5339.1 The debarment official must provide a written notice to the Contractor proposed for debarment and its known affiliates by certified mail, return receipt requested. The debarment official shall coordinate with General Counsel and notify the General Manager prior to the release of the written notice to the Contractor. The written notice of proposal to debar shall include the following information:

a) That debarment is being considered;

b) The reasons for the proposed debarment in terms sufficient to put the contractor on notice of the conduct or transaction(s) upon which it is based;

c) WASA's procedures governing debarment decision making;

d) The effect of the issuance of the notice of proposed debarment;

e) The potential effect of an actual debarment; and

f) That within 30 days after receipt of the notice, the contractor may submit in person, in writing, or through a representative, information and argument in opposition to the proposed debarment, including any additional specific information that raises a genuine dispute over the material facts.

5339.2 In debarment actions not based upon a conviction or civil judgment, if it is determined that a genuine dispute over material facts exists, WASA will:

(a) Afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the agency presents; and

(b) Make a transcribed record of the proceedings and make it available at cost to the contractor upon request, unless the contractor and WASA, by mutual agreement, waive the requirement for a transcript.

5339.3 In actions in which proceedings are necessary to determine disputed material facts, the debarment official shall prepare written findings of fact. The debarment official shall base the decision on the facts as found, together with any information and argument submitted by the contractor and any other information in the administrative record. In addition:

(a) The debarment official may refer matters involving disputed material facts to another official for findings of fact, and may reject any such findings in whole or in part only after specifically determining them to be arbitrary and capricious or clearly erroneous.

(b) The debarment official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.

(c) In any action in which the proposed debarment is not based upon a conviction or civil judgment, the cause for debarment must be established by a preponderance of the evidence.

5339.4 In debarment actions based on a conviction or civil judgment, or in which there is no genuine dispute over material facts, the debarment official will make a decision based on all the information contained in the administrative record and advice of the General Counsel.

5339.5 If the debarment official decides to impose debarment, the contractor and any affiliates involved shall be given prompt notice by certified mail return receipt requested. The notice shall: (i) refer to the notice of proposed debarment; (ii) specify the reasons for the debarment; and (iii) state the period of debarment.

5339.6 If debarment is not imposed, the debarment official shall promptly notify the contractor and any affiliates involved by certified mail, return receipt requested.

SOURCE: Emergency Rulemaking published at 46 DCR 613 (January 22, 1999) [EXPIRED]; as Final Rulemaking published at 46 DCR 7349 (September 17, 1999).