Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, 8923-8928 [05-3445]

Agencies

• SMALL BUSINESS ADMINISTRATION

[Federal Register Volume 70, Number 36 (Thursday, February 24, 2005)]
[Rules and Regulations]
[Pages 8923-8928]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-3445]


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SMALL BUSINESS ADMINISTRATION

13 CFR Part 134

RIN 3245-AF25


Rules of Procedure Governing Cases Before the Office of Hearings 
and Appeals

AGENCY: Small Business Administration.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule amends the interim final regulations 
governing the Service-Disabled Veteran Owned Small Business Concern 
(SDVO SBC) Program. In particular, this rule clarifies the appeal 
procedures to the Office of Hearings and Appeals (OHA).

DATES: This rule is effective February 24, 2005. Comments must be 
received on or before March 28, 2005.

ADDRESSES: You may submit comments, identified by the RIN number, by 
any of the following methods: through the Federal rulemaking portal at 
https://www.regulations.gov (follow the instructions for submitting 
comments); through e-mail at SDVOSBCProgram@sba.gov (include RIN number 
in the subject line of the message); or by mail to Dean Koppel, 
Assistant Administrator, Office of Policy and Research, 409 3rd Street, 
SW., Washington, DC 20416.

FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Administrator, 
Office of Policy and Research, (202)

[[Page 8924]]

205-7322 or at SDVOSBCProgram@sba.gov.

SUPPLEMENTARY INFORMATION: On May 5, 2004, the U.S. Small Business 
Administration (SBA or Agency) published in the Federal Register, 69 FR 
25261, an interim final rule to implement that section of the Veterans 
Benefits Act of 2003 (VBA), which addressed procurement programs for 
small business concerns (SBCs) owned and controlled by service-disabled 
veterans. Specifically, the interim final rule defined the term 
service-disabled veterans, explained when competition may be restricted 
to SDVO SBCs, and established procedures for protesting and appealing 
the status of an SDVO SBC. SBA received 45 comments on the interim 
final rule. The majority of the commenters fully supported the 
regulatory amendments. SBA explained these comments in a final rule 
concerning the SDVO SBC regulations that is being issued simultaneously 
with this interim rule.
    SBA received one comment asking for a clarification of the appeal 
procedures discussed in part 134. SBA has reviewed the OHA appeal 
procedures set forth in the interim final rule and agrees that further 
clarification is necessary. Consequently, SBA has amended the rule to 
include a separate subpart in 13 CFR part 134 to specifically address 
appeals of SDVO SBC protest determinations. SBA believes the procedures 
set forth in this subpart will be easier to follow and provide the 
necessary due process to protested SDVO SBCs and protesters.
    As a result of this amendment to part 134, however, SBA has decided 
to issue the rule with respect to the OHA appeal procedures as an 
interim final rule with a request for comments. Thus, interested 
parties can comment on these new changes to the appeal procedures.

I. Justification for Publication as Interim Final Status Rule

    In general, SBA publishes a rule for public comment before issuing 
a final rule, in accordance with the Administrative Procedure Act and 
SBA regulations, 5 U.S.C. 553 and 13 CFR 101.108. The Administrative 
Procedure Act provides an exception to this standard rulemaking 
process, however, where an agency finds good cause to adopt a rule 
without prior public participation. 5 U.S.C. 553(b)(3)(B). The good 
cause requirement is satisfied when prior public participation is 
impracticable, unnecessary, or contrary to the public interest. Under 
such circumstances, an agency may publish an interim final rule without 
soliciting public comment.
    In enacting the good cause exception to standard rulemaking 
procedures, Congress recognized that emergency situations arise where 
an agency must issue a rule without prior public participation. In this 
present case, the Agency notes that this procurement program for 
service-disabled veterans became effective upon enactment of the VBA. 
The purpose of this procurement program is to assist agencies in 
achieving the statutorily mandated 3% government-wide goal for 
procurement from service-disabled veteran-owned SBCs. When drafting the 
VBA, Congress found that agencies were falling far short of reaching 
this goal. Consequently, in the legislative history for that Act, 
Congress specifically urges SBA and the Office of Federal Procurement 
Policy to expeditiously and transparently implement this procurement 
program.
    Thus, SBA and the Federal Acquisition Regulations (FAR) Council 
have issued final rules governing the SDVO SBC Program. These final 
rules address SDVO SBC protest procedures. Because there are now 
protest procedures in place with respect to SDVO SBCs, it is necessary 
for SBA to have appeal procedures established as well.
    Accordingly, SBA finds that good cause exists to publish this rule 
as an interim final rule in light of the urgent need to provide a 
mechanism to appeal the status of a SDVO SBC. Advance solicitation of 
comments for this rulemaking would be impracticable and contrary to the 
public interest, as it would delay the delivery of critical assistance 
to the Federal procurement community by a minimum of three to six 
months and would require SDVO SBCs to go to another tribunal (e.g., 
district court) for an SDVO SBC appeal. This could be a financial 
burden for SDVO SBCs. Although this rule is being published as an 
interim final rule, comments are hereby solicited from interested 
members of the public. SBA will then consider these comments in making 
any necessary revisions to these regulations.

II. Justification for Immediate Effective Date of Interim Final Rule

    The APA requires that ``publication or service of a substantive 
rule shall be made not less than 30 days before its effective date, 
except * * * as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d)(3). SBA finds that good 
cause exists to make this final rule effective the same day it is 
published in the Federal Register.
    The purpose of the APA provision is to provide interested and 
affected members of the public sufficient time to adjust their behavior 
before the rule takes effect. For the reasons set forth above in 
Paragraph I, Justification of Publication of Interim Final Status Rule, 
SBA finds that good cause exists for making this interim final rule 
effective immediately, instead of observing the 30-day period between 
publication and effective date.
    SBA also believes, based on its contacts with interested members of 
the public, that there is strong interest in immediate implementation 
of this rule. SBA is aware of many procuring activities and business 
concerns that will be assisted by the immediate adoption of this rule.

Section-by-Section Analysis

    SBA has amended part 134 to add a new subpart E, which will 
specifically address SDVO SBC appeals from protest determinations 
issued by the Associate Administrator for Government Contracting (AA/
GC). According to Sec.  134.501, this will include appeals from 
determinations by the AA/GC that the protest was premature, untimely, 
nonspecific, or not based upon protestable allegations.
    Section 134.501 also explains that except where inconsistent, the 
provisions in subparts A and B apply to SDVO SBC appeals. This means, 
for example, that the provisions relating to a requirement for a 
signature on all submissions and representations in cases before OHA 
that apply to other types of appeals will also apply to SDVO SBC 
appeals.
    In Sec.  134.502, SBA explains that the protested concern, the 
protester or the contracting officer (CO) may appeal a protest 
determination to OHA. SBA has limited the appeal process to those 
parties that were involved in the protest.
    Section 134.503 states that such appeals must be filed within 10 
business days after the appellant receives the SDVO SBC protest 
determination. As explained in Sec.  134.204(b), filing is the receipt 
of pleadings and other submissions at OHA. SBA believes that 10 
business days is ample time for an appeal to be filed, yet still allows 
for an expeditious appeal process.
    In Sec.  134.504, the regulation explains the effects of the appeal 
on the procurement at issue. For example, the filing of an appeal stays 
the procurement; however, the CO may award the contract after receipt 
of the appeal if the CO determines in writing

[[Page 8925]]

that an award must be made to protect the public interest. SBA believes 
that this provision is necessary. If COs did not stay the procurement 
pending the outcome of the appeal, the appeal process could lose its 
force and effect.
    Section 134.505 sets forth the requirements for an appeal petition 
as well as who must be served the appeal petition. For example, the 
petition must state the basis of the appeal as well as other 
information relating to the procurement. This information is necessary 
so that the OHA Judge can decide whether the appeal is nonspecific or 
untimely.
    Section 134.506 explains that the service and filing of all 
pleadings and submissions must meet the requirements of Sec.  134.204, 
unless otherwise indicated. This keeps the filing and service 
requirements for OHA proceedings consistent with other appeals, such as 
size and NAICS appeals.
    According to Sec.  134.507, upon receipt of the appeal petition, 
the AA/GC will transmit the entire protest file to OHA. The protest 
file will generally contain the CO's referral letter, the protest, 
SBA's request to the protested concern for a response to the protest, 
the protested concern's response, and the final determination. The AA/
GC will certify and authenticate the protest file. SBA believes that 
this is the information necessary for the OHA Judge to determine 
whether the AA/GC's decision was erroneous. SBA notes that the protest 
file will not be sent to the parties to the appeal because it typically 
contains confidential information that cannot be disclosed to other 
parties.
    According to Sec.  134.508, the standard of review is whether the 
AA/GC's protest determination was based on clear error of law or fact. 
SBA has decided to utilize this standard of review because it is the 
same standard used for size and North American Industry Classification 
System (NAICS) appeals and SBA believes that such appeals are similar 
to SDVO SBC appeals. For example, with respect to status 
determinations, the AA/GC will review documents from the U.S. 
Department of Veterans Affairs (VA), U.S. Department of Defense (DoD) 
and the U.S. National Archives and Records Administration (NARA) to 
determine whether the SBC owner meets the definition of service-
disabled veteran set forth in 13 CFR 125.8. The AA/GC does not question 
the determination made by either the VA or DoD concerning an 
individual's status as a service-disabled veteran; rather, the AA/GC 
will ensure the owner has the appropriate documents from those 
agencies. The protest file will contain any such documentation provided 
by the protested concern. Upon review, the OHA Judge will also look to 
see if the AA/GC reviewed the appropriate documents, and will not 
question the determinations made by the VA or DoD. Consequently, the 
clear error standard is more appropriate for this type of appeal.
    Section 134.509 sets forth those instances when a dismissal of an 
appeal is warranted. That section provides that the OHA Judge will 
dismiss an appeal when it fails to allege facts that if proven to be 
true would warrant reversal of the protest determination; when the 
appeal petition does not contain all of the information required by 
Sec.  134.505; the appeal has not been filed on time; or the matter has 
been decided or is the subject of adjudication before a court of 
competent jurisdiction.
    Section 134.510 explains who may file a response to the appeal 
petition. The regulation provides that any person served with an appeal 
petition may file a response. This regulation does not require such 
parties to file a response; rather, it gives them the discretion to do 
so. However, if a party does decide to file a response, it must be 
filed within 7 business days after the service of the appeal petition. 
This 7-day deadline is necessary to expedite the appeal process. In 
addition, SBA believes that further time for the filing of a response 
is unnecessary because most of the issues will have already been 
addressed at the protest level.
    Section 134.511 provides that an OHA Judge will not permit 
discovery and no oral hearings will be held. In a similar vein, Sec.  
134.512 provides that the Judge may not admit evidence beyond the 
written protest file. SBA believes that the appeal procedures should be 
quick, since the protest and appeal trigger a stay of the procurement. 
If discovery and further evidence were permitted, this would lengthen 
the appeal process. In addition, because the standard of review is 
clear error of fact or law, the OHA Judge only needs to review only the 
written protest file to make his or her determination on appeal.
    Section 134.513 explains that the record will close when all 
pleadings have been submitted. This means the record closes when all 
responses to the appeal have been filed in accordance with Sec.  
134.510. This is important because according to Sec.  134.514, the 
Judge will issue a decision within 15 business days after the close of 
the record.
    Section 134.515 explains the effects of the Judge's decision. All 
decisions by the OHA Judge are final and binding on the parties. In 
addition, in accordance with Sec.  125.28, if the contract has already 
been awarded and on appeal the OHA Judge affirms that the SDVO SBC does 
not meet a status or ownership and control requirement set forth in 
these regulations, then the procuring agency cannot count the award as 
an award to an SDVO SBC and therefore must revise the contract award 
data to reflect the appropriate status of the awardee. Further, the 
protested concern cannot self-represent its status as an SDVO SBC for 
another procurement until it has cured the eligibility issue. If a 
contract has not yet been awarded and on appeal the OHA Judge affirms 
that the protested concern does not meet the status or ownership and 
control requirement set forth in these regulations, then the protested 
concern is ineligible for that specific SDVO SBC contract award.
    Section 134.515 also provides that the Judge may reconsider his or 
her decision and any party who has appeared in the proceeding (e.g., 
submitted a protest or other pleading to OHA) or SBA (even if SBA has 
not appeared in the proceeding) may request a reconsideration. The 
request for reconsideration must show an error of fact or law material 
to the decision. SBA has allowed for a reconsideration process because 
one exists for other types of appeals and SBA believes that it provides 
SBCs another opportunity for administrative recourse.
    In addition, Sec.  134.515 explains that the Judge may remand a 
proceeding to the AA/GC for a new SDVO SBC status protest determination 
if the latter fails to address issues of decisional significance 
sufficiently, does not address all the relevant evidence provided 
during the protest procedures 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.

Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork 
Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 
U.S.C. 601-612)

    SBA has determined that this final rule does not impose additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act, 44 U.S.C., chapter 35.
    This action meets applicable standards set forth in Sec. Sec.  3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.
    This regulation will not have substantial direct effects on the 
States,

[[Page 8926]]

on the relationship between the Federal government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, for the purposes of Executive Order 
13132, SBA determines that this final rule has no federalism 
implications warranting preparation of a federalism assessment.
    Because the rule is an interim final rule, there is no requirement 
for SBA to prepare an Initial Regulatory Flexibility Act analysis.
    OMB has determined that this rule constitutes a ``significant 
regulatory action'' under Executive Order 12866. The regulatory impact 
analysis is set forth below.

Regulatory Impact Analysis

A. General Considerations

1. Is There a Need for the Regulatory Actions?
    Yes. SBA is statutorily authorized to administer the Service-
Disabled Veteran-Owned Small Business Concern (SDVO SBC) Program. The 
SDVO SBC Program is established pursuant to Public Law 108-183, the 
Veterans Benefits Act of 2003. Section 308 of that law amended the 
Small Business Act to establish a procurement program for SBCs owned 
and controlled by service-disabled veterans. This procurement program 
provides that contracting officers may award a sole source or set-aside 
contract to SDVO SBCs if certain conditions are met. The VBA also 
provides that SBA may verify the eligibility of any SDVO SBC.
    SBA has issued regulations implementing this procurement program 
for service-disabled veterans. Those regulations address protest 
procedures, which is how SBA has decided to verify eligibility for SDVO 
SBCs. The regulations issued today will implement the appeal procedures 
to provide protesters and protested concerns an administrative avenue 
in which to appeal a protest determination. Consequently, SBA believes 
that this regulation is necessary and that it must be implemented as 
quickly as possible.
2. Alternatives
    SBA must implement this appeal procedures program through 
regulations. There are no practical alternatives to the implementation 
of this rule. Issuance of policy directives, for example, which are not 
generally published material like regulations, would hinder a SBC's 
access to this needed information. In addition, all of SBA's appeal 
procedures are set forth by regulation in part 134 and there is no 
reason why appeals for SDVO SBCs should be located in any other place.
    One alternative SBA did consider for SDVO SBCs was proposing a 
certification program, similar to its 8(a) Business Development and 
HUBZone Programs. The statute implementing those programs discusses 
certain certification and program procedures. SBA did not believe such 
a certification program was necessary to implement the VBA or was 
required by the VBA. Rather, the SDVO SBC will be able to self-
represent its status to the contracting activity as part of its offer. 
The contracting officer, SBA, or other SDVO SBCs may protest this 
representation. If the protest is specific, SBA will review the 
protested firm to determine whether it meets the program's 
requirements. SBA uses a similar protest procedure for small business 
set-asides. SBA believes that it is necessary to provide the parties 
with the appeal process set forth in this rule. This appeal process 
will allow for an administrative means to appeal the protest decision. 
The alternative to not having an administrative appeal process is to 
have the parties appeal the decision to a court of competent 
jurisdiction. However, because it is typically less costly to use the 
administrative appeal process rather than going to court, SBA has 
issued regulations on an appeal process for SDVO SBCs.

B. Potential Benefits and Costs of This Regulation

    SBA does not have sufficient data to establish a baseline to 
measure the costs and benefits of their rule. SDVO SBCs will be the 
primary beneficiaries of this rule. Specifically, 15 U.S.C. 664(g), 
(502(b), Pub. L. 106-50, August 17, 1999), established a 3 percent 
prime contracting and subcontracting goal for SDVO SBCs for Federal 
contracting. This statutory provision did not, however, establish a 
procurement mechanism to encourage contracting activities to award 
contracts to SDVO SBCs. On December 16, 2003, Pub. L. 108-183, the VBA, 
was signed into law by the President. Section 308 of the VBA revised 
the Small Business Act to add new section 36 (15 U.S.C. 657f), a 
procurement program for SDVO SBCs. This program provides that 
contracting officers may award a sole source or set-aside contract to 
SDVO SBCs if certain conditions are met. SBA cannot accurately 
determine how many concerns will be competing for SDVO SBC contract 
awards because there is insufficient data on SDVO SBCs ready and able 
to perform on a government contract to support a reasonable estimate. 
However, a review of the data available from several different sources 
evidences the following.
    According to the VA, there were 2.5 million veterans with a service 
connected disability. (See https://www.va.gov/vetdata/demographics/
index.htm.) However, the data does not tell us how many of those 
veterans own a small business concern that would qualify for the 
program. Thus, SBA looked at data available from the state of 
California, the only state that has a similar SDVO SBC Program. (See 
https://www.ca.gov.) In Fiscal Year (FY) 2001, California awarded 
contracts to 832 Disabled Veteran Business Enterprises (DVBEs). In FY 
2002, California awarded 2.8% of all State contract actions to 973 
DVBEs. The dollar value of contract awards for 2001 and 2002 was not 
readily available. In FY 2003, California awarded $142,670,222, or 2.7% 
of all State contract actions to DVBEs. California requires DVBE 
Program participants to be a disabled veteran. SBA could not determine 
how many DVBEs were small business concerns. SBA welcomes comments 
discussing other State-level DVBE Programs.
    In addition, SBA reviewed the 1992 Economic Census data reported 
under ``Characteristics of Business Owners,'' the most recent data 
available. (See https://www.census.gov.) This data revealed that 
disabled veterans represented 1.8% of all businesses, or approximately 
310,557 businesses. The U.S. Bureau of the Census did not distinguish 
between small and large businesses or whether the veteran's disability 
status was based on a ``service-connected'' disability as defined in 38 
U.S.C. 101. Therefore, SBA also reviewed information contained in the 
U.S. Department of Defense's Central Contractor Registration (CCR) 
database. There are 4,825 SDVO SBCs registered in CCR. This represents 
a small portion, 15.9% of the 30,434 veteran-owned businesses 
registered in CCR. Again, it is not known what percentage of the 
service-disabled veterans based their representation on the ``service-
connected'' disability as defined by 38 U.S.C. 101.
    Finally, SBA reviewed data from the Federal Procurement Data 
System. In FY 2001, there were 9,142 contract actions awarded to SDVO 
SBCs in the amount of $554,167,000. This represented .25% of all 
Federal contracts awarded. In FY 2002, 7,131 contract actions were 
awarded to SDVO SBCs in the amount of $298,901,000. This represented 
.13% of all Federal contracts awarded. Although there are over 2 
million

[[Page 8927]]

service-disabled veterans, only a small portion own small businesses. 
However, it is assumed that the establishment of a sole source and set-
aside procurement vehicle for SDVO SBCs will attract more of these 
entities to the Federal procurement arena. In addition, according to 
the data set forth above, few contracts were awarded to SDVO SBCs in 
the Federal and State arenas. This number could increase as a result of 
the implementation of the VBA through this regulation. Thus, there is a 
relatively small percentage of SDVO SBCs (2.4%) registered in the CCR 
(4,852), as compared to the total number of SBCs (201,742). 
Consequently, SBA believes that this rule concerning appeal procedures 
for SDVO SBCs will not have a major impact on SBCs in the Federal 
procurement arena.
    SBA welcomes comments discussing the potential number of concerns 
that could become eligible under this rule and which could protest and 
appeal the SDVO SBC status of an apparent awardee.
    With respect to who will benefit from this regulation, SBA notes 
that it believes currently eligible SDVO SBCs will benefit immediately 
since they are ready and able to tender an offer for a Federal 
procurement and can therefore protest and appeal an awardee's SDVO SBC 
status.
    SBA estimates that the Federal government will require no 
additional appropriations for agencies to implement this program. SBA's 
Office of Government Contracting will handle the protests and SBA's 
Office of Hearings and Appeals will handle the appeals.

List of Subjects in 13 CFR Part 134

    Administrative practice and procedure, Claims, Lawyers, 
Organization and functions (Government agencies).


0
For the reasons set forth in the preamble, amend part 134 of title 13 
of the Code of Federal Regulations as follows:

PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF 
HEARINGS AND APPEALS

0
1. The authority citation for 13 CFR part 134 continues to read as 
follows:

    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.


0
2. Amend Part 134 by redesignating Sec. Sec.  134.501 through 134.518 
as Sec. Sec.  134.601 through 134.618 and by redesignating subpart E as 
subpart F.

0
3. Add a new subpart E to read as follows:

Subpart E--Rules of Practice for Appeals From Service-Disabled 
Veteran Owned Small Business Concern Protests

Sec.
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?


Sec.  134.501  What is the scope of the rules in this subpart E?

    (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 Sec.  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.


Sec.  134.502  Who may appeal?

    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.


Sec.  134.503  When must a person file an appeal from an SDVO SBC 
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 Sec.  
134.204 for filing and service requirements). An untimely appeal will 
be dismissed.


Sec.  134.504  What are the effects of the appeal on the procurement at 
issue?

    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.


Sec.  134.505  What are the requirements for an appeal petition?

    (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.

[[Page 8928]]

    (c) Certificate of Service. The appellant must attach to the appeal 
petition a signed certificate of service meeting the requirements of 
Sec.  134.204(d).


Sec.  134.506  What are the service and filing requirements?

    The provisions of Sec.  134.204 apply to the service and filing of 
all pleadings and other submissions permitted under this subpart unless 
otherwise indicated in this subpart.


Sec.  134.507  When does the AA/GC transmit the protest file and to 
whom?

    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.


Sec.  134.508  What is the standard of review?

    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.


Sec.  134.509  When will a Judge dismiss an appeal?

    (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 Sec.  134.505;
    (3) The appeal is untimely filed pursuant to Sec.  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.


Sec.  134.510  Who can file a response to an appeal petition and when 
must such a response be filed?

    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.


Sec.  134.511  Will the Judge permit discovery and oral hearings?

    Discovery will not be permitted and oral hearings will not be held.


Sec.  134.512  What are the limitations on new evidence?

    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.


Sec.  134.513  When is the record closed?

    The record will close when the time to file a response to an appeal 
petition expires pursuant to 13 CFR 134.510.


Sec.  134.514  When must the Judge issue his or her decision?

    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.


Sec.  134.515  What are the effects of the Judge's decision?

    (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.

    Dated: December 1, 2004.
Hector V. Barreto,
Administrator.
[FR Doc. 05-3445 Filed 2-23-05; 8:45 am]
BILLING CODE 8025-01-P