5343.1 Following the imposition of suspension, contractors may submit in person, in writing or through a representative, information and argument to the suspension official in opposition to the suspension. In actions not based on indictment, if it is found that the contractor's submission in opposition raises a genuine dispute over facts material to the suspension, WASA shall:

(a) Afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and cross examine any person the WASA 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 the agency, by mutual agreement, waive the requirement for a transcript.

5343.2 When a contractor is suspended, the contractor shall be immediately notified of the suspension by certified mail, return receipt requested. The notice of suspension will include the following information:

(a) That the contractor has been suspended and that the suspension is based on an indictment or other adequate evidence that the contractor has committed irregularities of a serious nature in business dealings with WASA that call into question the propriety of further WASA dealings with the contractor. Any such irregularities shall be described in terms sufficient to place the contractor on notice without disclosing the evidence developed by WASA;

(b) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue;

(c) Of the cause(s) relied upon for imposing suspension;

(d) Of the effect of the suspension;

(e) 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 suspension, including any additional specific information that raises a genuine dispute over the material facts; and

(f) That additional proceedings to determine disputed material facts will be conducted unless the action is based on an indictment.

5343.3 In suspension actions (i) based on an indictment, or (ii) where the contractor's submission does not raise a genuine dispute over material facts. The suspension official's decision shall be based on all information in the administrative record, including any submission made by the contractor.

5343.4 In actions in which proceedings are necessary to dispute material facts, the suspension official shall prepare written findings of fact. The suspension 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.

5343.5 The suspension official may refer matters involving disputed material facts to another official for findings of fact. The suspension official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.

5343.6 The suspension official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.

5343.7 The suspension official may modify or terminate the suspension or leave it in force.

5343.8 Prompt written notice of the suspension official's decision shall be sent to 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).