Irvine Municipal Code Div. 12 City Determinations of Contractor Non-Responsibility and Contractor…

A. State law and the Irvine Municipal Code require that the City award public works projects to responsible bidders. To this end, the City seeks to take the necessary measures to ensure that in order to protect the public interest, the City's policy and practice shall be to conduct business only with responsible bidders.

B. Similarly, the City recognizes that the debarment of contractors is to be imposed in the public interest and adopts this division to provide the City a means to achieve this goal.

C. The City adopts this division of the Irvine Municipal Code with the purpose of establishing procedures for determining bidder responsibility and for imposing debarments. Determinations of contractor responsibility and contractor debarments shall be made in accordance with the procedures set forth in this division and any implementation instructions that may be adopted by the City.

(Ord. No. 08-10, § 1, 8-12-08)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

A. "Bid" or "proposal" means a bid, proposal, or any other response to an invitation to bidders or similar request submitted by or on behalf of a contractor for a contract.

B. "City" means the City of Irvine and any of its departments, commissions, committees or affiliated or supported agencies or entities utilizing public funds.

C. "Contract" means any contract to be performed for or on behalf of the City for the construction, alteration, maintenance, or repair of any building or public work or for the acquisition of materials, equipment, supplies, or services.

D. "Contractor" means a person, partnership, corporation, or other legal entity that has bid on or has submitted a proposal to the City in connection with a City project for the purpose of providing goods to, or performing services for or on behalf of, the City. The term "contractor" includes a contractor, subcontractor, vendor, or any person or entity who owns an interest of 10 percent or more in a contractor, subcontractor, or vendor company.

E. "Debarment" means a determination by the City which results in a contractor being prohibited from bidding or proposing on, being awarded, and/or performing work on a contract with the City for a specified period.

F. "Non-responsibility" means a determination by the City which results in a contractor who submitted a bid or proposal on a particular contract being prohibited from being awarded and/or performing work on that contract. A contractor who has been determined by the City to be subject to such a prohibition is deemed "non-responsible" for purposes of that specific contract.

(Ord. No. 08-10, § 1, 8-12-08)

A. Prior to awarding a contract, the City may seek a determination from a hearing officer whether a contractor who has submitted a bid on a contract should be deemed non-responsible.

B. Upon request from any City department, the City purchasing agent shall retain the services of a hearing officer to hold a hearing to determine whether the contractor should be deemed non-responsible. Within 10 days of selection of the hearing officer, either party may object in writing to the hearing officer for good cause. If good cause is established, the City purchasing agent will retain a new hearing officer within 10 days of the decision to relieve the challenged hearing officer. All hearing officers must satisfy the requirements and standards set forth in California Code of Civil Procedure § 170.1 with respect to disqualification.

C. The City shall provide contractor written notice of the hearing date, location, and procedures no less than 20 days prior to the hearing date. No less than 15 days prior to the hearing date, the contractor is required to confirm with the City, in writing, that the contractor and/or representative intends on appearing at the hearing. No less than 10 days prior to the hearing date, the City and contractor shall exchange witness lists and all evidence which the respective parties anticipate using during the hearing. Prior to the hearing date, the hearing officer may request that the City and contractor submit a legal brief and all evidence to be used at the proceedings.

D. At the hearing, the City and the contractor shall be afforded the opportunity to submit direct and rebuttal evidence, and call and cross-examine witnesses.

E. The hearing officer shall adhere to the procedures and standards set forth in this division or, if more stringent, any and all applicable federal and/or State due process requirements.

F. No later than 15 days after the hearing is held, the hearing officer shall prepare and deliver to the City and contractor a written determination setting forth whether the contractor is deemed responsible or non-responsible. The hearing officer's determination shall be based on and supported by specific references to evidence taken from the parties.

G. The hearing officer may make a determination that the contractor is non-responsible if the hearing officer finds evidentiary support that the contractor has committed any of the following: (1) violated a term of a contract, present or past, with the City or other entity; (2) committed an act or omission which negatively reflects on the contractor's quality, fitness, or capacity to perform a contract with the City or any other entity or engaged in a pattern or practice which negatively reflects on the same; (3) committed an act or omission which evidences a lack of business integrity or business honesty; (4) made or submitted a false claim against the City or any other entity; (5) received a fine or citation for performing work in an unsafe manner; or (6) violated a condition, rule, regulation, permit, or standard applicable to a contract with the City or any other entity. In arriving at his or her determination, the hearing officer may consider past conduct of the contractor on City projects or on any other public or private projects upon which contractor performed work.

H. If the hearing officer issues a determination of non-responsibility, the contractor's bid shall be deemed rejected and the contractor shall be prohibited from being awarded and/or performing any work on the contract(s) at issue.

I. The hearing officer's determination shall constitute a final decision for purposes of judicial appeal.

J. The hearing officer's determination shall not preclude the City or any other agency from initiating any other legal proceeding against contractor or its affiliates for actions related to proceedings held pursuant to this section.

(Ord. No. 08-10, § 1, 8-12-08)

A. The City may seek a debarment order of any contractor who has contracted with the City in the preceding three years and/or who has submitted a bid for a new contract with the City in the preceding three years.

B. Upon request from any City department for such a debarment order, the City purchasing agent shall retain the services of a hearing officer to hold a hearing to determine whether the contractor should be debarred. Within 10 days of selection of the hearing officer, either party may object to the hearing officer for good cause. If good cause is established, the City purchasing agent will retain a new hearing officer within 10 days of the decision to relieve the challenged hearing officer. All hearing officers must satisfy the requirements and standards set forth in California Code of Civil Procedure § 170.1 with respect to disqualification.

C. The City shall provide contractor written notice of the hearing date, hearing location, and hearing procedures no less than 10 days and prior to the hearing date. No less than 15 days prior to the hearing date, the contractor is required to confirm with the City, in writing, that the contractor and/or representative intends on appearing at the hearing. No less than 10 days prior to the hearing date, the City and contractor shall exchange witness lists and all evidence which the respective parties anticipate using during the hearing. Prior to the hearing, the hearing officer may request that the City and contractor submit a legal brief and all evidence to be used at the proceedings.

D. At the hearing, the City and the contractor shall be afforded the opportunity to submit direct and rebuttal evidence, and call and cross-examine witnesses.

E. The hearing officer may make a determination that the contractor shall be debarred if the hearing officer finds evidentiary support that the contractor has committed any of the following: (1) violated a term of a contract, present or past, with the City or other entity; (2) committed an act or omission which negatively reflects on the contractor's quality, fitness, or capacity to perform a contract with the City or any entity or engaged in a pattern or practice which negatively reflects on the same; (3) committed an act or omission which evidences a lack of business integrity or business honesty; (4) made or submitted a false claim against the City or any other entity; (5) received a fine or citation for performing work in an unsafe manner; or (6) violated a condition, rule, regulation, permit, or standard applicable to a contract with the City or any other entity. In arriving at his or her determination, the hearing officer may consider past conduct of the contractor on City projects or on any other public or private projects which contractor performed work.

F. The hearing officer shall adhere to the procedures and standards set forth in this division or, if more stringent, any and all applicable federal and/or State due process requirements.

G. No later than 15 days after the hearing is held, the hearing officer shall prepare and deliver to the City and contractor a written determination setting forth whether the contractor shall be deemed debarred. The hearing officer's determination shall be based on and supported by specific references to the evidence taken from the parties.

H. A determination that the contractor is debarred shall constitute a debarment order. The debarment order shall provide a term of debarment. Absent a finding of exceptional circumstances, the period of debarment shall not exceed five years. Notwithstanding the foregoing, a debarment of a longer period up to and including a permanent debarment may be imposed if the hearing officer determines that based on the severity of the violations, debarment for a longer period or permanent basis is necessary to protect the public's interests. The debarment order shall include terms which prohibit the contractor from participating in any City contract at any tier, directly or indirectly, during the stated debarment period. Any contractor that is made the subject of a debarment order shall be deemed non-responsible and disqualified for the purposes of bidding or being awarded any City contract.

I. The hearing officer's determination shall constitute a final decision for purposes of judicial appeal.

J. The hearing officer's determination shall not preclude the City or any other agency from initiating any legal proceeding against contractor or its affiliates for actions related to proceedings held pursuant to this section.

(Ord. No. 08-10, § 1, 8-12-08)