Policy, Definitions, Notice to Defaulting Contractor, Factors to Determine Whether a Contractor Should be Placed on the Temporary or Permanent Suspension List
Southwest Florida Water Management District
RULE NOS.:RULE TITLES:
40D-7.001Policy
40D-7.002Definitions
40D-7.003Notice to Defaulting Contractor
40D-7.004Factors to Determine Whether a Contractor Should be Placed on the Temporary or Permanent Suspension List
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 40, No. 167, August 27, 2014 issue of the Florida Administrative Register.
40D-7.001 Policy.
(1) No change.
(2) The District's objective in enacting this chapter is to serve as a good stewards 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 evidence that the contractor has materially breached its contract with the District and the factors provided in this chapter. The Governing Board may elect not to take action.
(4) No change.
Rulemaking Authority 373.610 FS. Law Implemented 373.610 FS. History–New________.
40D-7.002 Definitions.
When used in this chapter:
(1) through (2) No change.
(3) “Material breach” means any non-performance that is not legally excusable. The breach is either failing to perform an act that is an important part of the transaction or performing an act that is inconsistent with the terms and conditions of the contract.
(3)(4) “Notice to Defaulting Contractor” means a written notification from the District to a contractor that materially breached a contract with the District 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)(5) “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)(6) “Principal(s)” means a sole proprietor, partner, owner, officer, or director of the contractor that materially breached a District contract.
(6)(7) “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 contractor materially failed to perform in accordance with the District contract.
(7)(8) “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 advising 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)(9) “Suspension List” means a list of contractors maintained by the District that are temporarily or permanently suspended from doing business with the District.
(9)(10) “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________.
40D-7.003 Determination and Notice of a Material Breach of a Contract with the District Notice to Defaulting Contractor.
(1) For the purposes of this chapter, Tthe Procurement Manager, or subsequently titled position, shall
determine, in consultation with the District’s Executive Director and General Counsel, whether a contractor has that materially breached a contract with the District will be referred to the Governing Board based on the factors listed in subsection 40D-7.004(2).
(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 Subsection 287.133(1)(g), F.S.;
(i) The commission of any act indicating a lack of business integrity or honesty; and,
(j) The contractor knowingly doing business with a suspended contractor.
(3)(2) Upon determining that a contractor materially breached a District contract in accordance with the requirements of subsection 40D-7.003(2), F.A.C., the District will If it is determined one of the factors listed in subsection 40D-7.004(2) is implicated, the District shall 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 forwarding a Notice to Defaulting Contractor sent Certified U.S. Mail, return receipt requested. The Notice to Defaulting Contractor shall be provided 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________.
40D-7.004 Determination and Notice of Factors to Determine Whether a Contractor Should be Placed on the Temporary or Permanent Suspension List.
(1) Once the District has sent 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. The Governing Board shall base its decision on a consideration of the factors below.
(2) The Governing Board shall consider the following The factors to be considered when determining making a determination whether to refer a contractor to the Governing Board and whether a contractor should be temporarily suspended from doing business with the District for a period of time no more than 5 years in accordance with Section (1) above are if:
(a) The material breach resulted in an adverse economic impact to the District of less than $50,000;
(b) The contractor failed to pay re-procurement costs in a timely manner;
(b)(c) The material breach resulted in, or will result in, a substantial delay in the completion of a District project of less than 1 year;
(d) The material breach impacted, or will impact, the District in meeting a legislative deadline;
(e) The material breach impacted, or will impact, the District in meeting its contractual obligations with another entity;
(f) The contractor violated the Local Government Prompt Payment Act;
(c)(g) The contractor failed to perform in accordance with professional licensing standards and regulations;
(d)(h) The contractor failed to comply with Florida public records laws;
(e)(i) The material breach involved discrimination on the basis of race, color, creed, national origin, sex, age, or handicap;
(j) The contractor violated 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;
(f)(k) The material breach involved willful or gross misconduct;
(g)(l) The District in the past five years has terminated a District contract with the contractor due to the contractor’s material breach within the past 5 years;
(m) The material breach resulted in property damage, personal injury, or death;
(n) The material breach involved the commission of a criminal offense, including public entity crimes as defined in Subsection 287.133(1)(g), F.S.;
(h)(o) The material breach involved the commission of any act indicating a lack of business integrity or honesty; and,
(i)(p) The material breach involved knowingly doing business with a suspended contractor.
(q) The contractor was on another Federal or State suspension or debarment list at the time it breached its current contract with the District.
(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 Subsection 287.133(1)(g), F.S.;
(4)(3) The District shall issue 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 factors provided in subsection 40D-7.004(2) upon which the determination by the Governing Board was based basis for the Governing Board’s determination and the duration of any suspension. The 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)(4) Upon written request to the District a 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 shall reimburse the District all re-procurement costs prior to being removed from the Suspension List.
(6)(5) 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________.
