N.M. Admin. Code § 18.28.4.9

Current through Register Vol. 35, No. 20, October 22, 2024

Section 18.28.4.9 - PROCEDURE

A. Notice of Proposed Suspension or Debarment:

(1) The Secretary may issue a Notice of Proposed Suspension or Notice of Proposed Debarment to any bidder, offeror, or contractor.

(2) Such notice shall be in writing and sent to the bidder, offeror, or contractor at its last known address by certified mail and shall contain at a minimum the following information:

(a) That the Department is contemplating debarment or suspension of the named bidder, offeror or contractor;

(b) The reasons such action is being contemplated by the Department;

(c) The proposed duration for the suspension or debarment of the named bidder, offeror or contractor;

(d) That the bidder, offeror or contractor may request a hearing before the Secretary prior to a final determination by the Department on the proposed suspension or debarment;

(e) That such a request for hearing must be directed to the Secretary in writing within ten (10) days of receipt of the Notice of Proposed Suspension or Notice of Proposed Debarment;

(f) That if a request for hearing is not received by the Secretary within ten (10) days of receipt of the Notice by the bidder, offeror, or contractor, a period of suspension or debarment up to and including the period proposed in the Notice shall be made final and shall be imposed; and

(g) The specific effect such final determination will have on pending and future contracts and relations between the Department and the affected bidder, offeror or contractor.

B. Hearing:

(1) Any affected bidder, offeror, or contractor receiving a Notice of Proposed Suspension or Notice of Proposed Debarment may, within ten (10) days of receipt of the Notice, request in writing a hearing before the Secretary on the proposed suspension or debarment. Such written request must be directed to the Secretary.

(2) The Secretary shall schedule the date, time and place of a hearing and furnish this information to the affected bidder, offeror or contractor in a written Notice of Hearing.

(3) The Secretary shall arrange for a court reporter to transcribe the proceedings at the hearing. The Department shall bear the cost of the appearance of such court reporter; however, any party requesting a transcript of the proceedings from the court reporter shall bear the cost thereof.

(4) At the hearing, the affected bidder, offeror or contractor may be represented by counsel, may speak on its own behalf and may present witnesses and offer evidence. Neither the technical rules of evidence, nor the requirements of the Administrative Procedures Act, NMSA 1978, Section 12-8-1 et seq., shall apply. The affected bidder, offeror, or contractor at the hearing shall have the opportunity to confront witnesses and rebut documentation relied upon by the Department as supporting the proposed suspension or debarment. Counsel for the Department may likewise present witnesses, offer evidence, confront witnesses, and rebut documentation offered by the affected bidder, offeror or contractor.

(5) If the affected bidder, offeror or contractor does not request a hearing within the time limits set forth herein, it shall be deemed to have waived the opportunity for a hearing, and a Final Determination of Debarment or Suspension shall be issued in conformance with the requirements of this rule.

C. Final Determination on Suspension or Debarment:

(1) No bidder, offeror or contractor shall be debarred except by means of a written Final Determination of Suspension or Final Determination of Debarment issued by the Secretary.

(2) The Final Determination shall:

(a) State the reasons for the action taken;

(b) If adverse to the bidder, offeror or contractor, inform the debarred or suspended bidder, offeror or contractor of its rights to judicial review pursuant to NMSA 1978, Sections 13-1-179 and 13-1-183, of the Procurement Code; and

(c) State, with specificity, how pending or future contracts with the bidder, offeror or contractor shall be treated.

(3) Upon rendering the Final Determination the Secretary shall mail a copy of the Final Determination to the affected bidder, offeror or contractor.

(4) The Final Determination issued by the Secretary constitutes final agency action, and there shall be no right to further appeal to the State Highway Commission or to any other extra-judicial administrative authority by a debarred or suspended bidder, offeror or contractor.

N.M. Admin. Code § 18.28.4.9

Recompiled 11/16/01