Offerors who have been debarred, may apply for a declaration
of rehabilitation where such offeror has taken affirmative actions to remedy
the facts or circumstances that lead to the debarment. Applications for a
declaration of rehabilitation shall be filed with GTA's Procurement Director in
accordance with this Rule. The decision to grant or deny such applications is
within the discretion of the Procurement Director, as long as there is a
rational basis for the decision. Decisions shall not be arbitrary or
capricious.
(a) General Standards.
1. An application for a declaration of
rehabilitation may be made by any offeror who has been suspended or debarred by
GTA, if such offeror has either declined to protest or exhausted the processes
set forth in Rule
665-2-11-.13.
2. A declaration of rehabilitation will not
result in the expungement of the existing record documenting the suspension or
debarment. A copy of the decision granting the requested declaration or denying
the application shall be appended to the appropriate underlying
records.
3. In instances where an
offeror has been debarred, the restrictions and scope of the debarment decision
shall remain in full effect until the debarment time limit has expired, UNLESS
the Procurement Director renders a decision granting the application for
declaration of rehabilitation effective earlier than the original debarment
time limit.
(b) Time for
Filing Application for Declaration of Rehabilitation.
1. The submission of an application for a
declaration of rehabilitation shall not toll any time limits set forth for
filing a Protest. If an offeror or contractor files a Protest, no application
for a declaration of rehabilitation may be filed prior to the issuance by GTA
of a final decision of the Protest or the withdrawal or abandonment of the
Protest.
2. Debarred offerors may
not file an application for a declaration of rehabilitation until 12 months
have passed from the effective date of the debarment, or until the debarment
time limit has expired, whichever is earlier. Furthermore, debarred offerors
must wait at least twelve (12) months after a decision by the Procurement
Director denying an application for a declaration of rehabilitation or until
the expiration of the debarment time limit, whichever is earlier, before
submitting another application for rehabilitation, unless the Procurement
Director's decision expressly allows otherwise.
(c) Form and Content of Application. To apply
for a declaration of rehabilitation, an offeror or contractor must submit a
written filing to the Procurement Director in support of such application. The
filing in support of the rehabilitation application shall state how the
applicant has demonstrated its responsibility for future procurement awards,
and shall:
1. demonstrate that the issues
leading to the debarment have been remedied by the applicant, and/or
2. to the extent that appropriate remedies or
corrective action(s) require the agreement of GTA or a particular procuring
agency, set forth the agreement of the applicant to implement such remedies or
corrective actions should a declaration of rehabilitation by the Procurement
Director so require.
(d)
Remedies. Remedies or corrective actions may include, but are not limited to:
1. retaining an auditor, monitor, technical
consultant or independent private sector inspector general to review the
applicant's business practices, oversee its performance and/or develop specific
remedies with respect to the subject matter of the debarment;
2. ownership changes and/or reorganizations
of the legal structure of the applicant in a manner that appropriately remedies
the issues raised in the debarment;
3. dismissing employees whose actions were
the subject matter of the debarment;
4. entering into voluntary agreements with
the GTA or other state entity prescribing corrective actions and/or otherwise
appropriately remedying the subject matter of the debarment;
5. resolving judicial or administrative
proceedings that were the subject matter of the debarment under terms
demonstrating that such concerns have been appropriately remedied; or
6. engaging in any other lawful action
leading to resolution of the issues that were the subject matter of the
debarment, or demonstrating that any negative information that lead to the
debarment has been appropriately remedied.
(e) Notice to Agencies. The applicant shall
concurrently provide a copy of its application for rehabilitation to the GTA,
and to the Contracting Officer (or equivalent or higher position) of any agency
that requested debarment proceedings be initiated against the
contractor.
(f) GTA Procurement
Director Decision. The Procurement Director shall review the application and
shall consult with all agencies copied in accordance with subparagraph (e)
above, and may consult with any other relevant government agency, prior to
making a final decision concerning the application for a declaration of
rehabilitation. The Procurement Director may seek additional information from
the applicant. Upon review of the application and any subsequent submission by
the applicant, the Procurement Director shall issue a decision granting or
denying the application for declaration of rehabilitation based upon the
adequacy of the remedies or corrective actions identified by the applicant, as
well as its overall capacity to be a responsible contractor. The Procurement
Director may condition any declaration of rehabilitation upon the applicant's
completion of specific additional corrective actions. The Procurement
Director's decision granting or denying the application for declaration of
rehabilitation shall be final and is not subject to Protest or any other form
of administrative review.
(g)
Notification of Decision. A copy of the Procurement Director's decision
granting or denying the application for declaration of rehabilitation shall be
sent to the contractor and to the contracting officer of any agency that
requested that debarment proceedings be initiated against such
contractor.