How to appeal your new york mwbe denial
Understanding the Administrative Appeals Process for MWBE Certification Denials
Navigating the New York State administrative appeals process for Minority and Women-Owned Business Enterprise (MWBE) certification can be complex. This guide provides a comprehensive overview of the steps involved, ensuring that businesses understand how to proceed if their certification application is denied.
What is an Administrative Appeal?
An administrative appeal is a legal proceeding where a business can challenge the New York State Department of Economic Development, Division of Minority and Women’s Business Development (DED)'s decision to deny MWBE certification. The appeal can be conducted through a virtual hearing or a written appeal submission.
Virtual Hearings and Written Appeals
Virtual Hearings: These are conducted via the Webex videoconferencing platform, where the applicant presents evidence and arguments to an independent Administrative Law Judge (ALJ).
Written Appeals: Instead of a virtual hearing, applicants can submit a written document containing evidence and arguments, which the ALJ reviews before making a recommendation.
Conducting Administrative Appeals
Appeals are conducted under the NYS Executive Law, Article 15-A, related regulations, and the State Administrative Procedures Act. An ALJ, an independent officer appointed by the Director of the Division, oversees the proceedings and issues a Recommended Order, which is then reviewed by the Director of the Division to issue a Final Order.
Participants in Administrative Appeals
The primary participants are the Applicant (the business denied certification) and the DED staff. Both parties can present evidence and testimony to support their positions.
Initiating an Administrative Appeal
An Applicant must submit a Request to Appeal within 30 days of receiving the denial letter. This form indicates whether the Applicant wants a virtual hearing or a written appeal and may include a brief statement and any supporting documents.
Post-Submission Process
After submitting a Request to Appeal:
For virtual hearings, the Applicant will be contacted to schedule a hearing date.
For written appeals, the Applicant must submit their written documents within 60 days of receiving the denial letter, followed by a written response from the DED.
Presenting Evidence
Virtual Hearings: Evidence is presented through witness testimony and documents. Only documents previously submitted to the Division during the initial application review can be used. But, testimony can add context to documents previously submitted.
Written Appeals: Written arguments and evidence, including witness statements and affidavits, are submitted. New documents not previously submitted during the initial application review are not allowed.
Additional Information
Requesting Application Copies: Applicants can request a copy of their application and supporting documents from the Division.
Document Submission: Documents must be shared with both the ALJ and the opposing party before the virtual hearing or as part of the written appeal submission.
ALJ's Role and Decision-Making
The ALJ reviews all evidence and arguments presented, either in a virtual hearing or written submissions, to make a recommendation. The Director of the Division then issues a Final Order, which can affirm, reject, or modify the ALJ's recommendation.
Final Order and Further Appeals
The Final Order can be appealed to the State courts under Article 78 of the Civil Practice Law and Rules. Previous Recommended and Final Orders are publicly available.
Reapplication for Certification
If the administrative appeal is unsuccessful, the Applicant must wait two years from the date of the final determination before reapplying for MWBE certification.
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