Chapter 4.05
CAPITAL IMPROVEMENTS

Sections:

4.05.015    Purchasing officer; duties.

4.05.020    Delegations by purchasing officer.

4.05.025    Definitions.

4.05.030    Public improvement contracts.

4.05.035    Contract amounts.

4.05.040    Competitive sealed bid procedure.

4.05.045    Bidding review board.

4.05.050    Protests.

4.05.055    Administration of protest.

4.05.060    Exceptions to competitive sealed bidding and submission of quotations.

4.05.065    Authority to debar or suspend.

4.05.070    Causes for debarment or suspension.

4.05.075    Notice.

4.05.080    Hearing.

4.05.085    Hearing procedures.

4.05.090    Recommendation by a hearing officer.

4.05.095    Final decision by the manager.

4.05.100    Judicial appeal.

4.05.105    Civil and criminal penalties.

4.05.120    Reinstatement.

4.05.015 Purchasing officer; duties.

A.    The manager shall be the purchasing officer for the Municipality of Skagway Borough.

B.    Except as otherwise specifically provided by ordinance, the purchasing officer shall:

1.    Procure or supervise the procurement of all goods and services purchased by or donated to the municipality;

2.    Prescribe the time, manner, and form of all requests for purchases of goods and services purchased by the municipality;

3.    With the concurrence of the borough attorney, prescribe standard forms for bids, requests for proposals, and contracts;

4.    Prescribe training in public procurement methods for municipal employees;

5.    Prescribe administrative policies and procedures which may be necessary to carry out the provision of this chapter;

6.    Supervise the opening of bids and evaluations of requests for proposals, and issue notices regarding the award of contracts.

(Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.020 Delegations by purchasing officer.

A.    The Manager may delegate, in writing, to other municipal employees the authority to procure or supervise the procurement of goods and services needed by the municipality.

B.    A delegation under this section shall be accompanied by the Manager’s written determination that the delegate possesses training and experience adequate to the delegation.

C.    Procurement authority delegated under this section may be limited as to type or amount and may be revoked by the Manager.

D.    No municipal employee subject to the provisions of Section 4.05.010 shall purchase goods or services with municipal funds, except in accordance with a proper delegation of authority by the purchasing officer, except for purchases established by the manager, any contracts, purchases or procurement entered into in violation of this section are voidable. It is the responsibility of any person entering into any contract or agreement for the purchase of goods or services with the municipality to independently determine whether the purchasing officer has been authorized by the borough manager or is otherwise authorized under this section to enter the contract or agreement for the municipality.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.025 Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

1.    Skagway bidder and Skagway proposer mean a person who:

a.    Holds a current state business license;

b.    Submits a bid or proposal under the name appearing on the bidder’s current state business license.

c.    Has maintained, for a period of six months immediately before the date of the bid or proposal, a place of business within the municipality that regularly provides in the normal course of business supplies or services of the general nature being solicited and that is staffed by the bidder or full-time employee of the bidder;

d.    Is incorporated or qualified to do business under the laws of the state, is a sole proprietorship and the proprietor is a resident of the municipality or is a partnership and all partners are residents of the municipality.

e.    Is not delinquent in the payment of any taxes, charges, or assessments owing to the municipality on account of that business;

f.    Adds value by actually manufacturing, assembling, creating, performing, controlling, managing, or supervising the goods or services provided; and

g.    If a joint venture, is composed entirely of ventures that qualify under subsections (a) through (f) of this definition.

2.    Lowest qualified bidder means the person submitting the lowest responsive and responsible bid, as determined by the municipality.

3.    Party means, with respect to a particular procurement, a person submitting a bid or proposal to contract with the municipality pursuant to that procurement. The manager may adopt regulations to implement the provisions of this section.

4.    Public improvement, as used in this chapter, and only for purpose of competitive bidding, includes the erection, building, construction, placement, creation and expansion of an improvement to land; it does not include rebuilding, repair, removing, resurfacing, rehabilitating or replacing any chattel, fixture or improvement to land.

5.    Services means labor, professional services and consulting services.

6.    Supplies means all supplies, materials and equipment.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.030 Public improvement contracts.

A.    Contracts for public improvements for an amount estimated to exceed $25,000.00 shall be by competitive sealed bid and be awarded to the lowest qualified bidder.

B.    Contracts for public improvements for an amount estimated to be $25,000.00 or less may be made when feasible and when in the best interest of the municipality by binding competitive written bid, but without newspaper advertisement and without observing the procedure prescribed for the award of formal sealed bid purchases and contracts.

(Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.035 Contract amounts.

Unless otherwise prohibited by this Code:

1.    All contracts for an amount estimated to be $2,000.00 or less shall be made on the open market with such competition as is reasonable and practical in the circumstances.

2.    All contracts, other than professional services, shall be awarded as follows:

a.    Contracts in an amount estimated to be greater than $2,000.00 but not more than $5,000.00 shall be made when feasible and when in the best interest of the municipality in the open market by written or oral quotation or telephone solicitation, without newspaper advertisement and without observing the procedure prescribed for the award of formal sealed bid purchases. Such open market contracts or purchases, whenever practicable, shall be based on at least three competitive quotations and shall be awarded to the lowest qualified bidder. The basis for determining the lowest qualified bidder shall be the same as that used in formal bid purchases, including any preferences established by law.

b.    Contracts in an amount estimated to be more than $5,000.00 but not more than $25,000.00 shall be by written informal bids without newspaper advertisement and without observing the procedure prescribed for the award of formal sealed bid purchases. Bids shall be solicited from bidders included on the interested bidders list, which list shall contain the names of suppliers who have notified the Manager of their interest in being solicited for quotations on specified classes of supplies, equipment or services. Names of suppliers who have become inactive in submitting quotations may be removed from the applicable list. The basis for determining the lowest qualified bidder shall be the same as that used in formal bid purchases.

c.    Contracts in an amount estimated to be more than $25,000.00 shall be by formal competitive sealed bid.

d.    "Professional services" are defined as those services primarily involving services such as provided by architects, engineers, attorneys, and similar highly specialized consultants. "Professional services" does not include persons or entities offering services such as "program management" or "construction management" or "design-build management."

3.    All professional services shall be purchased as follows:

a.    Contracts in an amount estimated to be greater than $2,000.00 but not more than $5,000.00 shall be made when feasible and when in the best interest of the municipality in the open market by written or oral proposal, without newspaper advertisement or without observing the procedure prescribed for the award of formal sealed bid purchases. Such open market contracts, whenever practicable, shall be based on competitive proposals and shall be awarded to the responsive and responsible offeror whose proposal is determined to be the most advantageous to the municipality. The method for determining the most advantageous proposal shall be set forth in the request for proposals, shall be based upon a numerical point score, and shall, unless contrary to applicable state or federal statute, regulation or grant requirements, provide that five percent of the total points possible for each proposal shall be awarded if and only if the proposal is submitted by a Skagway proposer.

b.    Contracts in an amount estimated to be more than $5,000.00 but not more than $25,000.00 shall be by written proposal after local newspaper advertisement, and shall be awarded to the responsive and responsible offeror whose proposal is determined to be the most advantageous to the municipality. The method for determining the most advantageous proposal shall be set forth in the request for proposals, shall be based upon a numerical point score, and shall, unless contrary to applicable state or federal statute, regulation or grant requirements, provide that five percent of the total points possible for each proposal shall be awarded if and only if the proposal is submitted by a Skagway proposer.

c.    Contracts in an amount estimated to be more than $25,000.00 shall be by formal competitive sealed proposal after newspaper advertisement, and shall be awarded to the responsive and responsible offeror whose proposal is determined to be the most advantageous to the municipality. The method for determining the most advantageous proposal shall be set forth in the request for proposals, shall be based upon a numerical point score, and shall, unless contrary to applicable state or federal statute, regulation or grant requirements, provide that five percent of the total points possible for each proposal shall be awarded if and only if the proposal is submitted by a Skagway proposer.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.040 Competitive sealed bid procedure.

A.    Publication. Where competitive sealed bidding is required, sealed bids shall be solicited by publication in a newspaper calculated to reach prospective bidders. Such publication shall contain at least a general description of the item or work required and shall designate the place where detailed requirements and specifications may be obtained and the time and place where the sealed bids will be opened. The bids shall be opened publicly. Such publication shall be made at least twice, and there shall be sufficient time between the date of last publication and the opening of bids for preparation of bids, which time shall not be less than one week unless the manager finds that an emergency exists. The manager may also solicit bids by sending notice by mail to any active prospective bidders known to him or her.

B.    Bid bond on deposit. All bids for the construction or reconstruction of public improvements required to be submitted by competitive sealed bid shall be accompanied by either cash, a certificate of deposit or certified check or draft, or a cashier’s check, or draft on some responsible bank in the United States, in favor of and payable at sight to the municipality, in an amount not less than five percent of the aggregate amount of the bid. If the bidder to whom the contract is awarded, for 15 days after the award of the contract, fails or neglects to enter into the contract and file the required bonds, the borough treasurer shall draw the money due on the certificate of deposit or check or draft and pay the same or any cash deposited into the treasury, and under no circumstances shall it be returned to the defaulting bidder. In lieu of the foregoing, any bid may be accompanied by a surety bond in such amount furnished by a surety authorized to do a surety business in the state, guaranteeing that the bidder will enter into the contract and file the required bonds within such period. The manager may require bid bonds in an amount appropriate for any bid not required by this subsection to be accompanied by a bid bond.

C.    Pre-bid conference. The manager may conduct a pre-bid conference for any competitively bid contract or purchase. Notice of the conference shall be provided to all bidders. Bidders shall be responsible for acquiring all information announced or distributed at a pre-bid conference.

D.    Opening of bids. All bids shall be sealed, identified as bids on the envelope and shall be submitted to the manager at the place and time specified in the public notice inviting bids. When assembly approval of award is required under Section 4.05.040 E.1, the date for opening of sealed bids shall not be less than 7 calendar days prior to a regularly scheduled or special assembly meeting. Bids shall be opened by the manager, in public, at the time and place designated in the notice inviting bids. Bids received after the specified time shall not be accepted and shall be returned to the bidder unopened. The municipality shall not make exceptions to this section due to weather where the bidder chooses to send the bid to the municipality via an air taxi service.

E.    Award. A contract or purchase for which competitive bids are required shall be awarded by the manager to the lowest qualified bidder taking into consideration conformity with the specifications, terms of delivery and other conditions imposed in the call for bids, except that:

1.    When bids are in excess of $50,000.00, the award may not be made until after assembly approval of the contract or purchase; and

2.    A bid shall be awarded to a Skagway bidder if its bid is not more than five percent higher than the lowest responsive nonresident bidder’s. A bid shall be rejected if it contains a material alteration or an erasure. The manager may reject the bid of a bidder who failed to perform on a previous contract with the municipality. The manager may reject any and all bids and waive any informalities or minor irregularities in the bids. Where all bids are rejected, and new bids are called for on substantially the same purchase or contract, each of the bidders whose bids were rejected shall be timely notified of the new call for bids and of changes, if any, in the specifications and requirements.

F.    Disposition of bid bond or deposit. All deposits and bonds shall be returned to the unsuccessful bidders after execution of the contract and the deposit of the required bonds by the successful bidder.

G.    Approval of faithful performance and labor and materials bonds. Faithful performance or labor and material bonds required by the municipal specifications or contract shall be approved as to form by the borough attorney. Bonding requirements are as follows:

1.    There are no bonding requirements under this section for public construction or public works contracts where the cost is fifty thousand dollars ($50,000.00) or less.

2.    Where the cost of a public construction contract exceeds fifty thousand dollars ($50,000.00) but does not exceed one hundred and fifty thousand dollars ($150,000.00), no bonds are required providing:

a.    The contractor has been a licensed contractor in the state for at least two (2) years.

b.    The contractor certifies that he has not defaulted on a contract during the last three (3) years.

c.    The contractor submits a financial statement prepared within the last nine (9) months, certified by a public accountant, demonstrating that the contractor has a net worth of not less than twenty percent (20%) of the amount of the contract.

d.    The total amount of all contracts which the contractor anticipates performing during the contract period does not exceed his net worth by more than seven (7) times.

e.    Or, the contractor sets up an escrow account in the name of the municipality with deposits equal to the value of the contract.

3.    Performance and Payment Bonds are required for all projects over one hundred and fifty thousand dollars ($150,000.00) except that for purposes of the bid documents, a signed letter from a surety company committing to the bonding of the contractor in the amount of the project will suffice until the time of the actual signing of the contract when bonds must be on hand.

H.    Imposition of damages. The manager shall include in all contracts the imposition of damages in the event of failure to complete the contract by the specified date, or in such a manner as to fail to meet the contract specifications. The basis of damages can be a percentage of contract value, the potential for disruption of services as a result of the failure to perform, and the nature of the disruption. Liquidated damages shall be exclusive of additional costs for engineering or project management resulting from work performed beyond the contract completion date.

I.    If the bidder to whom the contract is awarded refuses to sign the contract included in the bid packet, the manager may notify the next lowest responsive and responsible bidder and enter a contract with the second low bidder with assembly approval and without initiating a new competitive bidding process, in the discretion of the manager.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.045 Bidding review board.

A.    There is established a bidding review board. The bidding review board shall consist of three persons appointed by the assembly. The members of the bidding review board shall serve one-year terms. The bidding review board shall adopt written rules of procedure for the purpose of ensuring the expeditious resolution of protests.

B.    The bidding review board shall hear protests as provided in this chapter and may perform such other related duties as the manager or assembly may, from time to time, request.

(Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.050 Protests.

A.    A party may protest award to any other party of a competitive sealed bid or competitive sealed proposal, but such protest shall be heard only if protests have also been filed against the award recommended by the manager and against any other bid or proposal having a higher ranking than that of the party filing the protest.

B.    A party shall provide written notice of intent to protest. Notice of intent to protest shall be delivered to the manager by the close of the business day following posting by the manager of a notice of apparent low bidder or successful proposer. Late notices of intent to protest shall not be considered. The notice of intent to protest shall include the name and address of the protestor and a description of the grounds for the protest.

C.    A written protest shall be filed with the manager within five working days after posting of notice of apparent low bidder or successful proposer.

D.    A written protest shall, at a minimum, contain the following:

1.    The name, address, and telephone number of the interested party filing the protest;

2.    The signature of the interested party or the interested party’s representative;

3.    Identification of the proposed award at issue;

4.    A statement of the legal and factual grounds for the protest;

5.    Copies of all relevant documents; and

6.    The fee required by Section 4.05.055.

E.    The manager shall reject an untimely or incomplete protest.

F.    If a protest is filed the award may be made unless the manager determines in writing that a:

1.    reasonable probability exists that the protest will be sustained; or

2.    stay of the award is not contrary to the best interests of the municipality.

G.    The manager shall issue a written response to the protestor within ten working days of the date the protest is filed. If multiple protests have been filed, they may be consolidated for purposes of the response. Copies of the response shall be provided to any other protestor requesting one. The response may include an amendment of all or any part of the recommended award.

H.    A protestor claiming to be aggrieved by the manager’s response pursuant to subsection (G) of this section may request review by the bidding review board.

I.    The protestor may seek review of the manager’s response by providing written notice of intent to request review. The protestor shall notify the manager of the intent to request review by the end of the working day following issuance of the manager’s response. Late notices shall not be considered. A written request for review shall be filed within five working days after the response is issued by the manager. The notice of intent to request review and the written request for review shall be in the same form as provided in subsections (B), (C), and (D) of this section.

J.    Upon receipt of a timely and complete request for review of the manager’s response, the matter shall be forwarded to the bidding review board and a hearing date shall be established. Once the hearing date has been established, all bidders or proposers shall be notified of the hearing in writing.

K.    The bidding review board shall conduct a hearing and issue a recommendation within fifteen calendar days of the date the referral is made to the board. The bidding review board may, by written notice to all bidders or proposers, extend this fifteen-day period to 30 days, or as otherwise agreed to or determined to be necessary. Hearings shall be conducted informally. Hearings shall be recorded. The bidding review board may, but is not required to, appoint a hearing officer to assist the board with the hearing and make recommendations of findings and fact and conclusions of law if requested by the board.

L.    The bidding review board’s recommendation shall contain findings of fact and conclusions of law.

M.    The recommendation:

1.    May include the following:

a.    A recommendation that a designated bid in a competitive sealed bid or proposal process be accepted as the lowest qualified bid or proposal; or

b.    A recommendation that one or more bids or proposals be considered or rejected or that the procurement process at issue be canceled;

2.    Shall not, except to the extent necessary to correct a failure to follow the procedures required by this chapter, include a recommendation for:

a.    An amendment of the specifications for a bid or request for proposals;

b.    A change in the criteria for selection of a proposal; or

c.    An amendment, reordering, or reassessment of any qualitative judgment in the rating of a proposal;

3.    Shall not include a recommendation for:

a.    Selection or rejection of any additive or deductive alternate; or

b.    The payment of money, including attorney’s fees and costs related to the hearing, by the municipality or any party, provided that the recommendation may recommend a refund of protest fees or payment of reasonable bid preparation costs by the municipality to one or more bidders or proposers upon complete and proper documentation of the requested bid preparation costs. Under no circumstances shall a successful protestor be awarded any other alleged damages, costs or fees.

4.    Shall be forwarded to the manager or assembly, in accordance with the applicable provisions of this Title, for consideration in the award of the contract.

N.    The protest procedures established by this section, may be adapted for a procurement as necessary to maintain eligibility for state or federal funding for that procurement, provided that no such adaptation may authorize the board to grant a form of relief prohibited by subsection (M)(3) of this section.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.055 Administration of protest.

There is established a fee of $750.00, payable by each person filing a bid protest, pursuant to Section 4.05.050, which may be refunded in full if the protest is granted.

(Ord. 11-24, Amended, 10/20/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.060 Exceptions to competitive sealed bidding and submission of quotations.

A.    The restrictions and provisions of this chapter shall not apply:

1.    To contracts involving the obtaining of professional or specialized services such as those rendered by architects, attorneys and engineers. "Professional services" does not include persons or entities offering services such as "program management," or "construction management" or "design-build management." Except as authorized in writing by the manager, such services shall be obtained by competitive proposal;

2.    Where calling for bids on a competitive basis is unavailing or impossible, including situations where rates are set by statute or ordinance or where like items are traded in, or where used items are being purchased;

3.    Where the municipality’s requirements can be met solely by an article or process obtainable from a known single source. No purchase shall be made pursuant to this subsection except upon written authorization of the assembly certifying that there is no reasonable substitute for the article or process, and that it is obtainable only from a known single source. Notice of the authorization shall be prominently posted in a public place at the offices of the manager;

4.    To placement of insurance coverage;

5.    When public work is performed by the municipality with its own employees;

6.    When it is advantageous to the municipality to enter into a contract with a bidder for the same supplies or services such bidder is providing another Alaskan local government, the State of Alaska, a cooperative purchasing association composed of government agencies, or the United States where such supplies or services are being provided to the other governmental unit or association on the basis of competitive bids submitted, and where the municipal contract is on substantially the same terms as those bid; or to contract with or through such other governmental unit or association so that the benefit of the responsible bid accrues to the municipality.

7.    When either competitive procedure has been followed, but no bids or quotations are received. In such a case, the manager may proceed to have the services performed or the supplies purchased without further competitive bidding or quotation;

8.    To clinic supplies, materials, equipment or contractual services in categories established by the Clinic Board Finance Committee, except that the Clinic Board and Clinic Board Finance Committee do not have authority to contract with attorneys without authorization of the borough manager in consultation with the borough attorney;

9.    To patient room furnishing in the original furnishing and equipping of a new clinic or in instances where the supplies, materials or equipment to be purchased are in the following categories:

a.    Patient monitoring equipment;

b.    Contracts involving patient medications and matching administration sets;

c.    X-ray equipment;

d.    Physical therapy equipment;

e.    Operating room, delivery room and emergency room equipment;

f.    Specialized laboratory equipment used in processing patient samples for diagnostic or treatment purposes;

g.    Contracts involving purchase of groups of specialized supply items which are specifically medical in nature and which relate to medical diagnostic or treatment procedures performed in operating, delivery or emergency rooms, or in patient care units; provided that the clinic board of directors by majority vote of its entire membership determines that the best interests of the clinic would not be served by competitive bid for such furnishings, supplies, materials or equipment.

10.    To electronic data processing software and hardware and software systems;

11.    To the selection and commission of artists and the purchase and execution of works of art for municipal facilities;

12.    To purchases of supplies, services or construction items during, and for the purpose of alleviating, a class 2 emergency; provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the selection of a particular emergency contractor shall be included in the contract file. A record of all emergency procurements shall be made and shall set forth each contractor’s name, the amount and type of the contract, a listing of the items procured under the contract, the record of the manager’s justification for the procurement, and the identification number of the contract file;

13.    To contracts involving lobbying services, which must be approved by the assembly;

14.    To services provided by personnel of government agencies, schools, and nonprofit agencies. Any contract issued pursuant to this section, must be approved by the assembly.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.065 Authority to debar or suspend.

A.    Debarment. After consultation with the borough attorney, notice pursuant to section 4.05.075, and an opportunity for a hearing conducted according to Section 4.05.085, the manager may for cause debar a person from consideration for award of contracts for goods, services, or both. The debarment may not be for a period of more than three years.

B.    Suspension. After consultation with the borough attorney and notice pursuant to section 4.05.075, the manager may suspend a person from consideration for award of contracts for goods, services, or both if there is probable cause for debarment and compelling reasons require suspension to protect municipal interests. Suspension shall not be imposed as a punitive measure. The suspension may not be for a period exceeding three months and may not be extended or renewed upon the same cause.

(Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.070 Causes for debarment or suspension.

A.    The causes for debarment or suspension include the following:

1.    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 the contract or subcontract;

2.    Conviction of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or other offense indicating a lack of business integrity or business honesty that currently and seriously affects responsibility as a borough contractor;

3.    Conviction or civil judgment finding a violation under state or federal antitrust statutes;

4.    Violation of contract provisions of a character that is regarded by the manager to be so serious as to justify debarment action, such as:

a.    Knowing failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or

b.    Failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts, except that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor may not be considered to be a basis for debarment.

5.    A violation of this chapter punishable under Section 4.05.105; or

6.    A pending petition for protection in bankruptcy, or other evidence that the vendor is unable to meet contractual obligations.

7.    Any other cause determined to be so serious and compelling as to affect responsibility as a municipal contractor, including debarment by another governmental entity for a cause listed in the state or local regulations of that entity.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.075 Notice.

A.    The manager shall issue written notice of a suspension, proposed debarment or both. The notice must:

1.    State the reasons for the action taken; and

2.    Inform the person of rights to a hearing.

B.    A copy of the notice under subsection A of this section shall be mailed or otherwise furnished immediately to the person suspended or proposed for debarment.

C.    A suspension is effective upon issuance of the notice under this section.

D.    A debarment is effective upon issuance of a final decision under Section 4.05.095.

(Ord. 04-05, Adopted, 04/15/2004)

4.05.080 Hearing.

A.    A person issued notice under Section 4.05.065 is entitled to a hearing conducted according to Section 4.05.085 if the person files a written request for a hearing with the manager within seven days after issuance of the notice.

B.    If the person requests a hearing, the manager shall promptly schedule one unless the borough attorney determines that a hearing at the proposed time is likely to jeopardize a criminal investigation.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.085 Hearing procedures.

A.    The manager shall act as a hearing officer or appoint a hearing officer for a hearing conducted under this chapter. The hearing officer shall notify the parties in writing of the time and place of the hearing. The hearing shall be conducted in an informal manner.

B.    The hearing officer may:

1.    Hold pre-hearing conferences to settle, simplify, or identify the issues in a proceeding;

2.    Require parties to state their positions concerning the various issues in the proceeding;

3.    Require parties to produce for examination those relevant witnesses and documents under their control;

4.    Rule on motions and other procedural matters;

5.    Regulate the course of the hearing and conduct of the participants;

6.    Establish time limits for submission of motions or memoranda;

7.    Impose sanctions against a person who fails to obey an order of the manager, including:

a.    Prohibiting the person from asserting or opposing designated claims or defenses or introducing designated matters into evidence;

b.    Excluding all testimony of an unresponsive or evasive witness; and

c.    Excluding a person from further participation in the hearing.

8.    Take official notice of a material fact not appearing in evidence, if the fact is among the traditional matters subject to judicial notice;

9.    Administer oaths or affirmations.

C.    A transcribed record of the hearing shall be made available at cost to a party that requests it.

(Ord. 11-24, Amended, 10/20/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.090 Recommendation by a hearing officer.

A.    If the manager is not acting as hearing officer, the hearing officer shall recommend a decision to the manager based on the evidence presented. The recommendation must include findings of fact and conclusions of law.

B.    The manager may remand the matter to the hearing officer with instructions, or take other action.

(Ord. 11-24, Amended, 10/20/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.095 Final decision by the manager.

The manager shall issue a final decision after the hearing or upon failure of the person to timely request a hearing. The decision shall be issued within 30 days of the hearing or exhaustion of the time within which a hearing may be requested. A decision takes effect immediately. Upon a decision imposing debarment, the contractor remains debarred until a court or the manager orders otherwise, or until the debarment period specified in the decision expires.

(Ord. 11-24, Amended, 10/20/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.100 Judicial appeal.

A final decision of the manager under Section 4.05.095 may be appealed to the Superior Court for the State of Alaska, First Judicial District at Juneau, Alaska, as the court with exclusive jurisdiction of any appeal, and in accordance with the Alaska Rules of Appellate Procedure.

(Ord. 11-24, Amended, 10/20/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.105 Civil penalties.

A.    The following penalties apply to violations of this chapter:

1.    A person who contracts with the municipality in a manner the person knows to be contrary to the requirements of this chapter is liable for all costs and damages to the municipality arising out of the violation, including the municipality’s attorneys fees;

2.    A person who makes or uses in support of a contract claim under this chapter, a misrepresentation, or who practices or attempts to practice a fraud, at any stage of proceedings relating to a procurement or contract claim under this chapter

(a)    forfeits all claims relating to that procurement or contract; and

(b)    is liable to the municipality for reimbursement of all sums paid on the claim, for all costs attributable to review of the claim, and for a civil penalty equal to the amount by which the claim is misrepresented.

3.    In this section, "misrepresentation" means a false or misleading statement of material fact, or conduct intended to deceive or mislead concerning material fact, whether it succeeds in deceiving or misleading.

(Ord. 11-24, Amended, 10/20/2011; Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)

4.05.120 Reinstatement.

A.    The manager may, at any time after a final decision to debar a person from consideration for award of contracts, reinstate the person after determining that the cause for which the person was debarred no longer exists or has been substantially mitigated.

B.    A debarred person may request reinstatement by submitting a petition to the manager supported by evidence showing that the cause for debarment no longer exists or has been substantially mitigated.

C.    The manager may require a hearing on a reinstatement petition. A decision on reinstatement shall be made in writing within seven days after a reinstatement petition is submitted. The decision must specify the factors on which it is based.

(Ord. 11-12, Amended, 07/07/2011; Ord. 04-05, Adopted, 04/15/2004)