Current through Register Vol. 48, 12, December 27, 2024
A. Policy Statement. Recognizing that
preserving the integrity of the public contracting process is vital to the
development of a balanced and efficient transportation system and is a matter
of interest to all people of the State, it is hereby declared:
1. The procedures for bidding and
qualification of bidders on contracts involving the South Carolina Department
of Transportation exist to secure the quality of public works.
2. The opportunity to bid on contracts, to
participate as subcontractor or to supply goods or services to the Department
is a privilege, not a right.
3. In
order to preserve the integrity of the public contracting process, the
privilege of transacting business with the Department should be denied to
persons involved in criminal and/or unethical conduct.
4. Therefore, as a means of maintaining the
integrity of the public contracting process and protecting the public at large,
persons engaging in criminal and/or unethical conduct will not be allowed to
transact business with the Department during the period of any suspension or
disqualification.
B.
Definitions.
1. Affiliate: Any business entity
having direct or indirect control over, or which is controlled directly or
indirectly, by any person who has been disqualified or suspended. Indicia of
control include, but are not limited to: interlocking management or ownership;
identity of interest among family members; shared facilities and equipment;
common use of employees; or any business entity organized following the
suspension or disqualification of a person which has the same or similar
management, ownership, or principal employees of the disqualified or suspended
person.
2. Business Entity: A
corporation, partnership, limited partnership, association or sole
proprietorship.
3. Civil Judgment:
The disposition of a civil action by any court of competent jurisdiction,
whether entered by verdict, decision, settlement, stipulation or otherwise,
creating civil liability for the wrongful acts complained of.
4. Commission: The Commission of the South
Carolina Department of Transportation.
5. Contractor's Certificate: A
Prequalification Certificate issued by the Department to qualified contractors
as a necessary condition to bid on contracts with the Department.
6. Conviction: A judgment or conviction of a
criminal offense by any court of competent jurisdiction, whether entered upon a
verdict or a plea, including a plea of non contendere.
7. Department: South Carolina Department of
Transportation.
8.
Disqualification: An action taken in accord with these regulations to exclude a
person from participating as a contractor, subcontractor, supplier, or in any
other role under any contract with the Department during the period of
disqualification.
9. Secretary: The
Secretary of Transportation of the State of South Carolina.
10. Person: Any individual, corporation,
partnership, limited partnership, association, sole proprietorship or any other
business entity.
11. Principal:
Officer, director, owner, partner, key employee or any other person within a
business entity with primary management or supervisory responsibilities; or a
person who has critical influence on or substantial control over the actions or
conduct at issue, whether or not employed by the business entity.
12. Suspension: An action taken in accord
with these regulations that immediately excludes a person from participating in
any contracts with the Department for a temporary period.
13. Unlawful payment or gratuity: Transfer of
anything of value to a Department employee in violation of state statute or
regulatory law or Departmental policy.
C. Disqualification. Any person who violates
any of the standards of conduct identified below may be subject to
disqualification or suspension. Disqualification may be imposed for:
1. Conviction of any crime reflecting a lack
of business integrity or business honesty, including but not limited to, crimes
involving fraud, deceit, embezzlement, theft, forgery, bribery, falsification
or destruction of records, bid rigging, price fixing, making false statement,
receiving stolen property, anti-trust violations, making false claims, making
any unlawful payment or gratuity, obstruction of justice, violation of ethical
standards or conspiracy to commit any of the above.
2. Civil judgment for any acts or omissions
reflecting a lack of business integrity or business honesty, including, but not
limited to, acts or omissions involving fraud, deceit, embezzlement, theft,
forgery, bribery, falsification or destruction of records, bid rigging, price
fixing, making false statements, receiving stolen property, anti-trust
violations, making false claims, making an unlawful payment or gratuity,
obstruction of justice, violation of ethical standards or conspiracy to commit
any of the above.
3. Final
administrative decisions by any governmental agency responsible for supervising
or regulating public contracts, standards of ethical conduct or licensure for
any acts or omissions involving fraud, deceit, embezzlement, theft, forgery,
bribery, falsification or destruction of records, bid rigging, price fixing,
making false statements, receiving stolen property, anti-trust violations,
making false claims, making an unlawful payment or gratuity, obstruction of
justice, violation of ethical standards or conspiracy to commit any of the
above.
4. Any act or omission
reflecting a lack of business integrity or business honesty, including, but not
limited to, acts or omissions involving fraud, deceit, embezzlement, theft,
forgery, bribery, falsification or destruction of records, bid rigging, price
fixing, making false statements, receiving stolen property, anti-trust
violations, making false claims, making an unlawful payment or gratuity,
obstruction of justice, violation of a debarment agreement, violation of the
ethical standards or conspiracy to commit any of the above.
5. Willful violation of any provision of a
contract with the Department, or any regulatory or statutory provision relating
to such contract, while serving as a contractor, subcontractor or
supplier.
6. Persistent failure to
perform or incompetent performance on one or more contracts with the Department
as a contractor, subcontractor or supplier; or
7. Knowingly allowing any person disqualified
or suspended pursuant to this regulation, or by any other governmental or
regulatory agency, to serve as a subcontractor or supplier or to play any other
role under any contract with the Department without prior written authorization
from the Secretary.
8. Failure to
cooperate fully and completely with any investigation by the Department or any
other appropriate regulatory or law enforcement agency. Such cooperation shall
include, but not be limited to, disclosure of all written or computerized
records and a full and complete accounting of the person's actions in the
matter under investigation. Assertion of Fifth Amendment right against
self-incrimination shall not be construed as a failure to cooperate under this
regulation.
D.
Suspension. In the event the Department finds that the public health, safety or
welfare imperatively requires emergency action, a suspension may be implemented
immediately pending a hearing, which shall be promptly provided on the issue of
suspension. The grounds for a suspension shall be in accord with the standards
for disqualification enumerated above.
E. Procedures.
1. Notice of disqualification, suspension, or
sanctions may be issued by the Secretary and shall include:
(a) A reference to the particular sections of
the statutes, regulations, and rules involved;
(b) A short and plain statement of the
matters asserted.
2. The
SCDOT shall have broad equitable powers in the impositions of civil sanctions,
with the goal of preserving the integrity of the public contracting process and
protecting the public at large. Any civil sanction imposed shall be remedial in
nature and may include, but not limited to:
(a) disqualification for a specific period of
time;
(b) monetary
penalty;
(c) restitution and
reimbursement to the Department for the cost of any investigation or
proceedings relating to the circumstances leading to any sanctions;
and
(d) conditions which must be
met prior to restoration of a Contractor's Certificate.
3. A person may seek relief from the
disqualification or suspension by requesting a contested case hearing before an
Administrative Law Judge pursuant to S. C. Code Section
1-23-600
and the rules of procedure for the Administrative Law Judge Division. The
request for a hearing must be made within thirty (30) days of receipt of
SCDOT's Notice of Disqualification or Suspension.
F. Scope of Disqualification.
1. In the event a person is suspended or
disqualified under this regulation, such person, and any affiliate of such
person, shall be disqualified from serving as a contractor, subcontractor or
supplier or performing any other service or role under any contract with the
Department during the period of suspension disqualification.
2. A violation of the terms of any
suspension/disqualification may be the basis of further sanction.
3. In the event that a person disqualified
under this regulation is performing or providing services or materials on a
Department project at the time of said disqualification, the Department may, in
its discretion, allow the disqualified person to complete its obligation under
the contract when such completion is in the public interest.
4. In the event a person which is a business
entity is disqualified or suspended under this regulation, such
disqualification or suspension shall be applicable to any principal of said
business entity.
G. Duty
of Disqualified/Suspended Persons. A disqualified or suspended person shall
cooperate fully with any investigation by the Department or any other
appropriate regulatory or law enforcement agency. Such cooperation shall
include, but not be limited to, disclosure of all written or computerized
records and a full and complete accounting of the person's actions in the
matter under investigation. In the event a disqualified or suspended person
fails to cooperate, as required by this paragraph, further remedial measures
may be taken against the person, up to and including permanent
disqualification. Assertion of Fifth Amendment right against self-incrimination
shall not be construed as a failure to cooperate under this
regulation.
H. Reinstatement of
Contractor's Certificate. Any person disqualified or suspended under this
regulation shall immediately lose its Contractor's Certificate. The
disqualified or suspended person may apply for the reinstatement of the
Contractor's Certificate upon completion of the period of suspension or
disqualification and satisfaction of all conditions imposed by any final order
or settlement. Any application for the reinstatement of a Contractor's
Certificate shall be subject to the then existing statutory and regulatory
provisions and Departmental policies relating to pre-qualification of
bidders.
