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 decision within 30 days of the completion of the proceedings on the application. The adjudicative officer shall con (i) Explain any objections to the award requested; and (ii) Identify the facts relied on in support of the position of the Department. (2) If the answer is based on any alleged facts not in the record of the adversary adjudication, the Department's counsel shall include with the answer either (i) Supporting affidavits; or (ii) A request for further proceedings under §21.44. (c)(1) If the Department's counsel and the applicant believe that the issues in the application can be settled, they may jointly file a statement of their intent to negotiate a settlement. (2)(i) The filing of a statement of an intent to negotiate extends the time for filing an answer for 30 days. (ii) The adjudicative officer shall grant further extensions if the Department's counsel and the applicant jointly request those extensions. (Authority: 5 U.S.C. 504(c)(1)) $21.42 Reply. (a) Within 15 days after receiving an answer, an applicant may file a reply. (b) If the applicant's reply is based on any alleged facts not in the record of the adversary adjudication, the applicant shall include with the reply either (1) Supporting affidavits; or (2) A request for further proceedings under § 21.44. (Authority: 5 U.S.C. 504(c)(1)) § 21.43 Comments by other parties. (a) Any party to a proceeding, other than an applicant or the Department's counsel, may file comments on (1) The application within 30 days after the applicant files the application; (2) The answer within 30 days after the counsel files the answer; or (3) Both, if the comments are filed within the time period specified in paragraphs (a)(1) and (a)(2) of this section. (b) The commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that further participation is necessary to permit full exploration of matters raised in the comments. (Authority: 5 U.S.C. 504(c)(1)) $21.44 Further proceedings. (a) The adjudicative officer shall make the determination of an award on the basis of the written record. (b)(1) However, the adjudicative officer may order further proceedings on his or her own initiative or at the request of the applicant or the Department's counsel. (2) The adjudicative officer may order further proceedings only if he or she determines that those proceedings are necessary for full and fair resolution of issues arising from the application. (3) If further proceedings are ordered, the adjudicative officer shall determine the scope of those proceedings, which may include such proceedings as informal conferences, oral arguments, additional written submissions, discovery, or an evidentiary hearing. (4) An adjudicative officer may not order discovery or an evidentiary hearing for the issue of whether or not the Department's position was substantially justified. (c) If the applicant or the Department's counsel requests the adjudicative officer to order further proceedings, 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)) 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 wit nesses. (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 (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)) § 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. 157-133 0-06 3 (2) A statement of the amount awarded, including an explanation-with supporting information-for any difference between the amount requested by the applicant and the amount awarded. (3) A statement of the applicant's right to request review by the Secretary under § 21.54. (4) A statement of the applicant's right under §21.56 to seek judicial review of the final award determination. (c) The explanation referred to in paragraph (b)(2) of this section may include (1) Whether the amount requested was reasonable; and (2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication. (Authority: 5 U.S.C. 504 (a)(3) and (c)) § 21.52 Initial decision by an adjudicative officer in applications subject to CRRA jurisdiction. (a) If the application is subject to the jurisdiction of the CRRA, the adjudicative officer shall issue the initial decision within 30 days after completion of the proceedings. (b) The initial decision must include the information required under §21.51(b). However, instead of the information required under §21.51(b)(3), the initial decision must inform the applicant of (1) Its right to request review by the CRRA; and (2) Its right to request review by the Secretary of the CRRA's final decision. (c) If the applicant or the Department's counsel appeals the adjudicative officer's initial decision, the appeal must be submitted to the CRRA, in writing, within 30 days after the initial decision is issued. (d) If the applicant or the Department's counsel does not appeal the adjudicative officer's initial decision to the CRRA and the Secretary does not decide to review the initial decision under §21.54(a), the initial decision becomes the Department's final decision 60 days after it is issued by the officer. (Authority: 5 U.S.C. 504(b)(1)(C); 20 U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.) § 21.53 Final decision of the CRRA. (a) In an application subject to the jurisdiction of the CRRA, the CRRA shall, within 30 days after receipt of the written appeal (1) Issue a final decision on the appeal of the adjudicative officer's initial decision; or (2) Remand the application to the adjudicative officer for further proceedings. (b) The CRRA shall review the initial decision on the basis of the written record of the proceedings on the application. This includes but is not limited to (1) The written request; and (2) The adjudicative officer's findings as described in §21.51(b). (c) The CRRA shall act on the review by either (1) Issuing a final decision on the application; or (2) Remanding the application to the adjudicative officer for further proceedings. (d) If the CRRA issues a final decision, the CRRA's decision must include (1) Written findings, including 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) 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 awarded, including an explanation-with supporting information-for any difference between the amount requested by the applicant and the amount awarded. (3) A statement of the applicant's right to request review by the Secretary under § 21.54. (4) A statement of the applicant's right under §21.56 to seek judicial review of the final award determination. (e) The explanation referred to in paragraph (d)(2) of this section may include (1) Whether the amount requested was reasonable; and (2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication. (Authority: 5 U.S.C. 301, 557 (b) and (c); 20 U.S.C. 1681 and 3401 et seq.; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et seq. and 6101 et seq.) § 21.54 Review by the Secretary. (a) The Secretary may decide to review (1) An initial decision made by an adjudicative officer in a proceeding not subject to CRRA review; (2) An initial decision made by an adjudicative officer in a proceeding subject to CRRA review that was not appealed to the CRRA; or (3) A final decision made by the CRRA under § 21.53. (b)(1) The Secretary does not review a final decision made by an adjudicative officer of the General Services Administration Board of Contract Appeals. (2) The Secretary or a party to the proceedings may seek reconsideration of the final decision by an adjudicative officer of the General Services Administration Board of Contract Appeals on the fee application in accordance with 48 CFR 6101.32. (c) The Secretary decides to review a decision under §21.54(a) either— (1) Upon receipt of a written request for review by an applicant or Department's counsel; or (2) Upon the Secretary's own motion. (d) If the applicant or the Department's counsel seeks a review, the request must be submitted to the Secretary, in writing, within 30 days of— (1) An initial decision in a proceeding not subject to CRRA review; or (2) A final decision of the CRRA. (e) The Secretary decides whether to accept or reject a request for review of an initial decision made by the adjudicative officer in a proceeding not subject to CRRA review or a final decision of the CRRA within 30 days after receipt of a request for review. (f) The Secretary may decide on his own motion to review a decision made under $21.54(a) within 60 days of the initial decision by the adjudicative officer or a final decision of the CRRA. (g) If the Secretary decides to review the adjudicative officer's initial decision or the CRRA's final decision (1) The Secretary reviews the adjudicative officer's initial decision or the CRRA's final decision on the basis of the written record of the proceedings on the application. This includes, but is not restricted to (i) The written request for review; (ii) The adjudicative officer's findings as described in §21.51(b); and (iii) If applicable, the final decision of the CRRA, if any; and (2) The Secretary either- (ii) Remands the application to the adjudicative officer or the CRRA for further proceedings. (h) If the Secretary issues a final decision, the Secretary's decision |