W. Va. Code R. § 157-3-13

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 157-3-13 - Disqualification Suspension, and Revocation of Pre-qualified Contractors

13.1. General Purposes. This section provides procedures regarding the Division of Highways' disqualification, suspension, and revocation of pre-qualified contractors in instances where there is cause to believe that a pre-qualified contractor is not complying with laws or regulations that pertain to the competition for or the performance of contract work awarded by the Division of Highways.

13.2. Disqualification. The Commissioner may, in his or her sole discretion, disqualify a pre-qualified contractor or its affiliates from bidding on division contracts for any of the following causes:

13.2.a. Conviction, judgment or admission of a bidding crime. This paragraph includes any admission in the presentation of testimony of an unindicted co-conspirator or any admission in testimony protected by a grant of immunity to the contractor in any jurisdiction.

13.2.b. Conviction, judgment or admission of any other crime for an illegal act(s) that pertains to competition for or performance of contract work for the division.

13.2.c. Debarment by the Federal Highway Administration.

13.2.d. Deliberate and repeated violation of regulations promulgated by the Commissioner in accordance with the West Virginia Code.

13.2.e. That a vendor who has been debarred pursuant to the provisions of W. Va. Code § 5A-3-33d, may not bid on or be awarded a contract.

13.2.f. Any other cause affecting the performance of contract work for the division that is of a serious and compelling nature.

13.3. Suspension.

13.3.a. The Commissioner may, in his or her sole discretion, suspend the Certificate of Qualification of a pre-qualified contractor where there is reasonable belief that any of the reasons set forth in subsection 13.3 of this rule for disqualification is present. If the Commissioner determines a suspension is proper, he or she shall furnish written notice by registered mail to the contractor and any named affiliates stating:

13.3.a.1. that a suspension has been imposed;

13.3.a.2. the effective date of the suspension;

13.3.a.3. the cause or causes giving rise to the suspension;

13.3.a.4. that the suspension is for a temporary period pending the completion of an investigation and any ensuing legal or disqualification proceedings;

13.3.a.5. that the pre-qualified contractor may within 10 days of receipt of the notice, request in writing an informal hearing, which will be held at a mutually agreeable date, but no later than 60 days subsequent to the receipt of the pre-qualified contractor's request for an informal hearing.

13.3.b. A suspension shall be for a temporary period pending the completion of investigation or any ensuing legal or disqualification proceeding unless terminated by the Commissioner. A suspension shall not continue for more than six (6) months from its effective date, unless civil or criminal action regarding the alleged violation has been initiated within that period, or unless disqualification proceedings have been initiated. The suspension may continue until the legal or disqualification proceedings are completed.

13.4. Disqualification Procedures.

13.4.a. After determining that cause exists under subsection 13.3 of this rule to disqualify a pre-qualified contractor, the Commissioner or his or her duly authorized representative shall furnish written notice of a hearing to the pre-qualified contractor and any named affiliates. The notice shall state:

13.4.a.1. that disqualification is being considered;

13.4.a.2. the facts or allegations giving rise to the proposed disqualification;

13.4.a.3. the cause or causes under subsection 13.3 of this rule relied upon for proposing disqualification;

13.4.a.4. the time, place and date of the hearing;

13.4.a.5. the name and mailing address of the hearing examiner;

13.4.a.6. if a suspension is not in effect before the notice is sent, that contracts may not be awarded to the contractor by the division pending the decision of the hearing examiner.

13.4.b. The hearing will be conducted in accordance with 157CSR1-3 of the West Virginia Division of Highways' Rules. The hearing examiner may extend the date of any hearing upon request of the contractor, but the hearing shall not be extended to later than sixty (60) days from the date the notice was sent. A transcribed record of the hearing shall be made unless the Commissioner and the contractor waive that requirement. At the conclusion of the hearing, the hearing examiner shall issue to the Commissioner and the contractor and all named affiliates written findings of fact and the recommended administrative action.

13.4.c. The Commissioner, after receiving the record, findings of fact and recommendations of the hearing official shall determine the administrative action to be taken. The Commissioner shall notify the named contractor or contractors of his or her determination in writing. If the determination is to impose disqualification, the determination shall set forth the period of time for which disqualification is imposed.

13.4.d. The determination made by the Commissioner may include all named affiliates of the contractor, provided that each decision to include an affiliate is made only after allowing the affiliate to participate in the hearing with the same procedural rights afforded the contractor.

13.5. Period of Disqualification.

13.5.a. The Commissioner may disqualify a pre-qualified contractor for a period of three months to three years.

13.5.b. At the sole discretion of the Commissioner the disqualification may be reduced, lifted or suspended at any time, if it is in the public interest to do so. Any mitigating circumstances may be considered in the decision to impose, reduce, lift or suspend disqualification and may include, but shall not be limited to:

13.5.b.1. the degree of culpability of the disqualified contractor;

13.5.b.2. restitution by the disqualified contractor to the Division for any overcharges or other damages;

13.5.b.3. cooperation by the disqualified contractor with any investigation undertaken by appropriate State agencies or other sovereign bodies;

13.5.b.4. elimination of the causes for which the disqualification was imposed.

13.6 Revocation. Revocation occurs when a contractor's prequalification status is revoked for a period of 12 months for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises.

13.7 Revocation Procedures.

The following procedures shall be followed when a contractor's prequalification status is revoked for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises:

13.8 The Division shall promptly notify the contractor in writing and provide them with an opportunity to appeal the decision. The Division shall follow the hearing procedures set forth in W. Va. Code St. R. § 157-1-3. Furthermore, pursuant to this rule the contractor's pre-qualification status will be suspended during an investigation to determine if revocation is applicable or an ensuing legal challenge to the revocation.

13.8.1 Within 30 days of the notice that the contractor's pre-qualification status has been revoked, the contractor may send a written request for an informal appeal to Contract Administration Division at DOHContractProcure@wv.gov or to West Virginia Department of Transportation, Commissioner of Highways (c/o Contract Administration Division), Building Five, Room 840, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305.

13.8.2. Within 30 days of receipt of the request for an informal appeal, the Director of Contract Administration Division, or his or her designee, will review the request and make a determination.

13.8.3 The Director of Contract Administration, or his or her designee, will present the determination and any associated terms to the Chief Engineer of Construction for approval.

13.8.4. Within 30 days of receipt of the informal appeal, the Contractor shall be notified in writing by the Contract Administration Division Director, or his or her designee, of the determination, and any other terms set forth.

13.8.5. Should the contractor not agree with the determination and/or terms set forth by the Contract Administration Division Director, the contractor may request in writing a formal hearing to be presided over by the Commissioner, or his or her designee.

13.8.6 The Commissioner, or his or her designee, shall give all parties involved not less than 10 days' notice of the time and place of hearing, in writing.

13.9. Effect of Disqualification, Suspension, or Revocation by Other Jurisdictions. The Commissioner shall not be bound by the disqualification, suspension, or revocation of a contractor by other jurisdictions, but may consider any and all information available from whatever source to determine if a contractor lacks the qualities of moral and/or ethical integrity so long as there is compliance with the procedures set forth in these regulations.

13.10. List of Disqualified, Suspended, or Revoked Contractors. The Commissioner shall maintain a list of all contractors and affiliates who have been disqualified, suspended, or revoked in accordance with these rules.

13.11. Notice to Contractors. A copy of this rule shall be mailed to each pre-qualified contractor.

W. Va. Code R. § 157-3-13