Subject 665-2-11 MISCELLANEOUS PROVISIONS
| (1) |
The offeror may
designate documents or records as proprietary or a trade secret however this
may not prevent disclosure under the Georgia Open Records Act (O.C.G.A.
50-18-70et seq.). Only documents or records meeting the criteria for
an exemption of the Georgia Open Records Act can be kept from disclosure by GTA
pursuant to a valid Open Records Request. Documents or records that the offeror
does not wish disclosed must be identified on each page in boldface at the top
and bottom as "CONFIDENTIAL," along with a cite as to the relevant legal
authority exempting the materials from disclosure. Cost information shall not
be deemed confidential. Offerors are put on notice that the mere identification
and citing of relevant authority may not obviate a disclosure under the Georgia
Open Records Act. |
| (2) |
To promote
maximum competition and to protect the public competitive procedure from being
used to obtain information that would normally not be available otherwise, the
agency that issued the solicitation document may maintain the confidentiality
of trade secrets, and other procurement materials, and like information as the
CIO or his designee or the agency's executive officer or his designee may
determine necessary to ensure the integrity of the public purchasing
process. |
Purchase contracts may provide for payment over a period of
time. Such instances shall carry written prior approval of the administrative
head of the agency. Administrative heads and governing board of agencies shall
see that statutory or other prohibitions are not violated. The intended plan of
payment shall be included in the procurement document.
The state's contracts shall not be assigned. In cases where
contractors are involved in corporate consolidations, acquisitions, or mergers;
the agency that issued the solicitation document resulting in the contract may
negotiate agreements for the transfer of contractual obligations and the
continuance of contracts within the framework of the new corporate
structures.
Every reasonable effort shall be made to avoid making
purchases from or through employees of any agency. Prior written approval from
the CIO or his designee is required before doing business with such personnel.
In deciding whether to grant approval, the CIO or his designee shall consider
the type of item or service needed, the prevailing market conditions, whether
competition is available, the cost involved, and the effects of doing business
with the employee. All such purchases must comply with all statutory
requirements governing such transactions.
In instances of identical offers, or where there are
otherwise indications of collusion, awards may be made in a manner intended to
discourage or prevent its continuance as deemed to represent the state's best
interest. The agency that issued the solicitation documents shall report
suspected antitrust violations to appropriate law enforcement
authorities.
| (1) |
Where an agency or GTA is a participant
in a cooperative project with another governmental entity or with a
not-for-profit organization, goods and services necessary to the project shall
be acquired according to rules in this Chapter. However, if the interest of the
state would be better served by one of the following acquisition methods, the
CIO or his designee may authorize that acquisition method to be used:
| (a) |
by making or authorizing acquisition on
behalf of such governmental entity or not-for-profit organization; or |
| (b) |
by authorizing acquisition on the state's
behalf under the provisions of another state or another governmental entity, or
not-for-profit organization or consortium. |
|
| (2) |
For the purposes of this Chapter, such
governmental entity or not-for-profit organization or consortium may be based
in Georgia or in any other state. |
This Protest Procedure ("Procedure") is the sole and
exclusive administrative procedure for protests, challenges or other claims
against any aspect of any procurement or procurement processes of the
GTA.
| (a) |
Filing.
| 1. |
An Interested Party is the only party that
may file a Protest under this Procedure. |
| 2. |
All Protests, and any subsequent pleadings,
correspondence, or other communications with respect to such Protest, must be
filed in writing, with a signed original and three (3) copies delivered to the
Contracting Officer on a Business Day, between the hours of 9:00 a.m. and 5:00
p.m. local time, at the same address shown for filing the Solicitation Response
in the Solicitation Document that is the subject of the Protest. The filing or
copying of any pleadings, correspondence or other communications with respect
to a Protest with any GTA official other than the appropriate Contracting
Officer shall subject the Protest to summary dismissal in accordance with Rule
665-2-11-.07(e). |
| 3. |
All Protests
must be received by the Contracting Officer no later than 5:00 p.m. local time
on the last day that such Protest may be filed with respect to a particular
Solicitation Document in accordance with this Procedure. Protests may be filed
only by hand delivery, U.S. mail or commercial carrier. Protests received by
email or fax will not be considered. |
| 4. |
Failure to timely file the Protest in
accordance with Rule 665-2-11-.07(a), or any supporting documents that are
required to be filed as a part of the Protest under Rule 665-2-11-.07(b)3.,
will result in the Protest being deemed untimely and subject to summary
dismissal pursuant to Rule 665-2-11-.07(e). Protests will be date/ time stamped
by the GTA, and timeliness will be determined solely by the GTA with reference
to such date/time stamp. |
| 5. |
Upon
receipt of a Protest, the Protest Coordinator shall review the Protest for
compliance with the procedures and requirements set forth within this Rule, the
applicable Solicitation Document, and with the specific requirements set forth
in Rule 665-2-11-.07(b). Protests that fail to comply with any mandatory item
in that rule shall subject the Protest to summary dismissal in accordance with
Rule 665-2-11-.07(e). Upon receipt of any subsequent pleadings, correspondence
or other communications with respect to a Protest that are permitted by this
Rule or requested by the Protest Decision maker from the Protestor, the
Contracting Officer will forward such materials as expeditiously as possible to
the appropriate Protest Decision maker for the Protest. Upon receipt of any
subsequent pleadings, correspondence or other communications with respect to a
Protest that are not permitted by this Procedure, Rule
665-1-2-.04, or requested by the
Protest Decision maker from the Protestor, the Contracting Officer will forward
such materials as expeditiously as possible to the appropriate Protest
Coordinator for disposition under Rule 665-2-11-.07(e). |
|
| (b) |
Form of the Protest.
| 1. |
All Protests must be filed in an envelope
labeled "PROTEST," which identifies the Protestor's name and address, the name
of the GTA Contracting Officer, the GTA title assigned to the procurement, and
the applicable solicitation or contract numbers. |
| 2. |
Protests must be on the Protestor's
letterhead and shall not exceed ten (10) pages in length (including all
attachments and exhibits thereto that contain any written pleadings or
argument, but excluding supporting documentation under Rule 665-2-11-.07(b).3).
Each page shall have print on only one side of the page with margins no smaller
than one inch (1"). The font size shall be no smaller than Courier 10
characters per inch, 12 point (or equivalent). |
| 3. |
Any supporting documentation that is cited
or specifically referenced in the Protest, whether or not it is not already in
the possession of the GTA (including copies of any Solicitation Documents),
must be filed simultaneously with the Protest. |
| 4. |
Each Protest shall contain the following
mandatory information:
| (i) |
Protestor's name,
address, telephone number, facsimile number and e-mail address. |
| (ii) |
A signed and notarized affidavit of the
Protestor's chief executive officer or the Protestor's legal counsel, given
under oath and expressly stating that it is given under penalty of perjury,
that the contents of the Protest are true and correct and that the filing of
the Protest is authorized by the Protestor's chief executive officer.
|
| (iii) |
The signature of the
Protestor's chief executive officer or the Protestor's legal counsel, whichever
is signing the Protest for or on behalf of the Protestor, notarized separately
from, and in addition to, the notarized affidavit under Rule 665-2-11-.07(e)4. (ii). |
| (iv) |
The specific title
assigned by the GTA to the procurement and to the specific Solicitation
Document that is the subject of the Protest, and all associated GTA
solicitation or contract numbers, must be clearly shown on each page of the
Protest. |
| (v) |
A specific detailed
statement of all legal and factual grounds relied upon by the Protestor in
filing its Protest. Any grounds not included in the Protest that the Protestor
could have raised when the Protest was filed will be deemed irrevocably waive d
and may not be part of, or grounds for, that or any subsequent Protest or other
legal action filed by Protestor. |
| (vi) |
Information in the form of signed
affidavits or supporting documentation sufficient to show that the Protestor
qualifies as an Interested Party for the procurement with respect to which such
Protest is filed. |
| (vii) |
Evidence
that the filing of the Protest is timely along with all supporting
documentation. |
| (viii) |
A specific
statement of the form and nature of the relief requested by Protestor.
|
|
| 5. |
The Protestor's
failure to include in its Protest all of the mandatory items specified in Rule
665-2-11-.07(b) shall subject the Protest to summary dismissal in accordance
with Rule 665-2-11-.07(e). |
|
| (c) |
Time for Filing.
| 1. |
Protestors challenging any aspect of a
particular procurement with respect to any matter or event first occurring on
or before the Solicitation Response Date of a particular Solicitation Document,
including, without limitation, any aspect of such particular Solicitation
Document, shall file their Protest within five (5) Business Days of when the
basis for the Protest is known or should have been known to the Protestor
(whichever is earlier) but in no event later than the Solicitation Response
Date for such Solicitation Document. Any Protest by the Protestor with respect
to any matter or event first occurring on or before the Solicitation Response
Date, including any aspect of the procurement process or the Solicitation
Documents issued or occurring prior thereto, must be made within the time frame
set forth in Rule 665-2-11-.07(c)1. or will be deemed irrevocably waived and
may not be part of, or grounds for, any subsequent Protest or other legal
action filed by Protestor. For purposes of this Procedure, Interested Parties
shall be deemed to have knowledge of the form and contents of any Solicitation
Document at the time that such Solicitation Document is first posted to the
Georgia Procurement Registry website or otherwise put on public notice in
accordance with the Rules of the GTA. |
| 2. |
Protestors challenging any aspect of a
particular procurement with respect to any matter or event first occurring
after the Solicitation Response Date with respect to the particular
Solicitation Document and on or prior to the Solicitation Decision Date with
respect to such Solicitation Document, including the Contract Award or any
other decision issued by the GTA with respect to such procurement during such
period of time, shall file their Protest within five (5) Business Days of when
the basis for the Protest is known or should have been known to Protestor
(whichever is earlier) but in no event later than five (5) Business Days after
the Solicitation Decision Date. Any Protest by the Protestor with respect to
any matter or event first occurring after the Solicitation Response Date with
respect to the particular Solicitation Document and on or prior to the
Solicitation Decision Date with respect to such Solicitation Document,
including any aspect of the procurement process occurring during such period of
time in the procurement with respect to which the Protest is filed, must be
made within the time frame set forth in Rule 665-2-11-.07(c)2. or will be
deemed irrevocably waived and may not be part of, or grounds for, any
subsequent Protest or legal action filed by Protestor. |
| 3. |
Protests not filed in accordance with the
deadlines set forth in Rule 665-2-11-.07(c) shall be deemed untimely and
subject to summary dismissal pursuant to Rule 665-2-11-.07(e). |
|
| (d) |
Protest Decision maker.
| 1. |
Except as specifically set forth in Rule
665-2-11-.07(d)2. or Rule 665-2-11-.07(d)3., all Protests shall be decided by
the GTA Agency Decisionmaker as the Protest Decisionmaker who is authorized by
the Executive Director to resolve or rule on any Protest. The Agency
Decisionmaker's actions, decisions and orders in such capacity as Protest
Decisionmaker shall be deemed to be on behalf of the Executive Director and
effective as though taken by the Executive Director. |
| 2. |
At the sole and exclusive discretion of the
Procurement Director exercised at any time prior to the appointment of a Third
Party Hearing Officer or the issuance of a decision with respect to a Protest,
the Procurement Director may request that the Executive Director appoint a
Protest Panel to recommend a resolution or ruling on any Protest in accordance
with Rule 665-2-11-.07(i)4. Upon any such appointment of a Protest Panel by the
Executive Director, the Protest Panel's actions, decisions and orders in such
capacity as Protest Decisionmaker shall be deemed to be on behalf of the
Executive Director and effective as though taken by the Executive Director,
subject, however, to Rule 665-2-11-.07(i)4. Upon the request for and
appointment of a Protest Panel with respect to a particular Protest, such
appointment of a Protest Panel with respect to such Protest shall be
irrevocable and the Agency Decisionmaker shall not thereafter be entitled to
rule singly or to request the appointment of a Third Party Hearing Officer
under Rule 665-2-11-.07(d)3. with respect to such Protest. |
| 3. |
At the sole and exclusive discretion of the
Procurement Director exercised at any time prior to the appointment of a
Protest Panel or the issuance of a decision with respect to a Protest, the
Procurement Director may request that the Executive Director appoint a Third
Party Hearing Officer to recommend a resolution or ruling on any Protest in
accordance with Rule 665-2-11-.07(i)4. Upon such appointment of a Third Party
Hearing Officer by the Executive Director, the Third Party Hearing Officer's
actions, decisions and orders in such capacity as Protest Decisionmaker shall
be deemed to be on behalf of the Executive Director and effective as though
taken by the Executive Director, subject, however, to Rule 665-2-11-.07(i)4. Upon the request for and appointment of a Third Party Hearing Officer with
respect to a particular Protest, such appointment of a Third Party Hearing
Officer with respect to such Protest shall be irrevocable and the Agency
Decisionmaker shall not thereafter be entitled to rule singly or to request the
appointment of a Protest Panel under Rule 665-2-11-.07(d)2. with respect to
such Protest. |
|
| (e) |
Summary Dismissal: The Protest Coordinator, at any time prior to forwarding the
Protest to the Protest Decisionmaker, or the Protest Decisionmaker at any time
thereafter, may, in their sole discretion, summarily dismiss any Protest
failing to comply with any aspect of this Procedure or any aspect of the
applicable Solicitation Documents issued by the GTA. The Protestor will be
notified in writing by facsimile transmission or electronic means, with the
original to follow by United States Mail, of the summary dismissal of their
Protest. |
| (f) |
Determination that a
Protest is a Frivolous Protest.
| 1. |
The Protest
Coordinator shall review the Protest to determine whether, in the Protest
Coordinator's sole discretion, the Protest meets the definition of a Frivolous
Protest. If the Protest Coordinator does not make such review, or after such
review either does not determine or declines to determine that the Protest is a
Frivolous Protest, the Protest Decisionmaker shall render a decision on the
Protest in accordance with Rule 665-2-11-.07(g). |
| 2. |
If, after review, the Protest Coordinator
determines that the Protest is a Frivolous Protest, the Protest Coordinator
will notify the Protestor in writing by facsimile transmission or electronic
means, with the original to follow by United States Mail, of such
determination. |
| 3. |
The Protestor
shall have five (5) Business Days from the date the Protest Coordinator issues
the facsimile or electronic notification under Rule 665-2-11-.07(f)2. in which
to deliver to the Protest Coordinator the Protestor's written election to
proceed with the Protest. Such notice of an election to proceed may be filed
with the Protest Coordinator only by hand delivery, U.S. mail or commercial
carrier, and notices received by email or fax will not be valid. Failure to
notify the Protest Coordinator prior to 5 p.m. on the fifth (5th) Business Day
in accordance with the foregoing, or, if applicable, to simultaneously file the
bond required by Rule 665-2-11-.07(f)4., shall be deemed a withdrawal of the
Protest. Protestor's written election to proceed with the Protest will be
date/time stamped by the GTA, and timeliness will be determine d solely by the
GTA with reference to such date/time stamp. |
| 4. |
Any Protestor who has filed at least two
(2) Protests with GTA that are determined by the Protest Coordinator or the
Protest Decisionmaker to be Frivolous Protests and were not subsequently
withdrawn by the Protestor shall be required by the GTA or the Protest
Decisionmaker to file a bond, in accordance with this provision, as a condition
precedent to any other Frivolous Protest proceeding through the provisions
contained in Rule 665-2-11-.07 to a final determination. In the event a bond is
required, and the Protestor decides to proceed with the Protest, the Protestor
must file with the Executive Director, simultaneously with the Protestor's
notice to the Protest Coordinator of its election to proceed with the Protest
in accordance with Rule 665-2-11-.07(f)3., either a cash bond or a surety bond
executed by the Protestor as the principal and by a surety company qualified
and authorized to issue bonds and do business in the State of Georgia.
| (i) |
The bond shall be payable to the GTA and
in an amount equal to:
| (I) |
For any Protest
filed prior to Contract Award, ten percent (10%) of the Estimated Contract
Value, or |
| (II) |
For any Protest
filed after Contract Award, ten percent (10%) of the Contract Value. |
|
| (ii) |
The bond shall be for an
indeterminate period to cover the duration of the Protest and conditioned to
provide indemnification for the direct and consequential costs, damages and
expenses arising out of the filing, including, but not limited to:
| (I) |
Any costs, damages and expenses to the
GTA from the processing of the Protest, |
| (II) |
Any costs, damages and expenses to the
GTA or any Agency of delaying the Contract Award, and |
| (III) |
All costs and expenses of related
litigation, including attorney's fees incurred by the GTA in connection with
the Protest and any such related litigation. |
|
|
| 5. |
In the event that the final decision on the
Protest issued by the Protest Decisionmaker includes a finding that the Protest
was a Frivolous Protest or if the Protest is denied, the GTA shall have the
right to recover on the bond for the costs, damages and expenses set forth in
Rule 665-2-11-.07(f)4. or the amount of the bond, whichever is less. The
bonding company shall pay immediately upon receipt of written notification from
the GTA of any final decision rendered by the Protest Decisionmaker that the
Protest was a Frivolous Protest or that the Protest is denied or, if such
decision rendered by the Protest Decisionmaker is appealed, upon receipt of
written notification from the GTA of any final order or judgment of any court
having jurisdiction affirming such decision. After payment in full to the GTA
of all of the costs, damages and expenses set forth in Rule 665-2-11-.07(f)4.,
any remaining balance of the bond will be discharged, but if the bond is
insufficient to discharge in full all such costs, damages and expenses, GTA
shall retain the right to recover any amount not covered by the bond from the
Protestor. In the event the Protest is sustained or is found not to be a
Frivolous Protest, the bond shall be returned to the Protestor. |
| 6. |
The Procurement Director or the Procurement
Director's designee shall keep a log of all Frivolous Protests that are not
withdrawn in accordance with Rule 665-2-11-.07(f)3. However, if any court of
competent jurisdiction, in a final nonappealable order, overturns the Protest
Decisionmaker's final determination that a Protest was a Frivolous Protest,
such Protest shall not be considered a Frivolous Protest for purposes of this
Rule 665-2-11-.07(f)4. |
|
| (g) |
Time for Decision by Protest
Decisionmaker: Protests that are not either summarily dismissed or withdrawn
(or deemed withdrawn) shall be forwarded by the Protest Coordinator as
expeditiously as possible after the end of the review period referred to in
Rule 665-2-11-.07(f)1. to the Protest Decisionmaker for a decision. The Protest
Decisionmaker shall issue a decision as expeditiously as possible after the
later to occur of:
| 1. |
Thirty (30) Business
Days from the day the Protest is forwarded to the Protest Decisionmaker
pursuant to Rule 665-2-11-.07(g), or |
| 2. |
The receipt of any requested information
from the Contracting Officer, the Protestor or any other party who has relevant
information that the Protest Decisionmaker deems necessary in order to render
its decision on the Protest. |
|
| (h) |
Protest Decisionmaker's Investigation.
| 1. |
The Protest Decisionmaker may request or
permit submission of additional statements or documentation from the
Contracting Officer, as the Protest Decisionmaker deems necessary in its sole
discretion. |
| 2. |
The Protest
Decisionmaker may make a reasonable investigation and is authorized to request
any information or documentation it deems necessary in order to render a
decision on the Protest. |
|
| (i) |
Protest Adjudication Procedures.
| 1. |
The Protest Decisionmaker, in its sole
discretion, may issue written questions to the Protestor on any issue the
Protest Decisionmaker deems necessary for its consideration of the Protest.
Such written questions may be issued in lieu of or in addition to a hearing.
Unless specifically required or permitted by this Procedure, or otherwise
specifically requested by the Protest Decisionmaker in writing to the
Protestor, the Protestor may not file any written pleading, motion or other
written documentation with the Contracting Officer or the Protest Decisionmaker
after Protestor's filing of the initial Protest. |
| 2. |
The Protest Decisionmaker, in its sole
discretion, either at the Protest Decisionmaker's own instance or upon the
Protestor's prior written request, may elect to conduct a hearing in connection
with the Protest. Any requests for a hearing must include a brief statement
demonstrating that the Protest Decisionmaker's decision will be aided by a
hearing. In the event that the Protest Decisionmaker schedules a hearing, the
notice of the hearing may set forth the scope of the hearing, including, but
not limited to, the issues to be addressed, the length of hearing and whether
documentary or testimonial evidence will be accepted. Alternatively, the
Protest Decisionmaker may conduct a pre-hearing conference concerning the
procedures to be followed at the hearing, what issues are under consideration
and a list of witnesses who may testify. The issues and evidence considered by
the Protest Decisionmaker are within the sole discretion of the Protest
Decisionmaker. |
| 3. |
The Protest
Decisionmaker shall have the discretion to review the Protest Coordinator's
determination that a Protest is a Frivolous Protest. If the Protest Coordinator
has not made a determination that a Protest is a Frivolous Protest, the Protest
Decisionmaker may determine that the Protest is a Frivolous Protest in
accordance with this Procedure. Subject to Rule 665-2-11-.07(i)4., the Protest
Decisionmaker may fashion any remedy the Protest Decisionmaker deems consistent
with the procurement process and the Solicitation Documents, including without
limitation,
| (i) |
Deny the Protest in whole or
in part, |
| (ii) |
Sustain the Protest
in whole or in part, or |
| (iii) |
Subject to Rule 665-2-11-.07(i)4., order the Contracting Officer to take any
measure consistent with the Protest Decisionmaker's remedy, including without
limitation,
| (I) |
Award the contract in
accordance with the Contracting Officer's original decision, |
| (II) |
Suspend Contract Award or other
Solicitation Decision and reevaluate the Solicitation Responses, |
| (III) |
Cancel the procurement or
solicitation, |
| (IV) |
Amend the
procurement, or |
| (V) |
Any other
remedy the Protest Decisionmaker determines is necessary to protect or maintain
the integrity of the GTA's procurement process. |
|
|
| 4. |
The decision of the Protest Decisionmaker
shall be final; provided, however, that if a Protest Panel or a Third Party
Hearing Officer is the Protest Decisionmaker, the Protest Panel or Third Party
Hearing Officer shall only be entitled to make a written recommendation to the
Executive Director containing the Protest Panel's or Third Party Hearing
Officer's proposed ruling on the Protest.
| (i) |
The Executive Director may:
| (I) |
Accept, modify
or reject the Protest Panel or Third Party Hearing Officer's recommendation in
whole or in part, |
| (II) |
Return the
matter to the Protest Panel or Third Party Hearing Officer with instruction,
or |
| (III) |
Make any other appropriate
disposition. |
|
| (ii) |
The
Executive Director's decision shall be deemed the final decision of the Protest
Decisionmaker and within the sole discretion of the Executive Director.
|
|
|
| (j) |
Stay of
Procurement During Protest: The Executive Director may order a stay in the
opening of a Solicitation Response or of the contract performance if the
Executive Director determines, in the Executive Director's sole discretion,
that a stay is in the best interest of the GTA, any affected Agency or the
State of Georgia. Should the Executive Director not stay contract performance
pending the resolution of any Protest to an actual Contract Award, the contract
shall be awarded on a contingent basis, subject to revocation, revision or
other adjustment or modification based on the final decision of the Protest
Decisionmaker in such Protest. |
| (k) |
Costs: A Protestor shall not be entitled to recover any costs incurred in
connection with the procurement process, the solicitation, the Protest, and/or
compliance or attempted compliance with this Rule, including preparation costs
or attorneys' fees. |
| (l) |
Governing
Law: The laws and regulations of the State of Georgia, without application of
its conflicts of laws principles, shall govern any action brought pursuant to
this Procedure. |
The provisions of O.C.G.A. § 45-10-1et
seq. strictly apply to these rules, to the actions of the GTA, and to
all parties participating under these Rules.
At its sole option and in the exercise of its sole
discretion, GTA may terminate a contract, in whole or in part, for any reason
with seven (7) days' written notice to the contractor ("Notice of Termination
for Convenience").
| (a) |
Notices of
Termination for Convenience will specify the extent of the termination and the
effective date. |
| (b) |
After receipt
of a Notice of Termination for Convenience, and except as otherwise directed by
GTA, the Contractor shall immediately proceed with the following obligations,
regardless of any delay in determining or adjusting any amounts due under this
section:
| 1. |
Stop work as specified in the
Notice of Termination for Convenience. |
| 2. |
Place no further subcontracts or orders
for materials, services or facilities, except as necessary to complete the
continuing portion of the contract. |
| 3. |
Terminate all subcontracts and orders to
the extent they relate to terminated work. |
| 4. |
Assign to GTA as directed by the
contracting offer, all rights, title, and interest of the contractor under the
subcontracts and orders terminated, in which case GTA may settle or pay
termination settlement proposal arising out of those terminations. |
| 5. |
Settle all outstanding liabilities and
termination settlement proposals arising from the termination of subcontracts
and orders. |
| 6. |
As directed by the
Contracting Officer, transfer title and deliver to GTA -
| (i) |
The fabricated or unfabricated parts,
work in process, completed work, supplies, and other material produced or
acquired for the work terminated; and |
| (ii) |
The completed or partially completed
plans, drawings, information, and other property that, if the contract had been
completed, would be required to be furnished to GTA. |
|
| 7. |
Complete performance of the work not
terminated. |
| 8. |
Take any action that
may be necessary or that the Contracting Officer may direct, for the protection
and preservation of the property related to the Contract that is in the
Contractor's possession and in which GTA has or may acquire an
interest. |
| 9. |
Use its best efforts
to sell, as directed or authorized by the Contracting Officer, any property of
the types referred to in subsection (f) of this section; provided, however that
the Contractor:
| (i) |
Is not required to extend
credit to any purchaser and |
| (ii) |
May acquire the property under the conditions prescribed by, and at prices
approved by, the Contracting Officer. The proceeds of any transfer or
disposition will be applied to reduce any payments to be made by GTA under the
contract, credited to the price or cost of the work, or paid in any other
manner directed by the Contracting Officer. |
|
| 10. |
Within seven (7) days after the effective
date of termination, the Contractor shall submit to the Contracting Officer a
written final termination settlement proposal in the form and with the
certification required by the Contracting Officer. The amount of the final
termination settlement proposal shall not exceed the total contract price as
reduced by (1) the amount of payments previously made and (2) the contract
price of work not terminated. |
| 11. |
The Contracting Officer and the Contractor may use the final termination
settlement proposal as the basis for negotiating an agreed upon whole amount to
be paid to the contractor because of the termination for convenience. |
| 12. |
If the Contracting Officer and Contractor
fail to reach agreement in the whole amount to be paid to the Contractor
because of the termination for convenience, the Contracting Officer shall pay
the Contractor the amounts determined as follows:
| (i) |
The total of -
| (I) |
The contract price for completed supplies
or services accepted by GTA not previously paid for; |
| (II) |
The costs incurred in the performance of
the work terminated, including initial costs and preparatory expenses
applicable thereto; |
| (III) |
The costs
of settling and paying termination settlement proposals under terminated
subcontractors or orders that are properly chargeable to the terminated portion
of the contract. |
|
| (ii) |
Less -
| (I) |
All unliquidated advance or other
payments to the contractor under the termination portion of the
Contract; |
| (II) |
The amount of any
devices which GTA has against the Contractor under the Contract; and |
| (III) |
The agreed price for, or the proceeds
of sale of, materials, supplies, or other items acquired by the Contractor or
sold under the provisions of the section and not recovered or credited to
GTA. |
|
|
| 13. |
Contractor may appeal the final termination amount paid, if such amount is not
a result upon which the Contracting Officer and the Contractor have agreed. Any
such appeal must comply with the requirements set forth in the regulations for
the resolution of disputes and claims. |
| 14. |
The GTA may terminate a Contract for
Convenience of the State, GTA or any Agency. |
|
| (1) |
Where an agency is a party to a contract
procured through GTA finds a contractor in default for failing to perform in
accordance with the contract requirements, terms or conditions, such agency may
take action, immediate if necessary, to purchase the needed goods or services
on the open market and charge any additional cost for the goods or services and
expense for doing so to the defaulting contractor, where such default results
in the creation of an emergency or pressing need as those terms are defined in
Rule
665-2-12-.02. If an agency finds a
contractor in default, such action and the circumstances shall be reported by
the agency to GTA in writing. This does not limit any other remedies that may
be available to the state or agency. |
| (2) |
GTA may initiate suspension and debarment
proceedings at the agency's request or upon GTA's own discretion in accordance
with Rule
665-2-11-.13. |
| (1) |
A bond, or other means of ensuring
faithful performance, may be required on the contractor at the contractor's
expense. |
| (2) |
Liquidated damages may
be provided for in the contract, as a means of ensuring faithful performance
from the contractor. |
| (3) |
The agency
may hold as a retainage a percentage of the contract value to be remitted upon
final acceptance by the agency. |
| (4) |
The agency may withhold final payment contingent on acceptance of the final
deliverable. |
| (5) |
Performance-based
payments may be utilized. |
| (a) |
Policy. Purchases shall be made from, and
contracts shall be awarded to responsible offerors in accordance with O.C.G.A.
§ 50-25-7.3(a)(6). Because it is important that the State strive for best
value, an award to an offeror is not required solely because that offeror
submits the lowest offer. As used throughout these Rules, the term "offeror"
refers to any entity that may respond to an Invitation for Bids, Request for
Proposals, or any other procurement solicitation document, by whatever name it
is called. |
| (b) |
General Standards.
| 1. |
A responsible offeror is one that GTA
believes has the capability in all respects to perform fully the contract
requirements and the business integrity to justify a public contract
award. |
| 2. |
Responsibility shall be
generally presumed. |
| 3. |
GTA may base
its belief that an Offeror is responsible on responses provided on the
offeror's "Statement of Responsibility Certification Form" (where such a form
is used) and/or based on an offeror's responses to the requirements of the
solicitation document. |
| 4. |
In order
for an offeror to be deemed non-responsible, the contracting officer must make
an affirmative determination of non-responsibility. |
| 5. |
GTA shall have the right to conduct
investigations and other forms of due diligence into any offeror's (or
potential offeror's) responsibility status at any time and for any reason. Such
due diligence may include investigations into one or more of the following
areas listed in Rule 665-2-11-.12(b)6 below. |
| 6. |
Areas affecting an offeror's
responsibility may include, but are not necessarily limited to one or more of
the following criteria:
| (i) |
adequacy of
financial resources. This may include, but is not limited to, the ability to
obtain required bonds and insurance from sureties and insurance companies
authorized to do business in Georgia. |
| (ii) |
satisfactory ability to comply with the
contract requirements, considering the firm's other business
obligations. |
| (iii) |
satisfactory
accounting and auditing procedures. |
| (iv) |
satisfactory technical
qualifications. |
| (v) |
satisfactory
experience; |
| (vi) |
adequacy of the
organization, material, equipment, facilities and personnel resources and
expertise necessary to carry out the work and meet required delivery or
performance schedules; |
| (vii) |
whether offeror is presently debarred or suspended from bidding or proposing by
any governmental entity; |
| (viii) |
whether offeror is presently proposed for debarment or suspension from bidding
or proposing by any governmental entity; |
| (ix) |
Whether offeror has within a three year
period preceding the present procurement been convicted of, or had a civil
judgment rendered against them for, commission of fraud or a criminal offense
in connection with obtaining, attempting to obtain, or performing a public
contract; violation of Federal or State antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property; |
| (x) |
Whether offeror is presently indicted for
or otherwise criminally or civilly charged by a governmental entity with
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public contract; violation of Federal or
State antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or
receiving stolen property. |
| (xi) |
Whether offeror has had a contract terminated for default in the last 3
years. |
| (xii) |
Whether offeror is
currently under investigation for any possible breach of contract, or fraud or
allegations of criminal activity related to the types of Services requested
within the subject procurement. |
| (xiii) |
satisfactory record of
performance. |
| (xiv) |
Whether offeror
has a satisfactory record of integrity and business ethics in any public or
private procurement. |
|
| 7. |
Failure of a firm to provide relevant information specifically requested by the
Contracting Officer may be grounds for a determination of
non-responsibility. |
|
| (c) |
Special Standards
| 1. |
When it is necessary for
a particular contract or class of contracts, the Contracting Officer shall
develop, with the assistance of appropriate specialists, special standards of
responsibility. Special standards may be particularly desirable when experience
has demonstrated that certain minimum experience or specialized facilities are
needed for adequate contract performance. |
| 2. |
The special standards shall be set forth
in the solicitation and shall apply to all offerors. |
|
| (d) |
Statement of Responsibility Certification
Form
| 1. |
GTA may create one or more
certification forms, known as "Statement of Responsibility Certification
Forms," to facilitate responsibility determinations. The contents of such forms
may be changed from time to time by GTA procurement staff, but must always be
consistent with this Rule 665-2-11-.12. Rule 665-2-11-.12 shall control in the
event of any conflict between the contents of such certification forms and the
Rule. |
| 2. |
Obligation to File
Certification Form. Where a solicitation document requires the submission of a
certification form, offerors are obligated to complete and file such
certification form at the time specified, and in the absence of a specific
deadline, with submission of offeror's bid/proposal. Offerors are further
obligated to provide updates to any information submitted, if the responses
change at any time prior to contract award. |
| 3. |
Subcontractors. Where appropriate, GTA may
require that an offeror's subcontractors complete and submit Statement of
Responsibility Certification Forms as pre-condition to contract award. In such
cases, GTA may require offerors to notify their subcontractors of their
obligation to complete and file a Statement of Responsibility Certification
Form. |
| 4. |
Failure to Submit
Information as Required: Consequences. Where an offeror fails or refuses to
submit the required information, the offeror shall be ineligible for contract
award in the subject procurement. False certification or information shall be
grounds for a non-responsibility determination; debarment; termination for
default; or, any combination thereof, |
| 5. |
Where a solicitation document requires the
submission of a certification form, failure to file a Statement of
Responsibility Certification Form shall be an amendable defect prior to
contract award. |
| 6. |
Use of the
Statement of Responsibility Certification Form in all procurements is not
required. |
|
| (e) |
Making a
Responsibility Determination.
| 1. |
The
Contracting Officer may use the following sources of information to support
determinations of responsibility or non-responsibility:
| (i) |
any governmental entity's listing of
debarred, suspended, or ineligible contractors; |
| (ii) |
records of evaluations of performance,
as well as verifiable knowledge of agency business, contracting or audit
personnel; |
| (iii) |
determinations of
violations of federal, state, or local law or executive order; |
| (iv) |
information supplied by the offeror,
including bid or proposal information, Statement of Responsibility
Certification Form replies, financial data, information on production
equipment, and personnel information; |
| (v) |
pre-award survey or information
reports; |
| (vi) |
personal knowledge of
the contracting officer; |
| (vii) |
other sources such as offeror references, publications, contractors,
subcontractors and customers of the offeror, financial institutions, other
government agencies, and business and trade associations; and |
| (viii) |
any other publicly available
information. |
|
| 2. |
A
Contracting Officer shall notify the offeror of unfavorable responsibility
information and provide the offeror an opportunity to submit additional
information or explanation before a final determination is made by the
Contracting Officer. |
|
| (f) |
Determination of Non-Responsibility Required.
| 1. |
If an offeror who otherwise would have
been awarded a contract is found non-responsible, a determination of
non-responsibility setting forth the reasons for the finding of
non-responsibility shall be prepared by the Contracting Officer. |
| 2. |
Notice to the non-responsible offeror
shall be mailed no later than two business days after the determination of
non-responsibility is made and must inform the contractor of the right to
contest the determination through the GTA Protest Procedure set forth in Rule
665-2-11-.07 within five (5)
business days of receipt. A copy of the determination of non-responsibility
should also be sent to the GTA Office of General Counsel (or its equivalent, by
whatever name it is known). |
| 3. |
The
determination of non-responsibility shall be included in the record of the
affected procurement. |
|
| (g) |
Protest of Non-Responsibility
Determination.
| 1. |
Any dispute of a
non-responsibility determination must be made via a Protest filed in strict
accordance with the provisions of Rule
665-2-11-.07. |
| 2. |
The protesting party shall have the burden
of proving by clear and convincing evidence that there is no rational basis for
the non-responsibility determination. |
|
| (h) |
Documentation. Documents reflecting the
Contracting Officer's determination of non-responsibility and any Protest and
decision with respect to such Protest, and evidence of having supplied written
notifications as required by these Rules, shall be included in the record of
the subject procurement. |
| (a) |
Grounds for Debarment.
| 1. |
Grounds for debarment include the
following acts or omissions on the part of the contractor or any of its
officers, directors, partners, five percent shareholders, principals, or other
person substantially involved in its activities:
| (i) |
conviction under any state or federal law
of any of the following:
| (I) |
a criminal
offense incident to obtaining, or attempting to obtain, or performing, a public
or private contract; |
| (II) |
fraud,
embezzlement, theft, bribery, forgery, falsification or destruction of records,
or receiving stolen property; |
| (III) |
a criminal violation of any state or federal antitrust law; |
| (IV) |
violation of the Racketeer Influence and
Corrupt Organization Act,
18
U.S.C. section 1961et seq.,
or the Mail Fraud Act,
18 U.S.C. section
1341et seq., for acts in
connection with the submission of bids or proposals for a public or private
contract; |
| (V) |
conspiracy to commit
any act or omission that would constitute grounds for conviction or liability
under any statute described in subparagraph (IV) above; or |
| (VI) |
an offense indicating a lack of business
integrity or business ethics that seriously and directly affects responsibility
as a contractor; |
|
| (ii) |
judgment of civil liability under any state or federal antitrust law for acts
or omissions in connection with the submission of bids or proposals for a
public or private contract, or in the performance of such a contract; |
| (iii) |
arrears on any debt or contract with
the State or without limitation, any of its departments, agencies, boards,
bureaus, commissions, or authorities; default as surety or otherwise upon any
obligation to the State or without limitation, any of its departments,
agencies, boards, bureaus, commissions, or authorities; or arrears for
taxes; |
| (iv) |
violation of contract
provisions, as set forth below:
| (I) |
failure
without good cause to perform in accordance with the specifications or within
the time limit provided in the contract, or |
| (II) |
unsatisfactory performance in connection
with the terms of one or more contracts; |
|
| (v) |
debarment by another governmental entity
or public authority; |
| (vi) |
damage or
destruction to State property; |
| (vii) |
making or causing to be made any false,
deceptive, or fraudulent material statement in any bid, proposal, or
application for State or other government work, or in the performance of such
work; |
| (viii) |
use of unauthorized
subcontractors under a contract where subcontractor authorization is
required; |
| (ix) |
refusal to cooperate
with reasonable requests of GTA, Department of Audits, or other State
inspectors or representatives with respect to work under the contract
provisions, plans, or specifications; |
| (x) |
improper conduct, including but not
limited to, intentional or grossly negligent billing irregularities, submitting
false or frivolous or exaggerated claims, falsification of documents or
records, willful destruction of documents or records the contractor had an
obligation to maintain, bribery, use of false or deceptive statements to obtain
some benefit, causing competition to be restrained or limited,
misrepresentation, falsely claiming to be a minority- or woman-owned or small
business, violation of ethical standards established by the State, and other
dishonesty incident to obtaining, prequalifying for, or performing any contract
or modification thereof; or |
| (xi) |
any other cause sufficiently serious and compelling that a reasonable person
would seriously doubt the capability of the contractor to perform State
procurement or service requirements. |
|
| 2. |
A contractor may also be debarred if:
| (i) |
it was founded or established, or
operates in a manner designed, to evade the application or defeat the purpose
of these Rules, or |
| (ii) |
it is a
successor, assignee, subsidiary, or affiliate of a debarred
contractor. |
|
| 3. |
Imputed
Conduct.
| (i) |
The fraudulent, criminal, or
other improper conduct of any officer, director, shareholder, partner,
employee, or other individual associated with a contractor may be imputed to
that contractor when the conduct occurred in connection with the individual's
performance of duties for or on behalf of the contractor or with the
contractor's knowledge, approval, or acquiescence. The contractor's acceptance
of the benefits derived from the conduct shall be evidence of such knowledge,
approval, or acquiescence. |
| (ii) |
The
fraudulent, criminal, or other improper conduct of a contractor may be imputed
to any officer, director, shareholder, partner, employee, or other individual
associated with that contractor who participated in, knew of, or had reason to
know of the contractor's conduct. |
| (iii) |
The fraudulent, criminal, or other
seriously improper conduct of one contractor participating in a joint venture
or similar arrangement may be imputed to the other participating contractors if
the conduct occurred for or on behalf of the joint venture or other similar
arrangement, or with the knowledge, approval, or acquiescence of these
contractors. Acceptance of the benefits derived from the conduct shall be
evidence of such knowledge, approval, or acquiescence. |
|
|
| (b) |
Procedure for Initiating
Debarment Proceedings
| 1. |
An Agency may
petition the GTA, requesting debarment proceedings be initiated as to any
contractor or potential contractor. Such petition must set forth the facts that
form the basis for the agency's belief that debarment is warranted. |
| 2. |
GTA may, without limitation, independently
initiate debarment proceedings as to any contractor or potential contractor.
GTA shall reduce to writing the facts that form the basis for its belief that
debarment is warranted. |
| 3. |
Debarment proceedings may be initiated at any time. |
| 4. |
The purpose of such debarment proceedings
shall be to determine whether a contractor should be barred from consideration
for the award of any procurement conducted under GTA's authority for a period
not to exceed three years. |
|
| (c) |
Suspension Prior to Possible Debarment
| 1. |
After consultation with the GTA or agency
procurement officer(s), and where practicable, the contractor who is to be
suspended, and upon written determination by the Procurement Director that
probable cause exists for debarment under these Rules, GTA may suspend a
contractor. |
| 2. |
A notice of
suspension including a copy of such determination shall be sent to the
suspended contractor. Such notice shall state that:
| (i) |
The suspension is for the period it takes
to complete an investigation into possible debarment but not for a period in
excess of 120 days. |
| (ii) |
Bids or
proposals will not be solicited from the suspended contractor, and, if they are
received, they will not be considered during the period of suspension;
and |
| (iii) |
If contractor chooses to
contest the suspension, Contractor must file a Protest of the suspension
through the GTA Protest Procedure set forth in Rule
665-2-11-.07 within five (5)
business days of receipt of the notice of suspension. In conjunction with any
such Protest, Contractor may also request a hearing in accordance with Rule
665-2-11-.07. |
|
| 3. |
A suspension of a contractor shall be
effective for no longer than 120 days, unless debarment proceedings have been
initiated by GTA within 120 days from the date of suspension. If proceedings
have been initiated within this time frame, then the suspension shall be
effective until the conclusion of the debarment proceedings. However, a delay
of a debarment proceeding that is caused by a suspended contractor shall be
deemed to be consent by that contractor to an extension of the suspension
beyond the 120 day maximum. The period of such extension shall be equal to the
period of such delay caused by the contractor. When an issue regarding delay is
raised by either party, the contractor shall bear the burden of demonstrating
that the delay was not caused by the contractor. |
| 4. |
Protest of Suspension.
| (i) |
Any dispute of a suspension must be made
via a Protest filed in strict accordance with the provisions of Rule
665-2-11-.07. |
| (ii) |
The protesting party shall have the
burden of proving by clear and convincing evidence that there is no rational
basis for the suspension. |
|
| 5. |
Effect of Decision. A contractor is
suspended upon issuance of the notice of suspension. The suspension shall
remain in effect during any Protest or appeals. The suspension may be ended by
the officer who issued the notice of suspension; by the GTA Executive Director;
or by a court of law; but, otherwise shall only be ended when the suspension
has been in effect for 120 days (unless a debarment proceeding has been delayed
by contractor pursuant to Rule 665-2-11-.13(c)3) or a debarment decision has
taken effect. |
|
| (d) |
Debarment Proceedings.
| 1. |
Written notice of
the proposed debarment action shall be sent by certified mail, return receipt
requested, to the contractor. This notice shall state that:
| (i) |
Debarment is being considered; |
| (ii) |
The allegations, reasons or factual
basis for the proposed debarment action; |
| (iii) |
If contractor chooses to contest the
proposed debarment, Contractor must file a Protest of the proposed debarment
through the GTA Protest Procedure set forth in Rule
665-2-11-.07 within five (5)
business days of receipt of the notice of proposed debarment. Such Protest must
contain an admission, denial, or other response to each stated allegation,
reason or factual basis for the proposed debarment. Any reason or basis not
addressed may be deemed admitted. In conjunction with any such Protest,
Contractor may also request a hearing in accordance with Rule
665-2-11-.07; |
| (iv) |
If the contractor so requests, a hearing
will be held; and, |
| (v) |
The
contractor may be represented by counsel. |
|
| 2. |
Authority of Protest Decisionmaker
conducting a Debarment Hearing. In addition to those powers set forth in Rule
665-2-11-.07, the Protest
Decisionmaker, in the conduct of any debarment hearing, has the power, among
others, to:
| (i) |
hold informal conferences to
settle, simplify, or fix the issues in a proceeding, or to consider other
matters that may aid in the expeditious disposition of the proceeding either by
consent of the parties or upon such officer's own motions; |
| (ii) |
Require parties to state their positions
with respect to the various issues in the proceedings; |
| (iii) |
Require parties to produce for
examination those relevant witnesses and documents under their
control; |
| (iv) |
Rule on motions and
other procedural items or matters pending before such officer; |
| (v) |
Regulate the course of the hearing and
the conduct of the participants therein; |
| (vi) |
Receive, rule on, exclude, or limit
evidence, and limit lines of questioning or testimony which are irrelevant,
immaterial, or unduly repetitious; |
| (vii) |
Fix time limits for submission of
written documents and matters before such officer; |
| (viii) |
Impose appropriate sanctions against
any party or person failing to obey an order under these procedures, which
sanctions may include, but are not limited to:
| (I) |
Refusing to allow the disobedient party
to support or oppose designated claims or defenses, or prohibiting that party
from introducing designated matters in evidence; |
| (II) |
Excluding all testimony of unresponsive
or evasive witnesses; and |
| (III) |
Expelling any party or person from further participation in the
hearing; |
|
| (ix) |
Take
official notice of any material fact not appearing in the record if such fact
is among the traditional matters of judicial notice; |
|
| 3. |
Debarment Hearing Procedures.
| (i) |
Hearings shall be as informal as may be
reasonable and appropriate under the circumstances and in accordance with
applicable due process requirements. The weight to be attached to evidence
presented in any particular form will be within the discretion of the Protest
Decisionmaker. Stipulations of fact agreed upon by the parties may be regarded
and used as evidence at the hearing. The parties may stipulate the testimony
that would be given by a witness if that witness were present. The Protest
Decisionmaker may require evidence in addition to that offered by the
parties. |
| (ii) |
The hearing may be
recorded but need not be transcribed except at the request and expense of the
contractor. A record of those present, identification of any written evidence,
copies of all written statements, and a summary of the hearing shall be
sufficient record. |
| (iii) |
Opening
and/or closing statements may be made unless a party waives this
right. |
|
| 4. |
At any time
before any debarment, the contractor and the petitioning agency (or GTA where
it is the initiating entity of the debarment proceedings) may propose a formal
or informal disposition agreement relating to the debarment, which if concurred
with by GTA, may be grounds for the termination of the debarment action. Such
proposed agreements may be conditioned upon the termination of the debarment
action. |
|
| (e) |
Debarment
Decisions.
| 1. |
The petitioning agency (or GTA
where it is the initiating entity of the debarment proceedings) shall have the
burden of proving by a preponderance of the evidence that there is sufficient
reason to debar the contractor. |
| 2. |
GTA may, in debarring a contractor, disqualify that contractor from: being
awarded a procurement; performing as a subcontractor; providing supplies for a
procurement; and/or, exercising a renewal option. GTA may impose such sanctions
upon the contractor's activities with a single agency or any combination of
agencies under GTA's statutory authority, and to a single type of procurement
or any combination of procurement types. In determining the scope or period of
a contractor's debarment, GTA may impose a time period and such conditions on
the contractor's GTA related procurement activities as it considers
appropriate, including, but not limited to, monitoring of the contractor's
future procurement activities through GTA procurements. |
| 3. |
A debarment decision shall take effect
upon issuance. After the debarment decision takes effect, the contractor shall
remain debarred until the debarment period specified in the decision expires or
until GTA is provided with information it deems sufficient to indicate that
contractor is rehabilitated and is likely to be a responsible bidder in
accordance with Rule
665-2-11-.14. |
| 4. |
At the time of debarment, or at any time
thereafter, GTA or any agency may exercise its right to terminate for
convenience an existing contract between that agency and the debarred
contractor, or may prohibit any modification, extension, or renewal of any such
contract. In such case, the contractor shall be entitled to receive and the
terminating agency shall be obligated to pay only payment for the work
performed until the point of termination. |
|
| (f) |
GTA List of Suspended and Debarred
Contractors. A list of contractors currently suspended or debarred, including a
summary of the scope of the suspension or debarment, shall be maintained by
GTA. This list shall include the following information:
| 1. |
the name of the contractor and its
principals, |
| 2. |
the name of the
agency that initiated the debarment proceeding, |
| 3. |
the effective date and scope of the
debarment or suspension, and |
| 4. |
the
termination date of the debarment. |
|
Offerors who have been debarred, may apply for a declaration
of rehabilitation where such offeror has taken affirmative actions to remedy
the facts or circumstances that lead to the debarment. Applications for a
declaration of rehabilitation shall be filed with GTA's Procurement Director in
accordance with this Rule. The decision to grant or deny such applications is
within the discretion of the Procurement Director, as long as there is a
rational basis for the decision. Decisions shall not be arbitrary or
capricious.
| (a) |
General Standards.
| 1. |
An application for a declaration of
rehabilitation may be made by any offeror who has been suspended or debarred by
GTA, if such offeror has either declined to protest or exhausted the processes
set forth in Rule
665-2-11-.13. |
| 2. |
A declaration of rehabilitation will not
result in the expungement of the existing record documenting the suspension or
debarment. A copy of the decision granting the requested declaration or denying
the application shall be appended to the appropriate underlying
records. |
| 3. |
In instances where an
offeror has been debarred, the restrictions and scope of the debarment decision
shall remain in full effect until the debarment time limit has expired, UNLESS
the Procurement Director renders a decision granting the application for
declaration of rehabilitation effective earlier than the original debarment
time limit. |
|
| (b) |
Time for
Filing Application for Declaration of Rehabilitation.
| 1. |
The submission of an application for a
declaration of rehabilitation shall not toll any time limits set forth for
filing a Protest. If an offeror or contractor files a Protest, no application
for a declaration of rehabilitation may be filed prior to the issuance by GTA
of a final decision of the Protest or the withdrawal or abandonment of the
Protest. |
| 2. |
Debarred offerors may
not file an application for a declaration of rehabilitation until 12 months
have passed from the effective date of the debarment, or until the debarment
time limit has expired, whichever is earlier. Furthermore, debarred offerors
must wait at least twelve (12) months after a decision by the Procurement
Director denying an application for a declaration of rehabilitation or until
the expiration of the debarment time limit, whichever is earlier, before
submitting another application for rehabilitation, unless the Procurement
Director's decision expressly allows otherwise. |
|
| (c) |
Form and Content of Application. To apply
for a declaration of rehabilitation, an offeror or contractor must submit a
written filing to the Procurement Director in support of such application. The
filing in support of the rehabilitation application shall state how the
applicant has demonstrated its responsibility for future procurement awards,
and shall:
| 1. |
demonstrate that the issues
leading to the debarment have been remedied by the applicant, and/or |
| 2. |
to the extent that appropriate remedies or
corrective action(s) require the agreement of GTA or a particular procuring
agency, set forth the agreement of the applicant to implement such remedies or
corrective actions should a declaration of rehabilitation by the Procurement
Director so require. |
|
| (d) |
Remedies. Remedies or corrective actions may include, but are not limited to:
| 1. |
retaining an auditor, monitor, technical
consultant or independent private sector inspector general to review the
applicant's business practices, oversee its performance and/or develop specific
remedies with respect to the subject matter of the debarment; |
| 2. |
ownership changes and/or reorganizations
of the legal structure of the applicant in a manner that appropriately remedies
the issues raised in the debarment; |
| 3. |
dismissing employees whose actions were
the subject matter of the debarment; |
| 4. |
entering into voluntary agreements with
the GTA or other state entity prescribing corrective actions and/or otherwise
appropriately remedying the subject matter of the debarment; |
| 5. |
resolving judicial or administrative
proceedings that were the subject matter of the debarment under terms
demonstrating that such concerns have been appropriately remedied; or |
| 6. |
engaging in any other lawful action
leading to resolution of the issues that were the subject matter of the
debarment, or demonstrating that any negative information that lead to the
debarment has been appropriately remedied. |
|
| (e) |
Notice to Agencies. The applicant shall
concurrently provide a copy of its application for rehabilitation to the GTA,
and to the Contracting Officer (or equivalent or higher position) of any agency
that requested debarment proceedings be initiated against the
contractor. |
| (f) |
GTA Procurement
Director Decision. The Procurement Director shall review the application and
shall consult with all agencies copied in accordance with subparagraph (e)
above, and may consult with any other relevant government agency, prior to
making a final decision concerning the application for a declaration of
rehabilitation. The Procurement Director may seek additional information from
the applicant. Upon review of the application and any subsequent submission by
the applicant, the Procurement Director shall issue a decision granting or
denying the application for declaration of rehabilitation based upon the
adequacy of the remedies or corrective actions identified by the applicant, as
well as its overall capacity to be a responsible contractor. The Procurement
Director may condition any declaration of rehabilitation upon the applicant's
completion of specific additional corrective actions. The Procurement
Director's decision granting or denying the application for declaration of
rehabilitation shall be final and is not subject to Protest or any other form
of administrative review. |
| (g) |
Notification of Decision. A copy of the Procurement Director's decision
granting or denying the application for declaration of rehabilitation shall be
sent to the contractor and to the contracting officer of any agency that
requested that debarment proceedings be initiated against such
contractor. |
All contractors who employ or retain one or more vendor
lobbyists that actually lobby GTA or any other Agency for contracts shall cause
such lobbyists to register with the State Ethics Commission and to file the
disclosures required by Article 4 of Chapter 5 of Title 21 of the Official Code
of Georgia Annotated. The GTA Executive Director is authorized to create
policies and processes to verify that offerors or prospective offerors comply
with this Rule and to effectuate any executive orders or statutes now or
hereafter created in regards to Vendor Lobbyists.
