Section 105IAC11-2-9. Appeals procedure

   (a) A contractor aggrieved by the decision of the department in regard to the contractor's qualification, suspension, withdrawal, revocation, or change in either classification or rating may make a written request for consideration to the prequalification engineer, with a copy to the commissioner, within fifteen (15) days after receiving such notification.

  (b) The contractor may follow the procedure outlined in STEP ONE and STEP TWO, or the contractor may elect for a hearing as set forth in STEP TWO. The contractor shall, in its letter, specify which relief it is requesting. If the contractor fails to make an election in its letter, it will be presumed that the contractor has elected to follow and be bound by the procedural steps and cutoff procedures set forth in STEP ONE and STEP TWO, in that order as follows:

STEP ONE: The request must include written justification bearing on its qualification. In addition, the contractor may request a personal interview. The prequalification committee will consider the written request by certified mail or personal service within fifteen (15) days after its receipt. The prequalification committee may request additional information, a personal interview with the contractor, or both. The prequalification committee will make a recommendation to the commissioner who shall notify the contractor in writing of the decision. The decision becomes effective after all avenues of appeal under STEP TWO are exhausted. It will be presumed that in the event the contractor has made no election as to a personal interview that the contractor has elected not to request a personal interview.

STEP TWO: If the contractor is dissatisfied with the STEP ONE decision, the contractor may make a written request by certified mail or personal service within fifteen (15) days of receipt of the STEP ONE decision for an adjudication hearing in accordance with IC 4-21.5. This request must be sent to the prequalification engineer with a copy to the commissioner. Upon receipt of the notice, the commissioner will serve the contractor with written notice of the date, place, and time of the hearing and written notice of the appointment of an administrative law judge.

  (c) The hearing will be held within thirty (30) days of the receipt of the request, unless otherwise ordered by the administrative law judge.

  (d) At the hearing, the contractor will bear the burden of proof when the action of the commissioner is under sections 1 through 2 of this rule. At the hearing, the contractor shall bear the burden of proof when the action of the commissioner is under either section 3 or 5 of this rule, unless the action involves the reduction of an unexpired certificate of qualification. At the hearing, the department shall bear the burden of proof when the action of the commissioner is under either sections 6 through 8 of this rule or section 11 of this rule.

  (e) If the contractor fails to follow subsection (b) within the specified time frames, the contractor will be deemed to have accepted the decision of the department as final and deemed to have waived any right to further administrative appeal. (Indiana Department of Transportation; 105 IAC 11-2-9; filed Jul 25, 1991, 3:30 p.m.: 14 IR 2190; readopted filed Nov 7, 2001, 3:20 p.m.: 25 IR 899; readopted filed Jun 14, 2007, 2:45 p.m.: 20070627-IR-105070237RFA; readopted filed Oct 2, 2013, 11:39 a.m.: 20131030-IR-105130295RFA)