§ 3-321. Debarment.

(a)

Policy. No contract shall be awarded to any bidder or proposer that is:

(1)

Debarred from the award of a city contract;

(2)

Managed, controlled and more than 50 percent owned by a person or entity who served as an officer of an entity debarred for conduct occurring during their tenure.

Any person or entity ineligible for the award of a city contract shall be ineligible to act as a subcontractor on a city contract.

(b)

Grounds for debarment. A contractor or subcontractor shall be debarred from the award of a city contract if:

(1)

The contractor or subcontractor intentionally, recklessly and without good cause, or as the result of a repeated act of negligence, has:

a.

Failed to show good faith efforts, as defined in section 3-441, in attempting to meet the city's MBE/WBE or construction workforce requirements for the contract;

b.

Failed to submit a contractor utilization plan, adhere to an approved contractor utilization plan, or request for waiver within the allotted times if the apparent low bidder;

c.

Failed to comply with the city's requirements relating to equal opportunity in employment;

d.

Failed to pay the rates prescribed in the contract or place employee in proper wage classification, regardless of whether restitution was subsequently made;

e.

Incorporated materials into the work which are not in accordance with the specifications of the contract, performed work not in accordance with the contract, or provided defective work in the judgment of the city;

f.

Performed work on the contract without the insurance required by the contract being in force;

g.

Failed to complete the contract work or do so within the prescribed contractual time limits;

h.

Failed to enter into a contract with the city after having been provided a timely notice of the city's intent to contract;

i.

Performed work on the contract without having obtained the required licenses or permits;

j.

Disposed of waste from the work in a location which has not been approved as provided in the contract;

k.

Failed to obtain all permits and observe all required safety precautions in connection with the handling, storage and use of explosives on the contract;

l.

Concealed work on the contract from the city's inspectors;

m.

Falsified test results concerning work on the contract;

n.

Failed to repair property damaged in the course of doing the work;

o.

Failed to pay any city tax;

p.

Failed to include provisions in subcontracts which are required to be included under the contract terms;

q.

Failed to make payment to any subcontractor or material supplier as set forth in RSMo § 34.057;

r.

Failed to comply with the contract requirements in any other manner which is so serious and compelling as to justify debarment; or

s.

Permitted a subcontractor to do any of the items listed in this subsection, or failing to take reasonable measures to prevent a subcontractor from doing the items listed herein.

(2)

A repeated act of negligence will be deemed to exist where the same or substantially similar offending conduct has occurred three or more times within the immediately preceding three-year period.

(3)

The contractor or subcontractor is currently debarred by an entity with the authority to issue tax increment financing or grant tax abatement or by any other federal, state or local governmental entity upon grounds that would authorize debarment under this section had the offending conduct occurred on a city contract. There shall be a rebuttable presumption that the offending conduct was committed willfully and without good cause.

(4)

The contractor or subcontractor, chief executive officer, or any person who has an ownership interest in the company has pled guilty to or otherwise been found guilty of any of the following, regardless of whether sentence was imposed:

a.

A criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; or

b.

Embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty.

(c)

Procedure. Except as otherwise provided for herein, action to debar a contractor or subcontractor may be initiated by any department director and shall proceed as follows:

(1)

Initiation of proceeding . The proceeding may be initiated by any department director who, after exhausting other reasonable methods of attempting to have the contractor rectify its actions, shall issue a written notice of the proposed debarment to the contractor or subcontractor and to the city manager. The notice shall include a statement of the reasons for the proposed debarment, the date of mailing, and the date, time and place of a hearing on the matter. If the contractor or subcontractor cannot be located for purposes of delivery of the notice, the proceeding shall be held in abeyance until notice can be given.

(2)

Notice. Any notice required by the proceeding and any other notice to the contractor or subcontractor may be sent postage prepaid by certified U.S. mail to the contractor or subcontractor at its last known address or at its registered office, if it is a corporation, or by delivering a copy of the notice to the contractor or subcontractor personally or to an officer, partner, or managing or general agent or to any other agent authorized by appointment or required by law to receive service of process.

(3)

Hearing panel membership. The hearing panel shall consist of three persons appointed by the city manager, one of whom shall be related to the industry of the contractor or subcontractor. The hearing panel shall designate one member as chairperson. The panel shall not include the department director or any member of the department that initiated the proceeding. A person that has served on a debarment hearing panel against a contractor or subcontractor may not serve on a subsequent debarment hearing panel involving the same contractor or subcontractor.

(4)

Conduct of hearing. Unless a delay is requested by the contractor or subcontractor, the hearing shall be held no more than 30 calendar days after notice is sent to the contractor or subcontractor. The contractor or subcontractor shall have full right to have counsel, to produce witnesses and to cross examine all witnesses who may appear against it. All proceedings in such hearings shall be taken down stenographically, or recorded mechanically or electronically, or by a combination thereof, and shall be transcribed whenever required by law. Subpoenas shall be issued by the hearing panel for any witness whose presence is desired at any hearing or proceeding before the hearing panel. Such subpoenas shall be served and return thereon shall be made in the same manner as is provided by law in civil suits in the circuit court of this state. Witnesses may also appear voluntarily at such hearings and testify. Before any witness shall testify in any such hearing or proceeding, he shall swear or affirm to tell the truth.

(5)

Decision. Within 30 calendar days after the hearing, the panel shall issue its decision in writing stating whether the contractor or subcontractor is debarred from contracting with the city or performing work on a city contract and, if so, for what period of time.

(6)

Notice of decision. The contractor or subcontractor shall be given prompt notice of the decision of the hearing panel, and a copy of such decision shall be promptly sent by certified mail or otherwise furnished to the contractor or subcontractor.

(7)

Finality of decision. The decision of the hearing panel shall be final and conclusive unless the contractor or subcontractor, within 30 calendar days after the date of the issuance of the decision, commences a timely action for review in a court of competent jurisdiction in accordance with applicable law.

(d)

Shortening of certain procedural time periods. The time provisions provided in subsections (c)(4) and (c)(5) shall each be reduced to ten calendar days if the action to debar the contractor or subcontractor was initiated pursuant to subsections (b)(1)a—d or, if premised on those subsections, (b)(1)s.

(e)

Period of debarment; tolling. The period of debarment shall be two years for the first offense, five years for the second offense and ten years for any subsequent offense. If a debarment proceeding was initiated under circumstances in which debarment would have been independently proper within the immediately preceding three-year period under at least one of the same grounds as is pending before the hearing panel, the period of debarment shall be determined as if there were a prior offense. The period of debarment shall commence immediately upon issuance of the hearing panel's decision and shall be tolled during any time period in which the debarment is stayed by a court of competent jurisdiction acting in accordance with applicable law.

(f)

Reductions in period of debarment. If the contractor or subcontractor elects to waive and forego any and all appeals of the hearing panel's decision, whether such appeal arises under this section or any other provision of law, the period of debarment shall be reduced by one-half.

(g)

Application to other entities. Any entity with the authority to issue tax increment financing or grant tax abatement shall adopt this debarment policy. Any contractor or subcontractor debarred by the city shall be precluded from being awarded any contract by or through such entity for the duration of the period of debarment.

(h)

Interpretation. This section shall be liberally construed so as to further its purposes, provided however that a debarred contractor or subcontractor shall not be precluded from continuing or completing its performance under any contract awarded prior to issuance of the decision effecting the debarment unless the contract has otherwise been terminated by city or the continued performance by subcontractor disallowed by city as may otherwise be authorized by said contract. The term "contractor" shall include any person or entity which may contract with the city in any capacity whatsoever, including but not limited to, a person or entity supplying goods and services pursuant to a purchase order.

(i)

Provisions severable. The provisions of this section are severable. If any provision or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

(Ord. No. 130041, § 6, 3-21-13; Ord. No. 130273, § 1, 4-11-13)