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(a) Introduction. The OSDI shall be responsible for monitoring and conducting periodic reviews of the size, WSSC contract participation levels, and conduct of all certified MBE firms to determine when they should become ineligible for the remedies established in this chapter because the firm no longer requires the assistance or benefits offered by WSSC’s MBE program. The OSDI shall ensure that WSSC’s Supplier Portal System accurately and timely reflects the graduation of certified MBE firms. In making the determination required by this subsection, the OSDI shall adhere to the following standards:

(b) Standards. Any of the following, whichever occurs first, will result in a firm’s graduation from the MBE program established by this chapter:

(1) Certified MBEs shall graduate from participating in this chapter’s remedies when the firm graduates from the MBE, DBE or WBE certification program or the third-party MBE certifying organizations referenced in WSSC 6.30.245(c), or from any other certification program that the Commission determines substantially duplicates the requirements of these third-party MBE certifying organizations; or

(2) Certified MBEs shall graduate from participating in the remedies set forth in this chapter when the firm has received from the Commission annual net payments (as a prime contractor or a subcontractor) during a rolling three-year period that are equal to or greater than the following amounts, per industry, as determined by the NAICS code(s) associated with the MBE firm in WSSC’s Supplier Portal System. If net payment information is unavailable, graduation will be based upon gross payments (as a prime contractor or a subcontractor):

(i) Wholesale, $8 million;

(ii) Retail, $6 million;

(iii) Manufacturing, $4 million;

(iv) Services, $20 million;

(v) Construction, $14 million; or

(vi) Architectural and engineering, $9 million.

(c) The OSDI shall evaluate each certified MBE firm receiving contract payments from WSSC in accordance with the foregoing standards annually and shall determine whether a certified MBE has graduated based on these standards.

(d) A MBE firm’s graduation, pursuant to subsection (b)(1) or (b)(2) of this section, shall have no effect on any contract entered into by the firm and the Commission when the firm was qualified to participate in the remedies established in this chapter.

(e) Petition for Reinstatement.

(1) During the three years after graduating pursuant to subsection (b)(2) of this section, if a MBE firm repeatedly competes unsuccessfully for Commission contracts while maintaining its MBE certification with one of the third-party certifying organizations recognized by the Commission, the firm may petition the OSDI for reinstatement of its MBE status for purposes of this chapter. The petition shall include (but need not be limited to): all documents and records relating to the firm’s unsuccessful efforts during the three-year period to obtain Commission contracts (including internal documents, which may be submitted under seal); the firm’s detailed explanation regarding why its bids or proposals were unsuccessful; and a statement regarding why its reinstatement will be consistent with a “narrowly tailored” MBE program and will otherwise comport with applicable law.

(2) A MBE firm whose petition is dismissed or denied by the OSDI may ask the OSDI to reconsider its decision within 20 business days thereof, or may file an appeal with the Chief Procurement Officer within 30 business days of the last action taken by the OSDI regarding its petition. The Chief Procurement Officer shall respond within 60 calendar days of the receipt of the notice of appeal. The decision shall be issued by the Chief Procurement Officer and shall constitute the final decision of the Commission. (REG-PROC-SD-2017-004 § VII(B))