PURPOSE: This rule discusses the procedures for, and confidentiality governing, the filing of a DBE firm ineligibility complaint, in accordance with 49 CFR sections 26.87(a) and 26.109(b).

1. (1) Filing an Ineligibility Complaint. Any person, firm, recipient, or other legal entity may file with Missouri Department of Transportation (MoDOT) a written complaint alleging that a currently-certified firm is ineligible for Disadvantaged Business Enterprise Transportation Commission
2. (DBE) Program certification, and specifying the reasons why that firm is alleged to be ineligible. However, MoDOT will not accept a general allegation that a firm is ineligible without some supporting details or allegations; and MoDOT will not accept an anonymous complaint for purposes of 49 CFR section 26.87(a) compliance (although MoDOT may act upon the allegations in an anonymous complaint on its own initiative). As a matter of program and contract compliance, MoDOT encourages all DBE firms, prime contractors, other subcontractors, and their owners, officials and employees, to file a detailed ineligibility complaint, with as much supporting information as is available, whenever they have a legitimate reason to believe that a currently-certified DBE firm is not properly eligible for DBE certification under this chapter or under 49 CFR part 26. All DBE firm ineligibility complaints should be addressed to and filed with MoDOT’s DBE liaison officer, the external civil rights administrator. An ineligibility complaint may be sworn under penalty of perjury of the laws of the United States as an affidavit before a notary public or other officer authorized to administer oaths, but that is not a legal prerequisite for filing an ineligibility complaint. The complaint may include any information or arguments supporting the complainant’s assertion that the firm is ineligible and should not continue to be certified.
3. (2) MoDOT Processing of Ineligibility Complaints. Upon receipt of a signed ineligibility complaint including one or more detailed allegations, MoDOT will acknowledge the receipt of the complaint in writing; but a copy of the acknowledgement will not be sent to the DBE firm. MoDOT will review its records concerning the DBE firm in question, along with any material provided by the complainant or available from other sources within or without MoDOT. MoDOT will conduct any investigation it deems necessary under the circumstances, although MoDOT is not legally obligated to conduct any investigation beyond a document request and review. At an appropriate time in the complaint investigative phase, MoDOT will notify the DBE firm in writing that a complaint alleging the firm’s ineligibility had been filed, and request additional information from the firm relating to the allegations. In that letter, MoDOT will provide the DBE firm with a general statement or summary of the allegation(s) against the DBE firm’s continued certification.
4. (3) The MoDOT Determination and Future Actions. After MoDOT has reviewed the complaint and conducted any investigation it deems necessary, MoDOT shall make a determination whether there is reasonable cause to believe that the DBE firm is ineligible to be certified. If MoDOT finds reasonable cause to believe that the DBE firm is ineligible, MoDOT will provide written notice to the DBE firm that MoDOT proposes to find the firm ineligible for certification, which notice sets forth the reasons for that proposed determination. MoDOT will not provide the complainant with that notice of reasonable cause or the preliminary findings set forth therein, but may advise the complainant that proceedings concerning the firm’s DBE eligibility are continuing at MoDOT. In the event that MoDOT determines that reasonable cause does not exist, MoDOT will separately and confidentially notify the complainant and the DBE firm in writing of that determination and MoDOT’s reasons for making that determination. All statements of reasons for findings on the issue of reasonable cause shall specifically reference the evidence in the record on which each reason is based.
5. (4) MoDOT Hearing or Other Due Process Review. When MoDOT notifies a firm that there is reasonable cause to remove its DBE eligibility on the basis of an ineligibility complaint and MoDOT’s review and investigation of that complaint, MoDOT will follow the procedures required by 49 CFR section 26.87(d), and offer the DBE firm an opportunity for an informal hearing with a complete and verbatim record, or if the firm elects, an opportunity to present information and arguments in writing for a written record review, without going to a hearing. Such a reasonable cause notice shall be sent to the DBE firm by certified U.S. mail, return receipt requested. An informal hearing or written record review will be conducted and decided by an independent hearing officer for MoDOT. In the event the firm requests either an informal hearing or a written record review of a reasonable cause determination, MoDOT shall bear the burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards of 49 CFR part 26 and this chapter. If the firm does not request either an informal hearing or the opportunity for a written record review within fifteen (15) days after the date the firm receives the reasonable cause notice, as shown on the return receipt card, then the file MoDOT’s External Civil Rights Unit has developed on this eligibility complaint (along with any sworn affidavits of the staff or others) shall be turned over to the independent hearing officer to determine if, by a preponderance of the evidence present in the file before the hearing officer, MoDOT has proven that the firm does not meet the certification standards of 49 CFR part 26 and this chapter.
6. (5) The Confidentiality of Information on a Complainant. Pursuant to 49 CFR sections 26.87(a) and 26.109(b), the identity of complainants shall be kept confidential by MoDOT and all its staff, including its hearing officer, at the complainant’s election. If such confidentiality will hinder the investigation, proceeding or hearing, or result in a denial of appropriate administrative due process to the firm, its owners or other parties, then MoDOT shall advise the complainant to determine if the complainant will waive the privilege of confidentiality. Complainants shall be advised that in some circumstances, their failure to waive the privilege may result in the closure of the investigation or dismissal of the proceeding or informal hearing, if the allegations cannot be established without actually or effectively disclosing the identity of the complainant. Complainants shall further be notified that if the allegations of the complaint cannot be established by other available means, the complainant shall be expected to provide sworn testimony at an informal hearing or else a sworn affidavit for a written record review, to help MoDOT prove the firm is ineligible for certification by a preponderance of the evidence. If the complainant refuses to waive the confidentiality privilege so as to disclose his or her identity, or refuses to provide oral or written evidence where necessary to substantiate the complaint, then MoDOT will take whatever administrative action is appropriate on the complaint, including but not limited to dismissing the complaint for lack of supporting evidence.

AUTHORITY: section 226.150, RSMo 1994*; Title 49 Code of Federal Regulations part 26; section 1101(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 113; and MoDOT’s approved DBE Program submittals to the U.S. Department of Transportation. Emergency rule filed May 10, 2000, effective May 20, 2000, expired Nov. 6, 2000. Original rule filed May 10, 2000, effective Nov. 30, 2000. *Original authority: 226.150, RSMo 1939, amended 1977.