Current through Register Vol. 18, September 20, 2024
(1) If the department receives or learns of
credible information that a person has engaged in conduct which may warrant
debarment, the department shall initiate and follow the following
procedure.
(2) The administrator of
the division concerned with the alleged conduct or contract will obtain any
information that may be readily obtained on the alleged conduct. If the
administrator, deputy director, or department's legal counsel initially
determines that there exists credible evidence that the person has committed a
violation set forth above, they shall notify the director in writing of the
known information supporting or rebutting such a determination.
(3) If the director, in his discretion,
agrees that, from the information available, credible evidence exists that the
person has committed a violation set forth above, the director shall mail,
certified return receipt requested, a written notice to the person. The notice
shall contain a statement of the pertinent facts, the alleged violations being
considered, notice of the right to an administrative hearing, and that
debarment is being considered. If debarment is proposed based on a debarment by
another state or federal agency, a copy of that debarment or its notice letter
will be attached.
(4) A person
against which debarment is proposed shall be provided an opportunity for
administrative hearing. A written request for hearing must be received by the
department's chief counsel within 14 calendar days after the date of the
mailing of the notice of the determination.
(a) Failure to timely submit a written
request constitutes a waiver of the opportunity for administrative hearing and
appeal, and a final debarment decision by default may then be entered by the
director, which is not subject to appeal.
(b) Default orders will use the procedure
stated in Model Rule 10, ARM
1.3.214.
(5) The person against whom debarment is
being considered has the right to be accompanied, represented and advised by
counsel, and to appear in person or by or with counsel. Counsel will not be
provided by or at the expense of the department.
(6) Service of notice and later documents for
the hearing will be complete and effective when made upon a person, or his
counsel, if he has counsel.
(7)
Upon timely receipt of a written request for an administrative hearing, the
director shall appoint a hearing examiner. A written notice appointing the
hearing examiner shall be issued by the director, and sent to the person
requesting the hearing.
(8) The
proceedings may be handled informally using the procedures stated in model Rule
11, ARM 1.3.215.
(9) A notice of hearing shall be sent by the
hearing examiner to the person requesting the administrative hearing. The
notice shall include:
(a) A statement of the
date, time, and location of the hearing;
(b) A reference to the provisions of the
violation(s) involved;
(c) A short,
understandable statement of the matters asserted; and
(d) A statement advising the party of its
right to be represented by legal counsel at the hearing.
(10) The hearing examiner shall not engage in
communications prohibited by
2-4-613, MCA.
(11) For administrative hearings:
(a) The department shall record any
administrative hearing conducted and maintain an administrative record of the
proceedings. The administrative record shall include:
(i) the initial determination of the
administrator;
(ii) the written
request for administrative hearing;
(iii) the appointment of the hearing
examiner;
(iv) the notice of
administrative hearing;
(v) the
evidence offered to, or considered by, the hearing examiner;
(vi) any objections and rulings
thereon;
(vii) all matters placed
on the record at the administrative hearing;
(viii) all briefs or memoranda submitted by
the parties; and
(ix) any
transcript made of the proceedings.
(b) The hearing examiner presiding over the
hearing shall have the powers and duties stated in
2-4-611(3),
MCA.
(c) Discovery will be
available to the parties in accordance with Rules 26, 28 through 37 (except
Rule 37(b) (1) and 37(b) (2) (d)) of the Montana Rules of Civil Procedure in
effect as of the date of the adoption of these rules. Provided that: all
references in the Montana Rules of Civil Procedure to a "court" are considered
to refer to the department; all references to the use of subpoena power are
considered to refer to the power in these rules; references to "trial" are
considered to refer to the hearing; all references to "plaintiff" are
considered to refer to a "party"; all references to "clerk of court" are
considered to refer to the department person designated by the director to keep
documents filed in the case.
(i) If a party
or other witness refuses to be sworn or refuses to answer any question after
being directed to do so by the department, the refusal to obey the department's
order shall be enforced as provided in these rules.
(ii) If a party seeking discovery from the
department believes he has been prejudiced by a protective order issued by the
department under Rule 26(c), Montana Rules of Civil Procedure, or, if the
department refuses to make discovery, the party may petition the District
Court, First Judicial District for the County of Lewis and Clark, for review of
the intermediate agency action under
2-4-701, MCA.
(d) The department and the hearing examiner
shall have the same authority, powers, and responsibilities for issuing and
enforcing subpoenas and subpoena duces tecum as stated in Model Rule 25, ARM
1.3.230.
(e) The usual order of presentation at a
hearing shall be:
(i) Argument and the
submission of evidence and testimony on behalf of the department;
(ii) Argument and the submission of evidence
and testimony from the party requesting the hearing; and
(iii) The introduction of rebuttal evidence
and testimony by the department.
(f) The hearing may be continued with
recesses as determined by the hearing examiner.
(g) Evidence introduced at the hearing may be
received in written form or oral testimony given under oath or affirmation.
Parties have a right to cross-examine all persons testifying at a hearing.
(i) The hearing examiner may consider hearsay
evidence for the purpose of supplementing or explaining other evidence. A
decision should not ordinarily be based wholly upon hearsay evidence, however,
circumstances in some cases may require it (i.e., debarment based on a prior
debarment in another jurisdiction), at the discretion of the hearing
examiner.
(ii) Judicially noticed
facts are not hearsay.
(iii)
Fraudulent, criminal or other seriously improper conduct of any individual
(officer, director, shareholder, partner, employee, or other individual
associated with a person) may be imputed to the person when the conduct
occurred in connection with the individual's performance of duties for or on
behalf of the person, or with the person's knowledge, approval, or
acquiescence. The person's acceptance of the benefits derived from the conduct
will be evidence of such knowledge, approval or acquiescence.
(iv) The department's experience, technical
competence, and specialized knowledge may be utilized in the evaluation of
evidence.
(v) Exhibits shall be
marked and the markings shall identify the party offering the exhibit. Exhibits
shall be preserved by the department as part of the administrative
record.
(h) Objections
to offers of evidence must be made at the time of the offer and shall be noted
in the administrative record. A hearing examiner may rule on evidentiary
objections at the time of the hearing, after receipt of oral or written
argument by the parties, or at the time of entry of the proposed
decision.
(i) The person must
present all potential and available grounds to contest the debarment, and
failure to raise an issue before the hearing examiner will waive that issue's
consideration on any appeal or potential judicial review.
(j) The department's burden of proof for the
hearing will be a preponderance of the admissible evidence presented. That is
proof by information that, compared with that opposing it, leads to the
conclusion that the fact at issue is more probably true than not.
(k) After the hearing and any required
post-hearing briefs and submissions, the hearing examiner shall enter a
proposed decision, which shall be served on all parties by certified mail,
return receipt requested, to their designated agent. The proposed decision
shall contain findings of fact and conclusions of law supported by the
administrative record, and recommend a proposed action to the
director.
(12) The
director shall within 30 days review the proposed decision and enter the
department's final decision. The director may accept, reject or modify the
proposed decision. The director's final decision shall contain findings of fact
and conclusions of law, and shall be mailed to the parties by certified mail,
return receipt requested.
(13) The
sole method of appeal of the director's decision is as follows:
(a) The director's decision is final unless
appeal is made to the commission. An appeal may only be made if it is submitted
to the director in writing, and only if received by the director's office no
later than 10 calendar days after date of mailing of the final decision to the
designated agent of the appealing party. If delivery of the final decision is
refused or for any other reason not able to be delivered to the designated
agent (i.e., returned as undeliverable, addressee moved and left no forwarding
address, etc.), the decision will be final and the 10-day appeal period will
begin to toll on the date the certified letter is returned to the director's
office.
(b) Appeal of the
director's decision is to the commission, which shall review the administrative
record of the proceedings and its findings and conclusions only. The commission
will determine whether or not the findings and conclusions are supported by
that record. The commission may affirm, reject or modify the director's
decision. If the commission determines that the record does not support the
findings and conclusions, it may refer the matter back to the director for any
action the commission deems appropriate and directs.
(c) The commission's review will not be a de
novo hearing, nor will it receive written briefs from a party except on the
issue of whether or not the findings and conclusions are supported by the
administrative record. The commission will not hear oral argument or testimony,
or receive any evidence that was not presented in the hearing.
(d) A stenographic record of the oral
proceedings of the administrative hearing will be transcribed upon receipt of a
written request. The department may arrange for the record to be transcribed by
a business, rather than by the department, in which case the requester will be
responsible to make direct arrangements for payment with the firm. Otherwise,
the estimated cost of transcription and mailing must be paid by the requester
prior to transcription of the record. Any balance of payment due must be
received by the department prior to delivery, and any amount determined to be
excess shall be returned to the requester upon completion of the
transcript.
(e) All final decisions
and orders shall be available for public inspection on request. Copies of final
decisions and orders will be given to the public on request on payment of
reasonable costs.
(14)
The period of debarment will be commensurate with the seriousness of the
cause(s), and be for a specified term. While the term will usually not exceed
three years, if circumstances warrant, a longer period of debarment may be
imposed.
(a) The date(s) of the offenses for
which debarment is imposed are inapplicable to a debarment period and
participation in projects or contracts.
(b) Projects or contracts already awarded to
a person at the time it is debarred will not be affected, except as follows: A
bid may be rejected, or contract award rescinded, if a person submits the bid
or is awarded the contract after the date on which it was debarred by any
agency or in any jurisdiction.
(15) The procedures herein provided are
mandatory for anyone wishing to contest a debarment. Failure to properly
request a hearing, present all defenses, or to perfect an appeal will be a
failure to exhaust administrative remedies, and will absolutely waive the
protesting party's right to any judicial review that might otherwise be
available.
(16) Reinstatement of a
debarred person occurs automatically after the completion of the entire time
period of the debarment.
60-2-201 and
60-3-101, MCA; IMP,
60-2-111,
60-2-112, and
60-3-101,
MCA;
