Denial and Removal Procedure
I. Denial Procedures
Pursuant to 49 CFR Section 26.85, when the District denies a request by a firm that is not currently certified, the District will provide the firm a written explanation of the reasons for the denial, specifically referencing the evidence in the record that supports each reason for the denial. All documents and other information on which the denial is based will be made available to the applicant firm upon request. When a firm is denied certification, it is required to wait twelve (12) months before it may reapply for DBE certification with the District. The time period for reapplication begins to run on the date the explanation for denial of certification is received by the applicant firm.
When the District notifies a firm that its application for certification is denied, the applicant firm may appeal the decision directly to the U.S. Department of Transportation within 90 days of the date of the final decision at U.S. Department of Transportation, Office of Civil Rights, 400 Seventh Street, S.W. Room 2401, Washington D.C. 20590. The grounds of the appeal are limited to the issues raised in the denial letter, and any new information submitted must be specifically in support of the applicant firm’s appeal.
The applicant firm must submit a letter specifying the grounds of the appeal and include all available information relevant thereto. The grounds of the appeal are limited to the issues raised in the denial letter, and any new information submitted must be specifically in support of the applicant firm's appeal.
The OCR Manager, or his designated representative, or the outside independent hearing officer will consider all written submissions by the applicant firm, including but not limited to the certification application, the original denial letter, file memoranda prepared by OCR, the appeal letter and any other relevant documentation, except any organizational changes to applicant firm's business after the date of the certification application, including but not limited to changes in ownership and/or management. The OCR Manager, or his designated outside representative, or the outside independent hearing officer will also consider any written statements prepared by the applicant firm or by OCR staff.
A written decision by the OCR Manager, or his designated outside representative, or the outside independent hearing officer, setting forth the grounds and reasoning for the decision will be mailed to the applicant firm within 45 days of the submission of the appeal letter.
The decision by the OCR Manager, or his designated outside representative, or the outside independent hearing officer, will be final and no further appeals will be heard by the San Francisco Bay Area Rapid Transit District. The Applicant firm may appeal the decision of the OCR Manager, or his designated representative, or the outside independent hearing officer to the Office of the Secretary of Transportation, U.S. Department of Transportation, Office of Civil Rights, 400 Seventh Street, S.W., Room 2401, Washington D.C., 20590 within 90 days after receipt of the original denial letter.
Removal Procedures (Decertification)
1. Ineligibility Complaints. Any person may file with the District a written complaint alleging that a currently certified firm is ineligible and specifying the alleged reasons why the firm is ineligible. The District is not required to accept a general allegation that a firm is ineligible or an anonymous complaint. The complaint will include any information or arguments supporting the assertion that the firm is ineligible and should not continue to be certified. Confidentiality of complainants' identities will be protected. The District will review all records concerning the firm, any material provided by the firm and the complainant, and other available information. If the District determines based on this review that there is reasonable cause to believe the firm is ineligible, the District will provide written notice to the firm of its intention to find the firm ineligible with the reasons for the proposed determination. If the District determines such reasonable cause does not exist, the District will notify the complainant and the firm in writing of this determination and the reasons therefore. All statements of reasons for findings on the issue of reasonable cause will specifically reference the evidence in the records on which each reason is based.
2. District-Initiated Proceedings. Based on notification by the DBE firm of a change in its circumstances or other information that comes to the District, if the District determines there is reasonable cause to believe a currently certified firm is ineligible, the District will provide written notice to the firm of its intention to find a firm ineligible, setting forth the reasons for the proposed determination. The statement of reasons for the finding of reasonable cause will specifically reference the evidence in the record on which each reason is based.
3. U.S. DOT-Initiated Proceedings. If a U.S. DOT agency determines that information in the certification records or other information available provides reasonable cause to believe that a firm certified by the District does not meet eligibility criteria, the agency may direct the District to initiate a proceeding to remove the firm's certification. The agency must provide the District and the firm a notice setting forth reasons for the directive, including relevant documentation. The District will immediately commence and prosecute a proceeding to remove the eligibility of the firm.
4. Hearing. When the District notifies a firm that there is cause to remove its eligibility as provided above, the District will give the firm an opportunity for an informal hearing at which the firm may respond to the reasons for the proposal to remove eligibility in person and provide information and arguments concerning why it should remain certified. In such proceeding, the District bears the burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards. The District will maintain a complete verbatim record of the hearing. If there is an appeal to U.S. DOT, the District will provide a transcript of the hearing to U.S. DOT and, on request, to the firm. The District will retain the original record of the hearing. The DBE firm may elect to present information and arguments in writing without a hearing. In such event, the District bears the same burden of proving, by a preponderance of the evidence that the firm does not meet the certification standards.
5. Hearing Officer. All proceedings by the District to remove a firm's eligibility shall be made by an independent hearing officer selected in accordance with District procedures.
1. Grounds for Decision. The District will not base a decision to remove eligibility on a reinterpretation or changed opinion of information available to the District at the time of its certification of the firm. The District will base such decision only on one or more of the following: changes in the firm's circumstances since the certification, information or evidence not available at the time of certification, information that was concealed or misrepresented by the firm in previous certification actions, change in the certification standards or requirements of U.S. DOT since the firm was certified, or a documented finding that the District's determination to certify the firm was factually erroneous.
2. Notice of Decision. The District will provide the firm written notice of the decision and the reasons for it, including specific references to the evidence in the record that supports each reason for the decision. The notice will inform the firm of the consequences of the District's decision and of the availability of an appeal to U.S. DOT. The District will send copies of the notice to the complainant in an ineligibility complaint or to the concerned U.S. DOT agency that directed the District to initiate the proceeding.
3. Status of Firm During Proceeding. A firm remains an eligible DBE during the proceeding. The firm does not become ineligible until the issuance of the notice of decision provided for in Paragraph 7 above.
4. Effects of Removal of Eligibility. The District will take the following action upon removing a firm's eligibility:
a) When a prime contractor has made a commitment to use the ineligible firm, or the District has made a commitment to use a DBE prime contractor but a subcontract or contract has not been executed before issuance of the decertification notice, the ineligible firm does not count toward the contract goal or overall goal. The District will direct the prime contractor to meet the contract goal with an eligible DBE or to demonstrate that it has made good faith efforts to do so.
b) If a prime contractor has executed a subcontract with the firm before issuance of the decertification notice, the prime contractor may continue to use the firm on the contract and may continue to receive credit toward its DBE goal for the firm's work. When the District has let a prime contract to the DBE later ruled ineligible, the portion of the ineligible firm's performance of the contract remaining after issuance of the notice will not count toward the overall goal but may count toward the contract goal.
c) Exception. If the DBE's ineligibility is caused solely by its having exceeded the size standard during the performance of the contract, the District will continue to count its participation on that contract toward the overall and contract goals.
II. Process for Certification Appeals to U.S. Department of Transportation>
A firm which has been denied certification or whose eligibility is removed may make an administrative appeal to the U.S. Department of Transportation pursuant to 49 CFR Section 26.89. A complainant in an ineligibility complaint to the District may appeal to U.S. DOT if the District does not find reasonable cause to propose removing the firm's eligibility. Pending the U.S. DOT decision, the District's decision remains in effect. If a firm wants to file an appeal, it must send a letter to U.S. DOT within ninety (90) days of the date of the District's final decision, including information concerning why the District's decision should be reversed.
An appellant firm challenging certification denial or removal by the District must submit a letter with the name and address of any other U.S. DOT grantee that currently certifies the firm, of any other grantees that may have rejected an application for certification from the firm or removed the firm's eligibility within one year prior to the date of the appeal, or of any other grantee with which an application for certification or action to remove eligibility is pending.
An appellant in a third-party ineligibility complaint that appeals the District's decision to U.S. DOT will be requested by U.S. DOT to promptly provide all information requested. The District agrees to provide to U.S. DOT the complete administrative record within twenty (20) days of its request unless US DOT extends this time period. U.S. DOT will make its decision based solely on the entire administrative record without conducting a hearing. When the District provides information to U.S. DOT, the same information will be made available to the firm and to any third-party complainant involved, consistent with applicable law.
U.S. DOT will affirm the District's decision unless it determines, based on the entire administrative record, that the decision is not supported by substantial evidence or is inconsistent with the substantive or procedural provisions concerning certification. If U.S. DOT determines that the District's decision was unsupported, U.S. DOT will reverse the District's decision and will direct the District to certify the firm or to remove its eligibility. The District will take the action directed by U.S. DOT immediately upon receiving written notice. U.S. DOT is not required to reverse the District's decision if it determines a procedural error did not result in fundamental unfairness to the appellant or substantially prejudice the opportunity of the appellant to present its case. If it appears that the record is incomplete or unclear, U.S. DOT may remand the record to the District with instructions seeking clarification or augmentation of the record before making a finding.
U.S. DOT will not uphold the District's decision based on grounds not specified in the District's decision. U.S. DOT's decision will be based on the status and circumstances of the firm on the date of the decision which was appealed. U.S. DOT will provide written notice of its decision to the District, the firm, and the complainant in an ineligibility complaint. The notice will include the reasons for U.S. DOT's decision. It is U.S. DOT's policy to make a decision within one hundred eighty (180) days of receiving the complete administrative record. All decisions by U.S. DOT are administratively final and are not subject to petitions for reconsideration.
III. District Actions Following U.S. Department of Transportation Decision
Pursuant to 49 CFR Section 26.91, the decisions of U.S. DOT are binding on the District. Such decisions are not binding, however, on other U.S. DOT grantees. The District will take the following actions after U.S. DOT decisions:
1. If U.S. DOT determines that the District erroneously certified a firm, the District must remove the firm's eligibility on receipt of the determination without further proceedings.
2. If U.S. DOT determines that the District erroneously failed to find reasonable cause to remove the firm's eligibility, the District will expeditiously commence a proceeding to determine whether the firm's eligibility should be removed.
3. If U.S. DOT determines that the District erroneously declined to certify or remove eligibility of the firm, the District must certify the firm effective on the date of receipt of the written notice.
4. If U.S. DOT determines that the District erroneously determined that the presumption of social and economic disadvantaged either should or should not be deemed rebutted, the District must take appropriate corrective action as determined by U.S. DOT.
5. If U.S. DOT affirms the District's determination, no further action is necessary.
6. Where U.S. DOT has upheld the District's denial of certification or removal of eligibility of a firm, or directed the removal of a firm's eligibility, other grantees with whom the firm is certified may commence a proceeding to remove the firm's eligibility. If the District receives information on a U.S. DOT decision of DBE eligibility or ineligibility, the District will take the U.S. DOT action into account in any certification action involving the firm.