Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH
DATE: March 12, 2002
SUBJECT: Small Business Administration; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals
SOURCE: Federal Register, March 12, 2002, Vol. 67, No. 48, page 11057
AGENCIES: Small Business Administration (SBA)
ACTION: Proposed Rule
SYNOPSIS: The SBA proposes to amend its regulations governing proceedings before the Office of Hearings and Appeals (OHA) to revise and clarify procedures, conform the regulations to other regulations and procedures developed by case law and prevailing practice, and make plain language revisions.
EDITOR'S NOTE: The SBA's regulations are in Title 13 of the Code of Federal Regulations (CFR), Chapter 1, Small Business Administration. Most of the regulations proposed for revision are in 13 CFR Part 134, Rules of Procedure Governing Cases Before the Office of Hearings and Appeals.
DATES: Comments must be received by April 11, 2002.
ADDRESSES: Send comments to Gloria E. Blazsik, Acting Assistant Administrator for Hearings and Appeals, 409 Third Street, SW, Suite 5900, Washington, DC 20416; or by e-mail to OHA@sba.gov.
FOR FURTHER INFORMATION CONTACT: Michael J. Wolter, Attorney Advisor, Office of Hearings and Appeals, 202-401-1420; TDD: 1-800-877-8339.
SUPPLEMENTAL INFORMATION: The SBA proposes to revise 13 CFR Part 134, the rules of procedure governing cases before the Office of Hearings and Appeals. The SBA last comprehensively revised the regulations in 1996, then made additional revisions in 1998 and 2000 (for more on the 2000 changes, see the September 25, 2000, FEDERAL CONTRACTS DISPATCH "Small Business Administration; Rules Governing 8(a) and Small Disadvantaged Business Status Cases").
The proposed rule would make the following major revisions to OHA's procedures:
Deadlines and Associated Actions Regarding Appeals
- The start date for the period for appealing an SBA determination to OHA would be when the petitioner receives the SBA determination, rather than when the SBA serves it (paragraph (a) of 13 CFR 134.202, Commencement of Cases).
- The date of filing would be when OHA receives the submission, if no later than 5:00 p.m. eastern time (paragraph (b) of 13 CFR 134.204, Filing and Service Requirements). Also, the date of service would be when the submission is faxed, mailed, personally delivered to the party served, or given over to a delivery service (13 CFR 134.204(c)).
- When a party appeals an SBA determination, the SBA's burden would be reduced to a mere response rather than an answer (13 CFR 134.206, The Answer or Response). Also, 13 CFR 134.206 would establish the start date for the period for filing the answer or response as when an appeal petition is filed, rather than the day it is served on the respondent.
- Reconsideration of an initial or final decision of the judge would be permitted on certain grounds, unless a statute or regulation otherwise prohibits it (paragraph (c) of 13 CFR 134.227, Finality of Decisions).
- The start date for the 15-day or 30-day time period for filing a size appeal would be when the appellant receives the size determination, rather than when the SBA serves it (paragraph (a) of 13 CFR 134.304, Commencement of Appeals from Size Determinations and NAICS [North American Industrial Classification System] Code Designations.
Clarification and Simplification of OHA's Procedures
- The provisions on filing, service, and the certificate of service would be reorganized and thoroughly revised for simplicity and clarity (13 CFR 134.204 and 134.304).
- The number of rules governing the date of filing would be reduced from three to one (13 CFR 134.204).
Expedite and Streamline OHA's Procedures
- The time for a respondent to file a motion for a more definite statement would be reduced from 20 to 15 days (paragraph (a) of 13 CFR 134.205, Motion for a More Definite Statement).
- A party moving to amend or supplement its pleadings would be required to file and serve its proposed amendment or supplemental pleading with its motion (13 CFR 134.207, Amendments and Supplemental Pleadings).
- Intervention by the SBA would be permitted only until 15 days after the close of record and intervention by other persons only until the close of record, rather than until final decision (13 CFR 134.210, Intervention).
- A party filing a routine motion would be required to obtain and to state the other parties' positions on the motion (paragraph (b) of 13 CFR 134.211, Motions), and the answer or response would have to be filed within 20 days of an order denying a motion to dismiss (paragraph (d) of 13 CFR 134.211). Also, paragraph (f) of 13 CFR 134.211 would require a party seeking an extension of time to file its motion at least two days before the original deadline, except for good cause shown.
- The need to file a settlement agreement would be eliminated if the parties file a joint motion to dismiss, unless the judge has express authority under statute, regulation, or standard operating procedure to review the settlement agreement for legality and orders the agreement to be filed (13 CFR 134.217, Settlement).
- In size and NAICS code appeals, a party moving to submit new evidence would be required to file and serve its proposed new evidence with its motion (paragraph (a)(2) of 13 CFR 134.308, Limitation on New Evidence and Adverse Inference from Non-Submission in Appeals from Size Determinations).
Conform 13 CFR Part 134 to Other SBA regulations, OHA Case Law, and Prevailing Practices
- The list of cases over which OHA has jurisdiction would be amended to include appeals of certain Small Disadvantaged Business determinations, certain decisions relating to Women's Business Centers and Small Business Development Centers, certain matters involving debarments and suspensions, and decisions of the Appropriate Management Official in SBA Employee Dispute Resolution Process cases (13 CFR 134.102, Jurisdiction of OHA).
- When there is incomplete service or an amended appeal petition, the judge, by order, would set the deadline for the response or answer (13 CFR 134.206(c)).
- In a competitive 8(a) contract, an adversely affected entity would be permitted to appeal a NAICS code (paragraph (b) of 13 CFR 134.302, Who May Appeal).
- That OHA does not issue advisory opinions would be clarified (13 CFR 134.303, Advisory Opinions).
- The 10-day time period for filing a NAICS code appeal would begin anew whenever the contracting officer issues an amendment affecting the NAICS code (13 CFR 134.304(a)(3)).
- That certain 8(a) appeal regulations in 13 CFR 134.402, Appeal Decision, paragraphs (a) and (b) of 13 CFR 134.406, Review of the Administrative Record, and paragraph (a) of 13 CFR 134.407, Evidence Beyond the Record and Discovery) do not apply to 8(a) suspension appeals would be clarified, to conform with 13 CFR 124.305, What is Suspension and How is a Participant Suspended from the 8(a) BD [Business Development] Program?, and OHA's case law, such as Matter of All American Meats, Inc., SBA No. BDP-107 (1998).
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.
Copyright 2002 by Panoptic Enterprises. All Rights Reserved.
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