13 C.F.R. PART 134—RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF HEARINGS AND APPEALS
Title 13 - Business Credit and Assistance
Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 637(a), 648(l), 656(i), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189.
Source: 61 FR 2683, Jan. 29, 1996, unless otherwise noted.
As used in this part: AA/OHA means the Assistant Administrator for OHA. Act means the Small Business Act, 15 U.S.C. 631 et seq. Address means the primary home or business address of a person or entity, including the street location or postal box number, city or town, state, and postal zip code. Appeal petition has the same meaning as petition. Area Office means a Government Contracting Area Office or a Disaster Area Office of the Small Business Administration. Day means a calendar day, unless a Judge specifies otherwise. Hearing means the presentation and consideration of argument and evidence. A hearing need not include live testimony or argument. Investment Act means the Small Business Investment Act of 1958, 15 U.S.C. 661 et seq. Judge means an Administrative Law Judge or an Administrative Judge of OHA, or the AA/OHA when he or she acts as an Administrative Judge. NAICS code means North American Industry Classification System code. OHA means the Office of Hearings and Appeals. Party means the petitioner, appellant, respondent, or intervenor, and the contracting officer in a NAICS code appeal. Person means an individual or any form of business entity. Petition (or appeal petition) means a written complaint, a written appeal from an SBA determination, or a written request for the initiation of proceedings before OHA. Pleading means a petition, an order to show cause commencing a case, an appeal petition, an answer, a response, or any amendment or supplement to those documents. Respondent means any person or governmental agency against which a case has been brought before OHA. SBA means the Small Business Administration. Size determination means a formal size determination made by an Area Office and includes decisions by Government Contracting Area Directors that determine whether two or more concerns are affiliated for purposes of SBA's financial assistance programs, or other programs for which an appropriate SBA official requested an affiliation determination. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47246, July 18, 2002; 69 FR 29208, May 21, 2004] OHA has authority to conduct proceedings in the following cases: (a) The revocation or suspension of Small Business Investment Company licenses, cease and desist orders, and the removal or suspension of directors and officers of licensees, under the Investment Act and part 107 of this chapter; (b) Alleged violations of those civil rights laws which are effectuated by parts 112, 113, 117, and 136 of this chapter; (c) The revocation of the privilege of a person to conduct business with SBA under the Act and part 103 of this chapter; (d) The eligibility of any bank or non-bank lender to continue to participate in SBA loan programs under the Act and part 120 of this chapter, or to do so with preferred or certified status, and any other appeal that is specifically authorized by part 120 of this chapter; (e) The suspension or termination of surety bond program participants under 15 U.S.C. 694a et seq. and part 115 of this chapter; (f) The rights, privileges, or obligations of development companies under section 504 of the Investment Act and part 120, subpart H, of this chapter; (g) Allowance of fees and expenses under the Equal Access to Justice Act, 5 U.S.C. 504; (h) Debarment from appearance before the SBA because of post-employment restrictions under 18 U.S.C. 207 and part 105 of this chapter; (i) Collection of debts owed to SBA and the United States under the Debt Collection Act of 1982, the Debt Collection Improvement Act of 1996, and part 140 of this chapter; (j) Appeals from the following SBA 8(a) program determinations under the Act and part 124 of this chapter: (1) Denial of program admission based solely on a negative finding as to social disadvantage, economic disadvantage, ownership or control; program termination; program graduation; or denial of a waiver of the requirement to perform to completion an 8(a) contract; and (2) Program suspension; (k) Appeals from size determinations and NAICS code designations under part 121 of this chapter. “Size determinations” include decisions by Government Contracting Area Directors that determine whether two or more concerns are affiliated for purposes of SBA's financial assistance programs, or other programs for which an appropriate SBA official requested an affiliation determination; (l) The imposition of civil penalties and assessments against persons who make false claims or statements to SBA under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801–3812 and part 142 of this chapter; (m) Appeals from the determination of the SBA under part 120 of this chapter to revoke or suspend a microloan intermediary or microloan non-lending technical assistance provider; (n) Appeals from the following small disadvantaged business (SDB) determinations under part 124 of this chapter: (1) SBA's determination that an applicant firm does not qualify for certification, or that a certified SDB no longer qualifies for the program; and (2) A Private Certifier's ownership and control determination made on a firm's application for certification; (o) The suspension, termination, or non-renewal of cooperative agreements with Women's Business Centers and Small Business Development Centers under the Act and part 130 of this chapter; (p) Certain matters involving debarments and suspensions under part 145 of this chapter; (q) Appeals from the Service-Disabled Veteran-owned SBC Program ownership and control status under part 125 of this chapter; (r) The decision of the Appropriate Management Official in SBA Employee Dispute Resolution Process cases (Employee Disputes) under Standard Operating Procedure 37 71 02 (available at http://www.sba.gov/library/soproom.php); and (s) Any other hearing, determination, or appeal proceeding referred to OHA by the Administrator of SBA. [61 FR 2683, Jan. 29, 1996, as amended at 66 FR 47074, Sept. 11, 2001; 67 FR 47246, July 18, 2002; 69 FR 25271, May 5, 2004; 69 FR 29208, May 21, 2004; 70 FR 17587, Apr. 7, 2005] (a) The day from which the time period is computed is excluded, but the last business day is counted, excluding Saturday, Sunday, or Federal holiday. (b) At the Judge's initiative, or upon the motion of a party showing good cause, the Judge may modify any of the applicable time limits, other than those established by statute and those governing when a case may be commenced. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47246, July 18, 2002] (a) The rules in this subpart generally apply to all proceedings over which OHA has jurisdiction, except for appeals from size determinations and NAICS code designations. Specific procedural rules pertaining to 8(a) program appeals and to proceedings under the Program Fraud Civil Remedies Act are set forth, respectively in subpart D of this part and part 142 of this chapter. (b) In the case of a conflict between a particular rule in this subpart and a rule of procedure pertaining to OHA appearing in another subpart of this part or another part of this chapter, the latter rule shall govern. [61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 FR 47246, July 18, 2002] (a) A party other than the SBA may commence a case by filing a written petition within the following time periods: (1) Except as provided by paragraphs (a)(2) through (a)(5) of this section, no later than 45 days from the date of receipt of the SBA action or determination to which the petition relates; (2) In proceedings for debt collection under part 140 of this chapter: no later than 15 days after receipt of a notice of indebtedness and intention to collect such debt by salary or administrative offset; in accordance with the time frames specified in §140.11 of this chapter with respect to administrative wage garnishment; (3) In applications for an award of fees pursuant to subpart E of this part, no later than 30 days after the decision to which it applies becomes final; (4) For 8(a) program suspension proceedings, see §124.305 of this chapter; (5) For SBA Employee Disputes, see Standard Operating Procedure 37 71 02, available at www.sba.gov/library/soproom.php. (b) The SBA may commence a case by issuing to the respondent an appropriate written order to show cause and filing the order to show cause with OHA. (c) Cases concerning Small Business Investment Company license suspensions and revocations and cease and desist orders must be commenced with an order to show cause containing a statement of the matters of fact and law asserted by the SBA, the legal authority and jurisdiction under which a hearing is to be held, a statement that a hearing will be held, and the time and place for the hearing. [67 FR 47246, July 18, 2002, as amended at 70 FR 17587, Apr. 7, 2005] (a) A petition must contain the following: (1) The basis of OHA's jurisdiction; (2) A copy of the SBA determination being appealed, if applicable, and date received; (3) A clear and concise statement of the factual basis of the case; (4) The relief being sought; (5) The name, address, telephone number, facsimile number, and signature of the petitioner or its attorney; (6) A certificate of service (see §134.204(d)); and (7) In a debt collection case, a statement showing when the petitioner received the SBA notice initiating the debt collection proceeding (see §140.3 of this chapter). (b) A petition also must contain additional information or documents as required by the applicable program regulations in this chapter or by other subparts of this part 134. For SBA Employee Disputes, see Standard Operating Procedure 37 71 02, available at www.sba.gov/library/soproom.php. (c) A petition which does not contain all of the information required by paragraphs (a) and (b) of this section may be dismissed, with or without prejudice, at the Judge's own initiative, or upon motion of the respondent. [67 FR 47247, July 18, 2002] (a) Methods of filing and service. Pleadings or other submissions must be filed and served by mail, delivery, or facsimile. Mail includes first class (including certified and registered), express, and priority mail. For good cause, the Judge may order that filing or service be effected by one of these methods. (b) Filing. Filing is the receipt of pleadings and other submissions at OHA. (1) OHA's address. OHA accepts filings between the hours of 8:30 a.m. and 5 p.m. eastern time at the following address: Docketing Clerk, Office of Hearings and Appeals, Small Business Administration, 409 3rd Street, SW., Washington, DC 20416. OHA's telephone number is (202) 401–8203. The number for OHA's facsimile machine is (202) 205–7059. (2) The date of filing for pleadings and other submissions filed by mail, delivery, or facsimile is the date the filing is received at OHA. Any filing received at OHA after 5:00 p.m. eastern time is considered filed as of the next day. (3) Exhibits. An exhibit, whether an original or a copy, must be authenticated or identified to be what it purports to be. (4) Copies. No extra copies of pleadings or other submissions need be filed. If a document is offered as an exhibit, a copy of the document will be accepted by the Judge unless— (i) a genuine question is raised as to whether it is a true and accurate copy; or (ii) it would be unfair, under the circumstances, to admit the copy instead of the original. (c) Service. Service is the mailing, delivery, or facsimile to all other parties of a copy of each pleading or other submission filed with OHA. (1) Complete copies of all pleadings and other submissions filed with OHA must be served upon all other parties or, if represented, their authorized representatives or their attorneys, at their record addresses. (2) The date of service is as follows: for facsimile, the date the facsimile is sent; for personal delivery by the party, its employee, or its attorney, the date the document is given to the party served; for commercial delivery, the date the document is given to the delivery service; for mail, the date of mailing. The date of mailing is the date of a U.S. Postal Service postmark or any other proof of mailing. If there is insufficient proof of mailing, there is a rebuttable presumption that the mailing was made five days before receipt. (3) If the SBA is a party, the SBA must be served, as required by the applicable program regulations or by other subparts of this part 134. If the SBA office for service is not specified elsewhere, serve: Office of General Counsel, Small Business Administration, 409 Third Street, S.W., Washington, DC 20416. For SBA Employee Disputes, see Standard Operating Procedure 37 71 02, available at www.sba.gov/library/soproom.php. (d) Certificate of service. A certificate of service shows how, when, and to whom service was made. Every pleading and other submission filed with OHA and served on the other parties must include a certificate of service. The certificate should state: “I certify that on [date], I caused the foregoing document to be served by [either “placing a copy in the mail,” “sending a copy by facsimile,” “personally delivering a copy,” or “giving a copy to a delivery service,”] upon the following: [list name, address, telephone number, and facsimile number of each party served].” The certificate must be signed and include the typed name and title of the individual serving the pleading or other submission. (e) Confidential information. Any information in pleadings or other submissions that is believed by the submitting party to constitute proprietary or confidential information need not be served upon parties so long as the deletions are clearly identified and generally described in the documents which are served. Upon motion, the Judge may direct that the withheld information be provided to other parties, subject to any appropriate protective order. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47247, July 18, 2002; 70 FR 29937, May 25, 2005] (a) Procedure. No later than 15 days after service of the petition or order to show cause, the respondent may file and serve a motion requesting a more definite statement of particular allegations in the petition. (b) Stay. The filing and service of a motion for a more definite statement stays the time for filing and serving an answer or response. The Judge will establish the time for filing and serving an answer or response. [67 FR 47247, July 18, 2002] (a)(1) Except in a case involving a petition appealing from an SBA determination, a respondent must file and serve an answer within 45 days after the filing of a petition or the service of an order to show cause, except that in debt collection cases, answers are due within 30 days. For SBA Employee Disputes, see Standard Operating Procedure 37 71 02, available at www.sba.gov/library/soproom.php. (2) The answer must contain the following: (i) An admission or denial of each of the factual allegations contained in the petition or order to show cause, or a statement that the respondent denies knowledge or information sufficient to determine the truth of a particular allegation; (ii) Any affirmative defenses; and (iii) The name, address, telephone number, facsimile number, and signature of the respondent or its attorney. (3) Allegations in the petition or order to show cause that are not answered in accordance with paragraph (a)(2)(i) of this section will be deemed admitted unless injustice would occur. (b) Upon the filing of a petition appealing from an SBA determination, the Judge or the AA/OHA will issue an order informing all known parties of the date the appeal was filed. The respondent must file and serve a response to such a petition within 45 days after the filing of such a petition. The response need not admit or deny the allegations in the petition but shall set forth the respondent's positions in support of the SBA determination. The response must also set forth the name, address, telephone number, facsimile number, and signature of the respondent or its attorney. (c) If a petition or order to show cause is amended or if respondent is not properly served, the Judge will order the time to file an answer or response extended and will specify the date such answer or response is due. If respondent is not properly served with a petition appealing from an SBA determination, the Judge will issue an order directing that the petitioner serve respondent within a specified time and directing respondent to file and serve a response within 45 days after petitioner timely serves respondent in accordance with the order. (d) If the respondent fails to timely file and serve an answer or response, that failure will constitute a default. Following such a default, the Judge may prohibit the respondent from participating further in the case. If SBA, as respondent to a petition appealing from an SBA determination, fails to timely file and serve its response or the administrative record (where required), the Judge will issue an order directing SBA to file and serve the administrative record by a specified date. [67 FR 47247, July 18, 2002] (a) Amendments. Upon motion, and under terms needed to avoid prejudice to any non-moving party, the Judge may permit the filing and service of amendments to pleadings. However, an amendment will not be permitted if it would cause unreasonable delay in the determination of the matter. The proposed amendment must be filed and served with the motion. (b) Supplemental pleadings. Upon motion, and under terms needed to avoid prejudice to any non-moving party, the Judge may permit the filing and service of a supplemental pleading setting forth relevant transactions or occurrences that have taken place since the filing of the original pleading. The proposed supplemental pleading must be filed and served with the motion. (c) 8(a) appeals. In 8(a) program appeals, amendments to pleadings and supplemental pleadings will be permitted by the Judge only upon a showing of good cause. (d) Answer or response. In an order permitting the filing and service of an amended or supplemented petition or order to show cause, the Judge will establish the time for filing and serving an answer or response. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47248, July 18, 2002] (a) A party may represent itself, or be represented by an attorney. A partner may represent a partnership; a member may represent a limited liability company; and an officer may represent a corporation, trust, association, or other entity. (b) An attorney for a party who did not appear on behalf of that party in the party's first filing with OHA must file and serve a written notice of appearance. (c) An attorney seeking to withdraw from a case must file and serve a motion for the withdrawal of his or her appearance. [67 FR 47248, July 18, 2002] Every written submission to OHA, other than evidence, must be signed by the party filing that submission, or by the party's attorney. By signing the submission, a party or its attorney attests that the statements and allegations in that submission are true to the best of its knowledge, and that the submission is not being filed for the purpose of delay or harassment. (a) By SBA. SBA may intervene as of right at any time in any case until 15 days after the close of record, or the issuance of a decision, whichever comes first. (b) By interested persons. Any interested person may move to intervene at any time until the close of record by filing and serving a motion to intervene containing a statement of the moving party's interest in the case and the necessity for intervention to protect such interest. An interested person is any individual, business entity, or governmental agency that has a direct stake in the outcome of the appeal. The Judge may grant leave to intervene upon such terms as he or she deems appropriate. [67 FR 47248, July 18, 2002] (a) Contents. All motions must state the relief being requested, as well as the grounds and any authority for that relief. (b) Statement of whether motion is opposed. Except when filing a motion to dismiss or a motion for summary decision, the moving party must make reasonable efforts before filing the motion to contact any non-moving party and determine whether it will oppose the motion and must state in the motion whether each non-moving party will oppose or not oppose the motion. If the moving party cannot determine whether a non-moving party will oppose the motion, the moving party must describe in the motion the efforts made to contact that non-moving party. (c) Response. No later than 20 days after the service of a motion, all non-moving parties must serve and file a response or be deemed to have consented to the relief sought. Unless the Judge directs otherwise, the moving party will have no right to reply to a response, nor will oral argument be heard on the motion. (d) Service of orders. OHA will serve upon all parties any written order issued in response to a motion. (e) Motion to dismiss. A respondent may file a motion to dismiss any time before a decision is issued. If an answer or response has not been filed, the motion to dismiss stays the time to answer or respond. If the Judge denies the motion, and an answer or response has not been filed, the respondent must file the answer or response within 20 days after the order deciding the motion. (f) Motion for an extension of time. Except for good cause shown, a motion for an extension of time must be filed at least two days before the original deadline. [61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 FR 47248, July 18, 2002] (a) Grounds. A party may move for summary decision at any time as to all or any portion of the case, on the grounds that there is no genuine issue as to any material fact, and that the moving party is entitled to a decision in its favor as a matter of law. (b) Contents of motion. The motion must include a statement of the material facts believed not to be disputed, and relevant law. Supporting affidavits may also be included. (c) Cross-motions. In its response to a motion for summary decision, a party may cross-move for summary decision. The initial moving party may file and serve a response to any cross-motion for summary decision within 20 days after the service of that cross-motion. (d) Stay. A motion for summary decision stays the time to answer. The Judge will establish the time for filing and serving an answer in the order determining the motion for summary decision. (e) Appeal petitions from SBA determinations (other than 8(a) determinations). In a case involving an appeal petition, except as provided in subpart D of this part, if SBA has provided multiple grounds for the determination being appealed, SBA may move for summary decision on one or more grounds. If the Judge finds that there is no genuine issue of material fact and the SBA is entitled to a decision in its favor as a matter of law as to any such ground, the Judge will grant the motion for summary decision and dismiss the appeal. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47248, July 18, 2002] (a) Motion. A party may obtain discovery only upon motion, and for good cause shown. (b) Forms. The forms of discovery which a Judge can order under paragraph (a) of this section include requests for admissions, requests for production of documents, interrogatories, and depositions. (c) Limitations. Discovery may be limited in accordance with the terms of a protective order. Further, privileged information and irrelevant issues or facts will not be subject to discovery. (d) Disputes. If a dispute should arise between the parties over a particular discovery request, the party seeking discovery may file and serve a motion to compel discovery. Discovery may be opposed on the grounds of harassment, needless embarrassment, irrelevance, undue burden or expense, privilege, or confidentiality. [61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 FR 47249, July 18, 2002] (a) Availability. At the request of a party, or upon his or her own initiative, a Judge may issue a subpoena requiring a witness to appear and testify, or to produce particular documents, at a specified time and place. Subpoenas are not authorized for proceedings relating to internal Agency determinations, such as Employee Disputes. (b) Requests. A request for the issuance of a subpoena must be written, served upon all parties, and filed. The request must clearly identify the witness and any documents to be subpoenaed, and must set forth the relevance of the testimony or documents sought. (c) Service. A subpoena may only be served by personal delivery. The individual making service shall prepare an affidavit stating the date, time, and place of the service. The party which obtained the subpoena must serve upon all other parties, and file with OHA, a copy of the subpoena and affidavit of service within 2 days after service is made. (d) Motion to quash. A motion to limit or quash a subpoena must be filed and served within 10 days after service of the subpoena, or by the return date of the subpoena, whichever date comes first. Any response to the motion must be filed and served within 10 days after service of the motion, unless a shorter time is specified by the Judge. No oral argument will be heard on the motion unless the Judge directs otherwise. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] (a) General. A motion for leave to take an interlocutory appeal from a Judge's ruling will not be entertained in those proceedings in which OHA issues final decisions. In all other cases, an interlocutory appeal will be permitted only if, upon motion by a party, or upon the Judge's own initiative, the Judge certifies that his or her ruling raises a question which is immediately appealable. Interlocutory appeals will be decided by the AA/OHA or a designee. (b) Motion for certification. A party must file and serve a motion for certification no later than 20 days after issuance of the ruling to which the motion applies. A denial of the motion does not preclude objections to the ruling in any subsequent request for review of an initial decision. (c) Basis for certification. The Judge will certify a ruling for interlocutory appeal only if he or she determines that: (1) The ruling involves an important question of law or policy about which there is substantial ground for a difference of opinion; and (2) An interlocutory appeal will materially expedite resolution of the case, or denial of an interlocutory appeal would cause undue hardship to a party. (d) Stay of proceedings. A stay while an interlocutory appeal is pending will be at the discretion of the Judge. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] At any time during the pendency of a case, the parties may submit a joint motion requesting that the Judge permit the use of alternative dispute resolution procedures to assist in resolving the matter. If the motion is granted, the Judge will also stay the proceedings before OHA, in whole or in part, as he or she deems appropriate, pending the outcome of the alternative dispute resolution procedures. At any time during the pendency of a case, the parties may submit a joint motion to dismiss the appeal if they have settled the case, and may file with such motion a copy of the settlement agreement. If the Judge has express authority, under statute, SBA regulation or SBA standard operating procedures, to review the contents of a settlement agreement for legality, the Judge may order the parties to file a copy of the settlement agreement. Otherwise, upon the filing of a joint motion to dismiss, the Judge will issue an order dismissing the case. Settlement negotiations, and rejected settlement agreements, are not admissible into evidence. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] (a) Assignment. The AA/OHA will assign all cases subject to the Administrative Procedure Act, 5 U.S.C. 551 et seq., to an Administrative Law Judge. The AA/OHA will assign all other cases before OHA to either an Administrative Law Judge or an Administrative Judge, or, if the AA/OHA is a duly licensed attorney, to himself or herself. (b) Authority. Except as otherwise limited by this part, or by statute or other regulation, a Judge has the authority to take all appropriate action to ensure the efficient, prompt, and fair determination of a case, including, but not limited to, the authority to administer oaths and affirmations and to subpoena and examine witnesses. (c) Recusal. Upon the motion of a party, or upon the Judge's own initiative, a Judge will promptly recuse himself or herself from further participation in a case whenever disqualification is appropriate due to conflict of interest, bias, or some other significant reason. A denial of a motion for recusal may be immediately appealed to the AA/OHA, or to the Administrative Law Judge if the AA/OHA is the Judge, but that appeal will not stay proceedings in the case. A Judge may impose appropriate sanctions, except for fees, costs, or monetary penalties, which he or she deems necessary to serve the ends of justice, if a party or its attorney: (a) Fails to comply with an order of the Judge; (b) Fails to comply with the rules set forth in this part; (c) Acts in bad faith or for purposes of delay or harassment; (d) Submits false statements knowingly, recklessly, or with deliberate disregard for the truth; or (e) Otherwise acts in an unethical or disruptive manner. No person shall consult or communicate with a Judge concerning any fact, question of law, or SBA policy relevant to the merits of a case before that Judge except on prior notice to all parties, and with the opportunity for all parties to participate. In the event of such prohibited consultation or communication, the Judge will disclose the occurrence in accordance with 5 U.S.C. 557(d)(1), and may impose such sanctions as he or she deems appropriate. Prior to a hearing, the Judge, at his or her own initiative, or upon the motion of any party, may direct the parties or their attorneys to appear, by telephone or in person, in order to consider any matter which may assist in the efficient, prompt, and fair determination of the case. The conference may be recorded verbatim at the discretion of the Judge, and, if so, a party may purchase a transcript, at its own expense, from the recording service. (a) Availability. A party may obtain an oral hearing only if: (1) It is required by regulation; or (2) Following the motion of a party, or at his or her own initiative, the Judge orders an oral hearing upon concluding that there is a genuine dispute as to a material fact that cannot be resolved except by the taking of testimony and the confrontation of witnesses. (3) The Judge determines that an oral hearing is necessary in administrative wage garnishment proceedings conducted pursuant to §140.11 of this chapter. (b) Place and time. The place and time of oral hearings is within the discretion of the Judge, who shall give due regard to the necessity and convenience of the parties, their attorneys, and witnesses. The Judge may direct that an oral hearing be conducted by telephone. (c) Public access. Unless otherwise ordered by the Judge, all oral hearings are public. (d) Payment of subpoenaed witnesses. A party which obtains a witness' presence at an oral hearing by subpoena, must pay to that witness the fees and mileage costs to which the witness would be entitled in Federal Court. (e) Recording. Oral hearings will be recorded verbatim. A transcript of a recording may be purchased by a party, at its own expense, from the recording service. [61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 70 FR 17587, Apr. 7, 2005] (a) Federal Rules of Evidence. Unless contrary to a particular rule in this part, or an order of the Judge, the Federal Rules of Evidence will be used as a general guide in all cases before OHA. (b) Hearsay. Hearsay evidence is admissible if it is deemed by the Judge to be relevant and reliable. The decision of a Judge will be based upon a preponderance of the evidence. (a) Contents. The record of a case before OHA will consist of all pleadings, motions, and other non-evidentiary submissions, all admitted evidence, all orders and decisions, and any transcripts of proceedings in the case. (b) Public access. Except for information subject to a protective order, proprietary or confidential information withheld in accordance with this part, or any other information which is excluded from disclosure by law or regulation, the record will be available at OHA for public inspection during normal business hours. Copies of the documents available for public inspection may be obtained by the public upon payment of any duplication charges. (c) Closure. The Judge will set the date upon which the pre-decisional record of the case will be closed, and after which no additional evidence or argument will be accepted. (a) Contents. Following closure of the record, the Judge will issue a decision containing findings of fact and conclusions of relevant law, reasons for such findings and conclusions, and any relief ordered. The contents of the record will constitute the exclusive basis for a decision. (b) Time limits. Decisions pertaining to the collection of debts owed to SBA and the United States under the Debt Collection Act of 1982, the Debt Collection Improvement Act of 1996, and Part 140 of this chapter must be made within 60 days after a petition is filed. Time limits for decisions in other types of cases, if any, are indicated either in the applicable program regulations or in other subparts of this part 134. (c) Service. OHA will serve a copy of all written decisions on: (1) Each party, or, if represented by counsel, on its counsel; and (2) SBA's General Counsel, or his or her designee, if SBA is not a party. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002; 70 FR 17587, Apr. 7, 2005] (a) Initial decisions. Except as otherwise provided in paragraph (b) of this section, a decision by the Judge on the merits is an initial decision. However, unless a request for review is filed pursuant to §134.228(a), or a request for reconsideration is filed pursuant to paragraph (c) of this section, an initial decision shall become the final decision of the SBA 30 days after its service. (b) Final decisions. A decision by the Judge on the merits shall be a final decision in the following proceedings: (1) Collection of debts owed to SBA and the United States under the Debt Collection Act of 1982, Debt Collection Improvement Act of 1996, and part 140 of this chapter; (2) Appeals from SBA 8(a) program determinations under the Act and part 124 of this chapter; (3) Appeals from size determinations and NAICS code designations under part 121 of this chapter; and (4) In other proceedings as provided either in the applicable program regulations or in other subparts of this part 134. (c) Reconsideration. Except as otherwise provided by statute, the applicable program regulations in this chapter, or this part 134, an initial or final decision of the Judge may be reconsidered. Any party may request reconsideration by filing with the Judge and serving a petition for reconsideration within 20 days after service of the written decision, upon a clear showing of an error of fact or law material to the decision. The Judge also may reconsider a decision on his or her own initiative. [67 FR 47249, July 18, 2002, as amended at 70 FR 17587, Apr. 7, 2005] (a) Request for review. Within 30 days after the service of an initial decision or a reconsidered initial decision of a Judge, any party, or SBA's Office of General Counsel, may file and serve a request for review by the Administrator. A request for review must set forth the filing party's specific objections to the initial decision, and any alleged support for those objections in the record, or in case law, statute, regulation, or SBA policy. A party must serve its request for review upon all other parties and upon SBA's Office of General Counsel. (b) Response. Within 20 days after the service of a request for review, any party, or SBA's Office of General Counsel, may file and serve a response. A party must serve its response upon all other parties and upon SBA's Office of General Counsel. (c) Transfer of the record. Upon receipt of all responses, or 30 days after the filing of a request for review, whichever is earlier, OHA will transfer the record of the case to the Administrator. The Administrator, or his or her designee, will then review the record. (d) Standard of review. Upon review, the Administrator, or his or her designee, will sustain the initial decision unless it is based on an erroneous finding of fact or an erroneous interpretation or application of case law, statute, regulation, or SBA policy. (e) Order. The Administrator, or his or her designee, will: (1) Affirm, reverse, or modify the initial decision, which determination will become the final decision of the SBA upon issuance; or (2) Remand the initial decision to the Judge for appropriate further proceedings. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] Except when the Judge reconsiders a decision or remands the case, the jurisdiction of OHA will terminate upon the issuance of a decision resolving all material issues of fact and law. If the Judge reconsiders a decision, OHA's jurisdiction terminates when the Judge issues the decision after reconsideration. If the Judge remands the case, the Judge may retain jurisdiction at his or her own discretion, and the remand order may include the terms and duration of the remand. [67 FR 47249, July 18, 2002] The rules of practice in this subpart C apply to all appeals to OHA from: (a) Formal size determinations made by an SBA Government Contracting Area Office, under part 121 of this chapter, or by a Disaster Area Office, in connection with applications for disaster loans; and (b) NAICS code designations, pursuant to part 121 of this chapter. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] Appeals from size determinations and NAICS code designations may be filed with OHA by the following, as applicable: (a) Any person adversely affected by a size determination; (b) Any person adversely affected by a NAICS code designation. However, with respect to a particular sole source 8(a) contract, only the AA/8(a)BD may appeal a NAICS code designation; (c) The Associate or Assistant Administrator for the SBA program involved, through SBA's Office of General Counsel; or (d) The procuring agency contracting officer responsible for the procurement affected by a size determination. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] The Office of Hearings and Appeals does not issue advisory opinions. [67 FR 47249, July 18, 2002] (a) Appeals from size determinations and NAICS code designations must be commenced by filing and serving an appeal petition as follows: (1) If the appeal is from a size determination in a pending procurement or pending Government property sale, then the appeal petition must be filed and served within 15 days after appellant receives the size determination; (2) If the appeal is from a size determination other than one in a pending procurement or pending Government property sale, then the appeal petition must be filed and served within 30 days after appellant receives the size determination; (3) If the appeal is from a NAICS code designation, then the appeal petition must be filed and served within 10 days after the issuance of the initial solicitation. If the appeal relates to an amendment affecting the NAICS code, then the appeal petition must be filed and served within 10 days after the issuance of the amendment. (b) An untimely appeal will be dismissed. However, an appeal which is untimely under paragraph (a)(1) of this section, with respect to a pending procurement or sale, may, if timely under paragraph (a)(2) of this section, proceed with respect to future procurements or sales. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002] (a) Form. There is no required format for an appeal petition. However, it must include the following information: (1) The Area Office which issued the size determination, or the contracting office which designated the NAICS code; (2) The solicitation or contract number, and the name, address, and telephone number of the contracting officer; (3) A full and specific statement as to why the size determination or NAICS code designation is alleged to be in error, together with argument supporting such allegations; and (4) The name, address, telephone number, facsimile number, and signature of the appellant or its attorney. (b) Service of size determination appeals. The appellant must serve the appeal petition upon each of the following: (1) The SBA official who issued the size determination; (2) The contracting officer responsible for the procurement affected by a size determination; (3) The business concern whose size status is at issue; (4) All persons who filed protests; and (5) SBA's Office of Procurement Law. (c) Service of NAICS appeals. The appellant must serve the contracting officer who made the NAICS code designation and SBA's Office of General Counsel, Associate General Counsel for Procurement Law, 409 3rd Street, SW., Washington, DC 20416. (d) Certificate of service. The appellant must attach to the appeal petition a signed certificate of service meeting the requirements of §134.204(d). (e) Dismissal. An appeal petition which does not contain all of the information required in paragraph (a) of this section may be dismissed, with or without prejudice, by the Judge at his or her own initiative, or upon motion of a respondent. 61 FR 2683, Jan. 29, 1996, as amended at 65 FR 57542, Sept. 25, 2000; 67 FR 47250, July 18, 2002; 69 FR 29208, May 21, 2004] (a) Upon receipt of an appeal petition pertaining to a size determination, the Area Office which issued the size determination must immediately send to OHA the entire case file relating to that determination. (b) Upon receipt of an appeal petition pertaining to a NAICS code designation, or a size determination made in connection with a particular procurement, the procuring agency contracting officer must immediately send to OHA a paper copy of both the original solicitation relating to that procurement and all amendments. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002] The provisions of §134.204 apply to the service and filing of all pleadings and other submissions permitted under this subpart. (a) Evidence not previously presented to the Area Office which issued the size determination being appealed will not be considered by a Judge unless: (1) The Judge, on his or her own initiative, orders the submission of such evidence; or (2) A motion is filed and served establishing good cause for the submission of such evidence. The offered new evidence must be filed and served with the motion. (b) If the submission of evidence is ordered by a Judge, and the party in possession of that evidence does not submit it, the Judge may draw adverse inferences against that party. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002] (a) Who may respond. Any person served with an appeal petition, any intervenor, or any person with a general interest in an issue raised by the appeal may file and serve a response supporting or opposing the appeal. The response should present argument. (b) Time limits. The Judge will issue a Notice and Order informing the parties of the filing of the appeal petition, establishing the close of record as 15 days after service of the Notice and Order, and informing the parties that OHA must receive any responses to the appeal petition no later than the close of record. (c) Service. The respondent must serve its response upon the appellant and upon each of the persons identified in the certificate of service attached to the appeal petition pursuant to §134.305. (d) Reply to a response. No reply to a response will be permitted unless the Judge directs otherwise. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002] Discovery will not be permitted in appeals from size determinations or NAICS code designations. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002] Oral hearings will not be held in appeals from NAICS code designations, and will be held in appeals from size determinations only upon a finding by the Judge of extraordinary circumstances. If such an oral hearing is ordered, the proceeding shall be conducted in accordance with those rules of subpart B of this part as the Judge deems appropriate. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002] To the extent the rules in this subpart permit the submission of evidence, the provisions of §134.223 (a) and (b) apply. Except where inconsistent with this subpart C, the provisions of subpart B of this part apply to appeals from size determinations and NAICS code designations. [67 FR 47250, July 18, 2002] The standard of review is whether the size determination or NAICS code designation was based on clear error of fact or law. The appellant has the burden of proof, by a preponderance of the evidence, in both size and NAICS code appeals. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002; 69 FR 29209, May 21, 2004] Where relevant, the provisions of §134.225 (a), (b), and (c) apply. In an appeal under this subpart, the contents of the record also include the case file or solicitation submitted to OHA in accordance with §134.306. (a) Contents. Following closure of the record, the Judge will issue a decision containing findings of fact and conclusions of law, reasons for such findings and conclusions, and any relief ordered. The Judge will not decide substantive issues raised for the first time on appeal, or which have been abandoned or become moot. (b) Finality. The decision is the final decision of the SBA and becomes effective upon issuance. Where a size appeal is dismissed, the Area Office size determination remains in effect. (c) Service. OHA will serve a copy of all written decisions on: (1) Each party, or, if represented by counsel, on its counsel; and (2) SBA's General Counsel, or his or her designee, if SBA is not a party. (d) Reconsideration. The decision in a NAICS code appeal may not be reconsidered. [61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002; 69 FR 29209, May 21, 2004] Upon issuance of the decision, OHA will return the case file to the transmitting Area Office. The remainder of the record will be retained by OHA. [67 FR 47250, July 18, 2002] Source: 63 FR 35766, June 30, 1998, unless otherwise noted.
The rules of practice in this subpart D apply to all appeals to OHA from: (a) Denials of 8(a) BD program admission based solely on a negative finding(s) of social disadvantage, economic disadvantage, ownership or control pursuant to §124.206 of this title; (b) Early graduation pursuant to §§124.302 and 124.304; (c) Termination pursuant to §§124.303 and 124.304; (d) Denials of requests to issue a waiver pursuant to §124.515; and (e) Suspensions pursuant to §124.305(a). In addition to the requirements of §134.203, an appeal petition must state, with specific reference to the determination and the record supporting such determination, the reasons why the determination is alleged to be arbitrary, capricious or contrary to law. This section does not apply to suspension appeals. For suspensions, see §124.305 of this chapter. [63 FR 35766, June 30, 1998, as amended at 67 FR 47250, July 18, 2002] (a) Concurrent with its filing with OHA, a concern must also serve SBA's AA/8(a)BD and the appropriate Associate General Counsel in SBA's Office of General Counsel with a copy of the petition, including attachments. (1) For appeals relating to denials of program admission pursuant to §124.206 of this title, suspensions of program assistance pursuant to §124.305, or denials of requests for waivers pursuant to §124.515, a petitioner must serve the SBA's Associate General Counsel for Procurement Law. (2) For appeals relating to early graduation pursuant to §§124.302 and 124.304 or termination pursuant to §§124.303 and 124.304, a petitioner must serve the SBA's Associate General Counsel for Litigation. (b) Serve the AA/8(a)BD and the applicable Associate General Counsel at the Small Business Administration, 409 3rd Street, SW, Washington, DC 20416. [63 FR 35766, June 30, 1998, as amended at 65 FR 57542, Sept. 25, 2000; 67 FR 47250, July 18, 2002] Appeal proceedings brought under this subpart will be conducted by an Administrative Law Judge. (a) The Administrative Law Judge selected to preside over an appeal shall decline to accept jurisdiction over any matter if: (1) The appeal does not, on its face, allege facts that, if proven to be true, would warrant reversal or modification of the determination, including appeals of denials of 8(a) BD program admission based in whole or in part on grounds other than a negative finding of social disadvantage, economic disadvantage, ownership or control; (2) The appeal is untimely filed under §134.202 or is not otherwise filed in accordance with the requirements of this subpart or the requirements in subparts A and B of this part; or (3) The matter has been decided or is the subject of an adjudication before a court of competent jurisdiction over such matters. (b) Once the Administrative Law Judge accepts jurisdiction over an appeal, subsequent initiation of an adjudication of the matter by a court of competent jurisdiction will not preclude the Administrative Law Judge from rendering a final decision on the matter. (c) Jurisdiction of the Administrative Law Judge in a suspension case is limited to the issue of whether the protection of the Government's interest requires suspension pending resolution of the termination action, unless the Administrative Law Judge has consolidated the suspension appeal with the corresponding termination appeal. (a) Any proceeding conducted under §134.401(a) through (d) shall be decided solely on a review of the written administrative record, except as provided in §134.407 and in suspension appeals. For suspension appeals under §134.401(e), see §124.305(d) of this chapter. (b) Except in suspension appeals, the Administrative Law Judge's review is limited to determining whether the Agency's determination is arbitrary, capricious, or contrary to law. As long as the Agency's determination is reasonable, the Administrative Law Judge must uphold it on appeal. (c) The administrative record must contain all documents that are relevant to the determination on appeal before the Administrative Law Judge and upon which the SBA decision-maker, and those SBA officials that recommended either for or against the decision, relied. The administrative record, however, need not contain all documents pertaining to the petitioner. For example, the administrative record in a termination proceeding need not include the Participant's entire business plan file, documents pertaining to specific 8(a) contracts, or the firm's application for participation in the 8(a) BD program if they are unrelated to the termination action. The petitioner may object to the absence of a document, previously submitted to, or sent by, SBA, which the petitioner believes was erroneously omitted from the administrative record. In the absence of any objection by the petitioner or a finding by the Judge pursuant to paragraph (e) of this section that the record is insufficiently complete to decide whether the determination was arbitrary, capricious, or contrary to law, the administrative record submitted by SBA shall be deemed complete. (d) Where the Agency files its response to the appeal petition after the date specified in §134.206, the Administrative Law Judge may decline to consider the response and base his or her decision solely on a review of the administrative record. (e) The Administrative Law Judge may remand a case to the AA/8(a)BD (or, in the case of a denial of a request for waiver under §124.515 of this chapter, to the Administrator) for further consideration if he or she determines that, due to the absence in the written administrative record of the reasons upon which the determination was based, the administrative record is insufficiently complete to decide whether the determination is arbitrary, capricious, or contrary to law. In the event of such a remand, the Judge will not require the SBA to supplement the administrative record other than to supply the reason or reasons for the determination and any documents submitted to, or considered by, SBA in connection with any reconsideration permitted by regulation that occurs during the remand period. After such a remand, in the event the Judge finds that the reasons upon which the determination is based are absent from any supplemented record, the Judge will find the SBA determination to be arbitrary, capricious, or contrary to law. The Administrative Law Judge may also remand a case to the AA/8(a)BD (or, in the case of a denial of a request for waiver under §124.515 of this chapter, to the Administrator) for further consideration where it is clearly apparent from the record that SBA made an erroneous factual finding (e.g., SBA double counted an asset of an individual claiming disadvantaged status) or a mistake of law (e.g., SBA applied the wrong regulatory provision in evaluating the case). A remand under this section will be for a reasonable period. [63 FR 35766, June 30, 1998, as amended at 67 FR 47250, July 18, 2002] (a) Except in suspension appeals, the Administrative Law Judge may not admit evidence beyond the written administrative record nor permit any form of discovery unless he or she first determines that the petitioner, upon written submission, has made a substantial showing, based on credible evidence and not mere allegation, that the Agency determination in question may have resulted from bad faith or improper behavior. (1) Prior to any such determination, the Administrative Law Judge must permit SBA to respond in writing to any allegations of bad faith or improper behavior. (2) Upon a determination by the Administrative Law Judge that the petitioner has made such a substantial showing, the Administrative Law Judge may permit appropriate discovery, and accept relevant evidence beyond the written administrative record, which is specifically limited to the alleged bad faith or improper behavior. (b) A determination by the Administrative Law Judge that the required showing set forth in paragraph (a) of this section has been made does not shift the burden of proof, which continues to rest with the petitioner. [63 FR 35766, June 30, 1998, as amended at 67 FR 47251, July 18, 2002] (a) Generally. In any appeal under this subpart D, either party may move or cross-move for summary decision, as provided in §134.212. (b) Summary decision based on fewer than all grounds. If SBA has provided multiple grounds for the 8(a) determination being appealed, SBA may move for summary decision on one or more grounds. (1) Non-suspension cases. Except in suspension appeals, if the Judge finds that there is no genuine issue of material fact as to whether SBA acted arbitrarily, capriciously, or contrary to law as to any such ground or grounds, and that the SBA is entitled to a decision in its favor as a matter of law, the Judge will grant the motion for summary decision and dismiss the appeal. (2) Suspension cases. In suspension appeals, if the Judge finds that there is no genuine issue of material fact as to whether adequate evidence exists that protection of the Federal Government's interest requires suspension, as to any such ground or grounds for the proposed suspension, the SBA is entitled to a decision in its favor as a matter of law, and the Judge will grant the motion for summary decision and dismiss the appeal. [67 FR 47251, July 18, 2002] (a) A decision of the Administrative Law Judge under this subpart is the final agency decision, and is binding on the parties. (b) The Administrative Law Judge shall issue a decision, insofar as practicable, within 90 days after an appeal petition is filed. (c) The Administrative Law Judge may reconsider an appeal decision within 20 days of the decision if there is a clear showing of an error of fact or law material to the decision. [63 FR 35766, June 30, 1998. Redesignated and amended at 67 FR 47251, July 18, 2002] Source: 70 FR 8927, Feb. 24, 2005, unless otherwise noted.
(a) The rules of practice in this subpart E apply to all appeals to OHA from formal protest determinations made by the Associate Administrator for Government Contracting (AA/GC) in connection with a Service-Disabled Veteran-Owned Small Business Concern (SDVO SBC) protest relating to the status or ownership or control of the SDVO SBC, as set forth in §125.26 of this chapter. This includes appeals from determinations by the AA/GC that the protest was premature, untimely, nonspecific, or not based upon protestable allegations. (b) Except where inconsistent with this subpart, the provisions of Subpart A and B of this part apply to appeals listed in paragraph (a) of this section. (c) Appeals relating to formal size determinations and NAICS Code designations are governed by Subpart C of this part. Appeals from SDVO SBC protest determinations may be filed with OHA by the protested concern, the protester, or the contracting officer responsible for the procurement affected by the protest determination. Appeals from an SDVO SBC protest determination must be commenced by filing and serving an appeal petition within 10 business days after the appellant receives the SDVO SBC protest determination (see §134.204 for filing and service requirements). An untimely appeal will be dismissed. The filing of an SDVO SBC appeal with OHA stays the procurement. However, the contracting officer may award the contract after receipt of an appeal if the contracting officer determines in writing that an award must be made to protect the public interest. A timely filed appeal applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the appeal. (a) Format. There is no required format for an appeal petition. However, it must include the following information: (1) The solicitation or contract number, and the name, address, and telephone number of the contracting officer; (2) A statement that the petition is appealing an SDVO SBC protest determination issued by the AA/GC and the date the petitioner received the SDVO SBC protest determination; (3) A full and specific statement as to why the SDVO SBC protest determination is alleged to be based on a clear error of fact or law, together with an argument supporting such allegation; and (4) The name, address, telephone number, facsimile number, and signature of the appellant or its attorney. (b) Service of appeal. The appellant must serve the appeal petition upon each of the following: (1) The AA/GC at U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, facsimile (202) 205–6390; (2) The contracting officer responsible for the procurement affected by an SDVO SBC determination; (3) The protested concern (the business concern whose SDVO SBC status is at issue) or the protester; and (4) SBA's Office of General Counsel, Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, facsimile number (202) 205–6873. (c) Certificate of Service. The appellant must attach to the appeal petition a signed certificate of service meeting the requirements of §134.204(d). The provisions of §134.204 apply to the service and filing of all pleadings and other submissions permitted under this subpart unless otherwise indicated in this subpart. Upon receipt of an appeal petition, the AA/GC will send to OHA a copy of the protest file relating to that determination. The AA/GC will certify and authenticate that the protest file, to the best of his or her knowledge, is a true and correct copy of the protest file. The standard of review for an appeal of a SDVO SBC protest determination is whether the AA/GC's determination was based on clear error of fact or law. With respect to status determinations on whether the owner is a veteran, service-disabled veteran, or veteran with a permanent and severe disability, the Judge will not review the determinations made by the U.S. Department of Veteran's Affairs, U.S. Department of Defense, or such determinations identified by documents provided by the U.S. National Archives and Records Administration. (a) The Judge selected to preside over a protest appeal shall dismiss the appeal, if: (1) The appeal does not, on its face, allege facts that if proven to be true, warrant reversal or modification of the determination; (2) The appeal petition does not contain all of the information required in §134.505; (3) The appeal is untimely filed pursuant to §134.503 or is not otherwise filed in accordance with the requirements of this subpart or the requirements in Subparts A and B of this part; or (4) The matter has been decided or is the subject of an adjudication before a court of competent jurisdiction over such matters. (b) Once Appellant files an appeal, subsequent initiation of litigation of the matter in a court of competent jurisdiction will not preclude the Judge from rendering a final decision on the matter. Although not required, any person served with an appeal petition may file and serve a response supporting or opposing the appeal if he or she wishes to do so. If a person decides to file a response, the response must be filed within 7 business days after service of the appeal petition. The response should present argument. Discovery will not be permitted and oral hearings will not be held. The Judge may not admit evidence beyond the written protest file nor permit any form of discovery. All appeals under this subpart will be decided solely on a review of the evidence in the written protest file, arguments made in the appeal petition and response(s) filed thereto. The record will close when the time to file a response to an appeal petition expires pursuant to 13 CFR 134.510. The Judge shall issue a decision, insofar as practicable, within 15 business days after close of the record. If OHA does not issue its determination within the 15-day period, the contracting officer may award the contract, unless the contracting officer has agreed to wait for a final determination from the Judge. (a) A decision of the Judge under this subpart is the final agency decision and is binding on the parties. For the effects of the decision on the contract or procurement at issue, please see 13 CFR 125.28. (b) The Judge may reconsider an appeal decision within 20 calendar days after service of the written decision. Any party who has appeared in the proceeding, or SBA, may request reconsideration by filing with the Judge and serving a petition for reconsideration on all the parties to the appeal within 20 calendar days after service of the written decision. The request for reconsideration must clearly show an error of fact or law material to the decision. The Judge may also reconsider a decision on his or her own initiative. (c) The Judge may remand a proceeding to the AA/GC for a new SDVO SBC determination if the latter fails to address issues of decisional significance sufficiently, does not address all the relevant evidence, or does not identify specifically the evidence upon which it relied. Once remanded, OHA no longer has jurisdiction over the matter, unless a new appeal is filed as a result of the new SDVO SBC determination. Source: 61 FR 2683, Jan. 29, 1996, unless otherwise noted. Redesignated at 63 FR 35766, June 30, 1998, and 70 FR 8927, Feb. 24, 2005.
The Equal Access to Justice Act, 5 U.S.C. 504, establishes procedures by which prevailing parties in certain administrative proceedings may apply for reimbursement of fees and other expenses. Eligible parties may receive awards when they prevail over SBA, unless SBA's position in the proceeding was “substantially justified” or, as provided in §134.405(b), special circumstances make an award unjust. The rules of this subpart explain which OHA proceedings are covered, who may be eligible for an award of fees and expenses, and how to apply for such an award. You may apply for reimbursement under this subpart if you meet the eligibility requirements in §134.406 and you prevail over SBA in a final decision in: (a) The type of administrative proceeding which qualifies as an “adversary adjudication” under §134.403; or (b) An ancillary or subsidiary issue in that administrative proceeding that is sufficiently significant and discrete to merit treatment as a separate unit; or (c) A matter which the agency orders to be determined as an “adversary adjudication” under 5 U.S.C. 554. For purposes of this subpart, adversary adjudications are administrative proceedings before OHA which involve SBA as a party and which are required to be conducted by an Administrative Law Judge (“ALJ”). These adjudications (“administrative proceedings”) include those proceedings listed in §134.102 (a), (i), and (j)(1), but do not include other OHA proceedings such as those listed in §134.102(k). In order for an administrative proceeding to qualify, SBA must have been represented by counsel or by another representative who enters an appearance and participates in the proceeding. You may seek reimbursement for certain reasonable fees and expenses incurred in prosecuting or defending a claim in an administrative proceeding. (a) If you are a prevailing eligible party, you may receive an award for reasonable fees and expenses unless the position of the agency in the proceeding is found by the ALJ to be “substantially justified”, or special circumstances exist which make an award unjust. The “position of the agency” includes not only the position taken by SBA in the administrative proceeding, but also the position which it took in the action which led to the administrative proceeding. No presumption arises that SBA's position was not substantially justified simply because it did not prevail in a proceeding. However, upon your assertion that the position of SBA was not substantially justified, SBA will be required to establish that its position was reasonable in fact and law. (b) The ALJ may reduce or deny an award for reimbursement if you have unreasonably protracted the administrative proceeding or if other special circumstances would make the award unjust. (c) Awards for fees and expenses incurred before the date on which an administrative proceeding was initiated are allowable only if you can demonstrate that they were reasonably incurred in preparation for the proceeding. (a) You are eligible for possible reimbursement if: (1) You are an individual, owner of an unincorporated business, partnership, corporation, association, organization, or unit of local government; and (2) You are a party, as defined in 5 U.S.C. 551(3); and (3) You are the prevailing party; and (4) You meet certain net worth and employee eligibility requirements set forth in §134.407. (b) You are not eligible for possible reimbursement if you participated in the administrative proceeding only on behalf of persons or entities that are ineligible. Follow this chart to determine your eligibility. You should calculate your net worth and the number of your employees as of the date the administrative proceeding was initiated. (a) Your net worth must include the value of any assets disposed of for the purpose of meeting an eligibility standard, and must exclude any obligation incurred for that purpose. Transfers of assets, or obligations incurred, for less than reasonably equivalent value will be presumed to have been made for the purpose of meeting an eligibility standard. (b) If you are an owner of an unincorporated business, or a partnership, corporation, association, organization, or unit of local government, your net worth must include the net worth of all of your affiliates. “Affiliates” are: (1) Corporations or other business entities which directly or indirectly own or control a majority of the voting shares or other ownership interests in the applicant concern; and (2) Corporations or other business entities in which the applicant concern directly or indirectly owns or controls a majority of the voting shares or other ownership interests. (c) Your employees include all those persons regularly working for you at the time the administrative proceeding was initiated, whether or not they were at work on that date. Part-time employees must be included on a proportional basis. You must include the employees of all your affiliates in your total number of employees. A fee is a charge to you for the professional services of attorneys, agents, or expert witnesses rendered in connection with your case. An expense is the cost to you of any study, analysis, engineering report, test, project, or similar matter prepared in connection with your case. (a) Awards will be calculated on the basis of fees and expenses actually incurred. If services were provided by one or more of your employees, or were made available to you free, you may not seek an award for those services. If services were provided at a reduced rate, fees and expenses will be calculated at that reduced rate. (b) In determining the reasonableness of the fees for attorneys, agents or expert witnesses, the ALJ will consider at least the following: (1) That provider's customary fee for like services; (2) The prevailing rate for similar services in the community in which that provider ordinarily performs services; (3) The time actually spent in representing you; and (4) The time reasonably spent in light of the difficulty and complexity of the issues. (c) An award for the fees of an attorney or agent may not exceed $75 per hour, and an award for the fees of an expert witness may not exceed $25 per hour, regardless of the rate charged. (d) An award for the reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on your behalf may not exceed the prevailing rate payable for similar services, and you may be reimbursed only if the study or other matter was necessary to the preparation of your case. (a) Your application must be in the form of a written petition which is served and filed in accordance with §134.204. It must contain the following information: (1) A statement that OHA has jurisdiction over the case pursuant to §134.102(g); (2) Identification of the administrative proceeding for which you are seeking an award; (3) A statement that you have prevailed, and a list of each issue in which you claim the position of SBA was not substantially justified; (4) Your status as an individual, owner of an unincorporated business, partnership, corporation, association, organization, or unit of local government; (5) Your net worth and number of employees as of the date the administrative proceeding was initiated, or a statement that one or both of these eligibility requirements do not apply to you; (6) The amount of fees and expenses you are seeking, along with the invoice or billing statement from each service provider; (7) A description of any affiliates (as that term is defined in §134.408), or a statement that no affiliates exist; (8) A statement that the application and any attached statements and exhibits are true and complete to the best of your knowledge and that you understand a false statement on these documents is a felony punishable by fine and imprisonment under 18 U.S.C. 1001; and (9)(i) Your name and address; (ii) Your signature, or the signature of either a responsible official or your attorney; and (iii) The address and telephone number of the person who signs the application. (b) You should follow this chart to determine which further documents must be included with your application: (a) A net worth exhibit may be in any format, but it must contain: (1) List of all assets and liabilities for you and each affiliate in detail sufficient to show your eligibility; (2) Aggregate net worth for you and all affiliates; and (3) Description of any transfers of assets from, or obligations incurred by, you or your affiliates within one year prior to the initiation of the administrative proceeding which reduced your net worth below the eligibility ceiling, or a statement that no such transfers occurred. (b) The net worth exhibit must be filed with your application, but will not be part of the public record of the proceeding. Further, in accordance with the provisions of §134.204(g), you need not serve your net worth exhibit on other parties. You must submit a separate itemized statement or invoice for the services of each provider for which you seek reimbursement. Each separate statement or invoice must contain: (a) The hours worked in connection with the proceeding by each provider supplying a billable service; (b) A description of the specific services performed by each provider; (c) The rate at which fees were computed for each provider; (d) The total charged by the provider on that statement or invoice; and (e) The provider's verification that the statement or invoice is true to the best of his or her knowledge and that he or she understands that a false statement is punishable by fine and imprisonment under 18 U.S.C. 1001. After you have prevailed in an administrative proceeding or in a discrete issue therein, you must serve, and file with OHA, your written application for an award, and its attachments, no later than 30 days after the decision in the administrative proceeding becomes final under §134.227. The deadline for filing an application for an award may not be extended. If SBA or another party requests review of the decision in the underlying administrative proceeding, your request for an award for fees and expenses may still be filed, but it will not be considered by the ALJ until a final decision is rendered. Proceedings will be conducted in accordance with the provisions in subpart B of this part. The ALJ will issue an initial decision on the merits of your request for an award which will become final in 30 days unless a request for review is filed under §134.228. The decision will include findings on your eligibility, on whether SBA's position was substantially justified, and on the reasonableness of the amount you requested. Where applicable, there will also be findings on whether you have unduly protracted the proceedings or whether other circumstances make an award unjust, and an explanation of the reason for the difference, if any, between the amount requested and the amount awarded. If you have sought an award against more than one federal agency, the decision will allocate responsibility for payment among the agencies with appropriate explanation. You may request review of the ALJ's decision on your award by filing a request for review in accordance with §134.228. You may seek judicial review of a final decision as provided in 5 U.S.C. 504(c)(2). If you are seeking payment of an award, you must submit a copy of the final decision, along with your certification that you are not seeking judicial review of either the decision in the adversary adjudication, or of the award, to the following address: Chief Financial Officer, Office of Financial Operations, SBA, P.O. Box 205, Denver, CO 80201–0205. SBA will pay you the amount awarded within 60 days of receipt of your request unless it is notified that you or another party has sought judicial review of the underlying decision or the award.
Title 13: Business Credit and Assistance
PART 134—RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF HEARINGS AND APPEALS
Section Contents
§ 134.101 Definitions.
§ 134.102 Jurisdiction of OHA.
§ 134.103 Rules applicable to time periods provided in this part.
§ 134.201 Scope of the rules in this subpart B.
§ 134.202 Commencement of cases.
§ 134.203 The petition.
§ 134.204 Filing and service requirements.
§ 134.205 Motion for a more definite statement.
§ 134.206 The answer or response.
§ 134.207 Amendments and supplemental pleadings.
§ 134.208 Representation in cases before OHA.
§ 134.209 Requirement of signature.
§ 134.210 Intervention.
§ 134.211 Motions.
§ 134.212 Summary decision.
§ 134.213 Discovery.
§ 134.214 Subpoenas.
§ 134.215 Interlocutory appeals.
§ 134.216 Alternative dispute resolution procedures.
§ 134.217 Settlement.
§ 134.218 Judges.
§ 134.219 Sanctions.
§ 134.220 Prohibition against
§ 134.221 Prehearing conferences.
§ 134.222 Oral hearing.
§ 134.223 Evidence.
§ 134.224 Standards for decision.
§ 134.225 The record.
§ 134.226 The decision.
§ 134.227 Finality of decisions.
§ 134.228 Review of initial decisions.
§ 134.229 Termination of jurisdiction.
§ 134.301 Scope of the rules in this subpart C.
§ 134.302 Who may appeal.
§ 134.303 Advisory opinions.
§ 134.304 Commencement of appeals from size determinations and NAICS code designations.
§ 134.305 The appeal petition.
§ 134.306 Transmission of the case file and solicitation.
§ 134.307 Service and filing requirements.
§ 134.308 Limitation on new evidence and adverse inference from non-submission in appeals from size determinations.
§ 134.309 Response to an appeal petition.
§ 134.310 Discovery.
§ 134.311 Oral hearings.
§ 134.312 Evidence.
§ 134.313 Applicability of subpart B provisions.
§ 134.314 Standard of review and burden of proof.
§ 134.315 The record.
§ 134.316 The decision.
§ 134.317 Return of the case file.
§ 134.401 Scope of the rules in this subpart D.
§ 134.402 Appeal petition.
§ 134.403 Service of appeal petition.
§ 134.404 Decision by Administrative Law Judge.
§ 134.405 Jurisdiction.
§ 134.406 Review of the administrative record.
§ 134.407 Evidence beyond the record and discovery.
§ 134.408 Summary decision.
§ 134.409 Decision on appeal.
§ 134.501 What is the scope of the rules in this subpart E?
§ 134.502 Who may appeal?
§ 134.503 When must a person file an appeal from an SDVO SBC protest determination?
§ 134.504 What are the effects of the appeal on the procurement at issue?
§ 134.505 What are the requirements for an appeal petition?
§ 134.506 What are the service and filing requirements?
§ 134.507 When does the AA/GC transmit the protest file and to whom?
§ 134.508 What is the standard of review?
§ 134.509 When will a Judge dismiss an appeal?
§ 134.510 Who can file a response to an appeal petition and when must such a response be filed?
§ 134.511 Will the Judge permit discovery and oral hearings?
§ 134.512 What are the limitations on new evidence?
§ 134.513 When is the record closed?
§ 134.514 When must the Judge issue his or her decision?
§ 134.515 What are the effects of the Judge's decision?
§ 134.601 What is the purpose of this subpart?
§ 134.602 Under what circumstances may I apply for reimbursement?
§ 134.603 What is an adversary adjudication?
§ 134.604 What benefits may I claim?
§ 134.605 Under what circumstances are fees and expenses reimbursable?
§ 134.606 Who is eligible for possible reimbursement?
§ 134.607 How do I know which eligibility requirement applies to me?
§ 134.608 What are the special rules for calculating net worth and number of employees?
§ 134.609 What is the difference between a fee and an expense?
§ 134.610 Are there limitations on reimbursement for fees and expenses?
§ 134.611 What should I include in my application for an award?
§ 134.612 What must a net worth exhibit contain?
§ 134.613 What documentation do I need for fees and expenses?
§ 134.614 What deadlines apply to my application for an award and where do I send it?
§ 134.615 How will proceedings relating to my application for fees and expenses be conducted?
§ 134.616 How will I know if I receive an award?
§ 134.617 May I seek review of the ALJ's decision on my award?
§ 134.618 How are awards paid?
Subpart A—General Rules
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§ 134.101 Definitions.
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§ 134.102 Jurisdiction of OHA.
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§ 134.103 Rules applicable to time periods provided in this part.
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Subpart B—Rules of Practice for Most Cases
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§ 134.201 Scope of the rules in this subpart B.
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§ 134.202 Commencement of cases.
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§ 134.203 The petition.
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§ 134.204 Filing and service requirements.
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§ 134.205 Motion for a more definite statement.
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§ 134.206 The answer or response.
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§ 134.207 Amendments and supplemental pleadings.
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§ 134.208 Representation in cases before OHA.
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§ 134.209 Requirement of signature.
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§ 134.210 Intervention.
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§ 134.211 Motions.
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§ 134.212 Summary decision.
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§ 134.213 Discovery.
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§ 134.214 Subpoenas.
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§ 134.215 Interlocutory appeals.
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§ 134.216 Alternative dispute resolution procedures.
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§ 134.217 Settlement.
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§ 134.218 Judges.
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§ 134.219 Sanctions.
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§ 134.220 Prohibition against
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§ 134.221 Prehearing conferences.
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§ 134.222 Oral hearing.
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§ 134.223 Evidence.
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§ 134.224 Standards for decision.
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§ 134.225 The record.
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§ 134.226 The decision.
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§ 134.227 Finality of decisions.
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§ 134.228 Review of initial decisions.
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§ 134.229 Termination of jurisdiction.
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Subpart C—Rules of Practice for Appeals From Size Determinations and NAICS Code Designations
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§ 134.301 Scope of the rules in this subpart C.
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§ 134.302 Who may appeal.
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§ 134.303 Advisory opinions.
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§ 134.304 Commencement of appeals from size determinations and NAICS code designations.
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§ 134.305 The appeal petition.
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§ 134.306 Transmission of the case file and solicitation.
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§ 134.307 Service and filing requirements.
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§ 134.308 Limitation on new evidence and adverse inference from non-submission in appeals from size determinations.
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§ 134.309 Response to an appeal petition.
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§ 134.310 Discovery.
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§ 134.311 Oral hearings.
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§ 134.312 Evidence.
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§ 134.313 Applicability of subpart B provisions.
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§ 134.314 Standard of review and burden of proof.
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§ 134.315 The record.
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§ 134.316 The decision.
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§ 134.317 Return of the case file.
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Subpart D—Rules of Practice for Appeals Under the 8(a) Program
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§ 134.401 Scope of the rules in this subpart D.
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§ 134.402 Appeal petition.
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§ 134.403 Service of appeal petition.
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§ 134.404 Decision by Administrative Law Judge.
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§ 134.405 Jurisdiction.
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§ 134.406 Review of the administrative record.
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§ 134.407 Evidence beyond the record and discovery.
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§ 134.408 Summary decision.
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§ 134.409 Decision on appeal.
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Subpart E—Rules of Practice for Appeals From Service-Disabled Veteran Owned Small Business Concern Protests
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§ 134.501 What is the scope of the rules in this subpart E?
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§ 134.502 Who may appeal?
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§ 134.503 When must a person file an appeal from an SDVO SBC protest determination?
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§ 134.504 What are the effects of the appeal on the procurement at issue?
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§ 134.505 What are the requirements for an appeal petition?
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§ 134.506 What are the service and filing requirements?
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§ 134.507 When does the AA/GC transmit the protest file and to whom?
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§ 134.508 What is the standard of review?
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§ 134.509 When will a Judge dismiss an appeal?
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§ 134.510 Who can file a response to an appeal petition and when must such a response be filed?
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§ 134.511 Will the Judge permit discovery and oral hearings?
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§ 134.512 What are the limitations on new evidence?
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§ 134.513 When is the record closed?
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§ 134.514 When must the Judge issue his or her decision?
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§ 134.515 What are the effects of the Judge's decision?
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Subpart F—Implementation of the Equal Access to Justice Act
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§ 134.601 What is the purpose of this subpart?
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§ 134.602 Under what circumstances may I apply for reimbursement?
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§ 134.603 What is an adversary adjudication?
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§ 134.604 What benefits may I claim?
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§ 134.605 Under what circumstances are fees and expenses reimbursable?
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§ 134.606 Who is eligible for possible reimbursement?
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§ 134.607 How do I know which eligibility requirement applies to me?
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------------------------------------------------------------------------If your participation in the proceeding was: Eligibility requirements:------------------------------------------------------------------------(1) As an individual rather than a (1) Personal net worth may not business owner. exceed 2 million dollars.(2) As owner of an unincorporated (2) Personal net worth may not business. exceed 7 million dollars, and No more than 500 employees.(3) As a partnership, corporation, (3) Business net worth may not association, organization, or unit of exceed 7 million dollars, and local government. No more than 500 employees.(4) As a charitable or other tax-exempt (4) No net worth limitations, organization described in 26 U.S.C. and 501(c)(3) or a cooperative association No more than 500 employees. as defined in 12 U.S.C. 1141j(a).------------------------------------------------------------------------
§ 134.608 What are the special rules for calculating net worth and number of employees?
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§ 134.609 What is the difference between a fee and an expense?
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§ 134.610 Are there limitations on reimbursement for fees and expenses?
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§ 134.611 What should I include in my application for an award?
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------------------------------------------------------------------------ Party Required documents------------------------------------------------------------------------(1) Individual, owner of unincorporated (1) Net worth exhibit. business, partnership, corporation, association, organization, or unit of local government.(2) Organization qualified as tax- (2) Copy of a ruling by the exempt under 26 U.S.C. 501(c)(3). Internal Revenue Service that you qualify as a 501(c)(3) organization or Statement that you were listed in the current edition of IRS Bulletin 78 as of the date the administrative proceeding was initiated.(3) Tax-exempt religious organization (3) Description of your not required to obtain a ruling from organization and the basis for the Internal Revenue Service on its your belief you are exempt. exempt status.(4) Cooperative association as defined (4) Copy of your charter or in 12 U.S.C. 1141j(a). articles of incorporation, and Copy of your bylaws.------------------------------------------------------------------------
§ 134.612 What must a net worth exhibit contain?
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§ 134.613 What documentation do I need for fees and expenses?
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§ 134.614 What deadlines apply to my application for an award and where do I send it?
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§ 134.615 How will proceedings relating to my application for fees and expenses be conducted?
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§ 134.616 How will I know if I receive an award?
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§ 134.617 May I seek review of the ALJ's decision on my award?
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§ 134.618 How are awards paid?
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