Section 3.1 Purpose This Policy sets forth rules for the debarment of and other measures against contracting firms or affiliates where it is demonstrated that government funds may not be properly utilized or the State's interest would not be safeguarded. These measures shall be used to protect the public interest and are not intended to be sanctions, penalties, or forms of punishment.
Section 3.2 Definitions (a) Adequate evidence means information sufficient to support the reasonable belief that a particular act or omission has occured.(b) Agency means the Vermont Agency of Transportation.(c) Affiliates. Persons are affiliates if, directly or indirectly,(i) either one controls or can control the other, or(ii) a third controls or can control both.(d) Board means the Vermont Transportation Board.(e) Participant means a person or an officer or employee of a person who directly or indirectly participates, may participate or has participated in Agency programs through an agreement of that person with a recipient or contractor of any tier. The term includes, but is not limited to, subcontractors, suppliers, fee appraisers, inspectors, real estate agents and brokers, consultants, architects, engineers, and attorneys.(f) Person means an individual, corporation, partnership or an unincorporated association, or other public or private entity.(g) Secretary means the Secretary of the Vermont Agency of Transportation or his/her designee.(h) FHWA means the Federal Highway Administration or any successor agency.(i) Suspension is the action taken under Section 3.3 of this Policy to disqualify a person temporarily from participation in Agency contracts.(j) Debarment is the action taken under Section 3.9 of this Policy to disqualify a person from participation in Agency contracts for a period not to exceed three (3) years.(k) Voluntary Exclusion is the disqualification of a bidder from Agency contracts as a result of an agreement voluntarily entered into under section 3.16 of this Policy, between the Agency and the person to be excluded. contracts for a period not to exceed three (3) years.Section 3.3 Suspension(a) The Secretary may suspend any participant or affiliate upon adequate evidence for any of the following causes-- (1) Commission of fraud or any criminal offense as an incident to obtaining, seeking to obtain, or performing government business or a public contract;(2) Commission of any criminal offense indicating a lack of business integrity or business honesty that seriously and directly affects the question of present responsibility including, but not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, false statements, fraud, receiving stolen property, violation of the Organized Crime Control Act of 1970, or violation of Federal or state antitrust statutes arising out of submission of bids or proposals;(3) Violation of any agreement for voluntary exclusion or any settlement made under this Policy; or(4) Commission or omission of an act of such serious or compelling nature that the act indicates a serious lack of business integrity or honesty. Such commissions or omissions include, but are not limited to--(i) the violation of any applicable law, regulation, or obligation relating to the performance of obligations incurred pursuant to a contract with the State of Vermont or an Agency or Department thereof; or(ii) making, or procuring to be made, any false statement or using deceit for the purpose of influcening in any way any action of the State.(b) An outstanding indictment or information is adequate evidence of suspected criminal conduct and may be the basis for the imposition of a suspension.Section 3.4 Suspension of Affiliates Suspension may include any affiliate of a participant. A determination to include an affiliate in a particular suspension must be made on a case-by-case basis. Among the factors to be considered in making this determination are the affiliate's knowledge of or participation in the conduct which is the basis for the suspension.
Section 3.5 Notice of Suspension Immediately after the suspension decision, a suspended person shall be furnished notice of the suspension by the Secretary. The notice shall include the specific acts or omissions on which the suspension is based, the provisions of Section 3.7 relative to period of suspension, and a statement that the participant does have a right to a hearing and may be represented by counsel, if desired.
Section 3.6 Hearing(a) Upon written request to the Board a suspended person is entitled to a hearing on a suspension before a hearing officer appointed by the Board; or by the Board or a committee thereof, as determined by the Board. The suspended person is entitled to a hearing within thirty (30) days of receipt of the written request by the Board. The request may be made anytime during the period of suspension.(b) All witnesses shall testify under oath or affirmation. Agency witnesses, if any, shall be called first and may be cross-examined by the suspended person. The person's witnesses may be cross-examined by any party.(c) A record shall be made of the proceedings. A transcription of the record shall be made available to a party at the expense of the requesting party.(d) Where appropriate, and if the parties agree, a suspension hearing may be consolidated with a debarment hearing involving the same issues.(e) The hearing officer or committee shall issue a proposed order and findings to the Board and the parties. If the hearing officer or committee recommends a continuation of the suspension, the proposed order shall indicate: (i) that there is adequate evidence of a cause listed in Section 3. 3, and(ii) that the length of suspension complies with Section 3.7. (f) If the Board conducts the hearing and decides upon a continuation of the suspension, the Board's order shall indicate: (i) that there is adequate evidence of a cause listed in Section 3. 3, and(ii) that the length of suspension complies with Section 3.7. Section 3.7 Period of Suspension (a) Temporary period. A suspension shall be for a temporary period pending the completion of any investigation or any administrative or judicial proceedings relating to a determination of any cause for suspension that may ensue.(b) Time limitation on decision to suspend. In any case involving a suspected violation of Federal or state law where prosecutive action has not been initiated within twelve (12) months from the date of the notice of suspension, suspension shall be terminated unless the prosecuting official requests an extension of the suspension. Notice of the proposed termination of the suspension shall be given to the prosecuting official not less than thirty (30) days prior to the expiration of the twelve (12) month period. In no event shall a suspension exceed eighteen (18) months unless prosecutive action has been initiated within that period.(c) Waiver of time limitation. The time limitation for suspension contained in this section may be waived by the affected party.Section 3.8 Review by the Board Within forty-five (45) days after receipt of the proposed order and findings from the hearing officer or committee under Section 3. 6, the Board shall issue an order relative to the suspension. At the Board's option, it may adopt the proposed findings and order of the hearing officer or committee if the findings are supported by the evidence and the conclusions are consistent with these regulations; it may remand the matter to the same or a different hearing officer for rehearing on specific points, which shall be specified, it may modify the decision, or it may order a de novo hearing. Notice of the Board's determination shall be sent to all parties.
Section 3.9 Debarment Grounds for a Debarment. The Secretary may debar any participant or affiliate upon adequate evidence for any of the following causes:
(a) Conviction for any cause which is a ground for a suspension as set forth in Section 3.3(a)(1) or Section 3. 3(a)(2);(b) For any cause which is a ground for suspension as set forth in Section 3.3(a)(3) or Section 3. 3(a)(4);(c) Violation of a law or regulation relating to personal or organizational conflicts of interest as an incident to obtaining, attempting to obtain, or in the performance of, a contract with the Agency.(d) A willful or serious failure to perform or a record of unsatisfactory performance in accordance with the terms of one or more contracts with the Agency, provided that such failure or unsatisfactory performance has occurred within a reasonable period of time preceding the determination to debar.(e) Disqualification from participation in direct or indirect contracting by any federal agency or any other state.Section 3.10 Debarment of Affiliates Debarment may include any affiliate of a participant. A determination to include an affiliate in any particular debarment shall be made on a case-by-case basis. Among the factors to be considered in making this determination are the affiliate's knowledge of or participation in the conduct which is the basis for the debarment. Where debarment of an affiliate is proposed, the affiliate shall be afforded the rights of notice and hearing provided in this Policy.
Section 3.11 Notice of Debarment (a) Notice of debarment. When a debarment is ordered the Secretary shall give notice to the Board and to the participant prior to any public announcement. The notice shall state the specific acts or omissions which form the basis of the action.(b) The Secretary shall set a term of debarment of not less than six (6) months nor more than thirty-six (36) months and give his/her reasons for the length of the debarment. In determining the length of the debarment, the Secretary shall consider among other reasons the following: (1) the integrity of the person subject to debarment, including, but not limited to whether restitution, if appropriate, has been made;(2) whether the person's conduct since suspension, if any, has been meritorious;(3) whether there has been circumvention of the suspension, if any;(4) whether the individuals who engaged in the behavior giving rise to debarment are in a position to dominate, manage, or meaningfully influence the business and operations of the person;(5) the seriousness and nature of the cause of the debarment, including the amount of any suspected collusion and its effect on the cost of Agency projects;(6) the promotion of increased competition in bidding on Agency projects;(7) actions taken by other governmental entities or agencies regarding debarment or disqualification with respect to the person in question or in similar situations.Section 3.12 Review by the Board At any time after an order of debarment by the Secretary, the participant may petition the Board for review of the Secretary's order. The Board may, in its discretion: appoint a hearing officer to conduct a hearing and issue proposed findings and conclusions to the Board; or conduct a hearing before the full Board, or a committee thereof. In the case of a debarment based upon conviction under Section 3. 9(a), the Board shall only consider the length of the debarment.
Section 3.13 Hearing (a) If a hearing is ordered by the Board, the hearing officer, the Board, or the committee shall-- (1) Provide notice of the time and place of the hearing to all parties and include therein a statement indicating the nature of the proceedings and their purpose. Any party may be represented by counsel.(2) Require all witnesses to testify under oath or affirmation. Agency witnesses, if any, shall be called first and may be cross-examined by the person against whom debarment is proposed. The person's witnesses may also be cross-examined by any other party.(3) Make a record of the proceedings and make a transcription of the record available to any requesting party at that party's expense.(b) The Board's determination shall be made within sixty (60) days after the close of evidence at a hearing before it or the issuance of proposed findings and conclusions by a hearing officer. The Board's determination shall be a final order.Section 3.14 Debarment by the Board The Board, on its own motion, may order a debarment hearing if the Secretary has not acted. Such a hearing will be in accordance with Section 3.13. In setting the length of debarment, the Board shall consider, among other reasons, the criteria set out at Section 3.11(b) (1-7).
Section 3.15 Reinstatement (a) A person debarred under this Policy may file a request for reinstatement at any time. The request shall be in writing and addressed to the Secretary.(b) Procedure. The Secretary may limit the debarred person to a opportunity to submit documentary evidence and written briefs or, at his/her discretion, may grant a request for a oral hearing.(c) The Secretary shall give notice of his/her recommendation on reinstatement to the debarred person and to the Board. The Board may review the determination on its motion, on petition of the debarred person, or it may decline review. If the Board declines review, the Secretary's recommendation will have the effect of a determination by the Board.Section 3.16 Voluntary Exclusion Agreement for voluntary exclusion. When in the best interest of the State, and provided that allegations of fraud or criminal activities are not involved, the Secretary, instead of taking administrative action, may enter into an agreement with the participant providing for voluntary exclusion from Agency programs for a specified period of time. Agreements for voluntary exclusion are entered into for the benefit of both parties and do not constitute administrative suspension or debarment measures. However, violations of an agreement for voluntary exclusion may result in administrative action under this Policy.
Section 3.17 Exclusion from Participation (a) Suspended contractors, debarred contractors and individuals and participants who have entered into an agreement forvoluntary exclusion shall be excluded from all forms of participation on Agency projects including, but not limited to, the following: (4) Material manufacture and supply(6) Preparation of bids of others(b) When circumstances dictate as provided in subsection (c), the Secretary, with the prior approval of the Federal Highway Administration on any projects involving Federal Highway Administration funds, as applicable, may allow debarred contractors and individuals to participate in Agency projects to the following limited extent: (1) Material manufacture and supply(c) Contractors wishing to utilize debarred contractors for these limited activities must petition the Secretary for authorization to do so as directed by the Secretary. Petitions must name the debarred contractor and/or individuals requesting permission to participate in projects, the nature of participation, and the total dollar value of material, leases and supply to be provided by the debarred person. Unless waived in whole or in part by the Secretary, the petition must also detail and document the contractor's unsuccessful good faith solicitation, according to the policies and guidelines of the Agency, to secure a person who is not debarred to provide the materials and/or lease the equipment that the contractor intends to secure from the debarred person. The evaluation of the petition will be in consideration of the best interest of the State and will be based upon the following factors, among others:(1) The unique value of the debarred person's services, material, or equipment;(2) The overriding need for the debarred person's services, material, or equipment.(d) Debarred persons who are authorized limited access to Agency projects by the Secretary shall exercise no direction or control over work on the project or the contractor. Authorizations from the Secretary will be in writing and will state the specific conditions of project involvement allowed the debarred person. Failure of the person to comply with the specific conditions of project involvement allowed by the Secretary will result in immediate withdrawal of approval for participation by the debarred person by the Agency.(e) Debarred Subcontractors. No subcontractor approval request for use of a debarred person or contractor will be granted by the Agency during the time frame of a contractor's debarment period, or if specifically set out on the debarment notice, during the period of debarment as a subcontractor.14-004 Code Vt. R. 14-010-004-X
Effective Date: July 29, 1985 (SOS Rule Log #85-42)