25 IAC 5-4-1 Revocation of an enterprise's certification as an MBE or a WBE

Sec. 1. (a) This section establishes standards for processing a complaint issued to a challenged enterprise concerning the possible revocation of its certification. (b) Requirements for ineligibility complaints are as follows: (1) Any person may file with the department a written complaint: (A) alleging that a currently certified enterprise is ineligible; and (B) specifying the alleged reasons why the enterprise is ineligible. The department is not required to accept a general allegation that an enterprise is ineligible or an anonymous complaint. The complaint may include any information or arguments supporting the complainant's assertion that the enterprise is ineligible and should not continue to be certified. (2) The department must review: (A) its records concerning the enterprise; (B) any material provided by the enterprise and the complainant; and (C) other relevant information. The department may request additional information from the enterprise or conduct any other investigation deemed necessary. (3) If the department determines, based on this review, that there is reasonable cause to believe that the enterprise is ineligible, the department must provide written notice to the enterprise that it proposes to find the enterprise ineligible, setting forth the reasons for the proposed determination. If the department determines that such reasonable cause does not exist, it must notify the complainant and the enterprise in writing of this determination and the reasons for it. All statements of reasons for findings on the issue of reasonable cause must specifically reference the evidence in the record on which each reason is based. (c) If, based on: (1) notification by the enterprise of a change in its circumstances; or (2) other information that comes to the attention of the department; there is reasonable cause to believe that a currently certified enterprise is ineligible, the department must provide written notice to the enterprise that it proposes to find the enterprise ineligible, setting forth the reasons for the proposed determination. The statement of reasons for the finding of reasonable cause must specifically reference the evidence in the record on which each reason is based. (d) Requirements for complaints from other state agencies are as follows: (1) If a state agency determines that information in an enterprise's records, or other information available to that agency, provides reasonable cause to believe that a certified enterprise does not meet the eligibility criteria of this subsection, the state agency may request that the department undertake a review of the enterprise's certification. (2) The state agency must provide the department all relevant documentation or other information. (e) The department may issue an order requiring an enterprise to show cause why its certification as an MBE or a WBE should not be revoked as provided in subsection (a), (b), or (c). In such case, the enterprise shall be entitled to a hearing as set forth in section 2 of this rule. (f) The department may base a decision to revoke certification only on one (1) or more of the following: (1) Changes in the enterprise's circumstances since the certification of the enterprise by the department that render the enterprise unable to meet the eligibility standards of this rule. (2) Information or evidence not available to the department at the time the enterprise was certified. (3) Information that was concealed or misrepresented by the enterprise in previous certification actions by the department. (4) A change in the certification standards or requirements since the enterprise was certified. (5) A documented finding that the department's initial determination to certify the enterprise was clearly erroneous. (g) During the pendency of a proceeding to determine if an enterprise's WBE or MBE should be revoked or suspended, the enterprise shall retain its status until a final order revoking certification is issued by the commission. (h) When an enterprise's certification as an MBE or a WBE has been revoked and is no longer subject to judicial review, the department will take the following action relative to prime contractors who have relied in good faith upon the certification of the disqualified entity: (1) When a prime contractor has made a commitment to use the disqualified enterprise, or there has been a commitment to use the enterprise as a prime contractor, but a subcontract or contract has not been executed before the order to show cause provided for in subsection (e) has been issued, the ineligible enterprise does not count toward the contract goal or overall goal. The prime contractor is to: (A) meet the contract goal with an eligible enterprise; or (B) demonstrate that it has made a good faith effort to do so. (2) If a prime contractor has executed a subcontract with the enterprise before the department has issued a notice to show cause, the prime contractor may continue to: (A) use the enterprise on the contract; and (B) receive credit toward its goal for the enterprise's work. In this case, or in a case where a prime contract has been awarded to an enterprise that is subsequently decertified, the portion of the decertified enterprise's performance of the contract remaining after the notice of its ineligibility shall not count toward the overall goal but may count toward the contract goal.