DATE: February 24, 2005

SUBJECT: Small Business Administration; Appeal Procedures for Service-Disabled Veteran-Owned Small Business Program

SOURCE: Federal Register, February 24, 2005, Vol. 70, No. 36, page 8923

AGENCIES: Small Business Administration (SBA)

ACTION: Interim Final Rule

SYNOPSIS: This interim final rule amends the regulations governing the Service-Disabled Veteran Owned Small Business Concern (SDVO SBC) Program to clarify the appeal procedures to the Office of Hearings and Appeals (OHA).

EDITOR'S NOTE: The SBA's regulations are in Title 13 of the Code of Federal Regulations (CFR). The SBA appeals procedures are in Chapter 1, Small Business Administration; Part 134, Rules of Procedure Governing Cases Before the Office of Hearings and Appeals.

For more on the initial interim final rule that led to this interim final rule, see the May 5, 2004, FEDERAL CONTRACTS DISPATCHFederal Acquisition Circular (FAC) 2001-23 and Small Business Administration (SBA), Program for Service-Disabled Veteran-Owned Small Business Concerns.”

For more on the Veterans Benefit Act of 2003, see the December 18, 2003, FEDERAL CONTRACTS DISPATCH "Enactment of the Veterans Benefits Act of 2003."

DATES: This interim final rule is effective February 24, 2005. Comments on the interim final rule must be received on or before March 28, 2005.

FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Administrator, Office of Policy and Research, 202-205-7322, or e-mail: SDVOSBCProgram@sba.gov.

SUPPLEMENTAL INFORMATION: On May 5, 2004, SBA published an interim final rule implementing the Veterans Benefits Act of 2003 (VBA) (Public Law 108-183), Section 308, Procurement Program for Small Business Concerns Owned and Controlled by Service-Disabled Veterans, which addressed procurement programs for small business concerns owned and controlled by service-disabled veterans. The interim final rule amended 13 CFR Part 125, Government Contracting Programs, to define “service-disabled veterans,” explain when competition may be restricted to service-disabled veteran-owned small business concerns (SDVOSBCs), and establish procedures for protesting and appealing the status of an SDVOSBC. This interim final rule will be finalized in the near future.

The May 5, 2004, interim final rule revised four sections that specifically addressed protests of an SDVOSBC’s small business status and disabled-veteran status:

      125.25How does one file a service disabled veteran-owned status protest?
      125.26What are the grounds for filing an SDVOSBC protest?
      125.27How will SBA process an SDVO protest?
      125.28What are the procedures for appealing an SDVO status protest?

These sections referenced 13 CFR Part 134 as the location for the applicable appeals procedures.

SBA received one comment asking for a clarification of the appeal procedures in 13 CFR Part 134. SBA has reviewed the OHA appeal procedures and agrees that clarification is necessary. Consequently, SBA is adding a separate Subpart E, Rules of Practice for Appeals From Service-Disabled Veteran Owned Small Business Concern Protests, to 13 CFR Part 134 (current Subpart E, consisting of Sections 13 CFR 134.501 through 13 CFR 134.518, is redesignated as Subpart F, consisting of Sections 13 CFR 134.601 through 13 CFR 134.618). SBA “believes the procedures set forth in this subpart will be easier to follow and provide the necessary due process to protested SDVOSBCs and protesters.”

The new 13 CFR Part 134, Subpart E, consists of the following:

      134.501What is the scope of the rules in this Subpart E?
      134.502Who may appeal?
      134.503When must a person file an appeal from an SDVOSBC protest determination?
      134.504What are the effects of the appeal on the procurement at issue?
      134.505What are the requirements for an appeal petition?
      134.506What are the service and filing requirements?
      134.507When does the AA/GC [Associate Administrator for Government Contracting] transmit the protest file and to whom?
      134.508What is the standard of review?
      134.509When will a Judge dismiss an appeal?
      134.510Who can file a response to an appeal petition and when must such a response be filed?
      134.511Will the Judge permit discovery and oral hearings?
      134.512What are the limitations on new evidence?
      134.513When is the record closed?
      134.514When must the Judge issue his or her decision?
      134.515What are the effects of the Judge's decision?

SBA has decided to issue this rule as an interim final rule with a request for comments so interested parties can comment on these new changes to the appeal procedures.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.

Copyright 2005 by Panoptic Enterprises. All Rights Reserved.

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