AN ACT EXTENDING THE TIME PERIOD FOR DISQUALIFICATION OF CERTAIN STATE CONTRACTORS.

AN ACT EXTENDING THE TIME PERIOD FOR DISQUALIFICATION OF CERTAIN STATE CONTRACTORS.

This bill increases, from two to five years, the maximum period of disqualification that the commissioners of the Department of Public Works (DPW) and the Department of Transportation (DOT) may impose on public works contractors under their respective jurisdictions for certain illegal, unethical, irresponsible, or other acts that occur on and after October 1, 2009. By law, the DPW commissioner's authority extends to contractors of all other state agencies, except the Department of Administrative Services and the constituent units of the higher education system.

The bill also increases, from two to five years, the maximum period of disqualification for public works building construction contractors who violate general bid requirements on and after October 1, 2009. It eliminates the requirement for mandatory disqualification for this violation and instead requires the DPW commissioner to impose a period of disqualification after notice and a hearing. This gives the commissioner the authority to disqualify contractors on contracts under and outside of the department's supervision or control (e. g. , contracts under the supervision and control of the Legislative Management Committee or constituent units of higher education).

By law, contractors must submit a general bid on every public works building construction contract. The bid must include the names of, and prices that will be paid to, subcontractors on the project and a statement that the contractor:

1. if selected, will execute a contract with the listed subcontractors within five business days, excluding holidays;

2. made a good faith effort to employ minority business enterprises as subcontractors and material men; and

3. will use the listed contractors as indicated and pay them the amount indicated, unless the awarding authority permits substitutions.

By law, contractors who violate the general bid law are disqualified for up to two years. The bill increases the maximum disqualification period to five years for violations committed on and after October 1, 2009.

It eliminates mandatory disqualification for general bid requirements and instead permits the DPW commissioner to disqualify after a hearing. The commissioner must consult with the appropriate awarding authority and the attorney general and provide the contractor with notice before initiating the proceedings, which must be conducted as a contested case under the Uniform Administrative Procedures Act.

The bill requires the commissioner to issue a written decision within 90 days after the hearing ends, including her reasons therefore and the period of any disqualification. She must send the decision to the contractor by certified mail, return receipt requested. The decision is a final decision appealable to Superior Court.

When determining whether to disqualify a contractor, the commissioner must consider the seriousness of the violation and any mitigating factors. She may reduce the period or extent of disqualification if the contractor asks and can show (1) newly discovered, material evidence; (2) that there has been a bona fide change in ownership or management; or (3) other reasons the commissioner deems appropriate.

The DOT and DPW commissioners may disqualify a contractor from bidding on, applying for, or participating as a subcontractor under state contracts for certain specific causes. These include:

1. conviction of, entry of a guilty or nolo contendere plea to, or admission to a criminal offense incident to obtain or attempt to obtain a public or private contract or subcontract, or in the performance of one;

2. conviction of, entry of a guilty or nolo contendere plea to, or admission to a violation of any state or federal law for (a) embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or honesty that affects responsibility as a state contractor or (b) antitrust, collusion, or conspiracy offenses arising from submission of bids or proposals for any public or private contract or subcontract;

3. willful failure to perform according to terms, a history of performance failure, or unsatisfactory performance; or

4. willful violation of statutory or regulatory requirements applicable to a public contract, agreement, or transaction.

Yea

Nay

(03/25/2009)