If you are a business owner who is certified as a Disadvantaged Business Enterprise (DBE) or an Airport Concession Disadvantaged Business Enterprise (ACDBE) by the U.S. Department of Transportation (DOT), you should be aware of the possibility of a summary suspension of your certification. A summary suspension is an extraordinary remedy for compliance lapses that can affect your ability to participate in DOT-funded contracts or concessions.
A summary suspension means that your certification is temporarily revoked until a final decision is made on your eligibility. During the suspension period, you cannot count toward any contract or participation goals for DBE or ACDBE programs.
There are two types of summary suspension: mandatory and elective. A mandatory summary suspension occurs when there is clear and credible evidence of your or your certifying agency's involvement in fraud or serious criminal activity related to the DBE or ACDBE program. In this case, the DOT Operating Administration (OA) that oversees the program will direct your certifier to suspend your certification immediately.
An elective summary suspension occurs when your certifier decides, based on clear and credible evidence, that there is a threat to the integrity of the DBE or ACDBE program that cannot be resolved in a timely manner by other means. For example, if you fail to timely file required documentation, such as personal net worth statements or the annual declarations of eligibility, your certifier may suspend your certification at their discretion.
In either case, the suspension process is initiated when your certifier sends you an electronic notice to your last known email address. The notice must explain the reason, the consequences, and the evidence for the suspension, and demand that you show cause for why you should remain certified. The notice must also schedule a virtual show-cause hearing with a specified time and date, where you can present your case.
The suspension remains in effect during the proceedings, but not for more than 30 days. You can respond to the notice in writing or attend the hearing, where your certifier has the burden of proving their case by a preponderance of the evidence. You can appeal the final decision of your certifier, but not the suspension itself.
However, you can also petition the DOT for an order to vacate your certifier's action, if you can show that the suspension was arbitrary and capricious, or that the evidence was insufficient or unreliable. You can also petition the DOT for an order to compel your certifier to act if they fail to issue a final decision within 30 days of the suspension notice.
A summary suspension is a serious action that can affect your business opportunities and reputation. Therefore, it is important that you comply with the DBE or ACDBE program requirements, and that you respond promptly and effectively to any suspension notice you receive.
If you have any questions about DBE certification, suspension or the appeal process, or the appeal process, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.
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