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Certification Strategies: Case Study - Appeal Process Overturns Denial




by:
Jeff P.H. Cazeau
Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office

 
August 15, 2014

Previously published on August 1, 2014

Applying for DBE certification can be complex and cumbersome; however, if denied, it’s the appeal process, which requires the right combination of persistence and know-how to be successful. This case study demonstrates how a denial CAN be overturned.

In 2012, we assisted a client apply for DBE certification. The client was not a member of the presumed groups of presumed socially and economically disadvantaged individuals (female, Native American, African-American, Asian-Pacific American or Hispanic-American). Instead, our client was of middle-eastern descent. Despite events of recent years, individuals of Middle-Eastern descent are not considered socially and economically disadvantaged. This was not a clear cut case. We knew the odds were against us.

To prove that our client was socially and economically disadvantaged, we provided all of the necessary materials to comply with Appendix E of the rules governing the DBE program. Specifically, we had to provide evidence in the form of a Narrative and other documents that showed that our client had experienced discrimination while living in the United States. Our evidence was clear, concise and compelling.

Despite these efforts, the client was denied certification. The client was reluctant to appeal because of the unique nature of the case. We were able to convince him that it was worth appealing to have the denial overturned. The client agreed and we prepared all the necessary paperwork to file the appeal.

The Appeals process can be intimidating if you have never prepared one before. There is very little guidance provided in the rules on how exactly your appeal should be drafted or what it should contain. The rules simply state that “if you want to file an appeal, you must send a letter to the Department within 90 days of the date of the recipient's final decision, including information and arguments concerning why the recipient's decision should be reversed.”

The good news: we have prepared many appeals and know exactly what they should contain. In our client’s case, although it took an extraordinarily long time, we recently learned that the Department of Transportation agreed with us. In July, the DOT rendered a decision stating that the California Unified Certification Program (CUCP) erred when it failed to consider the Narrative supplied as part of our clients’ application. The CUCP was given 45 days to either grant certification to our client or prepare a revised denial letter that specifically cites the evidence in the record that supports its decision.   

This case proves what we’ve known for a long time: certifying agencies are not always right. Denials of DBE or ACDBE certifications can be overturned if the appellant 1) files the appropriate paperwork in a timely manner; 2) meets all the requirements; 3) provides evidence in the proper format... It’s not easy and it may not be quick, but it is doable. Don’t hesitate to appeal a denial.

New Rulings on Interstate Certification

When the Department of Transportation announced changes to the Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business (ACDBE) Program designed to make it easier for DBE firms to obtain certification in other states, their efforts were applauded for making the program more national in scope. These Interstate Certification rules became effective on January 1, 2012.

Under the rules, a firm certified in its home state could get certified in a new state by either supplying the new state with a copy of its home state certification, or by providing the new state with its entire DBE application, including supporting documentation and correspondence between the DBE and its home state.

At the time, those of us who routinely represent clients before these state agencies predicted that most states would select the process that was most burdensome to applicants. Unfortunately, it seems we were correct. Over the past few months, the DOT has released a number of decisions that make it clear that not every agency is on board with these rules.

For example, in three separate cases in three different states the DOT determined that state agencies had not followed the Interstate Certification rules. In The CK Group, Inc.; Ref No.: 13-0263; Consultant Engineering, Inc.; Ref. No.: 13-0210 and  M Int’l Engineering, PLLC; Ref. No.: 13-0173,  the DOT remanded appeal cases back to the Utah Unified Certification Program (UUCP), the California Unified Certification Program (CUCP) and the Connecticut Unified Certification Program (CUCP)  respectively, when those UCPs denied the applicants’ certification. In all three cases, the applicants were certified in their home states, but the UCPs in California, Utah and Connecticut each insisted that the applicants file entirely new applications and requested information not authorized under the Interstate Certification rules.

In each case, the DOT remanded the case back to the UCPs with instructions to comply with the rules and only request those documents authorized under the new rule. These decisions are intended to send a clear message to the certifying agencies that they must comply with the new Interstate Certification rules.

These new decisions will prove useful when dealing with a state agency that insists on applicants, who are already certified in their home state, submit new applications or provide information not required under the rules.

Florida 8(a) Alliance

The Florida 8(a) Alliance is a 501(c) (3) Public Charity, whose mission is to strengthen, train, educate and promote, 8(a) and other small businesses in Florida. Membership is open to all businesses 8(a), small businesses, HUBZone, Veteran-owned, SDVOSB, 8(m), WOSB, large businesses and other members of the general public.

The Florida 8(a) held their 2014 conference on May 27-28 in Orlando FL. It was very well attended by small businesses, prime contractors and government officials. The educational programs were very interesting and allowed participants to get their questions answered. They also provided excellent networking opportunities.

We are working with the Alliance to increase their presence and membership in South Florida. To that end, we are hosting a half day educational seminar on October 7, 2014 in our Fort Lauderdale office.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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