Section 409-1-004 - DISQUALIFICATION OF BIDDERS AND DEBARMENT POLICY AND PROCEDURES004.01DISQUALIFICATIONAny one or more of the following causes shall be considered as sufficient for the disqualification of a bidder and the rejection of his/her bid or bids:
004.01A More than one bid on any one project from an individual, a firm or partnership, a corporation, or an association under the same or different names. Reasonable grounds for believing that any bidder has interest in more than one bid for the work contemplated will cause the rejection of all bids in which such bidder is interested.004.01BEVIDENCE OF COLLUSION AMONG BIDDERS Any or all bids will be rejected If there is reason for believing that collusion exists among the bidders or if the bidder has been found unacceptable to bid due to collusion prior to award of the contract. Following conclusive evidence of collusion among bidders, participating bidders in such collusion will receive no recognition as bidders for any future work of the Department until such participants are reinstated as qualified bidders.004.01C Bids in which the prices are obviously unbalanced.004.01DBIDS WHICH ARE MATERIALLY UNBALANCED A bid is unbalanced if lump sum prices or unit bid prices do not reflect reasonable actual costs and there is a reasonable doubt that the lowest ultimate cost under the contract will be achieved.004.01E Bids which are accompanied by bid bonds on forms that are not authorized by the Department or by bid bond forms which are incorrectly completed or are incomplete.004.01F Bids in which the bid signature page is incorrectly completed or is incomplete.004.02DEBARMENTMore than one bid on any one project from an individual, a firm or partnership, a corporation, or an association under the same or different names. Reasonable grounds for believing that any bidder has interest in more than one bid for the work contemplated will cause the rejection of all bids in which such bidder is interested.
004.02A The Director may, in his/her sole discretion, debar an individual, a bidder, or its affiliates from bidding, subcontracting, or supplying materials on Department contracts for any illegal activity involving bidding evidenced by any of the following: 004.02A1 An indictment or conviction of a bidding crime; any plea of guilty or nolo contendere to a charge of a bidding crime; any public admission of a bidding crime; any presentation of an unindicted co-conspirator; or any testimony protected by a grant of immunity of any bidder in any jurisdiction indicating involvement in a bidding crime.004.02A2 Conviction of any offense indicating a lack of moral or ethical integrity as may reasonably be perceived to relate to or reflect upon the business practices of the bidders.004.02A3 Debarment by any other State or Federal agency for substantially any of the reasons listed above.004.02A4 Any other activities of an individual, bidder, or its affiliates of a serious or compelling nature that are reasonably perceived to relate to their work as a Contractor.004.02A5 Making materially false statements on a bid.004.02B An individual or a bidder shall be given a debarment hearing if either so requests before or after debarment. The determination as to whether the debarment hearing will be held before or after debarment shall be at the sole discretion of the Director. 004.02B1 The written request for a debarment hearing must be received by the Director no later than ten days after the receipt of the written notice from the Director. Unless otherwise mutually agreed in writing, the debarment hearing shall be held no later than fourteen days after receipt of the individual's or bidder's request for a debarment hearing.004.02B2DEBARMENT AFTER HEARING In those situations where the Director decides to hold a debarment hearing prior to deciding whether debarment is proper, he/she shall send written notice to the affected individual, bidder, or their agents by certified or registered mail stating: 004.02B2a That debarment is being considered.004.02B2b The general reasons that suggest the debarment.004.02B2c That the bidder will be afforded an opportunity for a debarment hearing if requested.004.02B3DEBARMENT BEFORE HEARING In those situations where the Director determines that debarment is appropriate prior to a debarment hearing, he/she shall send written notice to the affected individual, bidder, or their agents by certified or registered mail stating:004.02B3a That the bidder or individual has been debarred.004.02B3b The general reasons for the debarment.004.02B3c That the bidder or individual shall be accorded the opportunity for a debarment hearing if they so request in writing within ten days of the receipt of the written notice of debarment.004.02B4 If the bidder or individual notifies the Director that he/she desires a hearing, the debarment hearing will be held no later than fourteen days after receipt of the individuals or bidder's request unless mutually agreed otherwise in writing. The Director shall determine in writing whether the individual or bidder will be reinstated.004.02C The Director shall appoint a Hearing Examiner to conduct all debarment hearings. The Hearing Examiner shall make a recommendation to the Director, and such recommendation shall include findings of fact and conclusions of law.004.02D Except as modified by the Rules and Regulations of the Department, debarment hearings before the Hearing Examiner shall conform to the Code of Civil Procedure applicable to the District Courts of the State. Practice before the Hearing Examiner shall be governed by the Department's Rules and Regulations, Title 407.004.02E Debarment shall be for a period of thirty-six months or, in the case of a reciprocal debarment as provided for under Subsection 004.02A3, the term of the debarment shall be for the same period as the debarment imposed by the other State or the Federal government.004.02F The Director may suspend a debarment at anytime he/she determines it is in the public interest to do so. Mitigating circumstances may be considered in the decision to lift or suspend a debarment and may include, but shall not be limited to: 004.02F1 The degree of culpability of the debarred individual or bidder.004.02F2 Restitution by the debarred individual or bidder to the State for any perceived overcharges or damages resulting from the actions of the debarred individual or bidder.004.02F3 Cooperation by the debarred individual or bidder with the State, the United States, and/or any other political governmental subdivision in the investigation of bidding crimes, including a full and complete account of the individual's or bidder's particular involvement therein.004.02F4 Disassociation with individuals and firms that have been involved in a bidding crime.004.02G The Director, at his/her discretion, may hold a hearing, no later than fifteen days prior to the last day of the debarment, and require the debarred individual or bidder to show cause why the debarment should not continue. If the Director, in his/her sole discretion, determines that a debarred individual or bidder has failed to become a responsible bidder, then the Director may continue the debarment for up to twelve additional months. The same show cause procedures shall continue for each successive extension of the original debarment until such time as the Director has determined that the debarred individual or bidder meets the criteria of a responsible bidder.004.02H For purposes of debarment, the conduct of a bidder or an individual shall be fully imputed to: 004.02H1 Business firms with which they are or were associated.004.02H2 Business firms by whom the individual was or is employed.004.02H3 Parent or subsidiary companies of the bidder.004.02H4 Business firms in which the individual or bidder has a controlling interest.004.02I Debarment of a bidder shall in no way affect the obligations of the bidder to the State for services to the Department already under contract.004.02J Every bidder currently qualified by the Department to bid on its contracts shall have a duty to notify the Director if it, any of its employees, officers, board members, or associates are indicted or convicted of a bidding crime within thirty days of the indictment or conviction. Failure to do so is a serious and compelling offense sufficient to result in debarment.004.02K Every bidder qualified by the Department to bid on its contracts shall have a duty to notify the Director if the bidder, any of its employees, officers, board members, or associates are contacted by any person with the purpose of engaging in any illegal activities in connection with bidding on contracts let by the Department or contracts involving federal aid. Notice shall include the name of the person making such overture or bid proposal, the time and place thereof, and the specific nature of the overture or bid proposal.004.02L A copy of Section 004 of these Rules shall be mailed to each prequalified bidder and to each bidder heretofore debarred or suspended.004.03PROCEDURES FOR CERTIFICATION REGARDING DEBARMENT004.03A By signing and submitting a bid, the bidder is providing the certification set out below.004.03B The inability of a person to provide the certification required below will not necessarily result in denial of participation in a contract. The bidder shall submit an explanation of why he/she cannot provide certification. The certification or explanation will be considered in connection with the Department's or agency's determination whether to enter into this transaction. However, failure of the bidder to furnish a certification or an explanation shall disqualify the bid.004.03C The certification in this clause is a material representation of fact upon which reliance was placed when the Department determined to enter into this transaction. If it is later determined that the bidder knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the Department may terminate this transaction, cause prosecution for perjury, bring debarment proceedings, or any combination of the above.004.03D The bidder shall provide immediate written notice to the Department if at any time the bidder learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.004.03E The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "bid proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Federal Executive Order 12549. The Department may be contacted for assistance in obtaining a copy of those regulations.004.03F The bidder agrees by submitting this bid that, should the proposed covered transaction be entered into, he/she shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction unless authorized by the Department.004.03G The bidder further agrees by submitting this bid that he/she will include Section 004, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.004.03H A bidder in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction unless he/she knows that the certification is erroneous. A bidder may decide the method and frequency by which he/she determines the eligibility of his/her principals.004.03I Except for transactions authorized under Section 004.03F of these instructions, if a bidder in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this contract, in addition to other remedies available to the Federal Government, the Department may terminate this contract for cause or default, cause prosecution for perjury, bring debarment proceedings, or any combination of the above.004.03J The bidder swears, to the best of his/her knowledge and belief, that he/she and the principals: 004.03J1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal Department or Agency.004.03J2 Have not within a three-year period preceding this bid been convicted of or had a civil judgment rendered against them for:004.03J2a Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction.004.03J2b Violation of Federal or State antitrust statutes.004.03J2c Commission of embezzlement, theft, forgery, bribery, or falsification or destruction of records.004.03J2d Making false statements.004.03J2e Receiving stolen property.004.03J3 Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in Section 004.03J2 of these Regulations.004.03J4 Have not within a three-year period preceding this bid had one or more public transactions (Federal, State, or local) terminated for cause or default.004.03K Where the bidder is unable to certify to any of the statements in the certification, an explanation shall be attached to his/her bid.409 Neb. Admin. Code, ch. 1, § 004