Del Mar Municipal Code Ch. 7.06 Debarment of Contractors

Debarment is an administrative sanction to be imposed only in the public interest or for the City's protection, and not for purposes of punishment. Debarment is designed to ensure full and open competition by granting awards only to responsible contractors. Debarment prohibits the awarding of contracts to, and the execution of contracts with, a debarred contractor. This Chapter establishes debarment and the procedure for imposition of debarment.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

In addition to all other remedies permitted by law, upon a finding of grounds as set forth in this Chapter, the Assistant City Manager, or designee, may declare debarment of a contractor for any of the following reasons:

1. Two or more counts of computational or other errors in bid submission within a two-year period;

2. Failure or refusal to timely provide or properly execute contract documents, meet bonding or insurance requirements acceptable to the City in the time periods required by the contract;

3. Unsatisfactory performance of contract, including, but not limited to:

A. Material breach of the contract or failure or refusal to honor or observe contractual obligations or legal requirements pertaining to the contract;

B. Unjustified failure to complete the required work on time and/or within budget;

C. Substandard quality of work and/or materials;

D. Failure or refusal to properly perform or complete contract work or warranty performance.

4. Violations of any labor or safety statutes, regulations or standards including, but not limited to, applicable local, state, or federal statutes, regulations or standards governing prevailing wage, occupational safety and health, and nondiscrimination requirements;

5. Violations of any law or regulation governing the handling, transfer, storage, or disposal of hazardous materials or hazardous waste, or of solid waste generated in connection with construction or demolition;

6. Submission of a bid, proposal, or other document which is known by contractor to be false, or the submission of a false or fraudulent claim;

7. Knowingly doing business with a debarred third party in performance of any City contract awarded after debarment of said third party;

8. Any finalized debarment of the contractor by another governmental agency on grounds justifying debarment under this Chapter, during the period of such debarment;

9. The contractor, subcontractor or consultant performs, or fails to perform, the contract in such a way that environmental damage results, or a violation of environmental laws or permits is committed.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

Any of the following may constitute grounds for permanent debarment of the contractor, subcontractor or consultant:

1. A final conviction under any state or federal statute or municipal ordinance, including a plea of nolo contendere, or final unappealable civil judgment of any one or more of the grounds listed below:

A. Fraud, bribery, collusion, conspiracy, theft, bid rigging, forgery, falsification, or destruction of records, receiving stolen property, perjury, embezzlement, or any other similar crime;

B. For commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contractor subcontract, or in the performance of such contractor subcontract;

C. For any offense, action, or inaction indicating a lack of business integrity or business honesty.

2. The contractor has engaged in any corrupt practice in bidding, award, administration, or performance of a contract.

3. Person(s) representing contractor committed an act or omission so serious or compelling in nature that it affects the present responsibility of the contractor to be awarded a contract or to participate as a subcontractor.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

If grounds for debarment are found to exist under sections 7.06.020 or 7.06.030 above, the Assistant City Manager shall state the determination and the basis thereof in writing, and shall deliver a copy of such determination notice to the contractor via personal delivery or United States mail in a manner ensuring written confirmation of delivery.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

The contractor shall have the opportunity to rebut any evidence used as a basis for the debarment and to present evidence to the City relating to why the contractor should not be debarred. The contractor may give written notice requesting the appeal to the City Clerk within ten days following service of the City's debarment determination. Within 30 days following receipt of the request for an appeal, the City Manager shall hear the appeal and may affirm or reverse the debarment or reverse the debarment. The City Manager's appeal determination shall serve as the City's final determination, and serves to exhaust the contractor's administrative remedies.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

A. Debarment constitutes debarment of all divisions or other organizational elements of the contractor for an initial period of up to three (3) years, unless the debarment decision is limited by its terms to specific divisions, organizational elements, or commodities, or unless the debarment is made permanent pursuant to Chapter 7.06.030 above.

B. Prior to expiration of the time period of any nonpermanent debarment imposed under this Chapter, the Assistant City Manager, or designee, may review the record of the evidence presented during the debarment proceedings, as well as any additional facts or information relevant to a review of the debarment. The Assistant City Manager may extend the existing non-permanent debarment, for an additional period of up to two (2) years, if the Assistant City Manager determines that such extension is necessary to protect the public interest. The appeal procedures established by Chapter 7.06.050 above, shall be applicable to such decision.

C. Prior to expiration of the time period of any nonpermanent debarment imposed under this Chapter, the Assistant City Manager may shorten the debarment period for any reason which obviates the need for the debarment or which indicates a shorter debarment period will adequately protect the public interest. Such reasons include, but are not limited to, the following:

1. Newly-discovered material evidence that was not previously available to the parties;

2. Reversal of the conviction, civil judgment, or administrative penalty or sanction upon which the debarment was based;

3. Bona fide changes in ownership or management;

4. Elimination of other grounds for which debarment was imposed.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

Debarment shall be deemed a material breach of any other contract between the City and the contractor, and any existing contracts between the City and the contractor may be terminated immediately upon debarment. Notwithstanding the foregoing, the City may continue any and all contracts in existence at the time of debarment, upon a determination by the City Manager that such renewal or extensions is in the best interest of the City.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)

The City Clerk shall maintain a current consolidated list of all debarments. The list shall indicate the names and addresses of all debarred contractors, the grounds for debarment, and the termination date for each listing. After the opening of bids or receipt of proposals, the City Clerk shall review the list of the debarments. Bids received from any listed contractor shall be recorded as received, and then rejected by reason of debarment. Proposals, quotations, or offers received from any listed contractor shall not be evaluated for award or included in the competitive process by the applicable City department during the period the contractor is on the debarment list.

(Ord. No. 1009, § 2(Exh. A), 9-9-2024)