Ala. Admin. Code r. 355-4-6-.02

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

Section 355-4-6-.02 - Authority To Debar And Suspend

(1) Application. This Rule applies to all debarments or suspensions of persons from consideration for award of contracts imposed by the Chief Procurement Officer.

(2) Suspension.

(a) Initiation. After consultation with the affected Using Agency and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the Chief Procurement Officer that probable cause exists for debarment as set forth in Code of Ala. 1975, § 41-4-162, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that:

1. the suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but not for a period in excess of three months;

2. bids or proposals will not be solicited from the suspended person, and, if they are received, they will not be considered during the period of suspension; and

3. if a hearing has not been held, the suspended person may request a hearing in accordance with Rule 355-4-6-.02(4) (Request for Hearing).

(b) Effect of Decision. A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the Chief Procurement Officer but otherwise shall only be ended when the suspension has been in effect for three months or a debarment decision takes effect.

(3) Initiation of Debarment Action. Written notice of the proposed debarment action shall be sent by certified mail or other method that allows a return receipt, with return receipt requested, to the contractor or prospective contractor. This notice shall:

(a) state that debarment is being considered;

(b) set forth the reasons for the action;

(c) state that if the contractor or prospective contractor so requests a hearing will be held, provided such request is received by the Chief Procurement Officer within ten days after the contractor or prospective contractor receives notice of the proposed action; and

(d) state that the contractor or prospective contractor may be represented by counsel.

Such notice shall also be sent to the affected Using Agency. The affected Using Agency is that agency that has used the supplies or services supplied by the contractor. If more than one affected Using Agency is involved the Chief Procurement Officer may designate one or more representatives to be consulted in respect to this action.

(4) Request for Hearing. A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the Chief Procurement Officer proposing the action within ten days of receipt of notice of the proposed action under Subsection (3) (Initiation of Debarment Action). If no request is received within the ten-day period, a final determination may be made as set forth in Subsection (8) (Determination of Hearing Officer; Final Decision) after consulting with the affected Using Agency.

(5) Notice of Hearing. If a hearing is requested, the Chief Procurement Officer may appoint a hearing officer to conduct the hearing and recommend a final decision. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail or other method that allows a return receipt, with return receipt requested, and shall state the nature and purpose of the proceedings. Copies shall be sent to the Using Agency.

(6) Authority of Hearing Officer. The hearing officer, in the conduct of the hearing, has the power, among others, to:

(a) hold informal conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer's own motion;

(b) require parties to state their positions with respect to the various issues in the proceeding;

(c) require parties to produce for examination those relevant witnesses and documents under their control;

(d) rule on motions, and other procedural items on matters pending before such officer;

(e) regulate the course of the hearing and conduct of participants therein;

(f) receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;

(g) fix time limits for submission of written documents in matters before such officer;

(h) impose appropriate sanctions against any party or person failing to obey an order under these procedures, which sanctions may include:

1. refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

2. excluding all testimony of an unresponsive or evasive witness; and

3. expelling any party or person from further participation in the hearing;

(i) take official notice of any material fact not appearing in evidence in the record, if such fact is among the traditional matters of judicial notice; and

(j) administer oaths or affirmations.

(7) Hearings Procedures.

(a) Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the hearing officer. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The hearing officer may require evidence in addition to that offered by the parties.

(b) A hearing may be recorded but need not be transcribed except at the request and expense of the contractor or prospective contractor. A record of those present, identification of any written evidence presented, and copies of all written statements and a summary of the hearing shall be sufficient record.

(8) Determination of Hearing Officer; Final Decision.

The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the Chief Procurement Officer. Copies shall also be sent to the contractor or prospective contractor and the affected Using Agency. The contractor or prospective contractor shall have five days to file comments upon the hearing officer's determination. The Chief Procurement Officer may request oral argument. After consultation with the affected Using Agency, the Chief Procurement Officer shall issue a final decision. Both the hearing officer's determination and the final decision shall recite the evidence relied upon. When debarment is recommended or ordered, the length of the debarment (not to exceed three years), the reasons for such action, and to what extent affiliates are affected shall be set forth. In addition, the final determination shall inform the debarred person of its rights to administrative review under Code of Ala. 1975, § 41-4-164 regarding Legal and Contractual Remedies.

If the Chief Procurement Officer acts as hearing officer under this section, he or she shall prepare a written determination of his or her findings. Such determination shall be sent to the contractor or prospective contractor and the affected Using Agency. The contractor or prospective contractor shall have five days to file comments upon the determination. After consultation with the affected Using Agency, the Chief Procurement Officer shall either affirm his or her original decision or issue a written amended decision. The Chief Procurement Officer's determination and amended decision, if any, shall recite the evidence relied upon.

(9) Effect of Debarment Decision. A debarment decision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until the Chief Procurement Office or Director of Finance orders otherwise or until the debarment period specified in the decision expires.

(10) Maintenance of List of Debarred and Suspended Persons. The Chief Procurement Officer shall maintain and update a list of debarred and suspended persons. The list shall be available to all agencies and political subdivisions of the State. Such list shall be available to the public in accordance with this Code and the Alabama Open Records Act.

Ala. Admin. Code r. 355-4-6-.02

Adopted by Alabama Administrative Monthly Volume XL, Issue No. 09, June 30, 2022, eff. 8/14/2022; operative 10/1/2022.

Author: Department of Finance, Legal Division

Authority:Code of Ala. 1975, § 41-4-162.