100 General Provisions
100.1 Scope. These rules, consisting of Chapters 1, 2, 3 and 4 of Title 27 DCMR, govern all proceedings in all cases filed with the District of Columbia Contract Appeals Board (Board).
100.2 Codification. These rules shall amend Chapters 1, 2, 3, and 4 of Title 27 of the District of Columbia Municipal Regulations (DCMR) and shall be cited with the appropriate reference to the publication of these rules in the D.C. Register, indicating the volume number, page number and the date of publication.
100.3 Application. These rules shall apply to all appeals and protests filed with the Board on or after April 6, 2020, and to all further proceedings in appeals and protests pending before the Board at that time.
100.4 Transition. If, however, the Board determines that the application of a rule in a particular case pending before the Board on the effective date of these rules would be impracticable or would work an injustice on a party, the Board may order that all or a portion of the former rules shall apply to further proceedings in the case.
100.5 Construction. These rules shall be construed to obtain the just, expeditious, and inexpensive resolution of every case. In addition to the Board's own precedent, the Board will be guided by (i) precedent of the District of Columbia courts in construing those Board rules that are analogous to the Rules of Civil Procedure of the DC Superior Court; and (ii) precedent of the United States Government Accountability Office in construing those Board rules that are analogous to protest rules of the Government Accountability Office.
101 Board
101.1 The name of the Board is the District of Columbia Contract Appeals Board.
101.2 The Board's membership shall consist of a Chief Administrative Judge (Chairperson) and other administrative judges, as provided by law.
101.3 Cases before the Board are assigned to panels consisting of three administrative judges as appropriate for final disposition or decision, except as determined by the Chief Administrative Judge in accordance with Subsection 215.5, or otherwise.
101.4 The presiding administrative judge designated to manage a particular case pursuant to Subsection 102.5 shall have the authority to administer oaths and affirmations, issue subpoenas, rule on all interlocutory matters and nondispositive motions, schedule and conduct proceedings and hearings, and take other action as necessary to prepare the case for final disposition or decision.
101.5 Except for appeals processed under the small claims (expedited) procedure, as prescribed in Section 215, the final disposition of a case shall be made by majority vote of the administrative judges assigned to the panel.
101.6 The Board's final decision in a case shall be in writing and based solely on the record, including such matters as the Board may expressly take notice of. A copy of the decision shall be dated and forwarded to the parties by first class mail or electronically. All decisions which constitute a final adjudication of a case, except decisions issued on cases under the optional small claims procedures of Section 215, shall be published in the District of Columbia Register.
101.7 The Board shall hear and decide de novo all cases under its jurisdiction.
101.8 If any contracting agency, which is exempt from coverage of the Procurement Practices Reform Act, wishes to have the Board hear and decide appeals and/or protests, the Board shall do so only in accordance with a written agreement with the agency. The cost of processing cases involving such an agency shall be on a reimbursable basis agreed to by the Board and the agency.
101.9 Proceedings before the Board shall be conducted at its offices, unless otherwise ordered by the Board.
102 Chief Administrative Judge (Chairperson)
102.1 The chairperson of the Board shall serve as the Chief Administrative Judge of the Board.
102.2 In addition to participating in the hearing of cases, the Chief Administrative Judge shall oversee the administrative activities of the Board and shall provide, within approved budgetary ceilings, for the staffing of the Board with nonmember personnel. These persons shall be responsible to and shall function under the direction, supervision, and control of the Chief Administrative Judge.
102.3 In the case of a vacancy in the position of the Chief Administrative Judge, or his or her absence or disability, the administrative judge who has the senior length of service shall serve as the Acting Chief Administrative Judge and exercise all of the authority, duties, and responsibilities of the Chief Administrative Judge.
102.4 When by reason of a vacancy, disability, or absence, neither the Chief Administrative Judge nor the member who has the senior length of service is available to exercise the duties of the Chief Administrative Judge, the administrative judge next in length of service shall serve as the Acting Chief Administrative Judge. Should there not be an administrative judge with a senior length of service, the Chief Administrative Judge shall designate a Board member to serve as Acting Chief Administrative Judge.
102.5 The Chief Administrative Judge shall assign and, as necessary, reassign cases and administrative judges to panels and shall designate one of the panel members as the presiding judge having the lead responsibility for the management of a particular case.
102.6 The Chief Administrative Judge may authorize the performance by another administrative judge or Board employee of any function of the Chief Administrative Judge, except that, as provided by law, only administrative judges may hear and decide cases. The attendance of at least two members of the Board shall constitute a quorum.
103 Board Operations
103.1 The Board's office shall be open for the transaction of business from 9:00 a.m. until 5:00 p.m. daily, except Saturdays, Sundays, and legal holidays.
(a) Unless otherwise directed by an administrative judge, all paper pleadings, briefs, motions, and any other submissions to the Board shall be filed at the Board's office during business hours.
(b) Subject to Chapter 4, documents can be filed electronically at any time. As stated in Chapter 4, electronic filing is the electronic submission of documents to the Board via the Board’s designated electronic file and serve system. Sending an email to the Board is not a proper method of electronic filing.
103.3 Upon the receipt of a paper appeal or a protest, the Board shall stamp the date of filing next to the title of the case. Upon receipt of an electronic filing, the Board’s designated vendor shall issue a confirmation showing the authorized date and time of filing. If a person filing requests a Board certification, a copy of the submission provided by the person shall be marked to show the time and date of the filing and it shall be initialed by the Board.
103.4 The Board shall keep and maintain: all incoming pleadings, motions, and other communications to the Board, and all outgoing notices, correspondence, and Board actions; a monthly docket of current cases under the Board's jurisdiction; copies of decisions and final orders of the Board; and copies of the Board's rules.
103.5 Subject to the provisions of Section 104, the case docket, and copies of decisions, final orders, and rules shall be available for inspection by the public at the Boards' office. Copies of Board decisions and final orders shall be available to the public at a reasonable cost. Consistent with the requirements of the District of Columbia Freedom of Information Act, the Board shall provide access to electronic records not subject to a Protective Order under Section 104 during normal business hours.
103.6 The Board shall maintain records that contain the date of mailing, or delivery, of all papers that are served or delivered.
103.7 Cases before the Board shall be assigned consecutive numbers in the appropriate docket books in order of their filing, one sequence for appeals bearing the letter "D" as a prefix, and another sequence for protests bearing the letter "P" as a prefix.
103.8 Upon request, the Board shall furnish to the public the names of its members, and the identity of the Board members comprising the panel to which a particular case has been assigned.
103.9 The Board shall maintain a case docket, updated monthly, which provides the names of the appellant or protester, the name of the contracting agency, the case number, the date the case was filed with the Board, the name of the presiding judge, the date of any scheduled hearing on the merits of the case, and an identification of accelerated and small claims appeals.
103.10 Active case files containing all pleadings and other records of the case, except as provided by Section 104, shall be available for inspection by the public at the Board's office. However, the public may not remove any pleadings or other records from the case file nor remove the case file from the Board's office without the express written authorization of an administrative judge.
104 Protective Orders; In Camera Review
(a) At the request of a party to a protest or appeal or on its own initiative, the Board may issue a protective order controlling the treatment of protected information. Such information may include proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms. The protective order shall establish procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. For informational purposes only, a sample protective order, as well as sample applications for access to materials under a protective order, are available on the Board’s website: www.cab.dc.gov.
(b) If a party to a protest or appeal seeks to have its initial filing in a case sealed, it must submit with the filing a motion for a protective order pursuant to this Rule, or submit an explicit request for a protective order in the filing, as well as a redacted copy of the filing that would be accessible to the public. If, a party seeks to have a subsequent filing or specified exhibits sealed, it must first file a motion for a protective order pursuant to this rule. Redacted copies of the exhibits need not be submitted, however. Only the specific document or exhibit that is to be filed under seal shall be designated as sealed. For any party that has not been allowed access under the protective order, the filing party shall serve notice of the filing and that the served party must request admission under the protective order to access the documents filed.
(c) If no protective order has been issued, the agency may withhold from the parties those portions of a document submission which would ordinarily be subject to a protective order. The Board will review in camera all information not released to the parties.
(d) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the protective order by submitting an application to the Board, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. Objections to an applicant's admission shall be raised within two (2) days after receipt of the application, although the Board may consider objections raised after that time.
(e) Any violation of the terms of a protective order may result in the imposition of sanctions as the Board deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the violator's practice before the Board.
104.2 At the request of a party or on its own initiative, the Board may order that specific documents or tangible articles be submitted for in camera review by the Board, and not be available for inspection, if they are asserted to contain privileged information. A party by motion may challenge another party's assertion of privilege.
104.3 Information subject to a protective order under this Rule may be used in any appellate matter filed with the Superior Court of the District of Columbia or the District of Columbia Court of Appeals (collectively, “Court”), without the Board’s prior authorization, provided that the information is filed under seal with the Court, that the Court is informed by the Appellant(s) of the Board’s protective order, and that the Appellant(s) request the Court to issue its own protective order to cover the protected material. Use of information protected under the Board’s protective order in such appellate proceedings will be governed by the protective order issued by the Court.
105 Ex Parte Communications
105.1 Ex parte communications, as defined in Subsection 199.1, shall be prohibited.
105.2 Excluded from ex parte communications are those that:
(a) Are specifically authorized by law to be made on an ex parte basis; or
(b) Relate to the Board's administrative functions or procedures; or
(c) Are matters of public record; or
(d) Are communications among Board members, and/or communications among Board members and staff.
105.3 An administrative judge or a staff member of the Board who receives an ex parte communication prohibited by this section, shall immediately report its receipt to the Chief Administrative Judge and prepare a memorandum describing in detail the substance of the communication. The memorandum shall be placed in the case file, along with the actual communication if it is in written form. The Board shall provide a copy of the memorandum to all parties.
106 Appearance And Representation
106.1 In a proceeding before the Board, an individual, receiver, or trustee may appear in his or her behalf; a general partner of a partnership may represent the partnership; and an officer of a corporation may represent the corporation. The Office of the Attorney General for the District of Columbia shall represent the District. Independent agencies of the District of Columbia may be represented by agency counsel.
106.2 A party may be represented in a proceeding by an attorney at law admitted to practice before the District of Columbia Court of Appeals or before the highest court of the state where he or she resides or maintains an office. An attorney at law employed by the District of Columbia government may represent an agency in accordance with the requirements of Rule 49(c)(4) of the Rules of the District of Columbia Court of Appeals.
106.3 An individual appearing before or transacting business with the Board in a representative capacity pursuant to the provisions of Subsection 106.1 may be required to establish his or her authority to act in that capacity.
106.4 Notice of Appearance. Each person, including an Assistant Attorney General, representing a party in a case pending before the Board shall file with the Board a written notice of appearance containing the following:
(a) The signature of the representative;
(b) The typed or printed name of the representative;
(c) The business address and telephone number of the representative; and
(d) The name of the party for whom the appearance is made.
106.5 The notice of appearance shall become a part of the record.
106.6 Each person who has entered an appearance shall be deemed to continue as representative of the named party unless there is filed with the Board any of the following:
(a) A notice of withdrawal of appearance signed by both the representative and the party; or
(b) A notice signed by the party stating that the representation has been concluded, together with proof of service upon the representative; or
(c) A notice of substitution of a representative that conforms to the requirements of Subsection 106.4.
106.7 If two or more persons have entered their appearance for a party, service on one representative shall be service on the party, unless one of the representatives has been designated for service.
107 Form And Filing Of Pleadings, Motions, And Other Submissions
107.1 For documents, such as protests, agency reports, complaints, answers, motions, and responses thereto, filed on paper, an original and two (2) copies shall be filed with the Board. All paper filings shall contain proof of service, in accord with Section 109.
107.2 A filing may be made by mail, hand-delivery or electronically in accordance with Chapter 4, unless otherwise ordered by the Board. Irrespective of the method used for filing, a submission shall only be considered timely filed if it is actually received in the Board's office during business hours or received by the electronic filing vendor within the time established by law, regulation, or Board order.
107.3 Complaints, protests, and other pleadings shall, on the first page, contain a caption setting forth the name of the Board, title of the case, and contain a heading under the caption describing the nature of the pleading, motion, or matter being brought to the attention of the Board. The caption and heading shall be in the following format:
GOVERNMENT OF THE DISTRICT OF COLUMBIA
CONTRACT APPEALS BOARD [PROTEST] OR [APPEAL] OF: [NAME OF PROTESTER or APPELLANT] )
([ADDRESS OF PROTESTER or APPELLANT]) CAB No.
(Under [IFB or RFP] or [Contract] No.) [HEADING]
107.4 In addition to the requirements of Subsection 107.3, the initial filing by or on behalf of a party shall have in the caption the name and full business or residence address of the party. If the party is appearing pro se (without an attorney), the caption shall also include the party's business or personal email address, and a contact telephone number. In the initial filing by a non-governmental corporate body party, the party shall file a corporate disclosure statement identifying all parent companies, subsidiaries (except wholly-owned subsidiaries), and affiliates that have issued shares to the public.
107.5 A submission signed by an attorney shall contain the name, office address, telephone number, and bar identification number of the attorney. Notice of a change in address or telephone number of the attorney, or a party not represented by an attorney, shall be filed within five (5) business days of the change.
107.6 Unless they are changed by a notice filed with the Board, the address and telephone number of a party or any attorney noted on the first filing shall be conclusively taken as the last known address and telephone number of the party or attorney.
107.7 The original of a paper submission that is filed with the Board shall be signed in ink by the party, its attorney, or its authorized representative.
107.8 All submissions filed shall be typed (double spaced), reproduced by any duplicating or copying process that produces a clear black image on white 8½ x 11 inch size paper, and, unless filed electronically, fastened at the top.
107.9 A submission shall not include documents that are not relevant to the case. Irrelevant documents may be rejected by the Board.
107.10 Submissions that do not conform to the requirements of this Rule may be rejected either before or after filing. If the submission is rejected after filing, the effect shall be the same as if it had not been filed.
108 Service Of Pleadings, Motions And Other Submissions
108.1 Except as otherwise provided in the Board's rules or directed by an administrative judge, a pleading, motion, notice, appearance, or other submission filed with the Board subsequent to the filing of an appeal or a protest, shall be served by the filing party upon each party in the case.
108.2 Whenever, under this Rule or a Board order, service is required or permitted to be made upon a party who is represented by an attorney, the service shall be made upon the attorney.
108.3 Electronic service upon a party shall be as provided in Chapter 4. Non-electronic service upon a party, or an attorney representing a party, shall occur at the time of hand delivery; or, if by mail, to the address of record, by the postmark date plus three days as prescribed in Section 122.
108.4 The Board may waive the requirement of furnishing to other parties copies of bulky, lengthy, or out-of-size documents when the party, by written motion, has shown that service would impose an undue burden. The moving party shall notify the other parties that the documents are available for inspection at the office of the Board.
108.5 Notwithstanding the foregoing, any document may be served electronically pursuant to Chapter 4.
109 Proof of Service
109.1 This section only applies to non-electronic filing. A party filing a document with the Board shall furnish written proof that a copy also has been sent to every other party.
109.2 The proof shall show the date and manner of service and may be written acknowledgment of service, affidavit of the person making service, certificate of an attorney of record, or by other proof satisfactory to the Board.
109.3 Proof of service shall not be required if the document has been served electronically pursuant to Chapter 4.
110 Motions Practice
110.1 Every application to the Board for an order or other relief shall be by motion. Before filing any motion, the moving party shall first ascertain whether other affected parties will consent to the relief sought. Only when the movant certifies in writing that despite diligent efforts consent could not be obtained, will the Board consider the motion as a contested matter. If the relief sought is consented to but requires Board approval, the moving party shall serve the other parties and file with the Board a motion which includes the word "Consent" in its title and states that all affected parties have consented to the relief sought.
110.2 With the exception of a motion made during a hearing or conference, all motions shall be in writing, unless otherwise directed by the Board. A motion shall be accompanied by a statement of its purpose, the grounds on which it is based, and the reasons for the order or relief sought.
110.3 A written motion shall include on separate page(s) following the signature page a proposed order for the Board's signature including, if paper filed, a list of all parties, and their current addresses.
110.4 A motion shall include within its body a statement setting forth specific points and authorities to support the motion, including a concise statement of facts material to the issues raised in the motion. No separate memorandum of points and authorities shall be required.
110.5 A memorandum of opposing points and authorities may be filed with the Board and served on a party no later than ten (10) days after service of the motion, unless another Board rule prescribes a larger or shorter time. The Board may also grant or order a larger or shorter time for such filing. If a statement of opposing points and authorities is not filed within the prescribed time, the Board may treat the motion as conceded.
110.6 A reply memorandum may be filed with the Board and served on a party no later than seven (7) days after service of the opposition described in Subsection 110.5, or within a larger or shorter time as the Board may grant or order.
110.7 The Board may decide a motion without a hearing. The Board may also order a hearing on a motion upon the application of either party, or on the Board’s initiative.
110.8 Despite the provisions of Subsection 110.5, for good cause shown, the Board may act upon a motion at any time without waiting for a response to the motion by the opposing party.
110.9 If a moving party fails to appear at a hearing on its motion, the Board may treat the motion as withdrawn and the motion may be refiled only with the permission of the Board. If the opposing party fails to appear at the hearing, the Board may treat the motion as conceded.
110.10 In addition to the statement of points and authorities required by Subsection 110.4 to be included within the body of the motion, a motion for summary judgment shall also include within the motion a separate statement of the material facts as to which the moving party contends there is no genuine issue.
111 Stipulations
111.1 The parties may stipulate to facts, issues, admission of relevant documents, testimony, discovery procedures, and other matters which may aid in expediting the proceedings in a case, subject to acceptance by the Board. A stipulation, however, may not extend a time limit established by a rule or order of the Board without its approval.
112 Discovery
112.1 The Board encourages all parties to engage in voluntary discovery. Discovery documents shall not be filed with the Board unless the Board, on its own initiative or by granting the motion of a party, orders that they be filed.
112.2 After an appeal has been docketed, a party may obtain discovery regarding a matter which is not privileged and is relevant to the case. It shall not be a ground for objection to a discovery request that the information will be inadmissible in the record of the case, if the information appears reasonably calculated to lead to the discovery of admissible evidence.
112.3 A party to a protest or a small claims (expedited) appeal may engage in discovery only to the extent it is acceptable to and ordered by the Board. The Board shall not permit discovery unless it is necessary to advance a fair and expeditious resolution.
112.4 A party may obtain discovery by one or more of the following methods:
(a) Depositions upon oral examination or written questions, but said deposition testimony may only be used at the hearing of an appeal if the witness is unavailable, or to contradict or impeach the testimony of the deponent given at the hearing;
(b) Written interrogatories;
(c) Requests for production of documents or other tangible things; and
(d) Requests for admissions.
112.5 Written interrogatories and requests for admission shall be answered separately in writing, signed under oath by the person making the answers, within thirty (30) days after service. Requests for production of documents or other tangible things shall be answered within 30 days after service. Unless otherwise ordered by the Board, any objection to a discovery request must be filed within fifteen (15) days after service. 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.
112.6 The use of the discovery methods set forth in Subsection 122.4 shall be limited by the Board if it determines that:
(a) The discovery is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive; and
(b) The discovery is unduly burdensome and expensive, taking into account the needs of the case, amount involved in the controversy, limitations on the parties' resources, and importance of the issues at stake in the case.
112.7 The parties are encouraged to utilize electronic transmission to the maximum extent practicable. When discovery material is transmitted electronically, the attorney or other person transmitting the material shall be deemed to have certified that the documents contained in the transmission are what they purport to be.
113 Failure To Make Or Cooperate In Discovery; Sanctions
113.1 Before any motion to compel discovery is filed, the affected parties or counsel must meet for a reasonable period of time in an effort to resolve the disputed matter. The movant shall accompany any motion to compel discovery with a certification that despite a good faith effort to secure it, the discovery material sought has not been provided. This certification shall set forth specific facts describing the good faith effort, including a statement of the date, time, and place of the meeting required by this rule.
113.2 If a party fails to obey an order to provide or permit discovery, the Board may make:
(a) An order that certain facts shall be taken to be established in accordance with the claim of the moving party;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(c) An order striking pleadings, staying further proceedings until the order is obeyed, dismissing the case or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; or
(d) An order imposing such other sanctions as the Board deems appropriate.
113.3 When the Board believes that the circumstances warrant either dismissing the case or rendering a default judgment against the disobedient party as a discovery sanction, it will issue an order to show cause pursuant to Subsection 121.3.
114 Subpoenas
114.1 A party is expected to cooperate in good faith by making available witnesses and evidence under the party's control, when requested by another party, without issuance of a subpoena and by securing the voluntary attendance of third-party witnesses and the production of evidence by third parties.
114.2 The presiding judge may issue, on his or her initiative or upon written motion of a party, a subpoena that commands the person to whom it is directed to:
(a) Attend and give testimony at a deposition;
(b) Attend and give testimony at a hearing; and
(c) Produce the books, papers, documents, and other tangible things designated in the subpoena.
114.3 A request for subpoena shall be filed at least fifteen (15) calendar days before the testimony of a witness or evidence is to be provided, and shall state the relevancy, materiality, and scope of the testimony or documentary evidence sought, including, as to documentary evidence, the identification of all documents desired and the facts to be proved by them in sufficient detail to indicate materiality and relevancy. The Board may, in its discretion, honor requests for subpoenas not made within the time limit provided by this rule.
114.4 The party requesting a subpoena shall arrange for its service. The service shall be made as soon as practicable after the subpoena has been issued.
114.5 A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place consistent with the rules of the D.C. Superior Court. A subpoena may be served by registered or certified mail, by a United States Marshal or his or her deputy, or by any other person who is not a party and is not less than eighteen (18) years of age.
114.6 The service of a subpoena upon a person named in the subpoena shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage allowed by law. However, where the subpoena is issued on behalf of the District government, the fees and mileage allowance need not be tendered in advance of attendance.
114.7 The person serving the subpoena shall make proof of the service to the Board promptly, and, in any event, before the date on which the person served must respond to the subpoena. The proof of service shall be made by completing and executing the "Return on Service" portion of a duplicate copy of the subpoena issued by an administrative judge and returning it to the Board. If service is made by a person other than a United States Marshal or his or her deputy, that person shall make an affidavit as proof by executing the "Return on Service" in the presence of a notary.
114.8 Upon written motion by the person subpoenaed or by a party, made within ten (10) days after service, but in any event not later than the time specified in the subpoena for compliance, the Board may:
(a) Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or
(b) Require the party in whose behalf the subpoena was issued to advance the reasonable cost of producing subpoenaed documentary evidence.
114.9 In a case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of the D.C. Superior Court, the Board shall apply to the D.C. Superior Court for an order requiring the person to appear before the Board to give testimony, produce evidence, or both. If a person fails to obey the order, without adequate excuse, the Board may apply for an order that the person be held in contempt by the Court.
115 Jurisdiction
115.1 The Board at any time may consider the question of its jurisdiction to decide a case.
116 Suspension of Rules
116.1 In the interest of expediting a decision in a case or for other good cause shown, the Board may, except for the time requirements for filing a protest or an appeal, suspend or dispense with the filing requirements and procedural provisions of these rules on the motion of a party or on its own initiative and may order proceedings in accordance with its direction.
117 Reconsideration
117.1 A party to an appeal or a protest may by motion request the Board to reconsider its decision or order for the reasons stated below:
(a) To clarify the decision;
(b) To present newly discovered evidence which by due diligence could not have been presented to the Board prior to the rendering of its decision;
(c) If the decision contains typographical, numerical, technical or other clear errors that are evident on their face; or
(d) If the decision contains errors of fact or law, except that parties shall not present arguments substantially identical to those already presented to the Board.
117.2 For appeals, a motion for reconsideration shall be filed within (30) thirty days after the Board's decision or order is transmitted to a party. For protests, a motion for reconsideration shall be filed within the time period set forth in Subsection 313.2.
117.3 A motion for reconsideration shall set forth the following:
(a) The particular points of fact or law which the moving party believes the Board has overlooked or misapprehended;
(b) Any argument the moving party wishes to make in support of the motion; and
(c) The relief sought and the reasons for seeking the relief.
117.4 For appeals, a party may file an opposition to a motion for reconsideration no later than fifteen (15) days after the motion is served. For protests, a party may file an opposition no later than seven (7) days after the motion is served.
117.5 If a motion for reconsideration is granted, the Board may make a final disposition of the case without reargument, permit reargument, or issue an appropriate order regarding further proceedings.
117.6 A motion of reconsideration does not affect the finality of the Board's decision or suspend its operation except that the Board may stay its decision for good cause shown.
118 Consolidation Of Cases
118.1 When cases involving a common question of law or facts are pending before the Board, consolidation may be ordered by the Board on its own initiative, or on the motion of a party in order to avoid unnecessary costs or delay.
119 Separate Determination Of Liability
119.1 The Board may limit a hearing to those issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery, if any, for another proceeding.
120 Burden Of Proof
120.1 Except as otherwise provided by law, the burden of persuasion by a party to establish a fact or facts in dispute shall be met by a preponderance of the evidence.
121 Dismissal Of Cases
121.1 A case may be dismissed by an appellant or protester as a matter of right by filing a notice of dismissal at any time prior to the service of an answer or motion on the appellant or protester, or by filing a stipulation signed by each party.
121.2 A dismissal initiated by an appellant or protester not covered by Subsection 121.1 shall be approved by the Board upon terms and conditions as it deems proper.
121.3 Whenever either party fails to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicate an intention not to continue the prosecution or defense of a case, the Board may issue an order to show cause why the case should not be dismissed for failure to prosecute or defend.
121.4 The Board shall specify whether a dismissal is with or without prejudice.
122 Computation Of Time
122.1 In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
122.2 The last day of each period computed pursuant to Subsection 122.1 shall be included unless it is a Saturday, Sunday, or legal holiday, or, when the act to be done is the filing of a paper with the Board, a day or any part of a day in which the Board's office is closed, in which event the period shall run until the end of the next day which is not one of the aforementioned days.
122.3 Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three (3) days shall be added to the prescribed period.
122.4 Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other document upon the party and the notice or document is served upon the party electronically in accordance with Chapter 4, the notice or document shall be considered as served when the transmission is completed ("authorized date and time"), provided, however, for the purpose of computing time for the served party to respond, any notice or document served on a day or at a time when the Board is not open for business shall be deemed to have been served on the day and at the time of the next opening of the Board for business.
123 Enlargement Of Time
123.1 The Board, for good cause shown, may enlarge the time prescribed by the Board rules, or by its order, for doing any act, or may permit an act to be done after the expiration of the prescribed time. The Board, may not, however, enlarge the time for filing a protest or an appeal.
124 Continuances
124.1 Any party may move in writing to request a continuance of any scheduled hearing, or to extend the time to file a pleading, or for leave to amend a pleading if the motion is served on opposing parties and the Board at least five (5) business days before the hearing or the time limit.
124.2 Continuance shall be approved only for good cause shown.
124.3 Conflicting engagements of counsel, absence of counsel, or the employment of new counsel shall not be regarded as good cause for continuance unless set forth promptly.
125 Unexcused Absence Of A Party
125.1 The unexcused absence of a party at the time set for a motion or merits hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the motion or case will be regarded as submitted on the record by the absent party.
126 Evidence
126.1 The Board shall follow the rules of evidence of the D.C. Superior Court. However, oral and documentary evidence not ordinarily admissible under those rules may be received in evidence at the discretion of the Board.
127 Sanctions
127.1 If a party or the party's representative fails or refuses to comply with a Board order or rule, or engages in unreasonable or vexatious conduct, the Board may, on its own initiative or on motion of a party, sanction the offending party or representative as it considers necessary to the just and expeditious conduct of the case.
127.2 The Board may deny any party's representative from appearing in a case currently before it if that individual is found by the Board, after hearing, either to be lacking in the requisite qualifications to represent others or to have engaged in unethical, improper or unprofessional conduct.
128 Conflict Of Interest
128.1 Board employees may not engage in outside employment, including the practice of law, that is incompatible with their duties and responsibilities on the Board or as District government employees, as provided in Title 6-B, Chapter 18, of the District of Columbia Municipal Regulations, as amended.
129 Seal Of The Board
129.1 The seal of the Board shall be a circular boss, the center portion of which shall depict the flag of the District of Columbia and flag of the United States. The outer margin of the seal shall bear the legend, "CONTRACT APPEALS BOARD, D.C."
199 DEFINITIONS
199.1 In addition to the terms defined in D.C. Official Code § 2-351.04, the following terms shall have the indicated definitions for purposes of Chapters 1, 2, 3, and 4 of these rules:
Aggrieved person means an actual or prospective bidder or offeror (i) whose direct economic interest would be affected by the award of a contract or by the failure to award a contract, or (ii) who is aggrieved in connection with the solicitation of a contract.
Appeal means a submission to the Board seeking administrative review of a claim by the District or a contractor arising under or related to a contract including those arising under the Public-Private Partnership Act of 2014, a claim for interest penalties pursuant to the District of Columbia Quick Payment Act, or a debarment or suspension action. Appellant means the party filing an appeal with the Board. For purposes of these rules, a "protest" is not an appeal.
Business day means any day other than a Saturday, Sunday, or legal holiday.
Case means an appeal, protest, debarment, or suspension.
Contracting agency means a department, agency, or instrumentality of the District government which employs the contracting officer who has the authority to enter into a contract which is the subject of the solicitation, contract, or agency action at issue before the Board.
Days refer to calendar days, unless otherwise provided. Subsections 122.1 - 122.4 govern computation of time.
Director means the Director of the Office of Contracting and Procurement who is the Chief Procurement Officer.
Dispositive motion means a motion which, if granted, would terminate part or all of a case on the merits or on procedural grounds.
An ex parte communication means any oral or written communication with the Board, which excludes one or more parties to the case, concerning the merits of the case pending before the Board, made by any persons directly or indirectly involved in the outcome of the case.
In camera review refers to the private review of documents or exhibits by an administrative judge without the presence of parties or attorneys.
Interested party has the same meaning as aggrieved person.
Intervenor means an awardee if the contract has been awarded, or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.
Protected information means information subject to a protective order, such as proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms.
Protest means a written objection by an aggrieved party to a solicitation for bids or proposals or a written objection to a proposed or actual contract award. Protester means an aggrieved party who files a protest with the Board.
Respondent means the contracting agency whose decision, action, or inaction is the subject of an appeal or protest.