13 CFR Ch. I (1-1-25 Edition) — Part 134 — Rules of Procedure Governing Cases Before the Office of Hearings and Appeals
Summary
This is Part 134 of Title 13 of the Code of Federal Regulations, 1-1-25 Edition: the Small Business Administration’s rules of procedure governing cases before the Office of Hearings and Appeals (OHA). Subpart A sets general rules and Subpart B the rules of practice, from the appeal petition through discovery, the oral hearing and the decision. Later subparts govern appeals from size determinations and NAICS code designations, appeals under the 8(a) program, the Equal Access to Justice Act, employee disputes, and protests and appeals involving women-owned, veteran-owned and HUBZone concerns. Subpart L covers borrower appeals of final SBA loan review decisions on PPP loans, such as a finding that a borrower was ineligible for a PPP loan; the appeal petition must be filed with OHA within 30 calendar days after the appellant’s receipt of the decision.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Pt. 134 13 CFR Ch. I (1–1–25 Edition)
agreement is not being renewed or a PART 134—RULES OF PROCEDURE
WBC is terminated, regardless of cause, GOVERNING CASES BEFORE THE
the recipient organization will address OFFICE OF HEARINGS AND AP-
the following in its closeout process PEALS
and perform the necessary inventories
and reconciliations prior to submitting Subpart A—General Rules
the final annual financial report.
(i) An inventory of WBC property Sec.
134.101 Definitions.
must be compiled, evaluated, and all
134.102 Jurisdiction of OHA.
property and the aggregate of usable 134.103 [Reserved]
supplies and materials accounted for in
this inventory. Subpart B—Rules of Practice
(ii) Program income balances will be 134.201 Scope of the rules in this subpart.
reconciled and unused WBC program 134.202 Commencement of cases.
income which is not used as match or 134.203 The appeal petition.
cannot otherwise be used to offset le- 134.204 Filing and service requirements.
gitimate expenditures of the WBC must 134.205 The appeal file, confidential infor-
mation, and protective orders.
be returned to the SBA.
134.206 The answer or response.
(iii) Client records, paper and elec- 134.207 Amendments and supplemental
tronic, will be compiled to facilitate an pleadings.
SBA program closeout review. 134.208 Representation in cases before OHA.
(iv) Financial records will be com- 134.209 Requirement of signature.
134.210 Intervention.
piled to facilitate a closeout of the 134.211 Motions.
SBA financial examination. 134.212 Summary judgment.
(2) SBA. Upon receipt of the final an- 134.213 Discovery.
nual financial report from a non-renew- 134.214 Subpoenas.
ing or terminated recipient organiza- 134.215 Interlocutory appeals.
134.216 Alternative dispute resolution proce-
tion, the AA/OWBO will issue disposi-
dures.
tion instructions to the former recipi- 134.217 Settlement.
ent organization. 134.218 Judges.
(c) Final disposition. (1) The final fi- 134.219 Sanctions.
nancial status report from the recipi- 134.220 Prohibition against ex parte commu-
nications.
ent organization must include the in-
134.221 Prehearing conferences.
formation identified in the inventory 134.222 Oral hearing.
process and identify any WBC program 134.223 Evidence.
income collected for services provided. 134.224 [Reserved]
(2) The AA/OWBO will issue written 134.225 The record.
134.226 The decision.
disposition instructions to the recipi-
134.227 Finality of decisions.
ent organization providing the fol- 134.228 Review of initial decisions.
lowing: 134.229 Termination of jurisdiction.
(i) The name and address of the enti-
ty or agency to which property and Subpart C—Rules of Practice for Appeals
program income must be transferred; From Size Determinations and NAICS
(ii) The date by which the transfer Code Designations
must be completed; 134.301 Scope of the rules in this subpart C.
(iii) Actions to be taken regarding 134.302 Who may appeal.
property and WBC program income; 134.303 Advisory opinions.
134.304 Commencement of appeals from size
(iv) Actions to be taken regarding determinations and NAICS code designa-
WBC program records such as client tions.
and training files; and 134.305 The appeal petition.
(v) Authorization to incur costs for 134.306 Transmission of the case file and so-
accomplishing the transfer. Such costs licitation.
134.307 Service and filing requirements.
may, when authorized, be applied to re-
134.308 Limitation on new evidence and ad-
sidual WBC program income or Federal verse inference from non-submission in
or matching funds. appeals from size determinations.
134.309 Response to an appeal petition.
728
Small Business Administration Pt. 134
134.310 Discovery. 134.618 How are awards paid?
134.311 Oral hearings.
134.312 Evidence. Subpart G—Rules of Practice for Appeals
134.313 Applicability of subpart B provi- From Women-Owned Small Business
sions. Concern (WOSB) and Economically
134.314 Standard of review and burden of Disadvantaged WOSB Concern
proof. (EDWOSB) Protests
134.315 The record.
134.316 The decision. 134.701 What is the scope of the rules in this
134.317 [Reserved] subpart G?
134.318 NAICS appeals. 134.702 Who may appeal?
134.703 When must a person file an appeal
Subpart D—Rules of Practice for Appeals from an WOSB or EDWOSB protest de-
termination?
Under the 8(a) Program
134.704 What are the effects of the appeal on
134.401 Scope of the rules in this subpart D. the procurement at issue?
134.402 Appeal petition. 134.705 What are the requirements for an ap-
peal petition?
134.403 Service of appeal petition.
134.706 What are the service and filing re-
134.404 Deadline for filing appeal petition.
quirements?
134.405 Jurisdiction. 134.707 When does the D/GC transmit the
134.406 Review of administrative record. protest file and to whom?
134.407 Evidence beyond the record and dis- 134.708 What is the standard of review?
covery. 134.709 When will a Judge dismiss an ap-
134.408 Summary decision. peal?
134.409 Decision on appeal. 134.710 Who can file a response to an appeal
petition and when must such a response
Subpart E—[Reserved] be filed?
134.711 Will the Judge permit discovery and
Subpart F—Implementation of the Equal oral hearings?
Access to Justice Act 134.712 What are the limitations on new evi-
dence?
134.601 What is the purpose of this subpart? 134.713 When is the record closed?
134.602 Under what circumstances may I 134.714 When must the Judge issue his or
apply for reimbursement? her decision?
134.603 What is an adversary adjudication? 134.715 Can a Judge reconsider his decision?
134.604 What benefits may I claim?
134.605 Under what circumstances are fees Subpart H—Rules of Practice for Employee
and expenses reimbursable? Disputes
134.606 Who is eligible for possible reim-
bursement? 134.801 Scope of rules.
134.607 How do I know which eligibility re- 134.802 [Reserved]
quirement applies to me? 134.803 Commencement of appeals from SBA
Employee Dispute Resolution Process
134.608 What are the special rules for calcu-
cases (Employee Disputes).
lating net worth and number of employ-
ees? 134.804 The appeal petition.
134.805 After the appeal petition is filed.
134.609 What is the difference between a fee
134.806 Mediation.
and an expense?
134.807 SBA response.
134.610 Are there limitations on reimburse-
134.808 The decision.
ment for fees and expenses?
134.809 Review of initial decision.
134.611 What should I include in my applica-
tion for an award?
Subpart I—Rules of Practice for Petitions for
134.612 What must a net worth exhibit con-
tain?
Reconsideration of Size Standards
134.613 What documentation do I need for 134.901 Scope of the rules in this subpart.
fees and expenses? 134.902 Standing.
134.614 What deadlines apply to my applica- 134.903 Commencement of cases.
tion for an award and where do I send it? 134.904 Requirements for the Size Standard
134.615 How will proceedings relating to my Petition.
application for fees and expenses be con- 134.905 Notice and order.
ducted? 134.906 Intervention.
134.616 How will I know if I receive an 134.907 Filing and service.
award? 134.908 The administrative record.
134.617 May I seek review of the ALJ’s deci- 134.909 Standard of review.
sion on my award? 134.910 Dismissal.
729
Pt. 134 13 CFR Ch. I (1–1–25 Edition)
134.911 Response to the Size Standard Peti- 134.1204 The appeal petition.
tion. 134.1205 Dismissal.
134.912 Discovery and oral hearings. 134.1206 Notice and Order.
134.913 New evidence. 134.1207 The administrative record.
134.914 The decision. 134.1208 Response to an appeal petition.
134.915 Remand. 134.1209 Evidence beyond the record, dis-
134.916 Effects of OHA’s decision. covery, and oral hearings.
134.917 Equal Access to Justice Act. 134.1210 Standard of review.
134.918 Judicial review. 134.1211 Decision on appeal.
134.1212 Effects of the decision.
Subpart J—Rules of Practice for Protests of 134.1213 Equal Access to Justice Act.
Eligibility for Inclusion in the SBA Vet- 134.1214 Confidential information.
eran Small Business Certification Pro-
gram Database (VOSB or SDVOSB Sta- Subpart M—Rules of Practice for Appeals
tus Protests) of Protest Determinations Regarding
the Status of a Concern as a Certified
134.1001 Scope of rules.
134.1002 Who may file a VOSB or SDVOSB
HUBZone Small Business Concern
status protest? 134.1301 What is the scope of the rules in
134.1003 Grounds for filing a VOSB or this subpart?
SDVOSB status protest. 134.1302 Who may appeal a HUBZone status
134.1004 Commencement of VOSB or protest determination?
SDVOSB status protests. 134.1303 What time limits apply to filing an
134.1005 Contents of the VOSB or SDVOSB appeal from a HUBZone status protest
status protest. determination?
134.1006 Service and filing requirements.
134.1304 What are the effects of the filing of
134.1007 Processing a VOSB or SDVOSB sta-
an appeal on the procurement at issue?
tus protest.
134.1305 What are the requirements for an
134.1008 Discovery.
appeal petition?
134.1009 Oral hearings.
134.1306 What are the service and filing re-
134.1010 Standard of review and burden of
quirements?
proof.
134.1307 What are the requirements for
134.1011 Weight of evidence.
transmitting the protest file?
134.1012 The record.
134.1013 Request for reconsideration. 134.1308 What is the standard of review?
134.1309 When will a Judge dismiss an ap-
Subpart K—Rules of Practice for Appeals of peal?
134.1310 Who can file a response to an appeal
Denials of Certification and Decerti-
petition and when must such a response
fication in the SBA Veteran Small Busi- be filed?
ness Certification Program (VOSB or 134.1311 Will the Judge permit discovery
SDVOSB Appeals) and oral hearings?
134.1312 What are the limitations on the in-
134.1101 Scope of rules.
troduction of new evidence?
134.1102 Who may file a VOSB or SDVOSB
134.1313 When is the record closed?
Appeal?
134.1103 Grounds for filing a VOSB or 134.1314 When must the Judge issue the de-
SDVOSB Appeal. cision?
134.1104 Commencement of a VOSB or 134.1315 What are the effects of the Judge’s
SDVOSB Appeal. decision on the procurement at issue?
134.1105 The appeal petition. 134.1316 Can a Judge reconsider an appeal
134.1106 Service and filing requirements. decision?
134.1107 Transmission of the case file. AUTHORITY: 5 U.S.C. 504; 15 U.S.C. 632,
134.1108 Response to an appeal petition. 634(b)(6), 634(i), 637(a), 648(l), 656(i), 657t and
134.1109 Discovery and oral hearings. 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986
134.1110 New evidence. Comp., p. 189.
134.1111 Standard of review and burden of Subpart J issued under 15 U.S.C. 657f.
proof. Subpart K issued under 15 U.S.C. 657f.
134.1112 The decision. Subpart L issued under 15 U.S.C. 636(a)(36);
Pub. L. 116–136, 134 Stat. 281; Pub. L. 116–139,
Subpart L—Borrower Appeals of Final SBA 134 Stat. 620; Pub. L. 116–142, 134 Stat. 641;
Loan Review Decisions and Pub. L. 116–147, 134 Stat. 660.
Subpart M issued under 15 U.S.C. 657a; Pub.
134.1201 Scope of the rules in this subpart.
L. 117–81, 135 Stat. 1541.
134.1202 Commencement of appeals of final
SBA loan review decisions. SOURCE: 61 FR 2683, Jan. 29, 1996, unless
134.1203 Standing. otherwise noted.
730
Small Business Administration § 134.102
EDITORIAL NOTE: Nomenclature changes to Petitioner means the person who ini-
part 134 appear at 72 FR 50042, Aug. 30, 2007. tially files a petition before OHA.
Pleading means a petition, an order
Subpart A—General Rules to show cause commencing a case, an
appeal petition, an answer, a response,
§ 134.101 Definitions. or any amendment or supplement to
As used in this part: those documents.
AA/OHA means the Assistant Admin- Respondent means any person or gov-
istrator for OHA, who is also the Chief ernmental agency against which a case
Hearing Officer. has been brought before OHA.
Act means the Small Business Act, 15 SBA means the Small Business Ad-
U.S.C. 631 et seq. ministration.
Address means the primary home or Size determination means a formal size
business address of a person or entity, determination made by an Area Office
including the street location or postal and includes decisions by Government
box number, city or town, state, and Contracting Area Directors that deter-
postal zip code. mine whether two or more concerns are
Administrative Judge means a Hearing affiliated for purposes of SBA’s finan-
Officer, as described at 15 U.S.C. 634(i), cial assistance programs, or other pro-
appointed by OHA to adjudicate cases. grams for which an appropriate SBA
Appeal petition has the same meaning official requested an affiliation deter-
as petition. mination.
Area Office means a Government Con- Size Standard Petition means a peti-
tracting Area Office or a Disaster Area tion for reconsideration of a revised,
Office of the Small Business Adminis- modified, or established size standard
tration. filed with OHA pursuant to 15 U.S.C.
Business day means any day other 632(a)(9) and subpart I of this part.
than a Saturday, Sunday, or a Federal Step One and Step Two refer to the
holiday. steps of the Employee Dispute Resolu-
Day means a calendar day, unless a tion Process, see § 134.801(a) for more
Judge specifies otherwise. information.
Hearing means the presentation and [61 FR 2683, Jan. 29, 1996, as amended at 67
consideration of argument and evi- FR 47246, July 18, 2002; 69 FR 29208, May 21,
dence. A hearing need not include live 2004; 75 FR 47438, Aug. 6, 2010; 82 FR 25506,
testimony or argument. June 2, 2017]
Investment Act means the Small Busi-
ness Investment Act of 1958, 15 U.S.C. § 134.102 Jurisdiction of OHA.
661 et seq. OHA has authority to conduct pro-
Judge means the Administrative ceedings in the following cases:
Judge or Administrative Law Judge (a) The revocation or suspension of
who decides an appeal or petition Small Business Investment Company
brought before OHA, or the AA/OHA licenses, cease and desist orders, and
when he or she acts as an Administra- the removal or suspension of directors
tive Judge. and officers of licensees, under the In-
NAICS code means North American vestment Act and part 107 of this chap-
Industry Classification System code. ter;
OHA means the Office of Hearings (b) Alleged violations of those civil
and Appeals. rights laws which are effectuated by
Party means the petitioner, appel- parts 112, 113, 117, and 136 of this chap-
lant, respondent, or intervenor, and the ter;
contracting officer in a NAICS code ap- (c) The revocation of the privilege of
peal. a person to conduct business with SBA
Person means an individual or any under the Act and part 103 of this chap-
form of business entity. ter;
Petition (or appeal petition) means a (d) 7(a) Lender appeals from informal
written complaint, a written appeal enforcement actions and final agency
from an SBA determination, or a writ- decisions on 7(a) Lender formal en-
ten request for the initiation of pro- forcement actions, and any other ap-
ceedings before OHA. peal that is specifically authorized by
731
§ 134.103 13 CFR Ch. I (1–1–25 Edition)
part 120 of this title, but not including through OHA’s Web site http://
appeals of actions against SBA Super- www.sba.gov/oha) and subpart H of this
vised Lenders under § 120.1600(b) or (c) part;
or under § 120.465; (s) Appeals from Women-Owned
(e) The suspension or termination of Small Business or Economically-Dis-
surety bond program participants advantaged Women-Owned Small Busi-
under 15 U.S.C. 694a et seq. and part 115 ness protest determinations under part
of this chapter; 127 of this chapter;
(f) [Reserved] (t) Petitions for reconsideration of
(g) Allowance of fees and expenses revised, modified, or established size
under the Equal Access to Justice Act, standards pursuant to 15 U.S.C.
5 U.S.C. 504; 632(a)(9);
(h) Debarment from appearance be- (u) Protests of eligibility for inclu-
fore the SBA because of post-employ- sion in the Veteran Small Business
ment restrictions under 18 U.S.C. 207 Certification Program;
and part 105 of this chapter; (v) Appeals of denials of certification
(i) Collection of debts owed to SBA in and decertification from the Veteran
and the United States under the Debt Small Business Certification Program;
Collection Act of 1982, the Debt Collec- (w) Appeals of certain SBA loan re-
tion Improvement Act of 1996, and part view decisions as defined in 13 CFR
140 of this chapter; 134.1201; and
(j) Appeals from the following SBA (x) Appeals from HUBZone status
8(a) program determinations under the protest determinations under part 126
Act and part 124 of this chapter: of this chapter.
(1) Denial of program admission
based solely on a negative finding as to [61 FR 2683, Jan. 29, 1996, as amended at 66
social disadvantage, economic dis- FR 47074, Sept. 11, 2001; 67 FR 47246, July 18,
2002; 69 FR 25271, May 5, 2004; 69 FR 29208,
advantage, ownership or control; pro- May 21, 2004; 70 FR 17587, Apr. 7, 2005; 72 FR
gram termination; program gradua- 39730, July 20, 2007; 73 FR 56954, Oct. 1, 2008;
tion; or denial of a waiver of the re- 75 FR 47438, Aug. 6, 2010; 75 FR 62292, Oct. 7,
quirement to perform to completion an 2010; 82 FR 25506, June 2, 2017; 83 FR 13628,
8(a) contract; and Mar. 30, 2018; 85 FR 14784, Mar. 16, 2020; 85 FR
(2) Program suspension; 52887, Aug. 27, 2020; 87 FR 73425, Nov. 29, 2022;
(k) Appeals from size determinations 88 FR 21089, Apr. 10, 2023]
and NAICS code designations under
§ 134.103 [Reserved]
part 121 of this chapter;
(l) The imposition of civil penalties
and assessments against persons who Subpart B—Rules of Practice
make false claims or statements to
SBA under the Program Fraud Civil § 134.201 Scope of the rules in this sub-
part.
Remedies Act, 31 U.S.C. 3801–3812 and
part 142 of this chapter; (a) The rules of practice in this sub-
(m)–(n) [Reserved] part apply to all OHA proceedings ex-
(o) The suspension, termination, or cept:
non-renewal of cooperative agreements (1) Where another subpart of this
with Women’s Business Centers and part, pertaining to a specific type of
Small Business Development Centers OHA proceeding, provides a different
under the Act and part 130 of this chap- rule; or
ter; (2) Where another part of this chap-
(p) Certain matters involving ter, pertaining to a specific type of
debarments and suspensions under 2 OHA proceeding (or SBA program al-
CFR parts 180 and 2700; lowing appeals to OHA), provides a dif-
(q) [Reserved] ferent rule (see § 134.102).
(r) Appeals from SBA Employee Dis- (b) For specific types of OHA pro-
pute Resolution Process cases (Em- ceedings, the rules of practice are lo-
ployee Disputes) under Standard Oper- cated as follows:
ating Procedure (SOP) 37 71 (available (1) For appeals from size determina-
at http://www.sba.gov/tools/ tions and NAICS code designations, in
resourcelibrary/sops/index.html or subpart C of this part (§ 134.301 et seq.);
732
Small Business Administration § 134.203
(2) For 8(a) BD appeals, in subpart D filing the order to show cause with
of this part (§ 134.401 et seq.); OHA.
(3) [Reserved] (c) Cases concerning Small Business
(4) For applications under the Equal Investment Company license suspen-
Access to Justice Act, in subpart F of sions and revocations and cease and de-
this part (§ 134.601 et seq.); sist orders must be commenced with an
(5) For appeals from Women-Owned order to show cause containing a state-
Small Business (WOSB) and Economi- ment of the matters of fact and law as-
cally-Disadvantaged WOSB protest de- serted by the SBA, the legal authority
terminations, in subpart G of this part and jurisdiction under which a hearing
(§ 134.701 et seq.); is to be held, a statement that a hear-
(6) For appeals relating to SBA em- ing will be held, and the time and place
ployee disputes, in subpart H of this for the hearing.
part (§ 134.801 et seq.); (d) Calculation and modification of time
(7) For Size Standard Petitions, in periods and deadlines. (1) Calculation of a
subpart I of this part (§§ 134.901 through deadline when the time period is given in
134.918); days. (i) Do not count the day the time
(8) For protests of eligibility for in- period begins, but do count the last day
clusion in the Veteran Small Business of the time period.
Certification Program, in subpart J of (ii) If the last day is Saturday, Sun-
this part; day, or a Federal holiday, the time pe-
riod ends on the next business day.
(9) For appeals of denials of certifi-
cation and decertification in the Vet- Example: On Monday, a Judge orders a
eran Small Business Certification Pro- party to file and serve a document within (or
gram, in subpart K of this part; no later than) five days. The time period be-
gins on Monday, so the first day to count is
(10) For appeals of protest determina-
Tuesday. The second, third, and fourth days
tions regarding the status of a concern are Wednesday, Thursday, and Friday. The
as a certified HUBZone small business fifth day is Saturday, so the time period
concern, in subpart M of this part; and rolls over to the next business day, which is
(11) For proceedings under the Pro- Monday. The deadline is Monday (or Tuesday
gram Fraud Civil Remedies Act, in part if Monday is a Federal holiday).
142 of this chapter. (2) Modification of a time period or
(c) If a rule in this subpart conflicts deadline. (i) A Judge may modify any
with a rule pertaining to OHA in an- time period or deadline, except:
other subpart of this part or in another (A) The time period governing com-
part of this chapter, the latter rule mencement of a case (i.e., when the ap-
shall govern. peal petition may be filed); and
[75 FR 47438, Aug. 6, 2010, as amended at 82 (B) A time period established by stat-
FR 25506, June 2, 2017; 83 FR 13629, Mar. 30, ute.
2018; 87 FR 73425, Nov. 29, 2022; 88 FR 21089, (ii) A party may move for an exten-
Apr. 10, 2023] sion of time pursuant to § 134.211.
§ 134.202 Commencement of cases. [67 FR 47246, July 18, 2002, as amended at 70
FR 17587, Apr. 7, 2005; 75 FR 47439, Aug. 6,
(a) A party other than the SBA may 2010]
commence a case by filing an appeal
petition. § 134.203 The appeal petition.
(1) The filing deadline is contained in (a) A petition must contain the fol-
the SBA regulations governing the spe- lowing:
cific type of appeal. (1) The basis of OHA’s jurisdiction
(2) Where the SBA action or deter- (see § 134.102);
mination being appealed states a dif- (2) A copy of the SBA determination
ferent time period (or deadline) for fil- being appealed, if applicable, and the
ing an appeal petition than does the date the determination was received by
applicable regulation, the longer time the petitioner;
period (or later deadline) governs. (3) A clear and concise statement of
(b) The SBA may commence a case the factual basis of the case and appli-
by issuing to the respondent an appro- cable legal arguments;
priate written order to show cause and (4) The relief being sought;
733
§ 134.204 13 CFR Ch. I (1–1–25 Edition)
(5) The name, address, telephone wise fails to comply with applicable
number, facsimile number, e-mail ad- regulations, the Judge may dismiss the
dress, and signature of the petitioner petition with prejudice.
or its attorney; and (f) Notice and Order. After an appeal
(6) A certificate of service (see petition is filed, OHA will issue a No-
§ 134.204(d)). tice and Order and serve it upon all
(b) If the applicable subpart of this known parties (or their attorneys). If a
part 134 (or the program regulations) party does not receive a Notice and
requires other documents or informa- Order, it should contact OHA.
tion with the appeal petition, these [67 FR 47247, July 18, 2002, as amended at 75
must also be included. FR 47439, Aug. 6, 2010]
(c) A petition which does not contain
all of the information required by para- § 134.204 Filing and service require-
graphs (a) and (b) of this section may ments.
be dismissed, with or without preju- All pleadings or other submissions
dice, at the Judge’s own initiative, or must be filed with OHA and served on
upon motion of the respondent. all other parties or their attorneys.
(d) Format. (1) An appeal petition Each submission requires a certificate
should be on 8.5″ × 11″ paper with a of service.
clear type at least 12 point in size. (a) Methods of filing and service. E-
Preferably, double-space the main text mail, mail, delivery, and facsimile are
and use 1″ margins all around. Number all permitted unless a Judge orders
each page. A separate cover letter is otherwise.
not needed. A table of contents is op- (1) E-mail constitutes any system for
tional. Hard copies of documents sent sending and receiving messages elec-
by facsimile or electronic mail are not tronically over a telecommunications
needed unless specifically requested. network. The sender is responsible for
(2) The maximum length of an appeal ensuring that e-mail software and file
petition (not including attachments) is formats are compatible with the recipi-
20 pages, unless prior leave is sought by ent and for a successful, virus-free
the petitioner and granted by the transmission.
Judge. A table of authorities is re- (2) Mail includes any service provided
quired only for petitions citing more by the U.S. Postal Service. Mail (ex-
than twenty cases, regulations, or stat- cept ‘‘Express Mail’’) is not rec-
utes. ommended for time-sensitive filings.
(3) Clearly label any exhibits and at- (3) Delivery is personal delivery by a
tachments. Do not include documents party, its employee, its attorney, or a
already submitted to SBA in connec- commercial delivery service.
tion with the matter being appealed. (4) Facsimile submissions should not
SBA will submit these directly to OHA. exceed 30 pages. Contact OHA before
(e) Motion for a more definite appeal faxing longer submissions. Follow-up
petition. A respondent, SBA, or a con- originals or ‘‘hard copies’’ are not re-
tracting officer (for NAICS appeals) quired unless OHA or another party
may, not later than five days after re- specifically requests them.
ceiving a petition, move for an order to (b) Filing. Filing is the receipt of
the petitioner to provide a more defi- pleadings and other submissions at
nite appeal petition or otherwise com- OHA. Filers may call OHA to verify re-
ply with this section. A Judge may ceipt. OHA’s telephone number is (202)
order a more definite appeal petition 401–8200.
on his or her own initiative. (1) OHA’s address. OHA accepts fil-
(1) A motion for a more definite ap- ings: by e-mail at OHAFilings@sba.gov;
peal petition stays the respondent’s by mail or delivery at Office of Hear-
time for filing an answer or response. ings and Appeals, U.S. Small Business
The Judge will establish the time for Administration, 409 Third Street, SW.,
filing and serving an answer or re- Washington, DC 20416; and by facsimile
sponse. at (202) 205–7059.
(2) If the petitioner does not comply (2) The date of filing is the date the
with the Judge’s order to provide a submission is received at OHA. Any
more definite appeal petition or other- submission received at OHA after 5
734
Small Business Administration § 134.205
p.m. eastern time is considered filed whom service was made. Each submis-
the next business day. sion to OHA must include a certificate
(3) Exhibits. An exhibit, whether an of service. The certificate should state:
original or a copy, must be authenti- ‘‘I certify that on [date], I served the
cated or identified to be what it pur- foregoing [type of submission] by [e-
ports to be. Parties are referred to 28 mail, mail, Express Mail, personal de-
U.S.C. 1746. livery, commercial delivery service,
(4) Copies. No extra copies of plead- facsimile] upon the following’’. List
ings or other submissions need be filed. the name and address of each party
If a document is offered as an exhibit, served, and either the facsimile num-
a copy of the document will be accept- ber or the e-mail address (if applica-
ed by the Judge unless— ble). The individual serving the sub-
(i) a genuine question is raised as to mission must sign the certificate and
whether it is a true and accurate copy; either print or type his or her name
or and title.
(ii) it would be unfair, under the cir-
cumstances, to admit the copy instead [75 FR 47439, Aug. 6, 2010]
of the original.
(c) Service. Service means sending a § 134.205 The appeal file, confidential
copy of a pleading or other submission information, and protective orders.
filed with OHA to another party. (a) The appeal file. The appeal file in-
(1) Complete copies of all pleadings cludes: all pleadings and other submis-
and other submissions filed with OHA sions; all admitted evidence; any re-
must be served upon all other parties cordings and transcripts of pro-
or, if represented, their attorneys, at ceedings; the solicitation and amend-
their record addresses. ments; in the case of an appeal of an
(2) The date of service is as follows: SBA determination, the entire record
for e-mail and facsimile, the date the on which that determination was based
copy is sent; for personal delivery, the (i.e., the administrative record, protest
date the copy is given to the party, its file, area office file); and any orders
attorney, or the commercial delivery and decisions that have been issued.
service (if one is used). For mail, date (b) Confidential business and financial
of service is postmark date; in absence information. An appeal file usually con-
of a legible postmark, there is a rebut- tains confidential business and finan-
table presumption that the copy was cial information pertaining to the
mailed five days before the served par- party whose eligibility (as a small busi-
ty’s receipt.
ness, SDVO SBC, etc.) is at issue. A
(3) SBA address. The correct office(s)
party may redact its own confidential
of SBA must be served, as required by
business and financial information
the applicable program regulations, by
from the copies of its submissions it
other subparts of part 134, or by the in-
must serve on other non-government
structions on the SBA determination
being appealed. If the SBA office for parties (usually protesters). A party
service is not specified elsewhere, served with redacted submissions must
serve: Office of General Counsel, U.S. file and serve any objections to the
Small Business Administration, 409 redactions within two business days of
Third Street, SW., Washington, DC its receipt of the submissions. The
20416. Judge then will rule on the objections
(4) Confidential information. If a plead- and, if necessary, order the service of
ing or other submission contains pro- revised submissions.
prietary or confidential information, (c) Public access. Except for confiden-
that information may be redacted (de- tial business and financial information;
leted) from any copies served upon non- source selection sensitive information;
government parties. Counsel for those income tax returns; documents and in-
parties may access the redacted infor- formation covered under § 120.1060 of
mation only under the protective order this title; and other exempt informa-
procedure described in § 134.205. tion, the appeal file is available to the
(d) Certificate of service. A certificate public pursuant to the Freedom of In-
of service shows how, when, and to formation Act (FOIA), 5 U.S.C. 552.
735
§ 134.206 13 CFR Ch. I (1–1–25 Edition)
(d) Party access. A party in a pending statement that the respondent denies
appeal may examine and copy the par- knowledge or information sufficient to
ty’s own submissions as well as any in- determine the truth of a particular al-
formation in the appeal file that is not legation;
exempt from disclosure under the (ii) Any affirmative defenses; and
FOIA. Party access to the appeal file in (iii) The name, address, telephone
a pending appeal does not require a number, facsimile number, and signa-
FOIA request or a protective order. ture of the respondent or its attorney.
(e) Counsel’s access under a protective (3) Allegations in the petition or
order. On request, OHA will issue a pro- order to show cause that are not an-
tective order under which outside swered in accordance with paragraph
counsel for a non-government party in (a)(2)(i) of this section will be deemed
a pending appeal may be admitted, to admitted unless injustice would occur.
examine and copy the appeal file (ex- (b) Appeal of an SBA determination. (1)
cept for tax returns and privileged in- Notice and order. Upon the filing of an
formation). The protective order will appeal petition, OHA will issue a notice
set out the terms to which counsel and order informing all known parties
must agree. The terms will restrict of the appeal petition and the deadline
counsel’s use of the protected informa- for filing and serving any responses to
tion to the pending appeal and will pro- the appeal. The SBA response is due 45
hibit any further disclosure. Violations days after the date the appeal petition
of the terms of a protective order may is filed, unless a rule governing the
result in sanctions to the party and re- particular type of appeal provides a dif-
ferral of the attorney to bar discipli- ferent deadline.
nary authorities. OHA’s Web site con- (2) SBA response. If SBA is the re-
tains detailed information on the pro- spondent, SBA need not admit or deny
tective order procedure. the allegations in the petition, but
(f) Decisions. OHA decisions are nor- must set forth the relevant facts and
mally published without redactions on the legal arguments in support of
OHA’s Web site. A decision may con- SBA’s determination.
tain confidential business and financial (3) Administrative record. If SBA is to
information where that information is file and serve an authenticated copy of
either decisionally-significant or oth- the administrative record (or protest
erwise necessary for a comprehensible file), the notice and order will provide
decision. Where no protective order is further instructions.
in place, a party may request a re- (4) Claim of privilege. If SBA asserts a
dacted public decision by contacting claim of privilege over any portion of
OHA. Where a protective order is in the administrative record, SBA must
place, the Judge will usually issue the serve the petitioner a redacted version,
unredacted decision under the protec- accompanied by a ‘‘Vaughn Index’’ de-
tive order and then a redacted version scribing each withheld item and justi-
for public release. fying each claim of privilege. SBA also
[75 FR 47440, Aug. 6, 2010, as amended at 85 must file an unredacted copy for in
FR 14784, Mar. 16, 2020] camera inspection by the Judge. The
Judge will afford the petitioner an op-
§ 134.206 The answer or response. portunity to object to the administra-
(a)(1) Except in a case involving a pe- tive record and to challenge any claim
tition appealing from an SBA deter- of privilege asserted by SBA.
mination, a respondent must file and (c) If a petition or order to show
serve an answer within 45 days after cause is amended or if respondent is
the filing of a petition or the service of not properly served, the Judge will
an order to show cause, except that in order the time to file an answer or re-
debt collection cases, answers are due sponse extended and will specify the
within 30 days. date such answer or response is due. If
(2) The answer must contain the fol- respondent is not properly served with
lowing: a petition appealing from an SBA de-
(i) An admission or denial of each of termination, the Judge will issue an
the factual allegations contained in the order directing that the petitioner
petition or order to show cause, or a serve respondent within a specified
736
Small Business Administration § 134.210
time and directing respondent to file mitted by the Judge only upon a show-
and serve a response within 45 days ing of good cause.
after petitioner timely serves respond- (d) Answer or response. In an order
ent in accordance with the order. permitting the filing and service of an
(d) If the respondent fails to timely amended or supplemented petition or
file and serve an answer or response, order to show cause, the Judge will es-
that failure will constitute a default. tablish the time for filing and serving
Following such a default, the Judge an answer or response.
may prohibit the respondent from par- [61 FR 2683, Jan. 29, 1996, as amended at 67
ticipating further in the case. If SBA, FR 47248, July 18, 2002; 75 FR 47441, Aug. 6,
as respondent to a petition appealing 2010]
from an SBA determination, fails to
timely file and serve its response or the § 134.208 Representation in cases be-
administrative record (where required), fore OHA.
the Judge will issue an order directing (a) A party may represent itself, or
SBA to file and serve the administra- be represented by an attorney. A part-
tive record by a specified date. ner may represent a partnership; a
(e) Reply. A reply to a response is not member may represent a limited liabil-
permitted unless the Judge, upon mo- ity company; and an officer may rep-
tion or on his or her own initiative, or- resent a corporation, trust, associa-
ders a reply to be filed and served. A tion, or other entity.
party moving for leave to reply should (b) An attorney for a party who did
file and serve the proposed reply with not appear on behalf of that party in
its motion. the party’s first filing with OHA must
file and serve a written notice of ap-
[67 FR 47247, July 18, 2002, as amended at 75 pearance.
FR 47440, Aug. 6, 2010]
(c) An attorney seeking to withdraw
§ 134.207 Amendments and supple- from a case must file and serve a mo-
mental pleadings. tion for the withdrawal of his or her
appearance.
(a) Amendments. Upon motion (see
§ 134.211), and under terms needed to [67 FR 47248, July 18, 2002]
avoid prejudice to any non-moving
§ 134.209 Requirement of signature.
party, the Judge may permit the filing
and service of amendments to plead- Every written submission to OHA,
ings. However, an amendment will not other than evidence, must be signed by
be permitted if it would cause unrea- the party filing that submission, or by
sonable delay in the determination of the party’s attorney. By signing the
the matter. The proposed amendment submission, a party or its attorney at-
must be filed and served with the mo- tests that the statements and allega-
tion. The Judge, on his or her own ini- tions in that submission are true to the
tiative, may order a party to file and best of its knowledge, and that the sub-
serve an amendment to a pleading. mission is not being filed for the pur-
(b) Supplemental pleadings. Upon mo- pose of delay or harassment. False
tion (see § 134.211), and under terms statements are subject to criminal pen-
needed to avoid prejudice to any non- alties. Any misconduct is subject to
moving party, the Judge may permit sanctions (see § 134.219).
the filing and service of a supplemental [61 FR 2683, Jan. 29, 1996, as amended at 75
pleading setting forth relevant trans- FR 47441, Aug. 6, 2010]
actions or occurrences that have taken
place since the filing of the original § 134.210 Intervention.
pleading. The proposed supplemental (a) By SBA. SBA may intervene as of
pleading must be filed and served with right at any time in any case until 15
the motion. The Judge, on his or her days after the close of record, or the
own initiative, may order a party to issuance of a decision, whichever
file and serve a supplemental pleading. comes first.
(c) 8(a) appeals. In 8(a) program ap- (b) By interested persons. Any inter-
peals, amendments to pleadings and ested person may move to intervene at
supplemental pleadings will be per- any time until the close of record by
737
§ 134.211 13 CFR Ch. I (1–1–25 Edition)
filing and serving a motion to inter- least two business days before the
vene containing a statement of the original deadline.
moving party’s interest in the case and [61 FR 2683, Jan. 29, 1996, as amended at 63
the necessity for intervention to pro- FR 35766, June 30, 1998; 67 FR 47248, July 18,
tect such interest. An interested per- 2002; 75 FR 47441, Aug. 6, 2010]
son is any individual, business entity,
or governmental agency that has a di- § 134.212 Summary judgment.
rect stake in the outcome of the ap- (a) On motion by a party. At any time
peal. The Judge may grant leave to in- before the close of record, a party may
tervene upon such terms as he or she move for summary judgment as to all
deems appropriate. or any portion of the case, on the
[67 FR 47248, July 18, 2002] grounds that there is no genuine issue
as to any material fact, and that the
§ 134.211 Motions. moving party is entitled to a decision
in its favor as a matter of law.
(a) Contents. All motions must state (1) Contents of motion. The motion
the relief being requested, as well as must include a statement of the mate-
the grounds and any authority for that rial facts believed to be undisputed and
relief. A motion must be filed, served, the party’s legal arguments. The mo-
and accompanied by a certificate of tion may include supporting state-
service (see § 134.204). ments in accordance with 28 U.S.C.
(b) Statement of whether motion is op- 1746. The motion must be filed, served,
posed. Except when filing a motion to and accompanied by a certificate of
dismiss or a motion for summary deci- service (see § 134.204).
sion, the moving party must make rea- (2) Response. No later than 15 days
sonable efforts before filing the motion after the service of a motion for sum-
to contact any non-moving party and mary judgment, all non-moving parties
determine whether it will oppose the must file and serve a response to the
motion and must state in the motion motion or be deemed to have consented
whether each non-moving party will to the motion for summary judgment.
oppose or not oppose the motion. If the (3) Cross-motions. In its response to a
moving party cannot determine wheth- motion for summary judgment, a party
er a non-moving party will oppose the may cross-move for summary judg-
motion, the moving party must de- ment. The initial moving party must
scribe in the motion the efforts made file and serve a response to any cross-
to contact that non-moving party. motion for summary judgment within
(c) Response. All non-moving parties 15 days after the service of that cross-
must file and serve a response to the motion or be deemed to have consented
motion or be deemed to have consented to the cross-motion for summary judg-
to the relief sought. The response is ment.
due no later than 15 days after the mo- (4) Stay. If an answer or response to
tion is served, unless the Judge sets a the appeal petition has not yet been
different deadline. On motion, or on his filed, the motion for summary judg-
or her own initiative, the Judge may ment stays the respondent’s time to
permit a reply to a response and/or oral answer or respond. If the Judge denies
argument on the motion. the motion and an answer or response
(d) Service of orders. OHA will serve has not yet been filed, the respondent
upon all parties any written order must file the answer or response within
issued in response to a motion. 15 days after the order deciding the mo-
(e) Motion to dismiss. A respondent tion unless otherwise ordered by the
may file a motion to dismiss any time Judge.
before a decision is issued. If an answer (b) On the Judge’s own initiative. The
or response to the appeal petition has Judge may issue an order granting
not yet been filed, the motion to dis- summary judgment as to all or any
miss stays the respondent’s time to an- portion of the case in absence of a mo-
swer or respond. tion if there is no genuine issue to any
(f) Motion for an extension of time. Ex- material fact, and a party is entitled to
cept for good cause shown, a motion for a decision in its favor as a matter of
an extension of time must be filed at law.
738
Small Business Administration § 134.215
(c) Appeal of an SBA determination. If (c) Service. A subpoena may only be
the SBA determination being appealed served by personal delivery. The indi-
was based on multiple grounds, SBA vidual making service shall prepare an
may move for summary judgment on affidavit stating the date, time, and
one or more of those grounds. If the place of the service. The party which
Judge finds, as to any ground, that obtained the subpoena must serve upon
there is no genuine issue of material all other parties, and file with OHA, a
fact and that the SBA is entitled to a copy of the subpoena and affidavit of
decision in its favor as a matter of law, service within 2 days after service is
the Judge will grant the motion for made.
summary judgment and dismiss the (d) Motion to quash. A motion to limit
rest of the appeal. or quash a subpoena must be filed and
served within 10 days after service of
[75 FR 47441, Aug. 6, 2010] the subpoena, or by the return date of
§ 134.213 Discovery. the subpoena, whichever date comes
first. Any response to the motion must
(a) Motion. A party may obtain dis- be filed and served within 10 days after
covery only upon motion, and for good service of the motion, unless a shorter
cause shown. time is specified by the Judge. No oral
(b) Forms. The forms of discovery argument will be heard on the motion
which a Judge can order under para- unless the Judge directs otherwise.
graph (a) of this section include re-
quests for admissions, requests for pro- [61 FR 2683, Jan. 29, 1996, as amended at 67
FR 47249, July 18, 2002; 75 FR 47441, Aug. 6,
duction of documents, interrogatories, 2010]
and depositions.
(c) Limitations. Discovery may be lim- § 134.215 Interlocutory appeals.
ited in accordance with the terms of a
(a) General. A motion for leave to
protective order (see § 134.205). Further,
take an interlocutory appeal from a
privileged information and irrelevant
Judge’s ruling will not be entertained
issues or facts will not be subject to
in those proceedings in which OHA
discovery.
issues final decisions. In all other
(d) Disputes. If a dispute should arise
cases, an interlocutory appeal will be
between the parties over a particular
permitted only if, upon motion by a
discovery request, the party seeking
party, or upon the Judge’s own initia-
discovery may file and serve a motion
tive, the Judge certifies that his or her
to compel discovery. Discovery may be
ruling raises a question which is imme-
opposed on the grounds of harassment,
diately appealable. Interlocutory ap-
needless embarrassment, irrelevance,
peals will be decided by the AA/OHA or
undue burden or expense, privilege, or
a designee.
confidentiality. (b) Motion for certification. A party
[61 FR 2683, Jan. 29, 1996, as amended at 63 must file and serve a motion for cer-
FR 35766, June 30, 1998; 67 FR 47249, July 18, tification no later than 20 days after
2002; 75 FR 47441, Aug. 6, 2010] issuance of the ruling to which the mo-
tion applies. A denial of the motion
§ 134.214 Subpoenas. does not preclude objections to the rul-
(a) Availability. At the request of a ing in any subsequent request for re-
party, or upon his or her own initia- view of an initial decision.
tive, a Judge may issue a subpoena re- (c) Basis for certification. The Judge
quiring a witness to appear and testify, will certify a ruling for interlocutory
or to produce particular documents, at appeal only if he or she determines
a specified time and place. that:
(b) Requests. A request for the (1) The ruling involves an important
issuance of a subpoena must be writ- question of law or policy about which
ten, served upon all parties, and filed. there is substantial ground for a dif-
The request must clearly identify the ference of opinion; and
witness and any documents to be sub- (2) An interlocutory appeal will ma-
poenaed, and must set forth the rel- terially expedite resolution of the case,
evance of the testimony or documents or denial of an interlocutory appeal
sought. would cause undue hardship to a party.
739
§ 134.216 13 CFR Ch. I (1–1–25 Edition)
(d) Stay of proceedings. A stay while trative Procedure Act, 5 U.S.C. 551 et
an interlocutory appeal is pending will seq., to an Administrative Law Judge.
be at the discretion of the Judge. The AA/OHA will assign all other cases
before OHA to either an Administra-
[61 FR 2683, Jan. 29, 1996, as amended at 67
FR 47249, July 18, 2002] tive Law Judge or an Administrative
Judge, or, if the AA/OHA is a duly li-
§ 134.216 Alternative dispute resolu- censed attorney, to himself or herself.
tion procedures. (b) Authority. Except as otherwise
(a) At any time during the pendency limited by this part, or by statute or
of a case, the parties may submit a other regulation, a Judge has the au-
joint motion requesting that the Judge thority to take all appropriate action
permit the use of alternative dispute to ensure the efficient, prompt, and
resolution procedures to assist in re- fair determination of a case, including,
solving the matter. If the motion is but not limited to, the authority to ad-
granted, the Judge will also stay the minister oaths and affirmations and to
proceedings before OHA, in whole or in subpoena and examine witnesses.
part, as he or she deems appropriate, (c) Recusal. Upon the motion of a
pending the outcome of the alternative party, or upon the Judge’s own initia-
dispute resolution procedures. tive, a Judge will promptly recuse him-
(b) A Judge may offer alternative dis- self or herself from further participa-
pute resolution procedures to the par- tion in a case whenever disqualifica-
ties at any time during the proceeding. tion is appropriate due to conflict of
(c) The AA/OHA or a Judge may des- interest, bias, or some other significant
ignate a Judge or attorney assigned to reason. A denial of a motion for recusal
OHA to serve as a neutral in alter- may be appealed within 5 days to the
native dispute resolution procedures. If AA/OHA, or to the Administrative Law
OHA provides the neutral and the me- Judge if the AA/OHA is the Judge, but
diation fails to resolve all issues in the that appeal will not stay proceedings
case, the OHA-provided neutral will in the case.
not be involved in the adjudication. [61 FR 2683, Jan. 29, 1996, as amended at 75
FR 47441, Aug. 6, 2010]
[61 FR 2683, Jan. 29, 1996, as amended at 75
FR 47441, Aug. 6, 2010] § 134.219 Sanctions.
§ 134.217 Settlement. (a) A Judge may impose appropriate
At any time during the pendency of a sanctions, except for fees, costs, or
case, the parties may submit a joint monetary penalties, which he or she
motion to dismiss the appeal if they deems necessary to serve the ends of
have settled the case, and may file justice, if a party or its attorney:
with such motion a copy of the settle- (1) Fails to comply with an order of
ment agreement. If the Judge has ex- the Judge;
press authority, under statute, SBA (2) Fails to comply with the rules set
regulation or SBA standard operating forth in this part;
procedures, to review the contents of a (3) Acts in bad faith or for purposes
settlement agreement for legality, the of delay or harassment;
(4) Submits false statements know-
Judge may order the parties to file a
ingly, recklessly, or with deliberate
copy of the settlement agreement. Oth-
disregard for the truth; or
erwise, upon the filing of a joint mo-
(5) Otherwise acts in an unethical or
tion to dismiss, the Judge will issue an
disruptive manner.
order dismissing the case. Settlement
(b) Appropriate sanctions may in-
negotiations, and rejected settlement
clude:
agreements, are not admissible into
(1) Ordering a pleading or evidentiary
evidence.
filing to be struck from the record;
[61 FR 2683, Jan. 29, 1996, as amended at 67 (2) Dismissing an appeal with preju-
FR 47249, July 18, 2002] dice;
(3) Suspending counsel from practice
§ 134.218 Judges. before OHA;
(a) Assignment. The AA/OHA will as- (4) Filing a complaint with the appli-
sign all cases subject to the Adminis- cable State bar; and
740
Small Business Administration § 134.226
(5) Taking any other action that is at an oral hearing by subpoena must
appropriate to further the administra- pay to that witness the fees and mile-
tion of justice. age costs to which the witness would
[75 FR 47441, Aug. 6, 2010]
be entitled in Federal court.
(e) Recording. Oral hearings will be
§ 134.220 Prohibition against ex parte recorded verbatim. A transcript of a re-
communications. cording may be purchased by a party,
No person shall consult or commu- at its own expense, from the recording
nicate with a Judge concerning any service.
fact, question of law, or SBA policy rel- [61 FR 2683, Jan. 29, 1996, as amended at 63
evant to the merits of a case before FR 35766, June 30, 1998; 70 FR 17587, Apr. 7,
that Judge except on prior notice to all 2005; 75 FR 47442, Aug. 6, 2010]
parties, and with the opportunity for
all parties to participate. In the event § 134.223 Evidence.
of such prohibited consultation or com- (a) Federal Rules of Evidence. Unless
munication, the Judge will disclose the contrary to a particular rule in this
occurrence in accordance with 5 U.S.C. part, or an order of the Judge, the Fed-
557(d)(1), and may impose such sanc- eral Rules of Evidence will be used as a
tions as he or she deems appropriate. general guide in all cases before OHA.
(b) Hearsay. Hearsay evidence is ad-
§ 134.221 Prehearing conferences. missible if it is deemed by the Judge to
Prior to a hearing, the Judge, at his be relevant and reliable. Weight to be
or her own initiative, or upon the mo- afforded hearsay evidence is at the dis-
tion of any party, may direct the par- cretion of the Judge.
ties or their attorneys to appear, by
[61 FR 2683, Jan. 29, 1996, as amended at 75
telephone or in person, in order to con- FR 47442, Aug. 6, 2010]
sider any matter which may assist in
the efficient, prompt, and fair deter- § 134.224 [Reserved]
mination of the case. The conference
may be recorded verbatim at the dis- § 134.225 The record.
cretion of the Judge, and, if so, a party (a) Contents. The record of a case be-
may purchase a transcript, at its own fore OHA will consist of all pleadings,
expense, from the recording service. motions, and other non-evidentiary
§ 134.222 Oral hearing. submissions, all admitted evidence, all
orders and decisions, and any tran-
(a) Availability. A party may obtain scripts of proceedings in the case.
an oral hearing only if: (b) Closure. The Judge will set the
(1) It is required by regulation; or date upon which the pre-decisional
(2) Following the motion of a party, record of the case will be closed, and
or at his or her own initiative, the after which no additional evidence or
Judge orders an oral hearing upon con- argument will be accepted.
cluding that there is a genuine dispute
as to a material fact that cannot be re- [61 FR 2683, Jan. 29, 1996, as amended at 75
solved except by the taking of testi- FR 47442, Aug. 6, 2010]
mony and the confrontation of wit-
nesses. § 134.226 The decision.
(b) Place and time. The place and time (a) Contents. (1) Following close of
of oral hearings is within the discre- record, the Judge will issue a decision
tion of the Judge, who shall give due containing findings of fact and conclu-
regard to the necessity and conven- sions of law, the reasons for such find-
ience of the parties, their attorneys, ings and conclusions, and any relief or-
and witnesses. The Judge may direct dered. The record will constitute the
that an oral hearing be conducted by exclusive basis for a decision.
telephone. (2) An OHA decision creates prece-
(c) Public access. Unless otherwise or- dent, unless:
dered by the Judge, all oral hearings (i) Another regulation in this chapter
are public. applicable to a specific type of appeal
(d) Payment of subpoenaed witnesses. A provides that the OHA decision does
party who obtains a witness’s presence not create precedent; or
741
§ 134.227 13 CFR Ch. I (1–1–25 Edition)
(ii) the decision is designated as one (5) In other proceedings as provided
not to be cited as precedent. either in the applicable program regu-
(3) A summary decision containing lations or in other subparts of this part
only cursory findings of fact and con- 134.
clusions of law may be issued only if (c) Reconsideration. Except as other-
the Judge finds a full decision will not wise provided by statute, the applica-
advance understanding of Federal stat- ble program regulations in this chap-
utes or applicable regulations, policies, ter, or this part 134, an initial or final
or procedures and the underlying facts decision of the Judge may be reconsid-
and law are of a routine and non-com- ered. Any party in interest, including
plex nature. SBA where SBA did not appear as a
(b) Time limits. Decisions pertaining party during the proceeding that led to
to the collection of debts owed to SBA the issuance of the Judge’s decision,
and the United States under the Debt may request reconsideration by filing
Collection Act of 1982, the Debt Collec- with the Judge and serving a petition
tion Improvement Act of 1996, and Part for reconsideration within 20 days after
140 of this chapter must be made with- service of the written decision, upon a
in 60 days after a petition is filed. Time clear showing of an error of fact or law
limits for decisions in other types of material to the decision. The Judge
cases, if any, are indicated either in also may reconsider a decision on his
the applicable program regulations or or her own initiative.
in other subparts of this part 134.
[67 FR 47249, July 18, 2002, as amended at 70
(c) Service. OHA will serve a copy of FR 17587, Apr. 7, 2005; 81 FR 48595, July 25,
all written decisions on: 2016; 82 FR 25507, June 2, 2017]
(1) Each party, or, if represented by
counsel, on its counsel; and § 134.228 Review of initial decisions.
(2) SBA’s General Counsel, or his or
(a) Request for review. Within 30 days
her designee, if SBA is not a party.
after the service of an initial decision
[61 FR 2683, Jan. 29, 1996, as amended at 67 or a reconsidered initial decision of a
FR 47249, July 18, 2002; 70 FR 17587, Apr. 7, Judge, any party, or SBA’s Office of
2005; 75 FR 47442, Aug. 6, 2010] General Counsel, may file and serve a
request for review by the Adminis-
§ 134.227 Finality of decisions. trator. A request for review must set
(a) Initial decisions. Except as other- forth the filing party’s specific objec-
wise provided in paragraph (b) of this tions to the initial decision, and any
section, a decision by the Judge on the alleged support for those objections in
merits is an initial decision. However, the record, or in case law, statute, reg-
unless a request for review is filed pur- ulation, or SBA policy. A party must
suant to § 134.228(a), or a request for re- serve its request for review upon all
consideration is filed pursuant to para- other parties and upon SBA’s Office of
graph (c) of this section, an initial de- General Counsel.
cision shall become the final decision (b) Response. Within 20 days after the
of the SBA 30 days after its service. service of a request for review, any
(b) Final decisions. A decision by the party, or SBA’s Office of General Coun-
Judge on the merits shall be a final de- sel, may file and serve a response. A
cision in the following proceedings: party must serve its response upon all
(1) Collection of debts owed to SBA other parties and upon SBA’s Office of
and the United States under the Debt General Counsel.
Collection Act of 1982, Debt Collection (c) Transfer of the record. Upon receipt
Improvement Act of 1996, and part 140 of all responses, or 30 days after the fil-
of this chapter; ing of a request for review, whichever
(2) Appeals from SBA 8(a) program is earlier, OHA will transfer the record
determinations under the Act and part of the case to the Administrator. The
124 of this chapter; Administrator, or his or her designee,
(3) Appeals from size determinations will then review the record.
and NAICS code designations under (d) Standard of review. Upon review,
part 121 of this chapter; the Administrator, or his or her des-
(4) Size Standard Petitions; and ignee, will sustain the initial decision
742
Small Business Administration § 134.305
unless it is based on an erroneous find- (a) Any person adversely affected by
ing of fact or an erroneous interpreta- a size determination;
tion or application of case law, statute, (b) Any person adversely affected by
regulation, or SBA policy. a NAICS code designation. However,
(e) Order. The Administrator, or his with respect to a particular sole source
or her designee, will: 8(a) contract, only the Director, Office
(1) Affirm, reverse, or modify the ini- of Business Development may appeal a
tial decision, which determination will NAICS code designation;
become the final decision of the SBA (c) The Associate or Assistant Ad-
upon issuance; or ministrator for the SBA program in-
(2) Remand the initial decision to the volved, through SBA’s Office of Gen-
Judge for appropriate further pro- eral Counsel; or
ceedings. (d) The procuring agency contracting
[61 FR 2683, Jan. 29, 1996, as amended at 67 officer responsible for the procurement
FR 47249, July 18, 2002] affected by a size determination.
[61 FR 2683, Jan. 29, 1996, as amended at 67
§ 134.229 Termination of jurisdiction. FR 47249, July 18, 2002; 74 FR 45754, Sept. 4,
Except when the Judge reconsiders a 2009; 75 FR 47442, Aug. 6, 2010]
decision or remands the case, the juris-
diction of OHA will terminate upon the § 134.303 Advisory opinions.
issuance of a decision resolving all ma- The Office of Hearings and Appeals
terial issues of fact and law. If the does not issue advisory opinions.
Judge reconsiders a decision, OHA’s ju-
[67 FR 47249, July 18, 2002]
risdiction terminates when the Judge
issues the decision after reconsider- § 134.304 Commencement of appeals
ation. If the Judge remands the case, from size determinations and
the Judge may retain jurisdiction at NAICS code designations.
his or her own discretion, and the re-
mand order may include the terms and (a) Size appeals must be filed within
duration of the remand. 15 calendar days after receipt of the
formal size determination.
[67 FR 47249, July 18, 2002] (b) NAICS code appeals must be filed
within 10 calendar days after issuance
Subpart C—Rules of Practice for of the solicitation, or amendment to
Appeals From Size Determina- the solicitation affecting the NAICS
tions and NAICS Code Des- code or size standard. However, SBA
ignations may file a NAICS code appeal at any
time before offers or bids are due.
§ 134.301 Scope of the rules in this sub- (c) An untimely appeal will be dis-
part C. missed.
The rules of practice in this subpart [76 FR 5685, Feb. 2, 2011]
C apply to all appeals to OHA from:
(a) Formal size determinations made § 134.305 The appeal petition.
by an SBA Government Contracting (a) Form. There is no required format
Area Office, under part 121 of this chap- for an appeal petition. However, it
ter, or by a Disaster Area Office, in must include the following informa-
connection with applications for dis- tion:
aster loans; and (1) In a size appeal, a copy of the size
(b) NAICS code designations, pursu- determination being appealed;
ant to part 121 of this chapter. (2) The solicitation or contract num-
[61 FR 2683, Jan. 29, 1996, as amended at 67 ber, and the name, address, and tele-
FR 47249, July 18, 2002] phone number of the contracting offi-
cer;
§ 134.302 Who may appeal. (3) A full and specific statement as to
Appeals from size determinations and why the size determination or NAICS
NAICS code designations may be filed code designation is alleged to be in
with OHA by the following, as applica- error, together with argument sup-
ble: porting such allegations; and
743
§ 134.306 13 CFR Ch. I (1–1–25 Edition)
(4) The name, address, telephone ment, the procuring agency con-
number, facsimile number, and signa- tracting officer must immediately send
ture of the appellant or its attorney. to OHA an electronic link to or a paper
(b) Service of size determination ap- copy of both the original solicitation
peals. The appellant must serve the ap- relating to that procurement and all
peal petition upon each of the fol- amendments.
lowing: [61 FR 2683, Jan. 29, 1996, as amended at 67
(1) The SBA official who issued the FR 47250, July 18, 2002; 75 FR 47442, Aug. 6,
size determination; 2010]
(2) The contracting officer respon-
sible for the procurement affected by a § 134.307 Service and filing require-
size determination; ments.
(3) The business concern whose size The provisions of § 134.204 apply to
status is at issue; the service and filing of all pleadings
(4) All persons who filed protests; and and other submissions permitted under
(5) SBA’s Office of General Counsel, this subpart.
Associate General Counsel for Procure-
ment Law, 409 Third Street, SW., § 134.308 Limitation on new evidence
Washington, DC 20416, facsimile (202) and adverse inference from non-
205–6873, or e-mail at submission in appeals from size de-
OPLService@sba.gov. terminations.
(c) Service of NAICS appeals. The ap- (a) Evidence not previously presented
pellant must serve: to the Area Office which issued the size
(1) The contracting officer who made determination being appealed will not
the NAICS code designation; and be considered by a Judge unless:
(2) SBA’s Office of General Counsel, (1) The Judge, on his or her own ini-
Associate General Counsel for Procure- tiative, orders the submission of such
ment Law, 409 Third Street, SW., evidence; or
Washington, DC 20416, facsimile (202) (2) A motion is filed and served estab-
205–6873, or e-mail at lishing good cause for the submission
OPLService@sba.gov. of such evidence. The offered new evi-
(d) Certificate of service. The appellant dence must be filed and served with the
must attach to the appeal petition a motion.
signed certificate of service meeting (b) If the submission of evidence is
the requirements of § 134.204(d). ordered by a Judge, and the party in
(e) Dismissal. An appeal petition possession of that evidence does not
which does not contain all of the infor- submit it, the Judge may draw adverse
mation required in paragraph (a) of inferences against that party.
this section may be dismissed, with or [61 FR 2683, Jan. 29, 1996, as amended at 67
without prejudice, by the Judge at his FR 47250, July 18, 2002]
or her own initiative, or upon motion
of a respondent. § 134.309 Response to an appeal peti-
tion.
[61 FR 2683, Jan. 29, 1996, as amended at 65
FR 57542, Sept. 25, 2000; 67 FR 47250, July 18, (a) Who may respond. Any person
2002; 69 FR 29208, May 21, 2004; 75 FR 47442, served with an appeal petition, any in-
Aug. 6, 2010] tervenor, or any person with a general
interest in an issue raised by the ap-
§ 134.306 Transmission of the case file peal may file and serve a response sup-
and solicitation. porting or opposing the appeal. The re-
(a) Upon receipt of an appeal petition sponse should present argument.
pertaining to a size determination, the (b) Time limits. The Judge will issue a
Area Office which issued the size deter- Notice and Order informing the parties
mination must immediately send to of the filing of the appeal petition, es-
OHA the entire case file relating to tablishing the close of record as 15 days
that determination. after service of the Notice and Order,
(b) Upon receipt of an appeal petition and informing the parties that OHA
pertaining to a NAICS code designa- must receive any responses to the ap-
tion, or a size determination made in peal petition no later than the close of
connection with a particular procure- record.
744
Small Business Administration § 134.318
(c) Service. The respondent must evidence, in both size and NAICS code
serve its response upon the appellant appeals.
and upon each of the persons identified [61 FR 2683, Jan. 29, 1996, as amended at 67
in the certificate of service attached to FR 47250, July 18, 2002; 69 FR 29209, May 21,
the appeal petition pursuant to 2004]
§ 134.305.
(d) Reply to a response. No reply to a § 134.315 The record.
response will be permitted unless the Where relevant, the provisions of
Judge directs otherwise. § 134.225 apply. In an appeal under this
subpart, the contents of the record also
[61 FR 2683, Jan. 29, 1996, as amended at 67
FR 47250, July 18, 2002]
include the case file or solicitation
submitted to OHA in accordance with
§ 134.310 Discovery. § 134.306.
Discovery will not be permitted in [61 FR 2683, Jan. 29, 1996, as amended at 75
appeals from size determinations or FR 47442, Aug. 6, 2010]
NAICS code designations. § 134.316 The decision.
[61 FR 2683, Jan. 29, 1996, as amended at 67 (a) The Judge shall issue a size ap-
FR 47250, July 18, 2002] peal decision, insofar as practicable,
within 60 calendar days after close of
§ 134.311 Oral hearings. the record.
Oral hearings will not be held in ap- (b) The Judge shall issue a NAICS
peals from NAICS code designations, code appeal decision as soon as prac-
and will be held in appeals from size ticable after close of the record.
determinations only upon a finding by (c) Contents. Following closure of the
the Judge of extraordinary cir- record, the Judge will issue a decision
cumstances. If such an oral hearing is containing findings of fact and conclu-
ordered, the proceeding shall be con- sions of law, reasons for such findings
ducted in accordance with those rules and conclusions, and any relief ordered.
of subpart B of this part as the Judge The Judge will not decide substantive
deems appropriate. issues raised for the first time on ap-
peal, or which have been abandoned or
[61 FR 2683, Jan. 29, 1996, as amended at 67 become moot.
FR 47250, July 18, 2002] (d) Finality. The decision is the final
decision of the SBA and becomes effec-
§ 134.312 Evidence.
tive upon issuance. Where a size appeal
To the extent the rules in this sub- is dismissed, the Area Office size deter-
part permit the submission of evidence, mination remains in effect.
the provisions of § 134.223 (a) and (b) (e) Service. OHA will serve a copy of
apply. all written decisions on:
(1) Each party, or, if represented by
§ 134.313 Applicability of subpart B counsel, on its counsel; and
provisions. (2) SBA’s General Counsel, or his or
Except where inconsistent with this her designee, if SBA is not a party.
subpart C, the provisions of subpart B (f) Reconsideration. The decision in a
of this part apply to appeals from size NAICS code appeal may not be recon-
determinations and NAICS code des- sidered.
ignations. [61 FR 2683, Jan. 29, 1996, as amended at 67
FR 47250, July 18, 2002; 69 FR 29209, May 21,
[67 FR 47250, July 18, 2002]
2004; 76 FR 5685, Feb. 2, 2011]
§ 134.314 Standard of review and bur- § 134.317 [Reserved]
den of proof.
The standard of review is whether § 134.318 NAICS appeals.
the size determination or NAICS code (a) General. The regulations at
designation was based on clear error of §§ 121.402, 121.1102, and 121.1103 of this
fact or law. The appellant has the bur- chapter also apply to NAICS code ap-
den of proof, by a preponderance of the peals.
745
§ 134.401 13 CFR Ch. I (1–1–25 Edition)
(b) Effect of OHA’s decision. If OHA § 134.403 Service of appeal petition.
grants the appeal (changes the NAICS
Concurrent with its filing with OHA,
code), the contracting officer must
the petitioner also must serve separate
amend the solicitation to reflect the
copies of the petition, including at-
new NAICS code. The decision will also
tachments, on two SBA officials.
apply to future solicitations for the
(a) All 8(a) appeals must be served to:
same supplies or services.
Director, Office of Business Develop-
(c) Summary dismissal. OHA may sum-
ment, U.S. Small Business Administra-
marily dismiss a NAICS appeal either
tion, 409 Third Street, SW., Wash-
on the Judge’s own initiative or on mo-
ington, DC 20416, facsimile (202) 205–
tion by a party. A summary dismissal
5206, or e-mail at 8aBD2@sba.gov.
may be with or without prejudice, and
may be issued before the date set for (b)(1) Appeals of early graduation or
close of record. Grounds for summary termination also must be served to: As-
dismissal include: premature appeal, sociate General Counsel for Litigation,
withdrawn appeal, settlement, can- U.S. Small Business Administration,
cellation of the procurement, and con- 409 Third Street, SW., Washington, DC
tract award. 20416, facsimile (202) 205–7415, or e-mail
at OLITService@sba.gov.
[75 FR 47442, Aug. 6, 2010, as amended at 85 (2) Appeals of denial of program ad-
FR 66199, Oct. 16, 2020] mission, suspension of program assist-
ance, or denial of a request for waiver
Subpart D—Rules of Practice for also must be served to: Associate Gen-
Appeals Under the 8(a) Program eral Counsel for Procurement Law,
U.S. Small Business Administration,
SOURCE: 63 FR 35766, June 30, 1998, unless 409 Third Street, SW., Washington, DC
otherwise noted. 20416, facsimile (202) 205–6873, or e-mail
at OPLService@sba.gov.
§ 134.401 Scope of the rules in this sub-
part D. [75 FR 47442, Aug. 6, 2010]
The rules of practice in this subpart § 134.404 Deadline for filing appeal pe-
D apply to all appeals to OHA from: tition.
(a) Denials of 8(a) BD program admis-
sion based solely on a negative find- An 8(a) appeal petition must be filed
ing(s) of social disadvantage, economic within 45 calendar days after receipt of
disadvantage, ownership or control the SBA determination being appealed.
pursuant to § 124.206 of this title; [75 FR 47442, Aug. 6, 2010]
(b) Early graduation pursuant to
§§ 124.302 and 124.304; § 134.405 Jurisdiction.
(c) Termination pursuant to §§ 124.303 (a) The Administrative Law Judge se-
and 124.304; lected to preside over an appeal shall
(d) Denials of requests to issue a decline to accept jurisdiction over any
waiver pursuant to § 124.515; and matter if:
(e) Suspensions pursuant to (1) The appeal does not, on its face,
§ 124.305(a). allege facts that, if proven to be true,
§ 134.402 Appeal petition. would warrant reversal or modification
of the determination, including appeals
In addition to the requirements of of denials of 8(a) BD program admis-
§ 134.203, an appeal petition must state, sion based in whole or in part on
with specific reference to the deter- grounds other than a negative finding
mination and the record supporting of social disadvantage, economic dis-
such determination, the reasons why advantage, ownership or control;
the determination is alleged to be arbi- (2) The appeal is untimely filed or is
trary, capricious or contrary to law. not otherwise filed in accordance with
This section does not apply to suspen- the requirements of this subpart or the
sion appeals. For suspensions, see requirements in subparts A and B of
§ 124.305 of this chapter. this part; or
[63 FR 35766, June 30, 1998, as amended at 67 (3) The matter has been decided or is
FR 47250, July 18, 2002] the subject of an adjudication before a
746
Small Business Administration § 134.406
court of competent jurisdiction over ever, need not contain all documents
such matters. pertaining to the petitioner. For exam-
(b) Once the Administrative Law ple, the administrative record in a ter-
Judge accepts jurisdiction over an ap- mination proceeding need not include
peal, subsequent initiation of an adju- the Participant’s entire business plan
dication of the matter by a court of file, documents pertaining to specific
competent jurisdiction will not pre- 8(a) contracts, or the firm’s application
clude the Administrative Law Judge for participation in the 8(a) BD pro-
from rendering a final decision on the gram if they are unrelated to the ter-
matter. mination action. The SBA may claim
(c) Jurisdiction of the Administrative privilege as to certain materials.
Law Judge in a suspension case is lim- (2) The petitioner may object to the
ited to the issue of whether the protec- absence of a document, previously sub-
tion of the Government’s interest re- mitted to, or sent by, SBA, which the
quires suspension pending resolution of
petitioner believes was erroneously
the termination action, unless the Ad-
omitted from the administrative
ministrative Law Judge has consoli-
record. The petitioner also may object
dated the suspension appeal with the
to a claim of privilege made by the
corresponding termination appeal.
SBA. The petitioner’s objections must
[63 FR 35766, June 30, 1998; 75 FR 47443, Aug. be filed and served no later than 10
6, 2010] days of its receipt of the administra-
tive record.
§ 134.406 Review of the administrative
record. (3) In the absence of any objection by
the petitioner or a finding by the Judge
(a) Any proceeding conducted under pursuant to paragraph (e) of this sec-
§ 134.401(a) through (d) shall be decided tion that the record is insufficiently
solely on a review of the written ad- complete to decide whether the deter-
ministrative record, except as provided mination was arbitrary, capricious, or
in § 134.407 and in suspension appeals. contrary to law, the administrative
For suspension appeals under record submitted by SBA shall be
§ 134.401(e), see § 124.305(d) of this chap-
deemed complete.
ter.
(b) Except in suspension appeals, the (d) Where the Agency files its re-
Administrative Law Judge’s review is sponse to the appeal petition after the
limited to determining whether the date specified in § 134.206, the Adminis-
Agency’s determination is arbitrary, trative Law Judge may decline to con-
capricious, or contrary to law. As long sider the response and base his or her
as the Agency’s determination is not decision solely on a review of the ad-
arbitrary, capricious or contrary to ministrative record.
law, the Administrative Law Judge (e) Remand. (1) The Administrative
must uphold it on appeal. Law Judge may remand a case to the
(1) The Administrative Law Judge Director, Office of Business Develop-
must consider whether the decision ment (or, in the case of a denial of a re-
was based on a consideration of the rel- quest for waiver under § 124.515 of this
evant factors and whether there has chapter, to the Administrator) for fur-
been a clear error of judgment. ther consideration if he or she deter-
(2) If the SBA’s path of reasoning mines that, due to the absence in the
may reasonably be discerned, the Ad- written administrative record of the
ministrative Law Judge will uphold a reasons upon which the determination
decision of less than ideal clarity. was based, the administrative record is
(c) The administrative record. (1) The insufficiently complete to decide
administrative record must contain all whether the determination is arbi-
documents that are relevant to the de- trary, capricious, or contrary to law.
termination on appeal before the Ad- In the event of such a remand, the
ministrative Law Judge and upon Judge will not require the SBA to sup-
which the SBA decision-maker, and plement the administrative record
those SBA officials that recommended other than to supply the reason or rea-
either for or against the decision, re- sons for the determination and any
lied. The administrative record, how- documents submitted to, or considered
747
§ 134.407 13 CFR Ch. I (1–1–25 Edition)
by, SBA in connection with any recon- tioner has made such a substantial
sideration permitted by regulation showing, the Administrative Law
that occurs during the remand period. Judge may permit appropriate dis-
After such a remand, in the event the covery, and accept relevant evidence
Judge finds that the reasons upon beyond the written administrative
which the determination is based are record, which is specifically limited to
absent from any supplemented record, the alleged bad faith or improper be-
the Judge will find the SBA determina- havior.
tion to be arbitrary, capricious, or con- (b) A determination by the Adminis-
trary to law. trative Law Judge that the required
(2) The Administrative Law Judge showing set forth in paragraph (a) of
may also remand a case to the Direc- this section has been made does not
tor, Office of Business Development shift the burden of proof, which con-
(or, in the case of a denial of a request tinues to rest with the petitioner.
for waiver under § 124.515 of this chap-
ter, to the Administrator) for further [63 FR 35766, June 30, 1998, as amended at 67
consideration where it is clearly appar- FR 47251, July 18, 2002]
ent from the record that SBA made an
§ 134.408 Summary decision.
erroneous factual finding (e.g., SBA
double counted an asset of an indi- (a) Generally. In any appeal under
vidual claiming disadvantaged status) this subpart D, either party may move
or a mistake of law (e.g., SBA applied or cross-move for summary decision, as
the wrong regulatory provision in eval- provided in § 134.212.
uating the case). (b) Summary decision based on fewer
(3) The Administrative Law Judge than all grounds. If SBA has provided
may remand an eligibility, early grad- multiple grounds for the 8(a) deter-
uation, or termination appeal to the mination being appealed, SBA may
Director, Office of Business Develop- move for summary decision on one or
ment, where the determination raises a more grounds.
new ground that was not in the initial (1) Non-suspension cases. Except in
SBA determination. suspension appeals, if the Judge finds
(4) A remand under this section will that there is no genuine issue of mate-
be for a reasonable period. rial fact as to whether SBA acted arbi-
[63 FR 35766, June 30, 1998, as amended at 67 trarily, capriciously, or contrary to
FR 47250, July 18, 2002; 74 FR 45754, Sept. 4, law as to any such ground or grounds,
2009; 75 FR 47443, Aug. 6, 2010; 81 FR 48595, and that the SBA is entitled to a deci-
July 25, 2016] sion in its favor as a matter of law, the
Judge will grant the motion for sum-
§ 134.407 Evidence beyond the record mary decision and dismiss the appeal.
and discovery.
(2) Suspension cases. In suspension ap-
(a) Except in suspension appeals, the peals, if the Judge finds that there is
Administrative Law Judge may not no genuine issue of material fact as to
admit evidence beyond the written ad- whether adequate evidence exists that
ministrative record nor permit any protection of the Federal Government’s
form of discovery unless he or she first interest requires suspension, as to any
determines that the petitioner, upon such ground or grounds for the pro-
written submission, has made a sub- posed suspension, the SBA is entitled
stantial showing, based on credible evi- to a decision in its favor as a matter of
dence and not mere allegation, that the law, and the Judge will grant the mo-
Agency determination in question may tion for summary decision and dismiss
have resulted from bad faith or im- the appeal.
proper behavior.
(1) Prior to any such determination, [67 FR 47251, July 18, 2002]
the Administrative Law Judge must
permit SBA to respond in writing to § 134.409 Decision on appeal.
any allegations of bad faith or im- (a) A decision of the Administrative
proper behavior. Law Judge under this subpart is the
(2) Upon a determination by the Ad- final agency decision, and is binding on
ministrative Law Judge that the peti- the parties.
748
Small Business Administration § 134.605
(b) The Administrative Law Judge (c) A matter which the agency orders
shall issue a decision, insofar as prac- to be determined as an ‘‘adversary ad-
ticable, within 90 days after an appeal judication’’ under 5 U.S.C. 554.
petition is filed. [61 FR 2683, Jan. 29, 1996. Redesignated at 63
(c) The Administrative Law Judge FR 35766, June 30, 1998, and 70 FR 8927, Feb.
may reconsider an appeal decision 24, 2005, as amended at 75 FR 47443, Aug. 6,
within 20 days of the decision if there 2010]
is a clear showing of an error of fact or
law material to the decision. § 134.603 What is an adversary adju-
dication?
[63 FR 35766, June 30, 1998. Redesignated and
amended at 67 FR 47251, July 18, 2002] For purposes of this subpart, adver-
sary adjudications are administrative
proceedings before OHA which involve
Subpart E—[Reserved] SBA as a party and which are required
to be conducted by an Administrative
Subpart F—Implementation of the Law Judge (‘‘ALJ’’). These adjudica-
Equal Access to Justice Act tions (‘‘administrative proceedings’’)
include those proceedings listed in
SOURCE: 61 FR 2683, Jan. 29, 1996, unless § 134.102 (a), (i), and (j)(1), but do not in-
otherwise noted. Redesignated at 63 FR 35766, clude other OHA proceedings such as
June 30, 1998, and 70 FR 8927, Feb. 24, 2005. those listed in § 134.102(k). In order for
an administrative proceeding to qual-
§ 134.601 What is the purpose of this ify, SBA must have been represented
subpart?
by counsel or by another representa-
The Equal Access to Justice Act, 5 tive who enters an appearance and par-
U.S.C. 504, establishes procedures by ticipates in the proceeding.
which prevailing parties in certain ad-
ministrative proceedings may apply for § 134.604 What benefits may I claim?
reimbursement of fees and other ex- You may seek reimbursement for cer-
penses. Eligible parties may receive tain reasonable fees and expenses in-
awards when they prevail over SBA, curred in prosecuting or defending a
unless SBA’s position in the proceeding claim in an administrative proceeding.
was ‘‘substantially justified’’ or, as
provided in § 134.605(b), special cir- § 134.605 Under what circumstances
cumstances make an award unjust. The are fees and expenses reimburs-
rules of this subpart explain which able?
OHA proceedings are covered, who may (a) If you are a prevailing eligible
be eligible for an award of fees and ex- party, you may receive an award for
penses, and how to apply for such an reasonable fees and expenses unless the
award. position of the agency in the pro-
[61 FR 2683, Jan. 29, 1996. Redesignated at 63 ceeding is found by the ALJ to be
FR 35766, June 30, 1998, and 70 FR 8927, Feb. ‘‘substantially justified’’, or special
24, 2005, as amended at 75 FR 47443, Aug. 6, circumstances exist which make an
2010] award unjust. The ‘‘position of the
agency’’ includes not only the position
§ 134.602 Under what circumstances taken by SBA in the administrative
may I apply for reimbursement? proceeding, but also the position which
You may apply for reimbursement it took in the action which led to the
under this subpart if you meet the eli- administrative proceeding. No pre-
gibility requirements in § 134.606 and sumption arises that SBA’s position
you prevail over SBA in a final deci- was not substantially justified simply
sion in: because it did not prevail in a pro-
(a) The type of administrative pro- ceeding. However, upon your assertion
ceeding which qualifies as an ‘‘adver- that the position of SBA was not sub-
sary adjudication’’ under § 134.603; or stantially justified, SBA will be re-
(b) An ancillary or subsidiary issue in quired to establish that its position
that administrative proceeding that is was reasonable in fact and law.
sufficiently significant and discrete to (b) The ALJ may reduce or deny an
merit treatment as a separate unit; or award for reimbursement if you have
749
§ 134.606 13 CFR Ch. I (1–1–25 Edition)
unreasonably protracted the adminis- § 134.608 What are the special rules for
trative proceeding or if other special calculating net worth and number
circumstances would make the award of employees?
unjust. (a) Your net worth must include the
(c) Awards for fees and expenses in- value of any assets disposed of for the
curred before the date on which an ad- purpose of meeting an eligibility stand-
ministrative proceeding was initiated ard, and must exclude any obligation
are allowable only if you can dem- incurred for that purpose. Transfers of
onstrate that they were reasonably in- assets, or obligations incurred, for less
curred in preparation for the pro- than reasonably equivalent value will
ceeding. be presumed to have been made for the
purpose of meeting an eligibility stand-
§ 134.606 Who is eligible for possible ard.
reimbursement?
(b) If you are an owner of an unincor-
(a) You are eligible for possible reim- porated business, or a partnership, cor-
bursement if: poration, association, organization, or
(1) You are an individual, owner of an unit of local government, your net
unincorporated business, partnership, worth must include the net worth of all
corporation, association, organization, of your affiliates. ‘‘Affiliates’’ are:
or unit of local government; and (1) Corporations or other business en-
(2) You are a party, as defined in 5 tities which directly or indirectly own
U.S.C. 551(3); and or control a majority of the voting
(3) You are the prevailing party; and shares or other ownership interests in
(4) You meet certain net worth and the applicant concern; and
employee eligibility requirements set (2) Corporations or other business en-
forth in § 134.607. tities in which the applicant concern
(b) You are not eligible for possible directly or indirectly owns or controls
reimbursement if you participated in a majority of the voting shares or
the administrative proceeding only on other ownership interests.
behalf of persons or entities that are (c) Your employees include all those
ineligible. persons regularly working for you at
[61 FR 2683, Jan. 29, 1996. Redesignated at 63 the time the administrative proceeding
FR 35766, June 30, 1998, and 70 FR 8927, Feb. was initiated, whether or not they were
24, 2005, as amended at 75 FR 47443, Aug. 6, at work on that date. Part-time em-
2010] ployees must be included on a propor-
tional basis. You must include the em-
§ 134.607 How do I know which eligi- ployees of all your affiliates in your
bility requirement applies to me? total number of employees.
Follow this chart to determine your
eligibility. You should calculate your § 134.609 What is the difference be-
net worth and the number of your em- tween a fee and an expense?
ployees as of the date the administra- A fee is a charge to you for the pro-
tive proceeding was initiated. fessional services of attorneys, agents,
or expert witnesses rendered in connec-
If your participation in
the proceeding was: Eligibility requirements: tion with your case. An expense is the
cost to you of any study, analysis, en-
(1) As an individual rather (1) Personal net worth may not gineering report, test, project, or simi-
than a business owner. exceed 2 million dollars.
(2) As owner of an unin- (2) Personal net worth may not lar matter prepared in connection with
corporated business. exceed 7 million dollars, and your case.
No more than 500 employees.
(3) As a partnership, cor- (3) Business net worth may not § 134.610 Are there limitations on re-
poration, association, or- exceed 7 million dollars, and imbursement for fees and expenses?
ganization, or unit of No more than 500 employees.
local government. (a) Awards will be calculated on the
(4) As a charitable or other (4) No net worth limitations, and basis of fees and expenses actually in-
tax-exempt organization No more than 500 employees.
described in 26 U.S.C.
curred. If services were provided by one
501(c)(3) or a coopera- or more of your employees, or were
tive association as de- made available to you free, you may
fined in 12 U.S.C. not seek an award for those services. If
1141j(a).
services were provided at a reduced
750
Small Business Administration § 134.612
rate, fees and expenses will be cal- gibility requirements do not apply to
culated at that reduced rate. you;
(b) In determining the reasonableness (6) The amount of fees and expenses
of the fees for attorneys, agents or ex- you are seeking, along with the invoice
pert witnesses, the ALJ will consider or billing statement from each service
at least the following: provider;
(1) That provider’s customary fee for (7) A description of any affiliates (as
like services; that term is defined in § 134.608), or a
(2) The prevailing rate for similar statement that no affiliates exist;
services in the community in which (8) A statement that the application
that provider ordinarily performs serv- and any attached statements and ex-
ices; hibits are true and complete to the
(3) The time actually spent in rep- best of your knowledge and that you
resenting you; and understand a false statement on these
(4) The time reasonably spent in light documents is a felony punishable by
of the difficulty and complexity of the fine and imprisonment under 18 U.S.C.
issues. 1001; and
(c) An award for the fees of an attor- (9)(i) Your name and address;
ney or agent may not exceed $75 per (ii) Your signature, or the signature
hour, and an award for the fees of an of either a responsible official or your
expert witness may not exceed $25 per attorney; and
hour, regardless of the rate charged. (iii) The address and telephone num-
(d) An award for the reasonable cost ber of the person who signs the applica-
of any study, analysis, engineering re- tion.
port, test, project or similar matter (b) You should follow this chart to
prepared on your behalf may not ex- determine which further documents
ceed the prevailing rate payable for must be included with your applica-
similar services, and you may be reim- tion:
bursed only if the study or other mat-
Party Required documents
ter was necessary to the preparation of
your case. (1) Individual, owner of unin- (1) Net worth exhibit.
corporated business, part-
§ 134.611 What should I include in my nership, corporation, asso-
ciation, organization, or unit
application for an award? of local government.
(a) Your application must be in the (2) Organization qualified as (2) Copy of a ruling by the In-
tax-exempt under 26 ternal Revenue Service
form of a written petition which is U.S.C. 501(c)(3). that you qualify as a
served and filed in accordance with 501(c)(3) organization or
§ 134.204. It must contain the following Statement that you were list-
information: ed in the current edition of
IRS Bulletin 78 as of the
(1) A statement that OHA has juris- date the administrative pro-
diction over the case pursuant to ceeding was initiated.
§ 134.102(g); (3) Tax-exempt religious or- (3) Description of your orga-
ganization not required to nization and the basis for
(2) Identification of the administra- obtain a ruling from the In- your belief you are exempt.
tive proceeding for which you are seek- ternal Revenue Service on
ing an award; its exempt status.
(4) Cooperative association (4) Copy of your charter or
(3) A statement that you have pre-
as defined in 12 U.S.C. articles of incorporation,
vailed, and a list of each issue in which 1141j(a). and
you claim the position of SBA was not Copy of your bylaws.
substantially justified;
(4) Your status as an individual, [61 FR 2683, Jan. 29, 1996. Redesignated at 63
owner of an unincorporated business, FR 35766, June 30, 1998, and 70 FR 8927, Feb.
partnership, corporation, association, 24, 2005, as amended at 75 FR 47443, Aug. 6,
organization, or unit of local govern- 2010]
ment;
(5) Your net worth and number of em- § 134.612 What must a net worth ex-
ployees as of the date the administra- hibit contain?
tive proceeding was initiated, or a (a) A net worth exhibit may be in any
statement that one or both of these eli- format, but it must contain:
751
§ 134.613 13 CFR Ch. I (1–1–25 Edition)
(1) List of all assets and liabilities for ministrative proceeding, your request
you and each affiliate in detail suffi- for an award for fees and expenses may
cient to show your eligibility; still be filed, but it will not be consid-
(2) Aggregate net worth for you and ered by the ALJ until a final decision
all affiliates; and is rendered.
(3) Description of any transfers of as-
sets from, or obligations incurred by, § 134.615 How will proceedings relat-
you or your affiliates within one year ing to my application for fees and
prior to the initiation of the adminis- expenses be conducted?
trative proceeding which reduced your Proceedings will be conducted in ac-
net worth below the eligibility ceiling, cordance with the provisions in subpart
or a statement that no such transfers B of this part.
occurred.
(b) The net worth exhibit must be § 134.616 How will I know if I receive
filed with your application, but will an award?
not be part of the public record of the
The ALJ will issue an initial decision
proceeding. Further, in accordance
on the merits of your request for an
with the provisions of § 134.204(g), you
need not serve your net worth exhibit award which will become final in 30
on other parties. days unless a request for review is filed
under § 134.228. The decision will in-
§ 134.613 What documentation do I clude findings on your eligibility, on
need for fees and expenses? whether SBA’s position was substan-
You must submit a separate itemized tially justified, and on the reasonable-
statement or invoice for the services of ness of the amount you requested.
each provider for which you seek reim- Where applicable, there will also be
bursement. Each separate statement or findings on whether you have unduly
invoice must contain: protracted the proceedings or whether
(a) The hours worked in connection other circumstances make an award
with the proceeding by each provider unjust, and an explanation of the rea-
supplying a billable service; son for the difference, if any, between
(b) A description of the specific serv- the amount requested and the amount
ices performed by each provider; awarded. If you have sought an award
(c) The rate at which fees were com- against more than one federal agency,
puted for each provider; the decision will allocate responsibility
(d) The total charged by the provider for payment among the agencies with
on that statement or invoice; and appropriate explanation.
(e) The provider’s verification that
the statement or invoice is true to the § 134.617 May I seek review of the
best of his or her knowledge and that ALJ’s decision on my award?
he or she understands that a false You may request review of the ALJ’s
statement is punishable by fine and im- decision on your award by filing a re-
prisonment under 18 U.S.C. 1001. quest for review in accordance with
§ 134.614 What deadlines apply to my § 134.228. You may seek judicial review
application for an award and where of a final decision as provided in 5
do I send it? U.S.C. 504(c)(2).
After you have prevailed in an ad- § 134.618 How are awards paid?
ministrative proceeding or in a dis-
crete issue therein, you must serve, If you are seeking payment of an
and file with OHA, your written appli- award, you must submit a copy of the
cation for an award, and its attach- final decision, along with your certifi-
ments, no later than 30 days after the cation that you are not seeking judi-
decision in the administrative pro- cial review of either the decision in the
ceeding becomes final under § 134.227. adversary adjudication, or of the
The deadline for filing an application award, to the following address: Chief
for an award may not be extended. If Financial Officer, Office of Financial
SBA or another party requests review Operations, SBA, P.O. Box 205, Denver,
of the decision in the underlying ad- CO 80201–0205. SBA will pay you the
752
Small Business Administration § 134.705
amount awarded within 60 days of re- § 134.703 When must a person file an
ceipt of your request unless it is noti- appeal from an WOSB or EDWOSB
fied that you or another party has protest determination?
sought judicial review of the under- Appeals from a WOSB or EDWOSB
lying decision or the award. protest determination must be com-
menced by filing and serving an appeal
Subpart G—Rules of Practice for petition within ten (10) business days
Appeals From Women-Owned after the appellant receives the WOSB
Small Business Concern or EDWOSB protest determination (see
§ 134.204 for filing and service require-
(WOSB) and Economically ments). An untimely appeal must be
Disadvantaged WOSB Con- dismissed.
cern (EDWOSB) Protests
§ 134.704 What are the effects of the
SOURCE: 75 FR 62292, Oct. 7, 2010, unless appeal on the procurement at
otherwise noted. issue?
Appellate decisions apply to the pro-
§ 134.701 What is the scope of the rules curement in question. If a timely OHA
in this subpart G? appeal has been filed after contract
(a) The rules of practice in this sub- award, the contracting officer must
part G apply to all appeals to OHA consider whether performance can be
from formal protest determinations suspended until an appellate decision is
made by the Director for Government rendered. If OHA affirms the D/GC’s de-
Contracting (D/GC) in connection with termination finding that the protested
a Women-Owned Small Business Con- concern is ineligible, the contracting
cern (WOSB) or Economically Dis- officer shall either terminate the con-
advantaged WOSB Concern (EDWOSB) tract, not exercise the next option or
protest. Appeals under this subpart in- not award further task or delivery or-
clude issues related to whether the ders. If OHA overturns the D/GC’s dis-
missal or determination that the con-
concern is owned and controlled by one
cern is an eligible EDWOSB or WOSB,
or more women who are United States
the contracting officer may apply the
citizens and, if the appeal is in connec-
OHA decision to the procurement in
tion with an EDWOSB contract, that question.
the concern is at least 51 percent
owned and controlled by one or more § 134.705 What are the requirements
women who are economically disadvan- for an appeal petition?
taged. This includes appeals from de-
(a) Format. There is no required for-
terminations by the D/GC that the pro- mat for an appeal petition. However, it
test was premature, untimely, nonspe- must include the following informa-
cific, or not based upon protestable al- tion:
legations. (1) The solicitation or contract num-
(b) Except where inconsistent with ber, and the name, address, and tele-
this subpart, the provisions of subparts phone number of the contracting offi-
A and B of this part apply to appeals cer;
listed in paragraph (a) of this section. (2) A statement that the petitioner is
(c) Appeals relating to formal size de- appealing a WOSB or EDWOSB protest
terminations and NAICS Code designa- determination issued by the D/GC and
tions are governed by subpart C of this the date that the petitioner received it;
part. (3) A full and specific statement as to
why the WOSB or EDWOSB protest de-
§ 134.702 Who may appeal? termination is alleged to be based on a
Appeals from WOSB or EDWOSB pro- clear error of fact or law, together with
test determinations may be filed with an argument supporting such allega-
OHA by the protested concern, the tion; and
protestor, or the contracting officer re- (4) The name, address, telephone
sponsible for the procurement affected number, facsimile number, and signa-
by the protest determination. ture of the appellant or its attorney.
753
§ 134.706 13 CFR Ch. I (1–1–25 Edition)
(b) Service of appeal. The appellant such matters. However, once an appeal
must serve the appeal petition upon has been filed, initiation of litigation
each of the following: of the matter in a court of competent
(1) The D/GC at U.S. Small Business jurisdiction will not preclude the Judge
Administration, 409 3rd Street, SW., from rendering a final decision on the
Washington, DC 20416, facsimile (202) matter.
205–6390;
(2) The contracting officer respon- § 134.710 Who can file a response to an
sible for the procurement affected by a appeal petition and when must
such a response be filed?
WOSB or EDWOSB determination;
(3) The protested concern (the busi- Although not required, any person
ness concern whose WOSB or EDWOSB served with an appeal petition may file
status is at issue) or the protester; and and serve a response supporting or op-
(4) SBA’s Office of General Counsel, posing the appeal if he or she wishes to
Associate General Counsel for Procure- do so. If a person decides to file a re-
ment Law, U.S. Small Business Admin- sponse, the response must be filed
istration, 409 3rd Street, SW., Wash- within seven (7) business days after
ington, DC 20416, facsimile number (202) service of the appeal petition. The re-
205–6873. sponse should present argument.
(c) Certificate of Service. The appellant
§ 134.711 Will the Judge permit dis-
must attach to the appeal petition a covery and oral hearings?
signed certificate of service meeting
the requirements of § 134.204(d). Discovery will not be permitted, and
oral hearings will not be held.
§ 134.706 What are the service and fil-
ing requirements? § 134.712 What are the limitations on
new evidence?
The provisions of § 134.204 apply to
the service and filing of all pleadings The Judge may not admit evidence
and other submissions permitted under beyond the written protest file nor per-
this subpart unless otherwise indicated mit any form of discovery. All appeals
in this subpart. under this subpart will be decided sole-
ly on a review of the evidence in the
§ 134.707 When does the D/GC transmit written protest file, arguments made in
the protest file and to whom? the appeal petition, and response(s)
Upon receipt of an appeal petition, filed thereto.
the D/GC will send to OHA a copy of
§ 134.713 When is the record closed?
the protest file relating to that deter-
mination. The D/GC will certify and The record will close when the time
authenticate that the protest file, to to file a response to an appeal petition
the best of his or her knowledge, is a expires pursuant to § 134.710.
true and correct copy of the protest
§ 134.714 When must the Judge issue
file. his or her decision?
§ 134.708 What is the standard of re- The Judge shall issue a decision, in-
view? sofar as practicable, within fifteen (15)
The standard of review for an appeal business days after close of the record.
of a WOSB or EDWOSB protest deter- The Judge’s decision is the final agen-
mination is whether the D/GC’s deter- cy decision and becomes effective upon
mination was based on clear error of issuance.
fact or law. [75 FR 62292, Oct. 7, 2010, as amended at 85 FR
63193, Oct. 7, 2020]
§ 134.709 When will a Judge dismiss an
appeal? § 134.715 Can a Judge reconsider his
(a) The presiding Judge must dismiss decision?
the appeal if the appeal is untimely (a) The Judge may reconsider an ap-
filed under § 134.703. peal decision within twenty (20) cal-
(b) The matter has been decided or is endar days after issuance of the writ-
the subject of adjudication before a ten decision. Any party who has ap-
court of competent jurisdiction over peared in the proceeding, or SBA, may
754
Small Business Administration § 134.804
request reconsideration by filing with (10) Sanctions (§ 134.219).
the Judge and serving a petition for re-
[75 FR 47443, Aug. 6, 2010, as amended at 82
consideration on all the parties to the FR 25507, June 2, 2017]
appeal within twenty (20) calendar days
after service of the written decision. § 134.802 [Reserved]
The request for reconsideration must
clearly show an error of fact or law ma- § 134.803 Commencement of appeals
terial to the decision. The Judge may from SBA Employee Dispute Reso-
also reconsider a decision on his or her lution Process cases (Employee Dis-
own initiative. putes).
(b) The Judge may remand a pro- (a) An appeal from a Step Two deci-
ceeding to the D/GC for a new WOSB or sion must be commenced by filing an
EDWOSB determination if the D/GC appeal petition within 15 calendar days
fails to address issues of decisional sig- from the date the Employee receives
nificance sufficiently, does not address the Step Two decision.
all the relevant evidence, or does not (b) If the Step Two Official does not
identify specifically the evidence upon issue a decision within 15 calendar days
which it relied. Once remanded, OHA of receiving the SBA Dispute Form
no longer has jurisdiction over the from the Employee, the Employee
matter, unless a new appeal is filed as must file his/her appeal petition at
a result of the new WOSB or EDWOSB OHA no later than 15 calendar days
determination. from the date the Step Two decision
was due.
Subpart H—Rules of Practice for (c) The rule for counting days is in
Employee Disputes § 134.202(d).
(d) OHA will dismiss an untimely ap-
peal.
SOURCE: 75 FR 47443, Aug. 6, 2010, unless
otherwise noted. [75 FR 47443, Aug. 6, 2010, as amended at 82
FR 25507, June 2, 2017]
§ 134.801 Scope of rules.
(a) The rules of practice in this sub- § 134.804 The appeal petition.
part H apply to the OHA appeal under (a) Form. There is no required format
the Employee Dispute Resolution Proc- for an appeal petition. However, it
ess (EDRP). Standard Operating Proce- must include the following:
dure (SOP) 37 71 sets out the EDRP. It (1) The completed SBA Dispute
is available at http://www.sba.gov/tools/ Form;
resourcelibrary/sops/index.html or (2) A copy of the Step One and Step
through OHA’s Web site http:// Two decisions, if any;
www.sba.gov/oha). (3) Statement of why the Step Two
(b) The following rules, located in decision (or Step One decision, if no
subparts A and B of this part, also Step Two decision was received), is al-
apply to OHA appeals under the EDRP: leged to be in error;
(1) Definitions (§ 134.101); (4) Any other pertinent information
(2) Jurisdiction of OHA (§ 134.102(r) the OHA Judge should consider;
only); (5) A request for mediation, if appli-
(3) Scope of the rules in this subpart cable; and
B (§ 134.201(a), (b)(6), and (c) only); (6) If represented by an attorney, the
(4) Commencement of cases attorney’s contact information and sig-
(§ 134.202(d) only, on deadlines and how nature.
to count days); (b) Service of the appeal petition upon
(5) Filing and service requirements the SBA. The Employee must serve cop-
(§ 134.204); ies of the entire appeal petition upon
(6) Amendments and supplemental three SBA officials:
pleadings (§ 134.207); (1) The Step Two Official;
(7) Requirement of signature (2) Chief Human Capital Officer, U.S.
(§ 134.209); Small Business Administration, 409
(8) Motions (§ 134.211); Third Street, SW., Washington, DC
(9) Summary decision (§ 134.212); and 20416; and
755
§ 134.805 13 CFR Ch. I (1–1–25 Edition)
(3) Associate General Counsel for § 134.807 SBA response.
General Law, U.S. Small Business Ad-
(a) If the appeal goes to adjudication,
ministration, 409 Third Street, SW.,
SBA will file and serve the SBA’s re-
Washington, DC 20416, e-mail:
sponse to the appeal and any docu-
OGLService@sba.gov, except that an em-
mentation, not already filed by the
ployee of the Office of Inspector Gen-
Employee, that SBA wishes OHA to
eral (OIG) must serve it upon the Coun-
consider.
sel to the Inspector General, U.S.
Small Business Administration, 409 (b) Unless the Judge orders a dif-
Third Street, SW., Washington, DC ferent date (either on his or her own
20416, e-mail: ig.counseldiv@sba.gov. initiative or on motion by a party), the
SBA must file any response to the ap-
(c) The rules governing filing and
peal petition no later than 15 calendar
service are in § 134.204.
days from the conclusion of mediation
(d) Dismissal. An appeal petition that
or 15 calendar days from the filing of
does not meet all the requirements of
the appeal petition, whichever is later.
this section may be dismissed by the
Judge at his or her own initiative or (c) The SBA’s response is normally
upon motion of the SBA. the last submission in an appeal, al-
though the Judge may order or permit
[75 FR 47443, Aug. 6, 2010, as amended at 82 additional submissions. If a party wish-
FR 25507, June 2, 2017] es to file an additional submission, the
party must file and serve a motion (see
§ 134.805 After the appeal petition is § 134.211) accompanied by the proposed
filed.
submission.
(a) The AA/OHA will assign a Judge
to adjudicate the case. If mediation is [75 FR 47443, Aug. 6, 2010, as amended at 82
FR 25507, June 2, 2017]
requested or offered, the AA/OHA will
assign a different person to mediate § 134.808 The decision.
the case.
(b) OHA will issue and serve upon the (a) The Judge will decide the appeal
Employee and the SBA a notice and within 45 calendar days (if practicable)
order informing the parties that an ap- from close of record. The decision will
peal has been filed, and setting the affirm, modify, remand, or reverse the
date for SBA’s response and the close Step One or Step Two decision.
of record. (b) The standard of review and bur-
(c) The rules for amendments to den of proof will be determined by the
pleadings and supplemental pleadings specific issue presented.
are in § 134.207. (c) OHA’s decision is an initial deci-
(d) Unless otherwise instructed, OHA sion which becomes the final decision
will serve all orders and the decision by of the SBA 30 calendar days after
email upon the Employee, or upon the issuance, unless a party files a request
attorney if represented by an attorney. for review pursuant to § 134.809.
(d) OHA’s decision is not precedential
[75 FR 47443, Aug. 6, 2010, as amended at 82
and it will not be published.
FR 25507, June 2, 2017]
[75 FR 47443, Aug. 6, 2010, as amended at 82
§ 134.806 Mediation. FR 25507, June 2, 2017]
Either the Employee or the SBA may
request mediation, or OHA may offer § 134.809 Review of initial decision.
mediation. OHA may designate a Judge (a) If the Chief Human Capital Offi-
or an OHA attorney to serve as a medi- cer, General Counsel for SBA, or Coun-
ator. If the parties reach a settlement sel to the Inspector General (IG) be-
through mediation, they may file a lieves OHA’s decision is contrary to
joint motion to dismiss the appeal law, rule, regulation, or SBA policy,
based on that settlement. If the parties that official may file a Petition for Re-
do not reach a settlement, the medi- view (PFR) of the decision with the
ation will conclude and the appeal will Deputy Administrator (or IG for dis-
go to adjudication. An OHA-provided putes by OIG employees) for a final
mediator will not be involved in a sub- SBA Decision. Only the Chief Human
sequent adjudication. Capital Officer, General Counsel, or
756
Small Business Administration § 134.904
Counsel to the IG may file a PFR of an lenged size standard. An untimely Size
OHA decision; the Employee may not. Standard Petition will be dismissed.
(b) To file a PFR, the official must (b) A Size Standard Petition filed in
request a complete copy of the dispute response to a notice of proposed rule-
file from the Assistant Administrator making is premature and will be dis-
for OHA (AA/OHA) within five calendar missed.
days of receiving the decision. The AA/ (c) A Size Standard Petition chal-
OHA will provide a copy of the dispute lenging a size standard that has not
file to the official, the Employee, and been revised, modified, or established
the Employee’s representative within through publication in the FEDERAL
five calendar days of the official’s re- REGISTER will be dismissed.
quest. The official’s PFR is due no
later than 15 calendar days from the § 134.904 Requirements for the Size
date the official receives the dispute Standard Petition.
file. The PFR must specify the objec- (a) Form. There is no required form
tions to OHA’s decision. for a Size Standard Petition. However,
[82 FR 25507, June 2, 2017] it must include the following informa-
tion:
Subpart I—Rules of Practice for (1) A copy of the final rule published
Petitions for Reconsideration in the FEDERAL REGISTER to revise,
of Size Standards modify, or establish a size standard, or
an electronic link to the final rule;
(2) A full and specific statement as to
SOURCE: 82 FR 25507, June 2, 2017, unless
otherwise noted. which size standard(s) in the final rule
the Petitioner is challenging and why
§ 134.901 Scope of the rules in this sub- the process that was used to revise,
part. modify, or establish each challenged
(a) The rules of practice in this sub- size standard is alleged to be arbitrary,
part apply to Size Standard Petitions. capricious, an abuse of discretion, or
(b) Except where inconsistent with otherwise not in accordance with the
this subpart, the provisions of subparts law, together with argument sup-
A and B of this part apply to Size porting such allegation;
Standard Petitions listed in paragraph (3) A copy of any comments the Peti-
(a) of this section. tioner submitted in response to the
proposed notice of rulemaking that
§ 134.902 Standing. pertained to the size standard(s) in
(a) A Size Standard Petition may be question, or a statement that no such
filed with OHA by any person that is comments were submitted; and
adversely affected by the Administra- (4) The name, mailing address, tele-
tor’s decision to revise, modify, or es- phone number, facsimile number, email
tablish a size standard. address, and signature of the Peti-
(b) A business entity is not adversely tioner or its attorney.
affected unless it conducts business in (b) Multiple size standards. A Peti-
the industry associated with the size tioner may challenge multiple size
standard that is being challenged and: standards that were revised, modified,
(1) The business entity qualified as a or established in the same final rule in
small business concern before the size a single Size Standard Petition, pro-
standard was revised or modified; or vided that the Petitioner demonstrates
(2) The business entity qualifies as a standing for each of the challenged size
small business under the size standard standards.
as revised or modified. (c) Format. The formatting provisions
of § 134.203(d) apply to Size Standard
§ 134.903 Commencement of cases. Petitions.
(a) A Size Standard Petition must be (d) Service. In addition to filing the
filed at OHA not later than 30 calendar Size Standard Petition at OHA, the Pe-
days after the publication in the FED- titioner must serve a copy of the Size
ERAL REGISTER of the final rule that re- Standard Petition upon each of the fol-
vises, modifies, or establishes the chal- lowing:
757
§ 134.905 13 CFR Ch. I (1–1–25 Edition)
(1) SBA’s Office of Size Standards, this subpart unless otherwise indicated
U.S. Small Business Administration, in this subpart.
409 3rd Street SW., Washington, DC
20416; facsimile number (202) 205–6390; § 134.908 The administrative record.
or sizestandards@sba.gov; and The Office of Size Standards will
(2) SBA’s Office of General Counsel,
transmit to OHA a copy of the docu-
Associate General Counsel for Procure-
mentation and analysis supporting the
ment Law, U.S. Small Business Admin-
istration, 409 3rd Street SW., Wash- revision, modification, or establish-
ington, DC 20416; facsimile number (202) ment of the challenged size standard by
205–6873; or OPLService@sba.gov. the date specified in the notice and
(e) Certificate of service. The Peti- order. The Chief, Office of Size Stand-
tioner must attach to the Size Stand- ards, will certify and authenticate that
ard Petition a signed certificate of the administrative record, to the best
service meeting the requirements of of his or her knowledge, is complete
§ 134.204(d). and correct. The Petitioner and any
interveners may, upon request, review
§ 134.905 Notice and order. the administrative record submitted to
Upon receipt of a Size Standard Peti- OHA. The administrative record will
tion, OHA will assign the matter to a include the documentation and anal-
Judge in accordance with § 134.218. Un- ysis supporting the revision, modifica-
less it appears that the Size Standard tion, or establishment of the chal-
Petition will be dismissed under lenged size standard.
§ 134.910, the presiding Judge will issue
a notice and order initiating the publi- § 134.909 Standard of review.
cation required by § 121.102(f) of this
The standard of review for deciding a
chapter; specifying a date for the Office
of Size Standards to transmit to OHA a Size Standard Petition is whether the
copy of the administrative record sup- process employed by the Administrator
porting the revision, modification, or to revise, modify, or establish the size
establishment of the challenged size standard was arbitrary, capricious, an
standard(s); and establishing a date for abuse of discretion, or otherwise not in
the close of record. Typically, the ad- accordance with the law. OHA will not
ministrative record will be due seven adjudicate arguments that a different
calendar days after issuance of the no- size standard should have been se-
tice and order, and the record will close lected. The Petitioner bears the burden
45 calendar days from the date of of proof.
OHA’s receipt of the Size Standard Pe-
tition. § 134.910 Dismissal.
The Judge must dismiss the Size
§ 134.906 Intervention.
Standard Petition if:
In accordance with § 134.210(b), inter- (a) The Size Standard Petition does
ested persons with a direct stake in the not, on its face, allege specific facts
outcome of the case may contact OHA that if proven to be true, warrant re-
to intervene in the proceeding and ob- mand of the size standard;
tain a copy of the Size Standard Peti-
(b) The Petitioner is not adversely af-
tion. In the event that the Size Stand-
ard Petition contains confidential in- fected by the final rule revising, modi-
formation and the intervener is not a fying, or establishing a size standard;
governmental entity, the Judge may (c) The Size Standard Petition is un-
require that the intervener’s attorney timely or premature pursuant to
be admitted to a protective order be- § 134.903 or is not otherwise filed in ac-
fore obtaining a complete copy of the cordance with the requirements in sub-
Size Standard Petition. parts A and B of this part; or
(d) The matter has been decided or is
§ 134.907 Filing and service. the subject of adjudication before a
The provisions of § 134.204 apply to court of competent jurisdiction over
the filing and service of all pleadings such matters.
and other submissions permitted under
758
Small Business Administration § 134.1001
§ 134.911 Response to the Size Stand- made under the challenged size stand-
ard Petition. ard prior to the effective date of the
Although not required, any inter- SBA action rescinding that challenged
vener may file and serve a response size standard. Such a concern remains
supporting or opposing the Size Stand- eligible for award as a small business,
ard Petition at any time prior to the and the procuring agency may count
close of record. SBA may intervene as the award towards its small business
of right at any time in any case until goals. If the procuring agency amends
15 days after the close of record, or the the solicitation and requires new self-
issuance of a decision, whichever certifications, those self-certifications
comes first. The response must present will be based on the size standard in ef-
argument. fect on the day those self-certifications
are made. If the size standard in ques-
§ 134.912 Discovery and oral hearings. tion was newly established, the chal-
lenged size standard remains in effect
Discovery will not be permitted. Oral
while SBA conducts its further anal-
hearings will not be held unless the
ysis on remand.
Judge determines that the dispute can-
not be resolved except by the taking of (b) If OHA denies a Size Standard Pe-
live testimony and the confrontation of tition, the size standard remains as
witnesses. published in the Code of Federal Regu-
lations.
§ 134.913 New evidence.
§ 134.917 Equal Access to Justice Act.
Disputes under this subpart ordi-
narily will be decided based on the A prevailing Petitioner is not enti-
pleadings and the administrative tled to recover attorney’s fees. Size
record. The Judge may admit addi- Standard Petitions are not proceedings
tional evidence upon a motion estab- that are required to be conducted by an
lishing good cause. Administrative Law Judge under
§ 134.603.
§ 134.914 The decision.
§ 134.918 Judicial review.
The Judge will issue his or her deci-
sion within 45 calendar days after close The publication of a final rule in the
of record, as practicable. The Judge’s FEDERAL REGISTER is considered the
decision is final and will not be recon- final agency action for purposes of
sidered. seeking judicial review.
§ 134.915 Remand. Subpart J—Rules of Practice for
If OHA grants a Size Standard Peti- Protests of Eligibility for Inclu-
tion, OHA will remand the matter to sion in the SBA Veteran Small
the Office of Size Standards for further Business Certification Program
analysis. Once remanded, OHA no
longer has jurisdiction over the matter
Database (VOSB or SDVOSB
unless a new Size Standard Petition is Status Protests)
filed as a result of a new final rule pub-
lished in the FEDERAL REGISTER. SOURCE: 87 FR 73425, Nov. 29, 2022, unless
otherwise noted.
§ 134.916 Effects of OHA’s decision.
(a) If OHA grants a Size Standard Pe- § 134.1001 Scope of rules.
tition of a modified or revised size (a) The rules of practice in this sub-
standard, SBA will take appropriate part apply to VOSB or SDVOSB status
action to rescind that size standard protests. A VOSB or SDVOSB status
and to restore the one that was in ef- protest is the process by which an in-
fect before the one challenged in the terested party (see § 134.1002(b)) may
Size Standard Petition. The restored challenge a concern’s inclusion in the
size standard will remain in effect until SBA Veteran Small Business Certifi-
SBA issues a new size standard. The cation Program database or the VOSB
OHA decision does not affect the valid- or SDVOSB status of an apparent suc-
ity of a concern’s size representation cessful offeror on a VOSB or SDVOSB
759
§ 134.1002 13 CFR Ch. I (1–1–25 Edition)
contract, including a joint venture sub- (c) SBA and VA may file a VOSB or
mitting an offer under § 128.402 of this SDVOSB status protest at any time.
chapter. OHA will also consider a pro- EFFECTIVE DATE NOTE: Amendments to
test challenging whether a prime con- § 134.1002 were published at 89 FR 96094, Dec.
tractor is unduly reliant on a small, 4, 2024, effective Jan. 3, 2025.
non-similarly situated entity subcon-
tractor or if such subcontractor per- § 134.1003 Grounds for filing a VOSB
forms the primary and vital require- or SDVOSB status protest.
ments of the contract. (a) Veteran status. In cases where the
(b) Except where inconsistent with protest is based on service-connected
this subpart, the provisions of subparts disability, permanent and severe dis-
A and B of this part apply to protests ability, or veteran status, the Judge
listed in paragraph (a) of this section. will only consider a protest that pre-
(c) The protest procedures described sents specific allegations supporting
in this subpart are separate from those the contention that the owner(s) can-
governing size protests and size ap- not provide documentation from the
peals. All protests relating to whether VA, Department of Defense, or the U.S.
a VOSB or SDVOSB is a ‘‘small’’ busi- National Archives and Records Admin-
ness for purposes of any Federal pro- istration to show that they meet the
gram are subject to part 121 of this definition of veteran, service-disabled
chapter and must be filed in accord- veteran, or service-disabled veteran
ance with that part. If a protester pro- with a permanent and severe disability.
tests both the size of a VOSB or (b) Ownership and control. In cases
SDVOSB and the concern’s eligibility where the protest is based on owner-
for the SBA Veteran Small Business ship and/or control, the Judge will con-
Certification Program, SBA will proc- sider a protest only if the protester
ess each protest concurrently, under presents credible evidence that the
the procedures set forth in part 121 of concern is not 51% owned and con-
this chapter and this part. SBA does trolled by one or more veterans or
not review issues concerning the ad- service-disabled veterans.
(c) Ostensible subcontractor. In cases
ministration of a VOSB or SDVOSB
where the protest is based on an allega-
contract.
tion that the prime contractor appears
(d) Appeals of denials and cancella- unduly reliant on one or more, non-
tions of certification for inclusion in VOSB or non-SDVOSB subcontractors,
the Veteran Small Business Certifi- or the non-VOSB or non-SDVOSB sub-
cation Program are governed by sub- contractor is performing the primary
part K of this part. and vital requirements of the contract,
OHA will consider a protest only if the
§ 134.1002 Who may file a VOSB or
SDVOSB status protest? protester presents credible evidence of
the alleged undue reliance or credible
(a) For sole source procurements, evidence that the primary and vital re-
SBA, VA, or the contracting officer quirements will be performed by the
may protest the proposed awardee’s subcontractor(s).
VOSB or SDVOSB status. (d) Joint ventures. A VOSB or
(b) For all other procurements, any SDVOSB joint venture may be pro-
interested party may protest the ap- tested regarding the status of the man-
parent successful offeror’s VOSB or aging VOSB or SDVOSB joint venture
SDVOSB status. An interested party partner or for failure to meet the re-
means the contracting officer, SBA, quirements of § 128.402 of this chapter.
VA, any concern that submits an offer If the joint venture is found to be ineli-
for a specific set-aside VOSB or gible solely based on failure to meet
SDVOSB contract (including Multiple the requirements of that section, the
Award Contracts) or order, or any con- joint venture will be ineligible for the
cern that submitted an offer in full and contract at issue. The finding of ineli-
open competition and its opportunity gibility is limited to that contract and
for award will be affected by a reserve will not affect the underlying eligi-
of an award given to a VOSB or bility of the VOSB or SDVOSB joint
SDVOSB. venture partner.
760
Small Business Administration § 134.1004
(e) Date for determining eligibility. (1) VOSB or SDVOSB status, an interested
If the VOSB or SDVOSB status protest party must submit its protest by close
pertains to a procurement, the Judge of business on the fifth business day
will determine a protested concern’s after notification by the contracting
eligibility as a VOSB or SDVOSB as of officer of the intended awardee of the
the date of its initial offer or response order.
which includes price. For a protest (4) For sealed bid acquisitions, a pro-
challenging an ostensible subcon- test from an interested party (see
tractor or a joint venture’s compliance § 134.1002(b)) must be received by close
with the joint venture agreement re- of business on the fifth business day
quirements set forth in § 128.402(c), the after bid opening. Where the identified
Judge will determine eligibility as of low bidder is determined to be ineli-
the date of the final proposal revision gible for award, a protest of any other
for negotiated acquisitions or as of identified low bidder must be received
final bid for sealed bidding. prior to the close of business on the 5th
(2) If the VOSB or SDVOSB status business day after the contracting offi-
protest does not pertain to a procure- cer has notified interested parties of
ment, the Judge will determine a pro- the identity of that low bidder.
tested concern’s eligibility as a VOSB (5) The rule for counting days is in
or SDVOSB as of the date the VOSB or § 134.202(d).
SDVOSB status protest was filed. (6) Any protest received after the
EFFECTIVE DATE NOTE: Amendments to time limit is untimely, unless it is
§ 134.1003 were published at 89 FR 102510, Dec. from SBA, VA, or the contracting offi-
17, 2024, effective Jan. 16, 2025. cer. An untimely protest will be dis-
missed.
§ 134.1004 Commencement of VOSB or (b) Filing. (1) An interested party,
SDVOSB status protests. other than SBA, VA, or the contracting
(a) Timeliness. (1) The Secretary of officer, must deliver a VOSB or
the VA (or designee) or SBA may file a SDVOSB status protest to the con-
VOSB or SDVOSB status protest at tracting officer in person, by email,
any time. facsimile, by express delivery service,
(2) The contracting officer, SBA, or or by U.S. mail (postmarked within the
VA may file a VOSB or SDVOSB status applicable time period) to the con-
protest at any time after the apparent tracting officer.
awardee has been identified or after bid (2) VA, SBA, or the contracting offi-
opening, whichever applies. cer must submit a VOSB or SDVOSB
(3) For negotiated acquisitions, an in- status protest directly to OHA in ac-
terested party (see § 134.1002(b)) must cordance with the procedures in
submit its protest by close of business § 134.204. The protest should include in
on the fifth business day after notifica- the referral letter the information set
tion by the contracting officer of the forth in paragraph (c) of this section.
apparent successful offeror. (3) SBA must submit a VOSB or
(i) Except for an order or Blanket SDVOSB status protest directly to
Purchase Agreement issued under a OHA in accordance with the procedures
Federal Supply Schedule contract, for in § 134.204.
an order or Agreement that is set-aside (c) Referral to OHA. The contracting
for VOSBs or SDVOSBs under a mul- officer must forward to OHA any VOSB
tiple award contract that was not itself or SDVOSB status protest received,
set aside or reserved for VOSBs or notwithstanding whether the con-
SDVOSBs, an interested party must tracting officer believes it is pre-
submit its protest by close of business mature, sufficiently specific, or timely.
on the fifth business day after notifica- The contracting officer must send all
tion by the contracting officer of the VOSB or SDVOSB status protests,
intended awardee of the order or Agree- along with a referral letter, directly to
ment. OHA, addressed to Office of Hearings
(ii) Where a contracting officer has and Appeals, U.S. Small Business Ad-
required offerors for a specific order ministration, 409 Third Street SW,
under a multiple award VOSB or Washington, DC 20416, or by email at
SDVOSB contract to recertify their OHAfilings@sba.gov, marked ‘‘Attn:
761
§ 134.1005 13 CFR Ch. I (1–1–25 Edition)
VOSB Status Protest’’ or ‘‘Attn: (b) If the protester intends to seek
SDVOSB Status Protest’’. The referral access to the SBA case file under
letter must include information per- § 134.205, the protester should include in
taining to the solicitation that may be its protest a request for a protective
necessary for OHA to determine timeli- order. Unless good cause is shown, a
ness and standing, including: protester must request a protective
(1) The solicitation number; order within five days of filing the pro-
(2) The name, address, telephone test.
number, and email address of the con- [87 FR 73425, Nov. 29, 2022, as amended at 88
tracting officer; FR 42593, July 3, 2023]
(3) Whether the contract was a sole
source or set-aside VOSB or SDVOSB § 134.1006 Service and filing require-
procurement; ments.
(4) Whether the protester submitted The provisions of § 134.204 apply to
an offer; the service and filing of all pleadings
(5) Whether the protested concern and other submissions permitted under
was the apparent successful offeror; this subpart.
(6) Whether the procurement was
§ 134.1007 Processing a VOSB or
conducted using sealed bid or nego- SDVOSB status protest.
tiated procedures;
(7) The bid opening date, if applica- (a) Notice and order. If the Judge de-
ble; termines that the protest is timely,
(8) When the protested concern sub- sufficiently specific, and based upon
mitted its initial offer which included protestable allegations, the Judge will
price; issue a notice and order, notifying the
protester, the protested concern, the
(9) When the protest was submitted
Director, Office of Government Con-
to the contracting officer;
tracting (D/GC), SBA Counsel, and, if
(10) When the protester received noti-
applicable, the contracting officer of
fication of the apparent successful of-
the date OHA received the protest, and
feror, if applicable; and
order a due date for responses.
(11) Whether a contract has been (b) Dismissal of protest. If the Judge
awarded. determines that the protest is pre-
mature, untimely, nonspecific, or is
§ 134.1005 Contents of the VOSB or
SDVOSB status protest. based on non-protestable allegations,
the Judge will dismiss the protest and
(a) VOSB and SDVOSB status pro- will send the contracting officer, D/GC,
tests must be in writing. There is no SBA’s Associate General Counsel for
required format for a VOSB or Procurement Law, and the protester a
SDVOSB status protest, but it must in- notice of dismissal, citing the reason(s)
clude the following: for the dismissal. The dismissal is a
(1) The solicitation or contract num- final agency action.
ber, if applicable; (c) Transmission of the case file. Upon
(2) Specific allegations supported by receipt of a notice and order, the D/GC
credible evidence that the concern (or must deliver to OHA the entire case
joint venture) does not meet the VOSB file relating to the protested concern’s
or SDVOSB eligibility requirements inclusion in the certification database.
listed in part 128 of this chapter. A pro- The notice and order will establish the
test merely asserting that the pro- timetable for transmitting the case file
tested concern is not an eligible VOSB to OHA. The D/GC must certify and au-
or SDVOSB, without setting forth spe- thenticate that the case file, to the
cific facts or allegations, is insuffi- best of his/her knowledge, is a true and
cient; correct copy of the case file.
(3) Any other pertinent information (d) Protective order. A protester seek-
the Judge should consider; and ing access to the SBA case file must
(4) The name, address, telephone file a timely request for a protective
number, and email address, if avail- order under § 134.205. Except for good
able, and signature of the protester or cause shown, a protester must request
its attorney. a protective order within five days of
762
Small Business Administration § 134.1009
filing the protest. Even after issuance agency action, and it becomes effective
of a protective order, OHA will not dis- upon issuance.
close income tax returns or privileged (j) Effect of decision. (1) A contracting
information. officer may award a contract to a pro-
(e) Supplemental allegations. If, after tested concern after the Judge has de-
viewing documents in the SBA case file termined either that the protested con-
for the first time under a protective cern is eligible for inclusion in SBA’s
order, a protester wishes to supplement certification database or has dismissed
its protest with additional argument, all protests against it.
the protester may do so. Any such sup- (2) A contracting officer shall not
plement is due at OHA no later than 15 award a contract to a protested con-
days from the date the protester re- cern that the Judge has determined is
ceives or reviews the SBA case file. not an eligible VOSB or SDVOSB. If
(f) Response—(1) Timing. The pro- the contract has already been awarded,
tested concern, the D/GC, the con- the contracting officer shall terminate
tracting officer, and any other inter- the contract, unless the contracting of-
ested party (see § 134.1002(b)) may re- ficer has made a written determination
spond to the protest and supplemental that termination is not in the best in-
protest, if one is filed. The response is terests of the Government. However,
due no later than 15 days from the date the contracting officer shall not exer-
the protest or supplemental protest cise any options or award further task
was filed with OHA. The record closes
or delivery orders.
the date the final response is due.
(3) The contracting officer must up-
(2) Service. The respondent must serve
date the Federal Procurement Data
its response upon the protester or its
counsel and upon each of the persons System (or successor system) and other
identified in the certificate of service procurement reporting databases to re-
attached to the notice and order or, if flect the Judge’s decision.
a protective order is issued, in accord- (4) If the Judge finds the protested
ance with the terms of the protective concern is not an eligible VOSB or
order. SDVOSB, the D/GC must immediately
(3) Reply to a response. No reply to a remove the protested concern from the
response will be permitted unless the certification database.
Judge directs otherwise. (5) A concern found to be ineligible
(g) Basis for decision. The decision may not submit an offer on a future
will be based primarily on the case file VOSB or SDVOSB procurement until
and information provided by the pro- the protested concern reapplies to the
tester, the protested concern, and any Veteran Small Business Certification
other parties. However, the Judge may Program and has been designated by
investigate issues beyond those raised SBA as a VOSB or SDVOSB into the
in the protest and may use other infor- certification database.
mation or make requests for additional [87 FR 73425, Nov. 29, 2022, as amended at 88
information to the protester, the pro- FR 42593, July 3, 2023]
tested concern, or SBA.
(h) Award of contract. The contracting § 134.1008 Discovery.
officer may award a contract before the
Judge issues a decision only if the con- Discovery will not be permitted in
tracting officer determines that an SBA VOSB or SDVOSB status protest
award must be made to protect the proceedings.
public interest and notifies the Judge
§ 134.1009 Oral hearings.
and D/GC in writing of such determina-
tion. Notwithstanding such a deter- Oral hearings will be held in VOSB or
mination, the provisions of paragraph SDVOSB status protest proceedings
(j) of this section shall apply to the only upon a finding by the Judge of ex-
procurement in question. traordinary circumstances. If such an
(i) Decision. OHA will serve a copy of oral hearing is ordered, the proceeding
the written decision on each party, or, shall be conducted in accordance with
if represented by counsel, on its coun- those rules of subpart B of this part as
sel. The decision is considered the final the Judge deems appropriate.
763
§ 134.1010 13 CFR Ch. I (1–1–25 Edition)
§ 134.1010 Standard of review and bur- Subpart K—Rules of Practice for
den of proof. Appeals of Denials of Certifi-
The protested concern has the burden cation and Decertification in
of proving its eligibility, by a prepon- the SBA Veteran Small Busi-
derance of the evidence. ness Certification Program
(VOSB or SDVOSB Appeals)
§ 134.1011 Weight of evidence.
The Judge will give greater weight to SOURCE: 87 FR 73425, Nov. 29, 2022, unless
specific, signed, factual evidence than otherwise noted.
to general, unsupported allegations or
opinions. In the case of refusal or fail- § 134.1101 Scope of rules.
ure to furnish requested information (a) The rules of practice in this sub-
within a required time period, the part apply to appeals of denial of cer-
Judge may assume that disclosure tification and decertification for inclu-
would be contrary to the interests of sion in the SBA Veteran Small Busi-
the party failing to make disclosure. ness Certification Program certifi-
cation database (VOSB or SDVOSB Ap-
§ 134.1012 The record. peals).
(b) Except where inconsistent with
Where relevant, the provisions of
this subpart, the provisions of subparts
§ 134.225 apply. In a protest under this
A and B of this part apply to appeals
subpart, the contents of the record also listed in paragraph (a) of this section.
include the case file or solicitation (c) Protests of a concern’s eligibility
submitted to OHA in accordance with for inclusion in the SBA Veteran Small
§ 134.1007. Business Certification Program Data-
base (VOSB or SDVOSB Status Pro-
§ 134.1013 Request for reconsideration. tests) are governed by subpart J of this
The decision on a VOSB or SDVOSB part.
status protest may not be appealed.
However: § 134.1102 Who may file a VOSB or
SDVOSB Appeal?
(a) The Judge may reconsider a
VOSB or SDVOSB status protest deci- A concern that has been denied cer-
sion. Any party that has appeared in tification as a VOSB or SDVOSB or has
the proceeding, or the SBA, may re- had its VOSB or SDVOSB status decer-
quest reconsideration by filing with tified may appeal the decision to OHA.
OHA and serving a petition for recon- § 134.1103 Grounds for filing a VOSB
sideration on all the parties to the or SDVOSB Appeal.
VOSB or SDVOSB status protest with-
Denial of certification and decerti-
in twenty (20) calendar days after serv-
fication of VOSB or SDVOSB status
ice of the written decision. The request may be appealed to OHA. A denial or
for reconsideration must clearly show decertification based on the failure to
an error of fact or law material to the provide sufficient evidence of the quali-
decision. The Judge may also recon- fying individual’s status as a veteran
sider a decision on his or her own ini- or a service-disabled veteran are final
tiative. VA decisions and not subject to appeal
(b) If the Judge reverses his or her to OHA.
initial decision on reconsideration, the
contracting officer must follow § 134.1104 Commencement of VOSB or
§ 134.1007(j) in applying the new deci- SDVOSB Appeal.
sion’s results. (a) A concern whose application for
VOSB or SDVOSB certification has
been denied or whose status has been
decertified must file its appeal within
10 business days of receipt of the denial
or decertification.
(b) The rule for counting days is in
§ 134.202(d).
764
Small Business Administration § 134.1112
(c) OHA will dismiss an untimely ap- § 134.1108 Response to an appeal peti-
peal. tion.
EFFECTIVE DATE NOTE: Amendments to (a) Who may respond. The D/GC (or
§ 134.1104 were published at 89 FR 102510, Dec. designee) or counsel for SBA may re-
17, 2024, effective Jan. 16, 2025. spond to the VOSB or SDVOSB appeal.
The response should present arguments
§ 134.1105 The appeal petition. to the issues presented on appeal.
(b) Time limits. The notice and order
(a) Format. VOSB or SDVOSB appeals
will inform the parties of the filing of
must be in writing. There is no re- the appeal petition, establish the close
quired format for an appeal petition; of record as 15 days after service of the
however, it must include the following: notice and order, and inform the par-
(1) A copy of the denial or decerti- ties that OHA must receive any re-
fication and the date the appellant re- sponses to the appeal petition no later
ceived it; than the close of record.
(2) A statement of why the denial or (c) Service. The respondent must
decertification is in error; serve its response upon the appellant
(3) Any other pertinent information and upon each of the persons identified
the Judge should consider; and in the certificate of service attached to
(4) The name, address, telephone the appeal petition pursuant to
number, and email address, if avail- § 134.1105.
able, and signature of the appellant or (d) Reply to a response. No reply to a
response will be permitted unless the
its attorney.
Judge directs otherwise.
(b) Service. The appellant must serve
copies of the entire appeal petition § 134.1109 Discovery and oral hear-
upon the Director, Office of Govern- ings.
ment Contracting (D/GC) and SBA Discovery will not be permitted and
Counsel at OPLservice@sba.gov. oral hearings will not be held.
(c) Certificate of service. The appellant
must attach to the appeal petition a § 134.1110 New evidence.
signed certificate of service meeting Except for good cause shown, evi-
the requirements of § 134.204(d). dence beyond the case file will not be
(d) Dismissal. An appeal petition that admitted.
does not meet all the requirements of
this section may be dismissed by the § 134.1111 Standard of review and bur-
den of proof.
Judge at his/her own initiative or upon
motion of a respondent. The standard of review is whether
the D/GC denial or decertification was
§ 134.1106 Service and filing require- based on clear error of fact or law. The
ments. appellant has the burden of proof, by a
The provisions of § 134.204 apply to preponderance of the evidence.
the service and filing of all pleadings § 134.1112 The decision.
and other submissions permitted under
this subpart. (a) Timing. The Judge shall decide a
VOSB or SDVOSB Appeal, insofar as
§ 134.1107 Transmission of the case practicable, within 60 calendar days
file. after close of the record.
(b) Contents. Following closure of the
Once a VOSB or SDVOSB appeal is record, the Judge will issue a decision
filed, the D/GC must deliver to OHA containing findings of fact and conclu-
the entire case file relating to the de- sions of law, reasons for such findings
nial or decertification. The Judge will and conclusions, and any relief ordered.
issue a notice and order establishing (c) Basis for decision. Decisions under
the timetable for transmitting the case this subpart will be based primarily on
file to OHA. The D/GC must certify and the evidence in the SBA case file, argu-
authenticate that the case file, to the ments made on appeal, and any re-
best of his/her knowledge, is a true and sponse(s) thereto. However, the Judge,
correct copy of the case file. in his/her sole discretion, may consider
765
§ 134.1201 13 CFR Ch. I (1–1–25 Edition)
issues beyond those raised in the plead- (b) A final SBA loan review decision
ings and the denial or cancellation let- that is appealable under this subpart is
ter. an official written decision by SBA,
(d) Finality. The decision is the final after SBA completes a review of a PPP
agency decision and becomes effective loan, that finds a borrower:
upon issuance. Where OHA dismisses (1) Was ineligible for a PPP loan;
an appeal of a D/GC denial or decerti- (2) Was ineligible for the PPP loan
fication, the D/GC determination re- amount received or used the PPP loan
mains in effect. proceeds for unauthorized uses;
(e) Service. OHA will serve a copy of (3) Is ineligible for PPP loan forgive-
all written decisions on each party, or, ness in the amount determined by the
if represented by counsel, on its coun- lender in its full approval or partial ap-
sel. proval decision issued to SBA; and/or
(f) Effect. If the Judge grants the ap- (4) Is ineligible for PPP loan forgive-
peal and finds the appellant eligible for ness in any amount when the lender
inclusion in the SBA certification has issued a full denial decision to
database, the D/GC must immediately SBA.
include in the SBA certification data- (c) A borrower cannot directly file an
base. appeal of a decision made by a lender
(g) Reconsideration. A decision of the concerning a PPP loan with OHA.
Judge may be reconsidered. Any party (d) An appeal to OHA is an adminis-
that has appeared in the proceeding, or trative remedy that must be exhausted
the SBA Administrator or his or her before judicial review of a final SBA
designee, may request reconsideration loan review decision may be sought in
by filing with OHA and serving a peti- a Federal district court.
tion for reconsideration on all parties (e) Any determination by SBA’s Of-
to the VOSB or SDVOSB Appeal within fice of Inspector General concerning a
twenty (20) calendar days after service PPP loan is not appealable to OHA.
of the written decision, upon a clear (f) This subpart does not create any
showing of an error of fact or law ma- right to appeal any SBA decision on
terial to the decision. The Judge also any 7(a) loans (see part 120 of this chap-
may reconsider a decision on his or her ter) other than PPP loans.
own initiative. (g) The Rules of Practice for Appeals
From Size Determinations and NAICS
Subpart L—Borrower Appeals of Code Designations in subpart C of this
Final SBA Loan Review Decisions part do not apply to appeals of final
SBA loan review decisions or to the
SOURCE: 86 FR 51595, Sept. 16, 2021, unless PPP.
otherwise noted. (h) In addition to the provisions in
subpart B of this part specifically ref-
§ 134.1201 Scope of the rules in this erenced in this subpart, the following
subpart. regulations from subpart B of this part
(a) The rules of practice in this sub- also apply to this subpart: §§ 134.207
part apply to appeals to OHA from cer- (Amendments and supplemental plead-
tain final SBA loan review decisions ings); 134.208 (Representation in cases
under the Paycheck Protection Pro- before OHA); 134.209 (Requirement of
gram (PPP) as described in paragraph signature); 134.211 (Motions); 134.212
(b) of this section, and to any other (Summary judgment); 134.217 (Settle-
PPP matter referred to OHA by the Ad- ment); 134.218 (Judges); 134.219 (Sanc-
ministrator of SBA. The PPP was es- tions); and 134.220 (Prohibition on ex
tablished as a temporary program parte communications). Other provi-
under section 1102 of the Coronavirus sions from subpart B of this part that
Aid, Relief, and Economic Security Act are not specifically referenced in this
(CARES Act) (Pub. L. 116–136), as subpart do not apply to this subpart.
amended. PPP loans include first draw
PPP loans made under Section 7(a)(36) § 134.1202 Commencement of appeals
of the Small Business Act and second of final SBA loan review decisions.
draw PPP loans made under Section (a) An appeal petition must be filed
7(a)(37) of the Small Business Act. with OHA within 30 calendar days after
766
Small Business Administration § 134.1205
the appellant’s receipt of the final SBA (1) A copy of the final SBA loan re-
loan review decision. To file and man- view decision that is being appealed
age an appeal of a final SBA loan re- and the date it was received by the bor-
view decision with OHA, refer to the rower. A Notice of Paycheck Protec-
OHA Case Portal at https://ap- tion Program Forgiveness Payment
peals.sba.gov. An appellant is required does not provide a borrower with a
to use the OHA Case Portal to file and right to appeal to OHA.
manage their appeal. (2) A full and specific statement as to
(b) Appellant must provide their why the final SBA loan review decision
lender with a copy of the timely appeal is alleged to be erroneous, together
petition upon filing in order for the with all factual information and legal
lender to extend the deferment period arguments supporting the allegations.
of the PPP loan until a final decision is There is no required format for an ap-
issued under § 134.1211. peal petition. However, the appeal peti-
(c)(1) Do not count the day the time tion must meet the following require-
period begins, but do count the last day ments:
of the time period. (i) The maximum length of an appeal
(2) If the last day is Saturday, Sun- petition (not including attachments) is
day, or a Federal holiday, the time pe- 20 pages. A table of authorities is re-
riod ends on the next business day. quired only for petitions citing more
Example: On a Thursday, a borrower than twenty cases, regulations, or stat-
receives a final SBA loan review deci- utes.
sion. The time period begins on Thurs- (ii) Clearly label any exhibits and at-
day, so the first day to count is Friday. tachments.
Because the 30th calendar day after re- (3) The name, address, telephone
ceipt of the decision is a Saturday, the number, email address, and signature
appeal deadline extends to the next of the appellant or its attorney.
business day, which is Monday. (b) Dismissal. An appeal petition that
(3)(i) A Judge may modify any time does not contain all of the information
period or deadline, except: required by paragraph (a) of this sec-
tion may be dismissed, with or without
(A) The time period governing com-
prejudice, at the Judge’s own initia-
mencement of a case (i.e., when the ap-
tive, or upon motion of SBA.
peal petition may be filed); and
(c) Motion for more definite statement.
(B) A time period established by stat-
(1) SBA may, no later than five cal-
ute.
endar days after receiving a Notice and
(ii) A party may move for an exten- Order on an appeal petition, move for
sion of time pursuant to § 134.211. an order to the appellant to provide a
(d) A timely appeal by a PPP bor- more definite appeal petition or other-
rower of a final SBA loan review deci- wise comply with this section. A Judge
sion extends the deferment period of may order a more definite appeal peti-
the PPP loan until a final decision is tion on his or her own initiative.
issued under § 134.1211. (2) A motion for a more definite ap-
peal petition stays SBA’s time for fil-
§ 134.1203 Standing.
ing a response. The Judge will estab-
Only the borrower on a loan, or its lish the time for filing and serving a re-
legal successor in interest, for which sponse and will extend the close of the
SBA has issued a final SBA loan review record as appropriate.
decision that makes a finding in (3) If the appellant does not comply
§ 134.1201(b)(1) through (4) has standing with the Judge’s order to provide a
to appeal the final SBA loan review de- more definite appeal petition or other-
cision to OHA. Lenders and individual wise fails to comply with applicable
owners of a borrower entity do not regulations in this subpart, the Judge
have standing to appeal a final SBA may dismiss the petition with preju-
loan review decision. dice.
§ 134.1204 The appeal petition. § 134.1205 Dismissal.
(a) Content. The appeal petition must (a) The Judge must dismiss the ap-
include the following information: peal if:
767
§ 134.1206 13 CFR Ch. I (1–1–25 Edition)
(1) The appeal is beyond OHA’s juris- issuance of the Notice and Order, uti-
diction as set forth under § 134.1201; lizing the OHA Case Portal. If addi-
(2) The appeal is untimely under tional time to file the administrative
§ 134.1202; record was requested and granted by a
(3) The appellant lacks standing to Judge, appellant will have 10 calendar
appeal under § 134.1203; or days from the date SBA is required to
(4) The appeal is premature because file the administrative record under
SBA has not yet made a final SBA loan the judge’s order granting an extension
review decision. in which to file an objection to the ad-
(b) The Judge may dismiss the appeal ministrative record.
in accordance with § 134.1204(b) or (c)(3), (2) The appellant may object to the
or if the appeal does not, on its face, al- absence of any document from the ad-
lege specific facts that if proven to be ministrative record that the appellant
true, warrant reversal or remand of the believes should have been included in
final SBA loan review decision. the administrative record.
(3) The Judge will rule upon such ob-
§ 134.1206 Notice and Order. jections and may direct or permit that
Upon receipt of an appeal challenging the administrative record be supple-
a final SBA loan review decision, OHA mented.
will assign the matter to either an Ad-
ministrative Law Judge or an Adminis- § 134.1208 Response to an appeal peti-
trative Judge in accordance with tion.
§ 134.218. Unless the appeal is dismissed (a) Who may respond. SBA may re-
under § 134.1205, the Judge will issue a spond to an appeal as determined in its
Notice and Order, utilizing the OHA discretion, but SBA is not required to
Case Portal, establishing a deadline for respond. If SBA elects not to respond,
production of the administrative such election shall not be interpreted
record and specifying a date by which as an admission or waiver of any alle-
SBA may respond to the appeal. gation of law or fact. In addition, after
review of the appeal petition, OHA may
§ 134.1207 The administrative record. request SBA to respond for good cause
(a) Time limits. The administrative shown by OHA. Only SBA may respond.
record will be due 20 calendar days If filed, the response should set forth
after issuance of the Notice and Order the relevant facts and legal arguments
unless additional time is requested and to the issues presented on appeal.
granted. (b) Time limit. If an SBA response is
(b) Contents. The administrative filed, it must be filed within 45 cal-
record shall include non-privileged, rel- endar days after issuance of the Notice
evant documents that SBA considered and Order.
in making its final loan review deci- (c) Close of record. The record will
sion or that were before SBA at the close 45 calendar days from the
time of the final loan review decision. issuance of the Notice and Order, un-
The administrative record need not, less the Judge decides otherwise. Gen-
however, contain all documents per- erally, filings after the close of record
taining to the appellant. will not be considered.
(c) Non-waiver. In the event that priv- (d) Service. If a response is filed, the
ileged or confidential information is SBA must file its response with OHA,
disclosed in the administrative record, and serve a copy of the response upon
such disclosure shall not operate as a the appellant or its attorney, as appli-
waiver of any claim of privilege or con- cable by utilizing the OHA Case Portal.
fidentiality by SBA. (e) Reply to response. Generally, a
(d) Filing. SBA will file the adminis- reply to a response is not permitted un-
trative record with OHA and serve it less the Judge directs otherwise. See
on appellant utilizing the OHA Case § 134.206(e). However, upon motion (see
Portal. § 134.211), and under terms needed to
(e) Objections. (1) Any objection to avoid prejudice to any non-moving
the administrative record must be filed party, the Judge may permit the filing
with OHA and served on SBA no later and service of a supplemental pleading
than 30 calendar days after the after review of SBA’s response and/or
768
Small Business Administration § 134.1211
the administrative record. The pro- (c) Reconsideration. An initial deci-
posed supplemental pleading must be sion of the Judge may be reconsidered.
filed and served with the motion uti- If a request for reconsideration is filed
lizing the OHA Case Portal. and the SBA Administrator does not
exercise discretion to review or reverse
§ 134.1209 Evidence beyond the record, the initial decision under paragraph (d)
discovery, and oral hearings. of this section, OHA will decide the re-
(a) Generally, the Judge may not quest for reconsideration and OHA’s
admit evidence beyond the administra- decision on the request for reconsider-
tive record. ation is a reconsidered initial OHA de-
(b) Neither discovery nor oral hear- cision.
ings will be permitted in appeals from (1) Either SBA or appellant may re-
final SBA loan review decisions. quest reconsideration by filing with
(c) All appeals under this subpart will the Judge and serving a petition for re-
be decided solely on a review of the ad- consideration within 10 calendar days
ministrative record, the appeal peti- after service of the Judge’s decision.
tion, any response, any reply or supple- The request for reconsideration must
mental pleading, and filings related to clearly show an error of fact or law ma-
objection to the administrative record. terial to the decision. SBA does not
have to have filed a response to the
§ 134.1210 Standard of review. borrower’s appeal petition to request
The standard of review is whether reconsideration of the initial decision
the final SBA loan review decision was of the Judge.
based on clear error of fact or law. The (2) The Judge may also reconsider a
appellant has the burden of proof. decision on his or her own initiative
within 20 calendar days after service of
§ 134.1211 Decision on appeal. the Judge’s decision.
(a) Time limits and contents. The Judge (3) A reconsidered initial OHA deci-
will issue his or her decision within 45 sion becomes the final decision of SBA
calendar days after the close of record, 30 calendar days after its service unless
as practicable. The decision will con- the SBA Administrator, solely within
tain findings of fact and conclusions of the Administrator’s discretion, decides
law, the reasons for such findings and to review or reverse the reconsidered
conclusions, and any relief ordered. initial OHA decision under paragraph
The decision will be served upon appel- (d) of this section. The discretionary
lant and SBA utilizing the OHA Case authority of the Administrator does
Portal. not create any additional rights of ap-
(b) Initial decision. The Judge’s deci- peal on the part of an appellant not
sion on the appeal is an initial deci- otherwise specified in SBA regulations
sion. However, unless a request for re- in this chapter.
consideration is filed pursuant to para- (d) Administrator review. Within 30
graph (c) of this section or the SBA Ad- calendar days after the service of an
ministrator, solely within the Adminis- initial OHA decision or a reconsidered
trator’s discretion, decides to review or initial OHA decision of a Judge, the
reverse the initial decision pursuant to SBA Administrator, solely within the
paragraph (d) of this section, an initial Administrator’s discretion, may elect
decision shall become the final decision to review and/or reverse an initial OHA
of SBA 30 calendar days after its serv- decision or a reconsidered initial OHA
ice. The discretionary authority of the decision. In the event that the Admin-
Administrator does not create any ad- istrator elects to review and/or reverse
ditional rights of appeal on the part of an initial OHA decision and a timely
an appellant not otherwise specified in request for reconsideration of a Judge’s
SBA regulations in this chapter. Any initial decision is also filed by an ap-
decision pursuant to this subpart ap- pellant pursuant to paragraph (c) of
plies only to the PPP and does not this section, the Administrator will
apply to SBA’s 7(a) Loan Program gen- consider such request for reconsider-
erally or to any interpretation or ap- ation. The Administrator’s decision
plication of the regulations in part 120 will become the final decision of the
or 121 of this chapter. SBA upon issuance.
769
§ 134.1212 13 CFR Ch. I (1–1–25 Edition)
(e) Precedent. Neither initial nor final § 134.1301 What is the scope of the
decisions rendered by OHA under this rules in this subpart?
subpart are precedential. (a) The rules of practice in this sub-
(f) Publication. Final decisions are part apply to all appeals to OHA from
normally published without redactions formal protest determinations made by
on OHA’s website. PPP decisions will the Director of SBA’s Office of
likely contain confidential business HUBZone (D/HUB) in connection with a
and financial information and/or per- HUBZone status protest. Appeals under
sonally identifiable information. this subpart include any of the grounds
Therefore, OHA, within its full discre- for a HUBZone status protest specified
tion, may publish final decisions issued in § 126.801 of this chapter, as well as
under this section with any necessary appeals from dismissals of HUBZone
redactions. status protests by the D/HUB based on
(g) Appeal to Federal district court. a finding that the protest was pre-
Final decisions may be appealed to the mature, untimely, nonspecific, not
appropriate Federal district court only. based upon protestable allegations,
moot, or not filed by an interested
§ 134.1212 Effects of the decision. party.
OHA may affirm, reverse, or remand (b) Except where inconsistent with
a final SBA loan review decision. If re- this subpart, the provisions of subparts
manded, OHA no longer has jurisdic- A and B of this part apply to appeals
tion over the matter unless a new ap- listed in paragraph (a) of this section.
peal is filed as a result of a new final (c) Appeals relating to formal size de-
SBA loan review decision. terminations and NAICS Code designa-
tions are governed by subpart C of this
§ 134.1213 Equal Access to Justice Act. part.
A prevailing appellant is not entitled § 134.1302 Who may appeal a HUBZone
to recover attorney’s fees. Appeals to status protest determination?
OHA from final SBA loan review deci-
sions under the PPP are not pro- Appeals from HUBZone status pro-
ceedings that are required to be con- test determinations may be filed with
ducted by an Administrative Law OHA by the protested concern, the pro-
Judge under § 134.603. tester, or the contracting officer re-
sponsible for the procurement affected
§ 134.1214 Confidential information. by the protest determination.
If a filing or other submission made § 134.1303 What time limits apply to
pursuant to an appeal in this subpart filing an appeal from a HUBZone
contains confidential business and fi- status protest determination?
nancial information; personally identi- Appeals from a HUBZone status pro-
fiable information; source selection test determination must be com-
sensitive information; income tax re- menced by filing and serving an appeal
turns; documents and information cov- petition within ten (10) business days
ered under § 120.1060 of this chapter; or after the appellant receives the
any other exempt information, that in- HUBZone status protest determination
formation is not available to the public (see § 134.204 for filing and service re-
pursuant to the Freedom of Informa- quirements). OHA shall dismiss any un-
tion Act (FOIA), 5 U.S.C. 552. timely appeal.
Subpart M—Rules of Practice for § 134.1304 What are the effects of the
filing of an appeal on the procure-
Appeals of Protest Determina- ment at issue?
tions Regarding the Status of (a) If a timely appeal is filed after
a Concern as a Certified contract award, the contracting officer
HUBZone Small Business Con- must consider whether performance
cern can be suspended until an appellate de-
cision is rendered.
SOURCE: 88 FR 21089, Apr. 10, 2023, unless (b) If a timely appeal is filed before
otherwise noted. contract award, the contracting officer
770
Small Business Administration § 134.1310
must withhold award until the appel- § 134.1306 What are the service and fil-
late decision is rendered, unless the ing requirements?
contracting officer has determined that The provisions of § 134.204 apply to
award and performance of the contract the service and filing of all pleadings
is in the best interests of the govern- and other submissions permitted under
ment. this subpart, unless otherwise indi-
cated in this subpart.
§ 134.1305 What are the requirements
for an appeal petition? § 134.1307 What are the requirements
(a) Format. An appeal from a for transmitting the protest file?
HUBZone status protest determination Upon receipt of an appeal petition,
must be in writing. There is no re- the D/HUB will send to OHA a copy of
quired format for an appeal petition. the protest file relating to that deter-
However, it must include the following mination. The D/HUB will certify and
information: authenticate that the protest file, to
(1) A copy of the protest determina- the best of the D/HUB’s knowledge, is a
tion; true and correct copy of the protest
(2) The date the appellant received file.
the protest determination;
(3) A statement that the petitioner is § 134.1308 What is the standard of re-
appealing a HUBZone status protest view?
determination issued by the D/HUB; The standard of review for an appeal
(4) A full and specific statement as to of a HUBZone status protest deter-
why the HUBZone status protest deter- mination is whether the D/HUB’s deter-
mination is alleged to be based on a mination was based on clear error of
clear error of fact or law, together with fact or law. The appellant has the bur-
argument supporting such allegation; den of proof, by a preponderance of the
(5) The solicitation number, the con- evidence.
tract number (if applicable), and the
§ 134.1309 When will a Judge dismiss
name, address, and telephone number an appeal?
of the contracting officer; and
(6) The name, address, telephone The presiding Judge must dismiss the
number, facsimile number, and signa- appeal if:
ture of the appellant or its attorney. (a) The appeal is untimely filed under
(b) Service of appeal. Concurrent with § 134.1303;
(b) The appeal does not, on its face,
filing the appeal with OHA
allege facts that if proven to be true,
(OHAFilings@sba.gov), the appellant
warrant reversal or modification of the
must serve copies of the entire appeal
determination; or
petition upon each of the following:
(c) The matter has been decided or is
(1) The D/HUB at hzappeals@sba.gov;
the subject of adjudication before a
(2) The contracting officer respon- court of competent jurisdiction over
sible for the procurement affected by a such matters; however, once an appeal
HUBZone determination; has been filed, initiation of litigation
(3) The protested concern (the busi- of the matter in a court of competent
ness concern whose HUBZone status is jurisdiction will not preclude the Judge
at issue) or the protester; and from rendering a final decision on the
(4) SBA’s Office of General Counsel, matter.
Associate General Counsel for Procure-
ment Law at OPLservice@sba.gov. § 134.1310 Who can file a response to
(c) Certificate of service. The appellant an appeal petition and when must
must attach to the appeal petition a such a response be filed?
signed certificate of service meeting (a) Who may respond. Although not
the requirements of § 134.204(d). required, any person served with an ap-
(d) Dismissal. An appeal petition that peal petition may file and serve a re-
does not meet all the requirements of sponse supporting or opposing the ap-
this section may be dismissed by the peal if he or she wishes to do so. The
Judge on the Judge’s own initiative or response should present arguments re-
upon motion of a respondent. lated to the issues presented on appeal.
771
§ 134.1311 13 CFR Ch. I (1–1–25 Edition)
(b) Time limits. If a person decides to twenty (20) calendar days after service
file a response, the response must be of the written decision. The request for
filed within fifteen (15) business days reconsideration must clearly show an
after service of the appeal petition. error of fact or law material to the de-
(c) Service. The respondent must cision. The Judge may also reconsider
serve its response upon the appellant a decision on the Judge’s own initia-
and upon each of the persons identified tive, within twenty (20) calendar days
in the certificate of service attached to after issuance of the written decision.
the appeal petition pursuant to (b) The Judge may remand a pro-
§ 134.1305. ceeding to the D/HUB for a new
(d) Reply to a response. No reply to a HUBZone status protest determination
response will be permitted unless the if the D/HUB fails to address issues of
Judge directs otherwise. decisional significance sufficiently,
does not address all the relevant evi-
§ 134.1311 Will the Judge permit dis- dence, or does not identify specifically
covery and oral hearings? the evidence upon which it relied. Once
Discovery will not be permitted, and remanded, OHA no longer has jurisdic-
oral hearings will not be held. tion over the matter, unless a new ap-
peal is filed as a result of the new
§ 134.1312 What are the limitations on HUBZone status protest determina-
the introduction of new evidence? tion.
The Judge may not admit evidence
beyond the written protest file nor per- PART 136—ENFORCEMENT OF
mit any form of discovery. All appeals NONDISCRIMINATION ON THE
under this subpart will be decided sole-
ly on a review of the evidence in the
BASIS OF HANDICAP IN PRO-
written protest file, arguments made in GRAMS OR ACTIVITIES CON-
the appeal petition, and response(s) DUCTED BY THE SMALL BUSINESS
filed thereto. ADMINISTRATION
§ 134.1313 When is the record closed? Sec.
The record will close when the time 136.101 Purpose.
to file a response to an appeal petition 136.102 Application.
136.103 Definitions.
expires pursuant to § 134.1310.
136.104–136.109 [Reserved]
§ 134.1314 When must the Judge issue 136.110 Self-evaluation.
the decision? 136.111 Notice.
136.112–136.129 [Reserved]
The Judge shall issue a decision, in- 136.130 General prohibition against dis-
sofar as practicable, within forty-five crimination.
(45) calendar days after close of the 136.131–136.139 [Reserved]
record. 136.140 Employment.
136.141–136.148 [Reserved]
§ 134.1315 What are the effects of the 136.149 Program accessibility: Discrimina-
Judge’s decision on the procure- tion prohibited.
ment at issue? 136.150 Program accessibility: Existing fa-
The Judge’s decision is the final cilities.
agency decision and becomes effective 136.151 Program accessibility: New con-
struction and alterations.
upon issuance. For the effects of the 136.152–136.159 [Reserved]
decision on the procurement at issue, 136.160 Communications.
see § 126.803(e) of this chapter. 136.161–136.169 [Reserved]
136.170 Compliance procedures.
§ 134.1316 Can a Judge reconsider an
appeal decision? AUTHORITY: 29 U.S.C. 794.
(a) Any party who has appeared in SOURCE: 53 FR 19760, May 31, 1988, unless
the proceeding, or SBA, may request otherwise noted.
reconsideration of the OHA appeal de-
cision by filing with the Judge and § 136.101 Purpose.
serving a petition for reconsideration The purpose of this part is to effec-
on all the parties to the appeal within tuate section 119 of the Rehabilitation,
772
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