Practice Pointers: Effective Presentation of an Appeal Before the Armed Services Board of Contract Appeals Presentation to Federal Bar Association North Alabama Chapter 40 th 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. §§ 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-571 Appeals disposed -457 Appeals pending 1 October Source of pending cases: Army30.3% Corps of Engineers27.4% Air Force14.4% DLA & DCMA16.2% Navy9.3% Other2.5% 5

ASBCA Appeal Activity 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 (Not precedential/no appeal) - Accelerated (12.3) - decisions within 180 days where possible for claims of $100,000 or less.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 trial- preparation 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

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

18 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

GUIDE TO ADR ACTIVITY AT THE ASBCA 19

20 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

21 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

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

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