Tenn. Comp. R. & Regs. 1680-05-01-.05

Current through October 22, 2024

Section 1680-05-01-.05 - DEBARMENT

(1) What are the causes for debarment?

The Department may debar a person for-

(a) Conviction of or civil judgment for-

1. Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;

2. Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;

3. Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or

4. Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;

(b) Conviction of any criminal violation of the Federal Water Pollution Control Act, as provided in 33 U.S.C. § 1319(c), or as it may be amended, or conviction of any criminal violation of the Tennessee Water Quality Control Act, as provided in T.C.A. §§ 69-3-115(b) and (c), or as either may be amended; or

(c) Serious violations of the terms of a contract or grant such as-

1. A willful failure to perform in accordance with the terms of one or more public contracts or grants;

2. A history of failure to perform or of unsatisfactory performance of one or more contracts or grants; or

3. A willful violation of a statutory or regulatory provision or requirement applicable to a contract or grant, including without limitation violations of statutory or regulatory provisions or requirements under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Tennessee Water Quality Control Act, T.C.A. § 69-3-101 et seq.;

(d) Any of the following causes:

1. A debarment or similar action by any Federal agency, another state or other governmental authority;

2. Using a suspended or debarred subcontractor on a covered transaction; provided, however, this shall not apply if the covered transaction began before the debarment or suspension;

3. Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any State agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted;

4. Violation of a material provision of a voluntary exclusion agreement or of any settlement of a debarment or suspension action;

5. Violation of the provisions of the Drug-Free Workplace Act of 1988 ( 41 U.S.C. 701); or

(e) Any other cause of so serious or compelling a nature that it affects your present responsibility, which includes but is not limited to a finding by the debarring official based on a preponderance of the evidence that a person committed any action described in subparagraph (1)(a) of this rule.

(2) What notice does the initiating official give me if I am proposed for debarment?

After consideration of the causes in paragraph (1) above of this rule, if the Department proposes to debar you, the initiating official shall send you a Notice of Proposed Debarment, pursuant to Rule 1680-5-1-.03, paragraph (3), advising you-

(a) That the Department intends to debar you and that the debarment shall go into effect on a date certain (no less than thirty (30) days from receipt of notice) unless you object to the debarment in writing within thirty (30) days after you receive the Notice of Proposed Debarment and request a hearing prior to the debarment effective date. The notice shall clearly state the location and individual who is to receive the objection.

(b) Of the reasons for proposing to debar you in terms sufficient to put you on notice of the conduct or transactions upon which the proposed debarment is based;

(c) Of the provisions of this rule governing debarment;

(d) Of the effect of your debarment from participation in covered transactions; and

(e) Of your opportunity to contest the proposed debarment by requesting a hearing described in the Administrative Procedures Act, T.C.A.. § 4-5-301, et seq., as provided in paragraph (4) below.

(g) We consider the Notice of Proposed Debarment to be received by you-

1. When delivered, if we mail or hand deliver the notice to the last known street address;

2. When delivered, if we send the notice by facsimile; or

3. When delivered, if we send the notice by e-mail.

(3) When does a debarment take effect?

(a) A debarment is not effective until the debarring official issues a decision.

(b) In the event you do not object and request a hearing to contest the debarment, the debarring official may issue a Debarment Order based on the information in paragraph (2) above that goes into effect upon the date specified in the Debarment Order.

(c) If you object in accordance with paragraph (2) above, then you have the opportunity to participate in a contested case hearing described in the Administrative Procedures Act before the debarring official issues any Order.

(4) How do I oppose a debarment?

(a) If you as a respondent wish to contest a proposed debarment, you must provide the Department with an objection to the debarment and a request for hearing. This objection and request for hearing must be submitted in writing to the Department within thirty (30) days after you receive the Notice of Proposed Debarment.

(b) If you submit a timely objection to the debarment and request a hearing, then the Department shall conduct a contested case hearing like that described in the Administrative Procedures Act, T.C.A. § 4-5-301 et seq. and as required by these rules.

(c) The proceeding shall be conducted by official(s) of the Department designated by the Commissioner who shall issue a final order as described in T.C.A. § 4-5-314. This individual or group of individuals is referred to as the debarring official. An administrative judge or hearing officer shall preside over the hearing as provided in T.C.A. § 4-5-301(b).

(d) The Department shall serve a Notice of Hearing as described in T.C.A. § 4-5-307 within fifteen (15) days of receipt of your objection to the debarment. You shall file an answer within fifteen (15) days of receipt of the Notice of Hearing.

(e) All discovery, pre-hearing conferences, briefs and motions must be complete within sixty (60) days of filing the answer.

(f) The proceeding hearing itself shall be held as described in the Uniform Rules of Procedures for Hearing Contested Cases Rule 1360-4-1-.01 with a final order being entered by the Department officials hearing the case.

(g) Any judicial review of a final order shall be in accord with T.C.A. § 4-5-323.

(5) Are debarment proceedings formal?

(a) Debarment proceedings are conducted in a fair and informal manner as described in this rule and the Administrative Procedures Act.

(b) You or your representative must submit any documentary evidence you want the debarring official to consider.

(6) What does the debarring official consider in deciding whether to debar me?

(a) The debarring official may debar you for any of the causes allowed by this rule. However, the official need not debar you even if a cause for debarment exists. The official may consider the seriousness of your acts or omissions and the mitigating or aggravating factors set forth below.

(b) The debarring official bases the decision on all information contained in the official record. The record includes-

1. All information in support of the initiating official's proposed debarment;

2. Any further information and argument presented in support of, or in opposition to, the proposed debarment; and

3. Any transcribed record of fact-finding proceedings.

(7) What is the standard of proof in a debarment action?

(a) In any debarment action, the Department must establish the cause for debarment by a preponderance of the evidence.

(b) If the proposed debarment is based upon a conviction or civil judgment, the standard of proof is met.

(8) Who has the burden of proof in a debarment action?

(a) The Department has the burden to prove that a cause for debarment exists.

(b) Once a cause for debarment is established, you as a respondent have the burden of demonstrating to the satisfaction of the debarring official that you are presently responsible and that debarment is not necessary.

(9) What factors may influence the debarring official's decision?

This paragraph lists the mitigating and aggravating factors that the debarring official may consider in determining whether to debar you and the length of your debarment period. The debarring official may consider other factors if appropriate in light of the circumstances of a particular case. The existence or nonexistence of any factor, such as one of those set forth in this paragraph, is not necessarily determinative of your present responsibility. In making a debarment decision, the debarring official may but is not required to consider the following factors:

(a) The actual or potential harm or impact that results or may result from the wrongdoing.

(b) The frequency of incidents and/or duration of the wrongdoing.

(c) Whether there is a pattern or prior history of wrongdoing. For example, if you have been found by another Federal agency or a State agency to have engaged in wrongdoing similar to that found in the debarment action, the existence of this fact may be used by the debarring official in determining that you have a pattern or prior history of wrongdoing.

(d) Whether you are or have been excluded or disqualified by an agency of the Federal Government or have not been allowed to participate in State or local contracts or assistance agreements on a basis of conduct similar to one or more of the causes for debarment specified in this rule.

(e) Whether you have entered into an administrative agreement with a Federal agency or a State or local government that is not governmentwide but is based on conduct similar to one or more of the causes for debarment specified in this rule.

(f) Whether and to what extent you planned, initiated, or carried out the wrongdoing.

(g) Whether you have accepted responsibility for the wrongdoing and recognize the seriousness of the misconduct that led to the cause for debarment.

(h) Whether you have paid or agreed to pay all criminal, civil and administrative liabilities for the improper activity, including any investigative or administrative costs incurred by the government, and have made or agreed to make full restitution.

(i) Whether you have cooperated fully with the government agencies during the investigation and any court or administrative action. In determining the extent of cooperation, the debarring official may consider when the cooperation began and whether you disclosed all pertinent information known to you.

(j) Whether the wrongdoing was pervasive within your organization.

(k) The kind of positions held by the individuals involved in the wrongdoing.

(l) Whether your organization took appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence.

(m) Whether your principals tolerated the offense.

(n) Whether you brought the activity cited as a basis for the debarment to the attention of the appropriate government agency in a timely manner.

(o) Whether you have fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.

(p) Whether you had effective standards of conduct and internal control systems in place at the time the questioned conduct occurred.

(q) Whether you have taken appropriate disciplinary action against the individuals responsible for the activity which constitutes the cause for debarment.

(r) Whether you have had adequate time to eliminate the circumstances within your organization that led to the cause for the debarment.

(s) Other factors that are appropriate to the circumstances of a particular case.

(10) How long may my debarment last?

(a) If the debarring official decides to debar you, your period of debarment will be based on the seriousness of the cause(s) upon which your debarment is based. Generally, debarment should not exceed three years. However, if circumstances warrant, the debarring official may impose a longer period of debarment.

(a) In determining the period of debarment, the debarring official may consider the factors in paragraph (9) of this rule above. If a suspension has preceded your debarment, the debarring official must consider the time you were suspended.

(11) When do I know if the debarring official debars me?

(a) The debarring official must make a written decision whether to debar within ninety (90) days of closing the official record. The official record closes upon the debarring official's receipt of final submissions, information and findings of fact, if any. The debarring official may extend that period for good cause.

(b) The debarring official sends you written notice, pursuant to Rule 1680-5-1-.03, paragraph (3), that the official decided, either-

1. Not to debar you; or

2. To debar you. In this event, the notice-

(i) Refers to the Notice of Proposed Debarment;

(ii) Specifies the reasons for your debarment;

(iii) States the period of your debarment, including the effective dates; and

(iv) Advises you that your debarment is effective for all covered transactions with the Department.

(12) May I ask the debarring official to reconsider a decision to debar me?

Yes, as a debarred person you may ask the debarring official to reconsider the debarment decision or to reduce the time period or scope of the debarment.

(13) What factors may influence the debarring official during reconsideration? The debarring official may reduce or terminate your debarment based on-

(a) Newly discovered material evidence;

(b) A reversal of the conviction or civil judgment upon which your debarment was based;

(c) A bona fide change in ownership or management;

(d) Elimination of other causes for which the debarment was imposed; or

(e) Other reasons the debarring official finds appropriate.

(14) May the debarring official extend a debarment?

(a) Yes, the debarring official may extend a debarment for an additional period, if that official determines that an extension is necessary to protect the public interest.

(b) However, the debarring official may not extend a debarment solely on the basis of the facts and circumstances upon which the initial debarment action was based.

(c) If the debarring official decides that a debarment for an additional period is necessary, the debarring official must follow the applicable procedures of this rule, to extend the debarment.

Tenn. Comp. R. & Regs. 1680-05-01-.05

Original rule filed February 4, 2005; effective April 20, 2005.

Authority: T.C.A. §§ 4-3-2303 and 54-5-117.