§ 102-449. Debarment.

(a)

Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section:

Contractor means any individual, partnership, corporation or other business entity that seeks to obtain any construction, procurement, concession, services, lease, subcontract or other contract with the county.

Debarment means action taken by the county to bar a company from doing business with the county for a period at the county's sole discretion.

Suspension means action taken by the county to bar a contractor from doing business with the county during a period when investigation into possible debarment is underway. The suspension period will not exceed 120 days.

(b)

Authority to suspend or debar. After reasonable notice to the entity involved and reasonable opportunity for that entity to be heard, the purchasing agent, after consultation with the user department, the county manager and the county attorney, shall have the authority to suspend an entity for cause from consideration for award of county contracts. As used in this section, the term entity means any business entity, individual, firm, contractor, subcontractor, or business corporation, partnership, limited liability corporation, or joint venture, however designated or structured; provided, further, that any such entity shall also be subject to suspension or debarment under this section if any of its constituents, members, subcontractors at any tier, or subcontractors at any tier of such entity's constituents or members, is found to have committed any act constituting a cause for suspension or debarment and the entity, or any constituent or member, knew or should have known of the commission of the act. The suspension or debarment shall be for a period not to exceed three years, unless cause is based on a felony conviction for an offense related or associated with fraudulent contracting or misappropriation of funds wherein the suspension shall not exceed seven years.

(c)

Causes for suspension or debarment. The causes for suspension or debarment include:

(1)

Conviction for commission of a criminal offense as an incident to obtain or attempting to obtain a public or private contractor subcontract, or in performance of such contract or subcontract;

(2)

Conviction of 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 which currently, seriously and directly affects responsibility as a county contractor;

(3)

Conviction of state or federal antitrust statutes arising out of the solicitation and submission of bids or proposals;

(4)

Violation of contract provisions, as set forth below, of a character which is regarded by the purchasing agent to be so serious as to justify suspension action:

a.

Failure to perform in accordance with the specifications within a time limit provided in a county contract;

b.

A recent record of failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts; provided, 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 suspension;

c.

Material misrepresentation of the composition of the ownership or workforce or business entity certified to the county as a minority business enterprise; or

d.

Falsification of any documents.

(5)

Commission or solicitation of any act that would constitute a violation of the ethical standards set forth in this Code.

(6)

Knowing misrepresentation to the county, of the use which a majority owned contractor intends to make a minority business enterprise (a business entity at least 51 percent of which is owned and controlled by minority persons, as defined in this Code and certified as such by the county), as a subcontractor or a joint venture partner, in performing work under contract with the county;

(7)

A determination that the involved individual, firm, or other business entity has previously received an abatement of taxes, but failed to comply with the prerequisite terms, conditions and obligations of an enterprise zone created pursuant to any applicable law.

(d)

Initiation of suspension or debarment action. Written notice of a proposed suspension or debarment action shall be sent by certified U.S. mail, return receipt requested to the bidder, offeror, contractor or subcontractor. This notice shall state the suspension or debarment as being considered and set forth the reasons for the action. The purchasing agent shall invite such notified persons and their counsel, if known, to submit records and any and all documents in defense of such suspension or debarment action to be received by the purchasing agent within 14 days of notice of the proposed suspension or debarment action. Notice of proposed suspension or debarment shall also be sent to the county attorney and the user department. Failure to submit a timely written response to the purchasing agent shall result in a waiver of review.

(e)

Finding cause of suspension or debarment. The purchasing agent shall prepare a written determination of suspension or debarment based on a finding of any of the foregoing causes for suspension, as enumerated in this section. The bidder, offeror, contractor or subcontractor shall have ten days to file comments upon a determination with the county manager. After consultation with the county attorney, the county manager shall issue a final decision. Both the purchasing agents decision and the county manager's decision shall recite the evidence relied upon. When suspension or debarment is ordered, the length of the suspension or debarment, the reasons for such action and to what extent affiliates are affected shall be set forth.

(f)

Maintenance of list of suspended or debarred entity. The purchasing agent shall maintain and update a list of suspended and debarred entities. All departments within the county shall be routinely supplied with this list and such list is a public document available to the public upon request.

(g)

Authority of purchasing director. Under this division, the purchasing director has the power to:

(1)

Hold informal conferences to settle issues, simplify and set forth the issues in a proceeding, or to consider other matters that may aid in the expedition disposition of the proceeding either by consent of the parties.

(2)

Impose time limits and require parties to produce for examination any documentation that will assist in the purchasing agent's decision.

(h)

Effect of suspension or debarment decision. A suspension or debarment decision shall take effect upon issuance and mailing of written notice of such action to the contractor or prospective contractor. After the suspension or debarment decision takes effect, the contractor shall remain suspended or debarred until the period specified in the decision expires, but in no event longer than three years.

(Res. No. 13-0052, 1-23-13)

Note— Formerly Code, Pt. I, § 2-322.