.

Rule 105

FILING CASES; TIME LIMITS FOR FILING; DOCKETING

(a) Filing cases. Filing of a case occurs as provided in Rule 101(b)(5).

(1) Notice of appeal.

(i) A notice of appeal shall be in writing and should be signed by the appellant or by the appellant's attorney or authorized representative. If the appeal is from a contracting officer's decision, the notice of appeal should describe the decision in enough detail to enable the Board to differentiate that decision from any other; the appellant can satisfy this requirement by attaching to the notice of appeal a copy of the contracting officer's decision. If an appeal is taken from the failure of a contracting officer to issue a decision, the notice of appeal should describe in detail the claim that the contracting officer has failed to decide; the appellant can satisfy this requirement by attaching a copy of the written claim submission to the notice of appeal.

(ii) A written notice in any form, including the one specified in the Appendix to these rules, is sufficient to initiate an appeal. The notice of appeal should include the following information: (A) the number and date of the contract; (B) the name of the agency and the component thereof against which the claim has been asserted; (C) the name of the contracting officer whose decision or failure to decide is appealed and the date of the decision, if any; (D) a brief account of the circumstances giving rise to the appeal; and (E) an estimate of the amount of money in controversy, if any and if known.

(iii) The appellant must send a copy of the notice of appeal to the contracting officer whose decision is appealed or, if there has been no decision, to the contracting officer before whom the appellant's claim is pending.

(2) Petition.

(i) A petition shall be in writing and signed by the petitioner or by the petitioner's attorney or authorized representative. The petition should describe in detail the claim that the contracting officer has failed to decide; the contractor can satisfy this requirement by attaching to the petition a copy of the written claim submission.

(ii) The petition should include the following information: (A) the number and date of the contract; (B) the name of the agency and the component thereof against which the claim has been asserted; and (C) the name of the contracting officer whose decision is sought.

(3) Application. An application for costs shall meet all requirements specified in Rule 135(c).

(4) Other participation. The Board may, on motion, in its discretion, permit an entity to participate in a case in a special or limited way, such as by filing an amicus curiae brief.

(b) Time limits for filing.

(1) Appeals.

(i) An appeal from a decision of a contracting officer shall be filed no later than 90 calendar days after the date the appellant receives that decision.

(ii) An appeal may be filed with the Board should the contracting officer fail or refuse to issue a timely decision on a claim submitted in writing, properly certified if required.

(2) Applications. An application for costs shall be filed within 30 calendar days of a final disposition in the underlying appeal, as provided in Rule 135(b).

(c) Notice of docketing. Notices of appeal, petitions, and applications will be docketed by the Office of the Clerk of the Board, and a written notice of docketing will be sent promptly to all parties.

Rule 106

APPEARANCES; NOTICE OF APPEARANCE

(a) Appearances before the Board.

(1) Appellant; petitioner; applicant. Any appellant, petitioner, or applicant may appear before the Board by an attorney-at-law licensed to practice in a state, commonwealth, or territory of the United States, or in the District of Columbia. An individual appellant, petitioner, or applicant may appear in his own behalf; a corporation, trust, or association may appear by one of its officers or by any other authorized employee; and a partnership may appear by one of its members or by any other authorized employee.

(2) Respondent. The respondent may appear before the Board by an attorney-at-law licensed to practice in a state, commonwealth, or territory of the United States, or in the District of Columbia. Alternatively, if not prohibited by agency regulation or otherwise, the respondent may appear by the contracting officer or by the contracting officer's authorized representative.

(b) Notice of appearance. Unless a notice of appearance is filed by some other person, the person signing the notice of appeal, petition, or application shall be deemed to have appeared on behalf of the appellant, petitioner, or applicant, and the head of the respondent agency's litigation office shall be deemed to have appeared on behalf of the respondent. A notice of appearance in the form specified in the Appendix to these rules is sufficient. Attorneys representing parties before the Board are required to list the state bars to which they are admitted and their state bar numbers or other bar identifiers.

(c) Withdrawal of appearance. Any person who has filed a notice of appearance and who wishes to withdraw from a case must file a motion which includes the name, address, telephone number, and facsimile machine number of the person who will assume responsibility for representation of the party in question. The motion shall state the grounds for withdrawal unless it is accompanied by a representation from the successor representative or existing co-counsel that the established case schedule will be met.

Rule 107

PLEADINGS IN APPEALS

(a) Pleadings required and permitted. Except as the Board may otherwise order, the Board requires the submission of a complaint and an answer. In appropriate circumstances, the Board may order or permit a reply to an answer.

(b) Complaint. No later than 30 calendar days after the docketing of the appeal, the appellant shall file with the Board a complaint setting forth its claim or claims in simple, concise, and direct terms. The complaint should set forth the factual basis of the claim or claims, with appropriate reference to the contract provisions, and should state the amount in controversy, or an estimate thereof, if any and if known. No particular form is prescribed for a complaint, and the Board may designate the notice of appeal, a claim submission, or any other document as the complaint, either on its own initiative or on request of the appellant, if such document sufficiently states the factual basis and amount of the claim.

(c) Answer. No later than 30 calendar days after the filing of the complaint or of the Board's designation of a complaint, the respondent shall file with the Board an answer setting forth simple, concise, and direct statements of its defenses to the claim or claims asserted in the complaint, as well as any affirmative defenses it chooses to assert. A dispositive motion or a motion for a more definite statement may be filed in lieu of the answer only with the permission of the Board. If no answer is timely filed, the Board may enter a general denial, in which case the respondent may thereafter amend the answer to assert affirmative defenses only by leave of the Board and as otherwise prescribed by subparagraph (f) of this rule. The Board will inform the parties when it enters a general denial on behalf of the respondent.

(d) Reply to an answer. If the Board orders or permits a reply to an answer, it shall be filed as directed by the Board.

(e) Modifications to requirement for pleadings. If the appellant has elected the small claims procedure provided by Rule 202 or the accelerated procedure provided by Rule 203, the submission of pleadings shall be governed by the applicable rule.

(f) Amendment of pleadings. Each party to an appeal may amend its pleadings once without leave of the Board at any time before a responsive pleading is filed; if the pleading is one to which no responsive pleading is permitted, such amendment may be made at any time within 20 calendar days after it is served or, in small claims proceedings under Rule 202, within 10 working days after it is served. The Board may permit the parties to amend pleadings further on conditions fair to both parties. If a response to the unamended pleading was required by these rules or by an order of the Board, a response to the amended pleading shall be filed no later than 30 calendar days after the filing of the amended pleading or, in small claims proceedings, no later than 15 calendar days after the filing of the amended pleading. Rule 112(e) concerns amendments to pleadings to conform to the evidence.

Rule 108

MOTIONS

(a) How motions are made. Motions may be oral or written. A written motion shall indicate the relief sought and, either in the text of the motion or in an accompanying legal memorandum, the grounds therefor. In addition, a motion for summary relief shall comply with the requirements of paragraph (g) of this rule. Rule 125 prescribes the form and content of legal memoranda. Oral motions shall be made on the record and in the presence of the other party.

(b) When motions may be made. A motion filed in lieu of an answer pursuant to Rule 107(c) shall be filed no later than the date on which the answer is required to be filed or such later date as may be established by the Board. Any other dispositive motion shall be made as soon as practicable after the grounds therefor are known. Any other motion shall be made promptly or as required by these rules.

(1) Motions to dismiss for lack of jurisdiction or for failure to state a claim upon which relief can be granted;

(2) Motions to dismiss for failure to prosecute;

(3) Motions for summary relief (analogous to summary judgment); and

(4) Any other motion to dismiss.

(d) Other motions. Other motions may be made in good faith and in proper form.

(e) Jurisdictional questions. The Board may at any time consider the issue of its jurisdiction to decide a case. When all facts touching upon the Board's jurisdiction are not of record, or in other appropriate circumstances, a decision on a jurisdictional question may be deferred pending a hearing on the merits or the filing of record submissions.

(f) Procedure. Unless otherwise directed by the Board, a party may respond to a written motion other than a motion pursuant to Rule 130, 131, 132, or 133 at any time within 20 calendar days after the filing of the motion. Responses to motions pursuant to Rule 130, 131, 132, or 133 may be made only as permitted or directed by the Board. The Board may permit hearing or oral argument on written motions and may require additional submissions from any of the parties.

(g) Motions for summary relief.

(1) A motion for summary relief should be filed only when a party believes that, based upon uncontested material facts, it is entitled to relief in whole or in part as a matter of law. A motion for summary relief should be filed as soon as feasible, to allow the Board to rule on the motion in advance of a scheduled hearing date.

(2) With each motion for summary relief, there shall be served and filed a separate document titled Statement of Uncontested Facts, which shall contain in separately numbered paragraphs all of the material facts upon which the moving party bases its motion and as to which it contends there is no genuine issue. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the Rule 104 appeal file exhibits relied upon to support such statement.

(3) An opposing party shall file with its opposition (or cross-motion) a separate document titled Statement of Genuine Issues. This document shall identify, by reference to specific paragraph numbers in the moving party's Statement of Uncontested Facts, those facts as to which the opposing party claims there is a genuine issue necessary to be litigated. An opposing party shall state the precise nature of its disagreement and give its version of the facts. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the Rule 104 appeal file exhibits that demonstrate the existence of a genuine dispute. An opposing party may also file a Statement of Uncontested Facts as to any relevant matters not covered by the moving party's statement.

(4) When a motion for summary relief is made and supported as provided in this rule, an opposing party may not rest upon the mere allegations or denials of its pleadings, but the opposing party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue of material fact. If the opposing party does not so respond, summary relief, if appropriate, shall be entered against that party. For good cause shown, if an opposing party cannot present facts essential to justify its opposition, the Board may defer ruling on the motion to permit affidavits to be obtained or depositions to be taken or other discovery to be conducted, or may make such other order as is just.

(h) Effect of pending motion. Except as these rules provide or the Board may order, a pending motion shall not excuse the parties from proceeding with the case in accordance with these rules and the orders and directions of the Board.

Rule 109

ELECTION OF HEARING OR RECORD SUBMISSION

Each party shall inform the Board, in writing, whether it elects a hearing or submission of its case on the record pursuant to Rule 111. Such an election may be filed at any time unless a time for filing is prescribed by the Board. A party electing to submit its case on the record pursuant to Rule 111 may also elect to appear at a hearing solely to cross-examine any witness presented by the opposing party, provided that the Board is informed of that party's intention within 10 working days of its receipt of notice of the election of hearing by the other party. If a hearing is elected, the election should state where and when the electing party desires the hearing to be held and should explain the reasons for its choices. A hearing will be held if either party elects one. If a party's decision whether to elect a hearing is dependent upon the intentions of the other party, it shall consult with the other party before filing its election. If there is to be a hearing, it will be held at a time and place prescribed by the Board after consultation with the party or parties electing the hearing. The record submissions from a party that has elected to submit its case on the record shall be due as provided in Rule 111.

Rule 110

CONFERENCES; CONFERENCE MEMORANDUM; PREHEARING ORDER;

PREHEARING AND PRESUBMISSION BRIEFS

(a) Conferences. The Board may convene the parties in conference, either by telephone or in person, for any purpose. The conference may be stenographically or electronically recorded, at the discretion of the Board. Matters to be considered and actions to be taken at a conference may include:

(1) Simplifying, clarifying, or severing the issues;

(2) Stipulations, admissions, agreements, and rulings to govern the admissibility of evidence, understandings on matters already of record, or other similar means of avoiding unnecessary proof;

(3) Plans, schedules, and rulings to facilitate discovery;

(4) Limiting the number of witnesses and other means of avoiding cumulative evidence;

(5) Stipulations or agreements disposing of matters in dispute; or

(6) Ways to expedite disposition of the case or to facilitate settlement of the dispute, including, if the parties and the Board agree, the use of alternative dispute resolution techniques, as provided in Rules 201 and 204.

(b) Conference memorandum. The Board may prepare a memorandum of the results of a conference or issue an order reflecting any actions taken, or both. A memorandum or order so issued shall be placed in the record of the case and sent to each party. Each party shall have 5 working days after receipt of a memorandum to object to the substance of it.

(d) Prehearing or presubmission briefs. A party may, by leave of the Board, file a prehearing or presubmission brief at any time before the hearing or upon or before the date on which first record submissions are due.

Rule 111

SUBMISSION ON THE RECORD WITHOUT A HEARING

(a) Submission on the record. A party may elect to submit its case on the record without a hearing. A party submitting its case on the record may include in its written record submission or submissions:

(1) Any relevant documents or other tangible things it wishes the Board to admit into evidence;

(2) Affidavits, depositions, and other discovery materials that set forth relevant evidence; and

(3) A brief or memorandum of law.

The Board may require the submission of additional evidence or briefs and may order oral argument in a case submitted on the record.

(b) Time for submission.

(1) If both parties have elected to submit the case on the record, the Board will issue an order prescribing the time for initial and, if appropriate, reply record submissions.

(2) If one party has elected a hearing and the other party has elected to submit its case on the record, the party submitting on the record shall make its initial submission no later than the commencement of the hearing or at an earlier date if the Board so orders, and a further submission in the form of a brief at the time for submission of posthearing briefs.

(c) Objections to evidence. Unless otherwise directed by the Board, objections to evidence (other than the appeal file and supplements thereto) in a record submission may be made within 10 working days after the filing of the submission. Replies to such objections, if any, may be made within 10 working days after the filing of the objection. The Board may rule on such objections in its opinion deciding the merits or otherwise disposing of the case.

Rule 112

RECORD OF BOARD PROCEEDINGS

(a) Composition of the record for decision. The record upon which any decision of the Board will be rendered consists of:

(1) The notice of appeal, petition, or application;

(2) Appeal file exhibits other than those as to which an objection has been sustained;

(3) Hearing exhibits other than those as to which an objection has been sustained;

(4) Pleadings;

(5) Motions and responses thereto;

(6) Memoranda, orders, rulings, and directions to the parties issued by the Board;

(7) Documents and other tangible things admitted in evidence by the Board;

(8) Written transcripts or electronic recordings of proceedings;

(9) Stipulations and admissions by the parties;

(10) Depositions, or parts thereof, received in evidence;

(11) Written interrogatories and responses received in evidence;

(12) Briefs and memoranda of law; and

(13) Anything else that the Board may designate.

All other papers and documents in a case are part of the administrative record of the proceedings. The administrative record shall include file and hearing exhibits offered but not received in evidence in a case; it may also include correspondence with and between the parties, and depositions, interrogatories, offers of proof contained in the transcript, and other documents that are not part of the record for decision.

(b) Time for entry into the record. Except as the Board may otherwise order, nothing other than posthearing briefs will be received into the record after a hearing is completed. In cases submitted on the record without a hearing, nothing will be received into the record after the time for filing of the last record submission. Briefs will be due as provided in Rule 125(b).

(c) Closing of the record. Except as the Board may otherwise order, no proof shall be received in evidence after a hearing is completed or, in cases submitted on the record without a hearing, after notice by the Board to the parties that the record is closed and that the case is ready for decision.

(d) Notice that the case is ready for decision. The Board will give written notice to the parties when the record is closed and the case is ready for decision.

(e) Amendments to conform to the evidence. When issues within the proper scope of a case, but not raised in the pleadings, have been raised without objection or with permission of the Board at a hearing (see Rule 121(h)) or in record submissions, they shall be treated in all respects as if they had been raised in the pleadings. The Board may formally amend the pleadings to conform to the proof or may order that the record be deemed to contain pleadings so amended.

(f) Enlargement of the record. The Board may at any time require or permit enlargement of the record with additional evidence and briefs. It may reopen the record to receive additional evidence and oral argument at a hearing.

(g) Inspection of the record of proceedings; release of any paper, document, or tangible thing prohibited. Except for any part thereof that is subject to a protective order or deemed an in camera submission, the record of proceedings in a case shall be made available for inspection by any person. Such record shall be made available at the Office of the Clerk of the Board during the Board's normal working hours, as soon as practicable given the demands on the Board of processing the subject case and other cases. Except as provided in Rule 123(c) and Rule 137(d), no paper, document, or tangible thing which is part of the record of proceedings in a case may be released from the offices of the Board. Copies may be obtained by any person as provided in Rule 138(d). If such inspection or copying involves more than minimal costs to the Board, reimbursement will be required.

(h) Protected and in camera submissions.

(1) A party may by motion request that the Board receive and hold materials under conditions that would limit access to them on the ground that such documents are privileged or confidential, or sensitive in some other way. The moving party must state the grounds for such limited access. The Board may also determine on its own initiative to hold materials under such conditions. The manner in which such materials will be held, the persons who shall have access to them, and the conditions (if any) under which such access will be allowed will be specified in an order of the Board. If the materials are held under such an order, they will be part of the record of the case. If the Board denies the motion, the materials may be returned to the party that submitted them. If the moving party asks, however, that the materials be placed in the administrative record, in camera, for the purpose of possible later review of the Board's denial, the Board will comply with the request.

(2) A party may also ask, or the Board may direct, that testimony be received under protective order or in camera. The procedures under subparagraph (h)(1) shall be followed with respect to such request or direction.

Rule 113

[RESERVED]

Rule 114

[RESERVED]

Rule 115

GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery methods. The parties may obtain discovery by one or more of the following methods:

(1) Depositions upon oral examination or written questions;

(2) Written interrogatories;

(3) Requests for production of documents or other tangible things; and

(4) Requests for admission.

(b) Scope of discovery. Except as otherwise limited by order of the Board in accordance with these rules, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending case, whether it relates to the claim or defense of a party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) Discovery limits. The Board may limit the frequency or extent of use of the discovery methods set forth in this rule if it determines that:

(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(2) The party seeking discovery has had ample opportunity by discovery in the case to obtain the information sought; or

(3) The discovery is unduly burdensome and expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake.

(d) Conduct of discovery. Parties may engage in discovery only to the extent the Board enters an order which either incorporates an agreed plan and schedule acceptable to the Board or otherwise permits such discovery as the moving party can demonstrate is required for the expeditious, fair, and reasonable resolution of the case.

(e) Discovery conference. Upon request of a party or on its own initiative, the Board may at any time hold an informal meeting or telephone conference with the parties to identify the issues for discovery purposes; establish a plan and schedule for discovery; set limitations on discovery, if any; and determine such other matters as are necessary for the proper management of discovery. The Board may include in the conference such other matters as it deems appropriate in accordance with Rule 110.

(f) Discovery objections.

(1) In connection with any discovery procedure, the Board, on motion or on its own initiative, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following:

(i) That the discovery not be had;

(ii) That the discovery be had only on specified terms and conditions, including a designation of the time and place, or that the scope of discovery be limited to certain matters;

(iii) That the discovery be conducted with no one present except persons designated by the Board; and

(iv) That confidential information not be disclosed or that it be disclosed only in a designated way.

(2) Unless otherwise ordered by the Board, any objection to a discovery request must be filed within 15 calendar days after receipt. A party shall fully respond to any discovery request to which it does not file a timely objection. The parties are required to make a good faith effort to resolve objections to discovery requests informally.

(3) A party receiving an objection to a discovery request, or a party which believes that another party's response to a discovery request is incomplete or entirely absent, may file a motion to compel a response, but such a motion must include a representation that the moving party has tried in good faith, prior to filing the motion, to resolve the matter informally. The motion to compel shall include a copy of each discovery request at issue and the response, if any.

(g) Failure to make or cooperate in discovery; sanctions. If a party fails (i) to appear for a deposition, after being served with a proper notice; (ii) to serve answers or objections to interrogatories submitted under Rule 117, after proper service of interrogatories; or (iii) to serve a written response to a request for inspection, production, and copying of any documents and things under Rule 117, the party seeking discovery may move the Board to impose appropriate sanctions under Rule 118.

(h) Subpoenas. A party may request the issuance of a subpoena in aid of discovery under the provision of Rule 120.

Rule 116

DEPOSITIONS

(a) When depositions may be taken. Upon request of a party, the Board may order the taking of testimony of any person by deposition upon oral examination or written questions before an officer authorized to administer oaths at the place of examination. Attendance of witnesses may be compelled by subpoena as provided in Rule 120, and the Board may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order may designate the manner of recording, preserving, and filing the deposition and may include other provisions to ensure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may, nevertheless, arrange to have a stenographic transcription made at its own expense.

(b) Depositions: time; place; manner of taking. The time, place, and manner of taking depositions, including the taking of depositions by telephone, shall be as agreed upon by the parties or, failing such agreement, as ordered by the Board. A deposition taken by telephone is taken at the place where the deponent is to answer questions.

(c) Use of depositions. At a hearing on the merits or upon a motion or interlocutory proceeding, any part or all of a deposition, so far as admissible and as though the witness were then present and testifying, may be used against a party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1) Any deposition may be used by a party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated to testify on behalf of a public or private corporation, partnership or association, or governmental agency which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by a party for any purpose in its own behalf if the Board finds that:

(i) The witness is dead;

(ii) The attendance of the witness at the place of hearing cannot be reasonably obtained, unless it appears that the absence of the witness was procured by the party offering the deposition;

(iii) The witness is unable to attend or testify because of illness, infirmity, age, or imprisonment;

(iv) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(v) Upon request and notice, exceptional circumstances exist which make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which in fairness ought to be considered with the part introduced.

(d) Depositions pending appeal from a decision of the Board. If an appeal has been taken from a decision of the Board, or before the taking of an appeal if the time therefor has not expired, the Board may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings before the Board. In such case, the party that desires to perpetuate testimony may make a motion before the Board for leave to take the depositions as if the action were pending before the Board. The motion shall show:

(1) The names and addresses of the persons to be examined and the substance of the testimony which the moving party expects to elicit from each; and

(2) The reasons for perpetuating the testimony of the persons named.

If the Board finds that the perpetuation of testimony is proper to avoid a failure or a delay of justice, it may order the depositions to be taken and may make orders of the character provided for in Rule 115 and in this rule. Thereupon, the depositions may be taken and used as prescribed in these rules for depositions taken in actions pending before the Board. Upon request and for good cause shown, a judge may issue or obtain a subpoena, in accordance with Rule 120, for the purpose of perpetuating testimony by deposition during the pendency of an appeal from a Board decision.

Rule 117

INTERROGATORIES TO PARTIES; REQUESTS FOR ADMISSION;

REQUESTS FOR PRODUCTION OF DOCUMENTS

Upon order from the Board permitting such discovery, a party may serve on another party written interrogatories, requests for admis