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821.32 Confidentiality of information

about net worth. (a) In a proceeding on an application, the public record ordinarily includes the information showing the net worth of the applicant.

(b) However, if an applicant objects to public disclosure of any portion of the information and believes there are legal grounds for withholding it from disclosure, the applicant may submit directly to the adjudicative officer

(1) The information the applicant wishes withheld in a sealed envelope labeled “Confidential Financial Information;" and

(2) A motion to withhold the information from public disclosure.

(c) The motion must

(1) Describe the information the applicant is requesting be withheld; and

(2) Explain in detail

(i) Why that information falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act;

(ii) Why public disclosure of the information would adversely affect the applicant; and

(iii) Why disclosure is not required in the public interest.

(d)(1) The applicant shall serve on Department's counsel a copy of the material referred to in paragraph (c) of this section.

(2) The applicant is not required to give a copy of that material to any other party to the proceeding.

(e)(1) If the adjudicative officer finds that the information should not be withheld from public disclosure, the information is placed in the public record of the proceeding.

(2) If the adjudicative officer finds that the information should be withheld from public disclosure, any request to inspect or copy the information is treated in accordance with the Department's established procedures under the Freedom of Information Act (34 CFR part 5). (Authority: 5 U.S.C. 504(c)(1)) $21.33 Allowable fees and expenses.

(a) A prevailing party may apply for an award of fees and other expenses incurred by the party in connection with

(1) An adversary adjudication; or

(2) A significant and discrete substantive portion of an adversary adjudication.

(b) If a proceeding includes issues covered by the Act and issues excluded from coverage, the applicant may apply only for an award of fees and other expenses related to covered issues.

(c) Allowable fees and expenses include the following, as applicable:

(1) An award of fees based on rates customarily charged by attorneys, agents, and expert witnesses.

(2) An award for the reasonable expenses of the attorney, agent, or expert witness as a separate item if the attorney, agent, or expert witness ordinarily charges clients separately for those expenses.

(3) The cost of any study, analysis, engineering report, test, or project related to the preparation of the applicant's case in the adversary adjudication.

(d) The calculation of fees and expenses as provided for under paragraph (c) of this section shall be in accordance with the standards for awards as described in $21.50(a) through (c). (Authority: 5 U.S.C. 504(a)(1), (b)(1)(A) and (c)(1))

Subpart

E-What Procedures Are Used in Considering Applications? $21.40 Filing and service of docu

ments. (a) Except as provided in $21.32 and in applications subject to the jurisdiction of the CRRA, an applicant shall

(1) File with the adjudicative officer its application and any related documents; and

(2) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(b)(1) In an application subject to the jurisdiction of the CRRA, the applicant shall

(i) File with the CRRA its application and any other related documents; and

(ii) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(2) In applications subject to $21.40(b)(1), the CRRA shall direct the

adjudicative officer to issue an initial (1) Supporting affidavits; or decision within 30 days of the comple (2) A request for further proceedings tion of the proceedings on the applica under $21.44. tion. The adjudicative officer shall con

(Authority: 5 U.S.C. 504(c)(1)) duct proceedings under the procedures of $$ 21.41-21.44.

$21.43 Comments by other parties. (Authority: 5 U.S.C. 504(a)(2) and (c)(1); 20 (a) Any party to a proceeding, other U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et than an applicant or the Department's seq. and 6101 et seq.)

counsel, may file comments on$21.41 Answer to application.

(1) The application within 30 days

after the applicant files the applica(a)(1) Within 30 days after receiving tion; an application for an award under this (2) The answer within 30 days after part, the Department's counsel may the counsel files the answer; or file an answer to the application.

(3) Both, if the comments are filed (2) The Department's counsel may re within the time period specified in quest an extension of time for filing paragraphs (a)(1) and (a)(2) of this secthe Department's answer.

tion. (3) The adjudicative officer shall (b) The commenting party may not grant the request for an extension if participate further in proceedings on the Department's counsel shows good the application unless the adjudicative cause for the request.

officer determines that further partici(b)(1) The Department's answer pation is necessary to permit full exmust

ploration of matters raised in the com(i) Explain any objections to the ments. award requested; and

(Authority: 5 U.S.C. 504(c)(1)) (ii) Identify the facts relied on in support of the position of the Department. $21.44 Further proceedings.

(2) If the answer is based on any alleged facts not in the record of the ad

(a) The adjudicative officer shall versary adjudication, the Department's

make the determination of an award on

the basis of the written record. counsel shall include with the answer either

(b)(1) However, the adjudicative offi(i) Supporting affidavits; or

cer may order further proceedings on (ii) A request for further proceedings his or her own initiative or at the reunder $21.44.

quest of the applicant or the Depart(c)(1) If the Department's counsel and

ment's counsel. the applicant believe that the issues in

(2) The adjudicative officer may the application can be settled, they

order further proceedings only if he or

she determines that those proceedings may jointly file a statement of their intent to negotiate a settlement.

are necessary for full and fair resolu(2)(i) The filing of a statement of an

tion of issues arising from the applica

tion. intent to negotiate extends the time for filing an answer for 30 days.

(3) If further proceedings are ordered, (ii) The adjudicative officer shall

the adjudicative officer shall determine grant further extensions if the Depart

the scope of those proceedings, which ment's counsel and the applicant joint

may include such proceedings as inforly request those extensions.

mal conferences, oral arguments, addi

tional written submissions, discovery, (Authority: 5 U.S.C. 504(c)(1))

or an evidentiary hearing.

(4) An adjudicative officer may not $ 21.42 Reply.

order discovery or an evidentiary hear(a) Within 15 days after receiving an ing for the issue of whether or not the answer, an applicant may file a reply. Department's position was substan

(b) If the applicant's reply is based on tially justified. any alleged facts not in the record of (c) If the applicant or the Departthe adversary adjudication, the appli- ment's counsel requests the adjudicacant shall include with the reply ei tive officer to order further prother

ceedings, the request must

(1) Specify the information sought or the disputed issues; and

(2) Explain why the additional proceedings are necessary to obtain that information or resolve those issues. (Authority: 5 U.S.C. 504(a)(3) and (C)(1))

(2) The costs claimed by the applicant for this item or items are reasonable.

(d) The adjudicative officer may not make an award to an eligible party if the adjudicative officer, the CRRA, or the Secretary on review finds that, based on a review of the administrative record as a whole

(1) The position of the Department, as defined in $21.3, was substantially justified; or

(2) Special circumstances make an award unjust.

(e) The adjudicative officer may reduce or deny an award to the extent that the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication.

(f) If an applicant is entitled to an award because the applicant prevailed over another agency of the United States that participated in a proceeding before the Department and that agency's position was not substantially justified, the adjudicative officer shall determine whether to make the award, or an appropriate portion of the award, against that agency. For the purpose of this determination, the requirements of this subpart apply. (Authority: 5 U.S.C. 504(a), (b)(1)(A), and (b)(1)(E))

Subpart F-How Are Awards

Determined? $21.50 Standards for awards.

(a) In determining the reasonableness of the amount sought as an award of fees and expenses for an attorney, agent, or expert witness, the adjudicative officer shall consider one or more of the following:

(1)(i) If the attorney, agent, or expert witness is in private practice, his or her customary fee for similar services; or

(ii) If the attorney, agent, or expert witness is an employee of the applicant, the fully allocated cost of the services.

(2) The prevailing rate for similar services in the community in which the attorney, agent, or expert witness ordinarily performs services.

(3) The time the attorney, agent, or expert witness actually spent on the applicant's behalf with respect to the adversary adjudication.

(4) The time the attorney, agent, or expert witness reasonably spent in light of the difficulty or complexity of the covered issues in the adversary adjudication.

(5) Any other factors that may bear on the value of the services provided by the attorney, agent, or expert witness.

(b) The adjudicative officer may not grant

(1) An award for the fee of an attorney or agent in excess of $75.00 per hour; or

(2) An award to compensate an expert witness in excess of the highest rate at which the Department pays expert witnesses.

(c) The adjudicative officer may also determine whether

(1) Any study, analysis, engineering report, text, or project for which the applicant seeks an award was necessary for the preparation of the applicant's case in the adversary adjudication; and

$21.51 Initial decision in applications

not subject to the CRRA. (a) In applications not subject to the jurisdiction of the CRRA, the adjudicative officer shall issue an initial decision on an application within 30 days after completion of proceedings on the application.

(b) The initial decision must include the following:

(1) Written findings, including sufficient supporting explanation, on

(i) The applicant's status as a prevailing party;

(ii) The applicant's eligibility;

(iii) Whether the position of the Department was substantially justified;

(iv) Whether special circumstances make an award unjust;

(v) If applicable, whether the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication; and

(vi) Other factual issues raised in the adversary adjudication.

(2) A statement of the amount award $21.53 Final decision of the CRRA. ed, including an explanation-with sup

(a) In an application subject to the porting information-for any difference

jurisdiction of the CRRA, the CRRA between the amount requested by the

shall, within 30 days after receipt of applicant and the amount awarded.

the written appeal(3) A statement of the applicant's

(1) Issue a final decision on the apright to request review by the Sec- peal of the adjudicative officer's initial retary under $21.54.

decision; or (4) A statement of the applicant's (2) Remand the application to the adright under $21.56 to seek judicial re- judicative officer for further proview of the final award determination. ceedings.

(c) The explanation referred to in (b) The CRRA shall review the initial paragraph (b)(2) of this section may in decision on the basis of the written clude

record of the proceedings on the appli(1) Whether the amount requested cation. This includes but is not limited was reasonable; and

to(2) The extent to which the applicant

(1) The written request; and unduly or unreasonably protracted the (2) The adjudicative officer's findings adversary adjudication.

as described in $21.51(b).

(c) The CRRA shall act on the review (Authority: 5 U.S.C. 504 (a)(3) and (c))

by either$21.52 Initial decision by an adjudica

(1) Issuing a final decision on the aptive officer in applications subject

plication; or to CRRA jurisdiction.

(2) Remanding the application to the

adjudicative officer for further pro(a) If the application is subject to the ceedings. jurisdiction of the CRRA, the adjudica (d) If the CRRA issues a final decitive officer shall issue the initial deci sion, the CRRA's decision must insion within 30 days after completion of cludethe proceedings.

(1) Written findings, including sup(b) The initial decision must include porting explanation, onthe information required under (i) The applicant's status as a pre$21.51(b). However, instead of the infor- vailing party; mation required under $21.51(b)(3), the (ii) The applicant's eligibility; initial decision must inform the appli (iii) Whether the position of the Decant of

partment was substantially justified; (1) Its right to request review by the (iv) Whether special circumstances CRRA; and

make an award unjust; (2) Its right to request review by the (v) Whether the applicant engaged in Secretary of the CRRA's final decision.

conduct that unduly or unreasonably (C) If the applicant or the Depart- protracted the adversary adjudication; ment's counsel appeals the adjudica

and tive officer's initial decision, the ap

(vi) Other factual issues raised in the

adversary adjudication. peal must be submitted to the CRRA, in writing, within 30 days after the ini

(2) A statement of the amount awardtial decision is issued.

ed, including an explanation-with sup(d) If the applicant or the Depart

porting information-for any difference

between the amount requested by the ment's counsel does not appeal the ad

applicant and the amount awarded. judicative officer's initial decision to

(3) A statement of the applicant's the CRRA and the Secretary does not

right to request review by the Secdecide to review the initial decision

retary under $21.54. under $21.54(a), the initial decision be

(4) A statement of the applicant's comes the Department's final decision

right under $21.56 to seek judicial re60 days after it is issued by the officer.

view of the final award determination. (Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. (e) The explanation referred to in 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and paragraph (d)(2) of this section may in6101 et seq.)

clude

(1) Whether the amount requested (g) If the Secretary decides to review was reasonable; and

the adjudicative officer's initial deci(2) The extent to which the applicant sion or the CRRA's final decisionunduly or unreasonably protracted the (1) The Secretary reviews the adjuadversary adjudication.

dicative officer's initial decision or the (Authority: 5 U.S.C. 301, 557 (b) and (c); 20

CRRA's final decision on the basis of U.S.C. 1681 and 3401 et seq.; 29 U.S.C. 794; 42 the written record of the proceedings U.S.C. 2000d-1 et seq. and 6101 et seq.)

on the application. This includes, but

is not restricted to$21.54 Review by the Secretary.

(i) The written request for review; (a) The Secretary may decide to re (ii) The adjudicative officer's findings view

as described in 821.51(b); and (1) An initial decision made by an ad (iii) If applicable, the final decision judicative officer in a proceeding not of the CRRA, if any; and subject to CRRA review;

(2) The Secretary either(2) An initial decision made by an ad

(i) Issues a final decision; or judicative officer in a proceeding subject to CRRA review that was not ap

(ii) Remands the application to the pealed to the CRRA; or

adjudicative officer or the CRRA for (3) A final decision made by the

further proceedings. CRRA under $21.53.

(h) If the Secretary issues a final de(b)(1) The Secretary does not review

cision, the Secretary's decisiona final decision made by an adjudica

(1) Is in writing; tive officer of the General Services Ad

(2) States the reasons for the deciministration Board of Contract Ap sion; and peals.

(3) If the decision is adverse to the (2) The Secretary or a party to the applicant, advises the applicant of its proceedings may seek reconsideration right to petition for judicial review of the final decision by an adjudicative under $21.56. officer of the General Services Administration Board of Contract Appeals on

(Authority: 5 U.S.C. 557 (b) and (c)) the fee application in accordance with

$21.55 Final decision if the Secretary 48 CFR 6101.32.

does not review. (c) The Secretary decides to review a decision under $21.54(a) either

If the Secretary takes no action (1) Upon receipt of a written request

under $21.54 for review by an applicant or Depart (a) The adjudicative officer's initial ment's counsel; or

decision on the application becomes (2) Upon the Secretary's own motion. the Department's final decision 60 days

(d) If the applicant or the Depart after it is issued by the adjudicative ofment's counsel seeks a review, the re ficer; or quest must be submitted to the Sec (b) The CRRA's decision on the appliretary, in writing, within 30 days of cation becomes the Department's final

(1) An initial decision in a proceeding decision 60 days after it is issued by the not subject to CRRA review; or

CRRA. (2) A final decision of the CRRA. (e) The Secretary decides whether to

(Authority: 5 U.S.C. 301) accept or reject a request for review of

$21.56 Judicial review. an initial decision made by the adjudicative officer in a proceeding not If the applicant is dissatisfied with subject to CRRA review or a final deci the award determination in the final sion of the CRRA within 30 days after decision under $821.52-21.55, the applireceipt of a request for review.

cant may seek judicial review of that (f) The Secretary may decide on his determination under 5 U.S.C. 504(c)(2) own motion to review a decision made within 30 days after that determination under $21.54(a) within 60 days of the was made. initial decision by the adjudicative officer or a final decision of the CRRA.

(Authority: 5 U.S.C. 504(c)(2))

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