Ala. Admin. Code r. 305-0-2-.06

Current through Register Vol. 43, No. 1, October 31, 2024

Section 305-0-2-.06 - Debarment

(1) The debarring official may debar a person for any of the causes listed as follows using the procedures established in these regulations. The existence of a cause for debarment, however, does not necessarily require that the person be debarred; the seriousness of the acts or omissions and any mitigating factors shall be considered.

(2) Debarment may be imposed for the following reasons or causes:

(a) Conviction of or civil judgment for:

1. Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;

2. Violation of federal or state antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;

3. Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, or obstruction of justice; or

4. Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.

(b) Violation of the terms of a public agreement (grant agreement or contract for work funded through grant agreement) or transaction so serious as to affect the integrity of an agency program such as:

1. A willful failure to perform in accordance with the terms of one or more public agreements or transactions;

2. A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or

3. A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.

(c) Any of the following causes:

1. A nonprocurement debarment by any Federal agency taken before October 1, 1988, or the effective date of these regulations, or a procurement debarment by any federal agency.

2. Knowingly doing business with a debarred, suspended, ineligible, or voluntarily excluded person, in connection with a covered transaction.

3. Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayment, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted; or

4. Violation of a material provision of any settlement of a debarment or suspension action.

(d) Any other cause of so serious or compelling a nature that it affects the present responsibility of a person.

(3) Procedures. ADECA shall process debarment actions as informally as practicable, consistent with the fundamental principles of fairness, using the procedures outlined as follows.

(4) Investigation and referral. Information concerning the existence of a cause for debarment from any source shall be promptly reported, investigated, and referred, when appropriate, to the debarring official for consideration. After consideration, the debarring official may issue a notice of proposed debarment.

(5) Notice of proposed debarment. A debarment proceeding shall be initiated by notice to the respondent.

(6) Opportunity to contest proposed debarment.

(a) Submission in opposition. Within 30 days after receipt of the notice of proposed debarment, the respondent may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment.

(b) A request for a meeting should be sent to the Director.

(7) Debarring official's decision.

(a) No additional proceedings necessary. In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over material facts, the debarring official shall make a decision on the basis of all the information in the administrative record, including any submission made by the respondent. The decision shall be made within 45 days after receipt of any information and argument submitted by the respondent, unless the debarring official extends this period for good cause.

1. Standard of proof. In any debarment action, the cause for debarment must be established by a preponderance of the evidence. Where the proposed debarment is based upon a conviction or civil judgment, the standards shall be deemed to have been met.

2. Burden of proof. The burden of proof is on the Division or program proposing debarment.

(b) Notice of debarring official's decision. If the debarring official decides to impose debarment, the respondent shall be given prompt notice.

(8) Period of debarment.

(a) Debarment shall be for a period commensurate with the seriousness of the causes(s). Generally, a debarment should not exceed three years. Where circumstances warrant, a longer period of debarment may be imposed if a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.

(b) The debarring official may extend an existing debarment for an additional period, if that official determines that an extension is necessary to protect the public interest. However, a debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment action was based. If debarment for an additional period is determined to be necessary, the debarment procedures herein outlined shall be followed to extend the debarment.

(c) The respondent may request the debarring official to reverse the debarment decision or to reduce the period or scope of debarment. Such a request shall be in writing and supported by documentation. The debarring official may grant such a request for reasons including, but not limited to:

1. Newly discovered material evidence;

2. Reversal of the conviction or civil judgment upon which the debarment was based;

3. Bona fide change in ownership or management;

4. Elimination of other causes for which the debarment was imposed; or

5. Other reasons the debarring official deems appropriate. X

(9) Scope of debarment.

(a) Scope in general.

1. Debarment of a person under these regulations constitutes debarment of all its divisions and other organizational elements from all covered transactions, unless the debarment decision is limited by its terms to one or more specifically identified individuals, divisions or other organizational elements or to specific types of transactions.

2. The debarment action may include any affiliate of the participant that is specifically named and given notice of the proposed debarment and an opportunity to respond.

(b) Imputing conduct. For purposes of determining the scope of debarment, conduct may be imputed as follows:

1. Conduct imputed to par. The fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with a participant may be imputed to the participant when the conduct occurred in connection with the individual's performance of duties for or on behalf of the participant, or with the participant's knowledge, approval, or acquiescence. The participant's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.

2. Conduct imputed to individuals associated with participant. The fraudulent, criminal, or other seriously improper conduct of a participant may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the participant who participated in, knew of, or had reason to know of the participant's conduct.

3. Conduct of one participant imputed to other participants in a joint venture. The fraudulent, criminal, or-ii other seriously improper conduct of one participant in a joint application, or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture, grant pursuant to a joint application, or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture, grant pursuant to a joint application, or similar arrangement or with the knowledge, approval, or acquiescence of these participants. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

Author:

Ala. Admin. Code r. 305-0-2-.06

New Rule: Filed: June 25, 1993, effective July 30, 1993.

Statutory Authority:Code of Ala. 1975, §§ 41-22-1-27, 41-23-6.