Current through Register Vol. 35, No. 6, March 26, 2024
A.
With the exception of compliance determinations under 20.5.123.2303 through
20.5.123.2305 NMAC, an owner, operator or contractor aggrieved by a decision
made by the department under 20.5 NMAC may obtain review of the decision using
the procedures and subject to the limitations set forth in 20.5.125
NMAC.
B. An offeror aggrieved by a
selection decision made by the department and the owner or operator pursuant to
20.5.123.2306 through 20.5.123.2307 NMAC may obtain review of the decision from
the secretary by submitting a written request for hearing.
(1) Timelines. The request must be made in
writing to the secretary by the offeror within 10 days after the department has
notified the owner or operator and all submitting firms of the highest scoring
proposal. If an appeal is received within the 10-day time limit, the secretary
shall hold a hearing within 15 days after receipt of the request, unless the
parties agree to an alternate timeframe. The secretary shall notify the person
who requested the hearing of the date, time and place of the hearing by
certified mail.
(2) Burden of
proof. In the appeal hearing, the burden of proof is on the person who
requested the hearing.
(3)
Procedures.
(a) Appeal hearings shall be held
at a place designated by the secretary, unless other mutually agreed upon
arrangements are made. The secretary may designate a person to conduct the
hearing and make a final decision or make recommendations for a final decision.
The secretary's hearing notice shall indicate who will conduct the hearing and
make the final decision.
(b) The
department shall make an audio recording of the hearing. If either party wants
the hearing transcribed, that party shall bear the costs of
transcription.
(c) In appeal
hearings, the rules governing civil procedure and evidence in district court
shall not apply. Hearings shall be conducted so that all relevant views,
arguments, and testimony are amply and fairly presented without undue
repetition. The secretary shall allow department staff and the hearing
requestor to call and examine witnesses, to submit written and oral evidence
and arguments, to introduce exhibits, and to cross-examine persons who testify.
All testimony shall be taken under oath. At the end of the hearing, the
secretary shall decide and announce if the hearing record will remain open, for
how long, and for what reason(s) it will be left open.
(4) Secretary's decision. Based upon the
evidence presented at the hearing, the secretary or designee shall sustain,
modify, or reverse the action of the department. The secretary or designee's
decision shall be by written final order within five business days following
the close of the hearing record. The order shall include the reason(s) on which
the decision is based, and shall be sent by certified mail to the hearing
requestor and any other affected person who requests notice.
(5) Stay of action. The filing of an
administrative appeal shall stay execution of the contract by the owner or
operator until the secretary or designee issues a final order on the
appeal.
(6) Judicial review.
Judicial review of the secretary or designee's final order shall be as provided
by law. The filing of a judicial appeal shall not stay the execution of the
contract, corrective action, compliance with the regulations, or any other
action required by the secretary.
C. An individual denied designation by the
department as a representative pursuant to 20.5.123.2311 NMAC may obtain review
of the department's decision using the procedures and subject to the
limitations set forth in 20.5.125 NMAC.
D. Compliance determinations shall be
appealed as provided in 20.5.123.2321 and 20.5.123.2322 NMAC.
