Current through Register Vol. 43, No. 39, September 26, 2024
(a) Cause. The
secretary may impose debarment upon a contractor for any of the causes listed
below:
(1) Conviction, judgment, or admission
of:
(A) fraud, collusion, or any criminal
offense in connection with obtaining, attempting to obtain, or performing a
contract let by the secretary or a subcontract of it;
(B) violation of federal or state anti-trust
statutes;
(C) embezzlement, theft,
forgery, bribery, perjury, falsification or destruction of records, making
false statements, receiving stolen property, and obstruction of justice;
(D) violation of any applicable
laws governing hours of labor, minimum wage rates, discrimination in wages, or
child labor; and
(E) violation of
any laws indicating a lack of business integrity or business honesty which
seriously and directly affect the present responsibility of the contractor to
public contracts or subcontracts of them.
(2) Violation of the terms of a contract let
by the secretary, or a subcontract of a contract let by the secretary,
including but not limited to the following:
(A) willful failure to perform in accordance
with contract specifications; and
(B) a record of failure to perform or of
unsatisfactory performance in accordance with the terms of one or more
contracts, provided that the failure or unsatisfactory performance has occurred
within a reasonable time preceding the determination to debar and was
substantially caused by acts within the control of the contractor.
(3) Any other cause that affects
the question of present responsibility as a contractor or subcontractor on
contracts let by the secretary, including conduct prescribed in (1) and (2)
even if this conduct has not been or may not be prosecuted as violations of the
laws or contracts.
(b)
Procedures.
(1) The secretary or an
authorized representative shall designate a hearing official to conduct any
hearing held under these rules. The hearing official, upon determining from the
secretary's reports, investigations, and other documents that cause exists
under (a) to debar a contractor, shall furnish written notice of a hearing to
the contractor and any named affiliates. The notice shall state:
(A) that debarment is being considered;
(B) the facts giving rise to the
proposed debarment;
(C) the cause
or causes under (a) relied upon for proposing debarment;
(D) that the contractor may, within 30 days
of receipt of the notice, submit to the hearing official, in writing,
information and argument in opposition to or clarification of the proposed
debarment;
(E) that, except when
the action is based on a conviction, judgment, or admission, fact-finding shall
be conducted if the hearing official determines that the contractor's
submission raises a genuine dispute over material facts upon which the proposed
debarment is based or whether the causes relied upon for proposing debarment
purchaser exist;
(F) the time,
place, and date of the hearing;
(G) the name and mailing address of the
hearing official;
(H) if a
suspension is not in effect before the notice being sent, that contracts shall
not be awarded to the contractor by the secretary pending the decision by the
hearing official.
(2)
The hearing official may extend the date of any hearing upon request of the
contractor, but the hearing shall not be extended to later than 60 days from
the date the notice was sent. The hearing official shall schedule and conduct
the hearing within 45 days of sending the notice, except when an extension is
granted as provided in this subsection. In the course of the hearing, the
hearing official shall:
(A) regulate the
course and scheduling of the hearings;
(B) rule on offers of proof, receive relevant
evidence, and make the proof and evidence part of the record;
(C) take action necessary to insure an
orderly hearing; and
(D) at the
conclusion of the hearing, issue to the secretary and the contractor and all
named affiliates written findings of fact and recommended administrative
action. The hearing officer shall deliver the entire record to the secretary.
(3) The contractor
shall have the opportunity to be present and appear with counsel, submit
evidence, present witnesses, and cross-examine all witnesses of the secretary.
A transcribed record shall be made of the hearing unless the secretary and the
contractor waive the transcript requirement. The transcript shall be available
to the contractor and all named affiliates upon request and at cost.
In actions where it has been established by conviction,
judgment or admission, or where it has been established by findings made in
accordance with this regulation, that the named contractor has engaged in
conduct prescribed in (a), the sole issue before the hearing official shall be
the appropriate length of debarment to recommend to the secretary. In these
cases, the hearing official shall not receive evidence relating to the merits
of prior judicial or administrative decisions or findings.
The secretary, after receiving the record, findings of fact,
and recommendations of the hearing official shall determine the administrative
action to be taken. The secretary shall notify the named contractor or
contractors of the secretary's determination in writing. If the determination
is to impose debarment, the determination shall set forth the period of time
the contractor or contractors are to be debarred from bidding on contracts or
subcontracts of the secretary and the reasons for debarment.
(c) Period. The secretary shall
impose debarment for a period commensurate with the seriousness of the causes
but this period shall not exceed 36 months. The secretary may reduce the period
upon the contractor's request, supported by documentation, for reasons
including, but not limited to:
(1) newly
discovered evidence;
(2) reversal
of the conviction of judgment upon which the debarment was based; and
(3) elimination of other causes
for which the debarment was imposed.
(d) Scope. The determination made by the
secretary may include all known affiliates of the contractor, provided that
each decision to include an affilitate is made only after allowing the
affiliate to participate in the hearing, with all the procedural rights of a
contractor.
