Current through Register Vol. 48, No. 3, March 22, 2024
A.
Determination of reasonable cause to decertify. If the Department determines,
based on notification by the firm of a change in its circumstances or other
information that comes to its attention, that there is reasonable cause to
believe that a currently certified firm is ineligible, the Department will
provide written notice to the firm that it proposes to find the firm
ineligible, in accordance with Paragraph B below. The statement of reasons for
the finding of reasonable cause must specifically reference the evidence in the
record on which each reason is based.
B. Notice of Proposed Decertification. The
written Notice of Proposed Decertification shall contain the following:
1. The specific facts or conduct relied upon
to justify a finding that there is reasonable cause to remove the firm's
certification;
2. The statutory or
regulatory provisions which are alleged to have been violated;
3. A statement that the firm has the right to
request a hearing before the State Administrative Law Judge Division pursuant
S.C. Code Section
1-23-600
under contested case procedures;
4.
A statement that the Department will make a final finding of decertification
unless a request for hearing is filed within fifteen (15) days of the receipt
of the Notice.
C.
Request for Hearing. A firm making a request for hearing must do so in writing
and must file such request with the Department's Office of DBE Program
Development within fifteen (15) days of receipt of the Notice of Proposed
Decertification. The request shall include:
(1) The name and address of the firm making
the request;
(2) A statement that
the firm is requesting a hearing before the State Administrative Law Judge
Division;
(3) A reference to the
Notice of Proposed Decertification, the date thereof, and the specific grounds
upon which the action is being challenged.
D. Hearings.
(1) Procedures and burden of proof. All
hearings requested shall be conducted by the State Administrative Law Judge
Division ("ALJ Division") in accordance with the Rules of Procedure for that
Division and contested case procedures. In such hearings, the Department bears
the burden of proving, by a preponderance of the evidence, that the firm does
not meet the certification standards. Appeals from the decisions of the
Administrative Law Judge shall be in accordance with State law.
(2) Request to Submit Written Information and
Arguments Only. A firm may elect to present evidence and arguments to the
Administrative Law Judge in writing, without the necessity of a hearing. In
such a situation, the firm must file a statement with the Administrative Law
Judge assigned to the case that the firm wishes to present written evidence and
arguments and to waive its right to a contested case hearing.
E. Effect of Failure to Request a
Hearing. If the firm fails, within fifteen (15) days after receipt of the
Notice of Proposed Decertification, to file a Request for Hearing, the
Department may decertify or remove the eligibility of the firm based upon the
grounds set forth in the Notice of Proposed Decertification. A Notice of
Decertification shall be sent to the firm pursuant to Paragraph G
below.
F. Grounds for Decision. A
decision to decertify or remove eligibility may not be made based upon a
reinterpretation or changed opinion of information available to the Department
at the time of its certification of the firm. The decision to decertify or
remove eligibility may be made only on one or more of the following grounds:
(1) Changes in the firm's circumstances since
the certification of the firm that render the firm unable to meet the
eligibility standards;
(2)
Information or evidence not available to the Department at the time the firm
was certified;
(3) Information that
was concealed or misrepresented by the firm in previous certification actions
by a recipient;
(4) A change in the
certification standards or requirements since the firm was certified;
or
(5) A documented finding that
the Department's determination to certify the firm was factually
erroneous.
G. Notice of
Decertification.
(1) If heard by ALJ Division.
If the case is heard by the Administrative Law Judge Division, and the decision
is to decertify or remove the eligibility of the firm, the Department shall
send a Notice of Decertification to the firm.
(2) Contents of Notice. The Notice of
Decertification shall inform the firm of the consequences of the decision on
pending contracts and of the availability of an appeal to the United States
Department of Transportation under 49 CFRSection 26.89 or through State
procedures pursuant to Title 1, Chapter 23, Article 3 of the South Carolina
Code of Laws, 1976, as amended.
(3)
Copy to Complainant. When the proceedings to remove the eligibility of the firm
were initiated pursuant to Section
63-705
above, the Department will also send a copy of the Notice of Decertification to
the complainant.
H.
Status of firm during proceeding. A firm remains an eligible DBE during the
pendancy of the proceeding to remove its eligibility. The firm does not become
ineligible unless there is a notice issued as provided for in Paragraph G
above.
I. Effects of removal of
eligibility. When a firm's eligibility is removed, the effect on existing or
pending contracts shall be as provided in 49 CFR Section 26.87.
J. Availability of appeal. When the
Department issues a Notice of Decertification pursuant to this section, the
firm, where appropriate, may appeal the decision to the United States
Department of Transportation pursuant to 49 CFR Section 26.89 or through State
procedures pursuant to Title 1, Chapter 23, Article 3 of the South Carolina
Code of Laws, 1976, as amended.
