Chapter 14
RESPONSIBLE CONTRACTORS—CITY CONTRACTS
Sections:
3-14.020 False Claims; Change Order; Covenant of Good Faith and Fair Dealing.
3-14.030 Declaration of Irresponsibility.
3-14.040 Finding of Noncompliance.
3-14.060 City Attorney Prosecution.
3-14.010 Definitions.
For purposes of this chapter, the following words and phrases shall have the following definitions:
(a) “Contractor” shall mean any person or entity, including consultants and consulting firms, which, pursuant to a written agreement, invoice, or purchase order, provides goods, services, labor or materials to the City.
(b) “Subcontractor” shall mean any person or entity, including consultants and consulting firms, which, pursuant to an agreement, invoice, or purchase order with Contractor or another Subcontractor, participates in the provision of goods, services, labor or materials to the City.
(c) “The act of submitting a false, untrue or misleading claim” shall include, but not be limited to, any of the following acts:
(1) Presenting or causing to be presented to a contractor, or to an officer, representative, or employee of the City a false Claim or request for payment or approval;
(2) Making, using, or causing to be made or used a false record or statement, including, but not limited to, submitting a false payroll record or false characterization of employee classification, in order to have a Claim paid or approved by the City;
(3) Conspiring to defraud the City into honoring or paying a false, untrue, or misleading Claim;
(4) Failing to promptly disclose and correct an inadvertent submission of a false, untrue, or misleading Claim to the City upon subsequently discovering the falsity of the Claim within a twelve (12) month period of time after discovery of the false Claim;
(5) Any other act or omission of the type identified in Subparagraph (b) of Section 3-14.020.
(d) “Claim” shall mean any request or demand for money, compensation or consideration of equitable adjustments, request for a change order, made to any employee, officer, or agent of the City, or to any Contractor, or Subcontractor, in conjunction with goods, services, labor, or materials provided to the City pursuant to a City contract invoice or purchase order.
(e) “Knowingly” shall mean that a Contractor or Subcontractor, with respect to information germane to the contract, invoice, or purchase order:
(1) Has actual knowledge of the information;
(2) Acts in deliberate ignorance of the truth on falsity of the information;
(3) Acts in reckless disregard of the truth or falsity of the information.
Proof of specific intent is not required and reliance on the Claim by the City is also not required to demonstrate knowledge.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)
3-14.020 False Claims; Change Order; Covenant of Good Faith and Fair Dealing.
(a) A covenant of good faith and fair dealing is contained in every City invoice, purchase order, or contract. Contractors and Subcontractors shall at all times deal in good faith with the City and shall submit Claims, only upon a good faith complete disclosure of all relevant facts and an honest evaluation of the matter which is the subject thereof. Failure to comply with the covenant of good faith and fair dealing shall subject the Contractor or Subcontractor to the penalties set forth in this Chapter.
(b) The Act of Submitting a False, Untrue or Misleading Claim, including, but not limited to, falsification of payroll records, misclassification of employees on payroll records, nonpayment of prevailing wages where called for by the contract, request for equitable adjustment, request for contract modification, request for change order, or request of any kind seeking increased compensation, and/or concealment of information relevant to the issues involved in such Claim is sufficient of itself to subject the Contractor or Subcontractor to the penalties identified in this Chapter, regardless of the City’s reliance on, or response to, the submission.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)
3-14.030 Declaration of Irresponsibility.
Where a City Contractor or Subcontractor has committed one of the offenses enumerated in Section 3-14.020, has failed to abide by the terms of the Contractor’s or Subcontractor’s contract, has failed to abide by the applicable prevailing wage laws called for by a contract, or has failed to abide by other applicable laws governing labor standards or working conditions, or has failed to comply with any of the provisions of this Code, or has been deemed an irresponsible contractor by another government agency, said Contractor or Subcontractor may be declared an irresponsible Contractor. Any such declaration of irresponsibility shall also be binding on any firm or entity where the Contractor’s majority owner also owns fifty (50%) percent or more of that firm or entity.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)
3-14.040 Finding of Noncompliance.
If the City department head with responsibility for contract administration has cause to believe that any Contractor or Subcontractor has not complied with this Chapter, the department head shall conduct an investigation. If, upon investigation, the department head determines that such an act or omission has indeed occurred, the department head, after consultation with the City Manager or City Manager’s designee, shall prepare a written Finding of Noncompliance which shall include a declaration of irresponsibility. The written Finding of Noncompliance shall explain the basis for such findings and be served on such Contractor or Subcontractor to the City Council in accordance with Section 1-3.10 of this Code. The Finding of Noncompliance may be appealed as provided in Chapter 4 of Title 1 of this Code. If the City Council concurs with the Finding of Noncompliance, it shall affirm that finding along with the declaration of irresponsibility contained therein. The decision of the City Council shall be final.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)
3-14.050 Disqualification.
Any Contractor or Subcontractor declared to be irresponsible pursuant to the provisions of the chapter shall be disqualified from eligibility for providing goods, labor, materials, or services to the City for a period of five (5) years after the date of such Statement of Noncompliance, with a right of review upon application for reconsideration by the City Council two (2) years after the date of such Statement of Noncompliance upon a showing of corrective action indicating violations are not likely to recur.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)
3-14.060 City Attorney Prosecution.
If the City Attorney has reasonable cause to believe that any Contractor or Subcontractor has knowingly committed any of the acts or omissions set forth in Subparagraph (b) of Section 3-14.020, the City Attorney may prosecute said Contractor or Subcontractor for violating the provisions of this Chapter. Any such violation shall constitute an infraction; however, where the contract in question causes a loss to the City in excess of Five Thousand and no/100ths ($5,000.00) Dollars, the City Attorney shall have the discretion to prosecute said violation as a misdemeanor. All such violations shall be punishable in accordance with Chapter 2 of Title 1 of this Code.
(§ 1, Ord. 1050-98 C-M, eff. April 9, 1998)