Ga. Comp. R. & Regs. R. 665-2-11-.13 - Debarment and Suspension

(a) Grounds for Debarment.

1. Grounds for debarment include the following acts or omissions on the part of the contractor or any of its officers, directors, partners, five percent shareholders, principals, or other person substantially involved in its activities:

(i) conviction under any state or federal law of any of the following:

(I) a criminal offense incident to obtaining, or attempting to obtain, or performing, a public or private contract;

(II) fraud, embezzlement, theft, bribery, forgery, falsification or destruction of records, or receiving stolen property;

(III) a criminal violation of any state or federal antitrust law;

(IV) violation of the Racketeer Influence and Corrupt Organization Act, 18 U.S.C. section 1961 et seq., or the Mail Fraud Act, 18 U.S.C. section 1341 et seq., for acts in connection with the submission of bids or proposals for a public or private contract;

(V) conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any statute described in subparagraph (IV) above; or

(VI) an offense indicating a lack of business integrity or business ethics that seriously and directly affects responsibility as a contractor;

(ii) judgment of civil liability under any state or federal antitrust law for acts or omissions in connection with the submission of bids or proposals for a public or private contract, or in the performance of such a contract;

(iii) arrears on any debt or contract with the State or without limitation, any of its departments, agencies, boards, bureaus, commissions, or authorities; default as surety or otherwise upon any obligation to the State or without limitation, any of its departments, agencies, boards, bureaus, commissions, or authorities; or arrears for taxes;

(iv) violation of contract provisions, as set forth below:

(I) failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract, or

(II) unsatisfactory performance in connection with the terms of one or more contracts;

(v) debarment by another governmental entity or public authority;

(vi) damage or destruction to State property;

(vii) making or causing to be made any false, deceptive, or fraudulent material statement in any bid, proposal, or application for State or other government work, or in the performance of such work;

(viii) use of unauthorized subcontractors under a contract where subcontractor authorization is required;

(ix) refusal to cooperate with reasonable requests of GTA, Department of Audits, or other State inspectors or representatives with respect to work under the contract provisions, plans, or specifications;

(x) improper conduct, including but not limited to, intentional or grossly negligent billing irregularities, submitting false or frivolous or exaggerated claims, falsification of documents or records, willful destruction of documents or records the contractor had an obligation to maintain, bribery, use of false or deceptive statements to obtain some benefit, causing competition to be restrained or limited, misrepresentation, falsely claiming to be a minority- or woman-owned or small business, violation of ethical standards established by the State, and other dishonesty incident to obtaining, prequalifying for, or performing any contract or modification thereof; or

(xi) any other cause sufficiently serious and compelling that a reasonable person would seriously doubt the capability of the contractor to perform State procurement or service requirements.

2. A contractor may also be debarred if:

(i) it was founded or established, or operates in a manner designed, to evade the application or defeat the purpose of these Rules, or

(ii) it is a successor, assignee, subsidiary, or affiliate of a debarred contractor.

3. Imputed Conduct.

(i) The fraudulent, criminal, or other improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with a contractor may be imputed to that contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor or with the contractor's knowledge, approval, or acquiescence. The contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(ii) The fraudulent, criminal, or other improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with that contractor who participated in, knew of, or had reason to know of the contractor's conduct.

(iii) The fraudulent, criminal, or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to the other participating contractors if the conduct occurred for or on behalf of the joint venture or other similar arrangement, or with the knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(b) Procedure for Initiating Debarment Proceedings

1. An Agency may petition the GTA, requesting debarment proceedings be initiated as to any contractor or potential contractor. Such petition must set forth the facts that form the basis for the agency's belief that debarment is warranted.

2. GTA may, without limitation, independently initiate debarment proceedings as to any contractor or potential contractor. GTA shall reduce to writing the facts that form the basis for its belief that debarment is warranted.

3. Debarment proceedings may be initiated at any time.

4. The purpose of such debarment proceedings shall be to determine whether a contractor should be barred from consideration for the award of any procurement conducted under GTA's authority for a period not to exceed three years.

(c) Suspension Prior to Possible Debarment

1. After consultation with the GTA or agency procurement officer(s), and where practicable, the contractor who is to be suspended, and upon written determination by the Procurement Director that probable cause exists for debarment under these Rules, GTA may suspend a contractor.

2. A notice of suspension including a copy of such determination shall be sent to the suspended contractor. Such notice shall state that:

(i) The suspension is for the period it takes to complete an investigation into possible debarment but not for a period in excess of 120 days.

(ii) Bids or proposals will not be solicited from the suspended contractor, and, if they are received, they will not be considered during the period of suspension; and

(iii) If contractor chooses to contest the suspension, Contractor must file a Protest of the suspension through the GTA Protest Procedure set forth in Rule 665-2-11-.07 within five (5) business days of receipt of the notice of suspension. In conjunction with any such Protest, Contractor may also request a hearing in accordance with Rule 665-2-11-.07.

3. A suspension of a contractor shall be effective for no longer than 120 days, unless debarment proceedings have been initiated by GTA within 120 days from the date of suspension. If proceedings have been initiated within this time frame, then the suspension shall be effective until the conclusion of the debarment proceedings. However, a delay of a debarment proceeding that is caused by a suspended contractor shall be deemed to be consent by that contractor to an extension of the suspension beyond the 120 day maximum. The period of such extension shall be equal to the period of such delay caused by the contractor. When an issue regarding delay is raised by either party, the contractor shall bear the burden of demonstrating that the delay was not caused by the contractor.

4. Protest of Suspension.

(i) Any dispute of a suspension must be made via a Protest filed in strict accordance with the provisions of Rule 665-2-11-.07.

(ii) The protesting party shall have the burden of proving by clear and convincing evidence that there is no rational basis for the suspension.

5. Effect of Decision. A contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any Protest or appeals. The suspension may be ended by the officer who issued the notice of suspension; by the GTA Executive Director; or by a court of law; but, otherwise shall only be ended when the suspension has been in effect for 120 days (unless a debarment proceeding has been delayed by contractor pursuant to Rule 665-2-11-.13(c)3) or a debarment decision has taken effect.

(d) Debarment Proceedings.

1. Written notice of the proposed debarment action shall be sent by certified mail, return receipt requested, to the contractor. This notice shall state that:

(i) Debarment is being considered;

(ii) The allegations, reasons or factual basis for the proposed debarment action;

(iii) If contractor chooses to contest the proposed debarment, Contractor must file a Protest of the proposed debarment through the GTA Protest Procedure set forth in Rule 665-2-11-.07 within five (5) business days of receipt of the notice of proposed debarment. Such Protest must contain an admission, denial, or other response to each stated allegation, reason or factual basis for the proposed debarment. Any reason or basis not addressed may be deemed admitted. In conjunction with any such Protest, Contractor may also request a hearing in accordance with Rule 665-2-11-.07;

(iv) If the contractor so requests, a hearing will be held; and,

(v) The contractor may be represented by counsel.

2. Authority of Protest Decisionmaker conducting a Debarment Hearing. In addition to those powers set forth in Rule 665-2-11-.07, the Protest Decisionmaker, in the conduct of any debarment hearing, has the power, among others, to:

(i) hold informal conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer's own motions;

(ii) Require parties to state their positions with respect to the various issues in the proceedings;

(iii) Require parties to produce for examination those relevant witnesses and documents under their control;

(iv) Rule on motions and other procedural items or matters pending before such officer;

(v) Regulate the course of the hearing and the conduct of the participants therein;

(vi) Receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;

(vii) Fix time limits for submission of written documents and matters before such officer;

(viii) Impose appropriate sanctions against any party or person failing to obey an order under these procedures, which sanctions may include, but are not limited to:

(I) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(II) Excluding all testimony of unresponsive or evasive witnesses; and

(III) Expelling any party or person from further participation in the hearing;

(ix) Take official notice of any material fact not appearing in the record if such fact is among the traditional matters of judicial notice;

3. Debarment Hearing Procedures.

(i) Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the Protest Decisionmaker. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if that witness were present. The Protest Decisionmaker may require evidence in addition to that offered by the parties.

(ii) The hearing may be recorded but need not be transcribed except at the request and expense of the contractor. A record of those present, identification of any written evidence, copies of all written statements, and a summary of the hearing shall be sufficient record.

(iii) Opening and/or closing statements may be made unless a party waives this right.

4. At any time before any debarment, the contractor and the petitioning agency (or GTA where it is the initiating entity of the debarment proceedings) may propose a formal or informal disposition agreement relating to the debarment, which if concurred with by GTA, may be grounds for the termination of the debarment action. Such proposed agreements may be conditioned upon the termination of the debarment action.

(e) Debarment Decisions.

1. The petitioning agency (or GTA where it is the initiating entity of the debarment proceedings) shall have the burden of proving by a preponderance of the evidence that there is sufficient reason to debar the contractor.

2. GTA may, in debarring a contractor, disqualify that contractor from: being awarded a procurement; performing as a subcontractor; providing supplies for a procurement; and/or, exercising a renewal option. GTA may impose such sanctions upon the contractor's activities with a single agency or any combination of agencies under GTA's statutory authority, and to a single type of procurement or any combination of procurement types. In determining the scope or period of a contractor's debarment, GTA may impose a time period and such conditions on the contractor's GTA related procurement activities as it considers appropriate, including, but not limited to, monitoring of the contractor's future procurement activities through GTA procurements.

3. A debarment decision shall take effect upon issuance. After the debarment decision takes effect, the contractor shall remain debarred until the debarment period specified in the decision expires or until GTA is provided with information it deems sufficient to indicate that contractor is rehabilitated and is likely to be a responsible bidder in accordance with Rule 665-2-11-.14.

4. At the time of debarment, or at any time thereafter, GTA or any agency may exercise its right to terminate for convenience an existing contract between that agency and the debarred contractor, or may prohibit any modification, extension, or renewal of any such contract. In such case, the contractor shall be entitled to receive and the terminating agency shall be obligated to pay only payment for the work performed until the point of termination.

(f) GTA List of Suspended and Debarred Contractors. A list of contractors currently suspended or debarred, including a summary of the scope of the suspension or debarment, shall be maintained by GTA. This list shall include the following information:

1. the name of the contractor and its principals,

2. the name of the agency that initiated the debarment proceeding,

3. the effective date and scope of the debarment or suspension, and

4. the termination date of the debarment.

Notes

Ga. Comp. R. & Regs. R. 665-2-11-.13

O.C.G.A. Secs. 50-25-4, 50-25-7.3.

Original Rule entitled "Debarment and Suspension" adopted. F. June 25, 2004; eff. July 15, 2004.