ASBCA Rules Undergo First Major Re-Write in Decades

The Department of Defense (“DOD”) issued a final rule on Monday, July 21, 2014, amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to update the Rules of the Armed Services Board of Contract Appeals (“ASBCA”). The ASBCA is an administrative tribunal responsible for hearing certain disputes between government contractors and the United States regarding DOD contracts, including appeals from Contracting Officer decisions.

The updated rules account for the use of electronic communication, evidence, and discovery in ASBCA appeals, which has been common in practice for some time now, but was never formally addressed by the ASBCA Rules. For example, the new Rule 2(a)(3) allows for the filing of most documents by e-mail, which previously required permission or an order from the Board. Additionally, the updated rules include addenda clarifying alternative dispute resolution procedures allowed under Contract Disputes Act (“CDA”), including those for mediation and summary proceedings, as well as the operation of Equal Access to Justice Act (“EAJA”) fee shifting before the ASBCA.

Finally, the ASBCA Rules have been reorganized, renumbered, and reworded to eliminate certain inconsistencies and provide for additional clarity. Such significant reorganization or the rules, which were first adopted in 1963, has not occurred since 1980, and is a welcome change. Although we do not expect the amended rules to substantively change practice before the ASBCA, it is a big step forward in centralizing the governing procedures for those new to ASBCA practice, and reduces the amount of extra coordination and permissions needed between parties and administrative law judges, especially regarding electronic communication and filing.

The new rules are effective as of July 21, 2014 and can be accessed here. They will generally apply even to cases filed earlier than July 21, unless the application would be “inequitable or unfair.” For advice or assistance regarding the updated rules and appeals to the ASBCA, please contact any of the government contracts attorneys at Eckland & Blando LLP.