S.C. Code Regs. § § 63-706

Current through Register Vol. 48, No. 11, November 22, 2024

Section 63-706 - Procedures for Decertification

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.

S.C. Code Regs. § 63-706

Added by State Register Volume 16, Issue No. 6, eff June 26, 1992. Amended by State Register Volume 24, Issue No. 4, eff April 28, 2000.