Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Initiation of an appeal. Upon denial of an application to certify a business
enterprise as a minority or women-owned business enterprise, pursuant to
Section
144.3
of Part 144 of this Title, or the issuance of a notification of intent to
revoke certification as a minority-or women-owned business enterprise pursuant
to Section
144.4(b)
of Part 144 of this Title, such business enterprise may request an appeal
pursuant to the provisions of this subdivision.
(1) Request for an appeal. Upon receipt of a
notice of determination to deny an application to certify a business enterprise
as a minority or women-owned business enterprise, pursuant to Section
144.3(e)
or
144.4(b)
of Part 144 of this Title, such business enterprise may submit a request for an
appeal to be presided over by an independent hearing officer.
(i) Deadline for request for an appeal. A
request for an appeal shall be made within thirty (30) days from the date of
receipt of a notice of determination to deny an application or notification of
intent to revoke certification. Failure by a business enterprise to request an
appeal within thirty (30) days of the date of a notice of determination to deny
an application or notification of intent to revoke certification shall
constitute a forfeiture by such business enterprise of its right to request an
appeal. In the case of an applicant's failure to timely appeal a determination
to deny an application, such business enterprise will be barred from reapplying
for certification for a period of two (2) years, or in such instance where a
business enterprise was denied recertification, such business enterprise will
also be removed from the directory.
(ii) Contents of a request for an appeal. A
request for an appeal shall be made in writing and shall identify whether the
business enterprise elects either to be heard at an in-person hearing before an
independent hearing officer or to submit a written appeal submission to an
independent hearing officer. Once the request for appeal has been submitted,
the business enterprise may not change its election.
(2) Notice of hearing or written appeal. Upon
receipt of a timely request for an appeal, the division shall appoint an
independent hearing officer and provide the business enterprise requesting the
appeal with a notice of hearing or a notice of written appeal.
(i) Appointment of the independent hearing
officer. The director shall appoint any impartial person to serve as an
independent hearing officer. If, at any time, the director learns that an
individual appointed to serve as an independent hearing officer would
experience a conflict of interest in serving as an independent hearing officer,
or that such individual's service as an independent hearing officer would give
rise to an appearance of impropriety, the director shall remove the independent
hearing officer and appoint a replacement independent hearing
officer.
(ii) Contents of notice of
hearing. A notice of hearing shall be in writing, and shall contain the
following information:
1. The time and
location of the hearing;
2. The
identity of the hearing officer who shall preside over the hearing, to the
extent known;
3. The legal
authority for the hearing;
4. The
certification criteria at issue;
5.
The identity of the individual who shall represent the division in the hearing,
to the extent known;
6. A statement
that interpreter services shall be made available to deaf persons;
and
7. The procedure to request an
adjournment of the hearing.
(iii) Contents of notice of written appeal. A
notice of written appeal shall be in writing, and shall contain the following
information:
1. The deadline by which the
business enterprise must submit its complete written appeal, and any exhibits
thereto is sixty (60) days from the date of its receipt of written notice of
determination to deny its application for certification or notification of
intent to revoke certification;
2.
The identity of the hearing officer who shall adjudicate the written appeal, to
the extent known;
3. The legal
authority for the conduct of the written appeal;
4. The certification criteria at
issue;
5. The identity of the
individual who shall submit a response to the written appeal of the business
enterprise on behalf of the division, to the extent known; and
6. The procedure to request an extension for
the submission of a written appeal.
(3) Request for an adjournment of a hearing
or extension for submission of a written appeal. A business enterprise may
request an adjournment of a hearing, or an extension to submit a written
appeal, pursuant to the provisions of this paragraph.
(i) Request for an adjournment of a hearing.
A request for an adjournment of a hearing must be made to the independent
hearing officer identified in the notice of hearing at least seven (7) business
days prior to the scheduled date of the hearing and must state the reason for
the request. Upon a showing of good cause, the independent hearing officer may,
at his or her discretion, grant a timely request for an adjournment of a
hearing.
(ii) Request for an
extension for the submission of a written appeal. A request for an extension
for the submission of a written appeal must be made to the independent hearing
officer identified in the notice of written appeal at least seven (7) business
days prior to the date by which the business enterprise must submit its
complete written appeal and must state the reason for the request. Upon a
showing of good cause, the independent hearing officer may, at his or her
discretion, grant a timely request for an extension to submit a written
appeal.
(4) Requests to
withdraw an appeal. The hearing officer will consider a request for an appeal
to be withdrawn under the following circumstances:
(i) The hearing officer has received a
written or verbal statement from the petitioner, or the petitioner's attorney;
stating that the request for a hearing be withdrawn.
(b) Conduct of the appeal. The
independent hearing officer shall, subject to the provisions of this paragraph,
conduct the appeal in such order and manner as he or she deems appropriate. In
the case of an appeal of a determination to deny certification, the burden of
proof shall rest with the applicant.
(1)
Conduct of a hearing. All parties shall be given the opportunity to present
evidence and oral argument, provided, however, the evidence presented shall be
limited to such relevant documentation that, in the case of denial, was before
the division at the time of the denial determination, and in the case of intent
to revoke, was before the division at the time of notification of intent to
revoke; and the independent hearing officer may exclude irrelevant or unduly
repetitious evidence from the appeal record.
(i) Recording of the proceedings. The
division shall record the proceedings via an electronic recording
device.
(ii) Entering testimony
into the appeal record. All testimony received into the appeal record shall be
under oath or affirmation.
(iii)
Rules of technical evidence and procedure. The independent hearing officer
shall not be bound by the technical rules of evidence and procedure.
(iv) Representation. All parties may appear
at the hearing with legal counsel.
(v) Witnesses. All parties shall have the
right to call witnesses and to examine and cross-examine other parties and
their witnesses.
(2)
Conduct of a written appeal. All parties shall be accorded full opportunity to
present evidence and written arguments, provided, however, that the independent
hearing officer may exclude irrelevant or unduly repetitious evidence from the
appeal record. Relevant evidence shall be limited to the documents and
information that was before the division at the time of denial or time of
notification of intent to revoke.
(3) Requests for limited discovery. Limited
document discovery shall be permitted to a petitioner in any proceeding before
a hearing officer. Depositions, interrogatories and other disclosure devices
are not permitted.
(i) The documents to be
discovered shall be limited to those which, as of the date of the discovery
request, the division has in its possession and which were before the division
at the time of denial or at the time of intent to revoke.
(ii) A request for limited discovery of
documents shall be made in writing to the individual representing the division
in the proceeding, as set forth in the notice of hearing or notice of written
appeal, with a copy sent to the hearing officer designated to conduct the
appeal, at least twenty-one (21) days prior to the date of the hearing or the
date by which the written appeal must be submitted.
(iii) The request shall set forth the
specific documents being requested.
(iv) Requested documents which are properly
discoverable shall be provided to the requesting party, if applicable, within
twenty-one (21) days after the receipt of the written request, unless due to
the volume of documents being requested, the copying of such documents cannot
reasonably be completed within such period.
(v) Where the documents cannot be provided
within twenty-one (21) days, written notice of such shall be given to the
requesting party, with a copy to be sent to the hearing officer designated to
conduct the appeal. Such notice shall state when the requested documents are
expected to be provided and the reason(s) for the time to produce.
(4) Closing of the appeal record.
The independent hearing officer shall close the appeal record at his or her
discretion and may request additional information of the parties based upon the
proceedings of a hearing or written appeal. Such additional information shall
be limited to information that was before the division at the time of denial or
at the time of intent to revoke.
(5) Standard of review. In the case of an
appeal pursuant to Section
144.3(e)
of Part 144 of this Title, the independent hearing officer shall, based upon
the information contained in the appeal record, determine whether the
division's determination to deny an application by a business enterprise to be
certified as a minority or women-owned business enterprise was supported by
substantial evidence. In the case of an appeal pursuant to Section
144.4(b)
of Part 144 of this Title, the independent hearing officer shall, based upon
the information contained in the appeal record, determine whether the
division's intent to revoke the certification of a business enterprise as a
minority or women-owned business enterprise is supported by the preponderance
of the evidence.
(6) Findings of
the independent hearing officer. The independent hearing officer shall render a
recommended order and serve a copy of such recommended order to the parties by
personal service, electronic mail, or certified mail, return receipt requested,
within sixty (60) days of the date upon which the appeal record was
closed.
(7) Final Order. The
director shall, within thirty (30) days of receipt of a recommended order from
an independent hearing officer, render a final order. Such final order may
accept, reject, or modify the findings of the independent hearing officer, and
must also provide the reasoning for such final determination. The director
shall provide a copy of the final order to the business enterprise that is the
subject of the final order via personal service, electronic mail, or certified
mail, return receipt requested.
(c) In the absence, disability, or
disqualification of a hearing officer or for other good cause, a hearing may be
transferred to another hearing officer.