Tenn. Comp. R. & Regs. 1680-05-03-.08

Current through December 10, 2024

Section 1680-05-03-.08 - APPEALS

(1) Grounds for Appeal. - In accordance with these rules, an applicant for prequalification or a prequalified bidder or subcontractor may appeal a decision by the Director of Construction that:

(a) Determines the applicant's prequalification or affiliation status, as provided in Rule 1680-5-3-.05;

(b) Denies a requested modification of an existing prequalification status, as provided in Rule 1680-5-3-.07, Subparagraph (1) (a);

(c) Revokes or restricts an existing prequalification held by the prequalified bidder or subcontractor, as provided in Rule 1680-5-3-.07, Subparagraph (1)(b);

(d) Temporarily disqualifies a prequalified bidder or subcontractor, as provided in Rule 1680-5-3-.07, Subparagraph (1)(c); or

(e) Is otherwise expressly appealable under these rules.

(2) Filing of Appeal; Timing and Content.

(a) A request for appeal under these rules must be filed with and received by the Director of Construction, with a copy to the Chief Engineer, no later than fourteen (14) days after delivery to the applicant or prequalified bidder or subcontractor of the adverse decision being appealed. For good cause shown, the Director of Construction may grant a written request for an extension of time, not to exceed an additional fourteen (14) days, within which to file the appeal.

(b) Failure to file a request for appeal within the time allowed will result in a denial of the appeal without any hearing.

(c) The appeal shall be in writing and shall contain:

1. A detailed statement of the reasons why the appellant believes the Director of Construction's decision was erroneous, improper and/or not in the best interest of the Department;

2. A statement of the relief requested (i.e., a statement of the decision the appellant believes the Commissioner should make on appeal); and

3. Any documentation of evidence that the appellant reasonably believes will support its appeal.

(3) Informal Hearing Before the Prequalification Committee.

(a) Upon receiving a request for appeal as provided in the paragraph above, the Director of Construction will promptly notify the Chief Engineer, who shall schedule an informal hearing before the Prequalification Committee.

(b) The hearing should, if possible, be scheduled to occur within fourteen (14) days after the date on which the appeal was filed. The Chief Engineer shall notify the appellant of the date, time and place for the hearing. For good cause shown, the Chief Engineer may allow for a continuance of the hearing to a later date.

(c) For good cause shown, the Chief Engineer may, but is not required to, stay the decision of the Director of Construction that is the subject of the appeal if:

1. The decision was to revoke or restrict an existing prequalification or to temporarily disqualify a prequalified bidder or subcontractor; and

2. The Chief Engineer determines that it is in the public interest to preserve the status quo pending a hearing and decision on the appeal.

(d) The hearing before the Prequalification Committee shall be held at the time and place set by the Chief Engineer, and the Chief Engineer shall preside. A quorum of the Prequalification Committee, consisting of a majority of the members of the Committee, shall be sufficient to conduct the hearing.

(e) The hearing will be conducted in an informal manner. A court reporter will be present to create a record of the proceedings, but the Committee may use flexible procedures to hear evidence and argument presented by the appellant and the Prequalification Office. Formal rules of evidence and civil procedure will not be required. At the discretion of the Chief Engineer, the Committee may hear statements from and question witnesses at the hearing and/or take written statements, and the Committee may consider relevant written documentation that the appellant or the Prequalification Office may wish to present. Both the appellant and the Department may have the assistance of legal counsel in conducting the hearing.

(f) The Chief Engineer may continue the hearing and reconvene the Prequalification Committee at a later date, if necessary for a full and fair consideration of the appeal.

(4) Commissioner's Decision. - Upon consideration of the evidence and argument presented at the informal hearing, the Prequalification Committee shall advise the Commissioner and make a recommendation for decision, but the decision shall be the Commissioner's alone. The Commissioner shall give the appellant written notice of the decision, and the reasons therefore, within fourteen (14) days after the close of the Prequalification Committee's informal hearing, unless the time is extended by the Commissioner for good cause. Notice of the decision may be sent by regular mail or other reliable means of delivery. The Commissioner's decision shall be final.

(5) Inapplicability of Uniform Rules of Procedure. - In accordance with Tennessee Code Annotated §§ 4-5-217 and 4-5-219, these rules establish informal administrative procedures for making and appealing the Department's prequalification decisions. Because prequalification decisions and proceedings are not contested cases under Tennessee Code Annotated § 4-5-102(3), application of the Uniform Rules of Procedure for Hearing Contested Cases Before State Administrative Agencies ("Uniform Rules"), Rules of the Tennessee Department of State, Administrative Procedures Division, Chapter 1360-4-1, is not required by law. The Commissioner further finds that application of the Uniform Rules would be unduly burdensome and would hinder the ability of the Department to make timely and effective decisions concerning the persons or entities with which it may conduct business. It is the intent of these rules, therefore, that the informal administrative procedures established herein will provide for the just, speedy and inexpensive determination of matters before the Prequalification Office, the Prequalification Committee, and the Commissioner and that these rules will allow the Department to take timely and effective remedial action to ensure that it conducts business with responsible and qualified contractors and subcontractors. The procedures established in these rules are subject to amendment as the Commissioner may determine to be in the best interest of the Department, and nothing in these rules shall be construed to create any vested right to any particular process established herein.

Tenn. Comp. R. & Regs. 1680-05-03-.08

Original rule filed July 18, 2006; effective October 1, 2006.

Authority: T.C.A. §§ 54-5-117 and 4-3-2303.