13 C.F.R. Subpart C—Rules of Practice for Appeals From Size Determinations and NAICS Code Designations
Title 13 - Business Credit and Assistance
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] 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] The Office of Hearings and Appeals does not issue advisory opinions. [67 FR 47249, July 18, 2002] (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 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] (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 §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] (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] The provisions of §134.204 apply to the service and filing of all pleadings and other submissions permitted under this subpart. (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] (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 §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] 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] 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] To the extent the rules in this subpart permit the submission of evidence, the provisions of §134.223 (a) and (b) apply. 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] 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] Where relevant, the provisions of §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 §134.306. (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] 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]
Title 13: Business Credit and Assistance
PART 134—RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF HEARINGS AND APPEALS
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.
