Loading...
(a) In order to promote integrity in the County's contracting processes and to protect the public interest, the County shall only do business with responsible persons who do not have recurring non- performance or other egregious behavior.
(b) Sections 429 through 429.15 set forth the grounds for suspension and/or debarment of a person contracting or seeking to contract with the County.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
For purposes of Sections 429 through 429.15:
"Adequate Evidence" means information sufficient to support the reasonable belief that a particular act or omission has occurred.
"Affiliate" means:
(a) the assignee, successor, subsidiary, or parent company, of another person; or,
(b) a controlling stockholder of a person; or,
(c) a person who has the same or similar management of the debarred corporate or other legal entity; or,
(d) a person who directly or indirectly controls, or has the power to control, another person, or is directly or indirectly controlled by another person. Indicators of control include interlocking management or ownership, identity of interests among relatives, shared facilities and equipment, and common use of employees; or,
(e) a business entity that has the same or similar management, ownership or principal employees as the contractor that was debarred, suspended or proposed for debarment, or the debarred person or the business entity operates in a manner designed to evade the application of Sections 429 through 429.15 or to defeat the purpose of these sections.
"Contract" means any written agreement between the County and a person for public works, goods, services, or franchise.
"Contractor" means a person who: contracts or has contracted with the County to provide public works, goods, services, or franchise; directly or indirectly, such as through an affiliate, submits or may be reasonably expected to submit offers, bids, proposals, information, or qualifications for a contract or subcontract under a contract; is awarded a contract; conducts business or reasonably may be expected to conduct business with the County as an agent or representative of another person; or otherwise seeks award of a County contract. The term contractor includes a subcontractor, vendor, franchisee, consultant, or any of their respective officers, directors, shareholders, partners, managers, employees, or other individuals associated with the contractor, subcontractor, consultant, or vendor.
"Controlling Stockholder" means a stockholder who:
(a) owns more than 25% of the voting stock of a corporation; or,
(b) notwithstanding the number of shares that the stockholder owns, has the power to direct or control the direction of the management or policies of a corporation.
"Debar" or "Debarment" means an action taken by the County or other public entity that results in a contractor being prohibited from any of the following: bidding on, proposing on, or otherwise offering to perform work on a contract; being awarded a contract; or performing work on a contract for a defined period of time. A contractor subject to such prohibition is debarred.
"Department" means a County department acting through the department director or designee.
"Director of the Department of Purchasing and Contracting" means the County of San Diego Director of the Department of Purchasing and Contracting or his or her designee.
"Independent Hearing Officer" means a person who has been appointed as a County Hearing Officer pursuant to Article XXXIII of the San Diego County Code of Administrative Ordinances.
"Management" means the officers, partners, owners, foremen, or other individuals responsible for a corporate or other legal entity's financial and operational policies and practices.
"Person" means a natural person as well as a body of persons or an entity (such as a corporation) considered as having many of the rights and responsibilities of a natural person and including but not limited to the capacity to sue and be sued. In addition, if a person is a corporate or other legal entity, it includes individuals who constitute the person's management.
"Preponderance of the Evidence" means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.
"Prime Contractor" means a person who enters into a contract directly with the County.
"Relative" means:
(a) an individual related by consanguinity within the third degree as determined by the common law; or,
(b) a spouse; or,
(c) an individual related to a spouse within the third degree as determined by the common law; or,
(d) an individual in an adoptive relationship within the third degree as determined by the common law; or
(e) any individual considered to be "family" in commonly used and understood terms of the word.
"Subcontractor" means:
(a) a person who contracts directly with a prime contractor but not directly with the County; or,
(b) any person under contract with a prime contractor or another subcontractor to provide any form or type of public work, good, service, and/or franchise to the County.
"Suspend(ed)" or "Suspension" means the debarment of a contractor for a temporary period of time pending the completion of an investigation and any proceedings before an Independent Hearing Officer and any appeals therefrom.
The term "state" shall mean any state that is a part of the United States of America and the District of Columbia.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
(a) Sections 429 through 429.15 establish procedures for determining whether a contractor is to be debarred, suspended, or both, and set forth the grounds for debarment and suspension.
(b) Sections 429 through 429.15 provide that a list of debarred and suspended persons is to be created and maintained by the Department of Purchasing and Contracting. It further delineates the consequences of a person's debarment and suspension.
(c) The Director of the Department of Purchasing and Contracting shall adopt procedures and processes to implement Sections 429 through 429.15, including procedures for the conduct of debarment hearings, suspension meetings, and appeals.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
(a) The Director of the Department of Purchasing and Contracting may suspend a contractor pending a debarment decision if the Director of the Department of Purchasing and Contracting determines that adequate evidence of one of the grounds for debarment listed in Section 429.5 exists.
(b) The Director of the Department of Purchasing and Contracting shall, within three business days' of issuing a notice of suspension, provide a suspended contractor with an opportunity to appeal the suspension at an informal meeting.
(c) The Director of the Department of Purchasing and Contracting shall notify the contractor of the suspension in accordance with Section 429.4.
(d) The suspension is effective until the Independent Hearing Office makes a final decision on the proposed debarment.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
(a) Notice shall be by any of the following methods:
(1) Personal delivery with service effective on the date of delivery; or,
(2) Certified mail to the address provided by the contractor, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective five calendar days after mailing by regular mail, provided the notice that was sent by regular mail is not returned.
(b) Proof of delivery of notice shall be made by the certificate of any officer or employee of the County or by declaration under penalty of perjury of any person over the age of eighteen years. The proof of delivery shall show that delivery was accomplished in conformity with this section.
(c) The failure of any person to receive any notice served in accordance with this section shall not affect the validity of any debarment proceedings.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
(a) Grounds for permanent debarment.
(1) A judgment, settlement, stipulation, plea agreement, final conviction, including a plea of nolo contendere, or final unappealable civil judgment, on any of the grounds listed below, constitutes grounds for permanent debarment of the contractor, or the affiliate of the contractor, who is subject to the judgment, settlement, stipulation, plea agreement, final conviction, or final unappealable civil judgment:
(A) under any local, state, or federal law or regulation for embezzlement, theft, bid rigging, perjury, forgery, bribery, falsification or destruction of records, conspiracy, collusion, misappropriation of public money, false claims, or receiving stolen property; or,
(B) any offense, action, or inaction indicating a lack of business integrity or business honesty; or,
(C) for commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.
(2) A Fair Political Practices Commission enforcement order against a contractor, either following a hearing or by stipulation, imposing a penalty for a violation of California Government Code sections 84300(c) or 84301.
(3) The contractor has engaged in any corrupt practice in bidding, award, administration, or performance of a contract.
(4) The person has committed an act or omission so serious or compelling in nature that it affects the present responsibility of the contractor to be awarded a contract or to participate as a subcontractor.
(b) The following are grounds for debarment for a period of no less than two years:
(1) The contractor forfeited a surety bond, bid bond, performance bond, or any surety contract bond, or a surety or insurance provider was required to perform all or a portion of the contractor's work.
(2) Violation of a local, state, or federal law or regulation applicable to a contract other than those identified in Section 429.5(a)(1).
(3) The contractor used substandard materials, or has failed to furnish or install materials in accordance with contract requirements, even if the discovery of the defect is subsequent to acceptance of the work and expiration of the warranty, if such defect is because of intentionally deficient or grossly negligent performance of the contract.
(4) The contractor represents or submits materially false information to the County pertaining to:
(A) the contractor's qualifications or certifications as a local business, small business, veteran owned business, or disabled veteran business;
(B) the contractor's qualifications or certifications to perform the specified work;
(C) County's prequalification or eligibility process;
(D) the contractor's statement of gross income submitted as part of the procurement process; or
(E) an application for payment or invoices for services.
(5) The contractor has been found by a court of competent jurisdiction, arbitrator, or through a settlement agreement to have engaged in unlawful discrimination in employment.
(6) The contractor violates a material provision of any settlement or agreement in lieu of a County debarment action.
(c) The following are grounds for debarment for a period of no less than one year:
(1) The contractor made two or more claims to seek relief from its bid based on computational or other errors in a bid to the County within a two-year period.
(2) The contractor, on at least two instances within the immediately preceding three years prior to the date on which the County initiates the debarment proceeding, did not meet the standard of care or performance standards in an awarded contract(s).
(3) The contractor, on at least two instances within the immediately preceding three years prior to the date on which the County initiates the debarment proceeding, did not complete work within the time prescribed in an awarded contract(s).
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
(a) Upon recommendation for debarment of a contractor from a department, with the concurrence from the Director of the Department of Purchasing and Contracting, the Clerk of the Board of Supervisors shall appoint an Independent Hearing Officer consistent with and in the same manner as set forth in Section 16.103 of the San Diego County Code of Regulatory Ordinances.
(b) The Independent Hearing Officer shall hear all recommendations that include one or more grounds for debarment and/or suspension.
(c) The Independent Hearing Officer shall determine by a preponderance of the evidence whether there are sufficient grounds for debarment and the length of time of the debarment. Based on the evidence presented by all parties, the Independent Hearing Officer may increase, decrease, or accept the Department's recommendation regarding the length of debarment. The Independent Hearing Officer, however, may not reduce the length of a permanent debarment if the hearing officer determines a violation identified in Section 429.5(a) occurred, or impose less than the length of debarment specified in Section 429.5(b) and (c).
(d) The Independent Hearing Officer shall have the authority set forth in Section 16.104(a) and (b), will conduct the hearing consistent with the provisions set forth in Section 16.105, and will render a decision following the procedures set forth in Section 16.106(a), (c), (d), and (e), of the San Diego County Code of Regulatory Ordinances.
(e) The Independent Hearing Officer decision on debarment shall be in writing and is final pursuant to Section 16.106 of the San Diego County Code of Regulatory Ordinances.
(f) The failure of a person recommended for debarment to appear at a debarment hearing after notice under Section 429.4 may constitute a waiver of that person's right to contest the debarment recommendation. If the Independent Hearing Officer determines that the person has waived the right to contest the debarment under this subsection the Department's recommendation shall become final.
(Added by Ord. No. 10626 (N.S.), effective 11-14-19)
Loading...