(1) Pending debarment proceedings or an
investigation, which initial information or indications indicate may lead to
discovery of facts for which debarment proceedings may be initiated, the
department may suspend a person from contracting with the department or
participating in department projects.
Suspension may be used when there exists evidence of any of the
debarment causes set forth in ARM 18.3.104, and immediate action is considered
necessary or prudent to protect the department or the public contracting
process or safety.
scope of a suspension is the same as the scope of a debarment (see ARM
18.3.103, above) .
may last for a reasonable period pending the completion of an investigation and
any debarment proceedings, but in no case more than six months. If legal or debarment proceedings are not
initiated within six months after the date of the suspension notice, the
suspension shall be terminated.
will be imposed by written notice from the director, either at the director's discretion or on the written recommendation
of the administrator of an affected division or the department's legal counsel.
suspended person will be immediately provided a copy of the director's letter
imposing its suspension, the reasons therefor, that the suspension is temporary
pending investigation of the reasons stated, and the suspension's effect, and
the procedures available to the person under (6) , below.
the absence of a department determination that public safety could be
jeopardized if the suspension is not immediately imposed, the suspension will
be effective five calendar days after the date of notice. Before the effective date of the suspension
or within five calendar days thereafter, the suspended person may request a
hearing to contest the suspension. If a
hearing is timely requested, the director shall appoint a hearing officer, who
will schedule a hearing. The hearing
will be held not more than 10 calendar days after the request for hearing is
received by the director. The hearing
officer shall set a date, time, and place for the hearing, at which the
department will present its reasons for seeking suspension of the person. The person shall be given the opportunity to
respond to the department's reasons. Within five working
days after the hearing, the hearing officer shall submit to the director:
(a) findings and conclusions as to whether or
not a suspension is warranted; and
proposed order for the director's consideration;
(c) The director will issue the department = s decision on the issues raised by the person within five workdays of
receipt of the findings, conclusions, and proposed order.
no opportunity to contest the suspension will be provided if:
(a) the suspension is based upon the filing of a felony information or
indictment, or conviction or civil judgment, involving actions applicable under
ARM 18.3.104; or,
determination is made in writing by the director, based on the advice of
department = s legal counsel, that the substantial
interests of the state in pending or contemplated legal proceedings based on
the same facts as the suspension would be prejudiced by the above (e.g.,
interfering with a state or federal criminal investigation, having to identify
a confidential informant, etc.) .
the person wishes to appeal the director = s decision, the sole appeal will be to the Montana transportation
commission, which will review the written record of the appeal either at a
regular or special meeting, consistent with the commission = s policies for public notice of
meetings. The commission will not
receive new evidence, but will only review the documentation that was available
to the director, together with the transcript of the person = s appearance before the
director. The commission may,
upon majority vote of its members, hear oral argument on the issues
involved. The commission will issue its
written decision within 10 working days of its meeting.
decision of the commission will be final. It is a discretionary decision made
in the commission = s
status as a quasi-judicial board.
time of suspension may, but need not, be included in any eventual period of
debarment, at the discretion of the director or commission.
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.