(c)
Causes for
Debarment or Suspension. 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 such
contract or subcontract;
(2)
conviction under state or 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
Mississippi contractor;
(3)
conviction under state or federal antitrust statutes arising out of the
submission of bids or proposals;
(4) violation of contract provisions, as set
forth below, of a character which is regarded by the PSCRB to be so serious as
to justify debarment action; including,
i.
deliberate failure without good cause to perform in accordance with the
specifications or within the time limit provided in the contract or,
ii. 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;
(5) any other cause the PSCRB determines to
be so serious and compelling as to affect responsibility as a Mississippi
contractor, including debarment by another governmental entity for any cause
listed herein; and,
(6) for
violation of the ethical standards set forth in Chapter VI (Ethics in Public
Contracting).
(f)
Finality of Decision. A
decision shall be final and conclusive, unless fraudulent, or the debarred or
suspended person commences an action in court.
5-101.01
Application
This regulatory provision applies to all debarments or
suspensions of persons from consideration for award of contracts imposed by the
PSCRB.
5-101.02
Suspension
5-101.02.1
Initiation
After consultation with the affected using agency, the
Special Assistant Attorney General, and, where practicable, the contractor or
prospective contractor who is to be suspended, the PSCRB shall make a written
determination as to whether probable cause exists for debarment as set forth in
Section 5-101 (Authority to Debar or Suspend). If probable cause is found, 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:
(a) the suspension is for the period
it takes to complete an investigation into possible debarment including any
appeals of a debarment decision, but not for a period in excess of three (3)
months;
(b) bids or proposals will
not be solicited from the suspended person, and if they are received they will
not be considered during the period of suspension; and,
(c) if a hearing has not been held, the
suspended person may request a hearing in accordance with Section 5-101.04
(Request for Hearing).
5-101.02.2
Effect of Decision
A contractor or prospective contractor is suspended upon
issuance of the notice of suspension. The suspension shall remain in effect
during any appeals. The suspension may be ended by the PSCRB but otherwise
shall only be ended when the suspension has been in effect for three (3) months
or a debarment decision takes effect.
5-101.03
Initiation of Debarment
Action
Written notice of the proposed debarment action shall be
sent by certified mail, return receipt requested, to the contractor or
prospective contractor. This notice shall:
(a) state that debarment is being considered;
(b) set forth the reasons for the
action;
(c) state that if the
contractor or prospective contractor so requests, a hearing will be held,
provided such request is received by the PSCRB within ten (10) days after the
contractor or prospective contractor receives notice of the proposed action;
and,
(d) state that the contractor
or prospective contractor may be represented by counsel. Such notice shall also
be sent to the MSPB Special Assistant Attorney General and the affected using
agency.
5-101.04
Request for Hearing
A contractor or prospective contractor that has been
notified of a proposed debarment action may request in writing that a hearing
be held. Such request must be received by the PSCRB within ten (10) days of
receipt of notice of the proposed action under Section 5-101.03 (Initiation of
Debarment Action). If no request is received within the ten-day period, a final
determination may be made as set forth in Section 5-101.08 (Determination of
Hearing Officer; Final Decision) after consulting with the MSPB Special
Assistant Attorney General and the using agency.
5-101.05
Notice of Hearing
If a hearing is requested, the PSCRB may appoint a hearing
officer to conduct the hearing and recommend a final decision. The hearing
officer shall send a written notice of the time and place of the hearing. Such
notice shall be sent by certified mail, return receipt requested, and shall
state the nature and purpose of the proceedings. Copies shall be sent to the
MSPB Special Assistant Attorney General, the using agency, and the contractor
or prospective contractor.
5-101.06
Authority of Hearing
Officer
The hearing officer, in the conduct of the hearing, may:
(a) hold informal conferences to
settle, simplify, or fix the issues in a proceeding, or to consider other
matters that may aid in the expeditious disposition of the proceeding either by
consent of the parties or upon such officer's own motion;
(b) require parties to state their positions
with respect to the various issues in the proceeding;
(c) require parties to produce for
examination those relevant witnesses and documents under their control;
(d) rule on motions, and other
procedural items on matters pending before such officer;
(e) regulate the course of the hearing and
conduct of participants therein;
(f) receive, rule on, exclude, or limit
evidence, and limit lines of questioning or testimony which are irrelevant,
immaterial, or unduly repetitious;
(g) fix time limits for submission of written
documents in matters before such officer;
(h) impose appropriate sanctions against any
party or person failing to obey an order under those procedures, which
sanctions may include:
(1) refusing to allow
the disobedient party to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in evidence;
(2) excluding all testimony of an
unresponsive or evasive witness; and,
(3) expelling any party or person from
further participation in the hearing;
(i) take official notice of any material fact
not appearing in evidence in the record, if such fact is among the traditional
matters of judicial notice; and,
(j) take such other action which is in the
best interest of the State, consistent with due process and in the interest of
justice.
5-101.07
Hearing Procedures
(a) Hearings
shall be as informal as may be reasonable and appropriate under the
circumstances and in accordance with applicable due process requirements. The
weight to be attached to evidence presented in any particular form will be
within the discretion of the hearing officer. Stipulations of fact agreed upon
by the parties may be regarded and used as evidence at the hearing. The parties
may stipulate the testimony that would be given by a witness if the witness
were present. The hearing officer may require evidence in addition to that
offered by the parties.
(b) A
hearing may be recorded but need not be transcribed except at the request and
expense of the contractor or prospective contractor. A record of those present,
identification of any written evidence presented, and copies of all written
statements and a summary of the hearing shall be sufficient record.
(c) Opening statements may be made unless a
party waives this right.
(d) All
witnesses may be cross-examined.
5-101.08
Determination of Hearing
Officer - Final Decision
The hearing officer shall prepare a written determination
recommending a course of action. Such determination shall be given to the PSCRB
and the head of a purchasing agency. Copies shall also be sent to the
contractor or prospective contractor, the MSPB Special Assistant Attorney
General, and the affected using agency. The contractor or prospective
contractor shall have ten (10) days to file comments upon the hearing officer's
determination. The PSCRB may request oral argument. After consultation with the
using agency and the MSPB Special Assistant Attorney General, the PSCRB shall
issue a final decision. Both the hearing officer's determination and the final
decision shall recite the evidence relied upon. When debarment is recommended
or ordered, the length of the debarment, the reasons for such action, and to
what extent affiliates are affected shall be set forth. In addition, the final
determination shall inform the debarred person of his rights to judicial review
under this chapter of these regulations.
5-101.09
Effect of Debarment
Decision
A debarment decision will take effect upon issuance and
receipt by the contractor or prospective contractor. After the debarment
decision takes effect, the contractor shall remain debarred until the debarment
period specified in the decision expires.
5-101.10
Maintenance of List of
Debarred and Suspended Persons
The PSCRB shall maintain and update a list of debarred and
suspended persons. All agencies of the State shall be supplied with this list.
The PSCRB shall send updates of this list to all agencies of the State as
necessary. Such list shall be available to the public upon request.
