Section 27-1-5-101 - AUTHORITY TO DEBAR OR SUSPEND(a)Authority. With reasonable notice to the person involved and reasonable opportunity for that person to be heard, the PSCRB, after consultation with the using agency and the Special Assistant Attorney General assigned to MSPB, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall be for a period of two (2) years. The PSCRB, after consultation with the using agency (the agency that has used the services supplied by the contractor) and the Special Assistant Attorney General, shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three (3) months. (b)Agency Requests for Debarment or Suspension. Using agencies must submit a Vendor Quality Report to the PSCRB to request the debarment or suspension of a contractor or potential contractor. (c)Causes for Debarment or Suspension. The causes for debarment or suspension include the following: (1) conviction for commission of 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; (2) conviction under state or federal statutes of 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 which currently, seriously, and directly affects responsibility as a Mississippi contractor; (3) conviction under state or federal antitrust statutes arising out of the submission of bids or proposals; (4) violation of contract provisions, as set forth below, of a character which is regarded by the PSCRB to be so serious as to justify debarment action; including, i. deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract or, ii. a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; (5) any other cause the PSCRB determines to be so serious and compelling as to affect responsibility as a Mississippi contractor, including debarment by another governmental entity for any cause listed herein; and, (6) for violation of the ethical standards set forth in Chapter VI (Ethics in Public Contracting). (d)Decision. The PSCRB shall issue a written decision to debar or suspend. The decision shall: (1) state the reason(s) for the action(s) taken; and, (2) inform the debarred or suspended person involved of their right to administrative review as provided in this chapter. (e)Notice of Decision. A copy of the decision under subsection (c) of this section shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening. (f)Finality of Decision. A decision shall be final and conclusive, unless fraudulent, or the debarred or suspended person commences an action in court. 5-101.01 Application This regulatory provision applies to all debarments or suspensions of persons from consideration for award of contracts imposed by the PSCRB.
5-101.02 Suspension5-101.02.1 Initiation After consultation with the affected using agency, the Special Assistant Attorney General, and, where practicable, the contractor or prospective contractor who is to be suspended, the PSCRB shall make a written determination as to whether probable cause exists for debarment as set forth in Section 5-101 (Authority to Debar or Suspend). If probable cause is found, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that:
(a) the suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision, but not for a period in excess of three (3) months; (b) bids or proposals will not be solicited from the suspended person, and if they are received they will not be considered during the period of suspension; and, (c) if a hearing has not been held, the suspended person may request a hearing in accordance with Section 5-101.04 (Request for Hearing). 5-101.02.2 Effect of Decision A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the PSCRB but otherwise shall only be ended when the suspension has been in effect for three (3) months or a debarment decision takes effect.
5-101.03 Initiation of Debarment Action Written notice of the proposed debarment action shall be sent by certified mail, return receipt requested, to the contractor or prospective contractor. This notice shall:
(a) state that debarment is being considered; (b) set forth the reasons for the action; (c) state that if the contractor or prospective contractor so requests, a hearing will be held, provided such request is received by the PSCRB within ten (10) days after the contractor or prospective contractor receives notice of the proposed action; and, (d) state that the contractor or prospective contractor may be represented by counsel. Such notice shall also be sent to the MSPB Special Assistant Attorney General and the affected using agency. 5-101.04 Request for Hearing A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the PSCRB within ten (10) days of receipt of notice of the proposed action under Section 5-101.03 (Initiation of Debarment Action). If no request is received within the ten-day period, a final determination may be made as set forth in Section 5-101.08 (Determination of Hearing Officer; Final Decision) after consulting with the MSPB Special Assistant Attorney General and the using agency.
5-101.05 Notice of Hearing If a hearing is requested, the PSCRB may appoint a hearing officer to conduct the hearing and recommend a final decision. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail, return receipt requested, and shall state the nature and purpose of the proceedings. Copies shall be sent to the MSPB Special Assistant Attorney General, the using agency, and the contractor or prospective contractor.
5-101.06 Authority of Hearing Officer The hearing officer, in the conduct of the hearing, may:
(a) hold informal conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer's own motion; (b) require parties to state their positions with respect to the various issues in the proceeding; (c) require parties to produce for examination those relevant witnesses and documents under their control; (d) rule on motions, and other procedural items on matters pending before such officer; (e) regulate the course of the hearing and conduct of participants therein; (f) receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious; (g) fix time limits for submission of written documents in matters before such officer; (h) impose appropriate sanctions against any party or person failing to obey an order under those procedures, which sanctions may include: (1) refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (2) excluding all testimony of an unresponsive or evasive witness; and, (3) expelling any party or person from further participation in the hearing; (i) take official notice of any material fact not appearing in evidence in the record, if such fact is among the traditional matters of judicial notice; and, (j) take such other action which is in the best interest of the State, consistent with due process and in the interest of justice. 5-101.07 Hearing Procedures(a) Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the hearing officer. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The hearing officer may require evidence in addition to that offered by the parties. (b) A hearing may be recorded but need not be transcribed except at the request and expense of the contractor or prospective contractor. A record of those present, identification of any written evidence presented, and copies of all written statements and a summary of the hearing shall be sufficient record. (c) Opening statements may be made unless a party waives this right. (d) All witnesses may be cross-examined. 5-101.08 Determination of Hearing Officer - Final Decision The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the PSCRB and the head of a purchasing agency. Copies shall also be sent to the contractor or prospective contractor, the MSPB Special Assistant Attorney General, and the affected using agency. The contractor or prospective contractor shall have ten (10) days to file comments upon the hearing officer's determination. The PSCRB may request oral argument. After consultation with the using agency and the MSPB Special Assistant Attorney General, the PSCRB shall issue a final decision. Both the hearing officer's determination and the final decision shall recite the evidence relied upon. When debarment is recommended or ordered, the length of the debarment, the reasons for such action, and to what extent affiliates are affected shall be set forth. In addition, the final determination shall inform the debarred person of his rights to judicial review under this chapter of these regulations.
5-101.09 Effect of Debarment Decision A debarment decision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until the debarment period specified in the decision expires.
5-101.10 Maintenance of List of Debarred and Suspended Persons The PSCRB shall maintain and update a list of debarred and suspended persons. All agencies of the State shall be supplied with this list. The PSCRB shall send updates of this list to all agencies of the State as necessary. Such list shall be available to the public upon request.
27 Miss. Code. R. 1-5-101