Chapter 2.74
DISQUALIFICATION OF CONTRACTORS
Sections:
2.74.030 Disqualification: effect.
2.74.050 Grounds for disqualification.
2.74.060 Existence of grounds.
2.74.070 Scope of disqualification.
2.74.080 Period of disqualification.
2.74.090 Disqualification procedures.
2.74.100 Appeal to the City Manager.
2.74.120 Requirement to submit information.
2.74.130 Doing business with a disqualified person.
2.74.150 List of disqualified persons.
2.74.010 Application.
This chapter shall apply to all contracts awarded by or entered into by the City of Vacaville, including, without limitation, purchases, contracts or leases for supplies, materials or equipment; contracts for professional and nonprofessional services; contracts for public works or construction projects; and contracts with insurance or surety companies issuing insurance policies or bonds for city public works or construction projects, city-sponsored events or privately-sponsored events at city facilities. The provisions of this chapter are intended to determine in advance of submittal of bids or proposals on city contracts whether a person has the necessary qualifications, fitness, capacity, integrity and trustworthiness to perform city contracts. Nothing in this chapter shall limit the city’s ability to determine prior to or at the time of contract award whether a bid or proposal is responsive to the city’s solicitation for bids or proposals and whether the person submitting the bid or proposal has the requisite qualifications, fitness, capacity, trustworthiness and integrity needed to perform the contract.
(Ord. 1616, Added, 04/22/1999)
2.74.020 Definitions.
For the purpose of this chapter, the following definitions shall apply:
A. Affiliates: Persons are “affiliates” if:
1. One person directly or indirectly controls or has the power to control or influence the decision making of the other;
2. A third person controls or has the power to control or influence the decision making of both; or
3. The person(s) has the same or overlapping management, ownership or one or more of the same principals as the other person.
Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment or common use of employees.
B. City Manager: The phrase “City Manager” means the City Manager of the City of Vacaville or his or her designee.
C. Contract: The term “contract” shall include, but not be limited to, city contracts, leases, licenses, agreements, purchase orders or lease-purchase agreements for the acquisition of:
1. Supplies, materials or equipment;
2. Professional or nonprofessional services;
3. Public works or construction projects;
4. Insurance policies or bonds provided in connection with a public works or construction project, a city-sponsored activity or event or a privately-sponsored activity or event at a city-owned, operated or controlled facility; and
5. Other goods and services.
D. Disqualification: The term “disqualification” means the action taken pursuant to this chapter or by another local, state or federal agency, to disqualify, suspend, prohibit, debar or render a person ineligible to bid upon, solicit, be awarded or perform public contracts or any portion thereof.
E. Hearing Officer: The phrase “Hearing Officer” shall mean the person appointed by the City Manager to administer the disqualification procedures set forth in Section 2.74.090 of this chapter.
F. Person: The term “person” means any person, individual, group, association, firm, corporation, partnership, joint venture company, sole proprietorship or other entity.
G. Predecessor-in-Interest: The phrase “predecessor-in-interest” means a person whose rights, property or assets and/or debts or obligations are acquired or assumed by another person.
H. Principal: The term “principal” means any officer, director, owner, partner, joint venturer, shareholder, responsible managing officer, responsible managing employee or person with primary management or supervisory responsibilities, including any person who has a substantial influence or substantive control over performance of a contract.
I. Public Contract: The phrase “public contract” means any contract, lease, license, agreement, purchase order or lease-purchase agreement that is awarded or entered into by any federal, state or local agency, including the city, or any insurance policy or bond provided in connection with a government public works or construction project, government-sponsored activity or event or privately-sponsored activity or event at a government-owned, operated or controlled facility.
J. Successor-in-Interest: The term “successor-in-interest” means a person who acquires the rights, property or assets and/or assumes the debts or obligations of another person.
(Ord. 1616, Added, 04/22/1999)
2.74.030 Disqualification: effect.
Notwithstanding any other provision of this code:
A. The Hearing Officer may disqualify or prohibit any person, or any principal, affiliate or successor-in-interest thereof, from bidding upon, soliciting, or being awarded any contract with the city or from being a subcontractor, supplier, insurer or surety at any tier upon such contract, in accordance with the procedures established by this chapter.
B. During the time period that a disqualification pursuant to this chapter is in effect for any person, the city shall not accept bids or proposals from, contract with or allow performance of all or any portion of a city contract including, but not limited to, subcontracts, supply contracts, insurance or surety agreements, by any person who has been disqualified in accordance with this chapter.
C. During the time period that a disqualification of any person by a local, state or federal agency is in effect, the city shall not accept bids, solicitations or proposals from, contract with or allow performance of subcontracts, material or supply contracts, insurance or surety agreements, by such person, whether or not such person has been disqualified by the city pursuant to this chapter.
(Ord. 1616, Added, 04/22/1999)
2.74.040 Notice.
Whenever notice is required to be given under this chapter, it shall be deemed effective on the day such notice is either personally delivered or deposited in the United States Mail, first class postage prepaid and addressed to the last known address of the person to be notified.
(Ord. 1616, Added, 04/22/1999)
2.74.050 Grounds for disqualification.
Disqualification may be imposed on a person by the Hearing Officer in accordance with the procedures established by this chapter on one or more of the following grounds:
A. Commission by such person of any act of:
1. Fraud, bribery, collusion or conspiracy;
2. Bid rigging, price fixing or any other act in violation of any local, state or federal law in connection with the bidding upon, solicitation, award or performance of any public contract; or
3. Embezzlement, theft, forgery, falsification or fabrication of records, moral turpitude or perjury.
B. Commission of any act indicating a lack of integrity or honesty.
C. Submission of a bid, proposal, insurance policy, bond, guarantee or other document that is known, or should be known, by such person to be false, misleading or nonmeritorious or to contain false information.
D. Submission of any false, misleading or nonmeritorious claim, demand or lawsuit against any private party or public agency, including the city.
E. Pending litigation between the person and the city, which could impact the ability of the parties to work cooperatively with each other.
F. Breach of the terms of a public contract by a willful or material failure to perform in accordance with the terms thereof.
G. Violation of a local, state or federal law or regulation applicable to a public contract.
H. Current or past suspension or disqualification from award or performance of a public contract by any local, state or federal agency.
I. Knowingly doing business with a disqualified third person in performance of any public contract awarded after disqualification of said third person.
J. Substandard performance on any public contract, including, without limitation:
1. A material breach thereof;
2. A failure to complete work required thereunder in a timely manner or within the contract price when such failure is attributable to the negligent or wrongful actions or inactions of such person or such person’s subcontractors or suppliers;
3. Substandard quality of work; or
4. Any negligent or wrongful failure to cooperate with the contracting agency during performance of the public contract.
K. One or more violation during the performance of any public contract of any labor or safety statutes, regulations or standards including, without limitation, applicable local, state or federal statutes, regulations or standards governing prevailing wage, occupational safety and health, nondiscrimination requirements or other local, state or federal laws.
L. Failure to have or maintain in good standing all necessary licenses, permits or other approvals required to transact business within the State of California.
M. One or more violation of any law or regulation governing the handling, transfer, storage or disposal of hazardous materials or hazardous wastes.
N. One or more violation of any law or regulation governing the handling, transfer, storage or disposal of solid waste generated during the performance of such public contract.
O. A violation of any law or regulation governing conflicts of interest.
P. Evidence that the person lacks financial responsibility, such as unpaid debts, unfulfilled insurance or bond obligations or other evidence of financial instability or irresponsibility.
Q. Any other ground that the Hearing Officer determines that would impair the ability of the person to perform a public contract or any part thereof.
(Ord. 1616, Added, 04/22/1999)
2.74.060 Existence of grounds.
A. Existence of grounds for disqualification as described in Section 2.74.050 of this chapter may be determined to exist by the Hearing Officer by a preponderance of the evidence if, not more than ten years prior to the date that a written notice of proposed disqualification is provided to such person pursuant to Section 2.74.090 of this chapter:
1. Such person has been convicted of a criminal charge for any act or omission described in Section 2.74.050 of this chapter, whether entered by a verdict or a plea including a plea of no contest;
2. A civil judgment has been entered against such person for any act or omission described in Section 2.74.050 of this chapter;
3. A penalty or sanction including, without limitation, monetary penalties, imprisonment and other sanctions, such as disqualification, has been imposed on such person by a federal, state or local agency for any act or omission described in Section 2.74.050 of this chapter; or
4. Such person has committed one or more acts or omissions described in Section 2.74.050 of this chapter, based on a preponderance of evidence in the record of facts and information presented to the Hearing Officer.
B. An act or omission described in Section 2.74.050 of this chapter may be imputed to a person who is the subject of a proposed disqualification when such act or omission is committed for or on behalf of such person, and such person had actual or constructive knowledge of such act or omission.
C. In determining whether to disqualify a person and the duration of such disqualification, the Hearing Officer may consider, in addition to any other relevant factors, one or more of the following:
1. The degree to which the person cooperated with local, state or federal authorities in any criminal proceeding forming the basis for disqualification;
2. The degree to which the person provided restitution for any damages or injury occasioned by the person’s acts or omissions;
3. Whether the person had in place adequate and effective standards of conduct and internal control systems at the time of such acts or omissions;
4. Whether the person provided timely notice of such acts or omissions to the appropriate government agency or agencies;
5. Whether the person fully investigated the circumstances surrounding such acts or omissions and promptly provided the city with the result of the investigation;
6. Whether the person took appropriate remedial or disciplinary action against the individuals responsible for such acts or omissions;
7. Whether the person implemented or agreed to implement remedial measures to prevent a recurrence of such acts or omissions including, without limitation, new or revised internal control procedures and other measures recommended, identified or prescribed by any government agency; and
8. Whether the person had adequate time to eliminate or mitigate the circumstances or factors leading to or causing such acts or omissions.
(Ord. 1616, Added, 04/22/1999)
2.74.070 Scope of disqualification.
A. Disqualification of a person under this chapter constitutes disqualification of that person from submitting bids or proposals to the city for the purpose of entering into or in any manner participating in any city contract, or any part thereof, and shall apply to all individuals, divisions, subsidiaries, affiliates and parent corporations of that person unless the decision to qualify is limited by its terms to one or more specifically identified individuals, divisions, subsidiaries, affiliates, parents or other organizational elements.
B. The disqualification of a person shall apply to any existing affiliate of the person where the affiliate is specifically named and given notice of the proposed disqualification and an opportunity to respond. The disqualification shall also apply to any successor-in-interest or any affiliate of the disqualified person formed during or after the disqualification proceedings.
C. Disqualification of any person shall apply to any business entity, whether or not such business entity was in existence at the time of such disqualification, for which the disqualified person acts as a principal during the disqualification period.
(Ord. 1616, Added, 04/22/1999)
2.74.080 Period of disqualification.
The disqualification period shall be commensurate with the severity of the person’s acts of omissions, as determined by the Hearing Officer.
(Ord. 1616, Added, 04/22/1999)
2.74.090 Disqualification procedures.
A. Prior to disqualifying any person under this chapter, the Hearing Officer shall mail or deliver by personal service a written notice of the proposed disqualification to the person proposed to be disqualified, hereinafter referred to as “respondent.” Such notice shall contain the following:
1. Notice that a disqualification is being considered;
2. The grounds for the proposed disqualification, in terms sufficient to put the respondent on notice of the conduct or action(s) upon which it is based;
3. The intended period of the disqualification;
4. A summary of the disqualification procedures set forth is this chapter; and
5. The name and address of the Hearing Officer to which the respondent may submit a written request for a hearing on the proposed disqualification.
B. Within fifteen days after personal service or mailing of the notice of the proposed disqualification, the respondent or the respondent’s representative may submit a written request for a hearing on the proposed disqualification. Such written request shall specify the name and address of the person to which all subsequent notices and communications should be mailed. Failure of the respondent or respondent’s representative to submit a written request for a hearing within the time provided by this subsection, or failure of respondent or respondent’s representative to appear at the requested hearing, shall be deemed to be a waiver by respondent of respondent’s right to request a hearing on the proposed disqualification and the Hearing Officer’s decision shall be final.
C. If the respondent requests a hearing in accordance with subsection B of this section, the Hearing Officer shall schedule a hearing at which the respondent or the respondent’s representative shall have an opportunity to provide relevant information and argument, including the presentation and questioning of witnesses, to the Hearing Officer. The Hearing Officer shall provide the respondent with written notice of the time, date, and location of such hearing, which shall be held no sooner than five (5) days from the date of such notice.
D. The formal rules of evidence shall not apply during the hearing. The Hearing Officer may admit into evidence all relevant evidence, including the affidavits or declarations of witnesses; limit the scope of discovery; shorten the time to produce records or witnesses; exclude witnesses from the hearing when not testifying; exclude disorderly or disruptive persons from the hearing; and make other orders necessary to ensure the fair and orderly conduct of the hearing. The hearing shall be open to the public.
E. The proceedings at the hearing may be tape-recorded if ordered by the Hearing Officer or requested by the respondent. A stenographer shall also transcribe the proceedings if ordered by the Hearing Officer or requested by the respondent, with the costs thereof to be borne by the person making the order or request. A copy of the tape recording or transcript of the proceedings shall be made available to the respondent upon request and upon payment of the cost of preparation thereof.
F. Following the hearing, the Hearing Officer shall render a decision on the proposed disqualification. The decision shall be in writing and shall specify the reasons therefor. If the Hearing Officer upholds the disqualification, the notice of decision shall specify the length of the disqualification period and notify the respondent of his or her right to appeal the decision pursuant to subsection G, below.
G. The respondent shall have ten days from the date of the Hearing Officer’s decision to appeal the decision to the City Manager. The appeal shall be in writing and shall be received by the City Manager by the close of business not later than the tenth day following the date of the Hearing Officer’s decision except that, if such date falls on a Saturday, Sunday or city holiday, the appeal period shall be extended to the close of business on the next regular business day.
(Ord. 1616, Added, 04/22/1999)
2.74.100 Appeal to the City Manager.
A. Upon the timely receipt of an appeal, the Hearing Officer’s decision shall be abated and the City Manager shall schedule a time at which the respondent or the respondent’s representative shall meet with the City Manager to explain why the Hearing Officer’s decision should be set aside or modified.
B. Evidence or testimony not previously presented to the Hearing Officer shall not be permitted at the meeting unless the City Manager determines, in his or her sole discretion, that the interest of justice requires the consideration of such new evidence or testimony.
C. If ordered by the City Manager, the proceedings may be tape-recorded or transcribed in the manner described in subsection 2.74.090.E, above.
D. At the conclusion of the meeting, the City Manager shall render a decision to uphold, modify, or set aside the Hearing Officer’s decision and shall provide written notice of the decision to the respondent or the respondent’s representative. If the City Manager determines to uphold the Hearing Officer’s decision to disqualify the respondent, the disqualification period shall commence from the date of the City Manager’s decision.
E. The City Manager’s decision shall be final, except as provided in Section 2.74.110 of this chapter. Any appeal of the City Manager’s decision shall be made to the Solano County Court within ten days from the date of the City Manager’s decision.
(Ord. 1616, Added, 04/22/1999)
2.74.110 Review of decision.
A. The City Manager or Hearing Officer’s decision to disqualify a person as provided herein may be modified or vacated by the City Manager or Hearing Officer, as the case may be, if, in his or her sole judgment, good cause exists for such modification or vacation. Good cause for review may be based on one or more of the following reasons:
1. Newly-discovered, material evidence not previously available to the parties.
2. Final, judicial reversal of a conviction or civil judgment upon which the disqualification was based.
3. A bona fide change in ownership or management of the respondent’s business.
4. Elimination of the grounds upon which the disqualification was based.
B. The respondent shall have no right of review by the City Manager or Hearing Officer. Such review shall be at the City Manager or Hearing Officer’s sole discretion.
C. A request for review shall be submitted by the respondent or the respondent’s representative in writing and shall be accompanied by competence evidence in support thereof. Upon receipt of the request, the City Manager or Hearing Officer, as the case may be, shall respond within a reasonable period of time as to whether the decision will be reviewed. The City Manager or Hearing Officer’s denial of such request shall be non-appealable and not subject to judicial review.
D. If the City Manager or Hearing Officer agrees to review the decision, he or she shall render a written decision within a reasonable time thereafter. The decision shall be final and delivered to the respondent or respondent’s representative.
(Ord. 1616, Added, 04/22/1999)
2.74.120 Requirement to submit information.
The city may require any person submitting a bid or proposal on a city contract to submit the following as part of such bid or proposal:
A. A statement under penalty of perjury, that neither such person, including any principal, affiliate or predecessor-in-interest of such person, nor any subcontractor, supplier or surety engaged or to be engaged by the person:
1. Is currently disqualified or has been disqualified at any time during the preceding ten years, from submitting a bid or proposal on a contract by any federal, state or local agency.
2. Has, at any time during the preceding ten years, been convicted of any offense, been subject to a civil judgment or been subject to a penalty or sanction by any federal, state or local agency for any act or omission described in Section 2.74.050 of this chapter.
B. Any other information or documentation deemed necessary to determine the person’s eligibility to submit a bid or proposal on a city contract.
(Ord. 1616, Added, 04/22/1999)
2.74.130 Doing business with a disqualified person.
In performance of any city contract, no person having actual or constructive knowledge shall utilize the services of any person who is currently disqualified pursuant to this chapter. No person having actual or constructive knowledge shall use or list, in any bid or proposal for a city contract, any subcontractor, supplier, insurer or surety who is currently disqualified pursuant to this chapter. Violation of this section may result in rejection of the bid or proposal, nonpayment by the city for work performed by such person, annulment of award or termination of an award of contract, issuance of a stop work order, disqualification from submitting future bids or proposals on city contracts, or any other remedy provided by law.
A person who uses or lists a disqualified subcontractor, supplier, insurer or surety without having actual or constructive knowledge of such disqualification shall be allowed to substitute the disqualified subcontractor, supplier, insurer or surety in accordance with State law or, if not applicable, the provisions of the contract governing contract changes.
(Ord. 1616, Added, 04/22/1999)
2.74.140 Existing contracts.
A. The city shall not renew or extend the term of any contract(s) with any person who is disqualified in accordance with this chapter, or who utilizes the services of any supplier, subcontractor, insurer or surety who is disqualified in accordance with this chapter, unless the City Manager determines that such renewal or extensions is in the best interest of the city.
B. Notwithstanding the disqualification of any person, the city may, at its sole option, elect to continue a contract in existence at the time the person is disqualified, unless the City Manager determines that termination of such contract is in the best interest of the city.
(Ord. 1616, Added, 04/22/1999)
2.74.150 List of disqualified persons.
A. The City Manager shall maintain a list of all persons who are currently disqualified by the city pursuant to this chapter and the effective dates of such disqualification. Such list shall not include a person disqualified by another local agency or the state or federal government unless the person has been disqualified by the city under this chapter. Such list shall be filed with the City Clerk, who shall make the list available for public inspection and copying during regular business hours and in accordance with the California Public Records Act.
B. Such list shall be deemed to be constructive notice as to the persons who have been disqualified from submitting bids or proposals on city contracts or who are ineligible to participate in such contracts.
(Ord. 1616, Added, 04/22/1999)