N.Y. Comp. Codes R. & Regs. tit. 5 § 145.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 145.3 - Appeal procedures concerning contractor and State agency complaints

(a) Initiation of an appeal. If within thirty (30) days of receipt of a complaint made pursuant to section 142.12(a), 142.12(b), or 143.6, the director is unable to resolve the complaint to the satisfaction of the State agency and the contractor, the complaint shall be referred to the division's hearing officer for a hearing, conducted in accordance with the procedures set forth in this section.

(b) Notice of hearing or written appeal. The division shall appoint an independent hearing officer to preside over the appeal and provide written notice of hearing or of written appeal to the parties. The notice shall include, but not be limited to, the following information:

(1) a statement of the legal authority and jurisdiction pursuant to which the appeal is being held;

(2) where possible, a reference to the specific sections of the statute, regulations and/or standards involved;

(3) a statement of the matters raised and the issue(s) to be determined, provided, however, that nothing shall preclude the consideration at the hearing of relevant issues not raised in the notice, in a manner consistent with the complainant's right to respond to such issues;

(4) the identity of the hearing officer designated to conduct the hearing, to the extent known;

(5) the identity of the individual representing the State agency in the proceeding to the extent known;

(6) the procedure to apply for an adjournment or withdrawal of the complainant's request for a hearing or written appeal; and

(7) in the case of a hearing, the time and location of the hearing or in the case of a written appeal, the date by which the written appeal and exhibits thereto must be submitted as well as the date by which any response is due.

(c) Request for an adjournment of a hearing. A request for an adjournment of a hearing or written appeal submission must be made to the independent hearing officer identified in the notice of hearing at least seven (7) business days prior to the scheduled date of the hearing and must state the reason for the request. The independent hearing officer may, at his or her discretion, grant a timely request for an adjournment of a hearing or submission of written appeal.

(d) Request to withdraw an appeal. The hearing officer will consider a request for an appeal to be withdrawn under the following circumstances: the hearing officer has received a written or verbal statement from a party requesting the hearing or written appeal be withdrawn.

(e) Appointment of the independent hearing officer. The director shall appoint any impartial person to serve as an independent hearing officer. If, at any time, the director learns that an individual appointed to serve as an independent hearing officer would experience a conflict of interest in serving as an independent hearing officer, or that such individual's service as an independent hearing officer would give rise to an appearance of impropriety, the director shall remove the independent hearing officer and appoint a replacement independent hearing officer.

(f) Limited discovery shall be permitted to the complainant. Depositions, interrogatories and other disclosure devices are not permitted.

(1) The documents to be discovered shall be limited to those which, as of the date of the discovery request, the State agency has in its possession and which were before the director at the time of the complaint.

(2) A request for limited discovery of documents shall be made in writing to the individual representing the State agency in the proceeding, as set forth in the notice of hearing, with a copy sent to the hearing officer designated to conduct the hearing, at least twenty-one (21) prior to the date of the hearing or date by which the written appeal submission is due.

(3) The request shall set forth the specific documents being requested.

(4) Requested documents which are properly discoverable shall be provided to the requesting party, if applicable, within twenty-one (21) days after the receipt of the written request, unless due to the volume of documents being requested, the copying of such documents cannot reasonably be completed within such period.

(5) Where the documents cannot be provided within twenty-one (21) days, written notice of such shall be given to the requesting party, with a copy to be sent to the hearing officer designated to conduct the appeal. Such notice shall state when the requested documents are expected to be provided and the reason(s) for the time to produce.

(g) Conduct of the appeal. The independent hearing officer shall, subject to the provisions of this paragraph, conduct the appeal in such order and manner as he or she deems appropriate.

(1) Conduct of a hearing. All parties shall be given the opportunity to present evidence and oral argument, provided, however, the evidence presented shall be limited to such relevant documentation that before the director at the time of the complaint and the independent hearing officer may exclude irrelevant or unduly repetitious evidence from the appeal record.

(i) Recording of the proceedings. The division shall record the proceedings via an electronic recording device.

(ii) Entering testimony into the appeal record. All testimony received into the appeal record shall be under oath or affirmation.

(iii) Rules of technical evidence and procedure. The independent hearing officer shall not be bound by the technical rules of evidence and procedure.

(iv) Representation. All parties may appear at the hearing with legal counsel.

(v) Witnesses. All parties shall have the right to call witnesses and to examine and cross-examine other parties and their witnesses.

(2) Conduct of a written appeal. All parties shall be accorded full opportunity to present evidence and written arguments, provided, however, that the independent hearing officer may exclude irrelevant or unduly repetitious evidence from the appeal record. Relevant evidence shall be limited to the documents and information that was before the director at the time of the complaint.

(h) Closing of the appeal record. The independent hearing officer shall close the appeal record at his or her discretion and may request additional information of the parties based upon the proceedings of a hearing. Such additional information shall be limited to information that was before the director during dispute resolution under section 142.12(d) or 143.6(c) of this Title.

(i) Resolution of complaints under section 142.12. Upon conclusion of the administrative hearing or written appeal, the procedures set forth in section 142.12(e) - (g) of Part 142 shall apply.

(j) Resolution of complaints made under section 143.6. Upon conclusion of the administrative hearing or written appeal, the procedures set forth in section 143.6(e) - (g) of Part 143 shall apply.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 145.3

Amended, New York State Register, Volume XXXVI, Issue 22, effective6/4/2014

Amended New York State Register December 2, 2020/Volume XLII, Issue 48, eff. 12/2/2020