Current through Register Vol. 35, No. 18, September 24, 2024
A. Initiation: The state purchasing agent or
a central purchasing agent or a central purchasing office, after reasonable
notice to the person involved, shall have authority to recommend to the
governing authority of a state agency or a local public body the debarment of a
person for cause from consideration for award of contracts, other than
contracts for professional services. The debarment shall not be for a period of
more than three years. The authority to debar shall be exercised by the
governing authority of a state agency or a local public body in accordance with
the following rules. The state purchasing agent and user agency and all
employees thereof are not parties to the proceedings, but shall be participants
as set forth in Subsection D of 1.4.7.7 NMAC.
B. Debarment procedures.
(1) Notice to the contractor: The state
purchasing agent or his designee shall cause written notice of the proposed
debarment to be sent by certified mail, return receipt requested, to the
contractor. The notice shall contain the following statements:
(a) the action contemplated is for
debarment;
(b) the maximum time
period of the debarment is three years (also give the recommended maximum time
of debarment, if less than three years);
(c) the reasons for the action, which shall
include a summary of the contractor's conduct to which the action relates and a
listing of any contracts related to such conduct;
(d) the action is brought pursuant to the
provisions contained in
13-1-177
through
13-1-180
NMSA 1978 and the regulations promulgated thereunder;
(e) sufficient facts exist, unless rebutted,
to support the proposed debarment and that the GSD secretary shall proceed to
debar unless contractor requests, in writing, a hearing within 15 consecutive
calendar days from the day contractor receives the notice of the proposed
action;
(f) the address where
contractor's request for hearing shall be sent, and the name of the person to
whom the request shall be sent; and
(g) the contractor may be represented
throughout the proceeding by an attorney licensed to practice law in the state
of New Mexico.
(2)
Failure to request hearing on debarment: If the contractor fails to deliver a
written request for a hearing to the person designated pursuant to Subparagraph
(f) of Paragraph (1) of Subsection B of 1.4.7.9 NMAC within the 15 days
required in Subparagraph (e) of Paragraph (1) of Subsection B of 1.4.7.9 NMAC,
a final determination shall be made, pursuant to the requirements of Subsection
E of 1.4.7.9 NMAC.
(3) Hearing
officer appointment: Where a timely request for hearing is received, the state
purchasing agent may appoint a hearing officer to conduct the hearing and
recommend a final decision to the state purchasing agent. If no hearing officer
is appointed, the state purchasing agent shall act as the hearing officer. In
such instance, the hearing officer's recommendation and the state purchasing
agent's recommendation to the secretary shall be one and the same.
(4) Notice of hearing: When hearing is
requested under Subparagraph (e) of Paragraph (1) of Subsection B of 1.4.7.9
NMAC, the hearing officer shall send written notice to the contractor of the
time and the place of the hearing. The hearing shall be held within no sooner
than five days and no later than 60 days after the contractor receives notice
of the hearing unless continued by the hearing officer for good cause. Failure
to hold a timely hearing shall result in dismissal of the contemplated action.
The state purchasing officer may renew the proposed action against the
contractor by following all procedures of 1.4.7.9 NMAC of these regulations if
such refiling is otherwise timely.
(5) Debarment hearing procedures.
(a) Hearings shall be as informal as may be
reasonable and appropriate under the circumstances and in accordance with
applicable due process requirements. However, in no event shall the hearing
officer be required to adhere to formal rules of evidence or procedure. The
weight to be attached to evidence presented in any particular form will be
within the discretion of the hearing officer. Stipulations of fact agreed upon
by the participants may be regarded and used as evidence at the hearing. The
participants may stipulate the testimony that would be given by a witness as if
the witness were present. The hearing officer may require evidence in addition
to that offered by the participants.
(b) A hearing shall be recorded but need not
be transcribed except at the request and expense of the party or participant
requesting the transcription. In the event of multiple requests for
transcriptions, cost of transcription shall be borne equally by those making
the requests. In addition to the recording, a record of those present,
identification of any written evidence presented, and copies of all written
statements and a summary of the hearing shall be sufficient record.
(c) Opening and closing statements may be
made by the participants at the discretion of the hearing officer.
(d) Witnesses shall testify under oath or
affirmation. All witnesses may be cross-examined.
(e) Hearing requirement. The hearing officer
and the parties may require a final hearing before the hearing officer. The
hearing officer may define the scope of such hearing and limit presentation to
evidentiary, legal matter or summation of the case.
(f) The hearing officer shall make a final
recommendation to the state purchasing agent within 30 days after the record is
closed in the examination.
(g) A
copy of the determination of debarment shall be mailed to the last known
address on file with the state purchasing agent or central purchasing office,
by first class mail, within three business days after issuance of the written
determination or transmitted electronically within three business days after
issuance of the written determination.
C. Authority of the hearing officer in a
debarment procedure: the hearing officer may, among other things:
(1) conduct hearings and hold informal
conferences in person or by telephone, to settle, simplify or establish the
issues in a proceeding or to consider other matters that may aid in the
expeditious disposition of the proceeding either by request of the participants
or as required by the hearing officer;
(2) require participants to state their
positions with respect to the various issues in the proceeding, including
requiring the submission of briefs on any issues in the proceedings;
(3) require participants to produce for
examination those relevant witnesses and documents under their control and
permit or prohibit discovery;
(4)
rule on motions and other procedural matters;
(5) regulate the course of the proceedings,
procedural schedules and the conduct of participants therein;
(6) receive, rule on, exclude, or limit
evidence and limit lines of questioning or testimony which are irrelevant,
immaterial, or repetitious;
(7) fix
time limits for submission of written documents;
(8) impose appropriate sanctions against any
participant or person failing to obey a directive under these procedures, which
sanctions may include, but not be limited to:
(a) refusing to allow the non-complying
participant to support or oppose designated claims or defenses, or prohibiting
that participant from introducing evidence when such evidence is the subject of
or related to the non-compliance;
(b) excluding all testimony of an
unresponsive or evasive witness; and
(c) expelling any participant or person from
further participation in the hearing;
(9) take official notice of any material fact
not appearing in evidence in the record, if such fact is among the traditional
matters of official or administrative notice.
D. Suspension procedures.
(1) The state purchasing agent or a central
purchasing office, after consultation with the using agency, may suspend a
person from consideration for award of contracts if the state purchasing agent
or central purchasing office, after reasonable investigation, finds that a
person has engaged in conduct that constitutes cause for debarment pursuant to
13-1-178
NMSA 1978.
(2) The state purchasing
agent or his designee shall cause written notice of the determination of
suspension to be sent by certified mail, return receipt requested, to the
contractor. The notice of suspension shall contain the following statements:
(a) the action is a suspension of the
contractor;
(b) the maximum time
period of the suspension is three months (also give the recommended maximum
time of suspension if less than three months), provided that the suspension may
be longer pursuant to Paragraph (3) of Subsection D of 1.4.7.9 NMAC in which
case the notice of suspension will state this condition;
(c) the reasons for the action, which shall
include a summary of the contractor's conduct to which the action relates and a
listing of any contracts related to such conduct;
(d) the action is brought pursuant to the
provisions contained in
13-1-177
through
13-1-180
NMSA 1978 and the regulations promulgated thereunder; and
(e) the sufficient facts that exist to
support the suspension, and that the GSD secretary has suspended the
person.
(3) Suspension
based upon a criminal offense. If a person has been charged with a criminal
offense that would be a cause for debarment pursuant to
13-1-178
NMSA 1978, the suspension shall remain in effect until the criminal charge is
resolved and the person is debarred or the reason for the suspension no longer
exists.
E.
Recommendation of state purchasing agent and comment period. Final order.
Appeal. The state purchasing agent shall prepare a written recommendation on
whether to suspend or debar. The recommendation shall be sent to the secretary,
contractor, and the user agency. When the contractor has submitted a timely
response pursuant to Subparagraph (e) of Paragraph (1) of Subsection B of
1.4.7.9 NMAC, the contractor and the user agency shall have 10 days from the
date of receiving the recommendation to file comments with the secretary. There
shall be no administrative appeal from the recommendation to the secretary. The
secretary shall issue a final order after expiration of the 10 day comment
period. If the comment period does not apply, the secretary shall issue a final
order after receipt of the recommendation. Both the state purchasing agent's
recommendation and the secretary's final order shall recite the reasons for
debarment and shall recite the evidence relied upon in making the determination
for debarment. When the secretary's final order adopts all aspects of the state
purchasing agent's recommendation, the final order may incorporate the
recommendation by reference and attach it to the order. When suspension or
debarment is recommended or ordered, the length of the suspension (not to
exceed three months, unless suspension is made pursuant to
13-1-178
NMSA 1978 and Paragraph (3) of Section D of 1.4.7.9 of this regulation) or
debarment (not to exceed three years) and the reasons for such action shall be
set forth. The final order shall inform the debarred contractor of the
contractor's right to judicial review pursuant to
13-1-179
and
13-1-183 NMSA
1978. The secretary's final order shall be the final determination for purposes
of the time limits for seeking judicial review under
13-1-183 NMSA
1978. Notice of debarment or suspension shall be mailed by certified mail,
return receipt requested, to contractor upon issuance of the secretary's final
order. The state purchasing agent and user agency shall be given a copy of the
final order upon its issuance by the secretary.
F. Effect of suspension or debarment
decision.
(1) A debarment or suspension shall
take affect upon receipt of the final order by the contractor. The contractor
shall remain suspended or debarred until a court of competent jurisdiction or
the secretary orders otherwise, or until the debarment or suspension period, as
specified in the final order, expires. The secretary may order the suspension
or debarment reduced or ended only as provided in Subsection I of 1.4.7.9
NMAC.
(2) Any business entity which
must hold a state license as a prerequisite for award of a contract (which is
subject to the provisions of this regulation) shall also be suspended or
debarred, as the case may be, if the holder of such license is a suspended or
debarred contractor and the business entity holds no other license.
(3) Debarments and suspensions shall apply to
all contracts subject to the authority of the state purchasing agent,
regardless of the subject matter of future contracts.
G. Causes for debarment or suspension.
(1) The causes for debarment or suspension
must occur within three years of the date final action on a procurement is
taken. For purposes of this section, Subsection G of 1.4.7.9 NMAC, the date
final action is taken on a procurement is the date the contract with the
contractor is fully executed and contractor is authorized to proceed with his
performance of the contract, in accordance with the terms of the
contract.
(2) Those causes include,
but are not limited to, the following:
(a)
criminal conviction of a bidder, offeror or contractor for commission of a
criminal offense related to obtaining unlawfully or attempting to obtain a
public or private contract or subcontract, or related to the unlawful
performance of such contract or subcontract;
(b) civil judgment against a bidder, offeror
or contractor for a civil violation related to obtaining unlawfully or
attempting to obtain a public or private contract or subcontract, or related to
the unlawful performance of such contract or subcontract;
(c) conviction of a bidder, offeror or
contractor under state or federal statutes related to embezzlement, theft,
forgery, bribery, fraud, falsification or destruction of records, making false
statements or receiving stolen property or for violation of federal or state
tax laws;
(d) conviction of a
bidder, offeror or contractor under state or federal antitrust statues relating
to the submission of offers;
(e)
criminal conviction against a bidder, offeror or contractor for any other
offense related to honesty, integrity or business ethics;
(f) civil judgment against a bidder, offeror
or contractor for a civil violation related to honesty, integrity or business
ethics;
(g) civil judgment against
a bidder, offeror or contractor pursuant to the Unfair Practices Act;
(h) violation by a bidder, offeror or
contractor of contract provisions, as set forth in this paragraph, of a
character that is reasonably regarded by the state purchasing agent or a
central purchasing office to be so serious as to justify suspension or
debarment action, including:
(i) willful
failure to perform in accordance with one or more contracts; or
(ii) a history of failure to perform or of
unsatisfactory performance of one or more contracts; provided that this failure
or unsatisfactory performance has occurred within a reasonable time preceding
the decision to impose debarment; and provided further that failure to perform
or unsatisfactory performance caused by acts beyond the control of the
contractor shall not be considered to be a basis for debarment;
(i) any other cause that the state
purchasing agent or a central purchasing office determines to be so serious and
compelling as to affect responsibility as a contractor; or
(j) for a willful violation by a bidder,
offeror or contractor of the provisions of the Procurement Code.
H. Deferment of
proceedings: The hearing officer may defer debarment proceedings pending final
disposition of a related claim or dispute if he finds:
(1) that the cause of the action brought
against the contractor is related to a good faith claim or dispute pending
before a state agency, the state purchasing agent, or on judicial appeal;
and
(2) a delay in the proceedings
will not be prejudicial to the public interest.
I. Termination or modification of suspension
or debarment.
(1) Any contractor suspended or
debarred under this regulation may petition the state purchasing agent to
shorten or terminate the suspension or debarment. The petition shall show good
cause for the requested relief.
(2)
A contractor's request for modification or termination of a suspension or
debarment must be supported by good cause shown, including documentation
providing reasons for such modification or termination, including, but not
limited to:
(a) bona fide change in ownership
and management of the business; or
(b) elimination or mitigation of cause for
which the suspension or debarment was imposed; or
(c) compliance with terms that were set forth
in the suspension or debarment order.
(3) Procedure: The state purchasing agent
shall admit or deny review of the petition. If review is allowed, the petition
shall be reviewed pursuant to the procedures described in Subsection C of
1.4.7.9 NMAC.
(4) Upon termination
of a suspension or debarment, a contractor suspended or debarred under this
regulation shall automatically be reinstated with full contracting rights
without further written notice by the secretary, hearing officer or state
purchasing agent.
(5) Appeal: A
petition for termination or modification of a final order of debarment shall
not be treated as a motion for reconsideration and shall not stay the running
of time in which a contractor has to appeal, under the provisions of
13-1-183 NMSA
1978, a final order issued pursuant to Subsection E of 1.4.7.9 NMAC. The
secretary's final order on the petition for termination or modification of an
order of debarment shall be the final determination for purposes of the time
limits for seeking judicial review under
13-1-183 NMSA
1978, where there is a denial or partial denial of such petition.
J. Maintenance of list of
suspended and debarred contractors: The state purchasing agent shall maintain
and update a list of debarred and suspended contractors. The list shall reflect
all modifications and terminations of debarments and suspensions. All
purchasing agencies, political subdivisions of the state and the public shall
be supplied with this list upon request. The state purchasing agent may charge
a reasonable fee for the expense of copying and mailing such list. The state
purchasing agent shall send updates of this list to all user agencies and
political subdivisions of the state as the state purchasing agent deems
necessary.
