[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR134]

[Page 478-500]
 
                TITLE 13--BUSINESS CREDIT AND ASSISTANCE
 
                CHAPTER I--SMALL BUSINESS ADMINISTRATION
 
PART 134_RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF 
HEARINGS AND APPEALS

                         Subpart A_General Rules

Sec.
134.101 Definitions.
134.102 Jurisdiction of OHA.
134.103 Rules applicable to time periods provided in this part.

               Subpart B_Rules of Practice for Most Cases

134.201 Scope of the rules in this subpart B.
134.202 Commencement of cases.
134.203 The petition.
134.204 Filing and service requirements.
134.205 Motion for a more definite statement.
134.206 The answer or response.
134.207 Amendments and supplemental pleadings.
134.208 Representation in cases before OHA.
134.209 Requirement of signature.
134.210 Intervention.
134.211 Motions.
134.212 Summary decision.
134.213 Discovery.
134.214 Subpoenas.
134.215 Interlocutory appeals.
134.216 Alternative dispute resolution procedures.
134.217 Settlement.
134.218 Judges.
134.219 Sanctions.
134.220 Prohibition against ex parte communications.
134.221 Prehearing conferences.
134.222 Oral hearing.
134.223 Evidence.
134.224 Standards for decision.
134.225 The record.
134.226 The decision.
134.227 Finality of decisions.
134.228 Review of initial decisions.
134.229 Termination of jurisdiction.

  Subpart C_Rules of Practice for Appeals From Size Determinations and 
                         NAICS Code Designations

134.301 Scope of the rules in this subpart C.
134.302 Who may appeal.
134.303 Advisory opinions.
134.304 Commencement of appeals from size determinations and NAICS code 
          designations.
134.305 The appeal petition.
134.306 Transmission of the case file and solicitation.
134.307 Service and filing requirements.
134.308 Limitation on new evidence and adverse inference from non-
          submission in appeals from size determinations.
134.309 Response to an appeal petition.
134.310 Discovery.
134.311 Oral hearings.
134.312 Evidence.
134.313 Applicability of subpart B provisions.
134.314 Standard of review and burden of proof.
134.315 The record.
134.316 The decision.
134.317 Return of the case file.

     Subpart D_Rules of Practice for Appeals Under the 8(a) Program

134.401 Scope of the rules in this subpart D.
134.402 Appeal petition.
134.403 Service of appeal petition.
134.404 Decision by Administrative Law Judge.
134.405 Jurisdiction.
134.406 Review of administrative record.
134.407 Evidence beyond the record and discovery.
134.408 Summary decision.
134.409 Decision on appeal.

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

134.501 What is the scope of the rules in this subpart E?
134.502 Who may appeal?
134.503 When must a person file an appeal from an SDVO SBC protest 
          determination?
134.504 What are the effects of the appeal on the procurement at issue?
134.505 What are the requirements for an appeal petition?
134.506 What are the service and filing requirements?
134.507 When does the AA/GC transmit the protest file and to whom?
134.508 What is the standard of review?
134.509 When will a Judge dismiss an appeal?
134.510 Who can file a response to an appeal petition and when must such 
          a response be filed?
134.511 Will the Judge permit discovery and oral hearings?
134.512 What are the limitations on new evidence?
134.513 When is the record closed?

[[Page 479]]

134.514 When must the Judge issue his or her decision?
134.515 What are the effects of the Judge's decision?

       Subpart F_Implementation of the Equal Access to Justice Act

134.601 What is the purpose of this subpart?
134.602 Under what circumstances may I apply for reimbursement?
134.603 What is an adversary adjudication?
134.604 What benefits may I claim?
134.605 Under what circumstances are fees and expenses reimbursable?
134.606 Who is eligible for possible reimbursement?
134.607 How do I know which eligibility requirement applies to me?
134.608 What are the special rules for calculating net worth and number 
          of employees?
134.609 What is the difference between a fee and an expense?
134.610 Are there limitations on reimbursement for fees and expenses?
134.611 What should I include in my application for an award?
134.612 What must a net worth exhibit contain?
134.613 What documentation do I need for fees and expenses?
134.614 What deadlines apply to my application for an award and where do 
          I send it?
134.615 How will proceedings relating to my application for fees and 
          expenses be conducted?
134.616 How will I know if I receive an award?
134.617 May I seek review of the ALJ's decision on my award?
134.618 How are awards paid?

    Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 637(a), 648(l), 
656(i), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189.

    Source: 61 FR 2683, Jan. 29, 1996, unless otherwise noted.

                         Subpart A_General Rules

Sec. 134.101  Definitions.

    As used in this part:
    AA/OHA means the Assistant Administrator for OHA.
    Act means the Small Business Act, 15 U.S.C. 631 et seq.
    Address means the primary home or business address of a person or 
entity, including the street location or postal box number, city or 
town, state, and postal zip code.
    Appeal petition has the same meaning as petition.
    Area Office means a Government Contracting Area Office or a Disaster 
Area Office of the Small Business Administration.
    Day means a calendar day, unless a Judge specifies otherwise.
    Hearing means the presentation and consideration of argument and 
evidence. A hearing need not include live testimony or argument.
    Investment Act means the Small Business Investment Act of 1958, 15 
U.S.C. 661 et seq.
    Judge means an Administrative Law Judge or an Administrative Judge 
of OHA, or the AA/OHA when he or she acts as an Administrative Judge.
    NAICS code means North American Industry Classification System code.
    OHA means the Office of Hearings and Appeals.
    Party means the petitioner, appellant, respondent, or intervenor, 
and the contracting officer in a NAICS code appeal.
    Person means an individual or any form of business entity.
    Petition (or appeal petition) means a written complaint, a written 
appeal from an SBA determination, or a written request for the 
initiation of proceedings before OHA.
    Pleading means a petition, an order to show cause commencing a case, 
an appeal petition, an answer, a response, or any amendment or 
supplement to those documents.
    Respondent means any person or governmental agency against which a 
case has been brought before OHA.
    SBA means the Small Business Administration.
    Size determination means a formal size determination made by an Area 
Office and includes decisions by Government Contracting Area Directors 
that determine whether two or more concerns are affiliated for purposes 
of SBA's financial assistance programs, or other programs for which an 
appropriate SBA official requested an affiliation determination.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47246, July 18, 2002; 69 
FR 29208, May 21, 2004]

Sec. 134.102  Jurisdiction of OHA.

    OHA has authority to conduct proceedings in the following cases:

[[Page 480]]

    (a) The revocation or suspension of Small Business Investment 
Company licenses, cease and desist orders, and the removal or suspension 
of directors and officers of licensees, under the Investment Act and 
part 107 of this chapter;
    (b) Alleged violations of those civil rights laws which are 
effectuated by parts 112, 113, 117, and 136 of this chapter;
    (c) The revocation of the privilege of a person to conduct business 
with SBA under the Act and part 103 of this chapter;
    (d) The eligibility of any bank or non-bank lender to continue to 
participate in SBA loan programs under the Act and part 120 of this 
chapter, or to do so with preferred or certified status, and any other 
appeal that is specifically authorized by part 120 of this chapter;
    (e) The suspension or termination of surety bond program 
participants under 15 U.S.C. 694a et seq. and part 115 of this chapter;
    (f) The rights, privileges, or obligations of development companies 
under section 504 of the Investment Act and part 120, subpart H, of this 
chapter;
    (g) Allowance of fees and expenses under the Equal Access to Justice 
Act, 5 U.S.C. 504;
    (h) Debarment from appearance before the SBA because of post-
employment restrictions under 18 U.S.C. 207 and part 105 of this 
chapter;
    (i) Collection of debts owed to SBA and the United States under the 
Debt Collection Act of 1982, the Debt Collection Improvement Act of 
1996, and part 140 of this chapter;
    (j) Appeals from the following SBA 8(a) program determinations under 
the Act and part 124 of this chapter:
    (1) Denial of program admission based solely on a negative finding 
as to social disadvantage, economic disadvantage, ownership or control; 
program termination; program graduation; or denial of a waiver of the 
requirement to perform to completion an 8(a) contract; and
    (2) Program suspension;
    (k) Appeals from size determinations and NAICS code designations 
under part 121 of this chapter. ``Size determinations'' include 
decisions by Government Contracting Area Directors that determine 
whether two or more concerns are affiliated for purposes of SBA's 
financial assistance programs, or other programs for which an 
appropriate SBA official requested an affiliation determination;
    (l) The imposition of civil penalties and assessments against 
persons who make false claims or statements to SBA under the Program 
Fraud Civil Remedies Act, 31 U.S.C. 3801-3812 and part 142 of this 
chapter;
    (m) Appeals from the determination of the SBA under part 120 of this 
chapter to revoke or suspend a microloan intermediary or microloan non-
lending technical assistance provider;
    (n) Appeals from the following small disadvantaged business (SDB) 
determinations under part 124 of this chapter:
    (1) SBA's determination that an applicant firm does not qualify for 
certification, or that a certified SDB no longer qualifies for the 
program; and
    (2) A Private Certifier's ownership and control determination made 
on a firm's application for certification;
    (o) The suspension, termination, or non-renewal of cooperative 
agreements with Women's Business Centers and Small Business Development 
Centers under the Act and part 130 of this chapter;
    (p) Certain matters involving debarments and suspensions under part 
145 of this chapter;
    (q) Appeals from the Service-Disabled Veteran-owned SBC Program 
ownership and control status under part 125 of this chapter;
    (r) The decision of the Appropriate Management Official in SBA 
Employee Dispute Resolution Process cases (Employee Disputes) under 
Standard Operating Procedure 37 71 02 (available at http://www.sba.gov/
library/soproom.html); and
    (s) Any other hearing, determination, or appeal proceeding referred 
to OHA by the Administrator of SBA.

[61 FR 2683, Jan. 29, 1996, as amended at 66 FR 47074, Sept. 11, 2001; 
67 FR 47246, July 18, 2002; 69 FR 25271, May 5, 2004; 69 FR 29208, May 
21, 2004; 70 FR 17587, Apr. 7, 2005]

[[Page 481]]

Sec. 134.103  Rules applicable to time periods provided in this part.

    (a) The day from which the time period is computed is excluded, but 
the last business day is counted, excluding Saturday, Sunday, or Federal 
holiday.
    (b) At the Judge's initiative, or upon the motion of a party showing 
good cause, the Judge may modify any of the applicable time limits, 
other than those established by statute and those governing when a case 
may be commenced.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47246, July 18, 2002]

               Subpart B_Rules of Practice for Most Cases

Sec. 134.201  Scope of the rules in this subpart B.

    (a) The rules in this subpart generally apply to all proceedings 
over which OHA has jurisdiction, except for appeals from size 
determinations and NAICS code designations. Specific procedural rules 
pertaining to 8(a) program appeals and to proceedings under the Program 
Fraud Civil Remedies Act are set forth, respectively in subpart D of 
this part and part 142 of this chapter.
    (b) In the case of a conflict between a particular rule in this 
subpart and a rule of procedure pertaining to OHA appearing in another 
subpart of this part or another part of this chapter, the latter rule 
shall govern.

[61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 
FR 47246, July 18, 2002]

Sec. 134.202  Commencement of cases.

    (a) A party other than the SBA may commence a case by filing a 
written petition within the following time periods:
    (1) Except as provided by paragraphs (a)(2) through (a)(5) of this 
section, no later than 45 days from the date of receipt of the SBA 
action or determination to which the petition relates;
    (2) In proceedings for debt collection under part 140 of this 
chapter: no later than 15 days after receipt of a notice of indebtedness 
and intention to collect such debt by salary or administrative offset; 
in accordance with the time frames specified in Sec. 140.11 of this 
chapter with respect to administrative wage garnishment;
    (3) In applications for an award of fees pursuant to subpart E of 
this part, no later than 30 days after the decision to which it applies 
becomes final;
    (4) For 8(a) program suspension proceedings, see Sec. 124.305 of 
this chapter;
    (5) For SBA Employee Disputes, see Standard Operating Procedure 37 
71 02, available at www.sba.gov/library/soproom.html.
    (b) The SBA may commence a case by issuing to the respondent an 
appropriate written order to show cause and filing the order to show 
cause with OHA.
    (c) Cases concerning Small Business Investment Company license 
suspensions and revocations and cease and desist orders must be 
commenced with an order to show cause containing a statement of the 
matters of fact and law asserted by the SBA, the legal authority and 
jurisdiction under which a hearing is to be held, a statement that a 
hearing will be held, and the time and place for the hearing.

[67 FR 47246, July 18, 2002, as amended at 70 FR 17587, Apr. 7, 2005]

Sec. 134.203  The petition.

    (a) A petition must contain the following:
    (1) The basis of OHA's jurisdiction;
    (2) A copy of the SBA determination being appealed, if applicable, 
and date received;
    (3) A clear and concise statement of the factual basis of the case;
    (4) The relief being sought;
    (5) The name, address, telephone number, facsimile number, and 
signature of the petitioner or its attorney;
    (6) A certificate of service (see Sec. 134.204(d)); and
    (7) In a debt collection case, a statement showing when the 
petitioner received the SBA notice initiating the debt collection 
proceeding (see Sec. 140.3 of this chapter).
    (b) A petition also must contain additional information or documents 
as required by the applicable program regulations in this chapter or by 
other subparts of this part 134. For SBA Employee Disputes, see Standard 
Operating Procedure 37 71 02, available at www.sba.gov/library/
soproom.html.

[[Page 482]]

    (c) A petition which does not contain all of the information 
required by paragraphs (a) and (b) of this section may be dismissed, 
with or without prejudice, at the Judge's own initiative, or upon motion 
of the respondent.

[67 FR 47247, July 18, 2002]

Sec. 134.204  Filing and service requirements.

    (a) Methods of filing and service. Pleadings or other submissions 
must be filed and served by mail, delivery, or facsimile. Mail includes 
first class (including certified and registered), express, and priority 
mail. For good cause, the Judge may order that filing or service be 
effected by one of these methods.
    (b) Filing. Filing is the receipt of pleadings and other submissions 
at OHA.
    (1) OHA's address. OHA accepts filings between the hours of 8:30 
a.m. and 5 p.m. eastern time at the following address: Docketing Clerk, 
Office of Hearings and Appeals, Small Business Administration, 409 3rd 
Street, SW., Washington, DC 20416. OHA's telephone number is (202) 401-
8203. The number for OHA's facsimile machine is (202) 205-7059.
    (2) The date of filing for pleadings and other submissions filed by 
mail, delivery, or facsimile is the date the filing is received at OHA. 
Any filing received at OHA after 5:00 p.m. eastern time is considered 
filed as of the next day.
    (3) Exhibits. An exhibit, whether an original or a copy, must be 
authenticated or identified to be what it purports to be.
    (4) Copies. No extra copies of pleadings or other submissions need 
be filed. If a document is offered as an exhibit, a copy of the document 
will be accepted by the Judge unless--
    (i) a genuine question is raised as to whether it is a true and 
accurate copy; or
    (ii) it would be unfair, under the circumstances, to admit the copy 
instead of the original.
    (c) Service. Service is the mailing, delivery, or facsimile to all 
other parties of a copy of each pleading or other submission filed with 
OHA.
    (1) Complete copies of all pleadings and other submissions filed 
with OHA must be served upon all other parties or, if represented, their 
authorized representatives or their attorneys, at their record 
addresses.
    (2) The date of service is as follows: for facsimile, the date the 
facsimile is sent; for personal delivery by the party, its employee, or 
its attorney, the date the document is given to the party served; for 
commercial delivery, the date the document is given to the delivery 
service; for mail, the date of mailing. The date of mailing is the date 
of a U.S. Postal Service postmark or any other proof of mailing. If 
there is insufficient proof of mailing, there is a rebuttable 
presumption that the mailing was made five days before receipt.
    (3) If the SBA is a party, the SBA must be served, as required by 
the applicable program regulations or by other subparts of this part 
134. If the SBA office for service is not specified elsewhere, serve: 
Office of General Counsel, Small Business Administration, 409 Third 
Street, S.W., Washington, DC 20416. For SBA Employee Disputes, see 
Standard Operating Procedure 37 71 02, available at www.sba.gov/library/
soproom.html.
    (d) Certificate of service. A certificate of service shows how, 
when, and to whom service was made. Every pleading and other submission 
filed with OHA and served on the other parties must include a 
certificate of service. The certificate should state: ``I certify that 
on [date], I caused the foregoing document to be served by [either 
``placing a copy in the mail,'' ``sending a copy by facsimile,'' 
``personally delivering a copy,'' or ``giving a copy to a delivery 
service,''] upon the following: [list name, address, telephone number, 
and facsimile number of each party served].'' The certificate must be 
signed and include the typed name and title of the individual serving 
the pleading or other submission.
    (e) Confidential information. Any information in pleadings or other 
submissions that is believed by the submitting party to constitute 
proprietary or confidential information need not be

[[Page 483]]

served upon parties so long as the deletions are clearly identified and 
generally described in the documents which are served. Upon motion, the 
Judge may direct that the withheld information be provided to other 
parties, subject to any appropriate protective order.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47247, July 18, 2002; 70 
FR 29937, May 25, 2005]

Sec. 134.205  Motion for a more definite statement.

    (a) Procedure. No later than 15 days after service of the petition 
or order to show cause, the respondent may file and serve a motion 
requesting a more definite statement of particular allegations in the 
petition.
    (b) Stay. The filing and service of a motion for a more definite 
statement stays the time for filing and serving an answer or response. 
The Judge will establish the time for filing and serving an answer or 
response.

[67 FR 47247, July 18, 2002]

Sec. 134.206  The answer or response.

    (a)(1) Except in a case involving a petition appealing from an SBA 
determination, a respondent must file and serve an answer within 45 days 
after the filing of a petition or the service of an order to show cause, 
except that in debt collection cases, answers are due within 30 days. 
For SBA Employee Disputes, see Standard Operating Procedure 37 71 02, 
available at www.sba.gov/library/soproom.html.
    (2) The answer must contain the following:
    (i) An admission or denial of each of the factual allegations 
contained in the petition or order to show cause, or a statement that 
the respondent denies knowledge or information sufficient to determine 
the truth of a particular allegation;
    (ii) Any affirmative defenses; and
    (iii) The name, address, telephone number, facsimile number, and 
signature of the respondent or its attorney.
    (3) Allegations in the petition or order to show cause that are not 
answered in accordance with paragraph (a)(2)(i) of this section will be 
deemed admitted unless injustice would occur.
    (b) Upon the filing of a petition appealing from an SBA 
determination, the Judge or the AA/OHA will issue an order informing all 
known parties of the date the appeal was filed. The respondent must file 
and serve a response to such a petition within 45 days after the filing 
of such a petition. The response need not admit or deny the allegations 
in the petition but shall set forth the respondent's positions in 
support of the SBA determination. The response must also set forth the 
name, address, telephone number, facsimile number, and signature of the 
respondent or its attorney.
    (c) If a petition or order to show cause is amended or if respondent 
is not properly served, the Judge will order the time to file an answer 
or response extended and will specify the date such answer or response 
is due. If respondent is not properly served with a petition appealing 
from an SBA determination, the Judge will issue an order directing that 
the petitioner serve respondent within a specified time and directing 
respondent to file and serve a response within 45 days after petitioner 
timely serves respondent in accordance with the order.
    (d) If the respondent fails to timely file and serve an answer or 
response, that failure will constitute a default. Following such a 
default, the Judge may prohibit the respondent from participating 
further in the case. If SBA, as respondent to a petition appealing from 
an SBA determination, fails to timely file and serve its response or the 
administrative record (where required), the Judge will issue an order 
directing SBA to file and serve the administrative record by a specified 
date.

[67 FR 47247, July 18, 2002]

Sec. 134.207  Amendments and supplemental pleadings.

    (a) Amendments. Upon motion, and under terms needed to avoid 
prejudice to any non-moving party, the Judge may permit the filing and 
service of amendments to pleadings. However, an amendment will not be 
permitted if it would cause unreasonable delay in the determination of 
the matter. The proposed amendment must be filed and served with the 
motion.

[[Page 484]]

    (b) Supplemental pleadings. Upon motion, and under terms needed to 
avoid prejudice to any non-moving party, the Judge may permit the filing 
and service of a supplemental pleading setting forth relevant 
transactions or occurrences that have taken place since the filing of 
the original pleading. The proposed supplemental pleading must be filed 
and served with the motion.
    (c) 8(a) appeals. In 8(a) program appeals, amendments to pleadings 
and supplemental pleadings will be permitted by the Judge only upon a 
showing of good cause.
    (d) Answer or response. In an order permitting the filing and 
service of an amended or supplemented petition or order to show cause, 
the Judge will establish the time for filing and serving an answer or 
response.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47248, July 18, 2002]

Sec. 134.208  Representation in cases before OHA.

    (a) A party may represent itself, or be represented by an attorney. 
A partner may represent a partnership; a member may represent a limited 
liability company; and an officer may represent a corporation, trust, 
association, or other entity.
    (b) An attorney for a party who did not appear on behalf of that 
party in the party's first filing with OHA must file and serve a written 
notice of appearance.
    (c) An attorney seeking to withdraw from a case must file and serve 
a motion for the withdrawal of his or her appearance.

[67 FR 47248, July 18, 2002]

Sec. 134.209  Requirement of signature.

    Every written submission to OHA, other than evidence, must be signed 
by the party filing that submission, or by the party's attorney. By 
signing the submission, a party or its attorney attests that the 
statements and allegations in that submission are true to the best of 
its knowledge, and that the submission is not being filed for the 
purpose of delay or harassment.

Sec. 134.210  Intervention.

    (a) By SBA. SBA may intervene as of right at any time in any case 
until 15 days after the close of record, or the issuance of a decision, 
whichever comes first.
    (b) By interested persons. Any interested person may move to 
intervene at any time until the close of record by filing and serving a 
motion to intervene containing a statement of the moving party's 
interest in the case and the necessity for intervention to protect such 
interest. An interested person is any individual, business entity, or 
governmental agency that has a direct stake in the outcome of the 
appeal. The Judge may grant leave to intervene upon such terms as he or 
she deems appropriate.

[67 FR 47248, July 18, 2002]

Sec. 134.211  Motions.

    (a) Contents. All motions must state the relief being requested, as 
well as the grounds and any authority for that relief.
    (b) Statement of whether motion is opposed. Except when filing a 
motion to dismiss or a motion for summary decision, the moving party 
must make reasonable efforts before filing the motion to contact any 
non-moving party and determine whether it will oppose the motion and 
must state in the motion whether each non-moving party will oppose or 
not oppose the motion. If the moving party cannot determine whether a 
non-moving party will oppose the motion, the moving party must describe 
in the motion the efforts made to contact that non-moving party.
    (c) Response. No later than 20 days after the service of a motion, 
all non-moving parties must serve and file a response or be deemed to 
have consented to the relief sought. Unless the Judge directs otherwise, 
the moving party will have no right to reply to a response, nor will 
oral argument be heard on the motion.
    (d) Service of orders. OHA will serve upon all parties any written 
order issued in response to a motion.
    (e) Motion to dismiss. A respondent may file a motion to dismiss any 
time before a decision is issued. If an answer

[[Page 485]]

or response has not been filed, the motion to dismiss stays the time to 
answer or respond. If the Judge denies the motion, and an answer or 
response has not been filed, the respondent must file the answer or 
response within 20 days after the order deciding the motion.
    (f) Motion for an extension of time. Except for good cause shown, a 
motion for an extension of time must be filed at least two days before 
the original deadline.

[61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 
FR 47248, July 18, 2002]

Sec. 134.212  Summary decision.

    (a) Grounds. A party may move for summary decision at any time as to 
all or any portion of the case, on the grounds that there is no genuine 
issue as to any material fact, and that the moving party is entitled to 
a decision in its favor as a matter of law.
    (b) Contents of motion. The motion must include a statement of the 
material facts believed not to be disputed, and relevant law. Supporting 
affidavits may also be included.
    (c) Cross-motions. In its response to a motion for summary decision, 
a party may cross-move for summary decision. The initial moving party 
may file and serve a response to any cross-motion for summary decision 
within 20 days after the service of that cross-motion.
    (d) Stay. A motion for summary decision stays the time to answer. 
The Judge will establish the time for filing and serving an answer in 
the order determining the motion for summary decision.
    (e) Appeal petitions from SBA determinations (other than 8(a) 
determinations). In a case involving an appeal petition, except as 
provided in subpart D of this part, if SBA has provided multiple grounds 
for the determination being appealed, SBA may move for summary decision 
on one or more grounds. If the Judge finds that there is no genuine 
issue of material fact and the SBA is entitled to a decision in its 
favor as a matter of law as to any such ground, the Judge will grant the 
motion for summary decision and dismiss the appeal.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47248, July 18, 2002]

Sec. 134.213  Discovery.

    (a) Motion. A party may obtain discovery only upon motion, and for 
good cause shown.
    (b) Forms. The forms of discovery which a Judge can order under 
paragraph (a) of this section include requests for admissions, requests 
for production of documents, interrogatories, and depositions.
    (c) Limitations. Discovery may be limited in accordance with the 
terms of a protective order. Further, privileged information and 
irrelevant issues or facts will not be subject to discovery.
    (d) Disputes. If a dispute should arise between the parties over a 
particular discovery request, the party seeking discovery may file and 
serve a motion to compel discovery. Discovery may be opposed on the 
grounds of harassment, needless embarrassment, irrelevance, undue burden 
or expense, privilege, or confidentiality.

[61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 67 
FR 47249, July 18, 2002]

Sec. 134.214  Subpoenas.

    (a) Availability. At the request of a party, or upon his or her own 
initiative, a Judge may issue a subpoena requiring a witness to appear 
and testify, or to produce particular documents, at a specified time and 
place. Subpoenas are not authorized for proceedings relating to internal 
Agency determinations, such as Employee Disputes.
    (b) Requests. A request for the issuance of a subpoena must be 
written, served upon all parties, and filed. The request must clearly 
identify the witness and any documents to be subpoenaed, and must set 
forth the relevance of the testimony or documents sought.
    (c) Service. A subpoena may only be served by personal delivery. The 
individual making service shall prepare an affidavit stating the date, 
time, and place of the service. The party which obtained the subpoena 
must serve upon all other parties, and file with OHA, a copy of the 
subpoena and affidavit of service within 2 days after service is made.
    (d) Motion to quash. A motion to limit or quash a subpoena must be 
filed and

[[Page 486]]

served within 10 days after service of the subpoena, or by the return 
date of the subpoena, whichever date comes first. Any response to the 
motion must be filed and served within 10 days after service of the 
motion, unless a shorter time is specified by the Judge. No oral 
argument will be heard on the motion unless the Judge directs otherwise.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.215  Interlocutory appeals.

    (a) General. A motion for leave to take an interlocutory appeal from 
a Judge's ruling will not be entertained in those proceedings in which 
OHA issues final decisions. In all other cases, an interlocutory appeal 
will be permitted only if, upon motion by a party, or upon the Judge's 
own initiative, the Judge certifies that his or her ruling raises a 
question which is immediately appealable. Interlocutory appeals will be 
decided by the AA/OHA or a designee.
    (b) Motion for certification. A party must file and serve a motion 
for certification no later than 20 days after issuance of the ruling to 
which the motion applies. A denial of the motion does not preclude 
objections to the ruling in any subsequent request for review of an 
initial decision.
    (c) Basis for certification. The Judge will certify a ruling for 
interlocutory appeal only if he or she determines that:
    (1) The ruling involves an important question of law or policy about 
which there is substantial ground for a difference of opinion; and
    (2) An interlocutory appeal will materially expedite resolution of 
the case, or denial of an interlocutory appeal would cause undue 
hardship to a party.
    (d) Stay of proceedings. A stay while an interlocutory appeal is 
pending will be at the discretion of the Judge.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.216  Alternative dispute resolution procedures.

    At any time during the pendency of a case, the parties may submit a 
joint motion requesting that the Judge permit the use of alternative 
dispute resolution procedures to assist in resolving the matter. If the 
motion is granted, the Judge will also stay the proceedings before OHA, 
in whole or in part, as he or she deems appropriate, pending the outcome 
of the alternative dispute resolution procedures.

Sec. 134.217  Settlement.

    At any time during the pendency of a case, the parties may submit a 
joint motion to dismiss the appeal if they have settled the case, and 
may file with such motion a copy of the settlement agreement. If the 
Judge has express authority, under statute, SBA regulation or SBA 
standard operating procedures, to review the contents of a settlement 
agreement for legality, the Judge may order the parties to file a copy 
of the settlement agreement. Otherwise, upon the filing of a joint 
motion to dismiss, the Judge will issue an order dismissing the case. 
Settlement negotiations, and rejected settlement agreements, are not 
admissible into evidence.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.218  Judges.

    (a) Assignment. The AA/OHA will assign all cases subject to the 
Administrative Procedure Act, 5 U.S.C. 551 et seq., to an Administrative 
Law Judge. The AA/OHA will assign all other cases before OHA to either 
an Administrative Law Judge or an Administrative Judge, or, if the AA/
OHA is a duly licensed attorney, to himself or herself.
    (b) Authority. Except as otherwise limited by this part, or by 
statute or other regulation, a Judge has the authority to take all 
appropriate action to ensure the efficient, prompt, and fair 
determination of a case, including, but not limited to, the authority to 
administer oaths and affirmations and to subpoena and examine witnesses.
    (c) Recusal. Upon the motion of a party, or upon the Judge's own 
initiative, a Judge will promptly recuse himself or herself from further 
participation in a case whenever disqualification is appropriate due to 
conflict of interest, bias, or some other significant reason. A denial 
of a motion for recusal may be immediately appealed to the AA/OHA, or to 
the Administrative Law

[[Page 487]]

Judge if the AA/OHA is the Judge, but that appeal will not stay 
proceedings in the case.

Sec. 134.219  Sanctions.

    A Judge may impose appropriate sanctions, except for fees, costs, or 
monetary penalties, which he or she deems necessary to serve the ends of 
justice, if a party or its attorney:
    (a) Fails to comply with an order of the Judge;
    (b) Fails to comply with the rules set forth in this part;
    (c) Acts in bad faith or for purposes of delay or harassment;
    (d) Submits false statements knowingly, recklessly, or with 
deliberate disregard for the truth; or
    (e) Otherwise acts in an unethical or disruptive manner.

Sec. 134.220  Prohibition against ex parte communications.

    No person shall consult or communicate with a Judge concerning any 
fact, question of law, or SBA policy relevant to the merits of a case 
before that Judge except on prior notice to all parties, and with the 
opportunity for all parties to participate. In the event of such 
prohibited consultation or communication, the Judge will disclose the 
occurrence in accordance with 5 U.S.C. 557(d)(1), and may impose such 
sanctions as he or she deems appropriate.

Sec. 134.221  Prehearing conferences.

    Prior to a hearing, the Judge, at his or her own initiative, or upon 
the motion of any party, may direct the parties or their attorneys to 
appear, by telephone or in person, in order to consider any matter which 
may assist in the efficient, prompt, and fair determination of the case. 
The conference may be recorded verbatim at the discretion of the Judge, 
and, if so, a party may purchase a transcript, at its own expense, from 
the recording service.

Sec. 134.222  Oral hearing.

    (a) Availability. A party may obtain an oral hearing only if:
    (1) It is required by regulation; or
    (2) Following the motion of a party, or at his or her own 
initiative, the Judge orders an oral hearing upon concluding that there 
is a genuine dispute as to a material fact that cannot be resolved 
except by the taking of testimony and the confrontation of witnesses.
    (3) The Judge determines that an oral hearing is necessary in 
administrative wage garnishment proceedings conducted pursuant to Sec. 
140.11 of this chapter.
    (b) Place and time. The place and time of oral hearings is within 
the discretion of the Judge, who shall give due regard to the necessity 
and convenience of the parties, their attorneys, and witnesses. The 
Judge may direct that an oral hearing be conducted by telephone.
    (c) Public access. Unless otherwise ordered by the Judge, all oral 
hearings are public.
    (d) Payment of subpoenaed witnesses. A party which obtains a 
witness' presence at an oral hearing by subpoena, must pay to that 
witness the fees and mileage costs to which the witness would be 
entitled in Federal Court.
    (e) Recording. Oral hearings will be recorded verbatim. A transcript 
of a recording may be purchased by a party, at its own expense, from the 
recording service.

[61 FR 2683, Jan. 29, 1996, as amended at 63 FR 35766, June 30, 1998; 70 
FR 17587, Apr. 7, 2005]

Sec. 134.223  Evidence.

    (a) Federal Rules of Evidence. Unless contrary to a particular rule 
in this part, or an order of the Judge, the Federal Rules of Evidence 
will be used as a general guide in all cases before OHA.
    (b) Hearsay. Hearsay evidence is admissible if it is deemed by the 
Judge to be relevant and reliable.

Sec. 134.224  Standards for decision.

    The decision of a Judge will be based upon a preponderance of the 
evidence.

Sec. 134.225  The record.

    (a) Contents. The record of a case before OHA will consist of all 
pleadings, motions, and other non-evidentiary submissions, all admitted 
evidence, all orders and decisions, and any transcripts of proceedings 
in the case.
    (b) Public access. Except for information subject to a protective 
order, proprietary or confidential information

[[Page 488]]

withheld in accordance with this part, or any other information which is 
excluded from disclosure by law or regulation, the record will be 
available at OHA for public inspection during normal business hours. 
Copies of the documents available for public inspection may be obtained 
by the public upon payment of any duplication charges.
    (c) Closure. The Judge will set the date upon which the pre-
decisional record of the case will be closed, and after which no 
additional evidence or argument will be accepted.

Sec. 134.226  The decision.

    (a) Contents. Following closure of the record, the Judge will issue 
a decision containing findings of fact and conclusions of relevant law, 
reasons for such findings and conclusions, and any relief ordered. The 
contents of the record will constitute the exclusive basis for a 
decision.
    (b) Time limits. Decisions pertaining to the collection of debts 
owed to SBA and the United States under the Debt Collection Act of 1982, 
the Debt Collection Improvement Act of 1996, and Part 140 of this 
chapter must be made within 60 days after a petition is filed. Time 
limits for decisions in other types of cases, if any, are indicated 
either in the applicable program regulations or in other subparts of 
this part 134.
    (c) Service. OHA will serve a copy of all written decisions on:
    (1) Each party, or, if represented by counsel, on its counsel; and
    (2) SBA's General Counsel, or his or her designee, if SBA is not a 
party.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002; 70 
FR 17587, Apr. 7, 2005]

Sec. 134.227  Finality of decisions.

    (a) Initial decisions. Except as otherwise provided in paragraph (b) 
of this section, a decision by the Judge on the merits is an initial 
decision. However, unless a request for review is filed pursuant to 
Sec. 134.228(a), or a request for reconsideration is filed pursuant to 
paragraph (c) of this section, an initial decision shall become the 
final decision of the SBA 30 days after its service.
    (b) Final decisions. A decision by the Judge on the merits shall be 
a final decision in the following proceedings:
    (1) Collection of debts owed to SBA and the United States under the 
Debt Collection Act of 1982, Debt Collection Improvement Act of 1996, 
and part 140 of this chapter;
    (2) Appeals from SBA 8(a) program determinations under the Act and 
part 124 of this chapter;
    (3) Appeals from size determinations and NAICS code designations 
under part 121 of this chapter; and
    (4) In other proceedings as provided either in the applicable 
program regulations or in other subparts of this part 134.
    (c) Reconsideration. Except as otherwise provided by statute, the 
applicable program regulations in this chapter, or this part 134, an 
initial or final decision of the Judge may be reconsidered. Any party 
may request reconsideration by filing with the Judge and serving a 
petition for reconsideration within 20 days after service of the written 
decision, upon a clear showing of an error of fact or law material to 
the decision. The Judge also may reconsider a decision on his or her own 
initiative.

[67 FR 47249, July 18, 2002, as amended at 70 FR 17587, Apr. 7, 2005]

Sec. 134.228  Review of initial decisions.

    (a) Request for review. Within 30 days after the service of an 
initial decision or a reconsidered initial decision of a Judge, any 
party, or SBA's Office of General Counsel, may file and serve a request 
for review by the Administrator. A request for review must set forth the 
filing party's specific objections to the initial decision, and any 
alleged support for those objections in the record, or in case law, 
statute, regulation, or SBA policy. A party must serve its request for 
review upon all other parties and upon SBA's Office of General Counsel.
    (b) Response. Within 20 days after the service of a request for 
review, any party, or SBA's Office of General Counsel, may file and 
serve a response. A party must serve its response upon all other parties 
and upon SBA's Office of General Counsel.
    (c) Transfer of the record. Upon receipt of all responses, or 30 
days after the filing of a request for review, whichever is earlier, OHA 
will transfer the record

[[Page 489]]

of the case to the Administrator. The Administrator, or his or her 
designee, will then review the record.
    (d) Standard of review. Upon review, the Administrator, or his or 
her designee, will sustain the initial decision unless it is based on an 
erroneous finding of fact or an erroneous interpretation or application 
of case law, statute, regulation, or SBA policy.
    (e) Order. The Administrator, or his or her designee, will:
    (1) Affirm, reverse, or modify the initial decision, which 
determination will become the final decision of the SBA upon issuance; 
or
    (2) Remand the initial decision to the Judge for appropriate further 
proceedings.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.229  Termination of jurisdiction.

    Except when the Judge reconsiders a decision or remands the case, 
the jurisdiction of OHA will terminate upon the issuance of a decision 
resolving all material issues of fact and law. If the Judge reconsiders 
a decision, OHA's jurisdiction terminates when the Judge issues the 
decision after reconsideration. If the Judge remands the case, the Judge 
may retain jurisdiction at his or her own discretion, and the remand 
order may include the terms and duration of the remand.

[67 FR 47249, July 18, 2002]

  Subpart C_Rules of Practice for Appeals From Size Determinations and 
                         NAICS Code Designations

Sec. 134.301  Scope of the rules in this subpart C.

    The rules of practice in this subpart C apply to all appeals to OHA 
from:
    (a) Formal size determinations made by an SBA Government Contracting 
Area Office, under part 121 of this chapter, or by a Disaster Area 
Office, in connection with applications for disaster loans; and
    (b) NAICS code designations, pursuant to part 121 of this chapter.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.302  Who may appeal.

    Appeals from size determinations and NAICS code designations may be 
filed with OHA by the following, as applicable:
    (a) Any person adversely affected by a size determination;
    (b) Any person adversely affected by a NAICS code designation. 
However, with respect to a particular sole source 8(a) contract, only 
the AA/8(a)BD may appeal a NAICS code designation;
    (c) The Associate or Assistant Administrator for the SBA program 
involved, through SBA's Office of General Counsel; or
    (d) The procuring agency contracting officer responsible for the 
procurement affected by a size determination.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.303  Advisory opinions.

    The Office of Hearings and Appeals does not issue advisory opinions.

[67 FR 47249, July 18, 2002]

Sec. 134.304  Commencement of appeals from size determinations and 
          NAICS code designations.

    (a) Appeals from size determinations and NAICS code designations 
must be commenced by filing and serving an appeal petition as follows:
    (1) If the appeal is from a size determination in a pending 
procurement or pending Government property sale, then the appeal 
petition must be filed and served within 15 days after appellant 
receives the size determination;
    (2) If the appeal is from a size determination other than one in a 
pending procurement or pending Government property sale, then the appeal 
petition must be filed and served within 30 days after appellant 
receives the size determination;
    (3) If the appeal is from a NAICS code designation, then the appeal 
petition must be filed and served within 10 days after the issuance of 
the initial solicitation. If the appeal relates to an amendment 
affecting the NAICS code, then the appeal petition must be filed and 
served within 10 days after the issuance of the amendment.
    (b) An untimely appeal will be dismissed. However, an appeal which 
is

[[Page 490]]

untimely under paragraph (a)(1) of this section, with respect to a 
pending procurement or sale, may, if timely under paragraph (a)(2) of 
this section, proceed with respect to future procurements or sales.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47249, July 18, 2002]

Sec. 134.305  The appeal petition.

    (a) Form. There is no required format for an appeal petition. 
However, it must include the following information:
    (1) The Area Office which issued the size determination, or the 
contracting office which designated the NAICS code;
    (2) The solicitation or contract number, and the name, address, and 
telephone number of the contracting officer;
    (3) A full and specific statement as to why the size determination 
or NAICS code designation is alleged to be in error, together with 
argument supporting such allegations; and
    (4) The name, address, telephone number, facsimile number, and 
signature of the appellant or its attorney.
    (b) Service of size determination appeals. The appellant must serve 
the appeal petition upon each of the following:
    (1) The SBA official who issued the size determination;
    (2) The contracting officer responsible for the procurement affected 
by a size determination;
    (3) The business concern whose size status is at issue;
    (4) All persons who filed protests; and
    (5) SBA's Office of Procurement Law.
    (c) Service of NAICS appeals. The appellant must serve the 
contracting officer who made the NAICS code designation and SBA's Office 
of General Counsel, Associate General Counsel for Procurement Law, 409 
3rd Street, SW., Washington, DC 20416.
    (d) Certificate of service. The appellant must attach to the appeal 
petition a signed certificate of service meeting the requirements of 
Sec. 134.204(d).
    (e) Dismissal. An appeal petition which does not contain all of the 
information required in paragraph (a) of this section may be dismissed, 
with or without prejudice, by the Judge at his or her own initiative, or 
upon motion of a respondent.

61 FR 2683, Jan. 29, 1996, as amended at 65 FR 57542, Sept. 25, 2000; 67 
FR 47250, July 18, 2002; 69 FR 29208, May 21, 2004]

Sec. 134.306  Transmission of the case file and solicitation.

    (a) Upon receipt of an appeal petition pertaining to a size 
determination, the Area Office which issued the size determination must 
immediately send to OHA the entire case file relating to that 
determination.
    (b) Upon receipt of an appeal petition pertaining to a NAICS code 
designation, or a size determination made in connection with a 
particular procurement, the procuring agency contracting officer must 
immediately send to OHA a paper copy of both the original solicitation 
relating to that procurement and all amendments.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.307  Service and filing requirements.

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

Sec. 134.308  Limitation on new evidence and adverse inference from 
          non-submission in appeals from size determinations.

    (a) Evidence not previously presented to the Area Office which 
issued the size determination being appealed will not be considered by a 
Judge unless:
    (1) The Judge, on his or her own initiative, orders the submission 
of such evidence; or
    (2) A motion is filed and served establishing good cause for the 
submission of such evidence. The offered new evidence must be filed and 
served with the motion.
    (b) If the submission of evidence is ordered by a Judge, and the 
party in possession of that evidence does not submit it, the Judge may 
draw adverse inferences against that party.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002]

[[Page 491]]

Sec. 134.309  Response to an appeal petition.

    (a) Who may respond. Any person served with an appeal petition, any 
intervenor, or any person with a general interest in an issue raised by 
the appeal may file and serve a response supporting or opposing the 
appeal. The response should present argument.
    (b) Time limits. The Judge will issue a Notice and Order informing 
the parties of the filing of the appeal petition, establishing the close 
of record as 15 days after service of the Notice and Order, and 
informing the parties that OHA must receive any responses to the appeal 
petition no later than the close of record.
    (c) Service. The respondent must serve its response upon the 
appellant and upon each of the persons identified in the certificate of 
service attached to the appeal petition pursuant to Sec. 134.305.
    (d) Reply to a response. No reply to a response will be permitted 
unless the Judge directs otherwise.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.310  Discovery.

    Discovery will not be permitted in appeals from size determinations 
or NAICS code designations.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.311  Oral hearings.

    Oral hearings will not be held in appeals from NAICS code 
designations, and will be held in appeals from size determinations only 
upon a finding by the Judge of extraordinary circumstances. If such an 
oral hearing is ordered, the proceeding shall be conducted in accordance 
with those rules of subpart B of this part as the Judge deems 
appropriate.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.312  Evidence.

    To the extent the rules in this subpart permit the submission of 
evidence, the provisions of Sec. 134.223 (a) and (b) apply.

Sec. 134.313  Applicability of subpart B provisions.

    Except where inconsistent with this subpart C, the provisions of 
subpart B of this part apply to appeals from size determinations and 
NAICS code designations.

[67 FR 47250, July 18, 2002]

Sec. 134.314  Standard of review and burden of proof.

    The standard of review is whether the size determination or NAICS 
code designation was based on clear error of fact or law. The appellant 
has the burden of proof, by a preponderance of the evidence, in both 
size and NAICS code appeals.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002; 69 
FR 29209, May 21, 2004]

Sec. 134.315  The record.

    Where relevant, the provisions of Sec. 134.225 (a), (b), and (c) 
apply. In an appeal under this subpart, the contents of the record also 
include the case file or solicitation submitted to OHA in accordance 
with Sec. 134.306.

Sec. 134.316  The decision.

    (a) Contents. Following closure of the record, the Judge will issue 
a decision containing findings of fact and conclusions of law, reasons 
for such findings and conclusions, and any relief ordered. The Judge 
will not decide substantive issues raised for the first time on appeal, 
or which have been abandoned or become moot.
    (b) Finality. The decision is the final decision of the SBA and 
becomes effective upon issuance. Where a size appeal is dismissed, the 
Area Office size determination remains in effect.
    (c) Service. OHA will serve a copy of all written decisions on:
    (1) Each party, or, if represented by counsel, on its counsel; and
    (2) SBA's General Counsel, or his or her designee, if SBA is not a 
party.
    (d) Reconsideration. The decision in a NAICS code appeal may not be 
reconsidered.

[61 FR 2683, Jan. 29, 1996, as amended at 67 FR 47250, July 18, 2002; 69 
FR 29209, May 21, 2004]

[[Page 492]]

Sec. 134.317  Return of the case file.

    Upon issuance of the decision, OHA will return the case file to the 
transmitting Area Office. The remainder of the record will be retained 
by OHA.

[67 FR 47250, July 18, 2002]

     Subpart D_Rules of Practice for Appeals Under the 8(a) Program

    Source: 63 FR 35766, June 30, 1998, unless otherwise noted.

Sec. 134.401  Scope of the rules in this subpart D.

    The rules of practice in this subpart D apply to all appeals to OHA 
from:
    (a) Denials of 8(a) BD program admission based solely on a negative 
finding(s) of social disadvantage, economic disadvantage, ownership or 
control pursuant to Sec. 124.206 of this title;
    (b) Early graduation pursuant to Sec. Sec. 124.302 and 124.304;
    (c) Termination pursuant to Sec. Sec. 124.303 and 124.304;
    (d) Denials of requests to issue a waiver pursuant to Sec. 124.515; 
and
    (e) Suspensions pursuant to Sec. 124.305(a).

Sec. 134.402  Appeal petition.

    In addition to the requirements of Sec. 134.203, an appeal petition 
must state, with specific reference to the determination and the record 
supporting such determination, the reasons why the determination is 
alleged to be arbitrary, capricious or contrary to law. This section 
does not apply to suspension appeals. For suspensions, see Sec. 124.305 
of this chapter.

[63 FR 35766, June 30, 1998, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.403  Service of appeal petition.

    (a) Concurrent with its filing with OHA, a concern must also serve 
SBA's AA/8(a)BD and the appropriate Associate General Counsel in SBA's 
Office of General Counsel with a copy of the petition, including 
attachments.
    (1) For appeals relating to denials of program admission pursuant to 
Sec. 124.206 of this title, suspensions of program assistance pursuant 
to Sec. 124.305, or denials of requests for waivers pursuant to Sec. 
124.515, a petitioner must serve the SBA's Associate General Counsel for 
Procurement Law.
    (2) For appeals relating to early graduation pursuant to Sec. Sec. 
124.302 and 124.304 or termination pursuant to Sec. Sec. 124.303 and 
124.304, a petitioner must serve the SBA's Associate General Counsel for 
Litigation.
    (b) Serve the AA/8(a)BD and the applicable Associate General Counsel 
at the Small Business Administration, 409 3rd Street, SW, Washington, DC 
20416.

[63 FR 35766, June 30, 1998, as amended at 65 FR 57542, Sept. 25, 2000; 
67 FR 47250, July 18, 2002]

Sec. 134.404  Decision by Administrative Law Judge.

    Appeal proceedings brought under this subpart will be conducted by 
an Administrative Law Judge.

Sec. 134.405  Jurisdiction.

    (a) The Administrative Law Judge selected to preside over an appeal 
shall decline to accept jurisdiction over any matter if:
    (1) The appeal does not, on its face, allege facts that, if proven 
to be true, would warrant reversal or modification of the determination, 
including appeals of denials of 8(a) BD program admission based in whole 
or in part on grounds other than a negative finding of social 
disadvantage, economic disadvantage, ownership or control;
    (2) The appeal is untimely filed under Sec. 134.202 or is not 
otherwise filed in accordance with the requirements of this subpart or 
the requirements in subparts A and B of this part; or
    (3) The matter has been decided or is the subject of an adjudication 
before a court of competent jurisdiction over such matters.
    (b) Once the Administrative Law Judge accepts jurisdiction over an 
appeal, subsequent initiation of an adjudication of the matter by a 
court of competent jurisdiction will not preclude the Administrative Law 
Judge from rendering a final decision on the matter.
    (c) Jurisdiction of the Administrative Law Judge in a suspension 
case is limited to the issue of whether the protection of the 
Government's interest requires suspension pending resolution of

[[Page 493]]

the termination action, unless the Administrative Law Judge has 
consolidated the suspension appeal with the corresponding termination 
appeal.

Sec. 134.406  Review of the administrative record.

    (a) Any proceeding conducted under Sec. 134.401(a) through (d) 
shall be decided solely on a review of the written administrative 
record, except as provided in Sec. 134.407 and in suspension appeals. 
For suspension appeals under Sec. 134.401(e), see Sec. 124.305(d) of 
this chapter.
    (b) Except in suspension appeals, the Administrative Law Judge's 
review is limited to determining whether the Agency's determination is 
arbitrary, capricious, or contrary to law. As long as the Agency's 
determination is reasonable, the Administrative Law Judge must uphold it 
on appeal.
    (c) The administrative record must contain all documents that are 
relevant to the determination on appeal before the Administrative Law 
Judge and upon which the SBA decision-maker, and those SBA officials 
that recommended either for or against the decision, relied. The 
administrative record, however, need not contain all documents 
pertaining to the petitioner. For example, the administrative record in 
a termination proceeding need not include the Participant's entire 
business plan file, documents pertaining to specific 8(a) contracts, or 
the firm's application for participation in the 8(a) BD program if they 
are unrelated to the termination action. The petitioner may object to 
the absence of a document, previously submitted to, or sent by, SBA, 
which the petitioner believes was erroneously omitted from the 
administrative record. In the absence of any objection by the petitioner 
or a finding by the Judge pursuant to paragraph (e) of this section that 
the record is insufficiently complete to decide whether the 
determination was arbitrary, capricious, or contrary to law, the 
administrative record submitted by SBA shall be deemed complete.
    (d) Where the Agency files its response to the appeal petition after 
the date specified in Sec. 134.206, the Administrative Law Judge may 
decline to consider the response and base his or her decision solely on 
a review of the administrative record.
    (e) The Administrative Law Judge may remand a case to the AA/8(a)BD 
(or, in the case of a denial of a request for waiver under Sec. 124.515 
of this chapter, to the Administrator) for further consideration if he 
or she determines that, due to the absence in the written administrative 
record of the reasons upon which the determination was based, the 
administrative record is insufficiently complete to decide whether the 
determination is arbitrary, capricious, or contrary to law. In the event 
of such a remand, the Judge will not require the SBA to supplement the 
administrative record other than to supply the reason or reasons for the 
determination and any documents submitted to, or considered by, SBA in 
connection with any reconsideration permitted by regulation that occurs 
during the remand period. After such a remand, in the event the Judge 
finds that the reasons upon which the determination is based are absent 
from any supplemented record, the Judge will find the SBA determination 
to be arbitrary, capricious, or contrary to law. The Administrative Law 
Judge may also remand a case to the AA/8(a)BD (or, in the case of a 
denial of a request for waiver under Sec. 124.515 of this chapter, to 
the Administrator) for further consideration where it is clearly 
apparent from the record that SBA made an erroneous factual finding 
(e.g., SBA double counted an asset of an individual claiming 
disadvantaged status) or a mistake of law (e.g., SBA applied the wrong 
regulatory provision in evaluating the case). A remand under this 
section will be for a reasonable period.

[63 FR 35766, June 30, 1998, as amended at 67 FR 47250, July 18, 2002]

Sec. 134.407  Evidence beyond the record and discovery.

    (a) Except in suspension appeals, the Administrative Law Judge may 
not admit evidence beyond the written administrative record nor permit 
any form of discovery unless he or she first determines that the 
petitioner, upon written submission, has made a substantial showing, 
based on credible evidence and not mere allegation, that the

[[Page 494]]

Agency determination in question may have resulted from bad faith or 
improper behavior.
    (1) Prior to any such determination, the Administrative Law Judge 
must permit SBA to respond in writing to any allegations of bad faith or 
improper behavior.
    (2) Upon a determination by the Administrative Law Judge that the 
petitioner has made such a substantial showing, the Administrative Law 
Judge may permit appropriate discovery, and accept relevant evidence 
beyond the written administrative record, which is specifically limited 
to the alleged bad faith or improper behavior.
    (b) A determination by the Administrative Law Judge that the 
required showing set forth in paragraph (a) of this section has been 
made does not shift the burden of proof, which continues to rest with 
the petitioner.

[63 FR 35766, June 30, 1998, as amended at 67 FR 47251, July 18, 2002]

Sec. 134.408  Summary decision.

    (a) Generally. In any appeal under this subpart D, either party may 
move or cross-move for summary decision, as provided in Sec. 134.212.
    (b) Summary decision based on fewer than all grounds. If SBA has 
provided multiple grounds for the 8(a) determination being appealed, SBA 
may move for summary decision on one or more grounds.
    (1) Non-suspension cases. Except in suspension appeals, if the Judge 
finds that there is no genuine issue of material fact as to whether SBA 
acted arbitrarily, capriciously, or contrary to law as to any such 
ground or grounds, and that the SBA is entitled to a decision in its 
favor as a matter of law, the Judge will grant the motion for summary 
decision and dismiss the appeal.
    (2) Suspension cases. In suspension appeals, if the Judge finds that 
there is no genuine issue of material fact as to whether adequate 
evidence exists that protection of the Federal Government's interest 
requires suspension, as to any such ground or grounds for the proposed 
suspension, the SBA is entitled to a decision in its favor as a matter 
of law, and the Judge will grant the motion for summary decision and 
dismiss the appeal.

[67 FR 47251, July 18, 2002]

Sec. 134.409  Decision on appeal.

    (a) A decision of the Administrative Law Judge under this subpart is 
the final agency decision, and is binding on the parties.
    (b) The Administrative Law Judge shall issue a decision, insofar as 
practicable, within 90 days after an appeal petition is filed.
    (c) The Administrative Law Judge may reconsider an appeal decision 
within 20 days of the decision if there is a clear showing of an error 
of fact or law material to the decision.

[63 FR 35766, June 30, 1998. Redesignated and amended at 67 FR 47251, 
July 18, 2002]

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

    Source: 70 FR 8927, Feb. 24, 2005, unless otherwise noted.

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

    (a) The rules of practice in this subpart E apply to all appeals to 
OHA from formal protest determinations made by the Associate 
Administrator for Government Contracting (AA/GC) in connection with a 
Service-Disabled Veteran-Owned Small Business Concern (SDVO SBC) protest 
relating to the status or ownership or control of the SDVO SBC, as set 
forth in Sec. 125.26 of this chapter. This includes appeals from 
determinations by the AA/GC that the protest was premature, untimely, 
nonspecific, or not based upon protestable allegations.
    (b) Except where inconsistent with this subpart, the provisions of 
Subpart A and B of this part apply to appeals listed in paragraph (a) of 
this section.
    (c) Appeals relating to formal size determinations and NAICS Code 
designations are governed by Subpart C of this part.

Sec. 134.502  Who may appeal?

    Appeals from SDVO SBC protest determinations may be filed with OHA 
by

[[Page 495]]

the protested concern, the protester, or the contracting officer 
responsible for the procurement affected by the protest determination.

Sec. 134.503  When must a person file an appeal from an SDVO SBC 
          protest determination?

    Appeals from an SDVO SBC protest determination must be commenced by 
filing and serving an appeal petition within 10 business days after the 
appellant receives the SDVO SBC protest determination (see Sec. 134.204 
for filing and service requirements). An untimely appeal will be 
dismissed.

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

    The filing of an SDVO SBC appeal with OHA stays the procurement. 
However, the contracting officer may award the contract after receipt of 
an appeal if the contracting officer determines in writing that an award 
must be made to protect the public interest. A timely filed appeal 
applies to the procurement in question even though a contracting officer 
awarded the contract prior to receipt of the appeal.

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

    (a) Format. There is no required format for an appeal petition. 
However, it must include the following information:
    (1) The solicitation or contract number, and the name, address, and 
telephone number of the contracting officer;
    (2) A statement that the petition is appealing an SDVO SBC protest 
determination issued by the AA/GC and the date the petitioner received 
the SDVO SBC protest determination;
    (3) A full and specific statement as to why the SDVO SBC protest 
determination is alleged to be based on a clear error of fact or law, 
together with an argument supporting such allegation; and
    (4) The name, address, telephone number, facsimile number, and 
signature of the appellant or its attorney.
    (b) Service of appeal. The appellant must serve the appeal petition 
upon each of the following:
    (1) The AA/GC at U.S. Small Business Administration, 409 3rd Street, 
SW., Washington, DC 20416, facsimile (202) 205-6390;
    (2) The contracting officer responsible for the procurement affected 
by an SDVO SBC determination;
    (3) The protested concern (the business concern whose SDVO SBC 
status is at issue) or the protester; and
    (4) SBA's Office of General Counsel, Associate General Counsel for 
Procurement Law, U.S. Small Business Administration, 409 3rd Street, 
SW., Washington, DC 20416, facsimile number (202) 205-6873.
    (c) Certificate of Service. The appellant must attach to the appeal 
petition a signed certificate of service meeting the requirements of 
Sec. 134.204(d).

Sec. 134.506  What are the service and filing requirements?

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

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

    Upon receipt of an appeal petition, the AA/GC will send to OHA a 
copy of the protest file relating to that determination. The AA/GC will 
certify and authenticate that the protest file, to the best of his or 
her knowledge, is a true and correct copy of the protest file.

Sec. 134.508  What is the standard of review?

    The standard of review for an appeal of a SDVO SBC protest 
determination is whether the AA/GC's determination was based on clear 
error of fact or law. With respect to status determinations on whether 
the owner is a veteran, service-disabled veteran, or veteran with a 
permanent and severe disability, the Judge will not review the 
determinations made by the U.S. Department of Veteran's Affairs, U.S. 
Department of Defense, or such determinations identified by documents 
provided by the U.S. National Archives and Records Administration.

[[Page 496]]

Sec. 134.509  When will a Judge dismiss an appeal?

    (a) The Judge selected to preside over a protest appeal shall 
dismiss the appeal, if:
    (1) The appeal does not, on its face, allege facts that if proven to 
be true, warrant reversal or modification of the determination;
    (2) The appeal petition does not contain all of the information 
required in Sec. 134.505;
    (3) The appeal is untimely filed pursuant to Sec. 134.503 or is not 
otherwise filed in accordance with the requirements of this subpart or 
the requirements in Subparts A and B of this part; or
    (4) The matter has been decided or is the subject of an adjudication 
before a court of competent jurisdiction over such matters.
    (b) Once Appellant files an appeal, subsequent initiation of 
litigation of the matter in a court of competent jurisdiction will not 
preclude the Judge from rendering a final decision on the matter.

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

    Although not required, any person served with an appeal petition may 
file and serve a response supporting or opposing the appeal if he or she 
wishes to do so. If a person decides to file a response, the response 
must be filed within 7 business days after service of the appeal 
petition. The response should present argument.

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

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

Sec. 134.512  What are the limitations on new evidence?

    The Judge may not admit evidence beyond the written protest file nor 
permit any form of discovery. All appeals under this subpart will be 
decided solely on a review of the evidence in the written protest file, 
arguments made in the appeal petition and response(s) filed thereto.

Sec. 134.513  When is the record closed?

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

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

    The Judge shall issue a decision, insofar as practicable, within 15 
business days after close of the record. If OHA does not issue its 
determination within the 15-day period, the contracting officer may 
award the contract, unless the contracting officer has agreed to wait 
for a final determination from the Judge.

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

    (a) A decision of the Judge under this subpart is the final agency 
decision and is binding on the parties. For the effects of the decision 
on the contract or procurement at issue, please see 13 CFR 125.28.
    (b) The Judge may reconsider an appeal decision within 20 calendar 
days after service of the written decision. Any party who has appeared 
in the proceeding, or SBA, may request reconsideration by filing with 
the Judge and serving a petition for reconsideration on all the parties 
to the appeal within 20 calendar days after service of the written 
decision. The request for reconsideration must clearly show an error of 
fact or law material to the decision. The Judge may also reconsider a 
decision on his or her own initiative.
    (c) The Judge may remand a proceeding to the AA/GC for a new SDVO 
SBC determination if the latter fails to address issues of decisional 
significance sufficiently, does not address all the relevant evidence, 
or does not identify specifically the evidence upon which it relied. 
Once remanded, OHA no longer has jurisdiction over the matter, unless a 
new appeal is filed as a result of the new SDVO SBC determination.

       Subpart F_Implementation of the Equal Access to Justice Act

    Source: 61 FR 2683, Jan. 29, 1996, unless otherwise noted. 
Redesignated at 63 FR 35766, June 30, 1998, and 70 FR 8927, Feb. 24, 
2005.

[[Page 497]]

Sec. 134.601  What is the purpose of this subpart?

    The Equal Access to Justice Act, 5 U.S.C. 504, establishes 
procedures by which prevailing parties in certain administrative 
proceedings may apply for reimbursement of fees and other expenses. 
Eligible parties may receive awards when they prevail over SBA, unless 
SBA's position in the proceeding was ``substantially justified'' or, as 
provided in Sec. 134.405(b), special circumstances make an award 
unjust. The rules of this subpart explain which OHA proceedings are 
covered, who may be eligible for an award of fees and expenses, and how 
to apply for such an award.

Sec. 134.602  Under what circumstances may I apply for reimbursement?

    You may apply for reimbursement under this subpart if you meet the 
eligibility requirements in Sec. 134.406 and you prevail over SBA in a 
final decision in:
    (a) The type of administrative proceeding which qualifies as an 
``adversary adjudication'' under Sec. 134.403; or
    (b) An ancillary or subsidiary issue in that administrative 
proceeding that is sufficiently significant and discrete to merit 
treatment as a separate unit; or
    (c) A matter which the agency orders to be determined as an 
``adversary adjudication'' under 5 U.S.C. 554.

Sec. 134.603  What is an adversary adjudication?

    For purposes of this subpart, adversary adjudications are 
administrative proceedings before OHA which involve SBA as a party and 
which are required to be conducted by an Administrative Law Judge 
(``ALJ''). These adjudications (``administrative proceedings'') include 
those proceedings listed in Sec. 134.102 (a), (i), and (j)(1), but do 
not include other OHA proceedings such as those listed in Sec. 
134.102(k). In order for an administrative proceeding to qualify, SBA 
must have been represented by counsel or by another representative who 
enters an appearance and participates in the proceeding.

Sec. 134.604  What benefits may I claim?

    You may seek reimbursement for certain reasonable fees and expenses 
incurred in prosecuting or defending a claim in an administrative 
proceeding.

Sec. 134.605  Under what circumstances are fees and expenses 
          reimbursable?

    (a) If you are a prevailing eligible party, you may receive an award 
for reasonable fees and expenses unless the position of the agency in 
the proceeding is found by the ALJ to be ``substantially justified'', or 
special circumstances exist which make an award unjust. The ``position 
of the agency'' includes not only the position taken by SBA in the 
administrative proceeding, but also the position which it took in the 
action which led to the administrative proceeding. No presumption arises 
that SBA's position was not substantially justified simply because it 
did not prevail in a proceeding. However, upon your assertion that the 
position of SBA was not substantially justified, SBA will be required to 
establish that its position was reasonable in fact and law.
    (b) The ALJ may reduce or deny an award for reimbursement if you 
have unreasonably protracted the administrative proceeding or if other 
special circumstances would make the award unjust.
    (c) Awards for fees and expenses incurred before the date on which 
an administrative proceeding was initiated are allowable only if you can 
demonstrate that they were reasonably incurred in preparation for the 
proceeding.

Sec. 134.606  Who is eligible for possible reimbursement?

    (a) You are eligible for possible reimbursement if:
    (1) You are an individual, owner of an unincorporated business, 
partnership, corporation, association, organization, or unit of local 
government; and
    (2) You are a party, as defined in 5 U.S.C. 551(3); and
    (3) You are the prevailing party; and
    (4) You meet certain net worth and employee eligibility requirements 
set forth in Sec. 134.407.
    (b) You are not eligible for possible reimbursement if you 
participated in the administrative proceeding only on

[[Page 498]]

behalf of persons or entities that are ineligible.



Sec. 134.607  How do I know which eligibility requirement applies to me?

    Follow this chart to determine your eligibility. You should 
calculate your net worth and the number of your employees as of the date 
the administrative proceeding was initiated.

------------------------------------------------------------------------
If your participation in the proceeding
                  was:                      Eligibility requirements:
------------------------------------------------------------------------
(1) As an individual rather than a       (1) Personal net worth may not
 business owner.                          exceed 2 million dollars.
(2) As owner of an unincorporated        (2) Personal net worth may not
 business.                                exceed 7 million dollars, and
                                         No more than 500 employees.
(3) As a partnership, corporation,       (3) Business net worth may not
 association, organization, or unit of    exceed 7 million dollars, and
 local government.                       No more than 500 employees.
(4) As a charitable or other tax-exempt  (4) No net worth limitations,
 organization described in 26 U.S.C.      and
 501(c)(3) or a cooperative association  No more than 500 employees.
 as defined in 12 U.S.C. 1141j(a).
------------------------------------------------------------------------

Sec. 134.608  What are the special rules for calculating net worth and 
          number of employees?

    (a) Your net worth must include the value of any assets disposed of 
for the purpose of meeting an eligibility standard, and must exclude any 
obligation incurred for that purpose. Transfers of assets, or 
obligations incurred, for less than reasonably equivalent value will be 
presumed to have been made for the purpose of meeting an eligibility 
standard.
    (b) If you are an owner of an unincorporated business, or a 
partnership, corporation, association, organization, or unit of local 
government, your net worth must include the net worth of all of your 
affiliates. ``Affiliates'' are:
    (1) Corporations or other business entities which directly or 
indirectly own or control a majority of the voting shares or other 
ownership interests in the applicant concern; and
    (2) Corporations or other business entities in which the applicant 
concern directly or indirectly owns or controls a majority of the voting 
shares or other ownership interests.
    (c) Your employees include all those persons regularly working for 
you at the time the administrative proceeding was initiated, whether or 
not they were at work on that date. Part-time employees must be included 
on a proportional basis. You must include the employees of all your 
affiliates in your total number of employees.

Sec. 134.609  What is the difference between a fee and an expense?

    A fee is a charge to you for the professional services of attorneys, 
agents, or expert witnesses rendered in connection with your case. An 
expense is the cost to you of any study, analysis, engineering report, 
test, project, or similar matter prepared in connection with your case.

Sec. 134.610  Are there limitations on reimbursement for fees and 
          expenses?

    (a) Awards will be calculated on the basis of fees and expenses 
actually incurred. If services were provided by one or more of your 
employees, or were made available to you free, you may not seek an award 
for those services. If services were provided at a reduced rate, fees 
and expenses will be calculated at that reduced rate.
    (b) In determining the reasonableness of the fees for attorneys, 
agents or expert witnesses, the ALJ will consider at least the 
following:
    (1) That provider's customary fee for like services;
    (2) The prevailing rate for similar services in the community in 
which that provider ordinarily performs services;
    (3) The time actually spent in representing you; and
    (4) The time reasonably spent in light of the difficulty and 
complexity of the issues.
    (c) An award for the fees of an attorney or agent may not exceed $75 
per

[[Page 499]]

hour, and an award for the fees of an expert witness may not exceed $25 
per hour, regardless of the rate charged.
    (d) An award for the reasonable cost of any study, analysis, 
engineering report, test, project or similar matter prepared on your 
behalf may not exceed the prevailing rate payable for similar services, 
and you may be reimbursed only if the study or other matter was 
necessary to the preparation of your case.

Sec. 134.611  What should I include in my application for an award?

    (a) Your application must be in the form of a written petition which 
is served and filed in accordance with Sec. 134.204. It must contain 
the following information:
    (1) A statement that OHA has jurisdiction over the case pursuant to 
Sec. 134.102(g);
    (2) Identification of the administrative proceeding for which you 
are seeking an award;
    (3) A statement that you have prevailed, and a list of each issue in 
which you claim the position of SBA was not substantially justified;
    (4) Your status as an individual, owner of an unincorporated 
business, partnership, corporation, association, organization, or unit 
of local government;
    (5) Your net worth and number of employees as of the date the 
administrative proceeding was initiated, or a statement that one or both 
of these eligibility requirements do not apply to you;
    (6) The amount of fees and expenses you are seeking, along with the 
invoice or billing statement from each service provider;
    (7) A description of any affiliates (as that term is defined in 
Sec. 134.408), or a statement that no affiliates exist;
    (8) A statement that the application and any attached statements and 
exhibits are true and complete to the best of your knowledge and that 
you understand a false statement on these documents is a felony 
punishable by fine and imprisonment under 18 U.S.C. 1001; and
    (9)(i) Your name and address;
    (ii) Your signature, or the signature of either a responsible 
official or your attorney; and
    (iii) The address and telephone number of the person who signs the 
application.
    (b) You should follow this chart to determine which further 
documents must be included with your application:

------------------------------------------------------------------------
                 Party                          Required documents
------------------------------------------------------------------------
(1) Individual, owner of unincorporated  (1) Net worth exhibit.
 business, partnership, corporation,
 association, organization, or unit of
 local government.
(2) Organization qualified as tax-       (2) Copy of a ruling by the
 exempt under 26 U.S.C. 501(c)(3).        Internal Revenue Service that
                                          you qualify as a 501(c)(3)
                                          organization or
                                         Statement that you were listed
                                          in the current edition of IRS
                                          Bulletin 78 as of the date the
                                          administrative proceeding was
                                          initiated.
(3) Tax-exempt religious organization    (3) Description of your
 not required to obtain a ruling from     organization and the basis for
 the Internal Revenue Service on its      your belief you are exempt.
 exempt status.
(4) Cooperative association as defined   (4) Copy of your charter or
 in 12 U.S.C. 1141j(a).                   articles of incorporation, and
                                         Copy of your bylaws.
------------------------------------------------------------------------

Sec. 134.612  What must a net worth exhibit contain?

    (a) A net worth exhibit may be in any format, but it must contain:
    (1) List of all assets and liabilities for you and each affiliate in 
detail sufficient to show your eligibility;
    (2) Aggregate net worth for you and all affiliates; and
    (3) Description of any transfers of assets from, or obligations 
incurred by, you or your affiliates within one year prior to the 
initiation of the administrative proceeding which reduced your net worth 
below the eligibility ceiling, or a statement that no such transfers 
occurred.
    (b) The net worth exhibit must be filed with your application, but 
will

[[Page 500]]

not be part of the public record of the proceeding. Further, in 
accordance with the provisions of Sec. 134.204(g), you need not serve 
your net worth exhibit on other parties.

Sec. 134.613  What documentation do I need for fees and expenses?

    You must submit a separate itemized statement or invoice for the 
services of each provider for which you seek reimbursement. Each 
separate statement or invoice must contain:
    (a) The hours worked in connection with the proceeding by each 
provider supplying a billable service;
    (b) A description of the specific services performed by each 
provider;
    (c) The rate at which fees were computed for each provider;
    (d) The total charged by the provider on that statement or invoice; 
and
    (e) The provider's verification that the statement or invoice is 
true to the best of his or her knowledge and that he or she understands 
that a false statement is punishable by fine and imprisonment under 18 
U.S.C. 1001.

Sec. 134.614  What deadlines apply to my application for an award and 
          where do I send it?

    After you have prevailed in an administrative proceeding or in a 
discrete issue therein, you must serve, and file with OHA, your written 
application for an award, and its attachments, no later than 30 days 
after the decision in the administrative proceeding becomes final under 
Sec. 134.227. The deadline for filing an application for an award may 
not be extended. If SBA or another party requests review of the decision 
in the underlying administrative proceeding, your request for an award 
for fees and expenses may still be filed, but it will not be considered 
by the ALJ until a final decision is rendered.

Sec. 134.615  How will proceedings relating to my application for fees 
          and expenses be conducted?

    Proceedings will be conducted in accordance with the provisions in 
subpart B of this part.

Sec. 134.616  How will I know if I receive an award?

    The ALJ will issue an initial decision on the merits of your request 
for an award which will become final in 30 days unless a request for 
review is filed under Sec. 134.228. The decision will include findings 
on your eligibility, on whether SBA's position was substantially 
justified, and on the reasonableness of the amount you requested. Where 
applicable, there will also be findings on whether you have unduly 
protracted the proceedings or whether other circumstances make an award 
unjust, and an explanation of the reason for the difference, if any, 
between the amount requested and the amount awarded. If you have sought 
an award against more than one federal agency, the decision will 
allocate responsibility for payment among the agencies with appropriate 
explanation.

Sec. 134.617  May I seek review of the ALJ's decision on my award?

    You may request review of the ALJ's decision on your award by filing 
a request for review in accordance with Sec. 134.228. You may seek 
judicial review of a final decision as provided in 5 U.S.C. 504(c)(2).

Sec. 134.618  How are awards paid?

    If you are seeking payment of an award, you must submit a copy of 
the final decision, along with your certification that you are not 
seeking judicial review of either the decision in the adversary 
adjudication, or of the award, to the following address: Chief Financial 
Officer, Office of Financial Operations, SBA, P.O. Box 205, Denver, CO 
80201-0205. SBA will pay you the amount awarded within 60 days of 
receipt of your request unless it is notified that you or another party 
has sought judicial review of the underlying decision or the award.

[[Page 501]]