Rules of Practice for Protests and Appeals Regarding Eligibility for Inclusion in the U.S. Department of Veterans Affairs, Center for Verification and Evaluation Database, 45212-45218 [2017-20384]
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Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules
Subpart C—[Amended]
9. Designate the subpart labeled ‘‘Free
and Restricted Percentages’’ as subpart
C.
■
Subpart D—[Amended]
10. Designate the subpart labeled
‘‘Assessment Rates’’ as subpart D.
■
Subpart E—Administrative
Requirements
11. Designate the subpart labeled
‘‘Administrative Rules and Regulations’’
as subpart E and revise the heading as
shown above.
■
Dated: September 14, 2017.
Bruce Summers,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 2017–19920 Filed 9–27–17; 8:45 am]
BILLING CODE 3410–02–P
SMALL BUSINESS ADMINISTRATION
13 CFR Part 134
RIN 3245–AG87
Rules of Practice for Protests and
Appeals Regarding Eligibility for
Inclusion in the U.S. Department of
Veterans Affairs, Center for
Verification and Evaluation Database
U.S. Small Business
Administration.
ACTION: Proposed rule.
AGENCY:
The U.S. Small Business
Administration (SBA) is proposing to
amend the rules of practice of its Office
of Hearings and Appeals (OHA) to
implement procedures for protests of
eligibility for inclusion in the
Department of Veterans Affairs (VA)
Center for Verification and Evaluation
(CVE) database, and procedures for
appeals of denials and cancellations of
inclusion in the CVE database. These
amendments would be in accordance
with Sections 1832 and 1833 of the
National Defense Authorization Act for
Fiscal Year 2017 (NDAA 2017).
DATES: Comments must be received on
or before October 30, 2017.
ADDRESSES: You may submit comments,
identified by RIN 3245–AG87 by any of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail, Hand Delivery/Courier:
Delorice Price Ford, Assistant
Administrator for Hearings and
Appeals, U.S. Small Business
Administration, 409 Third Street SW.,
Washington, DC 20416.
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SUMMARY:
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SBA will post all comments on
www.regulations.gov. If you wish to
submit confidential business
information (CBI) as defined in the User
Notice at www.regulations.gov, please
submit the information to Daniel K.
George, Attorney Advisor, Office of
Hearings and Appeals, U.S. Small
Business Administration, 409 Third
Street SW., Washington, DC 20416, or
send an email to Daniel.George@
sba.gov. Highlight the information that
you consider to be CBI and explain why
you believe SBA should hold this
information as confidential. SBA will
review the information and make the
final determination whether it will
publish the information.
FOR FURTHER INFORMATION CONTACT:
Daniel K. George, Attorney Advisor, at
(202) 401–8200 or Daniel.George@
sba.gov.
SUPPLEMENTARY INFORMATION:
Background
Sections 1832 and 1833 of the NDAA
2017 authorized the SBA’s OHA to
determine protests and appeals related
to inclusion in the CVE database. In
order to implement these sections, this
proposed rule would amend OHA’s
jurisdiction at subparts A and B of 13
CFR part 134 to include protests of
eligibility for inclusion in the CVE
database and appeals of denials and
cancellations of inclusion in the CVE
database. In addition, the proposed rule
would create a new subpart J in 13 CFR
part 134 to set out detailed rules of
practice for protests of eligibility for
inclusion in the VA CVE database, and
a new subpart K to set out detailed rules
of practice for appeals of denials and
cancellations of verification for
inclusion in the VA’s CVE database.
Section-by-Section Analysis
A. 13 CFR Part 134 Subparts A and B
SBA proposes to amend § 134.102, the
rules for establishing OHA jurisdiction,
to add protests of eligibility for
inclusion in the CVE database and
appeals of denials and cancellations of
inclusion in the CVE database, as two
new types of proceedings over which
OHA would have jurisdiction. New
§ 134.102(u) would allow for protests of
eligibility for inclusion in the CVE
database. New § 134.102(v) would allow
for appeals of denials and cancellations
of inclusion in the CVE database.
SBA also proposes to amend
§ 134.201(b) by adding new paragraphs
(8) and (9) to include protests of
eligibility for inclusion in the CVE
database and appeals of denials and
cancellations of inclusion in the CVE
database. As a result of these new
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paragraphs, existing § 134.201(b)(8)
would be redesignated as
§ 134.201(b)(10).
B. 13 CFR Part 134, Subpart J
SBA proposes to add new subpart J,
consisting of §§ 134.1001–1013, in order
to conform OHA’s rules of practice for
protests of eligibility for inclusion in the
CVE database (CVE Protests). As a
result, the new rules of practice for
protests of eligibility for inclusion in the
CVE database would mirror SBA’s
existing rules for protests of servicedisabled veteran owned small
businesses, found in 13 CFR part 125
subpart D.
Proposed § 134.1001(b) states that the
provisions of subparts A and B also
apply to protests of eligibility for
inclusion in the CVE database. Section
134.1001(c) adds that the protest
procedures are separate from those
governing Service-Disabled VeteranOwned Small Business Concern (SDVO
SBC) protests for non-VA procurements,
which are subject to 13 CFR part 125.
Section 134.1001(d) states that protests
of a concern’s eligibility for a non-VA
procurement as an SDVO SBC are
governed by 13 CFR part 125. In
addition, § 134.1001(e) specifies that
appeals that relate to a determination
made by the SBA’s Director, Office of
Government Contracting (D/GC) are
governed by subpart E of 13 CFR part
125.
As proposed in § 134.1002, the
Secretary of the VA, or his/her designee,
as well as the Contracting Officer (CO)
or an offeror in a VA procurement
awarded to a small business may file a
CVE Protest. A protesting offeror need
not be the offeror next in line for award.
Section 134.1003 establishes the
grounds for filing a CVE Protest as
status, and ownership and control.
Paragraph (c) requires the Judge to
determine a protested concern’s
eligibility for inclusion in the CVE as of
the date the protest was filed.
Section 134.1004(a) establishes the
deadlines for filing a CVE Protest, which
is at any time for the Secretary of the VA
and any time during the life of a
contract for the CO. Paragraph (a)(2)(i)
instructs that an offeror must file its
protest within five days of being
notified of the identity of the apparent
awardee. Paragraphs (a)(3) and (4)
indicate the rule for counting days and
that any untimely protest will be
dismissed. Paragraph (b) describes the
methods for filing a CVE Protest by
interested parties. A CVE Protest
brought by an offeror is filed with the
CO, who then forwards the protest to
OHA.
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Section 134.1005 specifies the
contents that every CVE Protest must
have. Paragraph (b) would require a
protective order be requested within
five days of a protest being filed.
Section 134.1006 would apply the
servicing and filing requirements found
at § 134.204.
Section 134.1007 would establish the
process of CVE Protests as follows:
Paragraph (a) would require OHA to
issue a notice and order if the protest is
found to be timely, specific, and based
on protectable allegations; paragraph (b)
would require dismissal of a protest if
the Judge determines the protest to be
premature, untimely, nonspecific, or
based on non-protestable allegations;
paragraph (c) would require the Director
of the CVE (D/CVE) to send the case file
to OHA by the deadline specified in the
notice and order; paragraph (d)
describes the process for requesting a
protective order; paragraph (e) allows
for supplemental arguments after a
protester reviews the CVE case file;
paragraph (f) allows for a response to a
protest within 15 days of the date the
protest was filed; and paragraph (g)
would require the Judge to base the
decision on the case file and
information provided by the parties or
information requested by the Judge. The
Judge may also investigate issues
beyond those raised by the parties.
Paragraph (h) proposes to allow a CO to
award the contract after a protest is filed
but before a decision is reached if the
CO determines the public interest will
be protected and notifies the Judge of
his/her decision; paragraph (i) would
require OHA to serve all parties with the
decision, which would be considered a
final agency decision; finally, paragraph
(j) stipulates the effects of the decision
upon the protested concern and the
contract at issue.
Section 134.1008 prohibits discovery
in CVE Protest proceedings.
Section 134.1009 allows for oral
hearings only in extraordinary
circumstances, as found by the Judge,
and establishes that if a hearing is
allowed, it would be conducted in
accordance with the rules of practice in
subpart B of Part 134.
Section 134.1010 establishes the
standard of review as preponderance of
the evidence, in which the burden of
proof falls on the protested firm, not the
protester.
Section 134.1011 specifies that the
Judge will give greater weight to
specific, signed, factual evidence than to
unsupported allegations and opinions,
and provides that the Judge may draw
an adverse inference from failure to
produce relevant information.
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Section 134.1012 applies the
provisions of § 134.225 where relevant.
Under § 134.1013, there will be no
appeal of OHA’s decision on a CVE
Protest. However, paragraph (a) allows
for the Judge to reconsider a CVE Protest
decision if a party to the proceeding
files a petition for reconsideration
within twenty (20) calendar days after
issuance 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. Paragraph (b) states that if the
Judge reverses the initial decision on
reconsideration, the CO must comply
with § 134.1007(j) in applying the new
decision’s results.
C. 13 CFR Part 134, Subpart K
The rule proposes a new subpart K to
cover the procedures for filing appeals
of denials and cancellations of
verification for inclusion in the VA CVE
database (CVE Appeals). Section
134.1101 states that the provisions of
subparts A and B also apply to CVE
Appeals. Section 134.1101(c) adds that
the appeal procedures for CVE Appeals
are separate from those governing SDVO
SBC status appeals based on D/GC
determinations, which are subject to 13
CFR 134 subpart E. Paragraph (d) states
that protests of a concern’s eligibility for
inclusion in the VA’s CVE database are
governed by 13 CFR 134 subpart J.
Section 134.1102 establishes standing
to file a CVE Appeal upon a concern
that has been denied verification of its
CVE status or had its CVE status
cancelled.
Section 134.1103 permits CVE
Appeals to OHA as long as the denial or
cancellation was not based on the
concern’s failure to meet any veteran or
service-disabled veteran eligibility
criteria.
Section 134.1104 requires CVE
Appeals to be filed within 10 business
days of being notified that the CVE
status has been denied or cancelled.
Paragraph (b) establishes the rules for
counting days as those in § 134.202(d).
Paragraph (c) requires OHA to dismiss
any untimely appeal.
Section 134.1105(a) requires the
appeal petition to include a copy of the
denial or cancellation, a statement as to
why the cancellation or denial is in
error, any information the appellant
believes the Judge should consider, and
the name, address, telephone number,
facsimile number, and signature of
appellant or its attorney. Paragraph (b)
requires that the appellant serve copies
of the appeal upon the D/CVE and VA
counsel. Paragraph (c) requires all
appeal petitions to include a certificate
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of service that meets the requirements of
§ 134.204(d). Paragraph (d) allows the
Judge to dismiss appeal petitions that do
not meet all the requirements of
§ 134.1105.
Section 134.1106 applies the
provisions in § 134.204 regarding the
service and filing requirements of all
pleadings and submissions allowed
under 13 CFR part 134, subpart K.
Section 134.1107 requires the D/CVE
to send OHA the entire case file relating
to the denial or cancellation, by the
deadline specified in the notice and
order. The case file must be
authenticated and certified that it is the
true and correct copy of the case file, to
the best knowledge of the D/CVE.
Section 134.1108 would permit a
response to the appeal petition.
Paragraph (a) allows the D/CVE, or his/
her designee, or VA counsel, to respond
to the appeal. Paragraph (b) establishes
the close of record as 15 days after the
Judge issues a notice and order
informing all parties of the filing of the
appeal. The notice and order would
establish the date all responses to the
appeal petition would be due. Paragraph
(c) requires all respondents to serve
their response upon all parties
identified in the certificate of service
attached to the appeal petition, as
required by § 134.1105. Paragraph (d)
prevents a reply to a response, unless
allowed by the Judge.
Section 134.1109 does not allow for
discovery or oral hearings in CVE
Appeals.
Section 134.1110 prevents new
evidence in CVE Appeals, unless good
cause is shown.
Under § 134.1111, the standard of
review for CVE Appeals would be
whether the denial or cancellation by
the D/CVE was based on clear error of
fact or law, which the appellant would
have the burden of proof.
Under § 134.1112(a), the Judge will
decide a CVE Appeal, if practicable,
within 60 calendar days after the close
of record. Paragraph (b) requires the
decision to contain findings of fact and
conclusions of law, and any reasons for
those findings and conclusions, and any
relief so ordered. Paragraph (c) requires
decisions to be based primarily on the
evidence in the CVE case file, and
arguments made during the appeal
process. The Judge will, however, have
the ability to consider issues that are
beyond those raised by any pleading or
in the denial or cancellation letter.
Paragraph (d) establishes a Judge’s
decision as the final agency decision,
becoming effective immediately. If OHA
dismisses an appeal of a D/CVE denial
or cancellation, the D/CVE
determination remains in effect.
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Paragraph (e) requires OHA to serve a
copy of the decision on all parties, or
their counsel if represented. Paragraph
(f) stipulates that if the appeal is granted
and the appellant is found eligible for
inclusion in the CVE database, the D/
CVE must reinstate or include the
appellant in the CVE database
immediately. Paragraph (g) allows any
party that has appeared in the
proceeding, or the Secretary of VA or
his or her designee, to file a petition for
reconsideration. The petition must be
filed within twenty (20) calendar 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.
Compliance With Executive Orders
12866, 12988, 13132, 13771, and the
Paperwork Reduction Act (44 U.S.C.
Ch. 35), and the Regulatory Flexibility
Act (5 U.S.C. 601–612)
jstallworth on DSKBBY8HB2PROD with PROPOSALS
Executive Order 12866
OMB has determined that this rule
does not constitute a ‘‘significant
regulatory action’’ under Executive
Order 12866. This rule is also not a
major rule under the Congressional
Review Act, 5 U.S.C. 800. This proposed
rule would amend the rules of practice
for the SBA’s OHA in order to
implement procedures for protests of
eligibility for inclusion in the CVE
database and appeals of denials and
cancellations of inclusion in the CVE
database. As such, the rule has no effect
on the amount or dollar value of any
Federal contract requirements or of any
financial assistance provided through
SBA or VA. Therefore, the rule is not
likely to have an annual economic effect
of $100 million or more, result in a
major increase in costs or prices, or have
a significant adverse effect on
competition or the United States
economy. In addition, this rule does not
create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency,
materially alter the budgetary impact of
entitlements, grants, user fees, loan
programs or the rights and obligations of
such recipients, nor raise novel legal or
policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
Executive Order 12988
This action meets applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce
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burden. The action does not have
retroactive or preemptive effect.
Executive Order 13132
This rule does not have Federalism
implications as defined in Executive
Order 13132. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in the
Executive Order. As such it does not
warrant the preparation of a Federalism
Assessment.
Executive Order 13771
This proposed rule is not expected to
be an Executive Order 13771 regulatory
action because this proposed rule is not
significant under Executive Order
12866.
Paperwork Reduction Act
The SBA has determined that this rule
does not impose additional reporting or
recordkeeping requirements under the
Paperwork Reduction Act, 44 U.S.C.
Chapter 35.
Regulatory Flexibility Act
The Regulatory Flexibility Act of
1980, as amended (RFA), 5 U.S.C. 601–
612, requires Federal agencies to
prepare an initial regulatory flexibility
analysis (IRFA) to consider the potential
impact of the regulations on small
entities. Small entities include small
businesses, small not-for-profit
organizations, and small governmental
jurisdictions. Section 605 of the RFA
allows an agency to certify a rule, in lieu
of preparing an IRFA, if the rulemaking
is not expected to have a significant
economic impact on a substantial
number of small entities.
This proposed rule would revise the
regulations governing cases before
SBA’s Office of Hearings and Appeals
(OHA), SBA’s administrative tribunal.
These regulations are procedural by
nature. Specifically, the proposed rule
would establish rules of practice for the
SBA’s OHA in order to implement
protests of eligibility for inclusion in the
CVE database and appeals of denials
and cancellations of inclusion in the
CVE database, new types of
administrative litigation mandated by
sections 1832 and 1833 of the National
Defense Authorization Act for Fiscal
Year 2017. This legislation provides a
new statutory right to challenge
eligibility for inclusion in the CVE
database, as well as denials and
cancellation of inclusion in the CVE
database. This proposed rule merely
provides the rules of practice at OHA for
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the orderly hearing and disposition of
CVE database inclusion protests and
denials and cancellations of CVE
database inclusion. While SBA does not
anticipate that this proposed rule would
have a significant economic impact on
any small business, we do welcome
comments from any small business
setting out how and to what degree this
proposed rule would affect it
economically. Therefore, the
Administrator of SBA certifies under 5
U.S.C. 605(b) that this proposed rule
would not have a significant economic
impact on a substantial number of small
entities.
List of Subjects in 13 CFR Part 134
Administrative practice and
procedure, Claims, Equal access to
justice, Lawyers, Organization and
functions (government agencies).
For the reasons stated in the
preamble, SBA proposes to amend 13
CFR part 134 as follows:
PART 134—RULES OF PROCEDURE
GOVERNING CASES BEFORE THE
OFFICE OF HEARINGS AND APPEALS
1. The authority citation for part 134
is revised to read as follows:
■
Authority: 5 U.S.C. 504; 15 U.S.C. 632,
634(b)(6), 634(i), 637(a), 648(l), 656(i), and
687(c); 38 U.S.C. 8127(f); E.O. 12549, 51 FR
6370, 3 CFR, 1986 Comp., p. 189.
2. Amend § 134.102 by adding
paragraphs (u) and (v) to read as
follows:
■
§ 134.102
Jurisdiction of OHA.
*
*
*
*
*
(u) Protests of eligibility for inclusion
in the Department of Veterans Affairs
Center for Verification and Evaluation
(CVE) database;
(v) Appeals of denials and
cancellations of inclusion in the CVE
database.
■ 3. Amend § 134.201 by:
■ a. Removing the word ‘‘and’’ in
paragraph (b)(7);
■ b. Redesignating paragraph (b)(8) as
paragraph (b)(10);
■ c. Adding new paragraphs (b)(8) and
(b)(9).
The additions read as follows:
§ 134.201 Scope of the rules in this
Subpart B.
*
*
*
*
*
(b) * * *
(8) For protests of eligibility for
inclusion in the Center for Verification
and Evaluation (CVE) database, in
subpart J of this part;
(9) For appeals of denials and
cancellations of inclusion in the CVE
database, in subpart K of this part; and
*
*
*
*
*
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■
4. Add subpart J to read as follows:
Subpart J—Rules of Practice for Protests of
Eligibility for Inclusion in the U.S.
Department of Veterans Affairs (VA) Center
for Verification and Evaluation (CVE)
Database (CVE Protests)
Sec.
134.1001 Scope of rules.
134.1002 Who may file a CVE Protest?
134.1003 Grounds for filing a CVE Protest.
134.1004 Commencement of CVE Protests.
134.1005 Contents of the CVE Protest.
134.1006 Service and filing requirements.
134.1007 Processing a CVE Protest.
134.1008 Discovery.
134.1009 Oral hearings.
134.1010 Standard of review and burden of
proof.
134.1011 Weight of evidence.
134.1012 The record.
134.1013 Request for reconsideration.
Authority: 38 U.S.C. 8127(f)(8)(B).
Subpart J—Rules of Practice for
Protests of Eligibility for Inclusion in
the U.S. Department of Veterans
Affairs (VA) Center for Verification and
Evaluation (CVE) Database (CVE
Protests)
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§ 134.1001
Scope of rules.
(a) The rules of practice in this
subpart J apply to Department of
Veterans Affairs (VA) Center for
Verification and Evaluation protests
(CVE Protests).
(b) Except where inconsistent with
this subpart, the provisions of subparts
A and B of this part apply to protests
listed in paragraph (a) of this section.
(c) The protest procedures described
in this subpart are separate from those
governing protests and appeals of a
concern’s size or status as a ServiceDisabled Veteran-Owned Small
Business Concern (SDVO SBC) for a
non-Department of Veterans Affairs
(non-VA) procurement. All protests
relating to whether a veteran-owned
concern is a ‘‘small’’ business for
purposes of any Federal program are
subject to part 121 of this chapter and
must be filed in accordance with that
part. If a protester protests both the size
of the concern and the concern’s
eligibility for the CVE database, SBA
will process each protest concurrently.
All protests relating to a concern’s status
as a SDVO SBC for a non-VA
procurement are subject to part 125 of
this chapter and must be filed in
accordance with that part. SBA does not
review issues concerning contract
administration.
(d) Protests of a concern’s eligibility
for a non-VA procurement as a SDVO
SBC are governed by 13 CFR part 125
subpart D.
(e) Appeals relating to determinations
made by SBA’s Director, Office of
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Government Contracting regarding
SDVO SBC status are governed by
subpart E of this part.
(f) Appeals of denials and
cancellations of verification for
inclusion in the CVE database are
governed by subpart K of this part.
§ 134.1002
Who may file a CVE Protest?
A CVE Protest may be filed by:
(a) The Secretary of the VA, or his/her
designee; or
(b) In the case of a small business that
is awarded a contract for a VA
procurement, the contracting officer or
an offeror.
§ 134.1003
Protest.
Grounds for filing a CVE
(a) Status. In cases where the protest
is based on service-connected disability,
permanent and severe disability, or
veteran status, the Judge will only
consider a protest that presents specific
allegations supporting the contention
that the owner(s) cannot provide
documentation from the VA,
Department of Defense, or the U.S.
National Archives and Records
Administration to show that they meet
the definition of veteran, servicedisabled veteran, or service-disabled
veteran with a permanent and severe
disability.
(b) Ownership and control. In cases
where the protest is based on ownership
and control, the Judge will consider a
protest only if the protester presents
credible evidence that the concern is not
51% owned and controlled by one or
more veterans or service-disabled
veterans.
(c) Date for Determining Eligibility.
The Judge will determine a protested
concern’s eligibility for inclusion in the
CVE database as of the date the protest
was filed.
§ 134.1004
Protests.
Commencement of CVE
(a) Timeliness. (1) The Secretary of
the VA, or his/her designee, may file a
CVE Protest at any time.
(2) Where the CVE Protest is in
connection with a VA procurement:
(i) An offeror must file a CVE Protest
within five business days of notification
of the apparent awardee’s identity.
(ii) A contracting officer may file a
CVE Protest at any time during the life
of the VA contract.
(3) The rule for counting days is in
§ 134.202(d).
(4) An untimely protest will be
dismissed.
(b) Filing. (1) Private Parties.
Interested parties, other than the
contracting officer or Secretary of the
VA or his/her designee, must deliver
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their CVE Protests in person, by email,
by facsimile, by express delivery
service, or by U.S. mail (postmarked
within the applicable time period) to the
contracting officer.
(2) Referral to OHA. The contracting
officer must forward to OHA any nonpremature CVE Protest received,
notwithstanding whether he/she
believes it is sufficiently specific or
timely. The contracting officer must
send all CVE Protests, along with a
referral letter, directly to OHA,
addressed to Office of Hearings and
Appeals, U.S. Small Business
Administration, 409 Third Street SW.,
Washington, DC 20416, by email at
OHAfilings@sba.gov, or by facsimile to
(202) 205–6390, marked Attn: CVE
Protest. The referral letter must include
information pertaining to the
solicitation that may be necessary for
OHA to determine timeliness and
standing, including:
(i) The solicitation number;
(ii) The name, address, telephone
number, email address, and facsimile
number of the contracting officer;
(iii) Whether the contract was sole
source or set-aside;
(iv) Whether the protester submitted
an offer;
(v) Whether the protested concern
was the apparent successful offeror;
(vi) Whether the procurement was
conducted using sealed bid or
negotiated procedures;
(vii) The bid opening date, if
applicable;
(viii) When the protest was submitted
to the contracting officer;
(ix) When the protester received
notification about the apparent
successful offeror, if applicable; and
(x) Whether a contract has been
awarded.
(3) Protests filed by Secretary of the
VA. The Secretary of VA or his/her
designee must submit his/her CVE
Protest directly to OHA in accordance
with the procedures in § 134.204.
(4) Protests filed by a contracting
officer. The contracting officer must
submit his/her CVE Protest directly to
OHA in accordance with the procedures
in § 134.204. The protest should include
the information set forth in the referral
letter in Paragraph (2).
§ 134.1005
Contents of the CVE Protest.
(a) CVE Protests must be in writing.
There is no required format for a CVE
Protest, but it must include the
following:
(1) The solicitation or contract
number, if applicable;
(2) Specific allegations supported by
credible evidence that the concern does
not meet the eligibility requirements for
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inclusion in the CVE database, listed in
§ 134,1003;
(3) Any other pertinent information
the Judge should consider; and
(4) The name, address, telephone
number, and email address or facsimile
number, if available, and signature of
the protester or its attorney.
(b) If the protester intends to seek
access to the CVE case file under
§ 134.205, the protester should include
in its protest a request for a protective
order. Unless good cause is shown, a
protester must request a protective order
within five days of filing the protest.
§ 134.1006 Service and filing
requirements.
The provisions of § 134.204 apply to
the service and filing of all pleadings
and other submissions permitted under
this subpart.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
§ 134.1007
Processing a CVE Protest.
(a) Notice and order. If the Judge
determines that the protest is timely,
sufficiently specific, and based upon
protestable allegations, the Judge will
issue a notice and order, notifying the
protester, the protested concern, the
Director, CVE (D/CVE), VA Counsel,
and, if applicable, the contracting officer
of the date OHA received the protest
and ordering a due date for responses.
(b) Dismissal of protest. If the Judge
determines that the protest is premature,
untimely, nonspecific, or is based on
non-protestable allegations, the Judge
will dismiss the protest and will send
the contracting officer, D/CVE, and the
protester a notice of dismissal, citing the
reason(s) for the dismissal. The
dismissal is a final agency action.
(c) Transmission of the case file.
Upon receipt of a notice and order, the
D/CVE must deliver to OHA the entire
case file relating to the protested
concern’s inclusion in the CVE
database. The notice and order will
establish the timetable for transmitting
the case file to OHA. The D/CVE must
certify and authenticate that the case
file, to the best of his/her knowledge, is
a true and correct copy of the case file.
(d) Protective order. A protester
seeking access to the CVE case file must
file a timely request for a protective
order under § 134.205. Except for good
cause, a protester must request a
protective order within five days of
filing the protest. Even after issuance of
a protective order, OHA will not
disclose income tax returns or
privileged information.
(e) Supplemental allegations. If, after
viewing documents in the CVE case file
for the first time under a protective
order, a protester wishes to supplement
its protest with additional argument, the
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15:00 Sep 27, 2017
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protester may do so. Any such
supplement is due at OHA no later than
15 days from the date the protester
receives or reviews the CVE case file.
(f) Response. (1) The protested
concern, the D/CVE, the contracting
officer, and any other interested party
may respond to the protest and
supplemental protest, if one is filed. The
response is due no later than 15 days
from the date the protest or
supplemental protest was filed with
OHA. The record closes the date the
final response is due.
(2) Service. The respondent must
serve its response upon the protester or
its counsel and upon each of the
persons identified in the certificate of
service attached to the notice and order
or, if a protective order is issued, in
accordance with the terms of the
protective order.
(3) Reply to a response. No reply to
a response will be permitted unless the
Judge directs otherwise.
(g) Basis for decision. The decision
will be based primarily on the case file
and information provided by the
protester, the protested concern, and
any other parties. However, the Judge
may investigate issues beyond those
raised in the protest and may use other
information or make requests for
additional information to the protester,
the protested concern, or VA.
(h) Award of contract. The contracting
officer may award a contract during the
period between the date he/she receives
a protest and the date the Judge issues
a decision only if the contracting officer
determines that an award must be made
to protect the public interest and
notifies the Judge in writing of any such
determination. Notwithstanding such a
determination, the provisions of
paragraph (j) of this section shall apply
to the procurement in question.
(i) The decision. OHA will serve a
copy of the written decision on each
party, or, if represented by counsel, on
its counsel. The decision is considered
the final agency action, and it becomes
effective upon issuance.
(j) Effect of decision. (1) A contracting
officer may award a contract to a
protested concern after the Judge has
determined either that the protested
concern is eligible for inclusion in the
CVE database or has dismissed all
protests against it.
(2) A contracting officer shall not
award a contract to a protested concern
that the Judge has determined is not
eligible for inclusion in the CVE
database. If the contracting officer has
already made an award under paragraph
(h) of this section, the contracting officer
shall either terminate the contract or not
exercise the next option.
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Fmt 4702
Sfmt 4702
(3) The contracting officer must
update the Federal Procurement Data
System and other procurement reporting
databases to reflect the Judge’s decision.
(4) If the Judge finds the protested
concern ineligible for inclusion in the
CVE database, D/CVE must immediately
remove the protested concern from the
CVE database.
(5) A concern found to be ineligible
may not submit an offer on a future VA
procurement until the protested concern
reapplies to the Vendor Information
Pages Verification Program and has been
reentered into the CVE database.
§ 134.1008
Discovery.
Discovery will not be permitted in
CVE Protest proceedings.
§ 134.1009
Oral hearings.
Oral hearings will be held in CVE
Protest proceedings 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.
§ 134.1010
of proof.
Standard of review and burden
The protested concern has the burden
of proving its eligibility, by a
preponderance of the evidence.
§ 134.1011
Weight of evidence.
The Judge will give greater weight to
specific, signed, factual evidence than to
general, unsupported allegations or
opinions. In the case of refusal or failure
to furnish requested information within
a required time period, the Judge may
assume that disclosure would be
contrary to the interests of the party
failing to make disclosure.
§ 134.1012
The record.
Where relevant, the provisions of
§ 134.225 apply. In a protest under this
subpart, the contents of the record also
include the case file or solicitation
submitted to OHA in accordance with
§ 134.1007.
§ 134.1013
Request for Reconsideration.
The decision on a CVE Protest may
not be appealed. However:
(a) The Judge may reconsider a CVE
Protest decision. Any party that has
appeared in the proceeding, or the
Secretary of VA or his/her designee,
may request reconsideration by filing
with OHA and serving a petition for
reconsideration on all the parties to the
CVE Protest within twenty (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
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decision. The Judge may also reconsider
a decision on his or her own initiative.
(b) If the Judge reverses his or her
initial decision on reconsideration, the
contracting officer must follow
§ 134.1007(j) in applying the new
decision’s results.
■ 5. Add subpart K to read as follows:
Subpart K—Rules of Practice for Appeals of
Denials and Cancellations of Verification for
Inclusion in the U.S. Department of
Veterans Affairs (VA) Center for Verification
and Evaluation (CVE) Database (CVE
Appeals)
Sec.
134.1101 Scope of rules.
134.1102 Who may file a CVE Appeal?
134.1103 Grounds for filing a CVE Appeal.
134.1104 Commencement of CVE Appeals.
134.1105 The appeal petition.
134.1106 Service and filing requirements.
134.1107 Transmission of the case file.
134.1108 Response to an appeal petition.
134.1109 Discovery and oral hearings.
134.1110 New evidence.
134.1111 Standard of review and burden of
proof.
134.1112 The decision.
Authority: 38 U.S.C. 8127(f)(8)(A).
Subpart K—Rules of Practice for
Appeals of Denials and Cancellations
of Verification for Inclusion in the U.S.
Department of Veterans Affairs (VA)
Center for Verification and Evaluation
(CVE) Database (CVE Appeals)
§ 134.1101
Scope of rules.
(a) The rules of practice in this
subpart K apply to appeals of denials
and cancellations of verification for
inclusion in the U.S. Department of
Veterans Affairs Center for Verification
and Evaluation Database (CVE Appeals).
(b) Except where inconsistent with
this subpart, the provisions of subparts
A and B of this part apply to appeals
listed in paragraph (a) of this section.
(c) Appeals relating to determinations
made by SBA’s Director, Office of
Government Contracting regarding
Service-Disabled Veteran-Owned Small
Business Concern (SDVO SBC) status
are governed by subpart E of this part.
(d) Protests of a concern’s eligibility
for inclusion in the VA’s CVE database
are governed by subpart J of this part.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
§ 134.1102
Who may file a CVE Appeal?
A concern that has been denied
verification of its CVE status or has had
its CVE status cancelled may appeal the
denial or cancellation to OHA.
§ 134.1103
Appeal.
Grounds for filing a CVE
Denials and cancellations of
verification of CVE status may be
appealed to OHA, so long as the denial
or cancellation is not based on the
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15:00 Sep 27, 2017
Jkt 241001
failure to meet any veteran or servicedisabled veteran eligibility criteria.
Such denials and cancellations are final
VA decisions and not subject to appeal
to OHA.
§ 134.1104
Appeals.
Commencement of CVE
(a) A concern whose application for
CVE verification has been denied or
whose CVE status has been cancelled
must file its appeal within 10 business
days of receipt of the denial or
cancellation.
(b) The rule for counting days is in
§ 134.202(d).
(c) OHA will dismiss an untimely
appeal.
§ 134.1105
The appeal petition.
(a) Format. CVE Appeals must be in
writing. There is no required format for
an appeal petition; however, it must
include the following:
(1) A copy of the denial or
cancellation and the date the appellant
received it;
(2) A statement of why the
cancellation or denial is in error;
(3) Any other pertinent information
the Judge should consider; and
(4) The name, address, telephone
number, and email address or facsimile
number, if available, and signature of
the appellant or its attorney.
(b) Service. The appellant must serve
copies of the entire appeal petition upon
the Director, Center for Verification and
Evaluation (D/CVE) and VA Counsel at
CVEAppealsService@va.gov.
(c) Certificate of Service. The
appellant must attach to the appeal
petition a signed certificate of service
meeting the requirements of
§ 134.204(d).
(d) Dismissal. An appeal petition that
does not meet all the requirements of
this section may be dismissed by the
Judge at his/her own initiative or upon
motion of a respondent.
§ 134.1106 Service and filing
requirements.
The provisions of § 134.204 apply to
the service and filing of all pleadings
and other submissions permitted under
this subpart.
§ 134.1107
Transmission of the case file.
Once a CVE Appeal is filed, the D/
CVE must deliver to OHA the entire
case file relating to the denial or
cancellation. The Judge will issue a
notice and order establishing the
timetable for transmitting the case file to
OHA. The D/CVE must certify and
authenticate that the case file, to the
best of his/her knowledge, is a true and
correct copy of the case file.
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
§ 134.1108
45217
Response to an appeal petition.
(a) Who may respond. The D/CVE or
his/her designee or counsel for VA may
respond to the CVE Appeal. The
response should present arguments to
the issues presented on appeal.
(b) Time limits. The notice and order
will inform the parties of the filing of
the appeal petition, establish the close
of record as 15 days after service of the
notice and order, and inform 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
§ 134.1105.
(d) Reply to a response. No reply to
a response will be permitted unless the
Judge directs otherwise.
§ 134.1109
Discovery and oral hearings.
Discovery will not be permitted and
oral hearings will not be held.
§ 134.1110
New evidence.
Except for good cause shown,
evidence beyond the case file will not
be admitted.
§ 134.1111
of proof.
Standard of review and burden
The standard of review is whether the
D/CVE denial or cancellation was based
on clear error of fact or law. The
appellant has the burden of proof, by a
preponderance of the evidence.
§ 134.1112
The decision.
(a) Timing. The Judge shall decide a
CVE Appeal, insofar as practicable,
within 60 calendar days after close of
the record.
(b) 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.
(c) Basis for decision. Decisions under
this part will be based primarily on the
evidence in the CVE case file, arguments
made on appeal, and any response(s)
thereto. However, the Judge, in his/her
sole discretion, may consider issues
beyond those raised in the pleadings
and the denial or cancellation letter.
(d) Finality. The decision is the final
agency decision and becomes effective
upon issuance. Where OHA dismisses
an appeal of a D/CVE denial or
cancellation, the D/CVE determination
remains in effect.
(e) Service. OHA will serve a copy of
all written decisions on each party, or,
if represented by counsel, on its
counsel.
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(f) Effect. If the Judge grants the
appeal and finds the appellant eligible
for inclusion in the CVE database, the
D/CVE must immediately reinstate or
include the appellant, as the case may
be, in the CVE database.
(g) Reconsideration. A decision of the
Judge may be reconsidered. Any party
that has appeared in the proceeding, or
the Secretary of VA or his or her
designee, may request reconsideration
by filing with OHA and serving a
petition for reconsideration on all
parties to the CVE Appeal within twenty
(20) calendar 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.
Linda E. McMahon,
Administrator.
[FR Doc. 2017–20384 Filed 9–27–17; 8:45 am]
BILLING CODE 8025–01–P
Examining the AD Docket
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2017–0650; Product
Identifier 2017–NE–19–AD]
RIN 2120–AA64
Airworthiness Directives; Rolls-Royce
plc Turbofan Engines
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to adopt a new
airworthiness directive (AD) for certain
Rolls-Royce plc (RR) RB211–Trent 875–
17, RB211–Trent 877–17, RB211–Trent
884–17, RB211–Trent 884B–17, RB211–
Trent 892–17, RB211–Trent 892B–17,
and RB211–Trent 895–17 turbofan
engines. This proposed AD was
prompted by low-pressure compressor
(LPC) case A-frame hollow locating pins
that may have reduced integrity due to
incorrect heat treatment. This proposed
AD would require replacement of the
LPC case A-frame hollow locating pins.
We are proposing this AD to correct the
unsafe condition on these products.
DATES: We must receive comments on
this NPRM by October 30, 2017.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
jstallworth on DSKBBY8HB2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
15:00 Sep 27, 2017
New Jersey Avenue SE., West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
• Fax: 202–493–2251.
For service information identified in
this proposed AD, contact Rolls-Royce
plc, Corporate Communications, P.O.
Box 31, Derby, England, DE24 8BJ;
phone: 011–44–1332–242424; fax: 011–
44–1332–249936; email: https://
www.rolls-royce.com/contact/civil_
team.jsp; Internet: https://
customers.rolls-royce.com/public/
rollsroycecare. You may view this
service information at the FAA, Engine
and Propeller Standards Branch, 1200
District Avenue, Burlington, MA. For
information on the availability of this
material at the FAA, call 781–238–7125.
Jkt 241001
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2017–
0650; or in person at the Docket
Operations office between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this proposed AD, the
mandatory continuing airworthiness
information (MCAI), the regulatory
evaluation, any comments received, and
other information. The address for the
Docket Office (phone: 800–647–5527) is
in the ADDRESSES section. Comments
will be available in the AD docket
shortly after receipt.
FOR FURTHER INFORMATION CONTACT:
Robert Green, Aerospace Engineer, ECO
Branch, FAA, 1200 District Avenue,
Burlington, MA 01803; phone: 781–
238–7754; fax: 781–238–7199; email:
robert.green@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to send any written
relevant data, views, or arguments about
this proposed AD. Send your comments
to an address listed under the
ADDRESSES section. Include ‘‘Docket No.
FAA–2017–0650; Product Identifier
2017–NE–19–AD’’ at the beginning of
your comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
aspects of this proposed AD. We will
consider all comments received by the
closing date and may amend this
proposed AD because of those
comments.
We will post all comments we
receive, without change, to https://
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
www.regulations.gov, including any
personal information you provide. We
will also post a report summarizing each
substantive verbal contact with FAA
personnel concerning this proposed AD.
Discussion
The European Aviation Safety Agency
(EASA), which is the Technical Agent
for the Member States of the European
Community, has issued EASA AD 2017–
0096, dated June 1, 2017 (referred to
hereinafter as ‘‘the MCAI’’), to correct an
unsafe condition for the specified
products. The MCAI states:
All low pressure compressor (LPC) case Aframe hollow locating pins, Part Number
(P/N) FK11612, manufactured between 01
January 2012 and 31 May 2016, have
potentially been subjected to incorrect heat
treatment. This may have reduced the
integrity of the pin such that in a Fan Blade
Off (FBO) event it is unable to withstand the
applied loads. This condition, if not
corrected, could lead to loss of location of the
A-frame following an FBO event, possibly
resulting in engine separation, loss of thrust
reverser unit, release of high-energy debris,
or an uncontrolled fire. To address this
potential unsafe condition, RR identified the
affected engines that have these A-frame
hollow locating pins installed and published
Alert Non-Modification Service Bulletin
(NMSB) RB.211–72–AJ463, providing
instructions for replacement of these pins.
The NMSB was recently revised to correct an
error in Section 1.A., where ESN 51477 was
inadvertently omitted. That ESN was
correctly listed in Section 1.D.(1)(f) for the
compliance time. For the reason described
above, this AD requires a one-time
replacement of the affected A-frame hollow
locating pins P/N FK11612. This AD also
prohibits installation of pins that were
released to service before 05 July 2016.
You may obtain further information
by examining the MCAI in the AD
docket on the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2017–
0650.
Related Service Information Under 1
CFR Part 51
RR has issued Alert Non Modification
Service Bulletin (NMSB) RB.211–72–
AJ463, Revision 2, dated June 28, 2017.
The Alert SB describes procedures for
replacement of all non-conforming Aframe locating pins. This service
information is reasonably available
because the interested parties have
access to it through their normal course
of business or by the means identified
in the ADDRESSES section.
FAA’s Determination and Requirements
of This Proposed AD
This product has been approved by
the aviation authority of the United
Kingdom, and is approved for operation
E:\FR\FM\28SEP1.SGM
28SEP1
]]>Agencies
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Proposed Rules]
[Pages 45212-45218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20384]
=======================================================================
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Part 134
RIN 3245-AG87
Rules of Practice for Protests and Appeals Regarding Eligibility
for Inclusion in the U.S. Department of Veterans Affairs, Center for
Verification and Evaluation Database
AGENCY: U.S. Small Business Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (SBA) is proposing to
amend the rules of practice of its Office of Hearings and Appeals (OHA)
to implement procedures for protests of eligibility for inclusion in
the Department of Veterans Affairs (VA) Center for Verification and
Evaluation (CVE) database, and procedures for appeals of denials and
cancellations of inclusion in the CVE database. These amendments would
be in accordance with Sections 1832 and 1833 of the National Defense
Authorization Act for Fiscal Year 2017 (NDAA 2017).
DATES: Comments must be received on or before October 30, 2017.
ADDRESSES: You may submit comments, identified by RIN 3245-AG87 by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail, Hand Delivery/Courier: Delorice Price Ford,
Assistant Administrator for Hearings and Appeals, U.S. Small Business
Administration, 409 Third Street SW., Washington, DC 20416.
SBA will post all comments on www.regulations.gov. If you wish to
submit confidential business information (CBI) as defined in the User
Notice at www.regulations.gov, please submit the information to Daniel
K. George, Attorney Advisor, Office of Hearings and Appeals, U.S. Small
Business Administration, 409 Third Street SW., Washington, DC 20416, or
send an email to Daniel.George@sba.gov. Highlight the information that
you consider to be CBI and explain why you believe SBA should hold this
information as confidential. SBA will review the information and make
the final determination whether it will publish the information.
FOR FURTHER INFORMATION CONTACT: Daniel K. George, Attorney Advisor, at
(202) 401-8200 or Daniel.George@sba.gov.
SUPPLEMENTARY INFORMATION:
Background
Sections 1832 and 1833 of the NDAA 2017 authorized the SBA's OHA to
determine protests and appeals related to inclusion in the CVE
database. In order to implement these sections, this proposed rule
would amend OHA's jurisdiction at subparts A and B of 13 CFR part 134
to include protests of eligibility for inclusion in the CVE database
and appeals of denials and cancellations of inclusion in the CVE
database. In addition, the proposed rule would create a new subpart J
in 13 CFR part 134 to set out detailed rules of practice for protests
of eligibility for inclusion in the VA CVE database, and a new subpart
K to set out detailed rules of practice for appeals of denials and
cancellations of verification for inclusion in the VA's CVE database.
Section-by-Section Analysis
A. 13 CFR Part 134 Subparts A and B
SBA proposes to amend Sec. 134.102, the rules for establishing OHA
jurisdiction, to add protests of eligibility for inclusion in the CVE
database and appeals of denials and cancellations of inclusion in the
CVE database, as two new types of proceedings over which OHA would have
jurisdiction. New Sec. 134.102(u) would allow for protests of
eligibility for inclusion in the CVE database. New Sec. 134.102(v)
would allow for appeals of denials and cancellations of inclusion in
the CVE database.
SBA also proposes to amend Sec. 134.201(b) by adding new
paragraphs (8) and (9) to include protests of eligibility for inclusion
in the CVE database and appeals of denials and cancellations of
inclusion in the CVE database. As a result of these new paragraphs,
existing Sec. 134.201(b)(8) would be redesignated as Sec.
134.201(b)(10).
B. 13 CFR Part 134, Subpart J
SBA proposes to add new subpart J, consisting of Sec. Sec.
134.1001-1013, in order to conform OHA's rules of practice for protests
of eligibility for inclusion in the CVE database (CVE Protests). As a
result, the new rules of practice for protests of eligibility for
inclusion in the CVE database would mirror SBA's existing rules for
protests of service-disabled veteran owned small businesses, found in
13 CFR part 125 subpart D.
Proposed Sec. 134.1001(b) states that the provisions of subparts A
and B also apply to protests of eligibility for inclusion in the CVE
database. Section 134.1001(c) adds that the protest procedures are
separate from those governing Service-Disabled Veteran-Owned Small
Business Concern (SDVO SBC) protests for non-VA procurements, which are
subject to 13 CFR part 125. Section 134.1001(d) states that protests of
a concern's eligibility for a non-VA procurement as an SDVO SBC are
governed by 13 CFR part 125. In addition, Sec. 134.1001(e) specifies
that appeals that relate to a determination made by the SBA's Director,
Office of Government Contracting (D/GC) are governed by subpart E of 13
CFR part 125.
As proposed in Sec. 134.1002, the Secretary of the VA, or his/her
designee, as well as the Contracting Officer (CO) or an offeror in a VA
procurement awarded to a small business may file a CVE Protest. A
protesting offeror need not be the offeror next in line for award.
Section 134.1003 establishes the grounds for filing a CVE Protest
as status, and ownership and control. Paragraph (c) requires the Judge
to determine a protested concern's eligibility for inclusion in the CVE
as of the date the protest was filed.
Section 134.1004(a) establishes the deadlines for filing a CVE
Protest, which is at any time for the Secretary of the VA and any time
during the life of a contract for the CO. Paragraph (a)(2)(i) instructs
that an offeror must file its protest within five days of being
notified of the identity of the apparent awardee. Paragraphs (a)(3) and
(4) indicate the rule for counting days and that any untimely protest
will be dismissed. Paragraph (b) describes the methods for filing a CVE
Protest by interested parties. A CVE Protest brought by an offeror is
filed with the CO, who then forwards the protest to OHA.
[[Page 45213]]
Section 134.1005 specifies the contents that every CVE Protest must
have. Paragraph (b) would require a protective order be requested
within five days of a protest being filed.
Section 134.1006 would apply the servicing and filing requirements
found at Sec. 134.204.
Section 134.1007 would establish the process of CVE Protests as
follows: Paragraph (a) would require OHA to issue a notice and order if
the protest is found to be timely, specific, and based on protectable
allegations; paragraph (b) would require dismissal of a protest if the
Judge determines the protest to be premature, untimely, nonspecific, or
based on non-protestable allegations; paragraph (c) would require the
Director of the CVE (D/CVE) to send the case file to OHA by the
deadline specified in the notice and order; paragraph (d) describes the
process for requesting a protective order; paragraph (e) allows for
supplemental arguments after a protester reviews the CVE case file;
paragraph (f) allows for a response to a protest within 15 days of the
date the protest was filed; and paragraph (g) would require the Judge
to base the decision on the case file and information provided by the
parties or information requested by the Judge. The Judge may also
investigate issues beyond those raised by the parties. Paragraph (h)
proposes to allow a CO to award the contract after a protest is filed
but before a decision is reached if the CO determines the public
interest will be protected and notifies the Judge of his/her decision;
paragraph (i) would require OHA to serve all parties with the decision,
which would be considered a final agency decision; finally, paragraph
(j) stipulates the effects of the decision upon the protested concern
and the contract at issue.
Section 134.1008 prohibits discovery in CVE Protest proceedings.
Section 134.1009 allows for oral hearings only in extraordinary
circumstances, as found by the Judge, and establishes that if a hearing
is allowed, it would be conducted in accordance with the rules of
practice in subpart B of Part 134.
Section 134.1010 establishes the standard of review as
preponderance of the evidence, in which the burden of proof falls on
the protested firm, not the protester.
Section 134.1011 specifies that the Judge will give greater weight
to specific, signed, factual evidence than to unsupported allegations
and opinions, and provides that the Judge may draw an adverse inference
from failure to produce relevant information.
Section 134.1012 applies the provisions of Sec. 134.225 where
relevant.
Under Sec. 134.1013, there will be no appeal of OHA's decision on
a CVE Protest. However, paragraph (a) allows for the Judge to
reconsider a CVE Protest decision if a party to the proceeding files a
petition for reconsideration within twenty (20) calendar days after
issuance 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.
Paragraph (b) states that if the Judge reverses the initial decision on
reconsideration, the CO must comply with Sec. 134.1007(j) in applying
the new decision's results.
C. 13 CFR Part 134, Subpart K
The rule proposes a new subpart K to cover the procedures for
filing appeals of denials and cancellations of verification for
inclusion in the VA CVE database (CVE Appeals). Section 134.1101 states
that the provisions of subparts A and B also apply to CVE Appeals.
Section 134.1101(c) adds that the appeal procedures for CVE Appeals are
separate from those governing SDVO SBC status appeals based on D/GC
determinations, which are subject to 13 CFR 134 subpart E. Paragraph
(d) states that protests of a concern's eligibility for inclusion in
the VA's CVE database are governed by 13 CFR 134 subpart J.
Section 134.1102 establishes standing to file a CVE Appeal upon a
concern that has been denied verification of its CVE status or had its
CVE status cancelled.
Section 134.1103 permits CVE Appeals to OHA as long as the denial
or cancellation was not based on the concern's failure to meet any
veteran or service-disabled veteran eligibility criteria.
Section 134.1104 requires CVE Appeals to be filed within 10
business days of being notified that the CVE status has been denied or
cancelled. Paragraph (b) establishes the rules for counting days as
those in Sec. 134.202(d). Paragraph (c) requires OHA to dismiss any
untimely appeal.
Section 134.1105(a) requires the appeal petition to include a copy
of the denial or cancellation, a statement as to why the cancellation
or denial is in error, any information the appellant believes the Judge
should consider, and the name, address, telephone number, facsimile
number, and signature of appellant or its attorney. Paragraph (b)
requires that the appellant serve copies of the appeal upon the D/CVE
and VA counsel. Paragraph (c) requires all appeal petitions to include
a certificate of service that meets the requirements of Sec.
134.204(d). Paragraph (d) allows the Judge to dismiss appeal petitions
that do not meet all the requirements of Sec. 134.1105.
Section 134.1106 applies the provisions in Sec. 134.204 regarding
the service and filing requirements of all pleadings and submissions
allowed under 13 CFR part 134, subpart K.
Section 134.1107 requires the D/CVE to send OHA the entire case
file relating to the denial or cancellation, by the deadline specified
in the notice and order. The case file must be authenticated and
certified that it is the true and correct copy of the case file, to the
best knowledge of the D/CVE.
Section 134.1108 would permit a response to the appeal petition.
Paragraph (a) allows the D/CVE, or his/her designee, or VA counsel, to
respond to the appeal. Paragraph (b) establishes the close of record as
15 days after the Judge issues a notice and order informing all parties
of the filing of the appeal. The notice and order would establish the
date all responses to the appeal petition would be due. Paragraph (c)
requires all respondents to serve their response upon all parties
identified in the certificate of service attached to the appeal
petition, as required by Sec. 134.1105. Paragraph (d) prevents a reply
to a response, unless allowed by the Judge.
Section 134.1109 does not allow for discovery or oral hearings in
CVE Appeals.
Section 134.1110 prevents new evidence in CVE Appeals, unless good
cause is shown.
Under Sec. 134.1111, the standard of review for CVE Appeals would
be whether the denial or cancellation by the D/CVE was based on clear
error of fact or law, which the appellant would have the burden of
proof.
Under Sec. 134.1112(a), the Judge will decide a CVE Appeal, if
practicable, within 60 calendar days after the close of record.
Paragraph (b) requires the decision to contain findings of fact and
conclusions of law, and any reasons for those findings and conclusions,
and any relief so ordered. Paragraph (c) requires decisions to be based
primarily on the evidence in the CVE case file, and arguments made
during the appeal process. The Judge will, however, have the ability to
consider issues that are beyond those raised by any pleading or in the
denial or cancellation letter. Paragraph (d) establishes a Judge's
decision as the final agency decision, becoming effective immediately.
If OHA dismisses an appeal of a D/CVE denial or cancellation, the D/CVE
determination remains in effect.
[[Page 45214]]
Paragraph (e) requires OHA to serve a copy of the decision on all
parties, or their counsel if represented. Paragraph (f) stipulates that
if the appeal is granted and the appellant is found eligible for
inclusion in the CVE database, the D/CVE must reinstate or include the
appellant in the CVE database immediately. Paragraph (g) allows any
party that has appeared in the proceeding, or the Secretary of VA or
his or her designee, to file a petition for reconsideration. The
petition must be filed within twenty (20) calendar 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.
Compliance With Executive Orders 12866, 12988, 13132, 13771, and the
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory
Flexibility Act (5 U.S.C. 601-612)
Executive Order 12866
OMB has determined that this rule does not constitute a
``significant regulatory action'' under Executive Order 12866. This
rule is also not a major rule under the Congressional Review Act, 5
U.S.C. 800. This proposed rule would amend the rules of practice for
the SBA's OHA in order to implement procedures for protests of
eligibility for inclusion in the CVE database and appeals of denials
and cancellations of inclusion in the CVE database. As such, the rule
has no effect on the amount or dollar value of any Federal contract
requirements or of any financial assistance provided through SBA or VA.
Therefore, the rule is not likely to have an annual economic effect of
$100 million or more, result in a major increase in costs or prices, or
have a significant adverse effect on competition or the United States
economy. In addition, this rule does not create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency, materially alter the budgetary impact of entitlements, grants,
user fees, loan programs or the rights and obligations of such
recipients, nor raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Executive Order 12988
This action meets applicable standards set forth in section 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.
Executive Order 13132
This rule does not have Federalism implications as defined in
Executive Order 13132. It will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in the Executive Order. As
such it does not warrant the preparation of a Federalism Assessment.
Executive Order 13771
This proposed rule is not expected to be an Executive Order 13771
regulatory action because this proposed rule is not significant under
Executive Order 12866.
Paperwork Reduction Act
The SBA has determined that this rule does not impose additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act, 44 U.S.C. Chapter 35.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C.
601-612, requires Federal agencies to prepare an initial regulatory
flexibility analysis (IRFA) to consider the potential impact of the
regulations on small entities. Small entities include small businesses,
small not-for-profit organizations, and small governmental
jurisdictions. Section 605 of the RFA allows an agency to certify a
rule, in lieu of preparing an IRFA, if the rulemaking is not expected
to have a significant economic impact on a substantial number of small
entities.
This proposed rule would revise the regulations governing cases
before SBA's Office of Hearings and Appeals (OHA), SBA's administrative
tribunal. These regulations are procedural by nature. Specifically, the
proposed rule would establish rules of practice for the SBA's OHA in
order to implement protests of eligibility for inclusion in the CVE
database and appeals of denials and cancellations of inclusion in the
CVE database, new types of administrative litigation mandated by
sections 1832 and 1833 of the National Defense Authorization Act for
Fiscal Year 2017. This legislation provides a new statutory right to
challenge eligibility for inclusion in the CVE database, as well as
denials and cancellation of inclusion in the CVE database. This
proposed rule merely provides the rules of practice at OHA for the
orderly hearing and disposition of CVE database inclusion protests and
denials and cancellations of CVE database inclusion. While SBA does not
anticipate that this proposed rule would have a significant economic
impact on any small business, we do welcome comments from any small
business setting out how and to what degree this proposed rule would
affect it economically. Therefore, the Administrator of SBA certifies
under 5 U.S.C. 605(b) that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
List of Subjects in 13 CFR Part 134
Administrative practice and procedure, Claims, Equal access to
justice, Lawyers, Organization and functions (government agencies).
For the reasons stated in the preamble, SBA proposes to amend 13
CFR part 134 as follows:
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF
HEARINGS AND APPEALS
0
1. The authority citation for part 134 is revised to read as follows:
Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i),
637(a), 648(l), 656(i), and 687(c); 38 U.S.C. 8127(f); E.O. 12549,
51 FR 6370, 3 CFR, 1986 Comp., p. 189.
0
2. Amend Sec. 134.102 by adding paragraphs (u) and (v) to read as
follows:
Sec. 134.102 Jurisdiction of OHA.
* * * * *
(u) Protests of eligibility for inclusion in the Department of
Veterans Affairs Center for Verification and Evaluation (CVE) database;
(v) Appeals of denials and cancellations of inclusion in the CVE
database.
0
3. Amend Sec. 134.201 by:
0
a. Removing the word ``and'' in paragraph (b)(7);
0
b. Redesignating paragraph (b)(8) as paragraph (b)(10);
0
c. Adding new paragraphs (b)(8) and (b)(9).
The additions read as follows:
Sec. 134.201 Scope of the rules in this Subpart B.
* * * * *
(b) * * *
(8) For protests of eligibility for inclusion in the Center for
Verification and Evaluation (CVE) database, in subpart J of this part;
(9) For appeals of denials and cancellations of inclusion in the
CVE database, in subpart K of this part; and
* * * * *
[[Page 45215]]
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4. Add subpart J to read as follows:
Subpart J--Rules of Practice for Protests of Eligibility for Inclusion
in the U.S. Department of Veterans Affairs (VA) Center for Verification
and Evaluation (CVE) Database (CVE Protests)
Sec.
134.1001 Scope of rules.
134.1002 Who may file a CVE Protest?
134.1003 Grounds for filing a CVE Protest.
134.1004 Commencement of CVE Protests.
134.1005 Contents of the CVE Protest.
134.1006 Service and filing requirements.
134.1007 Processing a CVE Protest.
134.1008 Discovery.
134.1009 Oral hearings.
134.1010 Standard of review and burden of proof.
134.1011 Weight of evidence.
134.1012 The record.
134.1013 Request for reconsideration.
Authority: 38 U.S.C. 8127(f)(8)(B).
Subpart J--Rules of Practice for Protests of Eligibility for
Inclusion in the U.S. Department of Veterans Affairs (VA) Center
for Verification and Evaluation (CVE) Database (CVE Protests)
Sec. 134.1001 Scope of rules.
(a) The rules of practice in this subpart J apply to Department of
Veterans Affairs (VA) Center for Verification and Evaluation protests
(CVE Protests).
(b) Except where inconsistent with this subpart, the provisions of
subparts A and B of this part apply to protests listed in paragraph (a)
of this section.
(c) The protest procedures described in this subpart are separate
from those governing protests and appeals of a concern's size or status
as a Service-Disabled Veteran-Owned Small Business Concern (SDVO SBC)
for a non-Department of Veterans Affairs (non-VA) procurement. All
protests relating to whether a veteran-owned concern is a ``small''
business for purposes of any Federal program are subject to part 121 of
this chapter and must be filed in accordance with that part. If a
protester protests both the size of the concern and the concern's
eligibility for the CVE database, SBA will process each protest
concurrently. All protests relating to a concern's status as a SDVO SBC
for a non-VA procurement are subject to part 125 of this chapter and
must be filed in accordance with that part. SBA does not review issues
concerning contract administration.
(d) Protests of a concern's eligibility for a non-VA procurement as
a SDVO SBC are governed by 13 CFR part 125 subpart D.
(e) Appeals relating to determinations made by SBA's Director,
Office of Government Contracting regarding SDVO SBC status are governed
by subpart E of this part.
(f) Appeals of denials and cancellations of verification for
inclusion in the CVE database are governed by subpart K of this part.
Sec. 134.1002 Who may file a CVE Protest?
A CVE Protest may be filed by:
(a) The Secretary of the VA, or his/her designee; or
(b) In the case of a small business that is awarded a contract for
a VA procurement, the contracting officer or an offeror.
Sec. 134.1003 Grounds for filing a CVE Protest.
(a) Status. In cases where the protest is based on service-
connected disability, permanent and severe disability, or veteran
status, the Judge will only consider a protest that presents specific
allegations supporting the contention that the owner(s) cannot provide
documentation from the VA, Department of Defense, or the U.S. National
Archives and Records Administration to show that they meet the
definition of veteran, service-disabled veteran, or service-disabled
veteran with a permanent and severe disability.
(b) Ownership and control. In cases where the protest is based on
ownership and control, the Judge will consider a protest only if the
protester presents credible evidence that the concern is not 51% owned
and controlled by one or more veterans or service-disabled veterans.
(c) Date for Determining Eligibility. The Judge will determine a
protested concern's eligibility for inclusion in the CVE database as of
the date the protest was filed.
Sec. 134.1004 Commencement of CVE Protests.
(a) Timeliness. (1) The Secretary of the VA, or his/her designee,
may file a CVE Protest at any time.
(2) Where the CVE Protest is in connection with a VA procurement:
(i) An offeror must file a CVE Protest within five business days of
notification of the apparent awardee's identity.
(ii) A contracting officer may file a CVE Protest at any time
during the life of the VA contract.
(3) The rule for counting days is in Sec. 134.202(d).
(4) An untimely protest will be dismissed.
(b) Filing. (1) Private Parties. Interested parties, other than the
contracting officer or Secretary of the VA or his/her designee, must
deliver their CVE Protests in person, by email, by facsimile, by
express delivery service, or by U.S. mail (postmarked within the
applicable time period) to the contracting officer.
(2) Referral to OHA. The contracting officer must forward to OHA
any non-premature CVE Protest received, notwithstanding whether he/she
believes it is sufficiently specific or timely. The contracting officer
must send all CVE Protests, along with a referral letter, directly to
OHA, addressed to Office of Hearings and Appeals, U.S. Small Business
Administration, 409 Third Street SW., Washington, DC 20416, by email at
OHAfilings@sba.gov, or by facsimile to (202) 205-6390, marked Attn: CVE
Protest. The referral letter must include information pertaining to the
solicitation that may be necessary for OHA to determine timeliness and
standing, including:
(i) The solicitation number;
(ii) The name, address, telephone number, email address, and
facsimile number of the contracting officer;
(iii) Whether the contract was sole source or set-aside;
(iv) Whether the protester submitted an offer;
(v) Whether the protested concern was the apparent successful
offeror;
(vi) Whether the procurement was conducted using sealed bid or
negotiated procedures;
(vii) The bid opening date, if applicable;
(viii) When the protest was submitted to the contracting officer;
(ix) When the protester received notification about the apparent
successful offeror, if applicable; and
(x) Whether a contract has been awarded.
(3) Protests filed by Secretary of the VA. The Secretary of VA or
his/her designee must submit his/her CVE Protest directly to OHA in
accordance with the procedures in Sec. 134.204.
(4) Protests filed by a contracting officer. The contracting
officer must submit his/her CVE Protest directly to OHA in accordance
with the procedures in Sec. 134.204. The protest should include the
information set forth in the referral letter in Paragraph (2).
Sec. 134.1005 Contents of the CVE Protest.
(a) CVE Protests must be in writing. There is no required format
for a CVE Protest, but it must include the following:
(1) The solicitation or contract number, if applicable;
(2) Specific allegations supported by credible evidence that the
concern does not meet the eligibility requirements for
[[Page 45216]]
inclusion in the CVE database, listed in Sec. 134,1003;
(3) Any other pertinent information the Judge should consider; and
(4) The name, address, telephone number, and email address or
facsimile number, if available, and signature of the protester or its
attorney.
(b) If the protester intends to seek access to the CVE case file
under Sec. 134.205, the protester should include in its protest a
request for a protective order. Unless good cause is shown, a protester
must request a protective order within five days of filing the protest.
Sec. 134.1006 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.
Sec. 134.1007 Processing a CVE Protest.
(a) Notice and order. If the Judge determines that the protest is
timely, sufficiently specific, and based upon protestable allegations,
the Judge will issue a notice and order, notifying the protester, the
protested concern, the Director, CVE (D/CVE), VA Counsel, and, if
applicable, the contracting officer of the date OHA received the
protest and ordering a due date for responses.
(b) Dismissal of protest. If the Judge determines that the protest
is premature, untimely, nonspecific, or is based on non-protestable
allegations, the Judge will dismiss the protest and will send the
contracting officer, D/CVE, and the protester a notice of dismissal,
citing the reason(s) for the dismissal. The dismissal is a final agency
action.
(c) Transmission of the case file. Upon receipt of a notice and
order, the D/CVE must deliver to OHA the entire case file relating to
the protested concern's inclusion in the CVE database. The notice and
order will establish the timetable for transmitting the case file to
OHA. The D/CVE must certify and authenticate that the case file, to the
best of his/her knowledge, is a true and correct copy of the case file.
(d) Protective order. A protester seeking access to the CVE case
file must file a timely request for a protective order under Sec.
134.205. Except for good cause, a protester must request a protective
order within five days of filing the protest. Even after issuance of a
protective order, OHA will not disclose income tax returns or
privileged information.
(e) Supplemental allegations. If, after viewing documents in the
CVE case file for the first time under a protective order, a protester
wishes to supplement its protest with additional argument, the
protester may do so. Any such supplement is due at OHA no later than 15
days from the date the protester receives or reviews the CVE case file.
(f) Response. (1) The protested concern, the D/CVE, the contracting
officer, and any other interested party may respond to the protest and
supplemental protest, if one is filed. The response is due no later
than 15 days from the date the protest or supplemental protest was
filed with OHA. The record closes the date the final response is due.
(2) Service. The respondent must serve its response upon the
protester or its counsel and upon each of the persons identified in the
certificate of service attached to the notice and order or, if a
protective order is issued, in accordance with the terms of the
protective order.
(3) Reply to a response. No reply to a response will be permitted
unless the Judge directs otherwise.
(g) Basis for decision. The decision will be based primarily on the
case file and information provided by the protester, the protested
concern, and any other parties. However, the Judge may investigate
issues beyond those raised in the protest and may use other information
or make requests for additional information to the protester, the
protested concern, or VA.
(h) Award of contract. The contracting officer may award a contract
during the period between the date he/she receives a protest and the
date the Judge issues a decision only if the contracting officer
determines that an award must be made to protect the public interest
and notifies the Judge in writing of any such determination.
Notwithstanding such a determination, the provisions of paragraph (j)
of this section shall apply to the procurement in question.
(i) The decision. OHA will serve a copy of the written decision on
each party, or, if represented by counsel, on its counsel. The decision
is considered the final agency action, and it becomes effective upon
issuance.
(j) Effect of decision. (1) A contracting officer may award a
contract to a protested concern after the Judge has determined either
that the protested concern is eligible for inclusion in the CVE
database or has dismissed all protests against it.
(2) A contracting officer shall not award a contract to a protested
concern that the Judge has determined is not eligible for inclusion in
the CVE database. If the contracting officer has already made an award
under paragraph (h) of this section, the contracting officer shall
either terminate the contract or not exercise the next option.
(3) The contracting officer must update the Federal Procurement
Data System and other procurement reporting databases to reflect the
Judge's decision.
(4) If the Judge finds the protested concern ineligible for
inclusion in the CVE database, D/CVE must immediately remove the
protested concern from the CVE database.
(5) A concern found to be ineligible may not submit an offer on a
future VA procurement until the protested concern reapplies to the
Vendor Information Pages Verification Program and has been reentered
into the CVE database.
Sec. 134.1008 Discovery.
Discovery will not be permitted in CVE Protest proceedings.
Sec. 134.1009 Oral hearings.
Oral hearings will be held in CVE Protest proceedings 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.
Sec. 134.1010 Standard of review and burden of proof.
The protested concern has the burden of proving its eligibility, by
a preponderance of the evidence.
Sec. 134.1011 Weight of evidence.
The Judge will give greater weight to specific, signed, factual
evidence than to general, unsupported allegations or opinions. In the
case of refusal or failure to furnish requested information within a
required time period, the Judge may assume that disclosure would be
contrary to the interests of the party failing to make disclosure.
Sec. 134.1012 The record.
Where relevant, the provisions of Sec. 134.225 apply. In a protest
under this subpart, the contents of the record also include the case
file or solicitation submitted to OHA in accordance with Sec.
134.1007.
Sec. 134.1013 Request for Reconsideration.
The decision on a CVE Protest may not be appealed. However:
(a) The Judge may reconsider a CVE Protest decision. Any party that
has appeared in the proceeding, or the Secretary of VA or his/her
designee, may request reconsideration by filing with OHA and serving a
petition for reconsideration on all the parties to the CVE Protest
within twenty (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
[[Page 45217]]
decision. The Judge may also reconsider a decision on his or her own
initiative.
(b) If the Judge reverses his or her initial decision on
reconsideration, the contracting officer must follow Sec. 134.1007(j)
in applying the new decision's results.
0
5. Add subpart K to read as follows:
Subpart K--Rules of Practice for Appeals of Denials and Cancellations
of Verification for Inclusion in the U.S. Department of Veterans
Affairs (VA) Center for Verification and Evaluation (CVE) Database (CVE
Appeals)
Sec.
134.1101 Scope of rules.
134.1102 Who may file a CVE Appeal?
134.1103 Grounds for filing a CVE Appeal.
134.1104 Commencement of CVE Appeals.
134.1105 The appeal petition.
134.1106 Service and filing requirements.
134.1107 Transmission of the case file.
134.1108 Response to an appeal petition.
134.1109 Discovery and oral hearings.
134.1110 New evidence.
134.1111 Standard of review and burden of proof.
134.1112 The decision.
Authority: 38 U.S.C. 8127(f)(8)(A).
Subpart K--Rules of Practice for Appeals of Denials and
Cancellations of Verification for Inclusion in the U.S. Department
of Veterans Affairs (VA) Center for Verification and Evaluation
(CVE) Database (CVE Appeals)
Sec. 134.1101 Scope of rules.
(a) The rules of practice in this subpart K apply to appeals of
denials and cancellations of verification for inclusion in the U.S.
Department of Veterans Affairs Center for Verification and Evaluation
Database (CVE Appeals).
(b) Except where inconsistent with this subpart, the provisions of
subparts A and B of this part apply to appeals listed in paragraph (a)
of this section.
(c) Appeals relating to determinations made by SBA's Director,
Office of Government Contracting regarding Service-Disabled Veteran-
Owned Small Business Concern (SDVO SBC) status are governed by subpart
E of this part.
(d) Protests of a concern's eligibility for inclusion in the VA's
CVE database are governed by subpart J of this part.
Sec. 134.1102 Who may file a CVE Appeal?
A concern that has been denied verification of its CVE status or
has had its CVE status cancelled may appeal the denial or cancellation
to OHA.
Sec. 134.1103 Grounds for filing a CVE Appeal.
Denials and cancellations of verification of CVE status may be
appealed to OHA, so long as the denial or cancellation is not based on
the failure to meet any veteran or service-disabled veteran eligibility
criteria. Such denials and cancellations are final VA decisions and not
subject to appeal to OHA.
Sec. 134.1104 Commencement of CVE Appeals.
(a) A concern whose application for CVE verification has been
denied or whose CVE status has been cancelled must file its appeal
within 10 business days of receipt of the denial or cancellation.
(b) The rule for counting days is in Sec. 134.202(d).
(c) OHA will dismiss an untimely appeal.
Sec. 134.1105 The appeal petition.
(a) Format. CVE Appeals must be in writing. There is no required
format for an appeal petition; however, it must include the following:
(1) A copy of the denial or cancellation and the date the appellant
received it;
(2) A statement of why the cancellation or denial is in error;
(3) Any other pertinent information the Judge should consider; and
(4) The name, address, telephone number, and email address or
facsimile number, if available, and signature of the appellant or its
attorney.
(b) Service. The appellant must serve copies of the entire appeal
petition upon the Director, Center for Verification and Evaluation (D/
CVE) and VA Counsel at CVEAppealsService@va.gov.
(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).
(d) Dismissal. An appeal petition that does not meet all the
requirements of this section may be dismissed by the Judge at his/her
own initiative or upon motion of a respondent.
Sec. 134.1106 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.
Sec. 134.1107 Transmission of the case file.
Once a CVE Appeal is filed, the D/CVE must deliver to OHA the
entire case file relating to the denial or cancellation. The Judge will
issue a notice and order establishing the timetable for transmitting
the case file to OHA. The D/CVE must certify and authenticate that the
case file, to the best of his/her knowledge, is a true and correct copy
of the case file.
Sec. 134.1108 Response to an appeal petition.
(a) Who may respond. The D/CVE or his/her designee or counsel for
VA may respond to the CVE Appeal. The response should present arguments
to the issues presented on appeal.
(b) Time limits. The notice and order will inform the parties of
the filing of the appeal petition, establish the close of record as 15
days after service of the notice and order, and inform 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 Sec. 134.1105.
(d) Reply to a response. No reply to a response will be permitted
unless the Judge directs otherwise.
Sec. 134.1109 Discovery and oral hearings.
Discovery will not be permitted and oral hearings will not be held.
Sec. 134.1110 New evidence.
Except for good cause shown, evidence beyond the case file will not
be admitted.
Sec. 134.1111 Standard of review and burden of proof.
The standard of review is whether the D/CVE denial or cancellation
was based on clear error of fact or law. The appellant has the burden
of proof, by a preponderance of the evidence.
Sec. 134.1112 The decision.
(a) Timing. The Judge shall decide a CVE Appeal, insofar as
practicable, within 60 calendar days after close of the record.
(b) 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.
(c) Basis for decision. Decisions under this part will be based
primarily on the evidence in the CVE case file, arguments made on
appeal, and any response(s) thereto. However, the Judge, in his/her
sole discretion, may consider issues beyond those raised in the
pleadings and the denial or cancellation letter.
(d) Finality. The decision is the final agency decision and becomes
effective upon issuance. Where OHA dismisses an appeal of a D/CVE
denial or cancellation, the D/CVE determination remains in effect.
(e) Service. OHA will serve a copy of all written decisions on each
party, or, if represented by counsel, on its counsel.
[[Page 45218]]
(f) Effect. If the Judge grants the appeal and finds the appellant
eligible for inclusion in the CVE database, the D/CVE must immediately
reinstate or include the appellant, as the case may be, in the CVE
database.
(g) Reconsideration. A decision of the Judge may be reconsidered.
Any party that has appeared in the proceeding, or the Secretary of VA
or his or her designee, may request reconsideration by filing with OHA
and serving a petition for reconsideration on all parties to the CVE
Appeal within twenty (20) calendar 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.
Linda E. McMahon,
Administrator.
[FR Doc. 2017-20384 Filed 9-27-17; 8:45 am]
BILLING CODE 8025-01-P
