A recent order from the Civilian Board of Contract Appeals in Zhang v. General Services Administration offers important guidance on the scope of discovery obligations in federal contract disputes — particularly where responsive records are held not by the respondent agency, but by a separate federal entity.
The decision merits attention for its analysis of document production requirements under the board’s rules and its treatment of the circumstances under which a respondent agency may be required to actively seek records from a sister agency in aid of litigation.
Link to Background of the Dispute Background of the Dispute
The appeal arose after appellant Yuanming Zhang purchased a vehicle through an online auction conducted by the General Services Administration (GSA). Zhang alleged that the vehicle listing contained material misrepresentations regarding the vehicle’s condition and later submitted a claim to GSA seeking a refund and damages.
After the contracting officer denied relief, Zhang appealed to the board under the small claims procedures set forth in Board Rule 52. Although the small claims process is intended to produce a decision within 120 days, Zhang simultaneously sought discovery relating to the vehicle’s maintenance history and the preparation of the auction listing.
The requested records included information involving the U.S. Fish and Wildlife Service (FWS), which had apparently used the vehicle before GSA auctioned it.
GSA objected to the requests, arguing, among other things, that they improperly sought documents outside GSA’s possession or control.
Link to Discovery Obligations Regarding Non-Respondent Agencies Discovery Obligations Regarding Non-Respondent Agencies
The most consequential aspect of the order concerns whether GSA was required to attempt to obtain records held by another federal agency.
GSA argued that it could not be compelled to produce documents from FWS because FWS was not a party to the appeal and was not represented by GSA counsel. The board agreed that, as a general matter, attorneys representing one federal agency do not represent the entire federal government.
However, the board explained that discovery obligations under Federal Rule of Civil Procedure 34 extend beyond documents in the agency’s physical possession. Documents may also fall within an agency’s “control” if the agency has the practical ability to obtain them.
Link to The Board Adopts a Broad Interpretation of “Control” The Board Adopts a Broad Interpretation of “Control”
The order extensively analyzed federal case law interpreting “possession, custody, or control” under Rule 34. The board emphasized that “control” is broadly construed and may exist where a party has the practical ability to obtain records from another entity, even absent formal legal authority.
Applying that principle, the board found that GSA could not simply assert that it lacked possession of the requested FWS records. Instead, the board held that GSA was obligated to make reasonable, good-faith efforts to obtain the documents from the sister agency.
The board relied heavily on prior decisions recognizing that government agencies often possess a practical ability to secure records from other agencies through interagency cooperation. The order also cited Board Rule 16(a), which encourages parties to work cooperatively to obtain evidence from third parties before resorting to subpoenas.
Accordingly, the board directed GSA to either produce responsive documents obtained from FWS or submit an affidavit detailing the specific efforts undertaken to obtain the records and identifying the appropriate FWS personnel or offices capable of responding to a subpoena.
This portion of the decision may have substantial implications for future government contracts litigation by reinforcing the expectation that respondent agencies cannot avoid discovery simply because responsive records are maintained elsewhere within the executive branch.
Link to The Decision Reinforces the Board’s Preference for Cooperative Discovery The Decision Reinforces the Board’s Preference for Cooperative Discovery
The order repeatedly emphasized the board’s preference for informal, cooperative discovery procedures. Rather than forcing appellants immediately to pursue subpoenas against non-party agencies, the board expects respondent agencies to attempt in good faith to facilitate access to responsive materials. The board explained that this cooperative approach advances the Contract Disputes Act’s goal of achieving the “just, informal, expeditious, and inexpensive resolution” of disputes.
Notably, the board also rejected GSA’s suggestion that Zhang should instead submit a Freedom of Information Act (FOIA) request to obtain the records. The order reaffirmed that FOIA is not a substitute for discovery in litigation before the board.
Link to Key Takeaways for Government Contractors and Practitioners Key Takeaways for Government Contractors and Practitioners
The Zhang decision offers several important lessons for parties litigating before boards of contract appeals.
First, and most importantly, the order signals that respondent agencies may be required to make meaningful efforts to obtain records from non-respondent federal agencies when those records are relevant to the dispute.
The decision also serves as a reminder that boards of contract appeals possess subpoena authority under the Contract Disputes Act and may compel production directly from non-party agencies if cooperative efforts fail.
For contractors and litigants pursuing claims against the government, the ruling provides a valuable roadmap for obtaining discovery that agencies may initially resist producing.
If you have any questions about the foregoing or require assistance, please do not hesitate to contact Aron Beezley or Jenna Mazzella.