Procedures for Filing an Appeal of a Denial Determination for MWBE Certification
An applicant for MWBE certification may appeal a denial determination made by the Division of Minority and Women’s Business Development (“the Division”), pursuant to the following procedures:
An applicant must complete the Request to Appeal form and submit it to the MWBE Appeals Unit within thirty (30) days of receipt of the Denial Determination (also referred to as the “denial letter”) which gives the applicant written notice of the Division’s determination. To submit the Request to Appeal, mail the completed form to:
MWBE Appeals Unit
NYS Dept. of Economic Development
655 Third Avenue, 4th Floor
New York, NY 10017
On the Request to Appeal form, the applicant must 1) select whether it seeks to appeal via written submission or via virtual hearing*, 2) provide the bases upon which the Denial Determination is being appealed, and 3) identify documents that the applicant anticipates relying on. The election to appeal via written submission or virtual hearing may not be changed by the applicant once made.
Virtual Hearing
If the applicant selects the option of appearing at a virtual hearing, the Administrative Hearings Unit will contact the applicant to determine availability and schedule a hearing via videoconference.
After identifying a date for the hearing, the Administrative Hearings Unit will send the applicant a Notice of Hearing that will formally set the date of the appeal hearing.
Written Appeal
If the applicant selects the option to submit a written appeal, the applicant will receive a Notice to Proceed by Written Appeal (“Notice of Written Appeal”). The deadline to file a written appeal submission containing arguments and exhibits is sixty (60) calendar days from the date that the applicant receives the Denial Determination, regardless of when the applicant receives the Notice of Written Appeal.
An independent hearing officer or Administrative Law Judge (“ALJ”) will be appointed to conduct the hearing or review an applicant’s written submission. Please note that an applicant’s presentation of evidence, including exhibits, is limited to such relevant documentation that was before the Division at the time of the denial determination, per 5 NYCRR § 145.2(b). The Division, represented by counsel of the NYS Department of Economic Development, will appear at the virtual hearing or submit a response to the written submission. Subsequently, the ALJ will make a recommendation to the Director of the Division. As a final administrative action, the Director issues a final order affirming or reversing the Denial Determination.
Scheduling and adjournments. Once a virtual hearing date has been agreed upon and scheduled, or once the applicant has elected to submit a written appeal, the date of the hearing or deadline for the written appeal submission shall be a firm date certain. An adjournment may be requested but will only be considered upon showing of good cause and at the discretion of the ALJ. If an adjournment for a virtual hearing or an extension of time to submit a written appeal is required, an applicant must make such request to the ALJ at least seven (7) days prior to the scheduled date of the hearing or, in the case of a written appeal, at least seven (7) days before the deadline to submit a written appeal submission; notice of the request must also be provided to counsel for the NYS Department of Economic Development.
This information is provided for reference only and is not a substitute for consultation with an attorney. Please also refer to Executive Law Article 15-A and 5 NYCRR Part 140, (both available here), information about the MWBE certification eligibility requirements and/or consult the guide concerning appeals of denial determinations) for more information.