(1) If the department receives or learns of credible information that a
person has engaged in conduct which may warrant debarment, the department shall
initiate and follow the following procedure.
(2) The administrator of the division concerned with the alleged conduct or contract
will obtain any information that may be readily obtained on the alleged
conduct. If the administrator, deputy
director, or department's legal counsel initially determines that there exists credible
evidence that the person has committed a violation set forth above, they shall
notify the director in writing of the known information supporting or rebutting
such a determination.
(3) If the director, in his discretion, agrees that, from the information available,
credible evidence exists that the person has committed a violation set forth
above, the director shall mail, certified return receipt requested, a written
notice to the person. The notice shall
contain a statement of the pertinent facts, the alleged violations being
considered, notice of the right to an administrative hearing, and that
debarment is being considered. If
debarment is proposed based on a debarment by another state or federal agency,
a copy of that debarment or its notice letter will be attached.
person against which debarment is proposed shall be provided an opportunity for
administrative hearing. A written
request for hearing must be received by the department's chief
counsel within 14 calendar days after the date of the mailing of the notice of
(a) Failure to
timely submit a written request constitutes a waiver of the opportunity for
administrative hearing and appeal, and a final debarment decision by default
may then be entered by the director, which is not subject to appeal.
orders will use the procedure stated in Model Rule 10, ARM 1.3.214.
(5) The person
against whom debarment is being considered has the right to be
accompanied, represented and advised by counsel, and to appear in person or by
or with counsel. Counsel will not be provided by or at the expense of the
(6) Service of
notice and later documents for the hearing will be complete and
effective when made upon a person, or his counsel, if he has counsel.
(7) Upon timely
receipt of a written request for an administrative hearing, the director shall
appoint a hearing examiner. A written
notice appointing the hearing examiner shall be issued by the director, and
sent to the person requesting the hearing.
proceedings may be handled informally using the procedures stated
in model Rule 11, ARM 1.3.215.
(9) A notice of
hearing shall be sent by the hearing examiner to the person requesting the
administrative hearing. The notice
(a) A statement
of the date, time, and location of the hearing;
(b) A reference
to the provisions of the violation(s) involved;
(c) A short,
understandable statement of the matters asserted; and
(d) A statement
advising the party of its right to be represented by legal counsel at the
(10) The hearing
examiner shall not engage in communications prohibited by 2-4-613, MCA.
department shall record any administrative hearing conducted and maintain an
administrative record of the proceedings.
The administrative record shall include:
(i) the initial
determination of the administrator;
(ii) the written
request for administrative hearing;
appointment of the hearing examiner;
(iv) the notice of
(v) the evidence
offered to, or considered by, the hearing examiner;
objections and rulings thereon;
(vii) all matters placed on the record at the administrative hearing;
(viii) all briefs or memoranda submitted by the
transcript made of the proceedings.
(b) The hearing
examiner presiding over the hearing shall have the powers and
duties stated in 2-4-611(3) , MCA.
will be available to the parties in accordance with Rules 26, 28 through 37
(except Rule 37(b) (1) and 37(b) (2) (d) ) of the Montana Rules of Civil Procedure
in effect as of the date of the adoption of these rules. Provided that: all references in the Montana
Rules of Civil Procedure to a "court" are considered to refer to the
department; all references to the use of subpoena power are considered to refer
to the power in these rules; references to "trial" are considered to
refer to the hearing; all references to "plaintiff" are considered to
refer to a "party"; all references to "clerk of court" are
considered to refer to the department person designated by the director to keep
documents filed in the case.
(i) If a party
or other witness refuses to be sworn or refuses to answer any question after
being directed to do so by the department, the refusal to obey the department's
order shall be enforced as provided in these rules.
(ii) If a party
seeking discovery from the department believes he has been prejudiced by a
protective order issued by the department under Rule 26(c) , Montana Rules of
Civil Procedure, or, if the department refuses to make discovery, the party may
petition the District Court, First Judicial District for the County of Lewis
and Clark, for review of the intermediate agency action under 2-4-701, MCA.
department and the hearing examiner shall have the same authority, powers, and
responsibilities for issuing and enforcing subpoenas and subpoena duces tecum
as stated in Model Rule 25, ARM 1.3.230.
(e) The usual
order of presentation at a hearing shall be:
(i) Argument and
the submission of evidence and testimony on behalf of the department;
(ii) Argument and
the submission of evidence and testimony from the party requesting the hearing;
introduction of rebuttal evidence and testimony by the department.
(f) The hearing
may be continued with recesses as determined by the hearing examiner.
introduced at the hearing may be received in written form or oral
testimony given under oath or affirmation. Parties have a right to cross-examine all
persons testifying at a hearing.
hearing examiner may consider hearsay evidence for the purpose of supplementing
or explaining other evidence. A
decision should not ordinarily be based wholly upon hearsay evidence, however,
circumstances in some cases may require it (i.e., debarment based on a prior
debarment in another jurisdiction) , at the discretion of the hearing examiner.
noticed facts are not hearsay.
(iii) Fraudulent, criminal or other seriously improper conduct of any
individual (officer, director, shareholder, partner, employee, or other
individual associated with a person) may be imputed to the person when the
conduct occurred in connection with the individual's performance of duties for
or on behalf of the person, or with the person's knowledge, approval, or
acquiescence. The person's acceptance
of the benefits derived from the conduct will be evidence of such knowledge,
approval or acquiescence.
department's experience, technical competence, and specialized knowledge may be
utilized in the evaluation of evidence.
shall be marked and the markings shall identify the party offering the
exhibit. Exhibits shall be preserved by
the department as part of the administrative record.
to offers of evidence must be made at the time of the offer and shall be noted
in the administrative record. A hearing
examiner may rule on evidentiary objections at the time of the hearing, after
receipt of oral or written argument by the parties, or at the time of entry of
the proposed decision.
person must present all potential and available grounds to contest the
debarment, and failure to raise an issue before the hearing examiner will waive
that issue's consideration on any appeal or potential judicial review.
department's burden of proof for the hearing will be a preponderance of the
admissible evidence presented. That is
proof by information that, compared with that opposing it, leads to the
conclusion that the fact at issue is more probably true than not.
the hearing and any required post-hearing briefs and submissions, the hearing
examiner shall enter a proposed decision, which shall be served on all parties
by certified mail, return receipt requested, to their designated agent. The proposed decision shall contain findings
of fact and conclusions of law supported by the administrative record, and
recommend a proposed action to the director.
director shall within 30 days review the proposed
decision and enter the department's final decision. The director may accept, reject or modify
the proposed decision.
The director's final decision shall contain findings of fact and
conclusions of law, and shall be mailed to the parties by certified mail,
return receipt requested.
sole method of appeal of the director's decision is as follows:
director's decision is final unless appeal is made
to the commission. An appeal
may only be made if it is submitted to the director in writing, and only if
received by the director's office no later than 10 calendar days after date of
mailing of the final decision to the designated agent of the appealing
party. If delivery of the final
decision is refused or for any other reason not able to be delivered to the
designated agent (i.e., returned as undeliverable, addressee moved and left no
forwarding address, etc.) , the decision will be final and the 10-day appeal
period will begin to toll on the date the certified letter is returned to the
(b) Appeal of the
director's decision is to the commission, which shall review the administrative
record of the proceedings and its findings and conclusions only. The commission will determine whether or not
the findings and conclusions are supported by that record. The commission may affirm, reject or modify
the director's decision. If the
commission determines that the record does not support the findings and
conclusions, it may refer the matter back to the director for any action the
commission deems appropriate and directs.
commission's review will not be a de novo hearing, nor will it receive written
briefs from a party except on the issue of whether or not the findings and
conclusions are supported by the administrative record. The commission will not hear oral argument
or testimony, or receive any evidence that was not presented in the hearing.
stenographic record of the oral proceedings of the administrative hearing will
be transcribed upon receipt of a written request. The department may arrange for the record to be transcribed by a
business, rather than by the department, in which case the requester will be
responsible to make direct arrangements for payment with the firm. Otherwise, the estimated cost of
transcription and mailing must be paid by the requester prior to transcription
of the record. Any balance of payment
due must be received by the department prior to delivery, and any amount
determined to be excess shall be returned to the requester upon completion of
final decisions and orders shall be available for
public inspection on request.
Copies of final decisions and orders will be given to the public on
request on payment of reasonable costs.
period of debarment will be commensurate with the
seriousness of the cause(s) , and be for a specified term. While the term will usually not exceed three
years, if circumstances warrant, a longer period of debarment may be imposed.
date(s) of the offenses for which debarment is imposed are inapplicable to a
debarment period and participation in projects or contracts.
or contracts already awarded to a person at the time it is debarred will not be
affected, except as follows: A bid may be rejected, or contract award
rescinded, if a person submits the bid or is awarded the contract after the
date on which it was debarred by any agency or in any jurisdiction.
(15) The procedures herein
provided are mandatory for anyone wishing to contest a debarment. Failure to properly request a hearing,
present all defenses, or to perfect an appeal
will be a failure to exhaust administrative remedies, and will
absolutely waive the protesting party's right to any judicial review that might
otherwise be available.
of a debarred person occurs automatically after the completion of the entire
time period of the debarment.
History: 60-2-201 and 60-3-101, MCA; IMP, 60-2-111, 60-2-112, and 60-3-101, MCA; NEW, 1996 MAR p. 3133, Eff. 12/6/96; AMD, 2001 MAR p. 978, Eff. 6/8/01.