§295.2. Authority to debar or to suspend

A. Applicability. This Section applies to a debarment for cause from consideration for awarding of contracts and participating in performance of contracts as a contractor, subcontractor, consultant, or subconsultant or a suspension from consideration during an investigation where there is probable cause for debarment.

B. Authority. After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the debarment committee shall have authority to suspend or debar and may suspend or debar a person for cause from consideration for awarding of a contract or participating in any manner in department projects pursuant to rules and regulations as promulgated by the department, provided that doing so is in the best interest of the department. The causes for debarment are set forth in Subsection C of this Section. The period of debarment shall not exceed three years from the finality of the debarment. The suspension shall not exceed six months. The authority to debar or suspend shall be exercised only after notice and hearing in accordance with the provisions of Subsection D of this Section.

C. Causes for debarment. The debarment committee may debar a contractor, subcontractor, consultant, or subconsultant for any of the following causes:

(1) For final conviction of or final unappealable civil judgment for:

(a) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract.

(b) Violation of federal or state antitrust statutes relating to the submission of offers.

(c) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property.

(d) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a government contractor or subcontractor.

(2) Upon a preponderance of the evidence for any of the following purposes:

(a) Violation of the terms of a government contract or subcontract so serious as to justify debarment, including but not limited to:

(i) Willful failure to perform in accordance with the terms of one or more contracts.

(ii) A history of failure to perform, or of unsatisfactory performance of one or more contracts.

(iii) Willful failure to perform, or a history of unsatisfactory performance of any contract obligations regarding disadvantaged business enterprise participation in department contracts under the state or federal programs concerning disadvantaged business enterprises.

(iv) Use of substandard materials or failure to furnish or install materials in accordance with the contract in a department project, even if the discovery of the defect is subsequent to acceptance of the project and expiration of the warranty thereof, if such defect amounts to intentionally deficient or grossly negligent performance of the contract under which the defect was a consequence.

(b) Violation of the Drug-Free Workplace Act of 1988 (Public Law 100-690) as indicated by:

(i) The offerer's submission of a false certification.

(ii) The contractor's or subcontractor's or consultant's or subconsultant's failure to comply with its certification.

(iii) Such number of a contractor's or subcontractor's or consultant's or subconsultant's employees having been convicted of violations of criminal drug statutes occurring in the workplace indicating that the contractor, subcontractor, consultant, or subconsultant has failed to make a good faith effort to provide a drug-free workplace.

(c) Any other cause of so serious or compelling a nature that it affects the present responsibility of a government contractor, subcontractor, consultant, or subconsultant including debarment by another governmental entity for any cause listed in this Subsection or the regulations.

D. Hearing and decision.

(1)(a) Initiation of hearing. A debarment or suspension hearing shall be initiated by issuance of written notice to the contractor by the debarment committee.

(b) Notice of hearing. Written notice to the contractor shall include all of the following:

(i) A statement of the time, place, and nature of the hearing.

(ii) A statement of the legal authority and jurisdiction for the hearing.

(iii) A reference to the particular cause for debarment or suspension as set forth in Subsection C of this Section.

(iv) A short, plain, and concise statement of the cause for debarment or suspension.

(v) A statement that failure to participate in the hearing shall serve to waive any and all further administrative remedies.

(c) Hearing.

(i) The debarment committee shall afford the contractor an opportunity to respond and present evidence on issues of fact relevant to the proposed suspension or debarment.

(ii) The debarment committee may, in its discretion, request written statements of the department's position from the department. A copy of such written statement submitted by the department shall be provided to the contractor.

(iii) Informal disposition may be made of any proposed suspension or debarment by stipulation, agreed settlement, consent order, or default.

(d) Record.

The hearing record shall contain:

(i) A copy of the written notice of hearing.

(ii) A return of the service of notice to the contractor of the hearing.

(iii) A transcript of the proceedings before the debarment committee.

(iv) Any document or exhibit presented for consideration to the debarment committee by the contractor or the department.

(v) Any decision, opinion, or reports rendered by the debarment committee.

(e) The debarment committee shall have all proceedings before it recorded electronically at the cost of the department.

(f) Findings of fact made by the debarment committee shall be based exclusively on the hearing evidence and on matters in the notice of hearing.

(2) The debarment committee shall issue a written decision to debar or suspend. The decision shall provide all of the following:

(a) State the reasons for the action taken.

(b) Inform the debarred or suspended contractor, subcontractor, consultant, or subconsultant involved of its rights to administrative and judicial review as provided in this Part.

E. Copy of decision. A copy of both the debarment or suspension hearing notice and the decision under Subsection D of this Section shall be served by certified mail, return receipt requested, or registered mail, mailed to the contractor at the address on file with the contractor's licensing authority. A decision may also be furnished immediately to the debarred or suspended person and any other intervening party.

F. Finality of decision. A decision under Subsection D of this Section shall be final and conclusive unless either of the following occurs:

(1) The decision is fraudulent.

(2) The debarred or suspended contractor, subcontractor, consultant, or subconsultant has timely appealed administratively to the secretary in accordance with R.S. 48:295.3.

G. A contractor disqualified as required by the provisions of this Section may apply for requalification after three years from the date of disqualification. Rules and regulations for requalification of contractors shall be promulgated by the department in accordance with the Administrative Procedure Act.

Acts 1993, No. 879, §1, eff. June 23, 1993; Acts 1999, No. 1235, §1.