Section 1680-05-01-.04 - SUSPENSION(1) When may the suspending official issue a suspension? Suspension is a serious action. Using the procedures of this rule, the suspending official may impose suspension only when that official determines that:
(a) There exists an indictment, conviction, civil judgment, or other official findings by Federal, State or local governmental bodies that determine factual and/or legal matters, or other adequate evidence to suspect, an offense listed under Rule 1680-5-1-.05, Subparagraph (1)(a) or (1)(b); or(b) There exists adequate evidence to suspect any other cause for debarment listed under Rule 1680-5-1-.05, Subparagraphs (1)(c) through (1)(e); and(c) Immediate action is necessary to protect the public interest.(2) What does the suspending official consider in issuing a suspension?(a) The initiating official shall provide to the suspending official a request to suspend with supporting evidence.(b) In determining the adequacy of the evidence to support the suspension as provided by the initiating official, the suspending official considers how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. During this assessment, the suspending official may examine the basic documents, including grants, cooperative agreements, loan authorizations, contracts, and other relevant documents.(c) An indictment, conviction, civil judgment, or other official findings by Federal, State, or local governmental bodies that determine factual and/or legal matters, constitutes adequate evidence for purposes of suspension actions.(d) In deciding whether immediate action is needed to protect the public interest, the suspending official has wide discretion. For example, the suspending official may infer the necessity for immediate action to protect the public interest either from the nature of the circumstances giving rise to a cause for suspension or from potential business relationships or involvement with a program of the Federal Government.(3) When does a suspension take effect? A suspension is effective when the suspending official signs the decision to suspend.
(4) What notice does the suspending official give me if I am suspended? After deciding to suspend you, the suspending official immediately sends you a Notice of Suspension advising you-
(a) That you have been suspended;(b) That your suspension is based on- 1. An indictment, conviction, civil judgment or other official findings by Federal, State or local governmental bodies that determine factual and/or legal matters;2. Other adequate evidence that you have committed irregularities which seriously reflect on the propriety of further State dealings with you; or3. Conduct of another person that has been imputed to you, or your affiliation with a suspended or debarred person;(c) Of any other irregularities in terms sufficient to put you on notice without disclosing the evidence of the State or Federal government;(d) That your suspension is for a temporary period pending the completion of an investigation or resulting legal or debarment proceedings;(e) Of the provisions of this rule governing suspension; and(f) Of the effect of your suspension from participation in covered transactions.(5) How may I contest a suspension? If you as a respondent wish to contest a suspension, you or your representative must provide the suspending official with information in opposition to the suspension. You may do this orally or in writing, but any information provided orally that you consider important must also be submitted in writing for the official record.
(6) How much time do I have to contest a suspension?(a) As a respondent, in order to contest the suspension you must object in writing and must either send, or appear and present, the information and argument to the suspending official within 30 days after you receive the Notice of Suspension. All information submitted by the respondent must be in writing.(b) We consider the notice to be received by you-1. When delivered, if we mail or hand deliver the notice to the last known street address;2. When delivered, if we send the notice by facsimile; or3. When delivered, if we send the notice by e-mail.(7) What information must I provide to the suspending official if I contest a suspension? (a) In addition to any information and argument you believe is important or otherwise relevant, as a respondent your submission to the suspending official must identify- 1. Specific facts that contradict the statements contained in the Notice of Suspension (a general denial being insufficient to raise a genuine dispute over facts material to the suspension);2. All existing, proposed, or prior exclusions and all similar actions taken by Federal, state, or local agencies, including administrative agreements that affect only those agencies;3. All criminal and civil proceedings not included in the Notice of Suspension that grew out of facts relevant to the cause(s) stated in the notice; and4. All of your affiliates.(b) If you provide false information, the Department may seek further civil or administrative action against you, as appropriate. Law enforcement officials may take criminal action against you.(c) Your objections and any challenge described in paragraph (8) below, shall be decided by a Suspension Review Officer.(d) The Suspension Review Officer must issue a written decision within forty-five (45) days after receipt of your objection.(8) Under what conditions do I get an additional opportunity (i.e., a hearing) to challenge the facts on which the suspension is based?(a) You as a respondent will not have an additional opportunity (hearing) to challenge the facts if the Suspension Review Officer determines that-1. Your suspension is based upon an indictment, conviction, civil judgment, or other finding by a Federal, State, or local governmental body for which an opportunity to contest the facts was provided;2. Your presentation in opposition contains only general denials to information contained in the Notice of Suspension;3. The issues raised in your presentation in opposition to the suspension are not factual in nature, or are not material to the suspending official's initial decision to suspend, or the official's decision whether to continue the suspension; or4. On the basis of advice from the U.S. Department of Justice, an office of the United States Attorney, or the Tennessee Attorney General that substantial interests of the government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced by conducting such fact-finding.(b) You will have an additional opportunity to challenge the facts (i.e. a hearing) if the Suspension Review Officer determines that-1. The conditions in subparagraph (8)(a) of this rule do not exist; and2. Your presentation in opposition raises a genuine dispute over facts material to the suspension.(c) If you have an opportunity to challenge disputed material facts under this paragraph, the Suspension Review Officer must immediately schedule additional proceedings to resolve those facts.(9) Are suspension hearings formal?(a) Suspension hearings will be conducted in a fair and informal manner. The Department may use flexible procedures to allow you to present matters in opposition. In so doing, the Department is not required to follow formal rules of evidence or procedure in creating an official record upon which the official will base a final suspension decision.(b) You as a respondent or your representative must submit any documentary evidence you want the Department to consider.(10) How is the hearing conducted? (a) If a hearing is conducted- 1. The proceeding shall be heard by a Suspension Review Officer.2. You may present witnesses and other evidence, and confront any witness presented; and3. The Suspension Review Officer, who shall not be the initiating or suspending official, must prepare written findings of fact for the record.(b) A transcribed record of the hearing must be made. If you want a copy of the transcribed record, you may purchase it.(11) What does the Suspension Review Officer consider in deciding whether to continue or terminate my suspension?(a) The Suspension Review Officer bases the decision on all information contained in the official record. The record includes-1. All information in support of the suspending official's initial decision to suspend you;2. Any further information and argument presented in support of, or opposition to, the suspension; and3. Any transcribed record of the hearing.(12) When will I know whether the suspension is continued or terminated? The Suspension Review Officer must make a written decision whether to continue, modify, or terminate your suspension within forty-five (45) days after your receipt of the Notice of Suspension. The Suspension Review Officer may extend that period for good cause.
(13) How long may my suspension last? (a) If legal or debarment proceedings are initiated at the time of, or during your suspension, the suspension may continue until the conclusion of those proceedings. However, if proceedings are not initiated, a suspension may not exceed 12 months.(b) The suspending official may extend the 12 month limit under subparagraph (13)(a) of this rule for an additional 6 months if an office of a U.S. Assistant Attorney General, U.S. Attorney, the Tennessee Attorney General's Office, or other responsible prosecuting official requests an extension in writing. In no event may a suspension exceed 18 months without initiating proceedings under subparagraph (13)(a) of this rule.(c) The suspending official must notify the appropriate officials under subparagraph (13)(b) of this rule of an impending termination of a suspension at least 30 days before the 12 month period expires to allow the officials an opportunity to request an extension.Tenn. Comp. R. & Regs. 1680-05-01-.04
Original rule filed October 17, 1980; effective December 1, 1980. Repeal filed January 8, 1988; effective April 27, 1988. Repeal and new rule filed February 4, 2005; effective April 20 2005.Authority: T.C.A. §§ 4-3-2303 and 54-5-117.