Executive Order

Executive Order No. 147: Governor's Code: Suspension and debarment of public contracts

Date: 10/31/1978
Issuer: Michael S. Dukakis
Mass Register: No. 131

Table of Contents

WHEREAS, the economic well-being of the Commonwealth depends to a significant extent on public contracting; and

WHEREAS, the Commonwealth has a continuing interest in maintaining the integrity of the state contracting process, and encouraging the participation of responsible bidders; and

WHEREAS, the state contracting process must insure fundamental fairness to the contractors whose economic life may depend on his ability to bid on public contracts;

NOW, THEREFORE, I, Michael S. Dukakis, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me by the constitution and by the statutes of the Commonwealth, do hereby adopt the following Governor's Code and hereby order and direct that said Code be the governing and guiding policy of the Executive Branch of the Government of the Commonwealth of Massachusetts.

I. General Scope

A. Debarment and suspension are measures which may be invoked by the Commonwealth of Massachusetts either to exclude or to disqualify bidders and contractors from participation in contracting or subcontracting with any agency of the state government. Such measures should be used for the purpose of protecting the interests of the Commonwealth and not for punishment. To assure the Commonwealth the benefits to be derived from the full and free competition of interested bidders, these measures should not be instituted for any time longer than deemed necessary to protect the interest of the Commonwealth.

II. Definitions

A. "Debarment" means an exclusion from contracting and sub-contracting with any agency of state government for a reason- able, specified period of time commensurate with the seriousness of the offense or violation.

B. "Suspension" means a disqualification from contracting and subcontracting with any agency of state government for a temporary period of time because an individual or entity is suspected upon adequate evidence of engaging in criminal, fraudulent, or seriously improper conduct.

C. A "debarment list" or "debarred bidders list" means a list of names of individuals or entities against whom any or all of the sanctions referred to in this section have been invoked.

D. "Bidders" means, wherever the term is used in this order, any offerors bidding pursuant to an invitation for bids or a request for proposals.

E. "Affiliates" means business concerns which are affiliates of each other when either directly or indirectly one individual or entity controls or has the power to control another, or when a third party controls or has the power to control both.

F. "Agency" means those executive offices (including the Office for Administration and Finance), departments, bureaus, boards, or other administrative units which award, supervise, or recommend the selection of individuals or entities for:

(1) state or state-assisted contracts, undertaken by the Commonwealth, for the construction, reconstruction, alteration, remodeling, or repair of any building or other property, or;

(2) state or state-assisted contracts, undertaken by the Commonwealth for goods or services.

lll. Suspension

A. The Secretary of Administration and Finance shall suspend an individual or entity when probable cause exists, based upon adequate evidence, to believe that the individual or entity has engaged in:

(1) Commission of a criminal offense as an incident of obtaining, attempting to obtain, or in the performance of, a public contract or;

(2) Commission of embezzlement, theft, forgery, bribery, falsification or destruction or records, receiving stolen property, or any other offense indicating a lack of business honesty which seriously and directly affects the questions of present responsibility as a government con- tractor or;

(3) Any other repeated, intentional violation of federal or state law which demonstrates a lack of integrity or honesty in business dealings, or a flagrant disregard for the law.

B. Conditions

Suspension shall not be based on unsupported accusations. In assessing whether adequate evidence exists for invoking a suspension, consideration should be given to the amount of credible evidence which is available, to the existence or absence of corroboration as to important allegations, as well as to the inferences which may properly be drawn from the existence or absence of affirmative facts. This assessment should include an examination of basic documents, such as contracts, inspection reports, and correspondence.

C. Period of suspension

All suspensions shall be for a temporary period pending the completion of an investigation and such legal proceedings as may ensue. In the event that legal proceedings have not been initiated within 60 days of notice of the suspension, the suspension shall be terminated. Whenever legal proceedings have been initiated, the suspension shall continue until the legal proceedings are completed.

D. Scope of suspension

(1) Suspension may include all known affiliates of an individual or entity.

(2) A decision to include known affiliates in a proposed suspension must be made on a case by case basis.

(3) The criminal, fraudulent, or seriously improper conduct of an individual may be imputed to the business entity with which he is connected when the impropriety involved was performed within the course of his official duty, or with knowledge or approval of the business entity.

E. Restrictions during period of suspension

(I) During a period of suspension of an individual or entity, the following policies and procedures shall be applicable:

(a) Bids and proposals shall not be solicited or considered from suspended contractors.

(b) Contractors will be subject to restrictions on suspended subcontractors.

F. Notice of suspension

(1) An individual or entity that has been suspended shall be furnished immediately with a notice of the suspension, by registered mail, by the Office of Administration and Finance. The notice of suspension shall state that:

(a) The suspension is based on an outstanding indictment, or adequate evidence that the individual or entity has committed irregularities of a serious nature in business dealings with the Commonwealth, or adequate evidence of irregularities which seriously reflect on the propriety of further dealings of the individual or entity with the Commonwealth. The notice shall identify the indictment or describe the nature of the irregularities, in general terms, without disclosing the Commonwealth's evidence;

(b) The suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue;

(c) Bids and proposals will not be solicited from the individual or entity and, if received, will not be considered;

(d) The individual or entity will not be eligible for the award of a subcontract and whenever the individual or entity is proposed as a subcontractor, the contracting officer will decline to approve subcontracting with that individual or entity;

(e) A request for a hearing will be granted unless the office of the Attorney General advises that such a hearing would prejudice substantial interests of the Commonwealth. The hearing will be held within 20 calendar cays if the request is granted.

G. Hearings for suspension proceedings

(1) A hearing may be requested upon receipt of a notice of suspension.

(2) Coordination with Attorney General's Office. The formal advice of the Attorney General's Office concerning the impact of release of evidentiary material on possible civil or criminal action against the individual or entity shall be requested upon receipt of a request for a hearing Such advice from the Attorney General shall be in writing. The Secretary of Administration and Finance or his designee shall grant the request and hold a hearing or deny the request as provided in paragraphs (3) and (4).

(3) Hearing granted. Except where the office of the Attorney General formally determines that a public hearing would prejudice substantial interests of the Commonwealth, a hearing shall be granted to any suspended individual or entity upon request. Such hearing shall take place not later than 20 calendar days after the request is received. A suspension shall be terminated within 7 days following the hearing unless specific findings have been reduced to writing by the appropriate officer to the effect that a) there is adequate evidence of the commission of an offense or violation as set forth in Section III; and b) a suspension is required to protect the integrity of the Commonwealth's bidding process as defined by existing statutory standards.

(4) Hearing denied. If it is determined, based upon the advice received from the office of the Attorney General, that to hold a hearing would adversely affect possible civil or criminal prosecution against the individual or entity, this determination will be reduced to writing and made a part of the formal record. Notice shall then be furnished to the individual or entity within 20 calendar days after receipt of the request for hearing that substantial interests of the Commonwealth would be prejudiced if a hearing were held but that any information or argument in opposition to the suspension may be presented in person, in writing, or through representation. Any information or argument submitted will be promptly considered by the Secretary of Administration and Finance or his authorized representative and, if such action is deemed warranted, the suspension shall be terminated. The individual or entity shall promptly be notified by registered mail whether the suspension is to be continued or terminated.

IV. Debarment

A. The Secretary of Administration and Finance may debar an individual or entity, in the public interest, for any of the following causes:

(1) Conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract, or subcontract thereunder, or in the performance of such contract or subcontract.

(2) Conviction of embezzlement, theft, forgery, bribery, falsification or destruction of records, or receiving stolen property.

(3) Any other repeated, intentional violation of Federal or State law which demonstrates a lack of integrity or honesty in business dealings, or a flagrant disregard for the law.

B. Conditions

(l) The existence of any cause set forth in (A) (1) or (2) shall be established by criminal conviction by a court of competent jurisdiction. In the event that an appeal taken from such conviction results in a reversal of the conviction, the debarment shall be removed upon the request of the bidder unless other cause for debarment exists.

(2) The existence of a cause set forth in (A) (3) shall be established by evidence which the Secretary of Administration and Finance determines to be clear and convincing in nature.

C. Period of debarment

Debarment of an individual or entity for cause shall be for a reasonable, definitely stated period of time commensurate with the seriousness of the offense or the violation. A period of debarment shall not exceed 3 years.

D. Scope of debarment

(l) A debarment may include all known affiliates of an individual or entity.

(2) Each decision to include a known affiliate within the scope of a proposed debarment is to be made on a case by case basis, after giving due regard to all the relevant facts and circumstances.

(3) The criminal, fraudulent, or seriously improper conduct of an individual may be imputed to the business entity with which he is connected, where such grave impropriety was accomplished within the course of his official duty or was effected by him with the knowledge or approval of that entity. Likewise, where a business entity is involved in criminal, fraudulent, or seriously improper conduct, any individual who was involved in the commission of the grave impropriety may be debarred.

E. Notice of hearing

No individual or entity shall he debarred prior to receipt of notice and an opportunity for a hearing consisted with the standard rules of adjudicatory procedure as promulgated by the Secretary of Administration and Finance in accordance with M.G.L. c.30A, s.10.

F. Restrictions during debarment

During a period of debarment of an individual or entity, the following policies and procedures shall be applicable:

(a) Bids and proposals shall not be solicited or considered from debarred contractors.

(b) Contractors will be subject to restrictions on debarred subcontractors.

V. Establishment and maintenance of a list of individuals or entities debarred or suspended.

A. The Secretary of Administration and Finance shall establish and maintain, on the basis contained in this order, a consolidated list of individuals or entities to whom contracts will not be awarded and from whom bids or proposals will not be solicited.

B. The list shall show as a minimum the following information:

(1) The names of those individuals or entities debarred or suspended (in alphabetical order) with appropriate cross-reference where more than one name is involved in a single action;

(2) The basis of authority for each action;

(3) The extent of restrictions imposed; and

(4) The termination date for each listing.

C. The list shall be kept current by issuance of notices of additions and deletions.

D. Each agency having responsibility for awarding or supervising state contracts shall notify the Secretary of administration and Finance of the name and central office where debarment and suspension information should be filed.

Given at the Executive Chamber in Boston this 31st day of October in the year of our Lord one thousand nine hundred and seventy-eight and of the Independence of the United States of America, two hundred & second.

Michael S. Dukakis, Governor

Paul Guzzi

Secretary of the Commonwealth

Contact for No. 147: Governor's Code: Suspension and debarment of public contracts

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