§ 26.88 Summary suspension of certification. ( a ) *Definition.* Summary suspension is an extraordinary remedy for lapses in compliance that cannot reasonably or adequately be resolved in a timely manner by other means. ( 1 ) A firm's certification is suspended under this part as soon as the certifier transmits electronic notice to its owner at the last known email address.
( 2 ) During the suspension period, the DBE may not be considered to meet a contract or participation goal on contracts executed during the suspension period.
( b ) *Mandatory and elective suspensions* — ( 1 ) Mandatory . The certifier must summarily suspend a DBE's certification when: ( i ) The certifier has clear and credible evidence of the DBE's or its SEDO's involvement in fraud or other serious criminal activity.
( ii ) The OA with oversight so directs.
( 2 ) *Elective.* ( i ) The certifier has discretion to suspend summarily if it has clear and credible evidence that the DBE's continued certification poses a substantial threat to program integrity.
( ii ) An owner upon whom the firm relies for eligibility does not timely file the declaration and gross receipts documentation that § 26.83(j) requires.
( c ) *Coordination with other remedies.* In most cases, a simple information request or a § 26.87 NOI is a sufficient response to events described in paragraphs (b)(1) and (2) of this section. The certifier should consider the burden to the DBE and to itself in determining whether summary suspension is a more prudent and proportionate, effective response. The certifier may *elect* to suspend the same DBE just once in any 12-month period.
( d ) *Procedures* — ( 1 ) *Notice.* The certifier must notify the firm, by email, of its summary suspension notice (SSN) on a business day during regular business hours. The SSN must explain the action, the reason for it, the consequences, and the evidence on which the certifier relies. ( i ) Elective SSNs may not cite more than one reason for the action.
( ii ) Mandatory SSNs may state multiple reasons.
( iii ) The SSN, regardless of type, must demand that the DBE show cause why it should remain certified and provide the time and date of a virtual show-cause hearing at which the firm may present information and arguments concerning why the certifier should lift the suspension. The SSN must also advise that the DBE may provide written information and arguments in lieu of or in addition to attending the hearing.
( 2 ) *Hearing.* The hearing date must be a business day that is at least 15 but not more than 25 days after the date of the notice. The DBE may respond in writing in lieu of or in addition to attending the hearing; however, it will have waived its right to a hearing if it does not confirm its attendance within 10 days of the notice and will have forfeited its certification if it does not acknowledge the notice within 15 days. The show-cause hearing must be conducted as a video conference on a standard commercial platform that the DBE may readily access at no cost.
( 3 ) *Response.* The DBE may provide information and arguments concerning its continuing eligibility until the 15th day following the suspension notice or the day of the hearing, if any, whichever is later. The DBE must email any written response it provides. Email submissions correctly addressed are effective when sent. The certifier may permit additional submissions after the hearing, as long as the extension ends on a business day that is not more than 30 days after the notice.
( 4 ) *Scope and burdens.* ( i ) Suspension proceedings are limited to the suspension ground specified in the notice.
( ii ) The certifier may not amend its reason(s) for summarily suspending certification, nor may it electively suspend the firm again during the 12-month period following the notice.
( iii ) The DBE has the burden of producing information and/or making arguments concerning its continued eligibility, but it need only contest the reason cited.
( iv ) The certifier has the burden of proving its case by a preponderance of the evidence. It must issue an NOD within 30 days of the suspension notice or lift the suspension. Any NOD must rely only on the reason given in the summary suspension notice.
( v ) The DBE's failure to provide information contesting the suspension does not impair the certifier's ability to prove its case. That is, the uncontested evidence upon which the certifier relies in its notice, if substantial, will constitute a preponderance of the evidence for purposes of the NOD.
( 5 ) *Duration.* The DBE remains suspended during the proceedings described in this section but in no case for more than 30 days. If the certifier has not lifted the suspension or provided a rule-compliant NOD by 4:30 p.m. on the 30th day, then it must lift the suspension and amend applicable DBE lists and databases by 12 p.m. the following business day.
( e ) *Recourse* — ( 1 ) *Appeal.* The DBE may appeal a final decision under paragraph (d)(4)(iv) of this section, as provided in § 26.89(a), but may *not* appeal the suspension itself, unless paragraph (e)(2) of this section applies.
( 2 ) *Enforcement.* ( i ) The DBE may immediately petition the Department for an order to vacate a certifier's action if: ( A ) The certifier sends a second elective SSN within 12 months, or
( B ) Cites multiple reasons in an elective SSN contrary to paragraph (d)(1)(i) of this section.
( ii ) The DBE may also petition to the Department for an order to compel if the certifier fails to act within the time specified in paragraph (d)(5) of this section.
( 3 ) In either case, the DBE must: ( i ) Email the request under the subject line, “REQUEST FOR ENFORCEMENT ORDER” in all caps;
( ii ) Limit the request to a one-page explanation that includes: ( A ) The certifier's name and the suspension dates;
( B ) Contact information for the certifier, the DBE, and the DBE's SEDO(s); and
( C ) The general nature and date of the firm's response, if any, to the second suspension notice; and
( D ) The suspension notice(s).
[89 FR 24977, Apr. 9, 2024; 89 FR 55090, July 3, 2024]