[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR134.406]

[Page 342]
 
                               ASSISTANCE
 
                CHAPTER I--SMALL BUSINESS ADMINISTRATION
 
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF HEARINGS AND APPEALS--Table of Contents
 
     Subpart D--Rules of Practice for Appeals Under the 8(a) Program
 
Sec. 134.406  Review of the administrative record.

    (a) Except as provided in Sec. 134.407, any proceeding conducted 
under this subpart shall be decided solely on a review of the written 
administrative record.
    (b) 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 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.
    (d) Where the Agency files its answer to the appeal petition after 
the date specified in Sec. 134.206, the Administrative Law Judge may 
decline to consider the answer 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 title, 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, or 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). Such a remand will be for 
a period of 10 working days.