82_FR_45399 82 FR 45212 - Rules of Practice for Protests and Appeals Regarding Eligibility for Inclusion in the U.S. Department of Veterans Affairs, Center for Verification and Evaluation Database

82 FR 45212 - Rules of Practice for Protests and Appeals Regarding Eligibility for Inclusion in the U.S. Department of Veterans Affairs, Center for Verification and Evaluation Database

SMALL BUSINESS ADMINISTRATION

Federal Register Volume 82, Issue 187 (September 28, 2017)

Page Range45212-45218
FR Document2017-20384

The U.S. Small Business Administration (SBA) is proposing to amend the rules of practice of its Office of Hearings and Appeals (OHA) to implement procedures for protests of eligibility for inclusion in the Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) database, and procedures for appeals of denials and cancellations of inclusion in the CVE database. These amendments would be in accordance with Sections 1832 and 1833 of the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017).

Federal Register, Volume 82 Issue 187 (Thursday, September 28, 2017)
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Proposed Rules]
[Pages 45212-45218]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-20384]


=======================================================================
-----------------------------------------------------------------------

SMALL BUSINESS ADMINISTRATION

13 CFR Part 134

RIN 3245-AG87


Rules of Practice for Protests and Appeals Regarding Eligibility 
for Inclusion in the U.S. Department of Veterans Affairs, Center for 
Verification and Evaluation Database

AGENCY: U.S. Small Business Administration.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Small Business Administration (SBA) is proposing to 
amend the rules of practice of its Office of Hearings and Appeals (OHA) 
to implement procedures for protests of eligibility for inclusion in 
the Department of Veterans Affairs (VA) Center for Verification and 
Evaluation (CVE) database, and procedures for appeals of denials and 
cancellations of inclusion in the CVE database. These amendments would 
be in accordance with Sections 1832 and 1833 of the National Defense 
Authorization Act for Fiscal Year 2017 (NDAA 2017).

DATES: Comments must be received on or before October 30, 2017.

ADDRESSES: You may submit comments, identified by RIN 3245-AG87 by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail, Hand Delivery/Courier: Delorice Price Ford, 
Assistant Administrator for Hearings and Appeals, U.S. Small Business 
Administration, 409 Third Street SW., Washington, DC 20416.
    SBA will post all comments on www.regulations.gov. If you wish to 
submit confidential business information (CBI) as defined in the User 
Notice at www.regulations.gov, please submit the information to Daniel 
K. George, Attorney Advisor, Office of Hearings and Appeals, U.S. Small 
Business Administration, 409 Third Street SW., Washington, DC 20416, or 
send an email to [email protected]. Highlight the information that 
you consider to be CBI and explain why you believe SBA should hold this 
information as confidential. SBA will review the information and make 
the final determination whether it will publish the information.

FOR FURTHER INFORMATION CONTACT: Daniel K. George, Attorney Advisor, at 
(202) 401-8200 or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Sections 1832 and 1833 of the NDAA 2017 authorized the SBA's OHA to 
determine protests and appeals related to inclusion in the CVE 
database. In order to implement these sections, this proposed rule 
would amend OHA's jurisdiction at subparts A and B of 13 CFR part 134 
to include protests of eligibility for inclusion in the CVE database 
and appeals of denials and cancellations of inclusion in the CVE 
database. In addition, the proposed rule would create a new subpart J 
in 13 CFR part 134 to set out detailed rules of practice for protests 
of eligibility for inclusion in the VA CVE database, and a new subpart 
K to set out detailed rules of practice for appeals of denials and 
cancellations of verification for inclusion in the VA's CVE database.

Section-by-Section Analysis

A. 13 CFR Part 134 Subparts A and B

    SBA proposes to amend Sec.  134.102, the rules for establishing OHA 
jurisdiction, to add protests of eligibility for inclusion in the CVE 
database and appeals of denials and cancellations of inclusion in the 
CVE database, as two new types of proceedings over which OHA would have 
jurisdiction. New Sec.  134.102(u) would allow for protests of 
eligibility for inclusion in the CVE database. New Sec.  134.102(v) 
would allow for appeals of denials and cancellations of inclusion in 
the CVE database.
    SBA also proposes to amend Sec.  134.201(b) by adding new 
paragraphs (8) and (9) to include protests of eligibility for inclusion 
in the CVE database and appeals of denials and cancellations of 
inclusion in the CVE database. As a result of these new paragraphs, 
existing Sec.  134.201(b)(8) would be redesignated as Sec.  
134.201(b)(10).

B. 13 CFR Part 134, Subpart J

    SBA proposes to add new subpart J, consisting of Sec. Sec.  
134.1001-1013, in order to conform OHA's rules of practice for protests 
of eligibility for inclusion in the CVE database (CVE Protests). As a 
result, the new rules of practice for protests of eligibility for 
inclusion in the CVE database would mirror SBA's existing rules for 
protests of service-disabled veteran owned small businesses, found in 
13 CFR part 125 subpart D.
    Proposed Sec.  134.1001(b) states that the provisions of subparts A 
and B also apply to protests of eligibility for inclusion in the CVE 
database. Section 134.1001(c) adds that the protest procedures are 
separate from those governing Service-Disabled Veteran-Owned Small 
Business Concern (SDVO SBC) protests for non-VA procurements, which are 
subject to 13 CFR part 125. Section 134.1001(d) states that protests of 
a concern's eligibility for a non-VA procurement as an SDVO SBC are 
governed by 13 CFR part 125. In addition, Sec.  134.1001(e) specifies 
that appeals that relate to a determination made by the SBA's Director, 
Office of Government Contracting (D/GC) are governed by subpart E of 13 
CFR part 125.
    As proposed in Sec.  134.1002, the Secretary of the VA, or his/her 
designee, as well as the Contracting Officer (CO) or an offeror in a VA 
procurement awarded to a small business may file a CVE Protest. A 
protesting offeror need not be the offeror next in line for award.
    Section 134.1003 establishes the grounds for filing a CVE Protest 
as status, and ownership and control. Paragraph (c) requires the Judge 
to determine a protested concern's eligibility for inclusion in the CVE 
as of the date the protest was filed.
    Section 134.1004(a) establishes the deadlines for filing a CVE 
Protest, which is at any time for the Secretary of the VA and any time 
during the life of a contract for the CO. Paragraph (a)(2)(i) instructs 
that an offeror must file its protest within five days of being 
notified of the identity of the apparent awardee. Paragraphs (a)(3) and 
(4) indicate the rule for counting days and that any untimely protest 
will be dismissed. Paragraph (b) describes the methods for filing a CVE 
Protest by interested parties. A CVE Protest brought by an offeror is 
filed with the CO, who then forwards the protest to OHA.

[[Page 45213]]

    Section 134.1005 specifies the contents that every CVE Protest must 
have. Paragraph (b) would require a protective order be requested 
within five days of a protest being filed.
    Section 134.1006 would apply the servicing and filing requirements 
found at Sec.  134.204.
    Section 134.1007 would establish the process of CVE Protests as 
follows: Paragraph (a) would require OHA to issue a notice and order if 
the protest is found to be timely, specific, and based on protectable 
allegations; paragraph (b) would require dismissal of a protest if the 
Judge determines the protest to be premature, untimely, nonspecific, or 
based on non-protestable allegations; paragraph (c) would require the 
Director of the CVE (D/CVE) to send the case file to OHA by the 
deadline specified in the notice and order; paragraph (d) describes the 
process for requesting a protective order; paragraph (e) allows for 
supplemental arguments after a protester reviews the CVE case file; 
paragraph (f) allows for a response to a protest within 15 days of the 
date the protest was filed; and paragraph (g) would require the Judge 
to base the decision on the case file and information provided by the 
parties or information requested by the Judge. The Judge may also 
investigate issues beyond those raised by the parties. Paragraph (h) 
proposes to allow a CO to award the contract after a protest is filed 
but before a decision is reached if the CO determines the public 
interest will be protected and notifies the Judge of his/her decision; 
paragraph (i) would require OHA to serve all parties with the decision, 
which would be considered a final agency decision; finally, paragraph 
(j) stipulates the effects of the decision upon the protested concern 
and the contract at issue.
    Section 134.1008 prohibits discovery in CVE Protest proceedings.
    Section 134.1009 allows for oral hearings only in extraordinary 
circumstances, as found by the Judge, and establishes that if a hearing 
is allowed, it would be conducted in accordance with the rules of 
practice in subpart B of Part 134.
    Section 134.1010 establishes the standard of review as 
preponderance of the evidence, in which the burden of proof falls on 
the protested firm, not the protester.
    Section 134.1011 specifies that the Judge will give greater weight 
to specific, signed, factual evidence than to unsupported allegations 
and opinions, and provides that the Judge may draw an adverse inference 
from failure to produce relevant information.
    Section 134.1012 applies the provisions of Sec.  134.225 where 
relevant.
    Under Sec.  134.1013, there will be no appeal of OHA's decision on 
a CVE Protest. However, paragraph (a) allows for the Judge to 
reconsider a CVE Protest decision if a party to the proceeding files a 
petition for reconsideration within twenty (20) calendar days after 
issuance 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. 
Paragraph (b) states that if the Judge reverses the initial decision on 
reconsideration, the CO must comply with Sec.  134.1007(j) in applying 
the new decision's results.

C. 13 CFR Part 134, Subpart K

    The rule proposes a new subpart K to cover the procedures for 
filing appeals of denials and cancellations of verification for 
inclusion in the VA CVE database (CVE Appeals). Section 134.1101 states 
that the provisions of subparts A and B also apply to CVE Appeals. 
Section 134.1101(c) adds that the appeal procedures for CVE Appeals are 
separate from those governing SDVO SBC status appeals based on D/GC 
determinations, which are subject to 13 CFR 134 subpart E. Paragraph 
(d) states that protests of a concern's eligibility for inclusion in 
the VA's CVE database are governed by 13 CFR 134 subpart J.
    Section 134.1102 establishes standing to file a CVE Appeal upon a 
concern that has been denied verification of its CVE status or had its 
CVE status cancelled.
    Section 134.1103 permits CVE Appeals to OHA as long as the denial 
or cancellation was not based on the concern's failure to meet any 
veteran or service-disabled veteran eligibility criteria.
    Section 134.1104 requires CVE Appeals to be filed within 10 
business days of being notified that the CVE status has been denied or 
cancelled. Paragraph (b) establishes the rules for counting days as 
those in Sec.  134.202(d). Paragraph (c) requires OHA to dismiss any 
untimely appeal.
    Section 134.1105(a) requires the appeal petition to include a copy 
of the denial or cancellation, a statement as to why the cancellation 
or denial is in error, any information the appellant believes the Judge 
should consider, and the name, address, telephone number, facsimile 
number, and signature of appellant or its attorney. Paragraph (b) 
requires that the appellant serve copies of the appeal upon the D/CVE 
and VA counsel. Paragraph (c) requires all appeal petitions to include 
a certificate of service that meets the requirements of Sec.  
134.204(d). Paragraph (d) allows the Judge to dismiss appeal petitions 
that do not meet all the requirements of Sec.  134.1105.
    Section 134.1106 applies the provisions in Sec.  134.204 regarding 
the service and filing requirements of all pleadings and submissions 
allowed under 13 CFR part 134, subpart K.
    Section 134.1107 requires the D/CVE to send OHA the entire case 
file relating to the denial or cancellation, by the deadline specified 
in the notice and order. The case file must be authenticated and 
certified that it is the true and correct copy of the case file, to the 
best knowledge of the D/CVE.
    Section 134.1108 would permit a response to the appeal petition. 
Paragraph (a) allows the D/CVE, or his/her designee, or VA counsel, to 
respond to the appeal. Paragraph (b) establishes the close of record as 
15 days after the Judge issues a notice and order informing all parties 
of the filing of the appeal. The notice and order would establish the 
date all responses to the appeal petition would be due. Paragraph (c) 
requires all respondents to serve their response upon all parties 
identified in the certificate of service attached to the appeal 
petition, as required by Sec.  134.1105. Paragraph (d) prevents a reply 
to a response, unless allowed by the Judge.
    Section 134.1109 does not allow for discovery or oral hearings in 
CVE Appeals.
    Section 134.1110 prevents new evidence in CVE Appeals, unless good 
cause is shown.
    Under Sec.  134.1111, the standard of review for CVE Appeals would 
be whether the denial or cancellation by the D/CVE was based on clear 
error of fact or law, which the appellant would have the burden of 
proof.
    Under Sec.  134.1112(a), the Judge will decide a CVE Appeal, if 
practicable, within 60 calendar days after the close of record. 
Paragraph (b) requires the decision to contain findings of fact and 
conclusions of law, and any reasons for those findings and conclusions, 
and any relief so ordered. Paragraph (c) requires decisions to be based 
primarily on the evidence in the CVE case file, and arguments made 
during the appeal process. The Judge will, however, have the ability to 
consider issues that are beyond those raised by any pleading or in the 
denial or cancellation letter. Paragraph (d) establishes a Judge's 
decision as the final agency decision, becoming effective immediately. 
If OHA dismisses an appeal of a D/CVE denial or cancellation, the D/CVE 
determination remains in effect.

[[Page 45214]]

Paragraph (e) requires OHA to serve a copy of the decision on all 
parties, or their counsel if represented. Paragraph (f) stipulates that 
if the appeal is granted and the appellant is found eligible for 
inclusion in the CVE database, the D/CVE must reinstate or include the 
appellant in the CVE database immediately. Paragraph (g) allows any 
party that has appeared in the proceeding, or the Secretary of VA or 
his or her designee, to file a petition for reconsideration. The 
petition must be filed within twenty (20) calendar 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.

Compliance With Executive Orders 12866, 12988, 13132, 13771, and the 
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory 
Flexibility Act (5 U.S.C. 601-612)

Executive Order 12866

    OMB has determined that this rule does not constitute a 
``significant regulatory action'' under Executive Order 12866. This 
rule is also not a major rule under the Congressional Review Act, 5 
U.S.C. 800. This proposed rule would amend the rules of practice for 
the SBA's OHA in order to implement procedures for protests of 
eligibility for inclusion in the CVE database and appeals of denials 
and cancellations of inclusion in the CVE database. As such, the rule 
has no effect on the amount or dollar value of any Federal contract 
requirements or of any financial assistance provided through SBA or VA. 
Therefore, the rule is not likely to have an annual economic effect of 
$100 million or more, result in a major increase in costs or prices, or 
have a significant adverse effect on competition or the United States 
economy. In addition, this rule does not create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency, materially alter the budgetary impact of entitlements, grants, 
user fees, loan programs or the rights and obligations of such 
recipients, nor raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

Executive Order 12988

    This action meets applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.

Executive Order 13132

    This rule does not have Federalism implications as defined in 
Executive Order 13132. It will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in the Executive Order. As 
such it does not warrant the preparation of a Federalism Assessment.

Executive Order 13771

    This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
Executive Order 12866.

Paperwork Reduction Act

    The SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act, 44 U.S.C. Chapter 35.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 
601-612, requires Federal agencies to prepare an initial regulatory 
flexibility analysis (IRFA) to consider the potential impact of the 
regulations on small entities. Small entities include small businesses, 
small not-for-profit organizations, and small governmental 
jurisdictions. Section 605 of the RFA allows an agency to certify a 
rule, in lieu of preparing an IRFA, if the rulemaking is not expected 
to have a significant economic impact on a substantial number of small 
entities.
    This proposed rule would revise the regulations governing cases 
before SBA's Office of Hearings and Appeals (OHA), SBA's administrative 
tribunal. These regulations are procedural by nature. Specifically, the 
proposed rule would establish rules of practice for the SBA's OHA in 
order to implement protests of eligibility for inclusion in the CVE 
database and appeals of denials and cancellations of inclusion in the 
CVE database, new types of administrative litigation mandated by 
sections 1832 and 1833 of the National Defense Authorization Act for 
Fiscal Year 2017. This legislation provides a new statutory right to 
challenge eligibility for inclusion in the CVE database, as well as 
denials and cancellation of inclusion in the CVE database. This 
proposed rule merely provides the rules of practice at OHA for the 
orderly hearing and disposition of CVE database inclusion protests and 
denials and cancellations of CVE database inclusion. While SBA does not 
anticipate that this proposed rule would have a significant economic 
impact on any small business, we do welcome comments from any small 
business setting out how and to what degree this proposed rule would 
affect it economically. Therefore, the Administrator of SBA certifies 
under 5 U.S.C. 605(b) that this proposed rule would not have a 
significant economic impact on a substantial number of small entities.

List of Subjects in 13 CFR Part 134

    Administrative practice and procedure, Claims, Equal access to 
justice, Lawyers, Organization and functions (government agencies).

    For the reasons stated in the preamble, SBA proposes to amend 13 
CFR part 134 as follows:

PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF 
HEARINGS AND APPEALS

0
1. The authority citation for part 134 is revised to read as follows:

    Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i), 
637(a), 648(l), 656(i), and 687(c); 38 U.S.C. 8127(f); E.O. 12549, 
51 FR 6370, 3 CFR, 1986 Comp., p. 189.

0
2. Amend Sec.  134.102 by adding paragraphs (u) and (v) to read as 
follows:


Sec.  134.102  Jurisdiction of OHA.

* * * * *
    (u) Protests of eligibility for inclusion in the Department of 
Veterans Affairs Center for Verification and Evaluation (CVE) database;
    (v) Appeals of denials and cancellations of inclusion in the CVE 
database.
0
3. Amend Sec.  134.201 by:
0
a. Removing the word ``and'' in paragraph (b)(7);
0
b. Redesignating paragraph (b)(8) as paragraph (b)(10);
0
c. Adding new paragraphs (b)(8) and (b)(9).
    The additions read as follows:


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

* * * * *
    (b) * * *
    (8) For protests of eligibility for inclusion in the Center for 
Verification and Evaluation (CVE) database, in subpart J of this part;
    (9) For appeals of denials and cancellations of inclusion in the 
CVE database, in subpart K of this part; and
* * * * *

[[Page 45215]]

0
4. Add subpart J to read as follows:
Subpart J--Rules of Practice for Protests of Eligibility for Inclusion 
in the U.S. Department of Veterans Affairs (VA) Center for Verification 
and Evaluation (CVE) Database (CVE Protests)
Sec.
134.1001 Scope of rules.
134.1002 Who may file a CVE Protest?
134.1003 Grounds for filing a CVE Protest.
134.1004 Commencement of CVE Protests.
134.1005 Contents of the CVE Protest.
134.1006 Service and filing requirements.
134.1007 Processing a CVE Protest.
134.1008 Discovery.
134.1009 Oral hearings.
134.1010 Standard of review and burden of proof.
134.1011 Weight of evidence.
134.1012 The record.
134.1013 Request for reconsideration.

    Authority: 38 U.S.C. 8127(f)(8)(B).

Subpart J--Rules of Practice for Protests of Eligibility for 
Inclusion in the U.S. Department of Veterans Affairs (VA) Center 
for Verification and Evaluation (CVE) Database (CVE Protests)


Sec.  134.1001  Scope of rules.

    (a) The rules of practice in this subpart J apply to Department of 
Veterans Affairs (VA) Center for Verification and Evaluation protests 
(CVE Protests).
    (b) Except where inconsistent with this subpart, the provisions of 
subparts A and B of this part apply to protests listed in paragraph (a) 
of this section.
    (c) The protest procedures described in this subpart are separate 
from those governing protests and appeals of a concern's size or status 
as a Service-Disabled Veteran-Owned Small Business Concern (SDVO SBC) 
for a non-Department of Veterans Affairs (non-VA) procurement. All 
protests relating to whether a veteran-owned concern is a ``small'' 
business for purposes of any Federal program are subject to part 121 of 
this chapter and must be filed in accordance with that part. If a 
protester protests both the size of the concern and the concern's 
eligibility for the CVE database, SBA will process each protest 
concurrently. All protests relating to a concern's status as a SDVO SBC 
for a non-VA procurement are subject to part 125 of this chapter and 
must be filed in accordance with that part. SBA does not review issues 
concerning contract administration.
    (d) Protests of a concern's eligibility for a non-VA procurement as 
a SDVO SBC are governed by 13 CFR part 125 subpart D.
    (e) Appeals relating to determinations made by SBA's Director, 
Office of Government Contracting regarding SDVO SBC status are governed 
by subpart E of this part.
    (f) Appeals of denials and cancellations of verification for 
inclusion in the CVE database are governed by subpart K of this part.


Sec.  134.1002  Who may file a CVE Protest?

    A CVE Protest may be filed by:
    (a) The Secretary of the VA, or his/her designee; or
    (b) In the case of a small business that is awarded a contract for 
a VA procurement, the contracting officer or an offeror.


Sec.  134.1003  Grounds for filing a CVE Protest.

    (a) Status. In cases where the protest is based on service-
connected disability, permanent and severe disability, or veteran 
status, the Judge will only consider a protest that presents specific 
allegations supporting the contention that the owner(s) cannot provide 
documentation from the VA, Department of Defense, or the U.S. National 
Archives and Records Administration to show that they meet the 
definition of veteran, service-disabled veteran, or service-disabled 
veteran with a permanent and severe disability.
    (b) Ownership and control. In cases where the protest is based on 
ownership and control, the Judge will consider a protest only if the 
protester presents credible evidence that the concern is not 51% owned 
and controlled by one or more veterans or service-disabled veterans.
    (c) Date for Determining Eligibility. The Judge will determine a 
protested concern's eligibility for inclusion in the CVE database as of 
the date the protest was filed.


Sec.  134.1004  Commencement of CVE Protests.

    (a) Timeliness. (1) The Secretary of the VA, or his/her designee, 
may file a CVE Protest at any time.
    (2) Where the CVE Protest is in connection with a VA procurement:
    (i) An offeror must file a CVE Protest within five business days of 
notification of the apparent awardee's identity.
    (ii) A contracting officer may file a CVE Protest at any time 
during the life of the VA contract.
    (3) The rule for counting days is in Sec.  134.202(d).
    (4) An untimely protest will be dismissed.
    (b) Filing. (1) Private Parties. Interested parties, other than the 
contracting officer or Secretary of the VA or his/her designee, must 
deliver their CVE Protests in person, by email, by facsimile, by 
express delivery service, or by U.S. mail (postmarked within the 
applicable time period) to the contracting officer.
    (2) Referral to OHA. The contracting officer must forward to OHA 
any non-premature CVE Protest received, notwithstanding whether he/she 
believes it is sufficiently specific or timely. The contracting officer 
must send all CVE Protests, along with a referral letter, directly to 
OHA, addressed to Office of Hearings and Appeals, U.S. Small Business 
Administration, 409 Third Street SW., Washington, DC 20416, by email at 
[email protected], or by facsimile to (202) 205-6390, marked Attn: CVE 
Protest. The referral letter must include information pertaining to the 
solicitation that may be necessary for OHA to determine timeliness and 
standing, including:
    (i) The solicitation number;
    (ii) The name, address, telephone number, email address, and 
facsimile number of the contracting officer;
    (iii) Whether the contract was sole source or set-aside;
    (iv) Whether the protester submitted an offer;
    (v) Whether the protested concern was the apparent successful 
offeror;
    (vi) Whether the procurement was conducted using sealed bid or 
negotiated procedures;
    (vii) The bid opening date, if applicable;
    (viii) When the protest was submitted to the contracting officer;
    (ix) When the protester received notification about the apparent 
successful offeror, if applicable; and
    (x) Whether a contract has been awarded.
    (3) Protests filed by Secretary of the VA. The Secretary of VA or 
his/her designee must submit his/her CVE Protest directly to OHA in 
accordance with the procedures in Sec.  134.204.
    (4) Protests filed by a contracting officer. The contracting 
officer must submit his/her CVE Protest directly to OHA in accordance 
with the procedures in Sec.  134.204. The protest should include the 
information set forth in the referral letter in Paragraph (2).


Sec.  134.1005  Contents of the CVE Protest.

    (a) CVE Protests must be in writing. There is no required format 
for a CVE Protest, but it must include the following:
    (1) The solicitation or contract number, if applicable;
    (2) Specific allegations supported by credible evidence that the 
concern does not meet the eligibility requirements for

[[Page 45216]]

inclusion in the CVE database, listed in Sec.  134,1003;
    (3) Any other pertinent information the Judge should consider; and
    (4) The name, address, telephone number, and email address or 
facsimile number, if available, and signature of the protester or its 
attorney.
    (b) If the protester intends to seek access to the CVE case file 
under Sec.  134.205, the protester should include in its protest a 
request for a protective order. Unless good cause is shown, a protester 
must request a protective order within five days of filing the protest.


Sec.  134.1006  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.  134.1007  Processing a CVE Protest.

    (a) Notice and order. If the Judge determines that the protest is 
timely, sufficiently specific, and based upon protestable allegations, 
the Judge will issue a notice and order, notifying the protester, the 
protested concern, the Director, CVE (D/CVE), VA Counsel, and, if 
applicable, the contracting officer of the date OHA received the 
protest and ordering a due date for responses.
    (b) Dismissal of protest. If the Judge determines that the protest 
is premature, untimely, nonspecific, or is based on non-protestable 
allegations, the Judge will dismiss the protest and will send the 
contracting officer, D/CVE, and the protester a notice of dismissal, 
citing the reason(s) for the dismissal. The dismissal is a final agency 
action.
    (c) Transmission of the case file. Upon receipt of a notice and 
order, the D/CVE must deliver to OHA the entire case file relating to 
the protested concern's inclusion in the CVE database. The notice and 
order will establish the timetable for transmitting the case file to 
OHA. The D/CVE must certify and authenticate that the case file, to the 
best of his/her knowledge, is a true and correct copy of the case file.
    (d) Protective order. A protester seeking access to the CVE case 
file must file a timely request for a protective order under Sec.  
134.205. Except for good cause, a protester must request a protective 
order within five days of filing the protest. Even after issuance of a 
protective order, OHA will not disclose income tax returns or 
privileged information.
    (e) Supplemental allegations. If, after viewing documents in the 
CVE case file for the first time under a protective order, a protester 
wishes to supplement its protest with additional argument, the 
protester may do so. Any such supplement is due at OHA no later than 15 
days from the date the protester receives or reviews the CVE case file.
    (f) Response. (1) The protested concern, the D/CVE, the contracting 
officer, and any other interested party may respond to the protest and 
supplemental protest, if one is filed. The response is due no later 
than 15 days from the date the protest or supplemental protest was 
filed with OHA. The record closes the date the final response is due.
    (2) Service. The respondent must serve its response upon the 
protester or its counsel and upon each of the persons identified in the 
certificate of service attached to the notice and order or, if a 
protective order is issued, in accordance with the terms of the 
protective order.
    (3) Reply to a response. No reply to a response will be permitted 
unless the Judge directs otherwise.
    (g) Basis for decision. The decision will be based primarily on the 
case file and information provided by the protester, the protested 
concern, and any other parties. However, the Judge may investigate 
issues beyond those raised in the protest and may use other information 
or make requests for additional information to the protester, the 
protested concern, or VA.
    (h) Award of contract. The contracting officer may award a contract 
during the period between the date he/she receives a protest and the 
date the Judge issues a decision only if the contracting officer 
determines that an award must be made to protect the public interest 
and notifies the Judge in writing of any such determination. 
Notwithstanding such a determination, the provisions of paragraph (j) 
of this section shall apply to the procurement in question.
    (i) The decision. OHA will serve a copy of the written decision on 
each party, or, if represented by counsel, on its counsel. The decision 
is considered the final agency action, and it becomes effective upon 
issuance.
    (j) Effect of decision. (1) A contracting officer may award a 
contract to a protested concern after the Judge has determined either 
that the protested concern is eligible for inclusion in the CVE 
database or has dismissed all protests against it.
    (2) A contracting officer shall not award a contract to a protested 
concern that the Judge has determined is not eligible for inclusion in 
the CVE database. If the contracting officer has already made an award 
under paragraph (h) of this section, the contracting officer shall 
either terminate the contract or not exercise the next option.
    (3) The contracting officer must update the Federal Procurement 
Data System and other procurement reporting databases to reflect the 
Judge's decision.
    (4) If the Judge finds the protested concern ineligible for 
inclusion in the CVE database, D/CVE must immediately remove the 
protested concern from the CVE database.
    (5) A concern found to be ineligible may not submit an offer on a 
future VA procurement until the protested concern reapplies to the 
Vendor Information Pages Verification Program and has been reentered 
into the CVE database.


Sec.  134.1008  Discovery.

    Discovery will not be permitted in CVE Protest proceedings.


Sec.  134.1009  Oral hearings.

    Oral hearings will be held in CVE Protest proceedings 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.


Sec.  134.1010  Standard of review and burden of proof.

    The protested concern has the burden of proving its eligibility, by 
a preponderance of the evidence.


Sec.  134.1011  Weight of evidence.

    The Judge will give greater weight to specific, signed, factual 
evidence than to general, unsupported allegations or opinions. In the 
case of refusal or failure to furnish requested information within a 
required time period, the Judge may assume that disclosure would be 
contrary to the interests of the party failing to make disclosure.


Sec.  134.1012  The record.

    Where relevant, the provisions of Sec.  134.225 apply. In a protest 
under this subpart, the contents of the record also include the case 
file or solicitation submitted to OHA in accordance with Sec.  
134.1007.


Sec.  134.1013  Request for Reconsideration.

    The decision on a CVE Protest may not be appealed. However:
    (a) The Judge may reconsider a CVE Protest decision. Any party that 
has appeared in the proceeding, or the Secretary of VA or his/her 
designee, may request reconsideration by filing with OHA and serving a 
petition for reconsideration on all the parties to the CVE Protest 
within twenty (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

[[Page 45217]]

decision. The Judge may also reconsider a decision on his or her own 
initiative.
    (b) If the Judge reverses his or her initial decision on 
reconsideration, the contracting officer must follow Sec.  134.1007(j) 
in applying the new decision's results.
0
5. Add subpart K to read as follows:
Subpart K--Rules of Practice for Appeals of Denials and Cancellations 
of Verification for Inclusion in the U.S. Department of Veterans 
Affairs (VA) Center for Verification and Evaluation (CVE) Database (CVE 
Appeals)
Sec.
134.1101 Scope of rules.
134.1102 Who may file a CVE Appeal?
134.1103 Grounds for filing a CVE Appeal.
134.1104 Commencement of CVE Appeals.
134.1105 The appeal petition.
134.1106 Service and filing requirements.
134.1107 Transmission of the case file.
134.1108 Response to an appeal petition.
134.1109 Discovery and oral hearings.
134.1110 New evidence.
134.1111 Standard of review and burden of proof.
134.1112 The decision.

    Authority: 38 U.S.C. 8127(f)(8)(A).

Subpart K--Rules of Practice for Appeals of Denials and 
Cancellations of Verification for Inclusion in the U.S. Department 
of Veterans Affairs (VA) Center for Verification and Evaluation 
(CVE) Database (CVE Appeals)


Sec.  134.1101  Scope of rules.

    (a) The rules of practice in this subpart K apply to appeals of 
denials and cancellations of verification for inclusion in the U.S. 
Department of Veterans Affairs Center for Verification and Evaluation 
Database (CVE Appeals).
    (b) Except where inconsistent with this subpart, the provisions of 
subparts A and B of this part apply to appeals listed in paragraph (a) 
of this section.
    (c) Appeals relating to determinations made by SBA's Director, 
Office of Government Contracting regarding Service-Disabled Veteran-
Owned Small Business Concern (SDVO SBC) status are governed by subpart 
E of this part.
    (d) Protests of a concern's eligibility for inclusion in the VA's 
CVE database are governed by subpart J of this part.


Sec.  134.1102  Who may file a CVE Appeal?

    A concern that has been denied verification of its CVE status or 
has had its CVE status cancelled may appeal the denial or cancellation 
to OHA.


Sec.  134.1103  Grounds for filing a CVE Appeal.

    Denials and cancellations of verification of CVE status may be 
appealed to OHA, so long as the denial or cancellation is not based on 
the failure to meet any veteran or service-disabled veteran eligibility 
criteria. Such denials and cancellations are final VA decisions and not 
subject to appeal to OHA.


Sec.  134.1104  Commencement of CVE Appeals.

    (a) A concern whose application for CVE verification has been 
denied or whose CVE status has been cancelled must file its appeal 
within 10 business days of receipt of the denial or cancellation.
    (b) The rule for counting days is in Sec.  134.202(d).
    (c) OHA will dismiss an untimely appeal.


Sec.  134.1105  The appeal petition.

    (a) Format. CVE Appeals must be in writing. There is no required 
format for an appeal petition; however, it must include the following:
    (1) A copy of the denial or cancellation and the date the appellant 
received it;
    (2) A statement of why the cancellation or denial is in error;
    (3) Any other pertinent information the Judge should consider; and
    (4) The name, address, telephone number, and email address or 
facsimile number, if available, and signature of the appellant or its 
attorney.
    (b) Service. The appellant must serve copies of the entire appeal 
petition upon the Director, Center for Verification and Evaluation (D/
CVE) and VA Counsel at [email protected].
    (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).
    (d) Dismissal. An appeal petition that does not meet all the 
requirements of this section may be dismissed by the Judge at his/her 
own initiative or upon motion of a respondent.


Sec.  134.1106  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.  134.1107  Transmission of the case file.

    Once a CVE Appeal is filed, the D/CVE must deliver to OHA the 
entire case file relating to the denial or cancellation. The Judge will 
issue a notice and order establishing the timetable for transmitting 
the case file to OHA. The D/CVE must certify and authenticate that the 
case file, to the best of his/her knowledge, is a true and correct copy 
of the case file.


Sec.  134.1108  Response to an appeal petition.

    (a) Who may respond. The D/CVE or his/her designee or counsel for 
VA may respond to the CVE Appeal. The response should present arguments 
to the issues presented on appeal.
    (b) Time limits. The notice and order will inform the parties of 
the filing of the appeal petition, establish the close of record as 15 
days after service of the notice and order, and inform 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.  134.1105.
    (d) Reply to a response. No reply to a response will be permitted 
unless the Judge directs otherwise.


Sec.  134.1109  Discovery and oral hearings.

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


Sec.  134.1110  New evidence.

    Except for good cause shown, evidence beyond the case file will not 
be admitted.


Sec.  134.1111  Standard of review and burden of proof.

    The standard of review is whether the D/CVE denial or cancellation 
was based on clear error of fact or law. The appellant has the burden 
of proof, by a preponderance of the evidence.


Sec.  134.1112  The decision.

    (a) Timing. The Judge shall decide a CVE Appeal, insofar as 
practicable, within 60 calendar days after close of the record.
    (b) 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.
    (c) Basis for decision. Decisions under this part will be based 
primarily on the evidence in the CVE case file, arguments made on 
appeal, and any response(s) thereto. However, the Judge, in his/her 
sole discretion, may consider issues beyond those raised in the 
pleadings and the denial or cancellation letter.
    (d) Finality. The decision is the final agency decision and becomes 
effective upon issuance. Where OHA dismisses an appeal of a D/CVE 
denial or cancellation, the D/CVE determination remains in effect.
    (e) Service. OHA will serve a copy of all written decisions on each 
party, or, if represented by counsel, on its counsel.

[[Page 45218]]

    (f) Effect. If the Judge grants the appeal and finds the appellant 
eligible for inclusion in the CVE database, the D/CVE must immediately 
reinstate or include the appellant, as the case may be, in the CVE 
database.
    (g) Reconsideration. A decision of the Judge may be reconsidered. 
Any party that has appeared in the proceeding, or the Secretary of VA 
or his or her designee, may request reconsideration by filing with OHA 
and serving a petition for reconsideration on all parties to the CVE 
Appeal within twenty (20) calendar 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.

Linda E. McMahon,
Administrator.
[FR Doc. 2017-20384 Filed 9-27-17; 8:45 am]
BILLING CODE 8025-01-P



                                                    45212              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                    Subpart C—[Amended]                                        SBA will post all comments on                      paragraphs, existing § 134.201(b)(8)
                                                                                                            www.regulations.gov. If you wish to                   would be redesignated as
                                                    ■ 9. Designate the subpart labeled ‘‘Free               submit confidential business                          § 134.201(b)(10).
                                                    and Restricted Percentages’’ as subpart                 information (CBI) as defined in the User
                                                    C.                                                                                                            B. 13 CFR Part 134, Subpart J
                                                                                                            Notice at www.regulations.gov, please
                                                                                                            submit the information to Daniel K.                      SBA proposes to add new subpart J,
                                                    Subpart D—[Amended]
                                                                                                            George, Attorney Advisor, Office of                   consisting of §§ 134.1001–1013, in order
                                                    ■ 10. Designate the subpart labeled                     Hearings and Appeals, U.S. Small                      to conform OHA’s rules of practice for
                                                    ‘‘Assessment Rates’’ as subpart D.                      Business Administration, 409 Third                    protests of eligibility for inclusion in the
                                                                                                            Street SW., Washington, DC 20416, or                  CVE database (CVE Protests). As a
                                                    Subpart E—Administrative                                send an email to Daniel.George@                       result, the new rules of practice for
                                                    Requirements                                            sba.gov. Highlight the information that               protests of eligibility for inclusion in the
                                                    ■ 11. Designate the subpart labeled                     you consider to be CBI and explain why                CVE database would mirror SBA’s
                                                    ‘‘Administrative Rules and Regulations’’                you believe SBA should hold this                      existing rules for protests of service-
                                                    as subpart E and revise the heading as                  information as confidential. SBA will                 disabled veteran owned small
                                                    shown above.                                            review the information and make the                   businesses, found in 13 CFR part 125
                                                                                                            final determination whether it will                   subpart D.
                                                      Dated: September 14, 2017.                            publish the information.                                 Proposed § 134.1001(b) states that the
                                                    Bruce Summers,                                          FOR FURTHER INFORMATION CONTACT:                      provisions of subparts A and B also
                                                    Acting Administrator, Agricultural Marketing            Daniel K. George, Attorney Advisor, at                apply to protests of eligibility for
                                                    Service.                                                (202) 401–8200 or Daniel.George@                      inclusion in the CVE database. Section
                                                    [FR Doc. 2017–19920 Filed 9–27–17; 8:45 am]             sba.gov.                                              134.1001(c) adds that the protest
                                                    BILLING CODE 3410–02–P                                                                                        procedures are separate from those
                                                                                                            SUPPLEMENTARY INFORMATION:
                                                                                                                                                                  governing Service-Disabled Veteran-
                                                                                                            Background                                            Owned Small Business Concern (SDVO
                                                    SMALL BUSINESS ADMINISTRATION                              Sections 1832 and 1833 of the NDAA                 SBC) protests for non-VA procurements,
                                                                                                            2017 authorized the SBA’s OHA to                      which are subject to 13 CFR part 125.
                                                    13 CFR Part 134                                         determine protests and appeals related                Section 134.1001(d) states that protests
                                                    RIN 3245–AG87                                           to inclusion in the CVE database. In                  of a concern’s eligibility for a non-VA
                                                                                                            order to implement these sections, this               procurement as an SDVO SBC are
                                                    Rules of Practice for Protests and                      proposed rule would amend OHA’s                       governed by 13 CFR part 125. In
                                                    Appeals Regarding Eligibility for                       jurisdiction at subparts A and B of 13                addition, § 134.1001(e) specifies that
                                                    Inclusion in the U.S. Department of                     CFR part 134 to include protests of                   appeals that relate to a determination
                                                    Veterans Affairs, Center for                            eligibility for inclusion in the CVE                  made by the SBA’s Director, Office of
                                                    Verification and Evaluation Database                    database and appeals of denials and                   Government Contracting (D/GC) are
                                                    AGENCY:  U.S. Small Business                            cancellations of inclusion in the CVE                 governed by subpart E of 13 CFR part
                                                    Administration.                                         database. In addition, the proposed rule              125.
                                                                                                            would create a new subpart J in 13 CFR                   As proposed in § 134.1002, the
                                                    ACTION: Proposed rule.
                                                                                                            part 134 to set out detailed rules of                 Secretary of the VA, or his/her designee,
                                                    SUMMARY:    The U.S. Small Business                     practice for protests of eligibility for              as well as the Contracting Officer (CO)
                                                    Administration (SBA) is proposing to                    inclusion in the VA CVE database, and                 or an offeror in a VA procurement
                                                    amend the rules of practice of its Office               a new subpart K to set out detailed rules             awarded to a small business may file a
                                                    of Hearings and Appeals (OHA) to                        of practice for appeals of denials and                CVE Protest. A protesting offeror need
                                                    implement procedures for protests of                    cancellations of verification for                     not be the offeror next in line for award.
                                                    eligibility for inclusion in the                        inclusion in the VA’s CVE database.                      Section 134.1003 establishes the
                                                    Department of Veterans Affairs (VA)                     Section-by-Section Analysis                           grounds for filing a CVE Protest as
                                                    Center for Verification and Evaluation                                                                        status, and ownership and control.
                                                    (CVE) database, and procedures for                      A. 13 CFR Part 134 Subparts A and B                   Paragraph (c) requires the Judge to
                                                    appeals of denials and cancellations of                    SBA proposes to amend § 134.102, the               determine a protested concern’s
                                                    inclusion in the CVE database. These                    rules for establishing OHA jurisdiction,              eligibility for inclusion in the CVE as of
                                                    amendments would be in accordance                       to add protests of eligibility for                    the date the protest was filed.
                                                    with Sections 1832 and 1833 of the                      inclusion in the CVE database and                        Section 134.1004(a) establishes the
                                                    National Defense Authorization Act for                  appeals of denials and cancellations of               deadlines for filing a CVE Protest, which
                                                    Fiscal Year 2017 (NDAA 2017).                           inclusion in the CVE database, as two                 is at any time for the Secretary of the VA
                                                    DATES: Comments must be received on                     new types of proceedings over which                   and any time during the life of a
                                                    or before October 30, 2017.                             OHA would have jurisdiction. New                      contract for the CO. Paragraph (a)(2)(i)
                                                    ADDRESSES: You may submit comments,                     § 134.102(u) would allow for protests of              instructs that an offeror must file its
                                                    identified by RIN 3245–AG87 by any of                   eligibility for inclusion in the CVE                  protest within five days of being
                                                    the following methods:                                  database. New § 134.102(v) would allow                notified of the identity of the apparent
                                                       • Federal eRulemaking Portal: http://                for appeals of denials and cancellations              awardee. Paragraphs (a)(3) and (4)
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    www.regulations.gov. Follow the                         of inclusion in the CVE database.                     indicate the rule for counting days and
                                                    instructions for submitting comments.                      SBA also proposes to amend                         that any untimely protest will be
                                                       • Mail, Hand Delivery/Courier:                       § 134.201(b) by adding new paragraphs                 dismissed. Paragraph (b) describes the
                                                    Delorice Price Ford, Assistant                          (8) and (9) to include protests of                    methods for filing a CVE Protest by
                                                    Administrator for Hearings and                          eligibility for inclusion in the CVE                  interested parties. A CVE Protest
                                                    Appeals, U.S. Small Business                            database and appeals of denials and                   brought by an offeror is filed with the
                                                    Administration, 409 Third Street SW.,                   cancellations of inclusion in the CVE                 CO, who then forwards the protest to
                                                    Washington, DC 20416.                                   database. As a result of these new                    OHA.


                                               VerDate Sep<11>2014   15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00005   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                                       Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                          45213

                                                       Section 134.1005 specifies the                          Section 134.1012 applies the                       of service that meets the requirements of
                                                    contents that every CVE Protest must                    provisions of § 134.225 where relevant.               § 134.204(d). Paragraph (d) allows the
                                                    have. Paragraph (b) would require a                        Under § 134.1013, there will be no                 Judge to dismiss appeal petitions that do
                                                    protective order be requested within                    appeal of OHA’s decision on a CVE                     not meet all the requirements of
                                                    five days of a protest being filed.                     Protest. However, paragraph (a) allows                § 134.1105.
                                                       Section 134.1006 would apply the                     for the Judge to reconsider a CVE Protest                Section 134.1106 applies the
                                                    servicing and filing requirements found                 decision if a party to the proceeding                 provisions in § 134.204 regarding the
                                                    at § 134.204.                                           files a petition for reconsideration                  service and filing requirements of all
                                                       Section 134.1007 would establish the                 within twenty (20) calendar days after                pleadings and submissions allowed
                                                    process of CVE Protests as follows:                     issuance of the written decision. The                 under 13 CFR part 134, subpart K.
                                                    Paragraph (a) would require OHA to                      request for reconsideration must clearly                 Section 134.1107 requires the D/CVE
                                                    issue a notice and order if the protest is              show an error of fact or law material to              to send OHA the entire case file relating
                                                    found to be timely, specific, and based                 the decision. The Judge may also                      to the denial or cancellation, by the
                                                    on protectable allegations; paragraph (b)               reconsider a decision on his or her own               deadline specified in the notice and
                                                    would require dismissal of a protest if                 initiative. Paragraph (b) states that if the          order. The case file must be
                                                    the Judge determines the protest to be                  Judge reverses the initial decision on                authenticated and certified that it is the
                                                    premature, untimely, nonspecific, or                    reconsideration, the CO must comply                   true and correct copy of the case file, to
                                                    based on non-protestable allegations;                   with § 134.1007(j) in applying the new                the best knowledge of the D/CVE.
                                                                                                            decision’s results.                                      Section 134.1108 would permit a
                                                    paragraph (c) would require the Director
                                                                                                                                                                  response to the appeal petition.
                                                    of the CVE (D/CVE) to send the case file                C. 13 CFR Part 134, Subpart K                         Paragraph (a) allows the D/CVE, or his/
                                                    to OHA by the deadline specified in the
                                                                                                              The rule proposes a new subpart K to                her designee, or VA counsel, to respond
                                                    notice and order; paragraph (d)
                                                                                                            cover the procedures for filing appeals               to the appeal. Paragraph (b) establishes
                                                    describes the process for requesting a                  of denials and cancellations of                       the close of record as 15 days after the
                                                    protective order; paragraph (e) allows                  verification for inclusion in the VA CVE              Judge issues a notice and order
                                                    for supplemental arguments after a                      database (CVE Appeals). Section                       informing all parties of the filing of the
                                                    protester reviews the CVE case file;                    134.1101 states that the provisions of                appeal. The notice and order would
                                                    paragraph (f) allows for a response to a                subparts A and B also apply to CVE                    establish the date all responses to the
                                                    protest within 15 days of the date the                  Appeals. Section 134.1101(c) adds that                appeal petition would be due. Paragraph
                                                    protest was filed; and paragraph (g)                    the appeal procedures for CVE Appeals                 (c) requires all respondents to serve
                                                    would require the Judge to base the                     are separate from those governing SDVO                their response upon all parties
                                                    decision on the case file and                           SBC status appeals based on D/GC                      identified in the certificate of service
                                                    information provided by the parties or                  determinations, which are subject to 13               attached to the appeal petition, as
                                                    information requested by the Judge. The                 CFR 134 subpart E. Paragraph (d) states               required by § 134.1105. Paragraph (d)
                                                    Judge may also investigate issues                       that protests of a concern’s eligibility for          prevents a reply to a response, unless
                                                    beyond those raised by the parties.                     inclusion in the VA’s CVE database are                allowed by the Judge.
                                                    Paragraph (h) proposes to allow a CO to                 governed by 13 CFR 134 subpart J.                        Section 134.1109 does not allow for
                                                    award the contract after a protest is filed               Section 134.1102 establishes standing               discovery or oral hearings in CVE
                                                    but before a decision is reached if the                 to file a CVE Appeal upon a concern                   Appeals.
                                                    CO determines the public interest will                  that has been denied verification of its                 Section 134.1110 prevents new
                                                    be protected and notifies the Judge of                  CVE status or had its CVE status                      evidence in CVE Appeals, unless good
                                                    his/her decision; paragraph (i) would                   cancelled.                                            cause is shown.
                                                    require OHA to serve all parties with the                 Section 134.1103 permits CVE                           Under § 134.1111, the standard of
                                                    decision, which would be considered a                   Appeals to OHA as long as the denial or               review for CVE Appeals would be
                                                    final agency decision; finally, paragraph               cancellation was not based on the                     whether the denial or cancellation by
                                                    (j) stipulates the effects of the decision              concern’s failure to meet any veteran or              the D/CVE was based on clear error of
                                                    upon the protested concern and the                      service-disabled veteran eligibility                  fact or law, which the appellant would
                                                    contract at issue.                                      criteria.                                             have the burden of proof.
                                                       Section 134.1008 prohibits discovery                   Section 134.1104 requires CVE                          Under § 134.1112(a), the Judge will
                                                    in CVE Protest proceedings.                             Appeals to be filed within 10 business                decide a CVE Appeal, if practicable,
                                                       Section 134.1009 allows for oral                     days of being notified that the CVE                   within 60 calendar days after the close
                                                    hearings only in extraordinary                          status has been denied or cancelled.                  of record. Paragraph (b) requires the
                                                    circumstances, as found by the Judge,                   Paragraph (b) establishes the rules for               decision to contain findings of fact and
                                                    and establishes that if a hearing is                    counting days as those in § 134.202(d).               conclusions of law, and any reasons for
                                                    allowed, it would be conducted in                       Paragraph (c) requires OHA to dismiss                 those findings and conclusions, and any
                                                    accordance with the rules of practice in                any untimely appeal.                                  relief so ordered. Paragraph (c) requires
                                                    subpart B of Part 134.                                    Section 134.1105(a) requires the                    decisions to be based primarily on the
                                                       Section 134.1010 establishes the                     appeal petition to include a copy of the              evidence in the CVE case file, and
                                                    standard of review as preponderance of                  denial or cancellation, a statement as to             arguments made during the appeal
                                                    the evidence, in which the burden of                    why the cancellation or denial is in                  process. The Judge will, however, have
                                                    proof falls on the protested firm, not the              error, any information the appellant                  the ability to consider issues that are
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    protester.                                              believes the Judge should consider, and               beyond those raised by any pleading or
                                                       Section 134.1011 specifies that the                  the name, address, telephone number,                  in the denial or cancellation letter.
                                                    Judge will give greater weight to                       facsimile number, and signature of                    Paragraph (d) establishes a Judge’s
                                                    specific, signed, factual evidence than to              appellant or its attorney. Paragraph (b)              decision as the final agency decision,
                                                    unsupported allegations and opinions,                   requires that the appellant serve copies              becoming effective immediately. If OHA
                                                    and provides that the Judge may draw                    of the appeal upon the D/CVE and VA                   dismisses an appeal of a D/CVE denial
                                                    an adverse inference from failure to                    counsel. Paragraph (c) requires all                   or cancellation, the D/CVE
                                                    produce relevant information.                           appeal petitions to include a certificate             determination remains in effect.


                                               VerDate Sep<11>2014   15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00006   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                    45214              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                    Paragraph (e) requires OHA to serve a                   burden. The action does not have                      the orderly hearing and disposition of
                                                    copy of the decision on all parties, or                 retroactive or preemptive effect.                     CVE database inclusion protests and
                                                    their counsel if represented. Paragraph                                                                       denials and cancellations of CVE
                                                                                                            Executive Order 13132
                                                    (f) stipulates that if the appeal is granted                                                                  database inclusion. While SBA does not
                                                    and the appellant is found eligible for                   This rule does not have Federalism                  anticipate that this proposed rule would
                                                    inclusion in the CVE database, the D/                   implications as defined in Executive                  have a significant economic impact on
                                                    CVE must reinstate or include the                       Order 13132. It will not have substantial             any small business, we do welcome
                                                    appellant in the CVE database                           direct effects on the States, on the                  comments from any small business
                                                    immediately. Paragraph (g) allows any                   relationship between the national                     setting out how and to what degree this
                                                    party that has appeared in the                          government and the States, or on the                  proposed rule would affect it
                                                    proceeding, or the Secretary of VA or                   distribution of power and                             economically. Therefore, the
                                                    his or her designee, to file a petition for             responsibilities among the various                    Administrator of SBA certifies under 5
                                                    reconsideration. The petition must be                   levels of government, as specified in the             U.S.C. 605(b) that this proposed rule
                                                    filed within twenty (20) calendar days                  Executive Order. As such it does not                  would not have a significant economic
                                                    after service of the written decision,                  warrant the preparation of a Federalism               impact on a substantial number of small
                                                    upon a clear showing of an error of fact                Assessment.                                           entities.
                                                    or law material to the decision. The                    Executive Order 13771                                 List of Subjects in 13 CFR Part 134
                                                    Judge also may reconsider a decision on
                                                    his or her own initiative.                                This proposed rule is not expected to                 Administrative practice and
                                                                                                            be an Executive Order 13771 regulatory                procedure, Claims, Equal access to
                                                    Compliance With Executive Orders                        action because this proposed rule is not              justice, Lawyers, Organization and
                                                    12866, 12988, 13132, 13771, and the                     significant under Executive Order                     functions (government agencies).
                                                    Paperwork Reduction Act (44 U.S.C.                      12866.                                                  For the reasons stated in the
                                                    Ch. 35), and the Regulatory Flexibility                                                                       preamble, SBA proposes to amend 13
                                                                                                            Paperwork Reduction Act
                                                    Act (5 U.S.C. 601–612)                                                                                        CFR part 134 as follows:
                                                                                                              The SBA has determined that this rule
                                                    Executive Order 12866                                   does not impose additional reporting or               PART 134—RULES OF PROCEDURE
                                                       OMB has determined that this rule                    recordkeeping requirements under the                  GOVERNING CASES BEFORE THE
                                                    does not constitute a ‘‘significant                     Paperwork Reduction Act, 44 U.S.C.                    OFFICE OF HEARINGS AND APPEALS
                                                    regulatory action’’ under Executive                     Chapter 35.
                                                                                                                                                                  ■  1. The authority citation for part 134
                                                    Order 12866. This rule is also not a                    Regulatory Flexibility Act                            is revised to read as follows:
                                                    major rule under the Congressional                         The Regulatory Flexibility Act of                    Authority: 5 U.S.C. 504; 15 U.S.C. 632,
                                                    Review Act, 5 U.S.C. 800. This proposed                 1980, as amended (RFA), 5 U.S.C. 601–                 634(b)(6), 634(i), 637(a), 648(l), 656(i), and
                                                    rule would amend the rules of practice                  612, requires Federal agencies to                     687(c); 38 U.S.C. 8127(f); E.O. 12549, 51 FR
                                                    for the SBA’s OHA in order to                           prepare an initial regulatory flexibility             6370, 3 CFR, 1986 Comp., p. 189.
                                                    implement procedures for protests of                    analysis (IRFA) to consider the potential             ■ 2. Amend § 134.102 by adding
                                                    eligibility for inclusion in the CVE                    impact of the regulations on small                    paragraphs (u) and (v) to read as
                                                    database and appeals of denials and                     entities. Small entities include small                follows:
                                                    cancellations of inclusion in the CVE                   businesses, small not-for-profit
                                                    database. As such, the rule has no effect               organizations, and small governmental                 § 134.102    Jurisdiction of OHA.
                                                    on the amount or dollar value of any                    jurisdictions. Section 605 of the RFA                 *     *    *      *     *
                                                    Federal contract requirements or of any                 allows an agency to certify a rule, in lieu             (u) Protests of eligibility for inclusion
                                                    financial assistance provided through                   of preparing an IRFA, if the rulemaking               in the Department of Veterans Affairs
                                                    SBA or VA. Therefore, the rule is not                   is not expected to have a significant                 Center for Verification and Evaluation
                                                    likely to have an annual economic effect                economic impact on a substantial                      (CVE) database;
                                                    of $100 million or more, result in a                    number of small entities.                               (v) Appeals of denials and
                                                    major increase in costs or prices, or have                 This proposed rule would revise the                cancellations of inclusion in the CVE
                                                    a significant adverse effect on                         regulations governing cases before                    database.
                                                    competition or the United States                        SBA’s Office of Hearings and Appeals                  ■ 3. Amend § 134.201 by:
                                                    economy. In addition, this rule does not                                                                      ■ a. Removing the word ‘‘and’’ in
                                                                                                            (OHA), SBA’s administrative tribunal.
                                                    create a serious inconsistency or                       These regulations are procedural by                   paragraph (b)(7);
                                                    otherwise interfere with an action taken                                                                      ■ b. Redesignating paragraph (b)(8) as
                                                                                                            nature. Specifically, the proposed rule
                                                    or planned by another agency,                           would establish rules of practice for the             paragraph (b)(10);
                                                    materially alter the budgetary impact of                                                                      ■ c. Adding new paragraphs (b)(8) and
                                                                                                            SBA’s OHA in order to implement
                                                    entitlements, grants, user fees, loan                                                                         (b)(9).
                                                                                                            protests of eligibility for inclusion in the            The additions read as follows:
                                                    programs or the rights and obligations of               CVE database and appeals of denials
                                                    such recipients, nor raise novel legal or               and cancellations of inclusion in the                 § 134.201 Scope of the rules in this
                                                    policy issues arising out of legal                      CVE database, new types of                            Subpart B.
                                                    mandates, the President’s priorities, or                administrative litigation mandated by                 *     *     *     *     *
                                                    the principles set forth in the Executive               sections 1832 and 1833 of the National                  (b) * * *
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    Order.                                                  Defense Authorization Act for Fiscal                    (8) For protests of eligibility for
                                                    Executive Order 12988                                   Year 2017. This legislation provides a                inclusion in the Center for Verification
                                                                                                            new statutory right to challenge                      and Evaluation (CVE) database, in
                                                       This action meets applicable                         eligibility for inclusion in the CVE                  subpart J of this part;
                                                    standards set forth in section 3(a) and                 database, as well as denials and                        (9) For appeals of denials and
                                                    3(b)(2) of Executive Order 12988, Civil                 cancellation of inclusion in the CVE                  cancellations of inclusion in the CVE
                                                    Justice Reform, to minimize litigation,                 database. This proposed rule merely                   database, in subpart K of this part; and
                                                    eliminate ambiguity, and reduce                         provides the rules of practice at OHA for             *     *     *     *     *


                                               VerDate Sep<11>2014   15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00007   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                                         Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                             45215

                                                    ■   4. Add subpart J to read as follows:                  Government Contracting regarding                      their CVE Protests in person, by email,
                                                    Subpart J—Rules of Practice for Protests of               SDVO SBC status are governed by                       by facsimile, by express delivery
                                                    Eligibility for Inclusion in the U.S.                     subpart E of this part.                               service, or by U.S. mail (postmarked
                                                    Department of Veterans Affairs (VA) Center                  (f) Appeals of denials and                          within the applicable time period) to the
                                                    for Verification and Evaluation (CVE)                     cancellations of verification for                     contracting officer.
                                                    Database (CVE Protests)                                   inclusion in the CVE database are                       (2) Referral to OHA. The contracting
                                                    Sec.                                                      governed by subpart K of this part.                   officer must forward to OHA any non-
                                                    134.1001 Scope of rules.                                                                                        premature CVE Protest received,
                                                    134.1002 Who may file a CVE Protest?                      § 134.1002    Who may file a CVE Protest?             notwithstanding whether he/she
                                                    134.1003 Grounds for filing a CVE Protest.                   A CVE Protest may be filed by:                     believes it is sufficiently specific or
                                                    134.1004 Commencement of CVE Protests.                       (a) The Secretary of the VA, or his/her            timely. The contracting officer must
                                                    134.1005 Contents of the CVE Protest.                     designee; or                                          send all CVE Protests, along with a
                                                    134.1006 Service and filing requirements.                    (b) In the case of a small business that
                                                    134.1007 Processing a CVE Protest.
                                                                                                                                                                    referral letter, directly to OHA,
                                                                                                              is awarded a contract for a VA                        addressed to Office of Hearings and
                                                    134.1008 Discovery.
                                                    134.1009 Oral hearings.                                   procurement, the contracting officer or               Appeals, U.S. Small Business
                                                    134.1010 Standard of review and burden of                 an offeror.                                           Administration, 409 Third Street SW.,
                                                         proof.
                                                                                                              § 134.1003    Grounds for filing a CVE
                                                                                                                                                                    Washington, DC 20416, by email at
                                                    134.1011 Weight of evidence.
                                                                                                              Protest.                                              OHAfilings@sba.gov, or by facsimile to
                                                    134.1012 The record.                                                                                            (202) 205–6390, marked Attn: CVE
                                                    134.1013 Request for reconsideration.                        (a) Status. In cases where the protest
                                                                                                                                                                    Protest. The referral letter must include
                                                                                                              is based on service-connected disability,
                                                        Authority: 38 U.S.C. 8127(f)(8)(B).                                                                         information pertaining to the
                                                                                                              permanent and severe disability, or
                                                                                                                                                                    solicitation that may be necessary for
                                                    Subpart J—Rules of Practice for                           veteran status, the Judge will only
                                                                                                                                                                    OHA to determine timeliness and
                                                    Protests of Eligibility for Inclusion in                  consider a protest that presents specific
                                                                                                                                                                    standing, including:
                                                    the U.S. Department of Veterans                           allegations supporting the contention                    (i) The solicitation number;
                                                    Affairs (VA) Center for Verification and                  that the owner(s) cannot provide                         (ii) The name, address, telephone
                                                    Evaluation (CVE) Database (CVE                            documentation from the VA,                            number, email address, and facsimile
                                                    Protests)                                                 Department of Defense, or the U.S.                    number of the contracting officer;
                                                                                                              National Archives and Records                            (iii) Whether the contract was sole
                                                    § 134.1001       Scope of rules.                          Administration to show that they meet                 source or set-aside;
                                                       (a) The rules of practice in this                      the definition of veteran, service-                      (iv) Whether the protester submitted
                                                    subpart J apply to Department of                          disabled veteran, or service-disabled                 an offer;
                                                    Veterans Affairs (VA) Center for                          veteran with a permanent and severe                      (v) Whether the protested concern
                                                    Verification and Evaluation protests                      disability.                                           was the apparent successful offeror;
                                                    (CVE Protests).                                              (b) Ownership and control. In cases                   (vi) Whether the procurement was
                                                       (b) Except where inconsistent with                     where the protest is based on ownership               conducted using sealed bid or
                                                    this subpart, the provisions of subparts                  and control, the Judge will consider a                negotiated procedures;
                                                    A and B of this part apply to protests                    protest only if the protester presents                   (vii) The bid opening date, if
                                                    listed in paragraph (a) of this section.                  credible evidence that the concern is not             applicable;
                                                       (c) The protest procedures described                   51% owned and controlled by one or                       (viii) When the protest was submitted
                                                    in this subpart are separate from those                   more veterans or service-disabled                     to the contracting officer;
                                                    governing protests and appeals of a                       veterans.                                                (ix) When the protester received
                                                    concern’s size or status as a Service-                       (c) Date for Determining Eligibility.              notification about the apparent
                                                    Disabled Veteran-Owned Small                              The Judge will determine a protested                  successful offeror, if applicable; and
                                                    Business Concern (SDVO SBC) for a                         concern’s eligibility for inclusion in the               (x) Whether a contract has been
                                                    non-Department of Veterans Affairs                        CVE database as of the date the protest               awarded.
                                                    (non-VA) procurement. All protests                        was filed.                                               (3) Protests filed by Secretary of the
                                                    relating to whether a veteran-owned                                                                             VA. The Secretary of VA or his/her
                                                    concern is a ‘‘small’’ business for                       § 134.1004    Commencement of CVE
                                                                                                                                                                    designee must submit his/her CVE
                                                    purposes of any Federal program are                       Protests.
                                                                                                                                                                    Protest directly to OHA in accordance
                                                    subject to part 121 of this chapter and                     (a) Timeliness. (1) The Secretary of                with the procedures in § 134.204.
                                                    must be filed in accordance with that                     the VA, or his/her designee, may file a                  (4) Protests filed by a contracting
                                                    part. If a protester protests both the size               CVE Protest at any time.                              officer. The contracting officer must
                                                    of the concern and the concern’s                            (2) Where the CVE Protest is in                     submit his/her CVE Protest directly to
                                                    eligibility for the CVE database, SBA                     connection with a VA procurement:                     OHA in accordance with the procedures
                                                    will process each protest concurrently.                     (i) An offeror must file a CVE Protest              in § 134.204. The protest should include
                                                    All protests relating to a concern’s status               within five business days of notification             the information set forth in the referral
                                                    as a SDVO SBC for a non-VA                                of the apparent awardee’s identity.                   letter in Paragraph (2).
                                                    procurement are subject to part 125 of                      (ii) A contracting officer may file a
                                                    this chapter and must be filed in                         CVE Protest at any time during the life               § 134.1005    Contents of the CVE Protest.
                                                                                                              of the VA contract.                                     (a) CVE Protests must be in writing.
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    accordance with that part. SBA does not
                                                    review issues concerning contract                           (3) The rule for counting days is in                There is no required format for a CVE
                                                    administration.                                           § 134.202(d).                                         Protest, but it must include the
                                                       (d) Protests of a concern’s eligibility                  (4) An untimely protest will be                     following:
                                                    for a non-VA procurement as a SDVO                        dismissed.                                              (1) The solicitation or contract
                                                    SBC are governed by 13 CFR part 125                         (b) Filing. (1) Private Parties.                    number, if applicable;
                                                    subpart D.                                                Interested parties, other than the                      (2) Specific allegations supported by
                                                       (e) Appeals relating to determinations                 contracting officer or Secretary of the               credible evidence that the concern does
                                                    made by SBA’s Director, Office of                         VA or his/her designee, must deliver                  not meet the eligibility requirements for


                                               VerDate Sep<11>2014     15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00008   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                    45216                Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                    inclusion in the CVE database, listed in                  protester may do so. Any such                           (3) The contracting officer must
                                                    § 134,1003;                                               supplement is due at OHA no later than                update the Federal Procurement Data
                                                      (3) Any other pertinent information                     15 days from the date the protester                   System and other procurement reporting
                                                    the Judge should consider; and                            receives or reviews the CVE case file.                databases to reflect the Judge’s decision.
                                                      (4) The name, address, telephone                           (f) Response. (1) The protested                      (4) If the Judge finds the protested
                                                    number, and email address or facsimile                    concern, the D/CVE, the contracting                   concern ineligible for inclusion in the
                                                    number, if available, and signature of                    officer, and any other interested party               CVE database, D/CVE must immediately
                                                    the protester or its attorney.                            may respond to the protest and                        remove the protested concern from the
                                                      (b) If the protester intends to seek                    supplemental protest, if one is filed. The            CVE database.
                                                    access to the CVE case file under                         response is due no later than 15 days                   (5) A concern found to be ineligible
                                                    § 134.205, the protester should include                   from the date the protest or                          may not submit an offer on a future VA
                                                    in its protest a request for a protective                 supplemental protest was filed with                   procurement until the protested concern
                                                    order. Unless good cause is shown, a                      OHA. The record closes the date the                   reapplies to the Vendor Information
                                                    protester must request a protective order                 final response is due.                                Pages Verification Program and has been
                                                    within five days of filing the protest.                      (2) Service. The respondent must                   reentered into the CVE database.
                                                                                                              serve its response upon the protester or
                                                    § 134.1006 Service and filing                             its counsel and upon each of the                      § 134.1008    Discovery.
                                                    requirements.                                             persons identified in the certificate of               Discovery will not be permitted in
                                                      The provisions of § 134.204 apply to                    service attached to the notice and order              CVE Protest proceedings.
                                                    the service and filing of all pleadings                   or, if a protective order is issued, in
                                                    and other submissions permitted under                                                                           § 134.1009    Oral hearings.
                                                                                                              accordance with the terms of the
                                                    this subpart.                                             protective order.                                       Oral hearings will be held in CVE
                                                                                                                 (3) Reply to a response. No reply to               Protest proceedings only upon a finding
                                                    § 134.1007       Processing a CVE Protest.                                                                      by the Judge of extraordinary
                                                                                                              a response will be permitted unless the
                                                       (a) Notice and order. If the Judge                     Judge directs otherwise.                              circumstances. If such an oral hearing is
                                                    determines that the protest is timely,                       (g) Basis for decision. The decision               ordered, the proceeding shall be
                                                    sufficiently specific, and based upon                     will be based primarily on the case file              conducted in accordance with those
                                                    protestable allegations, the Judge will                   and information provided by the                       rules of subpart B of this part as the
                                                    issue a notice and order, notifying the                   protester, the protested concern, and                 Judge deems appropriate.
                                                    protester, the protested concern, the                     any other parties. However, the Judge
                                                    Director, CVE (D/CVE), VA Counsel,                                                                              § 134.1010    Standard of review and burden
                                                                                                              may investigate issues beyond those                   of proof.
                                                    and, if applicable, the contracting officer               raised in the protest and may use other
                                                    of the date OHA received the protest                                                                              The protested concern has the burden
                                                                                                              information or make requests for
                                                    and ordering a due date for responses.                                                                          of proving its eligibility, by a
                                                                                                              additional information to the protester,
                                                       (b) Dismissal of protest. If the Judge                                                                       preponderance of the evidence.
                                                                                                              the protested concern, or VA.
                                                    determines that the protest is premature,                    (h) Award of contract. The contracting             § 134.1011    Weight of evidence.
                                                    untimely, nonspecific, or is based on                     officer may award a contract during the                  The Judge will give greater weight to
                                                    non-protestable allegations, the Judge                    period between the date he/she receives               specific, signed, factual evidence than to
                                                    will dismiss the protest and will send                    a protest and the date the Judge issues               general, unsupported allegations or
                                                    the contracting officer, D/CVE, and the                   a decision only if the contracting officer            opinions. In the case of refusal or failure
                                                    protester a notice of dismissal, citing the               determines that an award must be made                 to furnish requested information within
                                                    reason(s) for the dismissal. The                          to protect the public interest and                    a required time period, the Judge may
                                                    dismissal is a final agency action.                       notifies the Judge in writing of any such             assume that disclosure would be
                                                       (c) Transmission of the case file.                     determination. Notwithstanding such a                 contrary to the interests of the party
                                                    Upon receipt of a notice and order, the                   determination, the provisions of                      failing to make disclosure.
                                                    D/CVE must deliver to OHA the entire                      paragraph (j) of this section shall apply
                                                    case file relating to the protested                       to the procurement in question.                       § 134.1012    The record.
                                                    concern’s inclusion in the CVE                               (i) The decision. OHA will serve a                   Where relevant, the provisions of
                                                    database. The notice and order will                       copy of the written decision on each                  § 134.225 apply. In a protest under this
                                                    establish the timetable for transmitting                  party, or, if represented by counsel, on              subpart, the contents of the record also
                                                    the case file to OHA. The D/CVE must                      its counsel. The decision is considered               include the case file or solicitation
                                                    certify and authenticate that the case                    the final agency action, and it becomes               submitted to OHA in accordance with
                                                    file, to the best of his/her knowledge, is                effective upon issuance.                              § 134.1007.
                                                    a true and correct copy of the case file.                    (j) Effect of decision. (1) A contracting
                                                       (d) Protective order. A protester                      officer may award a contract to a                     § 134.1013    Request for Reconsideration.
                                                    seeking access to the CVE case file must                  protested concern after the Judge has                   The decision on a CVE Protest may
                                                    file a timely request for a protective                    determined either that the protested                  not be appealed. However:
                                                    order under § 134.205. Except for good                    concern is eligible for inclusion in the                (a) The Judge may reconsider a CVE
                                                    cause, a protester must request a                         CVE database or has dismissed all                     Protest decision. Any party that has
                                                    protective order within five days of                      protests against it.                                  appeared in the proceeding, or the
                                                    filing the protest. Even after issuance of                   (2) A contracting officer shall not                Secretary of VA or his/her designee,
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    a protective order, OHA will not                          award a contract to a protested concern               may request reconsideration by filing
                                                    disclose income tax returns or                            that the Judge has determined is not                  with OHA and serving a petition for
                                                    privileged information.                                   eligible for inclusion in the CVE                     reconsideration on all the parties to the
                                                       (e) Supplemental allegations. If, after                database. If the contracting officer has              CVE Protest within twenty (20) calendar
                                                    viewing documents in the CVE case file                    already made an award under paragraph                 days after service of the written
                                                    for the first time under a protective                     (h) of this section, the contracting officer          decision. The request for
                                                    order, a protester wishes to supplement                   shall either terminate the contract or not            reconsideration must clearly show an
                                                    its protest with additional argument, the                 exercise the next option.                             error of fact or law material to the


                                               VerDate Sep<11>2014     15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00009   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                                         Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                             45217

                                                    decision. The Judge may also reconsider                   failure to meet any veteran or service-               § 134.1108    Response to an appeal petition.
                                                    a decision on his or her own initiative.                  disabled veteran eligibility criteria.                   (a) Who may respond. The D/CVE or
                                                      (b) If the Judge reverses his or her                    Such denials and cancellations are final              his/her designee or counsel for VA may
                                                    initial decision on reconsideration, the                  VA decisions and not subject to appeal                respond to the CVE Appeal. The
                                                    contracting officer must follow                           to OHA.                                               response should present arguments to
                                                    § 134.1007(j) in applying the new                                                                               the issues presented on appeal.
                                                    decision’s results.                                       § 134.1104    Commencement of CVE                        (b) Time limits. The notice and order
                                                                                                              Appeals.
                                                    ■ 5. Add subpart K to read as follows:                                                                          will inform the parties of the filing of
                                                                                                                (a) A concern whose application for                 the appeal petition, establish the close
                                                    Subpart K—Rules of Practice for Appeals of                CVE verification has been denied or
                                                    Denials and Cancellations of Verification for                                                                   of record as 15 days after service of the
                                                                                                              whose CVE status has been cancelled                   notice and order, and inform the parties
                                                    Inclusion in the U.S. Department of
                                                    Veterans Affairs (VA) Center for Verification             must file its appeal within 10 business               that OHA must receive any responses to
                                                    and Evaluation (CVE) Database (CVE                        days of receipt of the denial or                      the appeal petition no later than the
                                                    Appeals)                                                  cancellation.                                         close of record.
                                                    Sec.                                                        (b) The rule for counting days is in                   (c) Service. The respondent must
                                                    134.1101 Scope of rules.                                  § 134.202(d).                                         serve its response upon the appellant
                                                    134.1102 Who may file a CVE Appeal?                         (c) OHA will dismiss an untimely                    and upon each of the persons identified
                                                    134.1103 Grounds for filing a CVE Appeal.                 appeal.                                               in the certificate of service attached to
                                                    134.1104 Commencement of CVE Appeals.                                                                           the appeal petition pursuant to
                                                    134.1105 The appeal petition.                             § 134.1105    The appeal petition.
                                                                                                                                                                    § 134.1105.
                                                    134.1106 Service and filing requirements.                   (a) Format. CVE Appeals must be in                     (d) Reply to a response. No reply to
                                                    134.1107 Transmission of the case file.                   writing. There is no required format for              a response will be permitted unless the
                                                    134.1108 Response to an appeal petition.                  an appeal petition; however, it must
                                                    134.1109 Discovery and oral hearings.
                                                                                                                                                                    Judge directs otherwise.
                                                                                                              include the following:
                                                    134.1110 New evidence.                                                                                          § 134.1109    Discovery and oral hearings.
                                                    134.1111 Standard of review and burden of
                                                                                                                (1) A copy of the denial or
                                                         proof.                                               cancellation and the date the appellant                 Discovery will not be permitted and
                                                    134.1112 The decision.                                    received it;                                          oral hearings will not be held.
                                                                                                                (2) A statement of why the
                                                       Authority: 38 U.S.C. 8127(f)(8)(A).                                                                          § 134.1110    New evidence.
                                                                                                              cancellation or denial is in error;
                                                                                                                (3) Any other pertinent information                   Except for good cause shown,
                                                    Subpart K—Rules of Practice for                                                                                 evidence beyond the case file will not
                                                    Appeals of Denials and Cancellations                      the Judge should consider; and
                                                                                                                (4) The name, address, telephone                    be admitted.
                                                    of Verification for Inclusion in the U.S.
                                                    Department of Veterans Affairs (VA)                       number, and email address or facsimile                § 134.1111    Standard of review and burden
                                                    Center for Verification and Evaluation                    number, if available, and signature of                of proof.
                                                    (CVE) Database (CVE Appeals)                              the appellant or its attorney.                          The standard of review is whether the
                                                                                                                (b) Service. The appellant must serve               D/CVE denial or cancellation was based
                                                    § 134.1101       Scope of rules.                          copies of the entire appeal petition upon             on clear error of fact or law. The
                                                       (a) The rules of practice in this                      the Director, Center for Verification and             appellant has the burden of proof, by a
                                                    subpart K apply to appeals of denials                     Evaluation (D/CVE) and VA Counsel at                  preponderance of the evidence.
                                                    and cancellations of verification for                     CVEAppealsService@va.gov.
                                                    inclusion in the U.S. Department of                         (c) Certificate of Service. The                     § 134.1112    The decision.
                                                    Veterans Affairs Center for Verification                  appellant must attach to the appeal                      (a) Timing. The Judge shall decide a
                                                    and Evaluation Database (CVE Appeals).                    petition a signed certificate of service              CVE Appeal, insofar as practicable,
                                                       (b) Except where inconsistent with                     meeting the requirements of                           within 60 calendar days after close of
                                                    this subpart, the provisions of subparts                  § 134.204(d).                                         the record.
                                                    A and B of this part apply to appeals                       (d) Dismissal. An appeal petition that                 (b) Contents. Following closure of the
                                                    listed in paragraph (a) of this section.                  does not meet all the requirements of                 record, the Judge will issue a decision
                                                       (c) Appeals relating to determinations                 this section may be dismissed by the                  containing findings of fact and
                                                    made by SBA’s Director, Office of                         Judge at his/her own initiative or upon               conclusions of law, reasons for such
                                                    Government Contracting regarding                          motion of a respondent.                               findings and conclusions, and any relief
                                                    Service-Disabled Veteran-Owned Small                                                                            ordered.
                                                    Business Concern (SDVO SBC) status                        § 134.1106 Service and filing                            (c) Basis for decision. Decisions under
                                                                                                              requirements.                                         this part will be based primarily on the
                                                    are governed by subpart E of this part.
                                                       (d) Protests of a concern’s eligibility                  The provisions of § 134.204 apply to                evidence in the CVE case file, arguments
                                                    for inclusion in the VA’s CVE database                    the service and filing of all pleadings               made on appeal, and any response(s)
                                                    are governed by subpart J of this part.                   and other submissions permitted under                 thereto. However, the Judge, in his/her
                                                                                                              this subpart.                                         sole discretion, may consider issues
                                                    § 134.1102       Who may file a CVE Appeal?                                                                     beyond those raised in the pleadings
                                                                                                              § 134.1107    Transmission of the case file.          and the denial or cancellation letter.
                                                       A concern that has been denied
                                                    verification of its CVE status or has had                   Once a CVE Appeal is filed, the D/                     (d) Finality. The decision is the final
                                                                                                              CVE must deliver to OHA the entire                    agency decision and becomes effective
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    its CVE status cancelled may appeal the
                                                    denial or cancellation to OHA.                            case file relating to the denial or                   upon issuance. Where OHA dismisses
                                                                                                              cancellation. The Judge will issue a                  an appeal of a D/CVE denial or
                                                    § 134.1103       Grounds for filing a CVE                 notice and order establishing the                     cancellation, the D/CVE determination
                                                    Appeal.                                                   timetable for transmitting the case file to           remains in effect.
                                                      Denials and cancellations of                            OHA. The D/CVE must certify and                          (e) Service. OHA will serve a copy of
                                                    verification of CVE status may be                         authenticate that the case file, to the               all written decisions on each party, or,
                                                    appealed to OHA, so long as the denial                    best of his/her knowledge, is a true and              if represented by counsel, on its
                                                    or cancellation is not based on the                       correct copy of the case file.                        counsel.


                                               VerDate Sep<11>2014     15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00010   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1


                                                    45218              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                      (f) Effect. If the Judge grants the                   New Jersey Avenue SE., West Building                  www.regulations.gov, including any
                                                    appeal and finds the appellant eligible                 Ground Floor, Room W12–140,                           personal information you provide. We
                                                    for inclusion in the CVE database, the                  Washington, DC 20590–0001.                            will also post a report summarizing each
                                                    D/CVE must immediately reinstate or                       • Hand Delivery: Deliver to Mail                    substantive verbal contact with FAA
                                                    include the appellant, as the case may                  address above between 9 a.m. and 5                    personnel concerning this proposed AD.
                                                    be, in the CVE database.                                p.m., Monday through Friday, except
                                                                                                                                                                  Discussion
                                                      (g) Reconsideration. A decision of the                Federal holidays.
                                                    Judge may be reconsidered. Any party                      • Fax: 202–493–2251.                                  The European Aviation Safety Agency
                                                    that has appeared in the proceeding, or                   For service information identified in               (EASA), which is the Technical Agent
                                                    the Secretary of VA or his or her                       this proposed AD, contact Rolls-Royce                 for the Member States of the European
                                                    designee, may request reconsideration                   plc, Corporate Communications, P.O.                   Community, has issued EASA AD 2017–
                                                    by filing with OHA and serving a                        Box 31, Derby, England, DE24 8BJ;                     0096, dated June 1, 2017 (referred to
                                                    petition for reconsideration on all                     phone: 011–44–1332–242424; fax: 011–                  hereinafter as ‘‘the MCAI’’), to correct an
                                                    parties to the CVE Appeal within twenty                 44–1332–249936; email: http://                        unsafe condition for the specified
                                                    (20) calendar days after service of the                 www.rolls-royce.com/contact/civil_                    products. The MCAI states:
                                                    written decision, upon a clear showing                  team.jsp; Internet: https://                             All low pressure compressor (LPC) case A-
                                                    of an error of fact or law material to the              customers.rolls-royce.com/public/                     frame hollow locating pins, Part Number
                                                    decision. The Judge also may reconsider                 rollsroycecare. You may view this                     (P/N) FK11612, manufactured between 01
                                                    a decision on his or her own initiative.                service information at the FAA, Engine                January 2012 and 31 May 2016, have
                                                                                                            and Propeller Standards Branch, 1200                  potentially been subjected to incorrect heat
                                                    Linda E. McMahon,                                                                                             treatment. This may have reduced the
                                                                                                            District Avenue, Burlington, MA. For
                                                    Administrator.                                                                                                integrity of the pin such that in a Fan Blade
                                                                                                            information on the availability of this               Off (FBO) event it is unable to withstand the
                                                    [FR Doc. 2017–20384 Filed 9–27–17; 8:45 am]             material at the FAA, call 781–238–7125.               applied loads. This condition, if not
                                                    BILLING CODE 8025–01–P
                                                                                                            Examining the AD Docket                               corrected, could lead to loss of location of the
                                                                                                                                                                  A-frame following an FBO event, possibly
                                                                                                              You may examine the AD docket on                    resulting in engine separation, loss of thrust
                                                    DEPARTMENT OF TRANSPORTATION                            the Internet at http://                               reverser unit, release of high-energy debris,
                                                                                                            www.regulations.gov by searching for                  or an uncontrolled fire. To address this
                                                    Federal Aviation Administration                         and locating Docket No. FAA–2017–                     potential unsafe condition, RR identified the
                                                                                                            0650; or in person at the Docket                      affected engines that have these A-frame
                                                    14 CFR Part 39                                          Operations office between 9 a.m. and 5                hollow locating pins installed and published
                                                                                                                                                                  Alert Non-Modification Service Bulletin
                                                    [Docket No. FAA–2017–0650; Product                      p.m., Monday through Friday, except                   (NMSB) RB.211–72–AJ463, providing
                                                    Identifier 2017–NE–19–AD]                               Federal holidays. The AD docket                       instructions for replacement of these pins.
                                                                                                            contains this proposed AD, the                        The NMSB was recently revised to correct an
                                                    RIN 2120–AA64
                                                                                                            mandatory continuing airworthiness                    error in Section 1.A., where ESN 51477 was
                                                    Airworthiness Directives; Rolls-Royce                   information (MCAI), the regulatory                    inadvertently omitted. That ESN was
                                                                                                            evaluation, any comments received, and                correctly listed in Section 1.D.(1)(f) for the
                                                    plc Turbofan Engines
                                                                                                            other information. The address for the                compliance time. For the reason described
                                                    AGENCY: Federal Aviation                                Docket Office (phone: 800–647–5527) is                above, this AD requires a one-time
                                                    Administration (FAA), DOT.                              in the ADDRESSES section. Comments                    replacement of the affected A-frame hollow
                                                                                                                                                                  locating pins P/N FK11612. This AD also
                                                    ACTION: Notice of proposed rulemaking                   will be available in the AD docket                    prohibits installation of pins that were
                                                    (NPRM).                                                 shortly after receipt.                                released to service before 05 July 2016.
                                                                                                            FOR FURTHER INFORMATION CONTACT:
                                                    SUMMARY:   We propose to adopt a new                                                                            You may obtain further information
                                                                                                            Robert Green, Aerospace Engineer, ECO                 by examining the MCAI in the AD
                                                    airworthiness directive (AD) for certain                Branch, FAA, 1200 District Avenue,
                                                    Rolls-Royce plc (RR) RB211–Trent 875–                                                                         docket on the Internet at http://
                                                                                                            Burlington, MA 01803; phone: 781–                     www.regulations.gov by searching for
                                                    17, RB211–Trent 877–17, RB211–Trent                     238–7754; fax: 781–238–7199; email:
                                                    884–17, RB211–Trent 884B–17, RB211–                                                                           and locating Docket No. FAA–2017–
                                                                                                            robert.green@faa.gov.                                 0650.
                                                    Trent 892–17, RB211–Trent 892B–17,
                                                                                                            SUPPLEMENTARY INFORMATION:
                                                    and RB211–Trent 895–17 turbofan                                                                               Related Service Information Under 1
                                                    engines. This proposed AD was                           Comments Invited                                      CFR Part 51
                                                    prompted by low-pressure compressor                       We invite you to send any written
                                                    (LPC) case A-frame hollow locating pins                                                                          RR has issued Alert Non Modification
                                                                                                            relevant data, views, or arguments about              Service Bulletin (NMSB) RB.211–72–
                                                    that may have reduced integrity due to                  this proposed AD. Send your comments
                                                    incorrect heat treatment. This proposed                                                                       AJ463, Revision 2, dated June 28, 2017.
                                                                                                            to an address listed under the                        The Alert SB describes procedures for
                                                    AD would require replacement of the                     ADDRESSES section. Include ‘‘Docket No.
                                                    LPC case A-frame hollow locating pins.                                                                        replacement of all non-conforming A-
                                                                                                            FAA–2017–0650; Product Identifier                     frame locating pins. This service
                                                    We are proposing this AD to correct the                 2017–NE–19–AD’’ at the beginning of
                                                    unsafe condition on these products.                                                                           information is reasonably available
                                                                                                            your comments. We specifically invite                 because the interested parties have
                                                    DATES: We must receive comments on                      comments on the overall regulatory,
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                                                                                                                                  access to it through their normal course
                                                    this NPRM by October 30, 2017.                          economic, environmental, and energy                   of business or by the means identified
                                                    ADDRESSES: You may send comments by                     aspects of this proposed AD. We will                  in the ADDRESSES section.
                                                    any of the following methods:                           consider all comments received by the
                                                      • Federal eRulemaking Portal: Go to                   closing date and may amend this                       FAA’s Determination and Requirements
                                                    http://www.regulations.gov. Follow the                  proposed AD because of those                          of This Proposed AD
                                                    instructions for submitting comments.                   comments.                                               This product has been approved by
                                                      • Mail: Docket Management Facility,                     We will post all comments we                        the aviation authority of the United
                                                    U.S. Department of Transportation, 1200                 receive, without change, to http://                   Kingdom, and is approved for operation


                                               VerDate Sep<11>2014   15:00 Sep 27, 2017   Jkt 241001   PO 00000   Frm 00011   Fmt 4702   Sfmt 4702   E:\FR\FM\28SEP1.SGM   28SEP1



Document Created: 2017-09-28 01:33:00
Document Modified: 2017-09-28 01:33:00
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before October 30, 2017.
ContactDaniel K. George, Attorney Advisor, at (202) 401-8200 or [email protected]
FR Citation82 FR 45212 
RIN Number3245-AG87
CFR AssociatedAdministrative Practice and Procedure; Claims; Equal Access to Justice; Lawyers and Organization and Functions (government Agencies)

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR