Downey Municipal Code Part 3 Debarment Procedures

Any person having cause to believe that any contractor or subcontractor has committed any act for which a contractor should be debarred may file a complaint with the City Manager. The complaint must be in writing, and shall state the name of the contractor whose conduct allegedly merits debarment, and provide a specific and detailed narrative description of the conduct alleged to be grounds for debarment.

(Added by Ord. 05-1173, adopted 5-24-05)

The City Manager may initiate debarment proceedings on his or her own motion or upon consideration of a complaint received pursuant to Section 2932.1. Initiation of debarment proceedings shall be solely at the discretion of the City Manager.

(Added by Ord. 05-1173, adopted 5-24-05)

If the City Manager initiates debarment proceedings, the City Manager shall cause an investigation to be conducted.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) If, upon investigation, the investigator determines that an act or omission which can give rise to debarment may have occurred, the investigator, shall make a written finding of the grounds for debarment as well as a recommendation.

(b) If, upon investigation, the investigator determines that no act or omission which can give rise to debarment occurred or can be proven, the investigator, shall make a written finding to that effect.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) Upon receipt of a finding, the City Manager shall provide a written notice by personal delivery or United States mail of the finding to the contractor and to any interested party.

(b) If debarment is recommended, the notice of proposed debarment shall contain the following:

(1) Notice that debarment is being considered;

(2) The basis for the proposed debarment, in terms sufficient to put the contractor on notice of the conduct or transactions upon which it was based;

(3) The potential consequences of the debarment; and

(4) The City's procedures governing debarment.

(Added by Ord. 05-1173, adopted 5-24-05)

Within 15 days after receipt of the notice of proposed debarment, the contractor may submit a written request to be heard, in person or through a representative, or may submit in writing information and argument in opposition to the proposed debarment.

(Added by Ord. 05-1173, adopted 5-24-05)

Failure of the contractor to submit to the City information and argument or a written request to be heard within the time provided by this section, or failure of the contractor or the contractor's representative to appear for a requested hearing, shall be deemed consent by the contractor to the proposed debarment, and the contractor shall automatically be deemed debarred.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) If the contractor requests to be heard in person or through a representative, the City Manager shall, designate a hearing officer for purposes of conducting the hearing. The hearing officer may be the department head of with responsibility for administration of the contract which the contractor performed or on which the contractor is bidding or making a proposal or any other person the City Manager so designates.

(b) The hearing officer shall give the contractor and any interested party reasonable written notice of the time, date and location of such hearing.

(c) If the contractor submits written information or argument, a copy shall be provided to any interested party and the interested party shall have an opportunity to provide written response.

(Added by Ord. 05-1173, adopted 5-24-05)

The hearing officer shall prepare written findings to support any decision regarding debarment. The decision shall be based on the facts as found and supported by the entire record of information and a preponderance of the evidence presented.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) A copy of the notice of the decision shall be sent by personal delivery or U.S. mail to the contractor and any interested party.

(b) If debarment is imposed, the decision shall specify the grounds for the debarment and the period of debarment, including effective dates.

(Added by Ord. 05-1173, adopted 5-24-05)

Debarment may be imposed by the City Manager, or by the City Council on appeal, in accordance with the procedures established in Part 3 of this chapter on any of the following grounds:

(a) Commission of any act of:

(1) Fraud, bribery, collusion, or conspiracy;

(2) Bid rigging, price fixing or any other act in violation of any state or Federal law in connection with the bidding upon, award or performance of any contract; or

(3) Embezzlement, theft, forgery, falsification or fabrication of records, or perjury.

(b) Commission of any act indicating a lack of business integrity or honesty.

(c) Breach of the terms of a contract or transaction by a willful or material failure to perform in accordance with the terms thereof.

(d) Violation of a local, state, or Federal law or regulation applicable to a contract or transaction.

(e) Suspension or debarment from award of any type of contract by the City or any other local agency, state agency, Federal agency.

(f) Knowingly doing business with a debarred third person in performance of City's purchase of any supplies, materials and equipment or general services contract awarded after debarment of such third person.

(g) Substandard performance on any city contract including, but not limited to, the failure to complete a project on time and/or within budget, substandard quality of work, or the failure to cooperate with any City department, or to comply with a City policy which is applicable to the contract.

(h) Breach of the duty of good faith and fair dealing, including the filing of nonmeritorious claims or lawsuits against any public agency or agencies.

(i) Pending litigation between the contractor and the City which could adversely affect or impair the ability of the person to work cooperatively with City staff.

(j) Noncompliance with labor or safety statutes and regulations including, but not limited to, prevailing wage, occupational safety and health, nondiscrimination requirements or other local, state, or Federal laws.

(k) Noncompliance with any law governing the handling, transfer, storage or disposal of hazardous materials or hazardous waste.

(l) Violation of any law or regulation governing conflict of interest, including, but not limited to, the City's Gift Ordinance.

(m) Evidence that the contractor lacks financial responsibility, such as failure to carry or maintain adequate insurance as required by the City, unpaid debts or other evidence of financial instability or irresponsibility, including, but not limited to, the filing of liens by subcontractors or suppliers on projects funded by the City.

(n) Any other ground which the City Manager, or the City Council on appeal, determines significantly impairs the ability of the contractor to perform on a contract.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) Existence of grounds for debarment may be determined to exist if:

(1) The contractor has been convicted of a criminal charge for any act or omission described in Section 2932.11 whether entered upon a verdict or a plea including a plea of nolo contendere;

(2) A civil judgment has been entered against the person for any act or omission described in Section 2932.11; or

(3) The City Manager, or the City Council on appeal, finds that, based upon a preponderance of the evidence presented, such grounds exist.

(b) In determining whether to debar, and the duration of any debarment, the City Manager, or the City Council on appeal, may consider, in addition to any other relevant factors, the following:

(1) The degree to which the contractor cooperated with local, state or Federal authorities in any criminal proceeding which forms the grounds for debarment;

(2) The degree to which the contractor has agreed to restitution for any damages incurred by the City, or any other public entity or private party as a result of any of the acts set forth under Section 2932.11 above.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) Debarment of a contractor under this chapter constitutes debarment of all of the contractor's divisions from all City contracts, unless the debarment decision is limited by its terms to one or more specifically identified individuals or divisions.

(b) An affiliate of the debarred contractor shall also be debarred where the affiliate is specifically named and given notice of the proposed debarment and an opportunity to be heard. The debarment shall also automatically include any affiliate of the debarred contractor formed after the effective date the notice of the proposed debarment was sent.

(c) Debarment of a contractor constitutes debarment of a principal of the debarred contractor during the debarment period.

(d) For purposes of determining the scope of debarment of a contractor, conduct may be imputed as follows:

(1) An act, as described in Section 2932.11 of any officer, director, shareholder; partner, employee, or other individual associated with the contractor may be imputed to the contractor when the conduct occurred in connection with performance of duties for, or on behalf of, the contractor, or with the contractor's knowledge, approval, or acquiescence.

(2) An act, as described in Section 2932.11, of the contractor may be imputed to any officer, director, shareholder, partner, employee, or other person or entity associated with the contractor who participated in, knew of, or had reason to know of the contractor's conduct.

(3) An act, as described in Section 2932.11, of one person in a joint venture or similar arrangement may be imputed to the contractor if the conduct occurred for or on behalf of the joint venture or similar arrangement, or with the knowledge, approval, or acquiescence of the contractor. The contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) Debarment shall be for a period commensurate with the seriousness of the grounds, as determined by the hearing officer, or by the City Council on appeal. An initial period of debarment shall not exceed three years.

(b) At the expiration of the time period of any debarment imposed under this chapter, the hearing officer may review the record of the evidence presented during the debarment proceeding, as well as any additional information or evidence relevant to a review of the debarment, received by the hearing officer prior to such review.

(c) The hearing officer may extend an existing debarment for additional periods of up to three years at any time, if the hearing officer determines that such extension is necessary to protect the public interest. If he determines that debarment for an additional period is necessary, the hearing officer shall follow the procedures for debarment established by Part 3 of this chapter before imposing such extension.

(d) Unless the hearing officer has extended the debarment pursuant to subsection (c) of this section, the debarment shall automatically terminate upon the expiration of the debarment term.

(Added by Ord. 05-1173, adopted 5-24-05)

(a) The hearing officer may modify a debarment decision for any reason which obviates the need for the debarment or which indicates that 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;

(2) Reversal of the conviction or civil judgment upon which the debarment was based;

(3) Bona fide change in ownership or management; or

(4) Elimination of other grounds for which the debarment was imposed.

(b) Such modification of the debarment decision may be initiated by the debarred contractor upon request by the debarred contractor submitted to the hearing officer. Such request by the debarred contractor shall be in writing and accompanied by supporting documentation.

(c) The hearing officer shall act upon any such written request submitted by a debarred contractor within a reasonable time after receipt of the request and shall promptly notify the debarred contractor of the decision made on such request.

(d) The debarred contractor may appeal the hearing officer's decision to the City Council, following the procedures specified in Part 4 of this chapter.

(Added by Ord. 05-1173, adopted 5-24-05)