Chapter II - Subchapter A

§ 2-03 Answer; reply

Form of Answer and Reply

Reason offered for denial of prequalified status for first time in agency’s answer is not considered by the administrative law judge where the information was not before the agency head at the time of the initial determination to deny prequalified status. East Coast Services, Inc. v. Dep’t of Housing Preservation and Development, OATH Index No. 413/99 (Nov. 5, 1998).

In a prequalified vendor appeal, facts asserted in the answer and reply should be submitted in evidentiary form as provided in this section, not merely in the form of pleadings signed solely by the parties' attorneys, without indication whether the facts asserted are within the attorneys' knowledge. Penn-Troy Machine Company, Inc. v. Dep't of General Services, OATH Index No. 478/93 (Mar. 2, 1993).

Answer

Vendor appealed revocation of its pre-qualified status based upon unsatisfactory performance on two projects. Under paragraph (b) of this section, the answer is limited to “all documentation and information that was before the agency head, including any submissions by the vendor” upon which the decision was based. Therefore, the administrative law judge did not consider affidavits and exhibits submitted by the agency in its answer relating to later events which were not before the agency head at the time the decision to revoke petitioner’s pre-qualified status was made. Matter of Promatech, Inc. v. Dep’t of Design and Construction, OATH Index No. 1590/99 (Sept. 27, 1999).