The following procedures shall govern Good Faith Efforts Reconsideration Hearings conducted by the Los Angeles Metropolitan Transportation Authority pursuant to 49 C.F.R. § 26.53.
Upon a finding by the Los Angeles County Metropolitan Transportation Authority (“Metro”) Diversity and Economic Opportunity Department (“DEOD”) that a bidder has neither achieved the established DBE participation goal nor made sufficient GFE to meet the goal, DEOD shall notify the bidder in writing that its bid is non-responsive to the DBE requirements and the reasons therefore (“DEOD notice”). DEOD shall also notify the bidder of its right to a reconsideration hearing and shall provide the bidder with a copy of these procedures or an electronic link to access 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 Los Angeles County Metropolitan Transportation Authority, Attn: Karen Gorman, GFE Reconsideration Officer, One Gateway Plaza, Mail Stop 99-4-5, 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:
- The original request containing bidder’s original signature is thereafter promptly submitted to the RO via U.S. Mail or delivery service; and
- The bidder contacts the RO by telephone at 213-922-2975 within 24 hours of sending the request to confirm that the transmission was received.
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 bidder shall also provide DEOD with a copy of the hearing request at the same time as the RO.
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 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.
- Parties . The bidder, representatives from DEOD, and any witnesses called by either party may present testimony and evidence at the hearing. The bidder and DEOD may be represented by counsel provided bidder provides RO and DEOD at least 2 days prior written notice before the hearing of its intent to use legal counsel.
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:
- The bidder achieved the percentage goal for DBE participation as of the date of bid opening, as documented in the bid; or
- The bidder made good faith efforts of the quality, quantity, and intensity prior to bid submission that, given all relevant circumstances, could reasonably have been expected to produce a level of DBE participation that meets the contract goal.
- 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. The hearing brief shall be submitted to the RO and one copy shall be provided at the same time to the other party.
- Exparte Communications. Exparte communications by the parties with the assigned RO about the merits of the case during the pendency of the proceeding are to be avoided, Any briefs or letters by a party to the assigned RO should also be provided to the other party contemporaneously except the RO may review the public record portions of Procurement and DEOD files prior and during the hearing proceedings without duplicating those for bidders.
- Rules of Evidence . Formal rules of evidence will not apply. The RO may limit the evidence to documentation that existed prior to the submission of the bid and testimony that is relevant and helpful to accomplish the limited purposes of the proceeding.
- Initial Statements . A representative of 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.
. After each party has made its statement, DEOD may introduce relevant material documentary evidence and witnesses to provide testimony. The RO and the bidder may ask questions of DEOD witnesses. The bidder may then introduce relevant material 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 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.
- 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.
- Tape Recording. The RO may tape record the hearing for training and or quality assurance purposes. The RO may destroy the tape recording after the hearing decision is issued consistent with Metro’s record retention policies.
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 the Los Angeles County Metropolitan Transportation Authority, the United States Department of Transportation, or any other authority.