Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Authority. A Contracting Agency may disqualify a Person from consideration of
Award of the Contracting Agency's Contracts after providing the Person with
notice and a reasonable opportunity to be heard in accordance with sections (2)
and (4) of this rule.
(a) Standards for
Conduct Disqualification. As provided in ORS
279C.440, a Contracting Agency
may disqualify a Person for:
(A) Conviction
for the commission of a criminal offense as an incident in obtaining or
attempting to obtain a public or private contract or subcontract, or in the
performance of such contract or subcontract.
(B) Conviction under state or federal
statutes of embezzlement, theft, forgery, bribery, falsification or destruction
of records, receiving stolen property or any other offense indicating a lack of
business integrity or business honesty that currently, seriously and directly
affects the Person's responsibility as a contractor.
(C) Conviction under state or federal
antitrust statutes.
(D) Violation
of a contract provision that is regarded by the Contracting Agency to be so
serious as to justify Conduct Disqualification. A violation under this
subsection (1)(a)(D) may include but is not limited to material failure to
perform the terms of a contract or an unsatisfactory performance in accordance
with the terms of the contract. However, a Person's failure to perform or
unsatisfactory performance caused by acts beyond the Person's control is not a
basis for Disqualification.
(b) Standards for Disqualification. As
provided in ORS 200.065,
200.075 or
279A.110, a Contracting Agency
may disqualify a Person's right to submit an Offer or to participate in a
Contract (e.g. subcontractors) as follows:
(A) For a Disqualification under ORS
200.065, the Contracting Agency
may disqualify a Person upon finding that:
(i) The Person fraudulently obtained or
retained or attempted to obtain or retain or aided another Person to
fraudulently obtain or retain or attempt to obtain or retain certification as a
disadvantaged business enterprise, minority-owned business, women-owned
business, emerging small business, or a Veteran-owned business; or
(ii) The Person knowingly made a false claim
that any Person is qualified for certification or is certified under ORS
200.055 for the purpose of
gaining a Contract or subcontract or other benefit; or
(iii) The Person has been disqualified by
another Contracting Agency under ORS
200.065.
(B) For a Disqualification under ORS
200.075, the Contracting Agency
may disqualify a Person upon finding that:
(i) The Person has entered into an agreement
representing that a disadvantaged business enterprise, minority-owned business,
women-owned business, emerging small business, or a Veteran-owned business,
certified under ORS 200.055 ("Certified
Enterprise"), will perform or supply materials under a Public Improvement
Contract without the knowledge and consent of the Certified Enterprise;
or
(ii) The Person exercises
management and decision-making control over the internal operations, as defined
by ORS 200.075(1)(b),
of any Certified Enterprise; or
(iii) The Person uses a Certified Enterprise
to perform Work under a Public Improvement Contract to meet an established
Certified Enterprise goal, and such enterprise does not perform a commercially
useful function, as defined by ORS
200.075(3), in
performing its obligations under the contract.
(iv) If a Person is Disqualified for a
Disqualification under ORS
200.075, the affected
Contracting Agency shall not permit that Person to participate in that
Contracting Agency's Contracts.
(C) For a Disqualification under ORS
279A.110, a Contracting Agency
may disqualify a Person if the Contracting Agency finds that the Person
discriminated against a disadvantaged business enterprise, minority-owned
business, women-owned business, emerging small business, or a Veteran-owned
business in awarding a subcontract under a Contract with that Contracting
Agency.
(2)
Notice of Intent to Disqualify. The Contracting Agency shall notify the Person
in Writing of a proposed Disqualification personally or by registered or
certified mail, return receipt requested. This notice shall:
(a) State that the Contracting Agency intends
to disqualify the Person;
(b) Set
forth the reasons for the Disqualification;
(c) Include a statement of the Person's right
to a hearing if requested in Writing within the time stated in the notice and
that if the Contracting Agency does not receive the Person's Written request
for a hearing within the time stated, the Person shall have waived its right to
a hearing;
(d) Include a statement
of the authority under which the hearing will be held;
(e) Include a reference to the particular
sections of the statutes and rules involved;
(f) State the proposed Disqualification
period; and
(g) State that the
Person may be represented by legal counsel.
(3) Hearing. The Contracting Agency shall
schedule a hearing upon the Contracting Agency's receipt of the Person's timely
hearing request. Within a reasonable time prior to the hearing, the Contracting
Agency shall notify the Person of the time and place of the hearing and provide
information on the procedures, right of representation and other rights related
to the conduct of the hearing.
(4)
Notice of Disqualification. The Contracting Agency will notify the Person in
Writing of its Disqualification, personally or by registered or certified mail,
return receipt requested. The notice shall contain:
(a) The effective date and period of
Disqualification;
(b) The grounds
for Disqualification; and
(c) A
statement of the Person's appeal rights and applicable appeal deadlines. For a
Conduct Disqualification or a Disqualification under ORS
279A.110, the disqualified
person must notify the Contracting Agency in Writing within three business Days
after receipt of the Contracting Agency's notice of Disqualification if the
Person intends to appeal the Contracting Agency's decision.
Statutory/Other Authority: ORS
279A.065
Statutes/Other Implemented: ORS
200.065,
200.075,
279A.110,
279C.440,
279C.445,
279C.450, OL 2015 & ch 565
(HB 3303)
