No. 32091 (Amendment): R907-67. Debarment of Contractors from Work on Department Projects -- Reasons

DAR File No.: 32091
Filed: 10/30/2008, 09:38
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule helps the Department maintain the highest quality and integrity of the contractors who do work on the state's highways, by being able to debar any contractor who has shown fraud and misrepresentation. Being able to debar protects the resources of the State of Utah. The change in the rule allows for the person more closely associated with work go forward with debarment. The changes also clears up some of the language in the rule.

Summary of the rule or change:

The rule change allows for the person who most closely observed the work and conduct of the contractors to be able to make the decisions to go forward with the debarment process.

State statutory or constitutional authorization for this rule:

Section 72-1-201

Anticipated cost or savings to:

the state budget:

No cost or savings are anticipated with this rule change. No new requirements were created with this rule change which will impact the state budget. The change is all in the text with substantive changes.

local governments:

No cost or savings are anticipated for local governments with this rule change. No new requirements were created with this rule change that impact local governments.

small businesses and persons other than businesses:

No cost or savings are anticipated for small businesses with this rule change. No new requirements were created with this rule change that impact small businesses.

Compliance costs for affected persons:

No cost or savings are anticipated for compliance of affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule should have no fiscal impact on businesses. John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Administration
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5998

Direct questions regarding this rule to:

Maureen Short at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2008

This rule may become effective on:

12/22/2008

Authorized by:

John R. Njord, Executive Director

RULE TEXT

R907. Transportation, Administration.

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

R907-67-1. Debarment of Contractors from Work on Department Projects -- Reasons.

Debarment prevents the contractor from performing work on any department projects, either as a prime contractor or subcontractor. The department may debar a contractor, which, for purposes of this rule includes Consultants and owners, directors, managers, officers or fiscal agents of the Contractor or Consultant), from performing any work on projects that it administers if, by substantial evidence, [it]the department concludes that one of the following factors is present[.];[ Debarment prevents the contractor from performing work on any department projects, either as a prime contractor or subcontractor.]

(1) The Contractor has been convicted of or entered a plea of guilty or nolo contendere to a crime that is related to a bid or contract-related crime in any court in the United States;

(2) The Contractor has publicly admitted to conduct constituting a crime that is related to a bid or contract;

(3) The Contractor has falsified information or submitted deceptive or fraudulent statements in connection with prequalification, bidding, or performance of a contract;

(4) The Contractor has violated federal or state antitrust laws;

(5) The Contractor has demonstrated willful wrongdoing that reflects a lack of integrity in bidding or performing a public project;

(6) The Contractor, including a joint venture, stockholder of more than five (5) percent of the available stock, or any immediate relatives of the aforementioned has been debarred or suspended or is affiliated with any debarred or suspended person in any state or by the federal government;

(7) The deputy director or designee concludes that the Contractor has acted in collusion with others to perform work on a project that supposedly satisfied disadvantaged business enterprise (DBE) goals or requirements through other than bona fide disadvantaged business enterprises in any combination of individuals, firms, or corporations;

(8) The Contractor has defaulted under previous contracts;

(9) The Contractor has performed previous or current work in an unsatisfactory manner, as determined [solely ]by either the Project Manager or Resident Engineer. Among the items that can be the subject of unsatisfactory performance are the following, though there may be others that are similar in importance and require a determination of unsatisfactory performance:

(a) noncompliance with the contract;

(b) failure to complete work on time;

(c) instances of substantial corrective work being needed before acceptance of the work;

(d) instances of completed work that requires acceptance at reduced pay;

(e) production of non-specification work or materials, and when applicable, required price reductions or corrective work;

(f) failure to provide adequate safety measures and appropriate traffic control that endangered the safety of the work force or the public.

(10) The Contractor has questionable moral integrity as determined by the department, the United States Attorney General, the Utah Attorney General, or any other state;

(11) Failure to reimburse the state for monies owned on any previously awarded contract including those where the prospective bidder is a party to a joint venture and the joint venture has failed to reimburse the state for monies owed.

(12) The deputy director or designee reasonably believes and finds that the public health, welfare, or safety require suspension.

 

R907-67-2. Procedures for Debarment.

If the Engineer for Construction or designee believes a Contractor should be debarred, he or she will follow the procedures listed in R907-1-2, Commencement by Department - Notice of Agency Action - Procedures. The proceeding shall be handled as an informal administrative proceeding unless the deputy director's designee grants a request for conversion to a formal proceeding. The Notice of Agency Action shall also set forth the amount of time being sought as a debarment period.

 

KEY: highways, transportation, contractors, suspension

Date of Enactment or Last Substantive Amendment: [December 8, 2006]2008

Notice of Continuation: September 18, 2008

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