DAR File No. 28932

Transportation, Administration

R907-67

Suspension of Contractors from Work on Department Projects - Reasons

NOTICE OF PROPOSED RULE

DAR File No.: 28932
Filed: 08/15/2006, 05:17
Received by: NL

RULE ANALYSIS

On advice from counsel, changes are made.

The following changes are made: 1) allows for a non-adversarial decision making process; 2) clarifies that suspension is different from debarment; and 3) makes wording and diction changes.

Section 72-1-201

The changes may result in less cost because attorneys will not need to be involved, but the cost cannot be estimated at this time.

The rule does not affect local governments because they are not contractors. Therefore, there will be no cost to them.

The changes may result in less cost because attorneys will not need to be involved, but the cost cannot be estimated at this time.

The changes may result in less cost because attorneys will not need to be involved, but the cost cannot be estimated at this time.

The changes may result in less cost because attorneys will not need to be involved, but the cost cannot be estimated at this time. John R. Njord, Executive Director

James Beadles at the above address, by phone at 801-965-4168, by FAX at 801-965-4796, or by Internet E-mail at jbeadles@utah.gov

10/02/2006

10/09/2006

John R. Njord, Executive Director

RULE TEXT

R907. Transportation, Administration.

R907-67. [Suspension]Debarment of Contractors from Work on Department Projects -- Reasons.

R907-67-1. [Suspension]Debarment of Contractors from Work on Department Projects -- Reasons.

The department may [suspend]debar a contractor, which, for purposes of this rule includes Consultants and owners, directors, managers, officers or fiscal agents of the Contractor or Consultant), from performing any work on projects that it administers if, by substantial evidence, it concludes that one of the following factors is present. Debarment prevents the contractor from performing work on any department projects, either as a prime contractor or subcontractor.

(1) The Contractor has been convicted of or entered a plea of guilty or nolo contendere to a crime that is related to a bid or contract-related crime in any court in the United States;

(2) The Contractor has publicly admitted to conduct constituting a crime that is related to a bid or contract;

(3) The Contractor has falsified information or submitted deceptive or fraudulent statements in connection with prequalification, bidding, or performance of a contract;

(4) The Contractor has violated federal or state antitrust laws;

(5) The Contractor has demonstrated willful wrongdoing that reflects a lack of integrity in bidding or performing a public project;

(6) The Contractor, including a joint venture, stockholder of more than five (5) percent of the available stock, or any immediate relatives of the aforementioned has been debarred or suspended or is affiliated with any debarred or suspended person in any state or by the federal government;

(7) The deputy director or designee concludes that the Contractor has acted in collusion with others to perform work on a project that supposedly satisfied disadvantaged business enterprise (DBE) goals or requirements through other than bona fide disadvantaged business enterprises in any combination of individuals, firms, or corporations;

(8) The Contractor has defaulted under previous contracts;

(9) The Contractor has performed previous or current work in an unsatisfactory manner, as determined solely by the Project Manager. Among the items that can be the subject of unsatisfactory performance are the following, though there may be others that are similar in importance and require a determination of unsatisfactory performance:

(a) noncompliance with the contract;

(b) failure to complete work on time;

(c) instances of substantial corrective work being needed before acceptance of the work;

(d) instances of completed work that requires acceptance at reduced pay;

(e) production of non-specification work or materials, and when applicable, required price reductions or corrective work;

(f) failure to provide adequate safety measures and appropriate traffic control that endangered the safety of the work force or the public.

(10) The Contractor has questionable moral integrity as determined by the department, the United States Attorney General, the Utah Attorney General, or any other state;

(11) Failure to reimburse the state for monies owned on any previously awarded contract including those where the prospective bidder is a party to a joint venture and the joint venture has failed to reimburse the state for monies owed.

(12) The deputy director or designee reasonably believes and finds that the public health, welfare, or safety require suspension.

R907-67-2. Procedures for Debarment[Suspension].

If the Engineer for Construction believes a Contractor should be debarred[suspended], he or she will follow the procedures listed in R907-1-2, Commencement by Department - Notice of Agency Action - Procedures. The proceeding shall be handled as an informal administrative proceeding unless the deputy director's designee grants a request for conversion to a formal proceeding. The Notice of Agency Action shall also set forth the amount of time being sought as a [suspension]debarment period.

R907-67-3. Status Pending Debarment[Suspension].

[Provided that the contract between the Contractor and the department provide for immediate suspension in case of debarment, suspension](1) If the contract between the department and the Contractor allows for the period of debarment to begin immediately upon service of the Notice of Agency Action or within 15 days of service, debarment begins on the date provided for by the contract. [on the date the Notice of Agency Action is served upon the Contractor.] If the contract is silent, debarment begins thirty (30) days after service of the Notice of Agency Action unless the deputy director or designee believes emergency action is necessary, in which case debarment begins upon service. If the Contractor files a Request for Review pursuant to Utah Admin. Code R907-1, debarment is stayed pending completion of the appeal.[Once suspended, the Contractor is prohibited from working either as a contractor for the department or as a subcontractor for someone who is a contractor for the department. The suspension lasts for the amount of time given in the Notice of Agency Action.]

R907-67-4. Suspension from Consideration for Award of Contracts - Indictments.

(1) If the deputy director believes there is probable cause that a Contractor has engaged in activity that would, if true, lead to debarment under Utah Admin. Code R907-67-1, he or she may suspend the Contractor from consideration for award of contracts. A contractor who is suspended may not bid on any department contracts. Suspension may last for no more than three (3) months unless an indictment has been issued, or information filed, alleging that the Contractor has engaged in criminal activity that would, if true, lead to debarment under Utah Admin. Code R907-67-1. If an indictment has been issued or information filed, suspension shall last until completion of the Contractor's trial or the dismissal of charges.

(2) A conviction or plea of guilt to any offense related to an activity listed in Utah Admin. Code R907-67-1 is sufficient to support debarment without any additional evidence being offered. However, neither an acquittal nor dismissal of charges entitles the Contractor to a dismissal of the debarment notice.

R907-67-[4]5. Length of Debarment.

(1) A person found to have committed an act listed in R907-67-1 shall be debarred for a term of not less than six months nor more than three years.

(2) To determine the specific period of time, the department will evaluate the following:

(a) degree of culpability;

(b) restitution to the state;

(c) cooperation in the investigation of bidding or contract-related crimes;

(d) disassociation with those involved in the crimes and active cooperation in prosecuting others who are involved in the crimes.

(3) Neither suspension nor debarment[Suspension does not] absolve the Contractor of his or her responsibility to perform existing contracts, even if the Contractor needs to find other companies, firms, or individuals who can perform in his or her place.

(4) The department also retains the right to declare a suspended or debarred Contractor in default on any existing contract if allowed by the contract.

(5) If a basis for debarment is an alleged criminal occurrence or conviction and the Contractor has, as part of a sentence or plea agreement, agreed not to bid on public works for more than three years, then the department may extend the debarment to fit the terms of the sentence or plea agreement.

R907-67-[5]6. Right to Appeal.

The Contractor may appeal the [suspension]debarment under the provisions of Utah Admin. Code R907-1. The deputy director or designee may name a board of engineers experienced in the type of work for which the Contractor is being debarred to hear the appeal.

KEY: highways, transportation, contractors, suspension

Date of Enactment or Last Substantive Amendment: [January 5, 2004]2006

Authorizing, and Implemented or Interpreted Law: 72-1-201

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact James Beadles at the above address, by phone at 801-965-4168, by FAX at 801-965-4796, or by Internet E-mail at jbeadles@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.

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