Good Faith Reconsideration Hearings

The following procedures shall govern Good Faith Efforts Reconsideration Hearings conducted by the Los Angeles Metro pursuant to 49 C.F.R. § 26.53.

Pre-Notification Contact

Prior to mailing written notice that a bidder/proposor (herein “bidder”) failed to achieve the required disadvantaged business enterprise (“DBE”) participation goal or make sufficient good faith efforts (“GFE”) to meet the goal, the Metro Diversity and Economic Opportunity Department (“DEOD”) shall contact the bidder by telephone to inform the bidder of its GFE determination.

Notification

Upon a finding by the DEOD that a bidder has neither achieved the established DBE participation goal nor made sufficient GFE to meet the goal, the DEOD shall notify the bidder in writing that its bid is non-responsive to the DBE requirements and the reasons therefore (“DEOD notice”). The DEOD shall also notify the bidder of its right
to a reconsideration hearing and shall provide the bidder with a copy of these procedures.

Right to Reconsideration Hearing

A bidder that receives DEOD notice that its bid was non-responsive may request a reconsideration hearing. Hearing requests shall be made in writing, via U.S. Mail or delivery service, to the Metro, Attn: Karen Gorman, GFE Reconsideration Officer, One Gateway Plaza, Mail Stop 99-11-12, Los Angeles, CA 90012-2952. Requests may
also be submitted by facsimile machine to the Reconsideration Officer’s (“RO”) fax number at 213.922.2986, provided, however, that:

Requests must be received by the RO within two (2) business days after the date the bidder receives DEOD notice. The bidder shall be presumed to have received the notification five (5) days after the date of the DEOD notice letter. The RO shall provide DEOD with a copy of the hearing request.

Scheduling of Reconsideration Hearing

Upon receipt of a request for a reconsideration hearing, the RO or his/her designee will contact the bidder and the DEOD to schedule the hearing. Reconsideration hearings will be held no later than five (5) business days after receipt of the bidder’s request, unless the RO agrees to extend this time period based on good cause.
Extensions are disfavored.

Pre-Hearing Request for Debriefing; Withdrawal of Request for Hearing

At least two (2) business days prior to the date of the Reconsideration Hearing, the bidder may request a debriefing from the DEOD in order to obtain more information as to the reasons the DEOD found the bidder non-responsive to the DBE requirements.

If, after the debriefing, the bidder agrees that it did not demonstrate that it achieved the established DBE participation goal or made sufficient GFE to meet the goal, the bidder may withdraw its request for a reconsideration hearing. The RO shall be notified of withdrawals telephonically at least 24 hours prior to the hearing date, followed immediately by written notice from bidder.

Hearing Procedures

1. The bidder achieved the percentage goal for DBE participation as of the date of bid opening, as documented in the bid; or
2. Initial Statements. A representative of the DEOD shall make a brief initial statement containing: 1) background information about the procurement (including the date the procurement was issued, the DBE goal, and the date that the bidders were required to comply with DBE requirements); 2) a summary of the issues not in dispute; and 3) the reasons the bidder did not achieve the percentage goal for DBE participation or that the bidder’s GFE documentation was found non-responsive. The bidder may then make a brief statement describing why it believes it met the DBE goal or made adequate good faith efforts to do so. Neither party may interrupt the other’s initial statement.
3. Testimony. After each party has made its statement, the DEOD may introduce documentary evidence and witnesses to provide testimony. The RO and the bidder may ask questions of DEOD witnesses. The bidder may then introduce documentary evidence and witnesses to provide testimony. The RO and the DEOD may ask questions of the bidder’s witnesses.
   
   After all evidence and testimony has been received, the RO may ask the DEOD representative whether, after hearing the evidence, it agrees that the bidder has demonstrated that it achieved the established DBE participation goal or made sufficient GFE to meet the goal. The RO may also ask the bidder whether, after hearing the evidence, it now agrees to accept without opposition the prior determination of DEOD that it has not demonstrated that it achieved the established DBE participation goal or made sufficient GFE to meet the goal.
4. Closing Statements. The representative of the DEOD may make a brief closing statement, followed by the bidder's closing statement. Neither party may interrupt the other’s closing statement.

A. Hearing Officer. The RO or his/her designee shall conduct all hearings. The RO shall have the power to limit testimony and terminate or postpone the proceedings if the proceedings become disorderly or for other good cause.

C. Standard of Review. The decision of the DEOD will be overturned only if the RO finds that the bidder has demonstrated by a preponderance of the evidence that:

D. Hearing Briefs. The parties may submit hearing briefs at, or prior to, the Reconsideration Hearing. The hearing brief shall outline arguments and evidence to be presented at the hearing. One copy of the hearing brief shall be submitted to theRO and to the other party.

E. Procedure.

Decision

The RO will provide a written decision to the bidder and DEOD within five (5) business days of the hearing, or as soon as possible thereafter. The decision will explain the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. Pursuant to 49 CFR 26.53, the decision is final and not administratively appealable to any other person within Metro, the United States Department of Transportation or any other authority.