Transportation

Administration

Rule 67: Suspension and Debarment of Contractors from Work on Department Projects

Effective Date: 08/23/2023

Admin. Code Reference: R907-67

Rule Type: Current Rule

R907. Transportation, Administration.

R907-67. Suspension and Debarment of Contractors from Work on Department Projects.

R907-67-1. Authority and Purpose.

(1) Section 72-1-201 grants the department authority to make rules for the administration of the department, state transportation systems, and programs. Section 63G-6a-904 grants the department authority to make rules pertaining to the suspension and debarment of contractors and consultants.

(2) This rule establishes the reasons and a process for the department to debar or suspend a contractor from responding to a solicitation or performing work on a department project.

R907-67-2. Definitions.

(1)(a) "Contractor" means a business, person, or other entity who is or may be seeking to perform work on a department project.

(b) "Contractor" includes a consultant, sub-consultant, owner, director, manager, officer, and fiscal agent of a prime contractor, a subcontractor, or a joint venture.

(2) "Department project" means a project the department administers or a project for which the department has responsibility or oversight.

(3) "Deputy director" means the department's deputy director of engineering and operation.

(4) "Solicitation" means the same as that term is defined in Section 63G-6a-103.

R907-67-3. Debarment of Contractors from Work on Department Projects -- Reasons.

The department may debar a contractor from performing work on a department project or responding to a solicitation if the department concludes there is substantial evidence that one or more of the following factors is present:

(1) a conviction of or a civil judgment for:

(a) a commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;

(b) a violation of federal or state antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and solicitation rigging;

(c) a commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or

(d) a commission of another offense indicating a lack of business integrity or business honesty that seriously and directly affects present responsibility;

(2) a violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as:

(a) a willful failure to perform in accordance with the terms of one or more public agreements or transactions;

(b) a history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or

(c) a willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction;

(3) a debarment or a suspension by a state, federal, or local governmental entity, including a debarment or a suspension of:

(a) the contractor;

(b) a stockholder of more than 5% of the available stock of the contractor;

(d) a person or a business affiliated with the contractor;

(4) one or more instances of knowingly doing business with a person ineligible to work or conduct business in the United States;

(5) a failure to pay a single substantial debt, or several outstanding debts, including disallowed costs and overpayments, owed to a state agency or instrumentality;

(6) a violation of a material provision of a settlement of a debarment or suspension action;

(7) a violation of a provision of the Drug-Free Workplace Act of 1988, 41 U.S.C. 701;

(8) a violation of Title 29 USC Chapter 15, the Occupational Safety and Health Act of 1970, Title 34a, Chapter 6, the Utah Occupational Safety and Health Act, 23 CFR Part 655, Subpart F, the Manual on Uniform Traffic Control Devices for Streets and Highways, or concomitant rules or regulations;

(9) a public admission of conduct constituting a crime related to a solicitation or contract;

(10) a falsification of information or submission of deceptive or fraudulent statements in connection with prequalification, responding to a solicitation, or performing a contract;

(11) one or more instances of collusion with others to perform work on a department project that ostensibly satisfied disadvantaged business enterprise goals or requirements through something other than bona fide disadvantaged business enterprises in a combination of individuals, firms, or corporations;

(12) one or more instances of unsatisfactory performance on a previous or current department project, including:

(a) failing to comply with the contract;

(b) failing to complete work on time;

(d) requiring reduced pay for completed work;

(e) performing non-specification work or using non-specification materials; or

(f) failing to provide adequate safety measures and appropriate traffic control and thereby endangering the safety of the workforce or the public;

(13) a questionable moral integrity as determined by the department, the United States Attorney General, the Utah Attorney General, or the attorney general of another state;

(14) a failure to reimburse the state or a local government for money owed on a previously awarded contract, including contracts where the contractor is a party to a joint venture and the joint venture has failed to reimburse the state or a local government for money owed; or

(15) a department determination that the public health, welfare, or safety requires debarment or suspension.

R907-67-4. Procedures for Debarment.

(1)(a) To determine whether a contractor should be debarred, the department will follow Rule R907-1.

(b) The notice of agency action described in Rule R907-1 must set forth the amount of time being sought as a debarment period.

(2)(a) A conviction or plea of guilty, nolo contendere or the equivalent, a plea agreement, settlement, or issuance of a consent judgment that requires the contractor to make a payment to a public entity for an offense related to an activity listed in Section R907-67-1 is sufficient to support debarment without additional evidence being offered.

(b) An acquittal or dismissal of charges does not require the department to dismiss a notice of agency action concerning debarment.

R907-67-5. Status Pending Debarment.

(1) If the contract between the department and the contractor allows for the period of debarment to begin immediately upon service of the notice of agency action or within 15 days of service, debarment begins on the date provided for by the contract.

(2) If the contract is silent, debarment begins 30 days after service of the notice of agency action unless the deputy director determines emergency action is necessary, in which case debarment begins upon service.

(3) If the contractor files a request for review under Rule R907-1, debarment is stayed pending completion of the administrative review.

(4) In accordance with Section R907-67-4, the deputy director may suspend a contractor from consideration for the award of contracts, including contracts awarded under Section 63G-6a-507, until the administrative review is complete.

R907-67-6. Suspension from Consideration for Award of Contracts - Indictments.

(1)(a) If the deputy director determines there is probable cause that a contractor has engaged in activity that would, if true, lead to debarment under this rule, the deputy director may suspend the contractor from consideration for award of contracts.

(b) A contractor who is suspended may not bid on or respond to a solicitation for a department contract.

(c) A suspension may last for no more than three months unless an indictment has been issued, the department is conducting an administrative review to determine whether the contractor should be debarred, or the Utah Attorney General has filed an information alleging that the contractor has engaged in criminal activity that would, if true, lead to debarment under this rule.

(d) If an indictment has been issued or an Information filed, a suspension shall last until completion of the contractor's trial and its right to appeal expires or the dismissal of charges.

(2) Before a suspension period expires, the deputy director shall review the relevant facts, determine if another suspension period is warranted, and if the department should initiate an agency action for debarment.

(3)(a) A conviction or plea of guilty, nolo contendere or the equivalent, a plea agreement, settlement or issuance of a consent judgment that requires the contractor to make a payment to a public entity for an offense related to an activity listed in Section R907-67-1 is sufficient to support suspension without additional evidence being offered.

(b) An acquittal or dismissal of charges does not require the department to dismiss a suspension notice.

R907-67-7. Length of Debarment.

(1)(a) Except as provided in this Subsections (1)(a) and (b), and Subsection R907-67-7(1)(b), the department shall debar a contractor found to have committed an act listed in Section R907-67-1 for a term of not less than six months and no more than three years.

(b) If a basis for debarment is an alleged criminal occurrence or conviction and the contractor has, as part of a sentence or plea agreement, agreed not to bid on public works for more than three years, then the department may extend the debarment to fit the terms of the sentence or plea agreement.

(c) The department may debar a contractor for longer than three years if the presiding officer of an agency action or the department determines good cause exists to debar the person for a more extended period.

(2) To determine the specific period, the department will evaluate the following:

(a) degree of culpability;

(b) restitution to the state;

(d) disassociation with those involved in the crimes and active cooperation in prosecuting others involved in the crimes.

(3) Suspension and debarment do not absolve the contractor of responsibility to perform existing contracts, even if the contractor needs to find another company, firm, or individual who can perform in the contractor's place.

(4) The department also retains the right to declare a suspended or debarred contractor in default on an existing contract if allowed by the contract.

R907-67-8. Right to Request Reconsideration.

The contractor may make a request for reconsideration as provided under Rule R907-1.

KEY: debar, transportation, contractors, suspension

Date of Last Change: August 23, 2023

Notice of Continuation: June 23, 2023

Authorizing, and Implemented or Interpreted Law: 72-1-201