| (a) Method and content of notice. The director shall
notify the contractor by the most expeditious method available, including
but not limited to telephone, e-mail, and fax, of an action under
this subchapter. In addition to the most expeditious method, the director
shall also notify the contractor in writing, via certified mail, return
receipt requested. The notice shall be in terms sufficient to apprise
the contractor of the conduct or transactions upon which it is based.
The director shall notify a contractor when:
(1) a contractor is being investigated for potential
debarment;
(2) a contractor's contracts have been cancelled; or
(3) a contractor will be disbarred.
(b) Investigation. The director shall investigate a
complaint that a contractor has failed to perform under the contract
for any of the reasons in this subchapter.
(1) The director shall complete its investigation within
120 days of the receipt of the complaint. The director may, upon receipt
of a complaint, cancel the contractor's contracts or cease payments
under the contractor's contracts during the period the vendor is under
investigation.
(2) Participation of receiving state agency. The director,
in conjunction with the receiving agency, shall decide whether to
cancel the contractor's contracts by considering:
(A) the effects of a work stoppage on the state agency;
(B) the seriousness of the breach of contract;
(C) any hazard to health, safety, welfare or property;
and
(D) any other reason the director and the state agency
determine is relevant to the particular circumstances.
(c) Contractor response. A contractor shall submit
a written response to the director within ten (10) days of receipt
of the notice received under subsection (a) of this section. The contractor
is presumed to have received the notice upon the director's receipt
of fax confirmation or receipt returned by U.S. mail, whichever period
is shorter. The director may, for good cause shown, allow the contractor
one ten (10) day extension of time to provide the contractor's response.
(d) Contents of contractor response. The contractor
shall respond to each reason the director cites in the notice and
shall include all facts the contractor believes are relevant, including
any applicable mitigating circumstances and remedial measures.
(e) Director finding. Upon completion of its investigation
or upon receipt of the contractor's response, the director shall determine
whether the contractor should be debarred. The director shall consider
the seriousness of the contractor's acts or omissions and any mitigating
factors or remedial measures. The director shall inform the contractor
of its finding within ninety (90) days of the original notice provided
in subsection (a) of this section. If the director is conducting an
investigation under subsection (b) of this section, then the time
periods in this subsection are extended by the length of the investigation.
(f) Mitigating circumstances. The director shall consider
whether the contractor's failure to perform was caused, in whole or
in part, by:
(1) an act of God or force majeure; the director shall
review whether the contractor provided the director with timely notification
of the event and the reasonableness of the duration of the contractor's
failure to perform after the event;
(2) mutual mistake;
(3) legal impossibility; or
(4) significant economic disruption affecting a particular
industry.
(g) Remedial measures. The director may consider whether
the contractor:
(1) immediately identified and remedied the cause of
the failure to perform;
(2) brought the offending conduct to the attention
of the comptroller and fully investigated the circumstances surrounding
that conduct;
(3) cooperated fully in the director's investigation;
(4) recognizes and understands the seriousness of the
misconduct giving rise to the cause for debarment; and
(5) any other remedial measures, including implementation
of control procedures, ethics training, or other disciplinary actions
against responsible individuals, that the contractor has instituted.
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