| (B) Any Uniform Physical Condition Standards Violations
that result in a score of 70 or below in sequential UPCS inspections
after April 1, 2021 or NSPIRE violations that result in a score of
50 or below in sequential inspections after the effective date of
this rule, or any combination thereof. The Compliance Division may
temporally decrease this NSPIRE score threshold with approval by the
Executive Director, for a period not to exceed one year, so long as
the score threshold is applied evenly to all properties;
(C) Refuse to submit all or parts of the Annual Owner's
Compliance Report for two consecutive years after April 1, 2021; or
(D) Gross rents exceed the highest rent allowed under
the LURA or other deed restriction.
(2) Repeated violations in a portfolio. Persons who
control five or more Actively Monitored Developments will be considered
for Debarment based on repeated violations in a portfolio. A Person
shall be referred to be committee if an inspection or referral, after
April 1, 2021, indicates the following:
(A) 50% or more of the Actively Monitored Developments
in the portfolio have been referred to the Enforcement Committee within
the last three years. The Enforcement Committee may increase this
threshold at its discretion. For example, if three properties in a
five-property portfolio are monitored in the same month, and then
referred to the Enforcement Committee at the same time, it may be
appropriate to increase the 50% threshold; or,
(B) 50% or more of the Actively Monitored Developments
in the portfolio score a 70 or less during a Uniform Physical Conditions
Standards inspection or score 50 or less during a NSPIRE inspection,
or any combination thereof. The Compliance Division may decrease this
NSPIRE score threshold with approval by the Executive Director, for
a period not to exceed one year, so long as the score threshold is
applied evenly to all properties.
(f) Debarment for violations of Department Programs,
with the exception of the Non-Discretionary funds in the Community
Services Block Grant program. Material or repeated violations of conditions
imposed in connection with the administration of Programs administered
by the Department. Administrators, Subrecipients, Responsible Parties,
contractors, multifamily owners, and related parties shall be referred
to the Committee for consideration for Debarment for violations including
but not limited to:
(1) 50% or more loan defaults in the first 12 months
of the loan agreement after April 1, 2021;
(2) The following Davis Bacon Act Violations:
(A) Refusing to pay restitution (underpayment of wages).
29 CFR §5.31.
(B) Refusing to pay liquidated damages (overtime violations).
29 CFR §5.8.
(C) Repeated failure to pay full prevailing wage, including
fringe benefits, for all hours worked. 29 CFR §5.31.
(3) The following violations of the Uniform Relocation
Act and requirements of §104(d):
(A) Repeated failure to provide the General Information
Notice to tenants prior to application. 49 CFR §24.203, 24 CFR §92.353,
24 CFR §93.352 and HUD Handbook 1378.
(B) Repeated failure to provide all required information
in the General Information Notice. 49 CFR §24.203, 24 CFR §570.606,
24 CFR §92.353, 24 CFR §93.352, or HUD Handbook 1378.
(C) Repeated failure to provide the Notice of Eligibility
and/or Notice of Non-displacement on or before the Initiation of Negotiations
date. 49 CFR §24.203, 24 CFR §92.353, 24 CFR §93.352,
or 24 CFR §570.606.
(D) Repeated failure to provide all required information
in the Notice of Eligibility and/or Notice of Non-displacement. 49
CFR §24.203, 24 CFR §92.353, 24 CFR §93.352, or 24
CFR §570.606.
(E) Repeated failure to provide 90 Day Notices to all
"displaced" tenants and/or repeated failure to provide 30 Day Notices
to all "non-displaced" tenants. 49 CFR §24.203, 24 CFR §92.353,
24 CFR §93.352, or 24 CFR §570.606.
(F) Repeated failure to perform and document "decent,
safe and sanitary" inspections of replacement housing. 49 CFR §24.203,
24 CFR §92.353, 24 CFR §93.352, or 24 CFR §570.606.
(G) Refusing to properly provide Uniform Relocation
Act or §104(d) assistance. 49 CFR §24.203, 24 CFR §92.353,
24 CFR §570.606 and §104(d) of the Housing & Community
Development Act of 1974 - 24 CFR Part 42.
(4) Refusing to reimburse excess cash on hand;
(5) Using Department funds to demolish a homeowner's
dwelling and then refusing to rebuild;
(6) Drawing down Department funds for an eligible use
and then refusing to pay a properly submitted request for payment
to a subgrantee or vendor with the drawn down funds.
(g) The referring division shall provide the Responsible
Party with written notice of the referral to the Committee, setting
forth the facts and circumstances that justify the referral for Debarment
consideration.
(h) The Secretary shall then offer the Responsible
Party the opportunity to attend an Informal Conference with the Committee
to discuss resolution of the. In the event that the Debarment referral
was the result of a violated agreed order or a determination that
50% or more of the Actively Monitored Developments in their portfolio
have been referred to the Enforcement Committee, the above written
notice of the referral to the Committee and the informal conference
notice shall be combined into a single notice issued by the Secretary.
(i) A Debarment Informal Conference may result in the
following, which shall be reported to the Executive Director:
(1) A determination that the Department did not have
sufficient information and/or that the Responsible Party does not
meet any of the criteria for Debarment;
(2) An agreed Debarment, with a proposed agreed order
to be prepared and presented to the Board for approval;
(3) A recommendation by the Committee to the Executive
Director for Debarment;
(4) A request for further information, to be considered
during a future meeting; or,
(5) If Debarment is not mandatory, an agreement to
dismiss the matter with no further action, an agreement to dismiss
the matter with corrective action being taken, or any other action
as the Committee deems appropriate, which will then be reported to
the Executive Director.
(j) The Committee's recommendation to the Executive
Director regarding Debarment shall include a recommended period of
Debarment. Recommended periods of Debarment will be based on material
factors such as repeated occurrences, seriousness of underlying issues,
presence or absence of corrective action taken or planned, including
corrective action to install new responsible persons and ensure they
are qualified and properly trained. Recommended periods of Debarment
if based upon HUD Debarment, shall be for the period of the remaining
HUD Debarment; or, if based upon criminal conviction, shall be up
to ten (10) years or until fulfillment of all conditions of incarceration
and/or probation, whichever is greater.
(k) The Executive Director shall accept, reject, or
modify the Debarment recommendation by the Committee and shall provide
written notice to the Responsible Party of the determination, and
an explanation of the determination if different than the Committee's
recommendation, including the period of Debarment, if any. The Responsible
Party may appeal the Debarment determination in writing to the Board
as described in §1.7 of this title (relating to Appeals Process).
(l) The Debarment recommendation will be brought to
the next Board meeting for which the matter can be properly posted.
The Board reserves discretion to impose longer or shorter Debarment
periods than those recommended by staff based on its finding that
such longer or shorter periods are appropriate when considering all
factors and/or for the purposes of equity or other good cause. An
action on a proposed Debarment of an Eligible Entity under the CSBG
Act will not become final until and unless proceedings to terminate
Eligible Entity status have occurred, resulting in such termination
and all rights of appeal or review have run or Eligible Entity status
has been voluntarily relinquished.
(m) Until the Responsible Party's Debarment referral
is fully resolved, the Responsible Party may not participate in new
Department financing and assistance opportunities.
(n) Any person who has been debarred is prohibited
from participation as set forth in the final order of Debarment for
the term of their Debarment. Unless specifically stated in the order
of Debarment, Debarment does not relieve a Responsible Party from
its current obligations, or prohibit it from continuing its participation
in any existing engagements funded through the Department, nor limit
its responsibilities and duties thereunder. The Board will not consider
modifying the terms of the Debarment after the issuance of a final
order of Debarment.
(o) If an Eligible Entity under the CSBG Act meets
any of the criteria for Debarment in this rule, the Department may
recommend the Eligible Entity for Debarment. However, that referral
or recommendation shall not proceed until the termination of the Eligible
Entity's status under the CSBG Act has concluded, and no right of
appeal or review remains.
(p) All correspondence under this rule shall be delivered
electronically.
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