HomeMy WebLinkAboutR-02-1325J-02-893
12/12/02
RESOLUTION NO. 02-1325
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), ESTABLISHING AND
APPROVING DEBARMENT REGULATIONS IN
SUBSTANTIALLY THE FORM ATTACHED HERETO AS
"EXHIBIT All IN ACCORDANCE WITH
SECTION 18-107, ENTITLED "DEBARMENT AND
SUSPENSION" OF ARTICLE III, CHAPTER 18, OF
THE CODE OF THE CITY OF MIAMI, FLORIDA, AS
AMENDED.
BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The "Debarment Regulations," in
substantially the form attached as "Exhibit A," having been
approved by the City Manager and the City Attorney, are
established and approved for issuance by the Chief Procurement
Officer in accordance with Section 18-107, entitled "Debarment
and Suspension," of Article III, Chapter 18, of the Code of the
City of Miami, Florida, as amended.
Section 2. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.11
}� If the Mayor does not sign this Resolution, it shall become effective
at the end of ten calendar days from the date it was passed and
adopted. If the Mayor vetoes this Resolution, it shall become
effective immediately upon override of the veto by the City Commission.
CITY COMMISSION
MEETING OF
DEC 1 2 2002
Res6letion No.
02-1325
PASSED AND ADOPTED this 12th day of
ATTEST:
PRISCILLA A. TlfOMPSON
CITY CLERK
p---- -- - ----- -
ITY ATTORNEY
W6633M:dd:BSS
RRECTNESS r
Page 2 of 2
December , 2002.
MANUEL A. DIAZ, MA O
02-1325
1.
2.
3.
"Exhibit A"
DEBARMENT REGULATIONS
Purpose: To establish the procedures/regulations for
Debarment and/or suspension of any actual or
prospective Contractual Party for cause(s)
consistent with the requirements of Section
18-107 of the City Code of the City of Miami.
These debarment regulations may be referred to as
the "Debarment Regulations."
Scope: The serious nature of Debarment requires that
this provision be imposed only when it is in the
public interest for the City's protection and not
for purposes of punishment. Suspension or
Debarment may be imposed on any prospective or
actual Contractual Party in consideration for
award of any City Bid/Contract in accordance with
the Debarment Regulations.
Authority: (a) The city manager, after consultation with
the Chief Procurement Officer and the City
Attorney, shall have the authority to debar
a Contractual Party, for the causes listed
below, from consideration for award of city
Contracts (as defined herein).
(b) The city manager shall have the authority to
suspend a Contractual party from
consideration for award of city Contracts if
there is probable cause for debarment,
pending the debarment determination,
provided, however, that the suspension shall
terminate after thirty days unless debarment
proceedings have been commenced in
accordance with these regulations.
(c) The city manager shall have the authority to
delegate final debarment determinations to a
Special Master who, after conducting a
hearing, shall issue an order containing
findings of fact, conclusions of law and a
final determination of debarment.
4. Causes: The city manager may debar or suspend any actual
or prospective Contractual Party or any of its
principal owners or personnel for any of the
reasons listed below. The existence of a cause
DebarmentRegs Dec 11, 2002
02-9.325
for debarment, however, does not require that the
Contractor be debarred; the seriousness of the
contractor's acts or omissions and any mitigating
factors should be considered in making any
debarment decision.
CAUSES FOR DEBARMENT:
(a) Conviction or civil judgment for commission
of a fraud or criminal offense incident to
obtaining or attempting to obtain a public
or private contract or subcontract, or
incident to the performance of such contract
or subcontract.
(b) 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.
(c) Conviction under state or federal antitrust
statutes arising out of the submission of
bids or proposals.
(d) Violation of the terms of any Contract
between the Contractual Party and any City
Entity, including but not limited to
Contracts or subcontracts relating to
Community Development grants and loans.
Such violations include, by way of example
and not limitation, the failure to perform,
or the unsatisfactory performance of, the
terms of one or more Contracts, as certified
by the city department administering the
Contract.
(e) A Contractual Party who has defaulted under
the terms of a Contract with the City or any
of its boards, agencies, trusts,
authorities, councils or committees, and has
failed to cure such default.
DebarmentRegs Dec It 2002 2
02-x.325
(f) Debarment or suspension of the Contractual
Party by any federal, state, county, or
other governmental entity.
(f) False certification pursuant to Section 8
below.
(g) Violation of any provision of the Charter
and Code of the City of Miami, including but
not limited to the City of Miami Cone of
Silence, or violation of Zoning Ordinance
No. 11000, the Comprehensive Zoning
Ordinance of the City of Miami, as amended,
or of any other ordinance or regulation of
the City, and for which the violation
remains noncompliant.
(h) Violation of any provision of the Charter
and Code of the City of Miami, including but
not limited to the City of Miami Cone of
Silence, or is in violation of Zoning
Ordinance No. 11000, the Comprehensive
Zoning Ordinance of the City of Miami, as
amended, or of any other ordinance or
regulation of the City, and for which a
civil penalty or fine or fee is due and
owing to the city.
(i) Any other cause judged by the city manager
to be so serious and compelling as to affect
the responsibility of the Contractual Party
performing city Contracts.
5. Definitions: capitalized words shall have the definitions
ascribed to them in Chapter 18, Article III,
City of Miami Code, and as may be expanded
or specified in this section 5.
DebarmentRegs Dec 11 2002
(a) City Entity(ies): shall include the
City of Miami, the Office of the Mayor,
the City Commission, the City Manager,
every agency, authority, advisory
board, regulatory board, quasijudicial
board, semiautonomous instrumentality,
committee, task force, trust, or any
other group created and/or funded, in
whole or in part, by the City
02-1325
3
DebarmentRegs Dec 11 2002
Commission of the City of Miami, and
the Community Redevelopment Agencies.
(b) Contracts: in addition to its
definition in Chapter 18, Article III,
Section 18.73 entitled "Definitions"
this term shall include but not be
limited to: Use Agreements, Revocable
Permits, Special Event Permits,
Franchise Agreements and License
Agreements.
(c) Contractual Party means any individual
or other legal entity which:
(1) Directly or indirectly (e.g.
through an affiliate) submits
offers for or is awarded, or
reasonably may be expected to
submit offers for or be awarded a
city Contract, including but not
limited to offerors, bidders,
proposers, vendors, consultants,
service providers; or
(2) Conducts business, or reasonably
may be expected to conduct
business, with the city as an
agent, representative or
subcontractor of another
Contractual Party.
(d) Conviction means a judgment or
conviction of a criminal offense, be it
a felony or misdemeanor, by any court
of competent jurisdiction whether
entered upon a verdict or a plea, and
includes conviction entered upon a plea
of nolo contendre.
(e) Debarment means action taken by the
city manager to exclude an actual or
prospective Contractual Party from city
contracting and city approved
subcontracting for a specified term,
which Debarment shall be for a period
of not fewer than three years, in
02-1325
4
accordance with City of Miami Code
Section 18-107(a). A Contractual Party
so excluded is debarred. Debarment
constitutes debarment of all officers,
principals, directors, and/or
shareholders owning or controlling 10%
or more of the stock, partners,
qualifiers, divisions or other
organizational elements of the debarred
Contractual Party, unless the Debarment
is limited by its terms to specific
divisions, organizational elements, or
commodities. The Debarment decision
includes any existing affiliates of the
Contractual Party if such are (i)
specifically named and (ii) given
written notice of the proposed
Debarment and an opportunity to
respond. A Contractual Party's
Debarment shall be effective throughout
City government.
(f) List of Debarred Contractors means a
list compiled, maintained and
distributed by the Department of
Purchasing of the City of Miami,
containing the names of Contractual
Parties debarred under Section 18-107
of the City Code.
6. Responsibility of Purchasing Department
(a) List of Debarred Contractual Parties.
The Department of Purchasing, as the agency charged
with the implementation of these regulations shall:
(i) Compile and maintain a current List of Debarred
Contractual Parties of all Contractual Parties
debarred by the city manager. Such List shall be
a public record and disseminated in accordance
with Florida law.
(ii) Periodically revise and distribute the List of
Debarred Contractual Parties and issue
supplements, if necessary, to the city clerk, the
city attorney, and to all City Entities.
DebarmentRegs Dec 11 2002
02-1325
5
(b) The List of Debarred Contractual Parties shall
include:
(a) The name and addresses, in alphabetical order, of
all debarred Contractual Parties.
(b) The name of the department, authority, office,
Trust, Board, or agency that recommended
initiation of the Debarment action for each
Contractual Party, or of the Board debarred the
Contractual Party pursuant to these regulations.
(c) The cause(s) for the Debarment.
(d) The commencement and termination dates of the
Debarment.
(e) The Contractual Party's certificate of competency
or license number, when applicable.
(f) The person through which the debarred Contractual
Party is qualified, if applicable.
(g) The effects of Debarment.
(c) The City of Miami Purchasing Department shall act as
staff to the city manager or its designee and to the
Special Master.
7. Effects of Debarment
(a) Debarred Contractual Parties are excluded from
receiving or participating in Contracts, and no City
Entity shall solicit quotes, bids, or proposals from,
award Contracts to, or consent to subcontracts with,
Debarred Contractual Parties. Debarred Contractual
Parties are also excluded from conducting business
with any City Entity as agents, representatives,
subcontractors, or partners of other contractors.
(b) Debarred Contractual Parties are excluded from acting
as individual sureties.
8. Certification
DebarmentRegs Dec 11 2002 6
a
a
All Contracts shall include, and all Requests for Proposals
(RFP), Requests for Qualifications (RFQ), Requests for
Letters of Interest (RFLI) or Invitations for Bids (IFB)
issued by the City shall require, a certification that
neither the Contractual Party nor any of its principal
owners or personnel have been convicted of any of the
violations set forth in Section 18-107 of the City of Miami
Code, or are currently debarred or suspended by the city or
any federal, state, county, or other governmental entity.
Continuation of contracts
(a) The Debarment shall take effect in accordance with the
Notice issued by the city manager pursuant to Section
18- 107(d), except that, upon written approval by the
city manager, if a City Entity has Contracts or
subcontracts in existence with the Debarred
Contractual Party at the time the Contractual Party
was debarred, the Debarment period may commence upon
the conclusion of such Contracts or subcontracts.
(b) No City Entity may renew or otherwise extend the
duration of current Contracts or subcontracts with
Debarred Contractual Parties.
(c) No further work shall be awarded to a Debarred
Contractual Party in connection with a continuing
Contract, where the work is divided into separate
discrete groups and the City's refusal or denial of
further work under the Contract will not result in a
breach of such Contract.
Debarment Procedures
(a) Request for the Debarment of any actual or prospective
Contractual Party may be initiated by any City Entity
or department, and shall be made in writing to the
City Manager citing the cause(s) for the proposed
Debarment, with supporting documentation/ or evidence.
With respect to the Downtown Development Authority,
the Department of Off -Street Parking, the Model Cities
Homeowners Trust, the Civilian Investigative Panel,
the Community Redevelopment Agencies, the Virginia Key
Beach Park Trust, and the Miami Sports and Exhibition
Authority, (each referred to herein as "Board"), "City
Manager" shall mean the Executive Director of each
DebarmentRegs Dec 1 12002
02-125'
10.
Board and Chief Procurement Officer shall mean the
Executive Director of each Board or his or her
designee.
(b) Upon receipt of a written request for Debarment, the
City Manager, after consultation with the Chief
Procurement Officer and the city attorney, shall make
a written determination of probable cause for
Debarment.
(c) If a determination of probable cause for Debarment is
found, a written notice of the determination of
probable cause for Debarment shall be sent by personal
service or by certified mail, return receipt
requested, to the last known mailing address of the
Contractual Party and any specifically named
affiliates within five (5) working days of the date of
the determination of probable cause for Debarment and
shall contain the following information:
(i) Probable cause for Debarment has been found;
(ii) The reasons for the action taken;
(iii) The Contractual Party's right to an
administrative hearing before a Special Master,
subject to payment of a filing fee, at which
hearing it may be represented by legal counsel
and may present documentary evidence and verbal
testimony to demonstrate why the determination of
probable cause is incorrect;
(iv) The effect of the issuance of the notice of
determination of probable cause for debarment and
of the potential effect of a final determination
of Debarment.
Suspension
Upon execution of a written determination of probable cause
for Debarment, the City Manager shall have the authority to
immediately suspend a Contractual Party from consideration
for award of city Contracts, pending final Debarment
decision; provided, however, that the suspension shall
terminate after thirty days unless debarment proceedings
have been commenced in accordance with these regulations.
Written notice of suspension shall be provided promptly to
DebarmentRegs Dec 11 2002 8
02-1325
the Contractual Party by certified mail, return receipt
requested, to the last known mailing address of the
Contractual Party and to any specifically named affiliates,
stating the reasons for the suspension.
11. Opportunity to be Heard
Within seven (7) working days of receipt of the notice of
determination of probable cause for Debarment, the
Contractual Party may submit to the City Manager a written
request for a hearing before the Special Master. If the
Contractual Party fails to submit a written request for a
hearing within the prescribed period, the Contractual Party
shall have waived the opportunity to be heard under the
provisions of these regulations and City Code Section
18-107. If no request for a hearing is received within the
prescribed period, no hearing shall be held and a final
determination of debarment may be made by the City Manager
or its designee, after consultation with the city attorney
and the Chief Procurement Officer.
12. Hearing Date
(a) Upon receipt of a timely request for a hearing,
accompanied by a non-refundable filing fee in the
amount of $500, the city shall schedule a hearing
before a Special Master. The hearing shall occur
within thirty (30) working days from the receipt of
the written request for a hearing, at which time the
Contractual Party shall be given the opportunity to
show cause why the determination of probable cause for
Debarment should be overturned.
(b) No later than seven (7) working days prior to the
scheduled hearing date, the Contractual Party shall
furnish the city's Chief Procurement Officer a written
list of all defenses and the documents and records
supporting those defenses that the Contractual Party
intends to present at the hearing.
If the Contractual Party fails to submit, no later than
seven working days prior to the scheduled hearing date,
either the list of defenses and supporting documentation or
a written request for an extension of time in which to
submit these documents, the Contractual Party shall have
waived the opportunity to be heard, there shall be no
hearing, and a final determination of debarment may be made
DebarmentRegs Dec It 2002
02--1325
0
by the City Manager or its designee, after consultation
with the city attorney and the Chief Procurement Officer.
Provided the written request for extension of time is
properly received, the Special Master or Chief Procurement
Officer shall have the authority to grant or deny an
extension.
13. Hearing Procedure
(a) The concept of administrative law under which the
Special Master conducts the hearing is: that the
matter at issue is the actual or prospective
Contractual Party's fitness to do business with the
City of Miami, based upon the charges presently before
it. The rules of criminal and civil proceedings shall
not apply to hearings before the Special Master.
Notwithstanding any provision to the contrary in
Chapter 18 of the City of Miami Code, the Cone of
Silence as defined in Section 18-74 of the City of
Miami Code shall not apply to Debarment and suspension
proceedings conducted pursuant to Section 18-107 of
the City Code and these regulations.
(b) The process of discovery, including the subpoenaing of
witnesses, the taking of depositions, the submission
of interrogatories, and requests for documents, is not
permitted. However, any party may make a public
records request under Chapter 119 of the Florida
Statutes, as amended.
(c) The entity requesting Debarment may be represented by
the City Attorney or other counsel.
(d) The Special Master shall be the sole trier of fact,
and shall have the authority to prescribe the manner
of conduct of its hearing. The hearing shall be as
informal as is compatible with the essential
requirements of law. Irrelevant, immaterial or
unduly repetitive evidence shall be excluded. The
admission of evidence shall be governed by the Special
Master's rulings, with the advice of the City's
counsel. Strict rules of evidence, as in courts of
law, shall not apply. (Evidence is to be admitted at
the discretion of the Special Master and pertinent
DebarmentRegs Dec 11 2002 02-1325 l 0
information considered for the purpose of substantial
justice for all parties).
(e) The Special Master shall prepare its written
determination in keeping with the public interest,
based solely on the Special Master's reasonable
interpretation of the pertinent information available
in the record.
(f) After due consideration of the evidence and other
pertinent information for and against the Contractual
Party, the Special Master shall, within twenty (20)
working days after conclusion of the hearing, submit
its written findings of fact, conclusions of law, and
final order to the City Manager, and to the
Contractual Party, based only on competent,
substantial evidence in the record before it. The
Special Master may extend this period of time for good
cause.
(g) If the Special Master's final order is to impose
Debarment, it shall include the causes for debarment,
as set forth in Section 18-107 of the City Code the
identification of the Contractual Party, and all
affiliates affected by the decision, and the specific
term of the Debarment, which term shall be not less
than three years. The final order of Debarment shall
state the effective date of the Debarment, and shall
advise that the Debarment is effective throughout city
government, in accordance with subsection 7(a) of
these Debarment Regulations. A copy of the debarment
order shall be provided by certified mail, return
receipt requested, to the Contractual Party within ten
(10) working days of the date of the final debarment
decision. The final Debarment decision shall include
a notice that review of the decision of the Special
Master shall be to a court of competent jurisdiction
in accordance with the Florida Rules of Appellate
Procedure. It is the intent of the city commission
that all steps as provided by these Debarment
Regulations and Section 18-107 of the City of Miami
Code be taken before any application is made to the
court for relief, and no application shall be made to
the court for relief from Debarment decisions made
pursuant to these Debarment Regulations and Section
18-107 of the City of Miami Code unless the
Contractual Party has first exhausted all remedies
Debarmen[Regs Dec 11 2002 11
a2-1325
provided herein. Copies of the Order of Debarment
shall be sent to the following individuals: the City
Manager, the chief procurement officer, the city
attorney, the City Clerk, and the director of the
department or City Entity requesting the Debarment.
(h) All hearings shall be recorded in accordance with
Florida law and available for duplication.
14. Reinstatement:
(a) A request for reinstatement during the period of
debarment shall be made in writing based upon
discovery of new and material evidence not previously
available or dismissal of the indictment or the
reversal of the conviction.
(b) After consideration of the written submission, the
City Manager or its designee shall determine whether
or not the reinstatement is warranted.
(c) If the decision is that the Contractual Party should
not be reinstated, the Contractual Party may request a
hearing before the Special Master, whose decision
shall be final.
DebarmentRegs Dec 11 2002 12
02-1325
TO: Mayor and
FROM: Alejandro
City A
CITY OF MIAMI
CITY ATTORNEY'S OFFICE
MEMORANDUM
F
City Commission
DATE: Decembeyl5, 2002
RE: Resolution approving Debarment Regulations
City Commission Meeting -December 12, 2002.
(J-02-893)
sic
Attached, per direction of the City Commission, please fmd proposed Debarment
Regulations.
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IN°
MM/dd
Attachments
c: Carlos A. Gimenez, City Manager
Elvi G. Alonso, Agenda Coordinator
WlWlacingAgenda-DebarmentRmo 02-1325