Section 3.1 Purpose
This Policy sets forth rules for the debarment of and other
measures against contracting firms or affiliates where it is demonstrated that
government funds may not be properly utilized or the State's interest would not
be safeguarded. These measures shall be used to protect the public interest and
are not intended to be sanctions, penalties, or forms of punishment.
Section 3.2 Definitions
(a) Adequate evidence means information
sufficient to support the reasonable belief that a particular act or omission
has occured.
(b) Agency means the
Vermont Agency of Transportation.
(c) Affiliates. Persons are affiliates if,
directly or indirectly,
(i) either one
controls or can control the other, or
(ii) a third controls or can control
both.
(d) Board means
the Vermont Transportation Board.
(e) Participant means a person or an officer
or employee of a person who directly or indirectly participates, may
participate or has participated in Agency programs through an agreement of that
person with a recipient or contractor of any tier. The term includes, but is
not limited to, subcontractors, suppliers, fee appraisers, inspectors, real
estate agents and brokers, consultants, architects, engineers, and
attorneys.
(f) Person means an
individual, corporation, partnership or an unincorporated association, or other
public or private entity.
(g)
Secretary means the Secretary of the Vermont Agency of Transportation or
his/her designee.
(h) FHWA means
the Federal Highway Administration or any successor agency.
(i) Suspension is the action taken under
Section 3.3 of this Policy to disqualify a person temporarily from
participation in Agency contracts.
(j) Debarment is the action taken under
Section 3.9 of this Policy to disqualify a person from participation in Agency
contracts for a period not to exceed three (3) years.
(k) Voluntary Exclusion is the
disqualification of a bidder from Agency contracts as a result of an agreement
voluntarily entered into under section 3.16 of this Policy, between the Agency
and the person to be excluded. contracts for a period not to exceed three (3)
years.
Section 3.3
Suspension
(a) The Secretary may suspend any
participant or affiliate upon adequate evidence for any of the following
causes--
(1) Commission of fraud or any
criminal offense as an incident to obtaining, seeking to obtain, or performing
government business or a public contract;
(2) Commission of any criminal offense
indicating a lack of business integrity or business honesty that seriously and
directly affects the question of present responsibility including, but not
limited to, embezzlement, theft, forgery, bribery, falsification or destruction
of records, false statements, fraud, receiving stolen property, violation of
the Organized Crime Control Act of 1970, or violation of Federal or state
antitrust statutes arising out of submission of bids or proposals;
(3) Violation of any agreement for voluntary
exclusion or any settlement made under this Policy; or
(4) Commission or omission of an act of such
serious or compelling nature that the act indicates a serious lack of business
integrity or honesty. Such commissions or omissions include, but are not
limited to--
(i) the violation of any
applicable law, regulation, or obligation relating to the performance of
obligations incurred pursuant to a contract with the State of Vermont or an
Agency or Department thereof; or
(ii) making, or procuring to be made, any
false statement or using deceit for the purpose of influcening in any way any
action of the State.
(b) An outstanding indictment or information
is adequate evidence of suspected criminal conduct and may be the basis for the
imposition of a suspension.
Section
3.4 Suspension of Affiliates
Suspension may include any affiliate of a participant. A
determination to include an affiliate in a particular suspension must be made
on a case-by-case basis. Among the factors to be considered in making this
determination are the affiliate's knowledge of or participation in the conduct
which is the basis for the suspension.
Section 3.5 Notice of Suspension
Immediately after the suspension decision, a suspended person
shall be furnished notice of the suspension by the Secretary. The notice shall
include the specific acts or omissions on which the suspension is based, the
provisions of Section 3.7 relative to period of suspension, and a statement
that the participant does have a right to a hearing and may be represented by
counsel, if desired.
Section
3.6 Hearing
(a) Upon written
request to the Board a suspended person is entitled to a hearing on a
suspension before a hearing officer appointed by the Board; or by the Board or
a committee thereof, as determined by the Board. The suspended person is
entitled to a hearing within thirty (30) days of receipt of the written request
by the Board. The request may be made anytime during the period of
suspension.
(b) All witnesses shall
testify under oath or affirmation. Agency witnesses, if any, shall be called
first and may be cross-examined by the suspended person. The person's witnesses
may be cross-examined by any party.
(c) A record shall be made of the
proceedings. A transcription of the record shall be made available to a party
at the expense of the requesting party.
(d) Where appropriate, and if the parties
agree, a suspension hearing may be consolidated with a debarment hearing
involving the same issues.
(e) The
hearing officer or committee shall issue a proposed order and findings to the
Board and the parties. If the hearing officer or committee recommends a
continuation of the suspension, the proposed order shall indicate:
(i) that there is adequate evidence of a
cause listed in Section
3.
3, and
(ii) that the length of
suspension complies with Section 3.7.
(f) If the Board conducts the hearing and
decides upon a continuation of the suspension, the Board's order shall
indicate:
(i) that there is adequate evidence
of a cause listed in Section
3.
3, and
(ii) that the length of
suspension complies with Section 3.7.
Section 3.7 Period of Suspension
(a) Temporary period. A suspension shall be
for a temporary period pending the completion of any investigation or any
administrative or judicial proceedings relating to a determination of any cause
for suspension that may ensue.
(b)
Time limitation on decision to suspend. In any case involving a suspected
violation of Federal or state law where prosecutive action has not been
initiated within twelve (12) months from the date of the notice of suspension,
suspension shall be terminated unless the prosecuting official requests an
extension of the suspension. Notice of the proposed termination of the
suspension shall be given to the prosecuting official not less than thirty (30)
days prior to the expiration of the twelve (12) month period. In no event shall
a suspension exceed eighteen (18) months unless prosecutive action has been
initiated within that period.
(c)
Waiver of time limitation. The time limitation for suspension contained in this
section may be waived by the affected party.
Section 3.8 Review by the Board
Within forty-five (45) days after receipt of the proposed order
and findings from the hearing officer or committee under Section
3.
6, the Board shall issue an order relative to the suspension. At the Board's
option, it may adopt the proposed findings and order of the hearing officer or
committee if the findings are supported by the evidence and the conclusions are
consistent with these regulations; it may remand the matter to the same or a
different hearing officer for rehearing on specific points, which shall be
specified, it may modify the decision, or it may order a de novo hearing.
Notice of the Board's determination shall be sent to all parties.
Section 3.9 Debarment
Grounds for a Debarment. The Secretary may debar any
participant or affiliate upon adequate evidence for any of the following
causes:
(a) Conviction for any cause
which is a ground for a suspension as set forth in Section 3.3(a)(1) or Section
3.
3(a)(2);
(b) For any cause which is
a ground for suspension as set forth in Section 3.3(a)(3) or Section
3.
3(a)(4);
(c) Violation of a law or
regulation relating to personal or organizational conflicts of interest as an
incident to obtaining, attempting to obtain, or in the performance of, a
contract with the Agency.
(d) A
willful or serious failure to perform or a record of unsatisfactory performance
in accordance with the terms of one or more contracts with the Agency, provided
that such failure or unsatisfactory performance has occurred within a
reasonable period of time preceding the determination to debar.
(e) Disqualification from participation in
direct or indirect contracting by any federal agency or any other
state.
Section 3.10
Debarment of Affiliates
Debarment may include any affiliate of a participant. A
determination to include an affiliate in any particular debarment shall be made
on a case-by-case basis. Among the factors to be considered in making this
determination are the affiliate's knowledge of or participation in the conduct
which is the basis for the debarment. Where debarment of an affiliate is
proposed, the affiliate shall be afforded the rights of notice and hearing
provided in this Policy.
Section
3.11 Notice of Debarment
(a)
Notice of debarment. When a debarment is ordered the Secretary shall give
notice to the Board and to the participant prior to any public announcement.
The notice shall state the specific acts or omissions which form the basis of
the action.
(b) The Secretary shall
set a term of debarment of not less than six (6) months nor more than
thirty-six (36) months and give his/her reasons for the length of the
debarment. In determining the length of the debarment, the Secretary shall
consider among other reasons the following:
(1) the integrity of the person subject to
debarment, including, but not limited to whether restitution, if appropriate,
has been made;
(2) whether the
person's conduct since suspension, if any, has been meritorious;
(3) whether there has been circumvention of
the suspension, if any;
(4) whether
the individuals who engaged in the behavior giving rise to debarment are in a
position to dominate, manage, or meaningfully influence the business and
operations of the person;
(5) the
seriousness and nature of the cause of the debarment, including the amount of
any suspected collusion and its effect on the cost of Agency
projects;
(6) the promotion of
increased competition in bidding on Agency projects;
(7) actions taken by other governmental
entities or agencies regarding debarment or disqualification with respect to
the person in question or in similar situations.
Section 3.12 Review by the Board
At any time after an order of debarment by the Secretary, the
participant may petition the Board for review of the Secretary's order. The
Board may, in its discretion: appoint a hearing officer to conduct a hearing
and issue proposed findings and conclusions to the Board; or conduct a hearing
before the full Board, or a committee thereof. In the case of a debarment based
upon conviction under Section
3.
9(a), the Board shall only consider the length of the debarment.
Section 3.13 Hearing
(a) If a hearing is ordered by the Board, the
hearing officer, the Board, or the committee shall--
(1) Provide notice of the time and place of
the hearing to all parties and include therein a statement indicating the
nature of the proceedings and their purpose. Any party may be represented by
counsel.
(2) Require all witnesses
to testify under oath or affirmation. Agency witnesses, if any, shall be called
first and may be cross-examined by the person against whom debarment is
proposed. The person's witnesses may also be cross-examined by any other
party.
(3) Make a record of the
proceedings and make a transcription of the record available to any requesting
party at that party's expense.
(b) The Board's determination shall be made
within sixty (60) days after the close of evidence at a hearing before it or
the issuance of proposed findings and conclusions by a hearing officer. The
Board's determination shall be a final order.
Section 3.14 Debarment by the Board
The Board, on its own motion, may order a debarment hearing if
the Secretary has not acted. Such a hearing will be in accordance with Section
3.13. In setting the length of debarment, the Board shall consider, among other
reasons, the criteria set out at Section 3.11(b) (1-7).
Section 3.15 Reinstatement
(a) A person debarred under this Policy may
file a request for reinstatement at any time. The request shall be in writing
and addressed to the Secretary.
(b)
Procedure. The Secretary may limit the debarred person to a opportunity to
submit documentary evidence and written briefs or, at his/her discretion, may
grant a request for a oral hearing.
(c) The Secretary shall give notice of
his/her recommendation on reinstatement to the debarred person and to the
Board. The Board may review the determination on its motion, on petition of the
debarred person, or it may decline review. If the Board declines review, the
Secretary's recommendation will have the effect of a determination by the
Board.
Section 3.16
Voluntary Exclusion
Agreement for voluntary exclusion. When in the best interest of
the State, and provided that allegations of fraud or criminal activities are
not involved, the Secretary, instead of taking administrative action, may enter
into an agreement with the participant providing for voluntary exclusion from
Agency programs for a specified period of time. Agreements for voluntary
exclusion are entered into for the benefit of both parties and do not
constitute administrative suspension or debarment measures. However, violations
of an agreement for voluntary exclusion may result in administrative action
under this Policy.
Section
3.17 Exclusion from Participation
(a) Suspended contractors, debarred
contractors and individuals and participants who have entered into an agreement
forvoluntary exclusion shall be excluded from all forms of participation on
Agency projects including, but not limited to, the following:
(1) Contracting
(2) Subcontracting
(3) Consulting
(4) Material manufacture and supply
(5) Equipment rental
(6) Preparation of bids of others
(b) When circumstances dictate as
provided in subsection (c), the Secretary, with the prior approval of the
Federal Highway Administration on any projects involving Federal Highway
Administration funds, as applicable, may allow debarred contractors and
individuals to participate in Agency projects to the following limited extent:
(1) Material manufacture and supply
(2) Equipment rental
(c) Contractors wishing to utilize debarred
contractors for these limited activities must petition the Secretary for
authorization to do so as directed by the Secretary. Petitions must name the
debarred contractor and/or individuals requesting permission to participate in
projects, the nature of participation, and the total dollar value of material,
leases and supply to be provided by the debarred person. Unless waived in whole
or in part by the Secretary, the petition must also detail and document the
contractor's unsuccessful good faith solicitation, according to the policies
and guidelines of the Agency, to secure a person who is not debarred to provide
the materials and/or lease the equipment that the contractor intends to secure
from the debarred person. The evaluation of the petition will be in
consideration of the best interest of the State and will be based upon the
following factors, among others:
(1) The
unique value of the debarred person's services, material, or
equipment;
(2) The overriding need
for the debarred person's services, material, or equipment.
(d) Debarred persons who are
authorized limited access to Agency projects by the Secretary shall exercise no
direction or control over work on the project or the contractor. Authorizations
from the Secretary will be in writing and will state the specific conditions of
project involvement allowed the debarred person. Failure of the person to
comply with the specific conditions of project involvement allowed by the
Secretary will result in immediate withdrawal of approval for participation by
the debarred person by the Agency.
(e) Debarred Subcontractors. No subcontractor
approval request for use of a debarred person or contractor will be granted by
the Agency during the time frame of a contractor's debarment period, or if
specifically set out on the debarment notice, during the period of debarment as
a subcontractor.
