§ 2-1162. Debarment or suspension from consideration for contract award.

(a)

Authority to debar or suspend. The chief procurement officer, after consulting with the city attorney, is authorized to debar a person for cause from participation in any city procurements at any tier and consideration for award of contracts. The debarment shall be for a period of not more than five years. The period of time during which the debarment will be imposed is to be determined by the chief procurement officer based upon the severity of the causes for debarment. After consultation with the using agency and city attorney, the chief procurement officer is authorized to suspend a person from participation in any city procurement at any tier and consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding the greater of: (1) three months; (2) the period during which administrative review of the suspension is pending; or (3) the period during which judicial review of an administrative decision that was adverse to the suspended firm is pending.

(b)

Causes for debarment or suspension. The causes for debarment or suspension include:

(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 and 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 city contractor.

(3)

Conviction under state or federal antitrust statutes arising out of the solicitation and submission of bids or proposals.

(4)

Violation of contract provisions, as set forth below, of a character which is regarded by the chief procurement officer to be so serious as to justify debarment action:

a.

Deliberate failure to perform in accordance with the provisions or within the time limit provided in any city contract.

b.

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. In the event that the contractor asserts in a city suspension or debarment proceeding that such recent failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts was caused by acts beyond the control of the contractor, the contractor must introduce documentation from the applicable contract/project in which it provided notice of such acts beyond its control and/or invoked its rights to equitable adjustment or other similar remedies under the applicable contract as a result of force majeure or other similar events; provided, however, that the city's determination on such issue will be independent from the contract/project at issue. It is insufficient in a city debarment proceeding for the contractor to raise this issue for the first time concerning a prior contract under which it failed to perform or performed unsatisfactorily.

(5)

Violation of the ethical standards set forth in division 13 of this article.

(6)

Submission to the city of a claim for additional compensation that is without merit, including, but not limited to claims seeking to recoup:

a.

Costs incurred by the contractor but not included in its bid or proposal due to its own error;

b.

Costs that it has already been paid or will be paid under the contract;

c.

Costs asserted simply for the purpose of forcing the city to consider a settlement at a reduced amount;

d.

Costs that the contractor has not certified pursuant to the contract documents; and

e.

Costs that the contractor would not be entitled to recover under the contract documents, including, but not limited to attorneys fees and interest on unpaid sums.

(7)

Knowing misrepresentation to the city of the use which a majority-owned contractor intends to make of a minority and female business enterprise (a business entity at least 51 percent of which is owned and controlled by one or more African Americans, Asian Pacific Americans, Hispanic Americans, or females, or a combination thereof, as defined in section 2-1443 and certified as such by the city), as a subcontractor, member of a mentor-protégé relationship, or a joint venture partner, in performing work under a contract with the city.

(8)

Material misrepresentation of the composition of the ownership or work force of a business entity certified to the city as a minority and female business enterprise.

(9)

Any other cause the chief procurement officer, in consultation with the using agency and city attorney, determines to be so serious and compelling as to affect responsibility, including, but not limited to, debarment by another governmental entity.

(c)

Notice. The chief procurement officer shall issue a written notice of the decision to debar or suspend. The notice shall state the reasons for the action taken and the effective date of the debarment or suspension and shall inform the debarred or suspended person involved of the right to administrative review as provided in this division.

(d)

Finality of decision. A decision under subsection (c) of this section is final and conclusive, unless fraudulent or any person adversely affected by the decision appeals administratively to the procurement appeals hearing officer in accordance with this division.

(e)

City council initiated debarment. The city's council, by enactment of an appropriate resolution, may request that the chief procurement officer initiate an investigation into whether a particular person should be debarred and/or suspended and, after consulting with the city attorney, the chief procurement officer is authorized to debar or suspend such person for cause from participation in any city procurements at any tier and consideration for award of contracts.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)