PURPOSE: This rule establishes the procedures 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

      MATT BLUNT (3/31/01)*

or principal employees as the ineligible person.

1. (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.
2. (C) Person. A person is any individual, corporation, partnership, association or legal entity, however organized.
3. (D) Principal. A principal is an officer, director, owner, partner, key employee or other person within a bidder with primary management or supervisory responsibilities.

1. (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 nonresponsibility 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, his/her financial condition, his/her ability to prosecute the work as bid and the quality of his/her work, including project superintendence and management, on previous projects for the Division of 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 contract again.
   3. (C) Upon receipt of notice of ineligibility, the bidder may request a hearing in front of the director or his/her designee. The hearing shall be informally conducted and shall provide the bidder or his/her 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 his/her final 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 final 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 contract. The final determination may affirm, reverse or modify the preliminary determination. 1 CSR 30-3

2. (4) Ineligibility. During the period of his/her ineligibility a bidder may not participate in any contract with the Division of 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 for 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 Design and Construction may be declared not responsible and ineligible to contract.
   3. (C) A determination of ineligibility shall 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 make the required showing, s/he shall continue to be ineligible until the required information is provided.

3. (5) Appeal. An ineligibility determination of the director shall be final. However, the bidder may request that the determination be reviewed by the commissioner of administration or his/her 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.

AUTHORITY: section 8.320, RSMo 1986.* Original rule filed July 14, 1989, effective Oct. 16, 1989. Original authority: 8.320,RSMo 1958, amended 1965.