§103D-702  Authority to debar or suspend. (a)  After reasonable notice to the person involved and reasonable opportunityfor that person to be heard, the chief procurement officer, after consultationwith the using agency and the attorney general or corporation counsel, maydebar a person for cause from consideration for award of all public contractsand from performance on any public contract.  The serious nature of debarmentand suspension requires that these sanctions be imposed only in the public interestfor a governmental body's protection and not for the purpose of punishment.  Anagency shall impose debarment or suspension to protect a governmental body'sinterests and only for cause and in accordance with this section.  Thedebarment period shall not exceed three years.  The same officer, afterconsultation with the using agency and the attorney general or corporationcounsel, may suspend a person from consideration for award of all publiccontracts and from performance on any public contract if there is probablecause for debarment.  The suspension period shall not exceed three months.  Theauthority to debar or suspend shall be exercised in accordance with theprocedures prescribed by rules adopted by the policy board and shall be appliedonly to causes, convictions, and violations under subsection (b) after theeffective date of the rules adopted by the policy board.

(b)  The causes for debarment or suspensioninclude the following:

(1)  Conviction for commission of a criminal offenseas an incident to obtaining or attempting to obtain a public or privatecontract or subcontract, or in the performance of the contract or subcontract;

(2)  Conviction under state or federal statutesrelating to embezzlement, theft, forgery, bribery, falsification or destructionof records, receiving stolen property, or any other offense indicating a lackof business integrity or business honesty which currently, seriously, anddirectly affects responsibility as a contractor;

(3)  Conviction under state or federal antitruststatutes arising out of the submission of bids or proposals;

(4)  Violation of contract provisions, as set forthbelow, of a character that is regarded by the chief procurement officer to beso serious as to justify debarment action:

(A)  Deliberate failure without good cause toperform in accordance with the specifications or within the time limit providedin the contract; or

(B)  A recent record of failure to perform orof unsatisfactory performance in accordance with the terms of one or more contracts;provided that failure to perform or unsatisfactory performance caused by actsbeyond the control of the contractor shall not be considered to be a basis fordebarment;

(5)  Any other cause the chief procurement officerdetermines to be so serious and compelling as to affect responsibility as acontractor, including debarment by another governmental entity for any causelisted in the rules of the policy board; and

(6)  Violation of the ethical standards set forth inchapter 84 and its implementing rules, or the charters and ordinances of theseveral counties and their implementing rules.

(c)  The existence of a cause for debarmentdoes not necessarily require that a contractor be debarred.  The seriousness ofa contractor's acts or omissions and any remedial measure or mitigating factorsshall be considered in making any debarment decision.  Before arriving at anydebarment decision, the chief procurement officer shall consider factors suchas the following:

(1)  Whether the contractor had effective standards ofconduct and internal control systems in place at the time of the activityconstituting cause for debarment or had adopted those procedures prior to anygovernment investigation of the activity cited as the cause for debarment;

(2)  Whether the contractor brought the activity citedas the cause for debarment to the attention of the appropriate governmentagency in a timely manner;

(3)  Whether the contractor fully investigated thecircumstances surrounding the cause for debarment and made the result of theinvestigation available to the chief procurement officer;

(4)  Whether the contractor cooperated fully withgovernment agencies during the investigation and any court or administrativeaction;

(5)  Whether the contractor has paid or has agreed topay all criminal, civil, and administrative liability for improper activity,including any investigative or administrative costs incurred by thegovernmental body, and has made or has agreed to make full restitution;

(6)  Whether the contractor has taken appropriatedisciplinary action against the individuals responsible for the activityconstituting the cause for debarment;

(7)  Whether the contractor has implemented or agreedto implement remedial measures, including any identified by the governmental bodyor the chief procurement officer;

(8)  Whether the contractor has instituted or agreedto institute new or revised review and control procedures and ethics trainingprograms;

(9)  Whether the contractor has had adequate time toeliminate the circumstances within the contractor's organization that led tothe cause for debarment; and

(10)  Whether the contractor's management recognizesand understands the seriousness of the misconduct giving rise to the cause fordebarment and has implemented programs to prevent its recurrence.

The existence or nonexistence of any mitigatingfactors or remedial measures such as those set forth in this subsection shallnot necessarily be determinative of a contractor's present responsibility.  Ifa cause for debarment exists, the contractor has the burden of demonstrating tothe satisfaction of the chief procurement officer the contractor's presentresponsibility and that debarment is not necessary.

(d)  The chief procurement officer shall issuea written decision to debar or suspend.  The decision shall:

(1)  State the reasons for the action taken; and

(2)  Inform the debarred or suspended person involvedof the person's rights to review as provided in this part.

(e)  A copy of the decision under subsection(d) shall be mailed or otherwise furnished immediately to the debarred orsuspended person and any other party intervening.

(f)  The chief procurement officer shalltransmit a copy of the decision to debar or suspend a contractor to the stateprocurement office, which shall distribute a list to all governmental bodiescontaining the names of persons or firms debarred or suspended fromconsideration for award of all public contracts and from performance on anypublic contract.

(g)  Upon written notification under subsection(f), the chief procurement officer shall make a written determination whetherto allow the debarred or suspended person or firm to continue performance onany contract awarded prior to the effective date of the debarment orsuspension.

(h)  A decision under subsection (d) shall befinal and conclusive, unless the debarred or suspended person commences anadministrative proceeding under section 103D-709. [L Sp 1993, c 8, pt of §2; amL 1997, c 352, §23; am L 1999, c 162, §2; am L 2004, c 216, §2]