Section 1680-05-03-.07 - MODIFICATION, REVOCATION AND DISQUALIFICATION(1) Authority of Director of Construction. - For good cause, the Director of Construction may modify, revoke or restrict a general or limited prequalification, or the Director of Construction may temporarily disqualify a prequalified bidder or subcontractor, as follows:(a) Upon the request of an applicant and additional information received, the Director of Construction may modify a prequalification to make it less restrictive by, for example, changing a limited to a general prequalification, changing the restrictions of a limited prequalification, or adding a work classification. The Director may require an applicant to complete and submit a new prequalification application in support of a request for modification of an existing prequalification.(b) The Director of Construction may revoke or restrict a prequalification by, for example, terminating a general or limited prequalification in any particular work classification(s), changing a general prequalification to a limited prequalification, or imposing additional restrictions on a limited prequalification in any particular work classification(s).(c) The Director of Construction may temporarily disqualify a prequalified bidder or subcontractor by suspending the privilege of bidding on Department contracts or becoming an approved subcontractor until the conditions resulting in the temporary disqualification have been remedied, as determined by the Director of Construction; provided, however, that the duration of a temporary disqualification under this Rule shall not exceed one hundred and twenty (120) days without giving the prequalified bidder or subcontractor notice of a proposed continuation of the disqualification and an opportunity to appeal a decision to continue the disqualification, as provided in Paragraphs (3) and (5) of this Rule.(2) Factors to Consider. - In making a decision to modify, revoke or restrict a prequalification or temporarily disqualify a prequalified bidder or subcontractor (hereinafter referred to as the "applicant"), the Director of Construction may consider any of the following facts or information:(a) The Department's performance evaluations of the applicant, if available;(b) New information concerning the financial responsibility or business integrity of the applicant, affiliates of the applicant, and/or partners, owners, officers or authorized representatives of the applicant;(c) The applicant or any affiliate has made false, deceptive or fraudulent statements in its prequalification application;(d) The applicant or any affiliate has failed to complete, defaulted on or had any contract with the Department terminated for cause;(e) The applicant or any affiliate has existing incomplete contracts with the Department on which it is behind schedule to such an extent that it might hinder or prevent prompt completion of any additional contracts with the Department;(f) The applicant or any affiliate has a record of defective workmanship or the use of improper materials on any contract or subcontract with the Department;(g) The applicant or any affiliate has a record of non-compliance with other Department contract requirements, including without limitation the submittal of required documents;(h) The applicant or any affiliate has a record of non-compliance with applicable federal, state or local laws, regulations or ordinances, including without limitation laws, regulations or ordinances relating to workplace safety, environmental protection, equal opportunity employment and contracting, disadvantaged business enterprise program requirements, employee wage and hour requirements, or the prompt payment of subcontractors;(i) The applicant or any of its affiliates owes money to the Department; and/or(j) Any other information the Prequalification Office may have requested, received or examined with respect to the applicant's responsibility and qualifications.(3) Notice of Proposed Revocation or Temporary Disqualification; Pre-Decision Meeting; Compliance Agreements. (i) Before taking action to revoke or restrict a prequalification, temporarily disqualify a prequalified bidder or subcontractor, or continue a temporary disqualification, as provided in Subparagraphs (1)(b) and (1)(c) of this Rule, the Director of Construction shall provide the prequalified bidder or subcontractor with written notice of the proposed action, including a brief statement of the reasons for the proposed action.(ii) The notice shall provide a representative of the bidder or subcontractor with an opportunity to have a pre-decision meeting with the Director of Construction to discuss the proposed action and present information that might influence the Director's decision. If requested, the pre-decision meeting shall be held within fourteen (14) days after receipt of the notice of proposed action, unless the Director of Construction consents to an extension of time. The discussion shall be informal, and the participation of persons other than the Director of Construction and a representative of the bidder or subcontractor shall be at the discretion of the Director of Construction.(iii) At the pre-decision meeting, the bidder or subcontractor may choose to present and discuss a proposed compliance agreement as a remedy in lieu of the revocation or temporary disqualification proposed by the Director of Construction. Acceptance of any proposed compliance agreement shall be subject to the approval of the Commissioner.(4) Notice of Decision. - Notice of any modification, revocation, restriction or temporary disqualification shall be provided in writing in the same manner as notice of a denial or limitation of prequalification status under Rule 1680-5-3-.05, Paragraph (4), above.(5) Appeal. - A prequalified bidder or subcontractor who has been temporarily disqualified, has had its prequalification status revoked or restricted, or has been denied a requested modification of its prequalification status may appeal such decision to the Commissioner by following the appeal procedure established in Rule 1680-5-3-.08 below.(5) Reservations. - Notwithstanding the foregoing or any other provision of this chapter, the Department reserves the right to establish more restrictive special prequalifications for any particular project and/or the right to suspend, debar or otherwise exclude a prequalified bidder, contractor or subcontractor, as provided in the Department's rules governing contractor debarment and suspension, Chapter 1680-5-1, and any such decision shall not be appealable under this chapter.Tenn. Comp. R. & Regs. 1680-05-03-.07
Original rule filed July 18, 2006; effective October 1, 2006.Authority: T.C.A. §§ 54-5-117 and 4-3-2303.