N.J. Admin. Code § 17:46-1.9

Current through Register Vol. 56, No. 9, May 6, 2024

Section 17:46-1.9 - Procedure for challenges to a business certified as a minority and/or women's business

(a) A third-party may challenge the qualifications of an applicant or a certified entity under this chapter for eligibility to be certified as a minority or women's business and be included in the SAVI database.

(b) A third-party finding cause to challenge a business' certification as a minority and/or a women's business shall submit an appeal to the Director 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 under this subsection is limited to the authenticity of a business under this chapter to be certified as a minority or women's business. The right to challenge a currently certified minority business or women's business is, in addition to, and independent of, any protest hearing rights that are afforded by any State contracting agency.

(c) When the Division receives a challenge, upon the request of the minority and/or women's business whose certification is at issue, the Division shall notify the affected business in writing.

(d) Upon proper notice, the Division 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 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. The Director 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 Division 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 shall resolve any challenge received by written decision based on the Director's, or his or her designee'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 Division may use its own resources to ascertain the viability of a challenge and the status of a business;

4. The determination issued by the Director, or the Director's designee, shall be a final agency decision, which shall be appealable to the Appellate Division of the Superior Court;

5. The Director 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 request, the business shall promptly provide the requested records or information. The Director may also consider relevant information requested and received from other parties deemed appropriate; and

6. An applicant who receives a decision from the Division that the certification has been revoked may reapply for certification one year after the date of revocation.

N.J. Admin. Code § 17:46-1.9

Amended by 52 N.J.R. 2181(b), effective 12/21/2020