General Assembly Raised Bill No. 5366
February Session, 2010 LCO No. 1342
*01342_______GAE*
Referred to Committee on Government Administration and Elections
Introduced by:
(GAE)
General Assembly
Raised Bill No. 5366
February Session, 2010
LCO No. 1342
*01342_______GAE*
Referred to Committee on Government Administration and Elections
Introduced by:
(GAE)
AN ACT CONCERNING THE DISQUALIFICATION OF STATE CONTRACTORS.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 4b-95 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(a) The awarding authority shall furnish to every person applying therefor a form for general bid.
(b) Every general bid submitted for a contract subject to this chapter shall be submitted on a form furnished by the awarding authority. The form provided by the awarding authority shall provide a place for listing the names and prices of subcontractors for the four classes of work specified in subsection (a) of section 4b-93, and for each other class of work included by the awarding authority pursuant to said subsection and state that: (1) The undersigned agrees that if selected as general contractor, he shall, within five days, Saturdays, Sundays and legal holidays excluded, after presentation thereof by the awarding authority, execute a contract in accordance with the terms of the general bid; (2) the undersigned agrees and warrants that he has made good faith efforts to employ minority business enterprises as subcontractors and suppliers of materials under such contract and shall provide the Commission on Human Rights and Opportunities with such information as is requested by the commission concerning his employment practices and procedures as they relate to the provisions of the general statutes governing contract requirements; and (3) the undersigned agrees that each of the subcontractors listed on the bid form will be used for the work indicated at the amount stated, unless a substitution is permitted by the awarding authority. The awarding authority may require in the bid form that the general contractor agree to perform a stated, minimum percentage of work with his own forces.
(c) General bids shall be for the complete work as specified and shall include the names of any subcontractors for the four classes of work specified in subsection (a) of section 4b-93, and for each other class of work for which the awarding authority has required a separate section pursuant to said subsection and the dollar amounts of their subcontracts, and the general contractor shall be selected on the basis of such general bids. It shall be presumed that the general bidder intends to perform with its own employees all work in such four classes and such other classes, for which no subcontractor is named. The general bidder's qualifications for performing such work shall be subject to review under section 4b-92. Every general bid which is conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such general bid. The awarding authority shall be authorized to waive minor irregularities which he considers in the best interest of the state, provided the reasons for any such waiver are stated in writing by the awarding authority and made a part of the contract file. No such general bid shall be rejected because of the failure to submit prices for, or information relating to, any item or items for which no specific space is provided in the general bid form furnished by the awarding authority, but this sentence shall not be applicable to any failure to furnish prices or information required by this section to be furnished in the form provided by the awarding authority. General bids shall be publicly opened and read by the awarding authority forthwith. The awarding authority shall not permit substitution of a subcontractor for one named in accordance with the provisions of this section or substitution of a subcontractor for any designated subtrade work bid to be performed by the general contractor's own forces, except for good cause. The term "good cause" includes, but is not limited to, a subcontractor's or, where appropriate, a general contractor's: (1) Death or physical disability, if the listed subcontractor is an individual; (2) dissolution, if a corporation or partnership; (3) bankruptcy; (4) inability to furnish any performance and payment bond shown on the bid form; (5) inability to obtain, or loss of, a license necessary for the performance of the particular category of work; (6) failure or inability to comply with a requirement of law applicable to contractors, subcontractors, or construction, alteration, or repair projects; (7) failure to perform his agreement to execute a subcontract under section 4b-96.
(d) The general bid price shall be the price set forth in the space provided on the general bid form. No general bid shall be rejected (1) because of error in setting forth the name of a subcontractor as long as the subcontractor or subcontractors designated are clearly identifiable, or (2) because the plans and specifications do not accompany the bid or are not submitted with the bid. Failure to correctly state a subcontractor's price shall be cause for rejection of the general bidder's bid.
[(e) Any general contractor who violates any provision of this section shall be disqualified from bidding on other contracts that are subject to the provisions of this chapter for a period not to exceed twenty-four months, commencing from the date on which the violation is discovered, for each violation. The awarding authority shall periodically review the general contractor's subcontracts to insure compliance with such provisions, and shall after each such review prepare a written report setting forth its findings and conclusions.]
Sec. 2. Subsection (c) of section 4a-100 of the 2010 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(c) The application form shall, at a minimum, require the applicant to supply information concerning:
(1) The applicant's form of organization;
(2) The applicant's principals and key personnel and any names under which the applicant, principals or key personnel conducted business during the past five years;
(3) Any legal or administrative proceedings pending or concluded adversely against the applicant or any of the applicant's principals or key personnel within the past five years which relate to the procurement or performance of any public or private construction contract and whether the applicant is aware of any investigation pending against the applicant or any principal or key personnel;
(4) The nature of any financial, personal or familial relationship between the applicant and any public or private construction project owner listed on the application as constituting construction experience;
(5) A statement of whether (A) the applicant has been disqualified pursuant to [section 4b-95,] this section or section 31-57c, as amended by this act, or 31-57d, as amended by this act, (B) the applicant is on the list distributed by the Labor Commissioner pursuant to section 31-57a, (C) the applicant is disqualified or prohibited from being awarded a contract pursuant to section 31-57b, (D) the applicant has been disqualified by another state, (E) the applicant has been disqualified by a federal agency or pursuant to federal law, (F) the applicant's registration has been suspended or revoked by the Department of Consumer Protection pursuant to section 20-341gg, (G) the applicant has been disqualified by a municipality, and (H) the matters that gave rise to any such disqualification, suspension or revocation have been eliminated or remedied; and
(6) Other information as the commissioner deems relevant to the determination of the applicant's qualifications and responsibilities.
Sec. 3. Section 31-57c of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(a) As used in this section, the term "contractor" [shall mean] means any person, firm or corporation which has contracted or seeks to contract with the state, or to participate in such a contract, in connection with any public works of the state or a political subdivision of the state.
(b) Disqualification of a contractor is a serious action that shall be used only in the public interest and for the state government's protection and not for purposes of punishment or in lieu of other applicable enforcement or compliance procedures. The causes for and consequences of disqualification under this section shall be separate from and in addition to causes for and consequences of disqualification under sections [4b-95,] 31-53a, 31-57a and 31-57b.
(c) The Commissioner of Public Works may disqualify any contractor, for up to [two] five years, from bidding on, applying for, or participating as a subcontractor under, contracts with the state, acting through any of its departments, commissions or other agencies, except the Department of Administrative Services, the Department of Transportation and the constituent units of the state system of higher education, for one or more causes set forth under subsection (d) of this section. The commissioner may initiate a disqualification proceeding only after consulting with the contract awarding agency, if any, and the Attorney General and shall provide notice and an opportunity for a hearing to the contractor who is the subject of the proceeding. The hearing shall be conducted in accordance with the contested case procedures set forth in chapter 54. The commissioner shall issue a written decision within ninety days of the last date of such hearing and state in the decision the reasons for the action taken and, if the contractor is being disqualified, the period of such disqualification. The existence of a cause for disqualification shall not be the sole factor to be considered in determining whether the contractor shall be disqualified. In determining whether to disqualify a contractor, the commissioner shall consider the seriousness of the contractor's acts or omissions and any mitigating factors. The commissioner shall send the decision to the contractor by certified mail, return receipt requested. The written decision shall be a final decision for the purposes of sections 4-180 and 4-183.
(d) Causes for disqualification from bidding on, or participating in, contracts shall include the following:
(1) Conviction or entry of a plea of guilty or nolo contendere for or admission to commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
(2) Conviction or entry of a plea of guilty or nolo contendere or admission to the violation of any state or federal law for embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty which affects responsibility as a state contractor;
(3) Conviction or entry of a plea of guilty or nolo contendere or admission to a violation of any state or federal antitrust, collusion or conspiracy law arising out of the submission of bids or proposals on a public or private contract or subcontract;
(4) A wilful failure to perform in accordance with the terms of one or more public contracts, agreements or transactions;
(5) A history of failure to perform or of unsatisfactory performance of one or more public contracts, agreements or transactions; or
(6) A wilful violation of a statutory or regulatory provision or requirement applicable to a public contract, agreement or transaction.
(e) For purposes of a disqualification proceeding under this section, conduct may be imputed as follows:
(1) The fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor and the contractor knew of or had reason to know of such conduct. The term "other seriously improper conduct" shall not include advice from an attorney, accountant or other paid consultant if it was reasonable for the contractor to rely on such advice.
(2) The fraudulent, criminal or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee or other individual associated with the contractor who participated in, knew of or had reason to know of the contractor's conduct.
(3) The fraudulent, criminal or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement and these contractors knew of or had reason to know of such conduct.
(f) The commissioner may reduce the period or extent of disqualification, upon the contractor's request, supported by documentation, for the following reasons:
(1) Newly discovered material evidence;
(2) Reversal of the conviction upon which the disqualification was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the disqualification was imposed; or
(5) Other reasons the commissioner deems appropriate.
(g) The commissioner may grant an exception permitting a disqualified contractor to participate in a particular contract or subcontract upon a written determination by the head of the contract awarding agency that there is good cause, in the interest of the public, for such action.
Sec. 4. Section 31-57d of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(a) As used in this section, the term "contractor" [shall mean] means any person, firm or corporation which has contracted or seeks to contract with the state, or to participate in such a contract, in connection with any public works of the state or a political subdivision of the state.
(b) Disqualification of a contractor is a serious action that shall be used only in the public interest and for the state government's protection and not for purposes of punishment or in lieu of other applicable enforcement or compliance procedures. The causes for and consequences of disqualification under this section shall be separate from and in addition to causes for and consequences of disqualification under sections [4b-95,] 31-53a, 31-57a and 31-57b.
(c) The Commissioner of Transportation may disqualify any contractor, for up to [two] five years, from bidding on, applying for, or participating as a subcontractor under, contracts with the state, acting through the Department of Transportation, for one or more causes set forth under subsection (d) of this section. The commissioner may initiate a disqualification proceeding only after consulting with the Attorney General and shall provide notice and an opportunity for a hearing to the contractor who is the subject of the proceeding. The hearing shall be conducted in accordance with the contested case procedures set forth in chapter 54. The commissioner shall issue a written decision within ninety days of the last date of such hearing and state in the decision the reasons for the action taken and, if the contractor is being disqualified, the period of such disqualification. The existence of a cause for disqualification does not require that the contractor be disqualified. In determining whether to disqualify a contractor, the commissioner shall consider the seriousness of the contractor's acts or omissions and any mitigating factors. The commissioner shall send the decision to the contractor by certified mail, return receipt requested. The written decision shall be a final decision for the purposes of sections 4-180 and 4-183.
(d) Causes for disqualification from bidding on, or participating in, contracts shall include the following:
(1) Conviction or entry of a plea of guilty or nolo contendere for or admission to commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
(2) Conviction or entry of a plea of guilty or nolo contendere or admission to the violation of any state or federal law for embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty which affects responsibility as a state contractor;
(3) Conviction or entry of a plea of guilty or nolo contendere or admission to a violation of any state or federal antitrust, collusion or conspiracy law arising out of the submission of bids or proposals on a public or private contract or subcontract;
(4) A wilful failure to perform in accordance with the terms of one or more public contracts, agreements or transactions;
(5) A history of failure to perform or of unsatisfactory performance of one or more public contracts, agreements or transactions; or
(6) A wilful violation of a statutory or regulatory provision or requirement applicable to a public contract, agreement or transaction.
(e) For purposes of a disqualification proceeding under this section, conduct may be imputed as follows:
(1) The fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor and the contractor knew of or had reason to know of such conduct. The term "other seriously improper conduct" shall not include advice from an attorney, accountant or other paid consultant if it was reasonable for the contractor to rely on such advice.
(2) The fraudulent, criminal or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee or other individual associated with the contractor who participated in, knew of or had reason to know of the contractor's conduct.
(3) The fraudulent, criminal or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement and these contractors knew of or had reason to know of such conduct.
(f) The commissioner may reduce the period or extent of disqualification, upon the contractor's request, supported by documentation, for the following reasons:
(1) Newly discovered material evidence;
(2) Reversal of the conviction upon which the disqualification was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the disqualification was imposed; or
(5) Other reasons the commissioner deems appropriate.
(g) The commissioner may grant an exception permitting a disqualified contractor to participate in a particular contract or subcontract upon a written determination that there is good cause, in the interest of the public, for such action.
This act shall take effect as follows and shall amend the following sections:
Section 1 July 1, 2010 4b-95
Sec. 2 July 1, 2010 4a-100(c)
Sec. 3 July 1, 2010 31-57c
Sec. 4 July 1, 2010 31-57d
This act shall take effect as follows and shall amend the following sections:
Section 1
July 1, 2010
4b-95
Sec. 2
July 1, 2010
4a-100(c)
Sec. 3
July 1, 2010
31-57c
Sec. 4
July 1, 2010
31-57d
Statement of Purpose:
To delete a limited provision concerning disqualification because there are more comprehensive statutes concerning disqualification, and to extend from two to five years the period that a state contractor may be disqualified.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]