Chapter 16.36
DEBARMENT OR SUSPENSION

Sections:

16.36.010    Authority to debar or suspend.

16.36.020    Suspension and debarment referral and initiation procedures.

16.36.030    Suspension procedures.

16.36.040    Debarment hearings.

16.36.050    Debarment decision.

16.36.010 Authority to debar or suspend.

After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the chief procurement officer, after consulting with the borough attorney, is authorized to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three years. After consultation with the borough attorney, the chief procurement officer is authorized to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall be for a period not exceeding three months. The causes for debarment or suspension include:

A. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

B. Conviction under state and federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously and directly affects responsibility as a borough contractor;

C. Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;

D. Violation of contract provisions, as set forth below, of a character which is regarded by the chief procurement officer to be so serious as to justify debarment action:

1. Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract, or

2. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided, that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;

E. Any other cause the chief procurement officer determines to be so serious and compelling as to affect responsibility as a borough contractor, including debarment by another governmental entity; and

F. For violation of the ethical standards set forth in Chapter 16.44 FNSBC. (Ord. 2002-29 § 35, 2002; amended during 1993 republication; Ord. 82-69, 1982. 2004 Code § 16.60.010.)

16.36.020 Suspension and debarment referral and initiation procedures.

A. Referral.

1. Debarment may be initiated by anyone who oversees a borough contract, including a service area commissioner, by referral to the chief procurement officer or designee.

2. A referral must be in writing, state the specific borough-authorized cause(s) supporting referral for debarment, and shall utilize any referral form established by the chief procurement officer or designee.

3. The individual signing the referral must provide all other relevant documents or information upon request by the chief procurement officer or designee. If a road service area commissioner signs the referral, rural services shall assist the commissioner with providing any requested documents or information.

B. Responsibility of Chief Procurement Officer upon Receipt of Referral.

1. Upon receipt of a referral the chief procurement officer or designee must make a preliminary finding of whether to accept or reject the referral. In making this decision the chief procurement officer or designee will assume that the relevant factual allegations as presented are true and will accept the referral if the allegations are sufficient on their face to support debarment. If not, the referral may, after consultation with the borough attorney, be rejected.

2. If the referral is rejected, the decision to reject a referral must be in writing and must specify the reasons for the rejection.

3. If the referral is accepted the matter will be referred for investigation and review for potential suspension and/or debarment.

C. Investigation and Review.

1. The chief procurement officer or designee will initiate a reasonable review or investigation of the referral.

2. Notice must be given to the contractor or prospective contractor of the referral and investigation which must be in writing and sent by certified mail, return receipt requested, or by personal service. The notice must (a) state the applicable cause(s) for debarment, the facts alleged in the referral and any known facts supporting each cause, (b) identify the relevant code provisions regarding debarment, and (c) provide a date by which the contractor may present relevant information.

3. The chief procurement officer or designee shall then consider all information presented and weigh all aggravating or mitigating factors and reach a conclusion whether to proceed with suspension and/or debarment. A decision not to proceed shall be in writing, state the reasons for the decision, and copied to the individual who signed the referral. This decision may be appealed to the mayor.

D. Administrative Agreements. If borough interests can be adequately protected, in lieu of proceeding with suspension and/or debarment the contractor and the chief procurement officer may enter into a voluntary administrative agreement. The administrative agreement must require adequate remedial measures or other action sufficient to ensure that contractor is responsible to perform borough work. (Ord. 2013-23 § 2, 2013. 2004 Code § 16.60.015.)

16.36.030 Suspension procedures.

A. Initiation. After consultation with the affected using department, the borough attorney, and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the chief procurement officer that probable cause exists for debarment, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that:

1. The suspension is for the period it takes to complete an investigation into possible debarment but not for a period in excess of 90 days;

2. Bids or proposals will not be solicited from the suspended person, and if they are received, will not be considered during the period of suspension; and

3. If a hearing has not been held, the suspended person may request a hearing in accordance with FNSBC 16.36.040.

B. Effect of Decision. A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect until ended by the chief procurement officer or by a court, but otherwise shall be ended only when the suspension has been in effect for 90 days or a debarment decision takes effect. (Ord. 2002-29 § 36, 2002. 2004 Code § 16.60.020.)

16.36.040 Debarment hearings.

A. A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. The chief procurement officer must receive such request within 10 days of receipt of notice of the proposed action. If no request is received within the 10-day period, the chief procurement officer, in compliance with this section, may make a final determination.

B. If a hearing is requested pursuant to subsection (A) of this section, the chief procurement officer may appoint a hearing officer to conduct the hearing and recommend a final decision. Otherwise, the chief procurement officer shall act as the hearing officer. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be by personal service or by certified mail, and shall state the nature and purpose of the proceedings. The hearing officer has the full power to conduct the hearing as the hearing officer believes appropriate in accordance with applicable due process requirements including the power and ability to regulate the course of the hearing and conduct of all participants and to administer oaths or affirmations. (Ord. 2002-29 § 36, 2002. 2004 Code § 16.60.030.)

16.36.050 Debarment decision.

A. The chief procurement officer shall issue a written decision to debar. The decision shall state the reasons for the action taken; and inform the debarred person of the right to judicial review as provided in this section. When debarment is ordered the decision shall state the length of the debarment, the reasons for such action, and to what extent affiliates are affected.

B. A copy of the decision shall be mailed or otherwise furnished immediately to the debarred person. The decision shall take effect upon issuance and receipt by the person debarred. The decision shall be final and conclusive, unless fraudulent, or the debarred person files an administrative appeal with superior court in accordance with court rules. If appealed the decision shall remain effective until a court otherwise orders or until the period of debarment expires. (Ord. 2002-29 § 36, 2002. 2004 Code § 16.60.040.)