Okla. Admin. Code § 731:10-1-5

Current through Vol. 42, No. 7, December 16, 2024

Section 731:10-1-5 - Debarments and suspensions

(a)Debarment. A contractor, any affiliate of a contractor, any subcontractor, material supplier or any director, officer, agent, or employee of any such entity who commits any bidding crime in the performance of a public construction contract awarded by the Authority, or for any of the reasons set forth in this Rule shall be subject to debarment proceedings. The term "bidding crime" as used herein means any act prohibited by any state or federal law committed in any jurisdiction, such act involving fraud, conspiracy, collusion, perjury or material misrepresentation with respect to bidding on any contract, public or private.

(1) Debarment may occur for any of the following reasons:

(A) Conviction of a bidding crime resulting from a bench or jury trial, any plea of guilty or nolo contendere, any public admission of a bidding crime or any presentation as an unindicted co-conspirator admitting guilt of a bidding crime; or

(B) Conviction of any offense indicating a lack of moral and ethical integrity which may reasonably be perceived as relating to or reflecting upon the business practices of the entity or individual; or

(C) Any other cause of a serious and compelling nature affecting the responsibility of the entity or individual; or

(D) Disqualification or debarment by another state or an agency of this State, or an agency of the Federal government.

(E) Unsatisfactory performance of work on an Authority project.

(2) No conviction, whether from bench or jury trial, nor any plea of guilty or nolo contendere which is more than five (5) years old at the time of discovery by the Authority shall be used as the sole basis for a debarment.

(3) Upon preliminary determination by the Authority's Director of Engineering that an entity or individual is subject to debarment hereunder, the Director of Engineering shall cause the entity or individual to be notified by certified mail, return receipt requested, as provided in 75 O.S. § 309, with a copy of such notification to the Chairman of the Authority, and the procedures set forth in the Administrative Procedures Act for individual proceedings shall govern. Upon receipt of such notification, the Chairman of the Authority shall appoint a hearing examiner to conduct the individual proceeding and promulgate a proposed order pursuant to 75 O.S. § 311. A copy of such proposed order, together with a statement of the reasons therefor and of each issue of fact or law necessary to such proposed order shall be sent by certified mail, return receipt requested, to the entity or individual which is the subject of such proposed order at least fifteen (15) days prior to a meeting at which the Authority is to consider or render a decision on the proposed order. Such party shall be afforded the opportunity to file exceptions and present briefs and oral argument to the Authority at the meeting at which the Authority is to consider or render a decision on the proposed order as provided in 75 O.S. § 311. The Authority shall meet and consider or render a decision on the proposed order and promulgate a final agency order and provide notice thereof pursuant to 75 O.S. § 312.

(4) If after reasonable notice and on opportunity for hearing the entity or individual fails to appear, the Authority may impose debarment without further notice.

(5) Debarment for the reasons stated in (a)(1)(A), (a)(1)(B), or (a)(1)(C) of this Section 5 shall be for a period of not less than three (3) months.

(6) Debarment for the reasons stated in (a)(1)(D) or (a)(1)(E) of this Section 5 shall be for the period of time assessed by the Authority.

(7) The Director of the Authority may lift or suspend a debarment at any time if it is in the public interest. The following mitigating circumstances may influence this decision:

(A) Degree of culpability.

(B) Restitution of damages to the State.

(C) Cooperation in the investigation of other bidding crimes.

(D) Disassociation with those involved in bidding crimes or other improper action.

(E) Whether lengthy disqualification and debarment is required for protection of the State.

(8) Debarment shall prohibit the debarred entity or individual and all affiliates from acting as a subcontractor, material supplier, equipment supplier or lessor, labor or services contractor, fee appraiser, contract broker, inspector, real estate agent or broker, consultant, architect, engineer, or attorney on any Authority project, as well as denying the privilege of bidding as a prime contractor.

(9) Illegal or improper conduct of any individual may be fully imputed to the business entity with which the individual is or was associated, or by whom the individual was employed, where that conduct was engaged in within the course of the individual's employment, or with knowledge or approval of the business entity, or thereafter ratified by it.

(10) Debarment in no way affects the obligations of an entity or individual to complete services already under contract, however the Authority reserves the right to terminate the contracts of a debarred entity or individual if termination is in the best interests of the State.

(11) The Director of the Authority may, in the public's best interest, suspend or otherwise delay inquiry, review, or any debarment in the event such action may impede, hinder or delay any federal or state investigation.

(12) Any entity or individual qualified to bid on contracts to be awarded by the Authority shall have a duty to notify the Authority if it is convicted of any bidding crime within thirty (30) days of such conviction. Failure to furnish this notification is a serious and compelling offense sufficient to result in debarment in and of itself.

(b)Performance Suspension. A contractor, any affiliate of a contractor, any subcontractor, material supplier or any director, officer, agent, or employee of any thereof may be suspended from doing work for the Authority or participation in a project funded by the Authority.

(1) Performance Suspension may occur for any of the following reasons:

(A) If the entity or individual fails or refuses to prosecute all of the work or any separable part thereof, with such diligence as will insure its completion within the time specified in the contract, including any extension, or fails to complete the work under any one of the entity or individual's contracts within the time specified; or

(B) A completed investigation or civil judgment evidences a serious lack of business integrity; the entity or individual exhibits willful disregard for lawful requirements; or there is repeated noncompliance with rules, regulations, contract specifications or the terms of other agreements including failure to honor valid debts incurred in the performance of the project; or

(C) An indictment for a crime or a civil judgement which indicates a reckless disregard for safety of the traveling public or structural integrity of a highway, bridge or fixtures, so that continued involvement of the entity or individual creates a risk to public safety or a potential for structural failure; or

(D) Unsatisfactory performance of work on an Authority project.

(2) A performance suspension shall be for the period of time assessed by the Authority.

(3) Upon preliminary determination by the Authority's Director of Engineering that an entity or individual is subject to performance suspension under this hereunder, the Director of Engineering shall notify the entity or individual by certified mail, return receipt requested, as provided in 75 O.S. § 309, with a copy of such notification to the Chairman of the Authority, and the procedures set forth in the Administrative Procedures Act for individual proceedings shall govern. Upon receipt of such notification, the Chairman of the Authority shall appoint a hearing examiner to conduct the individual proceeding and promulgate a proposed order pursuant to 75 O.S. § 311. A copy of such proposed order, together with a statement of the reasons therefor and of each issue of fact or law necessary to such proposed order shall be sent by certified mail, return receipt requested, to the entity or individual which is the subject of such proposed order at least fifteen (15) days prior to a meeting at which the Authority is to consider or render a decision on the proposed order. Such party shall be afforded the opportunity to file exceptions and present briefs and oral argument to the Authority at the meeting at which the Authority is to consider or render a decision on the proposed order as provided in 75 O.S. § 311. The Authority shall meet and consider or render a decision on the proposed order and promulgate a final agency order and provide notice thereof pursuant to 75 O.S. § 312.

(4) If after reasonable notice and an opportunity for hearing the entity or individual fails to appear, the Authority may impose the performance suspension without further notice.

(5) Performance suspension shall prohibit the entity or individual and all affiliates from acting as a subcontractor, materials supplier, equipment supplier or lessor, labor or services contractor, fee appraiser, contract broker, inspector, real estate agent or broker, consultant, architect, engineer, or attorney on any Authority public construction project as well as denying the privilege of bidding as a prime contractor.

(6) Illegal or improper conduct of any individual may be fully imputed to the business entity with which the individual is or was associated, or by whom the individual was employed, where that conduct was engaged in within the course of the individual's employment, or with knowledge or approval of the business entity, or was thereafter ratified by it.

(7) Performance suspension in no way affects the obligations of an entity or individual to the Authority to complete services already under contract, however the Authority reserves the right to terminate the contracts of a suspended entity or individual if termination is in the best interests of the State.

Okla. Admin. Code § 731:10-1-5

Added at 17 Ok Reg 1713, eff 5-25-00