Transcript Armed Services Board of Contract Appeals

Practice Pointers: Effective Presentation of an
Appeal Before the Armed Services Board
of Contract Appeals
Presentation to Federal Bar Association
North Alabama Chapter
40th Annual Symposium on Government Acquisition
November 7, 2012
Practice Pointers: Effective Presentation of an
Appeal Before the Armed Services Board
of Contract Appeals
Judge John Thrasher
All views expressed herein are those of the author and do not necessarily
represent the views of the Department of Defense or the ASBCA.
Introduction
Overview of the Board
Practice Pointers:
•
Initial Strategic Decisions: Filings, Elections and
Schedule
•
The Record
•
Discovery
•
Alternative Dispute Resolution (ADR)
•
Hearings
3
Overview
The authority of the ASBCA to decide appeals is
derived from the Contract Disputes Act of 1978, 41
U.S.C. §§ 7101-7109 and the Board’s Charter.
In addition to appeals from the Department of
Defense; Departments of the Army, Navy and Air
Force; National Aeronautics and Space
Administration; the Board decides appeals from
“other” agencies by agreement.
4
Overview
ASBCA Annual Report - Fiscal Year 2012
New appeals docketed
Appeals disposed
Appeals pending 1 October 2012
Source of pending cases:
Army
30.3%
Corps of Engineers
27.4%
Air Force
14.4%
DLA & DCMA
16.2%
Navy
9.3%
Other
2.5%
571
457
680
5
ASBCA Appeal Activity
3000
2000
1000
0
78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12
Fiscal Year
Docketed
Disposed
Pending
6
Armed Services Board of Contract Appeals
(ASBCA) Practice Pointers
• Initial Strategic Decisions: Filings, Elections and
Schedule
• The Record
• Discovery
• Alternative Dispute Resolution (ADR)
• Hearings
7
ASBCA Practice Pointers:
Initial Strategic Decisions:
Filings, Elections and Schedule
•
•
•
•
•
•
•
Electronic Filing
Complaint & Answer
Early Motions
Entitlement and/or Quantum?
Discovery & Hearing Schedule
Pre-Hearing Briefs?
ADR?
8
ASBCA Practice Pointers:
Initial Strategic Decisions, Filings, Elections
and Schedule
Small Claims Rule 12*: (Appellant’s election)Expedited
and Accelerated
- Expedited (12.2) - decisions within 120 days where
possible for claims of $50,000 or less, or for claims
not exceeding $150,000 that are filed by small
business concerns. (Not precedential/no appeal)
- Accelerated (12.3) - decisions within 180 days
where possible for claims of $100,000 or less.
Written notice of election within 60 days after receipt of
notice of docketing
* Rules of the Armed Services Board of Contract Appeals
(as amended May 2011)
9
ASBCA Practice Pointers:
The Record
What constitutes the record?
The Rule 4 File
Pleadings
Prehearing conference memos & orders
Prehearing briefs
Depositions and interrogatories entered into evidence
Admissions, stipulations
Hearing transcripts
Post Hearing Briefs
Documents designated by the Board
10
ASBCA Practice Pointers:
The Record
What belongs in the Rule 4 File?
•
Rule 4(a) requires the contracting officer to submit
“all documents pertinent to the appeal” including the subject
final decision, contract, pertinent correspondence including
claim, and other relevant evidence within 30 days of receipt of
notice of appeal.
•
Rule 4(b) requires the appellant to file a supplemental
Rule 4 File of other documents that appellant considers relevant
to the appeal within 30 days of receipt of the
government’s documents.
The Rule 4 File may be supplemented as part of the discovery
process.
11
ASBCA Practice Pointers:
The Record
How is the Rule 4 File Organized?
•
Rule 4(c) “Organization of Appeal File”: Documents shall be
legible and arranged in chronological order, numbered
sequentially, tabbed, and indexed. Number each page of
documents exceeding 3 pages in length and place in binders
labeled on both front & spine. (Less than 3 inches wide)
•
Rule 4(d): the Board may permit excerpts from lengthy
documents. Evidence may be submitted in an electronic format
with the permission of the presiding judge.
12
ASBCA Practice Pointers:
The Record
Objections to documents in the Rule 4 File
•
Rule 4(e) “Status of Documents in Appeal File” allows for
interim removal of documents upon a party’s objection.
However, the Board ultimately will rule on admissibility.
13
ASBCA Practice Pointers:
Discovery
E – Discovery
•
•
Although E-Discovery is not specifically addressed by ASBCA Rules, the scope of
the Rules are broad enough to address E-Discovery issues regarding production,
protection of privileged materials, and sanctions for non compliance; see Rules
14 (a), 15 ( c), 35.
Generally apply the principles established in FRCP 16 (b) and 26 (f):
—
Parties should confer as early as possible, before the initial scheduling
conference with the judge and agree on a proposed well prepared to plan for
a discovery strategy that is effective, cost efficient, and avoids the need for
Board intervention.
—
The initial scheduling order should include provisions for discovery or
disclosure of electronically stored information (ESI) and agreements the
parties reach for asserting claims of privilege or of protection as trialpreparation material after production.
14
ASBCA Practice Pointers:
Discovery
E-Discovery
Some, but not all, issues the parties should consider and should be addressed
early in the process include:
Who possesses or controls ESI?
What form is it in and to what form can it be converted?
Where is it physically located?
Ease difficulty and costs of producing information
How will cost be allocated between the parties?
Schedule and format of production
Agreements addressing privilege and work product protection
Preservation of data and spoliation
15
ASBCA Practice Pointers:
Motions
The Board looks to Fed. R. Civ. P. 56 SUMMARY JUDGMENT
for guidance in deciding such motions.*
•
•
•
•
Movant shall file a “Statement of Undisputed Material Facts” using
separate, numbered paragraphs for each assertion.
Non-moving party shall file a “Statement of Genuine Issues of
Material Fact” responding to each paragraph and demonstrating
disputed facts.
Each alleged “fact” must be supported by specific evidence, with
citations to the Rule 4 file noting tab and page number or by
reference to further evidence including pleadings, affidavits, excerpts
from depositions, admissions, etc.
Each party shall submit a memorandum of law supporting or
opposing each ground argued for summary judgment.
*ASBCA Guidance for Summary Judgment Motions 1 October 2009
16
Alternative Dispute Resolution
at the
Armed Services Board of Contract Appeals
• ADR is integral to the Board’s resolution of appeals and other
dispute matters
• ASBCA committed to use of ADR
– Work with parties to develop appropriate ADR procedure
– Work to ensure integrity of ADR process
– Work to make ADR process effective in resolving disputes
17
ADR IMPACT ON DISPOSITIONS
• Over 1700 ADR proceedings at ASBCA
– Both docketed and off-docket matters
– Most activity occurred after FY 2000
– ADR proceedings result in substantive dispositions
• FY 2012 Statistics
– ADR now accounts for approximately 35% of ASBCA
substantive dispositions
18
GUIDE TO ADR ACTIVITY
AT THE ASBCA
Year
Appeals *
Binding
ADR
Non-Binding
ADR
Success
Rate **
608 (21)
235
373
97%
FY 00
76 (4)
35
41
98%
FY 01
165 (7)
45
120
97%
FY 02
136 (13)
63
73
95%
FY 03
86 (11)
16
70
97%
FY 04
60 (20)
11
49
94%
FY 05
140 (55)
20
120
99%
FY 06
70 (9)
5
65
90%
FY 07
99 (8)
6
93
94%
FY 08
61 (4)
5
56
98%
FY 09
41 (2)
3
38
95%
FY 10
48
0
48
96%
FY 11
73(3)
2
71
98%
FY 12
63(6)
0(0)
57
93%
TOTALS
1726
446
1274
FY 87-99
* Includes off-docket matters in parentheses
** Percentage of appeals resolved by
non-binding ADRs
19
GETTING STARTED
• Parties agree to ADR the process
• Timing is important
– It may be too early
– But, it is never too late
• Parties request ASBCA Judge as neutral
• Parties and Neutral craft terms of ADR agreement
• Chairman approves ADR agreement
20
THE ADR AGREEMENT
• Design the process ---– Type of ADR and role of the Neutral
– Principals with authority to settle
– Issues to be presented
– Discovery
– Location and length
– Schedule
– Position Papers
– Presentation and exhibits
– Provision for Amendments
– Confidentiality
– Immunity
– Attorneys’ fees and costs
21
Available ADR Methods of Resolution
Specific dispute resolution methods suggested include:*
(1) Settlement judge - appointed for purpose of facilitating settlement. Meets
with parties jointly or individually and may make informal, nonbinding
recommendations.
(2) Minitrial – a highly flexible, expedited but structured procedure where
party representatives with decision-making authority are assisted by Board
judge serving as neutral advisor.
(3) Summary Trial with Binding Decision - provides for the presiding judge to
render a “bench” decision 10 days after transcript following an expedited &
truncated hearing.
(4) “Other Agreed Methods” - includes med/arb, med/rec, and other flexible
procedures as suggested by the parties and as approved by the Board.
*NOTICE REGARDING ALTERNATIVE METHODS OF DISPUTE
RESOLUTION Revised 23 February 2011
22
ASBCA Practice Pointers:
Hearings
Purpose of Hearing
Opening Statement
Documentary Evidence
Exhibits
Testimonial Evidence
Rule 21. Subpoenas
Witness Books
Expert testimony
Post Hearing Briefs
23
Practice Pointers: Effective Presentation of
an Appeal Before the Armed Services Board
of Contract Appeals
Questions?
24