The overall purpose is to create a new rule chapter for contractor suspension procedures and policy to comply with Florida Statutes.

 

WATER MANAGEMENT DISTRICTS

Northwest Florida Water Management District

RULE NOS.:RULE TITLES:

40A-7.001Policy

40A-7.002Definitions

40A-7.003Determination and Notice of a Material Breach of a Contract with the District

40A-7.004Determination and Notice of a Contractor Suspension

40A-7.005Administrative Hearings

PURPOSE AND EFFECT: The overall purpose is to create a new rule chapter for contractor suspension procedures and policy to comply with Florida Statutes.

SUMMARY: This rule development will create a new rule chapter for contractor suspension procedures and policy to comply with Florida Statutes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Upon review of the proposed rule chapter, the District has determined that the new rule will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 373.610, F.S

LAW IMPLEMENTED: 373.610, F.S

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Megan Seward, Bureau Chief, Northwest Florida Water Management District, Bureau of Performance and Compliance Improvement, 152 Water Management Drive, Havana, FL 32333, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

CHAPTER 40A-7

CONTRACTOR SUSPENSION

40A-7.001Policy

40A-7.002Definitions

40A-7.003Determination and Notice of a Material Breach of a Contract with the District

40A-7.004Determination and Notice of a Contractor Suspension

40A-7.005Administrative Hearings

 

40A-7.001 Policy.

(1) This chapter establishes the policy and procedure for suspending a contractor from working with the District, either temporarily or permanently, when a contractor materially breaches a contract with the District.

(2) The District’s objective in enacting this chapter is to serve as a good steward of taxpayer funds and encourage business practices that require contractors to materially perform in accordance with the terms and conditions of the District contract.

(3) The District Governing Board shall be authorized to temporarily or permanently suspend a contractor from doing business with the District, based upon a determination that the contractor has materially breached its contract with the District. The Governing Board may elect not to take action.

(4) By temporarily or permanently suspending a contractor from doing business with the District, the District does not waive any other legal or equitable remedies for breach of contract.

Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History–New XX-XX-XX.

 

40A-7.002 Definitions.

When used in this chapter:

(1) “Contractor” means an individual, partnership, corporation, joint venture, professional association, an obligor to a third party beneficiary contract, or any other legal entity, including any associated principals, that has entered into a contract with the District for the performance of work. Contractor shall not include recipients of District grant funds.

(2) “District” means the Northwest Florida Water Management District.

(3) “Notice to Defaulting Contractor” means a written notification from the District to a contractor stating that the contractor materially breached a contract with the District for the purposes of this chapter and is being referred to the Governing Board for a determination as to whether the contractor should be placed on the District’s Temporary or Permanent Suspension List.

(4) “Obligor” means an entity that has promised or is otherwise legally obligated to perform an act or deed for the benefit of a third party beneficiary. Obligors to the District include but are not limited to insurance companies and surety companies.

(5) “Principal(s)” means a sole proprietor, partner, owner, officer, or director of the contractor that materially breached a District contract.

(6) “Re-procurement costs” means the total amount of additional expense, which may include administrative costs or attorney’s fees, that the District has or will incur in order to obtain substitute goods or services from another contractor to complete the requirements that the defaulting contractor failed to perform in accordance with the District contract.

(7) “Suspension Notice” means a written notification from the District informing a contractor that it has not been suspended from doing business with the District or informing a contractor that it has been placed on the District’s Suspension List and is temporarily or permanently suspended from doing business with the District.

(8) “Suspension List” means a list of contractors maintained by the District that are temporarily or permanently suspended from doing business with the District.

(9) “Third-party beneficiary” means whenever the District is the intended beneficiary of a contract but is not a party to the contract.

Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History– New XX-XX-XX.

 

40A-7.003 Determination and Notice of a Material Breach of a Contract with the District.

(1) For the purposes of this chapter, the Project Manager or Contract Manager, or subsequently titled position, shall determine, in consultation with the District’s Executive Director and General Counsel, whether a contractor has materially breached a contract with the District.

(2) The determination that a contractor has materially breached a contract with the District shall be based upon a finding that the contractor acted in a manner that was inconsistent with the terms and conditions of the contract under circumstances not excused by the contract, and the action resulted in or involved one or more of the following conditions:

(a) An adverse economic impact to the District of greater than $10,000;

(b) A delay in the completion of a District project by more than 3 months;

(c) The contractor failing to perform in accordance with professional licensing standards and regulations;

(d) The contractor intentionally failing to comply with Florida public records laws;

(e) The contractor discriminating on the basis of race, color, creed, national origin, sex, age, or handicap;

(f) The contractor violating requirements of a District solicitation to ensure the fair award of District contracts, including price fixing between competitors, allocation of customers between competitors, and bid rigging;

(g) The contractor demonstrating willful or gross misconduct;

(h) The commission of a criminal offense, including public entity crimes as defined in Section 287.133(1)(g), F.S.;

(i) The commission of any act indicating a lack of business integrity or honesty; or,

(j) The contractor knowingly doing business with a suspended contractor.

(3) Upon determining that a contractor materially breached a District contract in accordance with the requirements of subsection 40A-7.003(2), F.A.C., the District will notify the contractor that the Governing Board will determine whether the contractor should be placed on the District’s Temporary or Permanent Suspension List by mailing a Notice to Defaulting Contractor sent Certified U.S. Mail, return receipt requested. The Notice to Defaulting Contractor shall be mailed to the contractor at least 7 days prior to the Governing Board meeting.

Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History– New XX-XX-XX.

 

40A-7.004 Determination and Notice of a Contractor Suspension.

(1) Once the District has mailed a Notice to Defaulting Contractor to the contractor, the Governing Board shall determine whether the contractor should be suspended from doing business with the District, and if suspended, the duration of the suspension.

(2) The Governing Board shall consider the following when determining whether a contractor should be temporarily suspended from doing business with the District for a period of time of no more than 5 years:

(a) The material breach resulted in an adverse economic impact to the District of less than $50,000;

(b) The material breach resulted in a delay in the completion of a District project of less than 1 year;

(c) The contractor failed to perform in accordance with professional licensing standards and regulations;

(d) The contractor failed to comply with Florida public records laws;

(e) The material breach involved discrimination on the basis of race, color, creed, national origin, sex, age, or handicap;

(f) The material breach involved willful or gross misconduct;

(g) The District has terminated any other District contracts with the contractor due to the contractor’s material breach within the past 5 years;

(h) The material breach involved the commission of any act indicating a lack of business integrity or honesty; and,

(i) The material breach involved knowingly doing business with a suspended contractor.

(3) The Governing Board shall consider the following when making a determination whether a contractor should be permanently suspended from doing business with the District:

(a) The material breach resulted in an adverse economic impact to the District of $50,000 or more;

(b) The material breach resulted in a delay in the completion of a District project of 1 year or more;

(c) The material breach involved discrimination on the basis of race, color, creed, national origin, sex, age, or handicap;

(d) The contractor violated a District solicitation to ensure the fair award of District contracts, including price fixing between competitors, allocation of customers between competitors, and bid rigging; and,

(e) The material breach involved the commission of a criminal offense, including public entity crimes as defined in Section 287.133(1)(g), F.S.;

(4) The District shall mail to the contractor a Suspension Notice by Certified U.S. Mail, return receipt requested, upon the Governing Board’s determination that the contractor will not be suspended or has been temporarily or permanently suspended from doing business with the District. The Suspension Notice shall specify the basis for the Governing Board’s determination and the duration of any suspension. The Suspension Notice shall inform the contractor that its principals shall not do business with the District under a different name or form a new legal entity in order to do business with the District while the contractor remains on the Suspension List.

(5) Upon written request to the District, a contractor placed on the Temporary Suspension List will be reinstated at the conclusion of the contractor’s suspension period after reimbursing the District for all re-procurement costs.

(6) Contractors that are placed on the Permanent Suspension List will be permanently suspended from doing business with the District.

Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History– New XX-XX-XX.

 

40A-7.005 Administrative Hearings.

The Suspension Notice shall constitute final agency action subject to the provisions of Chapter 120, F.S.

Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History– New XX-XX-XX.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Megan Seward, Bureau Chief, Bureau of Performance and Compliance Improvement

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governing Board, Northwest Florida Water Management District

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 22, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 1, 2019