HUBZone Appeal Process, 76585-76589 [2022-26873]
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76585
Proposed Rules
Federal Register
Vol. 87, No. 240
Thursday, December 15, 2022
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 126 and 134
RIN 3245–AH88
HUBZone Appeal Process
The U.S. Small Business
Administration (SBA) proposes to
amend the rules of practice of its Office
of Hearings and Appeals (OHA) and the
Historically Underutilized Business
Zone (HUBZone) Program. Specifically,
SBA proposes to implement procedures
authorizing appeals to OHA from
protest determinations regarding the
status of a concern as a certified
HUBZone small business concern.
These amendments are issued in
accordance with provisions of the
National Defense Authorization Act for
Fiscal Year 2022.
DATES: Comments will be accepted until
January 17, 2023.
ADDRESSES: You may submit comments,
identified by RIN 3245–AH88, by any of
the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov and follow
the instructions for submitting
comments.
• Mail (for paper, disk, or CD–ROM
submissions): Laura Maas, HUBZone
Program, 409 Third Street SW,
Washington, DC 20416.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. All comments received will
be posted on https://
www.regulations.gov. If you wish to
submit confidential business
information (CBI) as defined in the User
Notice at https://www.regulations.gov,
please submit the comments to
laura.maas@sba.gov and highlight the
information that you consider to be CBI
and explain why you believe this
information should be held confidential.
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FOR FURTHER INFORMATION CONTACT:
Laura Maas, HUBZone Program, 202–
205–7341, laura.maas@sba.gov. This
phone number may also be reached by
individuals who are deaf or hard of
hearing, or who have speech
disabilities, through the Federal
Communications Commission’s TTYBased Telecommunications Relay
Service teletype service at 711.
SUPPLEMENTARY INFORMATION:
U.S. Small Business
Administration.
ACTION: Proposed rule.
AGENCY:
SUMMARY:
SBA will make a final determination as
to whether the comments will be
published or not.
Section 864 of the National Defense
Authorization Act for Fiscal Year 2022
(NDAA 2022) authorizes SBA’s Office of
Hearings and Appeals (OHA) to decide
all appeals from HUBZone status protest
determinations, which are currently
decided by the Associate Administrator
of Government Contracting and
Business Development. Section 864
requires SBA to publish a rule
implementing this authority by
December 27, 2022. To implement this
statutory requirement, this proposed
rule would revise the HUBZone
regulations at 13 CFR 126.805 to specify
that HUBZone appeals are processed by
OHA in accordance with the procedures
in part 134. This proposed rule would
amend the regulations pertaining to
OHA’s jurisdiction at subparts A and B
of 13 CFR part 134 to include appeals
from HUBZone status protest
determinations. Finally, the proposed
rule would create a new subpart M in
13 CFR part 134 to set out the rules of
practice for appeals from HUBZone
status protest determinations.
Section-By-Section Analysis
A. Section 126.103
SBA proposes to amend the HUBZone
regulations at § 126.103 by deleting the
definition for ‘‘AA/GC&BD.’’ The only
references to this role in the HUBZone
regulations are in relation to HUBZone
status protest appeals, and the AA/
GCBD will no longer have this
responsibility.
B. Sections 126.309, 126.803
SBA proposes to amend the HUBZone
regulations at §§ 126.309 and 126.803 to
change the references to appeal
decisions made by the AA/GCBD to
appeal decisions made by OHA.
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C. Section 126.805
SBA proposes to revise § 126.805,
which addresses the procedures for
appeals of HUBZone status protest
determinations, to provide that such
appeals may be filed in accordance with
part 134 of title 13 of the Code of
Federal Regulations.
D. 13 CFR Part 134 Subparts A and B
SBA proposes to amend § 134.102, the
rules for establishing OHA jurisdiction,
to add appeals from HUBZone status
protest determinations, as a new type of
proceeding over which OHA would
have jurisdiction. New § 134.102(x)
would allow OHA to hear appeals from
HUBZone determinations.
SBA also proposes to amend
§ 134.201(b) by adding a new paragraph
(10) to include appeals from HUBZone
status protest determinations. As a
result of this new paragraph, existing
§ 134.201(b)(10) would be redesignated
as § 134.201(b)(11).
E. 13 CFR Part 134 Subpart M
The rule proposes a new subpart M to
cover the procedures for filing appeals
of HUBZone status protest
determinations.
Proposed § 134.1301 would provide
that appeals under this new subpart
would include any of the grounds for a
HUBZone status protest specified in
§ 126.801 of the HUBZone regulations.
Paragraph (b) would state that the
provisions of subparts A and B of part
134 also apply to appeals of HUBZone
status protest determinations. Paragraph
(c) would state that appeals from
HUBZone status protest determinations
are separate from size determinations.
Proposed § 134.1302 would establish
standing to file an appeal from a
HUBZone status protest determination.
Proposed § 134.1303 would establish
timeliness for filing an appeal from a
HUBZone status protest determination.
SBA proposes that such appeals must be
filed within ten (10) business days after
the appellant receives the protest
determination.
Proposed § 134.1304 would provide
that if a timely appeal of a HUBZone
status protest determination is filed after
contract award, the contracting officer
must consider whether performance can
be suspended until an appellate
decision is rendered. This section
would also provide that where an
appeal is filed before contract award,
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the contracting officer must withhold
award until the appellate decision is
rendered, unless the contracting officer
has determined that award and
performance of the contract is in the
best interests of the government.
Proposed § 134.1305(a) would provide
that an appeal petition must include the
following: a copy of the protest
determination; the date the appellant
received the protest determination; a
statement that the petitioner is
appealing a HUBZone status protest
determination issued by the D/HUB; a
full and specific statement as to why the
HUBZone status protest determination
is alleged to be based on a clear error of
fact or law, together with argument
supporting such allegation; the
solicitation number, the contract
number (if applicable), and the name,
address, and telephone number of the
contracting officer; and the name,
address, telephone number, facsimile
number, and signature of the appellant
or its attorney. Paragraph (b) would
require that the appellant serve copies
of the appeal upon the D/HUB, the
contracting officer, protested concern or
the protester, and SBA’s Associate
General Counsel for Procurement Law.
Paragraph (c) would require all appeal
petitions to include a certificate of
service. Paragraph (d) would authorize
OHA to dismiss appeal petitions that do
not meet all the requirements of
§ 134.1305.
Proposed § 134.1306 would apply the
provisions in § 134.204, regarding the
service and filing requirements of all
pleadings and submissions.
Proposed § 134.1307 would require
the D/HUB to send OHA the entire case
file relating to the protest decision upon
receipt of the appeal petition.
Proposed § 134.1308 would provide
that the standard of review for an appeal
of a HUBZone status protest
determination is whether the D/HUB’s
determination was based on clear error
of fact or law, and that the appellant
bears the burden of proof by a
preponderance of the evidence.
Proposed § 134.1309 would provide
that an appeal from a HUBZone status
protest determination will be dismissed
if the appeal is untimely under
§ 134.1303, or if the matter has been
decided or is the subject of adjudication
before a court of competent jurisdiction
over such matters.
Proposed § 134.1310 would permit
responses to the appeal to be filed
within fifteen business days after
service of the appeal petition.
Proposed § 134.1311 would not allow
for discovery or oral hearings in appeals
from HUBZone status protest
determinations.
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Proposed § 134.1312 would prohibit
new evidence in appeals from HUBZone
status protest determinations.
Proposed § 134.1313 would provide
that the record for a HUBZone status
protest appeal will close when the time
to file a response to an appeal petition
expires.
Proposed § 134.1314 would provide
that OHA will decide an appeal within
45 calendar days after the close of
record.
Proposed § 134.1315 would provide
that OHA’s decision is the final agency
decision and would provide that the
effects of the decision on the
procurement at issue are explained in
13 CFR 126.803(e).
Proposed § 134.1316 would provide
that OHA may reconsider an appeal
decision within twenty (20) calendar
days after the decision is issued, or
OHA may remand a proceeding to the
D/HUB for a new HUBZone status
protest determination.
Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden. The action does not have
retroactive or preemptive effect.
Compliance With Executive Orders
12866, 12988, 13132, and the
Paperwork Reduction Act (44 U.S.C.
Ch. 35), the Regulatory Flexibility Act
(5 U.S.C. 601–612), the Congressional
Review Act (5 U.S.C. 801–808)
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 to hear appeals from
HUBZone status protest determinations.
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.
Executive Order 12866
The Office of Management and Budget
has determined that this rule is not a
‘‘significant regulatory action’’ under
Executive Order No. 12866. This
proposed rule would amend the rules of
practice for the SBA’s OHA to
implement procedures for appeals from
HUBZone status protest determinations.
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. 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
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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.
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.
Congressional Review Act, 5 U.S.C.
Ch. 8
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996, also known as the Congressional
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Review Act or CRA, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. SBA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States. A major rule under the CRA
cannot take effect until 60 days after it
is published in the Federal Register.
The Office of Information and
Regulatory Affairs has determined that
this rule is not a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2). Therefore, this rule
is not subject to the 60-day restriction.
List of Subjects
13 CFR Part 126
Administrative practice and
procedure, Government procurement,
Penalties, Reporting and recordkeeping
requirements, Small businesses.
13 CFR Part 134
Administrative practice and
procedure, Claims, Equal access to
justice, Lawyers, Organization and
function (Government agencies).
For the reasons set forth in the
preamble, SBA proposes to amend parts
126 and 134 of title 13 of the Code of
Federal Regulations as follows:
1. The authority citation for part 126
is revised to read as follows:
■
[Amended]
2. Amend § 126.103 by removing the
definition of ‘‘AA/GC&BD’’.
■
[Amended]
3. Amend § 126.309 by removing ‘‘(the
D/HUB’s decision if no appeal is filed
or the decision of the AA/GCBD)’’ and
adding in its place ‘‘(i.e., the D/HUB’s
decision if the protest determination is
not appealed, or OHA’s decision if the
protest determination is appealed)’’.
■ 4. Amend § 126.803 by:
■ a. In paragraph (e), revising the
introductory text;
■ b. In paragraph (e)(1)(ii)(B), removing
‘‘the AA/GCBD’’ and adding in its place
‘‘OHA’’;
■ c. In paragraph (e)(1)(iii), removing
‘‘(i.e., the D/HUB’s decision if no appeal
is filed, or the decision of the AA/GCBD
if the protest is appealed)’’ and adding
in its place ‘‘(i.e., the D/HUB’s decision
if the protest determination is not
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*
*
*
*
*
(e) * * * The determination is
effective immediately and is final,
unless overturned on appeal by SBA’s
Office of Hearings and Appeals (OHA)
pursuant to part 134 of this chapter.
*
*
*
*
*
■ 5. Revise § 126.805 to read as follows:
§ 126.805 What are the procedures for
appeals of HUBZone status protest
determinations?
The protested concern, the protester,
or the contracting officer may file an
appeal of a HUBZone status protest
determination with SBA’s Office of
Hearings and Appeals (OHA) in
accordance with part 134 of this
chapter.
6. The authority citation for part 134
is revised to read as follows:
■
Authority: 15 U.S.C. 632(a), 632(j), 632(p),
644 and 657a.
§ 126.309
§ 126.803 How will SBA process a
HUBZone status protest and what are the
possible outcomes?
PART 134—RULES OF PROCEDURE
GOVERNING CASES BEFORE THE
OFFICE OF HEARINGS AND APPEALS
PART 126—HUBZONE PROGRAM
§ 126.103
appealed, or OHA’s decision if the
protest determination is appealed)’’;
■ d. In paragraph (e)(2)(ii), removing
‘‘the AA/GCBD’’ and adding in its place
‘‘OHA’’; and
■ e. In paragraph (e)(3), removing ‘‘(the
D/HUB’s decision if no appeal is filed,
or the decision of the AA/GCBD if the
protest is appealed)’’ and adding in its
place ‘‘(i.e., the D/HUB’s decision if the
protest determination is not appealed,
or OHA’s decision if the protest
determination is appealed)’’.
The revision reads as follows:
Authority: 5 U.S.C. 504; 15 U.S.C. 632,
634(b)(6), 634(i), 637(a), 648(l), 656(i), 657a,
657t and 687(c); E.O. 12549, 51 FR 6370, 3
CFR, 1986 Comp., p. 189.
Subpart J issued under 15 U.S.C. 657f.
Subpart K issued under 15 U.S.C. 657f.
Subpart L issued under 15 U.S.C. 636(a)(36);
636(a)(37); 636m.
Subpart M issued under 15 U.S.C. 657a; Sec.
864, Pub. L. 117–81, 135 Stat. 1852 (15 U.S.C.
634 note).
7. Amend § 134.102 by:
a. Removing the word ‘‘and’’ at the
end of paragraph (v);
■ b. Removing the period at the end of
paragraph (w) and adding ‘‘; and’’ in its
place; and
■ c. Adding paragraph (x).
The addition reads as follows:
■
■
§ 134.102
Jurisdiction of OHA.
*
*
*
*
*
(x) Appeals from HUBZone status
protest determinations under part 126 of
this chapter.
■ 8. Amend § 134.201 by:
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76587
a. Removing the word ‘‘and’’ at the
end of paragraph (b)(9);
■ b. Redesignating paragraph (b)(10) as
paragraph (b)(11); and
■ c. Adding a new paragraph (b)(10).
The addition reads as follows:
■
§ 134.201
subpart.
Scope of the rules in this
*
*
*
*
*
(b) * * *
(10) For appeals of protest
determinations regarding the status of a
concern as a certified HUBZone small
business concern, in subpart M of this
part; and
*
*
*
*
*
■ 8. Add subpart M to read as follows:
Subpart M—Rules of Practice for
Appeals of Protest Determinations
Regarding the Status of a Concern as
a Certified HUBZone Small Business
Concern
Sec.
134.1301 What is the scope of the rules in
this subpart?
134.1302 Who may appeal a HUBZone
status protest determination?
134.1303 What time limits apply to filing
an appeal from a HUBZone status protest
determination?
134.1304 What are the effects of the filing
of an appeal on the procurement at
issue?
134.1305 What are the requirements for an
appeal petition?
134.1306 What are the service and filing
requirements?
134.1307 What are the requirements for
transmitting the protest file?
134.1308 What is the standard of review?
134.1309 When will a Judge dismiss an
appeal?
134.1310 Who can file a response to an
appeal petition and when must such a
response be filed?
134.1311 Will the Judge permit discovery
and oral hearings?
134.1312 What are the limitations on the
introduction of new evidence?
134.1313 When is the record closed?
134.1314 When must the Judge issue his or
her decision?
134.1315 What are the effects of the Judge’s
decision on the procurement at issue?
134.1316 Can a Judge reconsider an appeal
decision?
§ 134.1301 What is the scope of the rules
in this subpart?
(a) The rules of practice in this
subpart apply to all appeals to OHA
from formal protest determinations
made by the Director of SBA’s Office of
HUBZone (D/HUB) in connection with
a HUBZone status protest. Appeals
under this subpart include any of the
grounds for a HUBZone status protest
specified in § 126.801 of this chapter, as
well as appeals from determinations by
the D/HUB that the protest was
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premature, untimely, nonspecific, or not
based upon protestable allegations.
(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 formal size
determinations and NAICS Code
designations are governed by subpart C
of this part.
§ 134.1302 Who may appeal a HUBZone
status protest determination?
Appeals from HUBZone status 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.
§ 134.1303 What time limits apply to filing
an appeal from a HUBZone status protest
determination?
Appeals from a HUBZone status
protest determination must be
commenced by filing and serving an
appeal petition within ten (10) business
days after the appellant receives the
HUBZone status protest determination
(see § 134.204 for filing and service
requirements). OHA shall dismiss any
untimely appeal.
§ 134.1304 What are the effects of the
filing of an appeal on the procurement at
issue?
(a) If a timely appeal is filed after
contract award, the contracting officer
must consider whether performance can
be suspended until an appellate
decision is rendered.
(b) If a timely appeal is filed before
contract award, the contracting officer
must withhold award until the appellate
decision is rendered, unless the
contracting officer has determined that
award and performance of the contract
is in the best interests of the
government.
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§ 134.1305 What are the requirements for
an appeal petition?
(a) Format. An appeal from a
HUBZone status protest determination
must be in writing. There is no required
format for an appeal petition. However,
it must include the following
information:
(1) A copy of the protest
determination;
(2) The date the appellant received
the protest determination;
(3) A statement that the petitioner is
appealing a HUBZone status protest
determination issued by the D/HUB;
(4) A full and specific statement as to
why the HUBZone status protest
determination is alleged to be based on
a clear error of fact or law, together with
argument supporting such allegation;
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(5) The solicitation number, the
contract number (if applicable), and the
name, address, and telephone number of
the contracting officer; and
(6) The name, address, telephone
number, facsimile number, and
signature of the appellant or its attorney.
(b) Service of appeal. The appellant
must serve copies of the entire appeal
petition upon each of the following:
(1) The D/HUB at hzappeals@sba.gov;
(2) The contracting officer responsible
for the procurement affected by a
HUBZone determination;
(3) The protested concern (the
business concern whose HUBZone
status is at issue) or the protester; and
(4) SBA’s Office of General Counsel,
Associate General Counsel for
Procurement Law at OPLservice@
sba.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.
§ 134.1306 What are the 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, unless otherwise indicated
in this subpart.
§ 134.1307 What are the requirements for
transmitting the protest file?
Upon receipt of an appeal petition,
the D/HUB will send to OHA a copy of
the protest file relating to that
determination. The D/HUB 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.
§ 134.1308
What is the standard of review?
The standard of review for an appeal
of a HUBZone status protest
determination is whether the D/HUB’s
determination was based on clear error
of fact or law. The appellant has the
burden of proof, by a preponderance of
the evidence.
§ 134.1309
appeal?
When will a Judge dismiss an
The presiding Judge must dismiss the
appeal if:
(a) The appeal is untimely filed under
§ 134.1303;
(b) The appeal does not, on its face,
allege facts that if proven to be true,
warrant reversal or modification of the
determination; or
(c) The matter has been decided or is
the subject of adjudication before a
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court of competent jurisdiction over
such matters; however, once an appeal
has been filed, 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.
§ 134.1310 Who can file a response to an
appeal petition and when must such a
response be filed?
(a) Who may respond. 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. The
response should present arguments
related to the issues presented on
appeal.
(b) Time limits. If a person decides to
file a response, the response must be
filed within fifteen (15) business days
after service of the appeal petition.
(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
§ 134.1305.
(d) Reply to a response. No reply to
a response will be permitted unless the
Judge directs otherwise.
§ 134.1311 Will the Judge permit discovery
and oral hearings?
Discovery will not be permitted, and
oral hearings will not be held.
§ 134.1312 What are the limitations on the
introduction of 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.
§ 134.1313
When is the record closed?
The record will close when the time
to file a response to an appeal petition
expires pursuant to § 134.1310.
§ 134.1314 When must the Judge issue his
or her decision?
The Judge shall issue a decision,
insofar as practicable, within forty-five
(45) calendar days after close of the
record.
§ 134.1315 What are the effects of the
Judge’s decision on the procurement at
issue?
The Judge’s decision is the final
agency decision and becomes effective
upon issuance. For the effects of the
decision on the procurement at issue,
see § 126.803(e) of this chapter.
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§ 134.1316 Can a Judge reconsider an
appeal decision?
(a) Any party who has appeared in the
proceeding, or SBA, may request
reconsideration of the OHA appeal
decision by filing with the Judge and
serving a petition for reconsideration on
all the parties to the appeal 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
decision. The Judge may also reconsider
a decision on his or her own initiative,
within twenty (20) calendar days after
issuance of the written decision.
(b) The Judge may remand a
proceeding to the D/HUB for a new
HUBZone status protest determination if
the D/HUB 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
HUBZone status protest determination.
Isabella Casillas Guzman,
Administrator.
[FR Doc. 2022–26873 Filed 12–14–22; 8:45 am]
BILLING CODE 8026–09–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2022–1582; Project
Identifier MCAI–2022–01232–T]
RIN 2120–AA64
Airworthiness Directives; Airbus SAS
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
The FAA proposes to adopt a
new airworthiness directive (AD) for
certain Airbus SAS Model A350–941
and –1041 airplanes. This proposed AD
was prompted by an in-service
inspection that found overhead storage
compartment (OHSC) crash rods that
were disconnected. This proposed AD
would require a one-time detailed
inspection of the OHSC crash rods and,
depending on findings, corrective
actions, as specified in a European
Union Aviation Safety Agency (EASA)
AD, which is proposed for incorporation
by reference (IBR). The FAA is
proposing this AD to address the unsafe
condition on these products.
lotter on DSK11XQN23PROD with PROPOSALS1
SUMMARY:
VerDate Sep<11>2014
16:18 Dec 14, 2022
Jkt 259001
The FAA must receive comments
on this proposed AD by January 30,
2023.
DATES:
You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
regulations.gov. Follow the instructions
for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
AD Docket: You may examine the AD
docket at regulations.gov under Docket
No. FAA–2022–1582; or in person at
Docket Operations between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this NPRM, the mandatory
continuing airworthiness information
(MCAI), any comments received, and
other information. The street address for
Docket Operations is listed above.
Material Incorporated by Reference:
• For EASA material that is proposed
for IBR in this NPRM, contact EASA,
Konrad-Adenauer-Ufer 3, 50668
Cologne, Germany; telephone +49 221
8999 000; email ADs@easa.europa.eu;
website easa.europa.eu. You may find
this material on the EASA website at
ad.easa.europa.eu. It is also available at
regulations.gov under Docket No. FAA–
2022–1582.
• For Airbus service information
identified in this NPRM, contact Airbus
SAS, Airworthiness Office—EAL, RondPoint Emile Dewoitine No: 2, 31700
Blagnac Cedex, France; telephone +33 5
61 93 36 96; fax +33 5 61 93 45 80; email
continued-airworthiness.a350@
airbus.com; website airbus.com.
• You may view this service
information at the FAA, Airworthiness
Products Section, Operational Safety
Branch, 2200 South 216th St., Des
Moines, WA. For information on the
availability of this material at the FAA,
call 206–231–3195.
FOR FURTHER INFORMATION CONTACT: Dat
Le, Aerospace Engineer, Large Aircraft
Section, FAA, International Validation
Branch, 2200 South 216th St., Des
Moines, WA 98198; telephone 516–228–
7317; email Dat.V.Le@faa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Comments Invited
The FAA invites you to send any
written relevant data, views, or
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
76589
arguments about this proposal. Send
your comments to an address listed
under ADDRESSES. Include ‘‘Docket No.
FAA–2022–1582; Project Identifier
MCAI–2022–01232–T’’ at the beginning
of your comments. The most helpful
comments reference a specific portion of
the proposal, explain the reason for any
recommended change, and include
supporting data. The FAA will consider
all comments received by the closing
date and may amend this proposal
because of those comments.
Except for Confidential Business
Information (CBI) as described in the
following paragraph, and other
information as described in 14 CFR
11.35, the FAA will post all comments
received, without change, to
regulations.gov, including any personal
information you provide. The agency
will also post a report summarizing each
substantive verbal contact received
about this NPRM.
Confidential Business Information
CBI is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
(FOIA) (5 U.S.C. 552), CBI is exempt
from public disclosure. If your
comments responsive to this NPRM
contain commercial or financial
information that is customarily treated
as private, that you actually treat as
private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission containing CBI
as ‘‘PROPIN.’’ The FAA will treat such
marked submissions as confidential
under the FOIA, and they will not be
placed in the public docket of this
NPRM. Submissions containing CBI
should be sent to Dat Le, Aerospace
Engineer, Large Aircraft Section, FAA,
International Validation Branch, 2200
South 216th St., Des Moines, WA 98198;
telephone 516–228–7317; email
Dat.V.Le@faa.gov. Any commentary that
the FAA receives which is not
specifically designated as CBI will be
placed in the public docket for this
rulemaking.
Background
EASA, which is the Technical Agent
for the Member States of the European
Union, has issued EASA AD 2022–0186,
dated September 13, 2022 (EASA AD
2022–0186) (also referred to as the
MCAI), to correct an unsafe condition
for certain Airbus SAS Model A350–941
and –1041 airplanes. The MCAI states
that an in-service inspection found
OHSC crash rods that were
disconnected. The investigation
E:\FR\FM\15DEP1.SGM
15DEP1
Agencies
[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Proposed Rules]
[Pages 76585-76589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26873]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 /
Proposed Rules
[[Page 76585]]
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 126 and 134
RIN 3245-AH88
HUBZone Appeal Process
AGENCY: U.S. Small Business Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (SBA) proposes to amend
the rules of practice of its Office of Hearings and Appeals (OHA) and
the Historically Underutilized Business Zone (HUBZone) Program.
Specifically, SBA proposes to implement procedures authorizing appeals
to OHA from protest determinations regarding the status of a concern as
a certified HUBZone small business concern. These amendments are issued
in accordance with provisions of the National Defense Authorization Act
for Fiscal Year 2022.
DATES: Comments will be accepted until January 17, 2023.
ADDRESSES: You may submit comments, identified by RIN 3245-AH88, by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov
and follow the instructions for submitting comments.
Mail (for paper, disk, or CD-ROM submissions): Laura Maas,
HUBZone Program, 409 Third Street SW, Washington, DC 20416.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted on https://www.regulations.gov. If you wish to submit confidential business
information (CBI) as defined in the User Notice at https://www.regulations.gov, please submit the comments to [email protected]
and highlight the information that you consider to be CBI and explain
why you believe this information should be held confidential. SBA will
make a final determination as to whether the comments will be published
or not.
FOR FURTHER INFORMATION CONTACT: Laura Maas, HUBZone Program, 202-205-
7341, [email protected]. This phone number may also be reached by
individuals who are deaf or hard of hearing, or who have speech
disabilities, through the Federal Communications Commission's TTY-Based
Telecommunications Relay Service teletype service at 711.
SUPPLEMENTARY INFORMATION:
Section 864 of the National Defense Authorization Act for Fiscal
Year 2022 (NDAA 2022) authorizes SBA's Office of Hearings and Appeals
(OHA) to decide all appeals from HUBZone status protest determinations,
which are currently decided by the Associate Administrator of
Government Contracting and Business Development. Section 864 requires
SBA to publish a rule implementing this authority by December 27, 2022.
To implement this statutory requirement, this proposed rule would
revise the HUBZone regulations at 13 CFR 126.805 to specify that
HUBZone appeals are processed by OHA in accordance with the procedures
in part 134. This proposed rule would amend the regulations pertaining
to OHA's jurisdiction at subparts A and B of 13 CFR part 134 to include
appeals from HUBZone status protest determinations. Finally, the
proposed rule would create a new subpart M in 13 CFR part 134 to set
out the rules of practice for appeals from HUBZone status protest
determinations.
Section-By-Section Analysis
A. Section 126.103
SBA proposes to amend the HUBZone regulations at Sec. 126.103 by
deleting the definition for ``AA/GC&BD.'' The only references to this
role in the HUBZone regulations are in relation to HUBZone status
protest appeals, and the AA/GCBD will no longer have this
responsibility.
B. Sections 126.309, 126.803
SBA proposes to amend the HUBZone regulations at Sec. Sec. 126.309
and 126.803 to change the references to appeal decisions made by the
AA/GCBD to appeal decisions made by OHA.
C. Section 126.805
SBA proposes to revise Sec. 126.805, which addresses the
procedures for appeals of HUBZone status protest determinations, to
provide that such appeals may be filed in accordance with part 134 of
title 13 of the Code of Federal Regulations.
D. 13 CFR Part 134 Subparts A and B
SBA proposes to amend Sec. 134.102, the rules for establishing OHA
jurisdiction, to add appeals from HUBZone status protest
determinations, as a new type of proceeding over which OHA would have
jurisdiction. New Sec. 134.102(x) would allow OHA to hear appeals from
HUBZone determinations.
SBA also proposes to amend Sec. 134.201(b) by adding a new
paragraph (10) to include appeals from HUBZone status protest
determinations. As a result of this new paragraph, existing Sec.
134.201(b)(10) would be redesignated as Sec. 134.201(b)(11).
E. 13 CFR Part 134 Subpart M
The rule proposes a new subpart M to cover the procedures for
filing appeals of HUBZone status protest determinations.
Proposed Sec. 134.1301 would provide that appeals under this new
subpart would include any of the grounds for a HUBZone status protest
specified in Sec. 126.801 of the HUBZone regulations. Paragraph (b)
would state that the provisions of subparts A and B of part 134 also
apply to appeals of HUBZone status protest determinations. Paragraph
(c) would state that appeals from HUBZone status protest determinations
are separate from size determinations.
Proposed Sec. 134.1302 would establish standing to file an appeal
from a HUBZone status protest determination.
Proposed Sec. 134.1303 would establish timeliness for filing an
appeal from a HUBZone status protest determination. SBA proposes that
such appeals must be filed within ten (10) business days after the
appellant receives the protest determination.
Proposed Sec. 134.1304 would provide that if a timely appeal of a
HUBZone status protest determination is filed after contract award, the
contracting officer must consider whether performance can be suspended
until an appellate decision is rendered. This section would also
provide that where an appeal is filed before contract award,
[[Page 76586]]
the contracting officer must withhold award until the appellate
decision is rendered, unless the contracting officer has determined
that award and performance of the contract is in the best interests of
the government.
Proposed Sec. 134.1305(a) would provide that an appeal petition
must include the following: a copy of the protest determination; the
date the appellant received the protest determination; a statement that
the petitioner is appealing a HUBZone status protest determination
issued by the D/HUB; a full and specific statement as to why the
HUBZone status protest determination is alleged to be based on a clear
error of fact or law, together with argument supporting such
allegation; the solicitation number, the contract number (if
applicable), and the name, address, and telephone number of the
contracting officer; and the name, address, telephone number, facsimile
number, and signature of the appellant or its attorney. Paragraph (b)
would require that the appellant serve copies of the appeal upon the D/
HUB, the contracting officer, protested concern or the protester, and
SBA's Associate General Counsel for Procurement Law. Paragraph (c)
would require all appeal petitions to include a certificate of service.
Paragraph (d) would authorize OHA to dismiss appeal petitions that do
not meet all the requirements of Sec. 134.1305.
Proposed Sec. 134.1306 would apply the provisions in Sec.
134.204, regarding the service and filing requirements of all pleadings
and submissions.
Proposed Sec. 134.1307 would require the D/HUB to send OHA the
entire case file relating to the protest decision upon receipt of the
appeal petition.
Proposed Sec. 134.1308 would provide that the standard of review
for an appeal of a HUBZone status protest determination is whether the
D/HUB's determination was based on clear error of fact or law, and that
the appellant bears the burden of proof by a preponderance of the
evidence.
Proposed Sec. 134.1309 would provide that an appeal from a HUBZone
status protest determination will be dismissed if the appeal is
untimely under Sec. 134.1303, or if the matter has been decided or is
the subject of adjudication before a court of competent jurisdiction
over such matters.
Proposed Sec. 134.1310 would permit responses to the appeal to be
filed within fifteen business days after service of the appeal
petition.
Proposed Sec. 134.1311 would not allow for discovery or oral
hearings in appeals from HUBZone status protest determinations.
Proposed Sec. 134.1312 would prohibit new evidence in appeals from
HUBZone status protest determinations.
Proposed Sec. 134.1313 would provide that the record for a HUBZone
status protest appeal will close when the time to file a response to an
appeal petition expires.
Proposed Sec. 134.1314 would provide that OHA will decide an
appeal within 45 calendar days after the close of record.
Proposed Sec. 134.1315 would provide that OHA's decision is the
final agency decision and would provide that the effects of the
decision on the procurement at issue are explained in 13 CFR
126.803(e).
Proposed Sec. 134.1316 would provide that OHA may reconsider an
appeal decision within twenty (20) calendar days after the decision is
issued, or OHA may remand a proceeding to the D/HUB for a new HUBZone
status protest determination.
Compliance With Executive Orders 12866, 12988, 13132, and the Paperwork
Reduction Act (44 U.S.C. Ch. 35), the Regulatory Flexibility Act (5
U.S.C. 601-612), the Congressional Review Act (5 U.S.C. 801-808)
Executive Order 12866
The Office of Management and Budget has determined that this rule
is not a ``significant regulatory action'' under Executive Order No.
12866. This proposed rule would amend the rules of practice for the
SBA's OHA to implement procedures for appeals from HUBZone status
protest determinations. 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. 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.
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 to
hear appeals from HUBZone status protest determinations. 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.
Congressional Review Act, 5 U.S.C. Ch. 8
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996, also known as the Congressional
[[Page 76587]]
Review Act or CRA, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. SBA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States. A major rule under the CRA cannot take effect until 60
days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a ``major rule'' as defined by 5 U.S.C. 804(2). Therefore, this rule is
not subject to the 60-day restriction.
List of Subjects
13 CFR Part 126
Administrative practice and procedure, Government procurement,
Penalties, Reporting and recordkeeping requirements, Small businesses.
13 CFR Part 134
Administrative practice and procedure, Claims, Equal access to
justice, Lawyers, Organization and function (Government agencies).
For the reasons set forth in the preamble, SBA proposes to amend
parts 126 and 134 of title 13 of the Code of Federal Regulations as
follows:
PART 126--HUBZONE PROGRAM
0
1. The authority citation for part 126 is revised to read as follows:
Authority: 15 U.S.C. 632(a), 632(j), 632(p), 644 and 657a.
Sec. 126.103 [Amended]
0
2. Amend Sec. 126.103 by removing the definition of ``AA/GC&BD''.
Sec. 126.309 [Amended]
0
3. Amend Sec. 126.309 by removing ``(the D/HUB's decision if no appeal
is filed or the decision of the AA/GCBD)'' and adding in its place
``(i.e., the D/HUB's decision if the protest determination is not
appealed, or OHA's decision if the protest determination is
appealed)''.
0
4. Amend Sec. 126.803 by:
0
a. In paragraph (e), revising the introductory text;
0
b. In paragraph (e)(1)(ii)(B), removing ``the AA/GCBD'' and adding in
its place ``OHA'';
0
c. In paragraph (e)(1)(iii), removing ``(i.e., the D/HUB's decision if
no appeal is filed, or the decision of the AA/GCBD if the protest is
appealed)'' and adding in its place ``(i.e., the D/HUB's decision if
the protest determination is not appealed, or OHA's decision if the
protest determination is appealed)'';
0
d. In paragraph (e)(2)(ii), removing ``the AA/GCBD'' and adding in its
place ``OHA''; and
0
e. In paragraph (e)(3), removing ``(the D/HUB's decision if no appeal
is filed, or the decision of the AA/GCBD if the protest is appealed)''
and adding in its place ``(i.e., the D/HUB's decision if the protest
determination is not appealed, or OHA's decision if the protest
determination is appealed)''.
The revision reads as follows:
Sec. 126.803 How will SBA process a HUBZone status protest and what
are the possible outcomes?
* * * * *
(e) * * * The determination is effective immediately and is final,
unless overturned on appeal by SBA's Office of Hearings and Appeals
(OHA) pursuant to part 134 of this chapter.
* * * * *
0
5. Revise Sec. 126.805 to read as follows:
Sec. 126.805 What are the procedures for appeals of HUBZone status
protest determinations?
The protested concern, the protester, or the contracting officer
may file an appeal of a HUBZone status protest determination with SBA's
Office of Hearings and Appeals (OHA) in accordance with part 134 of
this chapter.
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF
HEARINGS AND APPEALS
0
6. 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), 657a, 657t and 687(c); E.O. 12549, 51 FR
6370, 3 CFR, 1986 Comp., p. 189.
Subpart J issued under 15 U.S.C. 657f.
Subpart K issued under 15 U.S.C. 657f.
Subpart L issued under 15 U.S.C. 636(a)(36); 636(a)(37); 636m.
Subpart M issued under 15 U.S.C. 657a; Sec. 864, Pub. L. 117-81, 135
Stat. 1852 (15 U.S.C. 634 note).
0
7. Amend Sec. 134.102 by:
0
a. Removing the word ``and'' at the end of paragraph (v);
0
b. Removing the period at the end of paragraph (w) and adding ``; and''
in its place; and
0
c. Adding paragraph (x).
The addition reads as follows:
Sec. 134.102 Jurisdiction of OHA.
* * * * *
(x) Appeals from HUBZone status protest determinations under part
126 of this chapter.
0
8. Amend Sec. 134.201 by:
0
a. Removing the word ``and'' at the end of paragraph (b)(9);
0
b. Redesignating paragraph (b)(10) as paragraph (b)(11); and
0
c. Adding a new paragraph (b)(10).
The addition reads as follows:
Sec. 134.201 Scope of the rules in this subpart.
* * * * *
(b) * * *
(10) For appeals of protest determinations regarding the status of
a concern as a certified HUBZone small business concern, in subpart M
of this part; and
* * * * *
0
8. Add subpart M to read as follows:
Subpart M--Rules of Practice for Appeals of Protest Determinations
Regarding the Status of a Concern as a Certified HUBZone Small
Business Concern
Sec.
134.1301 What is the scope of the rules in this subpart?
134.1302 Who may appeal a HUBZone status protest determination?
134.1303 What time limits apply to filing an appeal from a HUBZone
status protest determination?
134.1304 What are the effects of the filing of an appeal on the
procurement at issue?
134.1305 What are the requirements for an appeal petition?
134.1306 What are the service and filing requirements?
134.1307 What are the requirements for transmitting the protest
file?
134.1308 What is the standard of review?
134.1309 When will a Judge dismiss an appeal?
134.1310 Who can file a response to an appeal petition and when must
such a response be filed?
134.1311 Will the Judge permit discovery and oral hearings?
134.1312 What are the limitations on the introduction of new
evidence?
134.1313 When is the record closed?
134.1314 When must the Judge issue his or her decision?
134.1315 What are the effects of the Judge's decision on the
procurement at issue?
134.1316 Can a Judge reconsider an appeal decision?
Sec. 134.1301 What is the scope of the rules in this subpart?
(a) The rules of practice in this subpart apply to all appeals to
OHA from formal protest determinations made by the Director of SBA's
Office of HUBZone (D/HUB) in connection with a HUBZone status protest.
Appeals under this subpart include any of the grounds for a HUBZone
status protest specified in Sec. 126.801 of this chapter, as well as
appeals from determinations by the D/HUB that the protest was
[[Page 76588]]
premature, untimely, nonspecific, or not based upon protestable
allegations.
(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 formal size determinations and NAICS Code
designations are governed by subpart C of this part.
Sec. 134.1302 Who may appeal a HUBZone status protest determination?
Appeals from HUBZone status 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. 134.1303 What time limits apply to filing an appeal from a
HUBZone status protest determination?
Appeals from a HUBZone status protest determination must be
commenced by filing and serving an appeal petition within ten (10)
business days after the appellant receives the HUBZone status protest
determination (see Sec. 134.204 for filing and service requirements).
OHA shall dismiss any untimely appeal.
Sec. 134.1304 What are the effects of the filing of an appeal on the
procurement at issue?
(a) If a timely appeal is filed after contract award, the
contracting officer must consider whether performance can be suspended
until an appellate decision is rendered.
(b) If a timely appeal is filed before contract award, the
contracting officer must withhold award until the appellate decision is
rendered, unless the contracting officer has determined that award and
performance of the contract is in the best interests of the government.
Sec. 134.1305 What are the requirements for an appeal petition?
(a) Format. An appeal from a HUBZone status protest determination
must be in writing. There is no required format for an appeal petition.
However, it must include the following information:
(1) A copy of the protest determination;
(2) The date the appellant received the protest determination;
(3) A statement that the petitioner is appealing a HUBZone status
protest determination issued by the D/HUB;
(4) A full and specific statement as to why the HUBZone status
protest determination is alleged to be based on a clear error of fact
or law, together with argument supporting such allegation;
(5) The solicitation number, the contract number (if applicable),
and the name, address, and telephone number of the contracting officer;
and
(6) The name, address, telephone number, facsimile number, and
signature of the appellant or its attorney.
(b) Service of appeal. The appellant must serve copies of the
entire appeal petition upon each of the following:
(1) The D/HUB at [email protected];
(2) The contracting officer responsible for the procurement
affected by a HUBZone determination;
(3) The protested concern (the business concern whose HUBZone
status is at issue) or the protester; and
(4) SBA's Office of General Counsel, Associate General Counsel for
Procurement Law at [email protected].
(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. 134.1306 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. 134.1307 What are the requirements for transmitting the protest
file?
Upon receipt of an appeal petition, the D/HUB will send to OHA a
copy of the protest file relating to that determination. The D/HUB 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. 134.1308 What is the standard of review?
The standard of review for an appeal of a HUBZone status protest
determination is whether the D/HUB's determination was based on clear
error of fact or law. The appellant has the burden of proof, by a
preponderance of the evidence.
Sec. 134.1309 When will a Judge dismiss an appeal?
The presiding Judge must dismiss the appeal if:
(a) The appeal is untimely filed under Sec. 134.1303;
(b) The appeal does not, on its face, allege facts that if proven
to be true, warrant reversal or modification of the determination; or
(c) The matter has been decided or is the subject of adjudication
before a court of competent jurisdiction over such matters; however,
once an appeal has been filed, 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. 134.1310 Who can file a response to an appeal petition and when
must such a response be filed?
(a) Who may respond. 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. The response should present
arguments related to the issues presented on appeal.
(b) Time limits. If a person decides to file a response, the
response must be filed within fifteen (15) business days after service
of the appeal petition.
(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. 134.1305.
(d) Reply to a response. No reply to a response will be permitted
unless the Judge directs otherwise.
Sec. 134.1311 Will the Judge permit discovery and oral hearings?
Discovery will not be permitted, and oral hearings will not be
held.
Sec. 134.1312 What are the limitations on the introduction of 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. 134.1313 When is the record closed?
The record will close when the time to file a response to an appeal
petition expires pursuant to Sec. 134.1310.
Sec. 134.1314 When must the Judge issue his or her decision?
The Judge shall issue a decision, insofar as practicable, within
forty-five (45) calendar days after close of the record.
Sec. 134.1315 What are the effects of the Judge's decision on the
procurement at issue?
The Judge's decision is the final agency decision and becomes
effective upon issuance. For the effects of the decision on the
procurement at issue, see Sec. 126.803(e) of this chapter.
[[Page 76589]]
Sec. 134.1316 Can a Judge reconsider an appeal decision?
(a) Any party who has appeared in the proceeding, or SBA, may
request reconsideration of the OHA appeal decision by filing with the
Judge and serving a petition for reconsideration on all the parties to
the appeal 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 decision. The Judge may also
reconsider a decision on his or her own initiative, within twenty (20)
calendar days after issuance of the written decision.
(b) The Judge may remand a proceeding to the D/HUB for a new
HUBZone status protest determination if the D/HUB 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
HUBZone status protest determination.
Isabella Casillas Guzman,
Administrator.
[FR Doc. 2022-26873 Filed 12-14-22; 8:45 am]
BILLING CODE 8026-09-P