PURPOSE: This rule establishes the proce - dures for determining contractor responsibility and eligibility for state contracts.

1. (1) The director shall have the authority to declare a bidder not responsible and eligible for contract award. The determination of nonresponsibility shall be made in accordance with the procedures set forth in this rule.

2. (2) Definitions.

   1. (A) Affiliate. Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or a third person controls or has the power to control both. Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees or a business entity organized following the determination of ineligibility of a person which has the same or similar management, ownership or principal employees as the ineligible person.
   2. (B) Bidder. A bidder is a person who submits a proposal for a construction contract in accordance with 1 CSR 30-3, or one who offers to or subcontracts to a person who submits a proposal for a construction contract.
   3. (C) Debarment means the disqualification of a contractor for a period of one (1) year and until reinstated under rules established by the director. A disbarred contractor will not be eligible to receive invitations for bids or requests for proposals or the award of any contract by Facilities Management Design and Construction (FMDC). Disbarment is also applicable to selection of consultants by the state and entry into a contract as a joint venture, contractor, subcontractor, or consultant or subconsultant on state projects. Reinstatement will only be permitted after having fully complied with the terms of the original disbarment.
   4. (D) Person. A person is defined as an individual, corporation, partnership, association or legal entity.
   5. (E) Principal. A principal is defined as an officer, director, owner, partner, key employee or other person within an organizational structure having the authority to obligate the bidder in a contractual relationship.

3. (3) Determination of Responsibility. The director shall make a preliminary determination that a bidder is not responsible and is ineligible to be awarded a contract in accordance with 1 CSR 30-3.040(2)(A).

   1. (A) A finding of non-responsibility shall be based on the contractor’s capability in all respects to fully perform the contract requirements, possession of integrity and reliability which will assure good faith performance, financial condition, ability to prosecute the work as bid and the past quality of their work, including project superintendence and management, on previous projects for the Division of Facilities Management, Design and Construction.
   2. (B) Notice of that finding shall be sent to the bidder by certified mail, return receipt requested. The notice shall contain a statement as to the factual basis for the bidder’s ineligibility, the length of the ineligibility and an explanation of what the bidder must do to be found eligible to again submit bids on contracts.
   3. (C) Upon receipt of notice of ineligibility, the bidder may request a hearing in front of the director or appointed designee. The hearing shall be informally conducted and shall provide the bidder or affiliates an opportunity to present any facts which may tend to show that the bidder is in fact responsible.
   4. (D) Any request for hearing must be postmarked within ten (10) consecutive calendar days of the date of receipt of the notice as evidenced by the return receipt.
   5. (E) The director shall render a determination within sixty (60) consecutive calendar days of the hearing. The determination shall be sent to all parties by certified mail, return receipt requested. The determination shall set forth the basis for the declaration of ineligibility, the length of ineligibility and the showing required for the bidder to once again be determined eligible to bid on contracts. The determination may affirm, reverse or modify the preliminary determination.

4. (4) Ineligibility. During the period of ineligibility a bidder may not participate in any contract with the Division of Facilities Management, Design and Construction. This restriction includes being a subcontractor or supplier to any eligible bidder, as well as submitting a bid in his/her own name.

   1. (A) If an ineligible bidder enters into any contract to perform work on a state project during the period of ineligibility, the director may issue a new determination of ineligibility, extending the time or changing the showing which the bidder must make to be determined eligible to perform work on future contracts.
   2. (B) Any eligible bidder who contracts with an ineligible bidder to provide labor or materials on a contract with the Division of Facilities Management, Design and Construction may be declared not responsible and ineligible to bid on future contracts.
   3. (C) A determination of ineligibility may extend to any affiliate of the bidder who had actual or constructive knowledge of the preliminary determination of ineligibility.
   4. (D) After the period of ineligibility has expired, the bidder may apply to the director to be declared eligible. The bidder must make that showing which was set forth in the final determination of ineligibility. If the bidder applies for reinstatement but is unable to demonstrate business and financial competency to the director they shall continue to be Design and Construction

ineligible until the required information is provided. (5) Appeal. The bidder may request that the director’s determination be reviewed by the commissioner of administration or appointed designee.

1. (A) Any request for review must be in writing and be filed with the commissioner within fourteen (14) consecutive calendar days of the date of receipt of the final determination as evidenced by the return receipt. The request must set forth specific reasons why relief should be granted.
2. (B) A review under this section shall be based solely on the documentation submitted by both the bidder and the director. No new hearing shall be provided. The commissioner may set aside a determination only if it is found to be an abuse of discretion.
3. (C) The commissioner’s determination shall be issued within sixty (60) consecutive calendar days of the date of the request for review and shall be mailed to all parties.

1. (6) Debarment. If the director believes that cause exists to suspend or debar a contractor, the director shall notify the contractor in writing of such basis or cause. The decision of the director regarding debarment is not a “contested case” as it is defined in Chapter 536, RSMo.

   1. (A) The division director may impose debarment on a company or firm and their named principals for any or a combination of the following reasons:

      1. 1. Commission of a fraud or criminal

offense related to obtaining or performing a government contract;

1. 2. Violation of antitrust statutes;
2. 3. Commission of embezzlement, theft,

forgery, making false statements, or tax evasion;

1. 4. Commission of any other offense

indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of the contractor;

1. 5. Debarment of the contractor by

another state, the federal government, another entity of the state of Missouri, or by a political subdivision of the state of Missouri; or

1. 6. Violations of material contract provi-

sions, which include but are not limited to failure to perform or negligent performance of any term or standard of one or more contracts. The failure to perform caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment. AUTHORITY: section 8.320, RSMo 2000.* Original rule filed July 14, 1989, effective Oct. 16, 1989. Rescinded and readopted: Filed Nov. 5, 2007, effective June 30, 2008.

*Original authority: 8.320,RSMo 1958, amended 1965.