Suspension and Debarment Procedures

PURPOSE: This rule establishes the procedures for suspending or debarring a person and the procedures for obtaining reinstatement following the suspension or debarment. (1) The debarment and suspension process shall be conducted as informally as practicable, consistent with the fundamental principles of fairness, using the procedures outlined as follows: (A) When the commission subcommittee determines that grounds for suspension or debarment as described in 4 CSR 170-8.060 exist, the executive director shall notify the person by personal delivery or in writing by certified mail, return receipt requested, that suspension or debarment is under consideration. All such notices shall be sent via a traceable form of delivery service, such as Federal Express, UPS, certified mail, etc. Such notice shall provide the following information: 1. What action is being considered (i.e., suspension or debarment); 2. The basis upon which suspension or debarment is being considered; 3. The proposed scope of the suspension or debarment; 4. The proposed time period of the suspension or debarment; 5. Notice of the person’s right to request an informal hearing with the commission subcommittee, which request must be made in writing; and 6. The time period within which the written request for a hearing must be received by the commission subcommittee. The time period provided in the notice shall be thirty (30) calendar days from the date of receipt by the executive director; (B) If the person fails to respond to the notice within the time provided, the opportunity to exercise the rights provided in this section shall be deemed waived, and the executive director shall make the determination on whether to suspend or debar the person based on all the information germane to the issue and available to him. The person shall then be notified of the final decision in writing by certified mail, return receipt requested; (C) If the person provides a timely response to the notice and exercises its right to a hearing with the commission subcommittee, the commission subcommittee shall hold a hearing with the person within thirty (30) days of the date the request for a hearing is received. The deadline for conducting the hearing may be extended for an additional thirty (30) days upon written request of the commission subcommittee or of the person for whom suspension or debarment is being considered, provided that notice of the extension is provided to all parties; (D) The following guidelines and rules shall apply to a hearing held under this section: 1. The hearing shall not be considered a contested case; 2. The hearing shall be informal and no formal rules of evidence or procedure shall apply; 3. The person may be represented by counsel at the hearing and shall have the right to present evidence or arguments relevant to the grounds upon which the proposed suspension or debarment is based. If the person elects to be represented by counsel, the person shall notify the commission subcommittee of this intent at least five (5) days prior to the scheduled hearing; 4. The commission subcommittee, in reaching a decision, may consider information from any source which is relevant to the proposed suspension or debarment and shall consider all facts and circumstances upon which the proposed suspension or debarment is based, including, but not limited to: A. The nature of the acts involved; B. The duration of the person’s involvement in the acts; C. The extent of the damage caused to the state of Missouri and the commission by the person’s acts; D. Whether and to what extent the person subsequently cooperated with the appropriate authorities; E. The conditions under which the person cooperated; F. The degree to which the person made restitution; G. The time when the acts occurred and the conduct of the person since that time; and/or H. Where the proposed suspension or debarment is based on a conviction or civil judgment or upon debarment by another local, state, or federal agency, the record of the court or agency rendering the decision; 5. The chairperson of the commission subcommittee may limit the hearing in time and substance in a manner which is reasonable to the present matter; 6. All hearings under this section shall be transcribed; and 7. The person or anyone acting on the behalf of or under the control of the person shall be prohibited from ex parte communication with any member of the Missouri Development Commission Housing Development Commission (commission) or the commission subcommittee; (E) Within thirty (30) days of the date on which the hearing is held, the commission subcommittee shall issue a decision in writing to the person. 1. If the commission subcommittee determines that suspension or debarment is not warranted, the decision shall notify the person that they will not be suspended or debarred for the grounds on which the hearing was held. Further, if the person was suspended pending the outcome of the hearing, the decision shall state that the person’s suspension has been rescinded as of the date of the decision. 2. If the commission subcommittee determines that suspension or debarment is warranted, the decision shall notify the person of the following: A. Whether the person is suspended or debarred; B. The grounds upon which the suspension or debarment is being based; C. The scope and duration of the suspension or debarment; D. Any requirements the person must fulfill in order to be eligible to participate in programs and/or contracts administered by the commission following the termination of the suspension or debarment period; E. Notice of the person’s right to appeal the commission subcommittee’s decision to the commission; F. The time period within which a written appeal must be submitted to and received by the commission subcommittee and the commission. The time period for such appeal provided in the notice shall be thirty (30) days; and G. Whether or not the person may continue with any covered transaction already in progress; (F) If the person submits an appeal to the commission, a hearing for the appeal shall be held within sixty (60) days of the date upon which the request for an appeal hearing is received by the commission. The deadline for conducting the hearing may be extended for an additional thirty (30) days upon written request of the commission or of the person filing the appeal, provided that notice of the extension is provided to all parties; (G) The following guidelines and rules shall apply to an appeal hearing held by the commission: 1. The appeal hearing shall not be considered a contested case; 2. The hearing shall be informal and no formal rules of evidence or procedure shall apply; 3. The person may be represented by counsel at the hearing and shall have the right to present evidence or arguments relevant to the grounds upon which the decision to suspend or debar the person was based. If the person elects to be represented by counsel, the person shall notify the commission of this intent at least five (5) days prior to the scheduled hearing; 4. The chairperson of the commission may limit the hearing in time and substance in a manner which is reasonable to the present matter; 5. The commission, in reaching a decision, may only consider items in the record of the hearing held by the commission subcommittee; however, the commission may consider evidence that was not available at the initial hearing, but only if the person providing the additional evidence can show good cause for why it was not presented at the initial hearing. The commission shall uphold the commission subcommittee’s decision(s) unless it determines that the commission subcommittee’s decision was not based on competent and substantial evidence; (H) Within thirty (30) days of the date upon which the appeal hearing is held, the commission shall issue a decision in writing to the person. This decision shall be considered the final decision of the commission on the matter. However, the commission’s decision shall not be considered final if the commission finds appropriate grounds to remand the issue back to the commission subcommittee for further investigation and fact gathering. If the commission does remand the issue back to the commission subcommittee, the same procedures spelled out in this rule shall apply to all further proceedings with the commission subcommittee and/or commission until a final decision is reached; and (I) Any appeal of the final determination of the commission under subsections 4 CSR 170-8.140(1)(F)–(H) shall be rightfully appealed only to a court of competent jurisdiction in Jackson County, Missouri. (2) A person may be temporarily suspended pending the conclusion of all procedures set forth in section (1) of this rule. If a person is to be temporarily suspended, the initial notice described in subsection (1)(A) of this rule shall, in addition to containing the information required under that subsection, include a statement that the person is being temporarily suspended pending a resolution of the issue and shall inform the person that the temporary suspension shall be effective as of the date the notice was mailed or personally delivered. (3) In order to be granted reinstatement to good standing with the commission, and thereby be allowed to participate in programs and/or contracts administered by the commission, the suspended or debarred person must apply to the commission subcommittee for reinstatement upon completion of the term of suspension or debarment. Such application shall include any and all relevant documentation showing how the person has complied with all terms of the suspension or debarment and how the person has complied with all requirements stipulated in the original decision rendered by the commission subcommittee. The commission subcommittee may request additional information or documentation from the suspended or debarred person as they may deem reasonably necessary in order to render a determination on whether the application for reinstatement should be granted or denied. The executive director shall respond in writing to the person’s application for reinstatement within thirty (30) days of the date all requested information is received. However, the commission subcommittee may extend the response period for an additional thirty (30) days when deemed necessary at the commission subcommittee’s sole discretion, provided that the commission subcommittee provides written notice to the person submitting the application of the extension. If the commission subcommittee denies the application for reinstatement, the written response shall specify the reasons why the application has been denied and apprise the person of their right to request a hearing with the commission subcommittee. In the event a hearing is so requested, the same procedures set forth in section (1) shall be used to reach a final determination by the commission on the application for reinstatement. AUTHORITY: section 215.030(5), (12), and (19), RSMo 2000.* Original rule filed Feb. 11, 2010, effective Aug. 30, 2010. *Original authority: 215.030, RSMo 1969, amended 1974, 1982, 1985, 1989, 1993, 1995, 1998.