Current through Register Vol. 56, No. 18, September 16, 2024
(a) A third-party
may challenge the qualifications of an applicant, or a certified entity,
pursuant to this chapter for eligibility to be certified as an LGBTQ+ business
and be included in the SAVI database.
(b) A third-party finding cause to challenge
a business' certification as an LGBTQ+ business shall submit an appeal to the
Director, or designated hearing officer, setting forth, in detail, the grounds
for such challenge in a written statement with copies to the challenged
business and to the appropriate contracting agency, if a specific contract is
at issue. The challenge shall contain the specific grounds for challenging the
certification, including all arguments, materials, and/or other documentation
that may support the challenger's position. A challenge pursuant to this
subsection is limited to the authenticity of a business pursuant to this
chapter to be certified as an LGBTQ+ business. The right to challenge a
currently certified LGBTQ+ business is, in addition to, and independent of, any
protest hearing rights that are afforded by any State contracting
agency.
(c) When the Division, or
designated hearing officer, receives a challenge, the Division shall notify the
affected business in writing.
(d)
Upon proper notice, the Division or designated hearing officer shall conduct a
hearing on the matter as follows:
1. The
business must request the hearing within 10 days after receipt of notice that
the business' certification is subject to a challenge;
2. The Director, or designated hearing
officer, has sole discretion to determine if an in-person presentation is
necessary to reach an informed decision on the matter(s) of the appeal.
In-person presentations are fact-finding for the benefit of the Director, or
designated hearing officer. The Director, or designated hearing officer, has
the discretion to limit attendance at an in-person presentation to those
parties likely to be affected by the outcome of the proceeding. The Director,
or designated hearing officer, shall notify all interested parties of the time
and place of the hearing, and of the right to attend and be represented at the
hearing;
3. The Director, or
designated hearing officer, shall resolve any challenge received by written
decision based on the Director's, or designated hearing officer's, review of
the written record including, but not limited to, the business's application,
the written appeal, pertinent administrative rules, statutes, and case law, and
any associated documentation deemed appropriate. In cases where no in-person
presentation is held, such review of the written record shall, in and of
itself, constitute an informal hearing. The burden of proof lies with the
third-party challenger. However, the Director, or designated hearing officer,
may use his or her own resources to ascertain the viability of a challenge and
the status of a business;
4. The
determination issued by the Director, or designated hearing officer, shall be a
final agency decision, which shall be appealable to the Appellate Division of
the Superior Court;
5. The
Director, or designated hearing officer, is entitled to request, receive, and
review copies of any and all records and documents deemed appropriate and
relevant to the issues and arguments set forth in the challenge. Upon receipt
of the Director's, or designated hearing officer's request, the business shall
promptly provide the requested records or information. The Director, or
designated hearing officer, may also consider relevant information requested
and received from other parties deemed appropriate; and
6. An applicant who receives a decision from
the Director, or designated hearing officer, that the certification has been
revoked may reapply for certification one year after the date of
revocation.
