Frequently Asked Questions (FAQ) for All OHA Appeals
DISCLAIMER: WE PROVIDE THIS INFORMATION ON OUR HOME PAGE TO FACILITATE THE PREPARATION OF AN APPEAL. THE INFORMATION IS NOT INTENDED TO PROVIDE ALL AVAILABLE INFORMATION REGARDING APPEALS.
For the most up-to-date versions of the regulations cited here, please visit http://ecfr.gpoaccess.gov/
1. What must be included in my appeal petition?
Your appeal petition should argue why you think the SBA’s decision is incorrect and should include any evidence that supports your argument. Note that any document already submitted to the program or Area Office does not need to be re-submitted on appeal. Use the SBA’s regulations governing your type of appeal (see the FAQs for that type of appeal if you are not sure where to find the governing regulations) and OHA’s past decisions to help you formulate your legal argument. Cite particular regulatory sections by number, and cite particular OHA decisions by case name and 3-digit or 4-digit decision number.
Your appeal petition must also include the following: (1) a statement as to why OHA has jurisdiction; (2) a copy of the SBA determination being appealed or, in NAICS cases, identify the solicitation being appealed; (3) a clear and concise statement of the facts; (4) the relief you seek; (5) your name, address, phone and fax numbers, email address, and signature (or the same information for your attorney); and (6) a certificate of service. 13 C.F.R. § 134.203(a). Your appeal petition, excluding attachments, may not exceed 20 pages.
2. What is a certificate of service?
You are responsible for sending a copy of the appeal petition and any attachments to all the parties in the case (for a list of the parties that must be served, see the FAQs for each specific type of appeal). The certificate of service shows the judge that you have done so. 13 C.F.R. § 134.204(c), (d).
3. How do I file my appeal petition?
You may file at OHA by email, fax, mail, or delivery. OHA must RECEIVE your appeal petition before 5pm on or before the date that the applicable time period for filing expires (for the time period that applies to your specific type of appeal, see the FAQs for that type of appeal). Any filing received after 5pm is considered filed as of the next business day. It is your responsibility to ensure that your appeal petition arrives at OHA no later than 5pm on the day your time to file expires. Late appeals will be dismissed.
If filing by email, send your appeal petition to email@example.com. Send any communication as an attached document. If filing by fax, OHA’s fax number is (202) 205-7059. If filing by mail or delivery, send or drop off your appeal petition to the following address: Docketing Clerk, Office of Hearings and Appeals, Small Business Administration, 8th Floor, 409 Third Street SW, Washington DC 20416. 13 C.F.R. § 134.204.
Recent changes to the Office of Hearings and Appeals (OHA) procedure regulations now allow emailing as an additional method of filing or service. When email filings are received by OHA, at OHAFilings@sba.gov<mailto:OHAFilings@sba.gov>, the party should receive a notice of receipt. Some filings emailed to OHA have not been successfully transmitted due to the size or content of the email. In accordance with 13 C.F.R. § 134.204(a), “The sender is responsible for ensuring that e-mail software and file formats are compatible with the recipient and for a successful, virus-free transmission.” We encourage a party to call OHA, 202-401-8200, to confirm receipt of a filing, especially in the case of an appeal petition which must be received by OHA before the filing deadline.
4. I have filed my appeal. Now what happens?
The OHA judge assigned to your appeal will issue a notice and order setting the close of record. An appeal is decided in a written decision or order setting out the pertinent issues, findings of fact (based on the record), and conclusions of law (based on statute, regulation, and prior case law). OHA staff cannot estimate the time a judge will take to decide your appeal.
Information About Protective Orders
The Small Business Administration’s Office of Hearings and Appeals (OHA) issues protective orders under its regulatory authority. A protective order protects a firm’s (generally the protested concern) confidential and proprietary information while permitting counsel for an opposing private party (generally a protestor) to have access to the entire appeal file (except for income tax returns and privileged information) under strict terms limiting its use to the OHA appeal and prohibiting further disclosure.
OHA judges issue protective orders most often in size or service-disabled veteran-owned small business concern (SDVO SBC) appeals when both the protested concern (whose size or SDVO SBC status is at issue) and a non-government protestor are parties to the appeal. A protective order is not needed when the only non-governmental party in an appeal is the concern whose status (or eligibility) is at issue, such as in 8(a) Business Development Program cases.
When an appellant is the protested concern, if it wishes to protect its confidential and proprietary information, it should file both redacted and unredacted versions of the appeal petition with OHA, serve the government parties both versions, and serve the protestor(s) only the redacted version. The protested concern may also request a protective order at that time. If the protestor’s counsel wishes to have access to the unredacted appeal petition and appeal file, protestor’s counsel should file and serve an appearance along with a request for a protective order. After OHA issues the protective order, each attorney representing a protestor should file and serve his or her application for admission under the protective order. After reviewing and approving the application(s), the OHA judge will order counsel admitted. Once admitted, the protestor’s counsel may then arrange to view, copy, or request delivery of the protected material.
When an appellant is the protestor, counsel should request the protective order at the same time the appeal petition is filed if counsel wishes to have access to the unredacted appeal petition and appeal file. After the OHA judge issues the protective order, the appellant’s counsel should apply for admission. Once OHA admits counsel under the protective order, counsel may then arrange to receive the protected material.
Parties should use this legend for submissions containing protected information: CONTAINS PROTECTED INFORMATION NOT TO BE DISCLOSED EXCEPT IN ACCORDANCE WITH OFFICE OF HEARINGS AND APPEALS PROTECTIVE ORDER.
If there are any questions regarding protective orders, call OHA at (202) 401-8200 and ask to speak with one of the staff attorneys.