Section 29F: Debarment from bidding; definitions; lists; notice; affiliates; mitigating circumstances
Section 29F. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:—
‘‘Affiliates’’, entities which are affiliates of each other when either directly or indirectly one concern or individual controls or has the power to control another, or when a third party controls or has the power to control both.
‘‘Commissioner’’, the commissioner of the division of capital asset management and maintenance or the commissioner’s designee within such division.
‘‘Contractor’’, any person that has furnished or seeks to furnish supplies or services under a contract with a public agency or with a person under a contract with a public agency.
‘‘Debarment’’, an exclusion from public contracting or subcontracting for a reasonable, specified period of time commensurate with the seriousness of the offense.
‘‘Person’’, any natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.
‘‘Public agency’’, a department, agency, board, commission, authority, activity or instrumentality of the commonwealth, or of any political subdivision of the commonwealth, or of 2 or more subdivisions of the commonwealth.
‘‘Public contract’’, a contract for the furnishing of supplies or services to any public agency.
‘‘Secretary’’, the head of an executive office established under chapter 6A or such head’s designee within such executive office, or the secretary of administration and finance appointed under section 4 of chapter 7 or a designee within the executive office.
‘‘Suspension’’, the temporary disqualification of a contractor who is suspected upon adequate evidence of engaging or having engaged in conduct which constitutes grounds for debarment.
(b) The secretary of administration and finance shall establish and maintain a consolidated list of contractors to whom public contracts shall not be awarded and from whom offers, bids or proposals shall not be solicited.
The list shall show at a minimum the following information: (1) the names of those persons debarred or suspended in alphabetical order with appropriate cross reference where more than one name is involved in a single debarment or suspension; (2) the basis of authority for each debarment or suspension, including the secretary or other official who imposed the debarment or suspension; (3) the extent of restrictions imposed; (4) the termination date of each debarment or suspension; and (5) in the case of a suspension, the hearing date, if and when set, for debarment proceedings.
The secretary of administration and finance shall cause the list to be kept current by the issuance of notices of additions and deletions. The list shall be published on a periodic basis, together with notices of additions to and deletions from the list, in the goods and services bulletin and the central register published by the state secretary and in such other publications as the secretary of administration and finance shall designate. The secretary of administration and finance shall also forward said list to the inspector general, the attorney general and the state auditor. A secretary or the commissioner, as the case may be, upon imposing a debarment or suspension or removing a suspension shall forthwith notify the secretary of administration and finance of all information required for inclusion on such list.
(c) Debarment may be imposed for the following causes but debarment shall be imposed in all causes where debarment is required by law:
(1) conviction or final adjudication by a court or administrative agency of competent jurisdiction of any of the following offenses: (i) a criminal offense incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; (ii) a criminal offense involving 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 seriously and directly affects the contractor’s present responsibility as a public contractor; (iii) a violation of state or federal antitrust laws arising out of the submission of bids or proposals; (iv) a violation of state or federal laws regulating campaign contributions; (v) a violation of chapter 268A; (vi) a violation of any state or federal law regulating hours of labor, prevailing wages, minimum wages, overtime pay, equal pay, child labor, or worker’s compensation; (vii) a violation of any state or federal law prohibiting discrimination in employment; or (viii) repeated or aggravated violation of any state or federal law regulating labor relations or occupational health or safety; or (ix) repeated or aggravated violation of any state or federal law protecting the environment; or (x) a violation of federal law prohibiting the employment of unauthorized aliens; or
(2) substantial evidence, as determined by a secretary or the commissioner, of any of the following acts: (i) willfully supplying materially false information incident to obtaining or attempting to obtain or performing any public contract or subcontract; (ii) willful failure to comply with record-keeping and accounting requirements prescribed by law or regulation; (iii) a record of failure to perform or of unsatisfactory performance under the terms of 1 or more public contracts, provided that such failure to perform or unsatisfactory performance has occurred within a reasonable period of time preceding the determination to debar and provided further that such failure to perform or unsatisfactory performance was not caused by factors beyond the contractor’s control; (iv) a record of health and safety or environmental violations of a sufficient frequency and severity so as to evidence a pattern of noncompliance with existing state and federal laws, or any rules and regulations applicable thereto; (v) any other cause affecting the responsibility of a contractor which the secretary or the commissioner determines to be of such serious and compelling nature as to warrant debarment. Notwithstanding any other provision of this section, any contractor debarred or suspended by any agency of the United States shall by reason of such debarment or suspension be simultaneously debarred or suspended under this section, with respect to non-federally aided contracts; the secretary or the commissioner may determine in writing that special circumstances exist which justify contracting with the affected contractor. The secretary or the commissioner shall give written notice to the secretary of administration and finance of any such determination.
(d) No contractor may be suspended unless a secretary or the commissioner has first informed the contractor by written notice of the proposed suspension mailed by registered or certified mail to the contractor’s last known address, except when the secretary or the commissioner determines that immediate suspension is necessary to prevent serious harm to the commonwealth, in which case the suspension shall take effect immediately upon signing by the secretary or the commissioner of an order of suspension, and notice shall be mailed to the contractor at the earliest opportunity. The notice shall inform the contractor of the reasons for the proposed suspension and shall state that the contractor may within 14 days respond in writing and may in such response request a hearing. The secretary or the commissioner may extend the period for response at the request of the contractor. The secretary or the commissioner shall determine whether to impose the suspension or, in the case of an emergency suspension imposed prior to notice to the contractor, whether to continue the suspension after reviewing the contractor’s response, if any, and making such investigation as the secretary or the commissioner determines is necessary and appropriate. An indictment, or any information or other filing by a public agency charging a criminal offense, for any of the offenses listed in paragraph (1) of subsection (c) shall constitute adequate evidence to support a suspension.
If the contractor requests a hearing, and the suspension is not based on an indictment, the secretary or the commissioner shall conduct a hearing according to the rules for the conduct of adjudicatory hearings established by the secretary of administration and finance under chapter 30A. Such hearing shall be initiated within 30 days of the imposition of the suspension, unless the contractor requests that the hearing be delayed. Officers and employees of the office of the inspector general and records of said office shall not be subject to subpoena for such hearing, if in the opinion of the inspector general production of records or testimony would prejudice any pending investigation by said office.
A suspension shall not exceed 12 months unless a pending administrative or judicial proceeding in which the contractor is a party may result in a conviction or final adjudication of an offense listed in paragraph (1) of subsection (c).
(e) No contractor may be debarred under this section unless a secretary or the commissioner proposing the debarment has first informed the contractor by written notice of the proposed debarment mailed by registered or certified mail to the contractor’s last known address. The notice shall inform the contractor of the reasons for the debarment and shall state that the contractor will be afforded an opportunity for a hearing if the contractor so requests within 14 days of receipt of the notice. A hearing requested under this subsection shall be conducted by the secretary or the commissioner within 60 days of receipt of the request, unless the secretary or the commissioner grants additional time for the hearing at the request of the contractor. The hearing shall be conducted according to the rules for the conduct of adjudicatory hearings established by the secretary of administration and finance under chapter 30A. A debarment shall not be imposed until (i) 14 days after receipt by the contractor of notice of the proposed debarment if no hearing is requested, or (ii) the issuance of a written decision by the secretary or the commissioner which makes specific findings that there is sufficient evidence to support the debarment and that debarment for the period specified in the decision is required to protect the integrity of the public contracting process. A contractor shall be notified forthwith of the decision by registered or certified mail, and of the contractor’s right to judicial review in the event that the decision is adverse to the contractor. If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.
(f) A debarment or suspension may include all known affiliates of a contractor. The decision to include a known affiliate within the scope of a debarment or suspension shall be made on a case-by-case basis, after giving due regard to all relevant facts and circumstances. The offense or act of an individual justifying suspension, or the evidence justifying a suspension, may be imputed to the entity with which the individual is connected when such offense or act occurred in connection with the individual’s performance of duties for or on behalf of the entity or with the knowledge, approval, or acquiescence of the entity or 1 or more of its principals. The entity’s acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence. The offense or act of an entity justifying debarment, or the evidence justifying a suspension, may be imputed to any officer, director, shareholder, partner, employee or other individual associated with the entity who participated in, knew of, or had reason to know of the entity’s act. An entity or individual shall not be suspended or debarred except under the procedures in this section, provided that a public agency may reject a bid or proposal from any contractor when the public agency reasonably determines that such contractor is not responsible or eligible.
(g) In determining whether to debar a contractor, or the period of a debarment, all mitigating facts and circumstances shall be taken into consideration. Except as precluded by law, a debarment may be removed or the period of debarment may be reduced by the secretary or the commissioner who imposed the debarment or suspension upon the submission of an application supported by documentary evidence setting forth appropriate grounds for the granting of relief, such as newly discovered material evidence, reversal of a judgment or conviction, bona fide change of ownership or management or the elimination of the cause for which the debarment was imposed.
(h) During the period for which a person has been debarred or suspended, that person shall not submit or cause to be submitted offers, bids or proposals to any public agency, nor shall any public agency solicit or consider offers, bids or proposals from, nor execute, renew or extend any contract with, a debarred or suspended contractor and a contractor shall not contract for supplies or services from a debarred or suspended subcontractor on any public contract.
(i) The secretary of administration and finance shall by regulation drawn up in consultation with each secretary and the commissioner provide for, upon the request of any secretary or the commissioner the timely commencement by, the removal to, or consolidation at the executive office for administration and finance of debarment or suspension proceedings. Such regulations also shall provide that the contractor against whom debarment or suspension proceedings have been initiated may apply to the secretary of administration and finance for consolidation of such proceedings at the executive office for administration and finance. Such proceedings shall be conducted by the secretary of administration and finance or the secretary’s designee under this section.