Chapter 672-5 GOVERNING THE PREQUALIFICATION OF PROSPECTIVE BIDDERS
| (a) |
The purposes of these Rules Governing the
Prequalification of Prospective Bidders are:
| (1) |
To minimize delays in the awarding of
contracts after bids have been opened. |
| (2) |
To insure that Department contracts will
be awarded only to reliable bidders. |
|
| (b) |
These Rules do not apply to contracts for
routine or preventative maintenance, including but not limited to those
contracts subject to Department Policy Number 6130-7 Guidelines for Maintenance
Service Agreement, except in those instances where the Department specifically
requires prequalification pursuant to these Rules. |
The following terms, as used in this Chapter, shall have the
following meanings unless the context thereof indicates to the contrary:
| (a) |
"Audited Financial Statement": A
Financial Statement as herein defined prepared by an independent Certified
Public Accountant. The Audited Financial Statement must contain an Accountant's
Certificate by the independent Certified Public Accountant who prepared the
statement. If signed by the firm of the Certified Public Accountant, the firm
must be registered with the State Board of Accountancy, State of Georgia, or in
the State where the company headquarters is located. |
| (b) |
"Board of Review": A board consisting of
not less than three (3) members, all of whom shall be employees of the
Department. All members shall be appointed by order of the
Commissioner. |
| (c) |
"Certified Public
Accountant": A person duly registered with the State Board of Accountancy,
State of Georgia, or equivalent registration with another state in the United
States. |
| (d) |
"Contractor": A Person
prequalified pursuant to these rules to bid on a Department contract in excess
of Two Million Dollars ($2,000,000). |
| (e) |
"Commissioner": The Commissioner of the
Georgia Department of Transportation. |
| (f) |
"Compiled Financial Statement": A
Financial Statement as herein defined prepared by an independent Registered
Public Accountant or an independent Certified Public Accountant. The Complied
Financial Statement must contain an Accountant's Certificate executed by the
independent Certified Public Accountant or Registered Public Accountant who
prepared the statement. If signed by the firm of the Certified Public
Accountant, the firm must be registered with the State Board of Accountancy,
State of Georgia, or in the State where the company headquarters is
located. |
| (g) |
"Current Capacity":
The difference between a Contractor's or Subcontractor's Maximum Capacity
Rating and the dollar value of its current uncompleted work, regardless of its
location and with whom it has contracted. |
| (h) |
"Department": The Georgia Department of
Transportation. |
| (i) |
"Engineer": The
Chief Engineer, acting directly or through a duly authorized representative,
such representative acting within the scope of the particular duties assigned
to him or her and within the authority given him or her. |
| (j) |
"Financial Statement": Completed on
Department approved forms, shows all assets and liabilities which support the
assets and liabilities reported on the application and covering a period ending
not more than twelve (12) months prior to the date of the application. The
Financial Statement cannot be prepared by a Certified Public Accountant or
Registered Public Accountant who is directly or indirectly interested in the
business of the Prospective Contractor submitting the Financial Statement.
There are three (3) types of Financial Statements:
| (1) |
Compiled Financial Statements; |
| (2) |
Reviewed Financial Statements;
and |
| (3) |
Audited Financial
Statements, as are further defined herein. |
|
| (k) |
"Maximum Capacity Rating": The total
aggregate amount (dollar value) of work a Prospective Bidder may have under
contract at any time, either as principal Contractor or Subcontractor,
regardless of its location and with whom it may be contracted, as determined by
the Department. |
| (l) |
"Parent" or
"Parent Company": A company or legal entity that wholly owns another company
(subsidiary) or controls the other entity by owning more than 50 percent of the
company's voting stock. This ownership or control may extend to one or more
subsidiaries in either the same industry or complimentary industries. |
| (m) |
"Person": Any individual, co-partnership,
association, corporation, firm or joint stock company, or joint venture or its
lessees, trustees, assignees or receivers as appointed by any court, who is
registered with the Georgia Secretary of State where required to do so in order
to conduct business in the state. |
| (n) |
"Prequalification Committee": The
Prequalification Committee of the Department of Transportation which shall
consist of not less than three (3) members, all of whom shall be employees of
the Department. Provided, that the Director of Construction and are
presentative of the Office of Audits shall be members. Provided further that
all other members shall be appointed by order of the Commissioner. The
Prequalification Committee shall elect one of its members as chairman and
another as secretary. The secretary shall keep a complete record of the
proceedings and decisions of the Prequalification Committee. |
| (o) |
"Prospective Bidder": Prospective
Contractor(s) and/or Prospective Subcontractor(s). |
| (p) |
"Prospective Contractor": Any Person who
wishes to apply or renew its eligibility to be prequalified as a
Contractor. |
| (q) |
"Prospective
Subcontractor": Any Person who wishes to apply or renew its eligibility to be
registered as a Subcontractor. |
| (r) |
"Reviewed Financial Statement": A Financial Statement as herein defined
prepared by an independent Registered Public Accountant or an independent
Certified Public Accountant. The Reviewed Financial Statement must contain an
Accountant's Certificate executed by the independent Certified Public
Accountant or Registered Public Accountant who prepared the statement. If
signed by the firm of the Certified Public Accountant, the firm must be
registered with the State Board of Accountancy, State of Georgia, or in the
State where the company headquarters is located. |
| (s) |
"Subcontractor": A Person registered
pursuant to these rules to sublet work from a Contractor or to perform any
contract less than or equal to Two Million Dollars ($2,000,000) as a prime
contractor. |
| (t) |
"Subsidiary" or
"Subsidiary Company": A legal entity controlled by another (parent) company,
which is also considered a legal entity. The subsidiary is wholly owned by the
parent company, or the parent company owns or controls more than 50 percent of
the subsidiary's voting stock. |
All forms referred to in these Rules are hereby incorporated
and made a part of these Rules. Said forms, which may be amended from time to
time by the Department, may be obtained from the office of the Prequalification
Committee, Georgia Department of Transportation, 600 West Peachtree Street NW,
Atlanta, GA 30308 or the Department's website, www.dot.ga.gov.
| (1) |
All Prospective Contractors must submit
an application under oath on forms to be furnished by the office of the
Prequalification Committee in order to receive a Certificate of Qualification.
The application must be filed at least ten (10) days prior to the opening of
any bids the Prospective Contractor proposes to submit and must include the
following:
| (a) |
A Financial Statement. In
submitting the Financial Statement, the Prospective Contractor will abide by
the following:
| (i) |
If a Prospective
Contractor's adjusted net worth is Seven Hundred Fifty Thousand Dollars
($750,000) or less, the Prospective Contractor must submit a Compiled Financial
Statement, Reviewed Financial Statement or Audited Financial
Statement. |
| (ii) |
If a Prospective
Contractor's adjusted net worth is greater than Seven Hundred Fifty Thousand
Dollars ($750,000) but less than Seven Million Five Hundred Thousand Dollars
($7,500,000), the Prospective Contractor must submit a Reviewed Financial
Statement or Audited Financial Statement. |
| (iii) |
If a Prospective Contractor's adjusted
net worth is greater than Seven Million Five Hundred Thousand Dollars
($7,500,000), the Prospective Bidder must submit an Audited Financial
Statement. |
|
| (b) |
A
statement as to major plant and equipment used for transportation projects and
a statement for all other property, plant and equipment used in the business,
such as buildings, furniture and fixtures and leasehold improvements; the
statement shall give details as to type, age and condition of all property,
plant and equipment; |
| (c) |
A
statement as to organization, which shall develop the adequacy of such
organization, including key personnel, and any and all affiliated companies to
undertake a project in the classification desired subject to the following:
| (i) |
In a Parent-Subsidiary relationship where
the Parent and the Subsidiary are to be prequalified separately, the Parent and
the Subsidiary must submit separate Financial Statements for prequalification
purposes. |
| (ii) |
In Parent-Subsidiary
relationships where both the Parent and the Subsidiary are to be prequalified
separately, the investments in the Subsidiary must be deducted from the assets
of the Parent in computing the adjusted net worth of the Parent. |
| (iii) |
A Parent company must list any and all
Subsidiary companies prequalified with the Department, the dollar amount of the
investment in each Subsidiary and the method of carrying the investment on the
Financial Statement. |
|
| (d) |
A statement as to prior and current experience of the Prospective Contractor,
its principal officers and key employees which shall show the number of years
each identified officer or key employee has been engaged in the contracting
business and shall further disclose generally their experience over that
period; |
| (e) |
A statement which shall
give an accurate and sufficient record of principal work on which the
Prospective Contractor has been engaged in the past three (3) years, both in
Georgia and elsewhere, as a contractor of record, or work done under
subcontract, giving the name of projects under taken, the type of work, the
location, the contract amount and the name of the contracting agency. In case
of work done by subcontract, the prime contractor will be named; |
| (f) |
A statement which shall list in detail
any liens, stop notices or claims filed against the Prospective Contractor on
any project within the past five (5) years. This statement shall also disclose
any failure or failures to complete a contract or contracts, and any penalties
imposed by reason of any contract undertaken and determined to be in
noncompliance with pertinent statutes within the said five (5) year period. The
Prospective Contractor shall explain in detail all such items; |
| (g) |
A statement as to whether or not the
Prospective Contractor or any of its officers, executives or members has been
convicted or entered a guilty plea in a court of competent jurisdiction within
the two (2) years prior to the date of application of violation of any State or
Federal statute concerning the restraint of trade; |
| (h) |
A statement setting forth any other
relevant, pertinent, and material facts that will justify the Maximum Capacity
rating desired; |
| (i) |
A statement
agreeing to comply with Rule
672-5-.17 "Conduct in Bidding
Department Contracts or Submitting Quotes to Bidders on Department
Contracts"; |
| (j) |
A statement which
shall list the specific area of class/classes of work for which the Prospective
Contractor is qualified; |
| (k) |
A
statement of specific geographic location within the State which lists the
Department district in which the Prospective Contractor will typically
bid; |
| (l) |
A certification by the
Prospective Contractor that it is not currently suspended or debarred by
another state or federal governmental entity or has not been voluntarily
excluded in another state or federal governmental entity and that no state or
federal governmental entity has instituted any action to suspend or debar the
Prospective Contractor. The Application of any Prospective Contractor who is
currently suspended or debarred by another state or federal governmental entity
or who has been voluntarily excluded in another state or federal governmental
entity, regardless of whether the Prospective Contractor intends to bid on
state or federally funded projects, will be rejected. The Application must
further contain the certification that, if at any time during the period that a
Prospective Contractor maintains a Certificate of Qualification, an action is
instituted by a state or federal governmental entity to suspend or debar the
Prospective Contractor, or the Prospective Contractor becomes voluntarily
excluded in another state or federal governmental entity, the Prospective
Contractor will immediately notify the Department's Director of Construction;
and |
| (m) |
Provide proof of any
insurance or self-insurance for workers compensation insurance and general
liability insurance to be supplemented on a yearly basis. |
|
| (2) |
All Persons proposing to bid on
Department work for the performance of any contract less than or equal to Two
Million Dollars ($2,000,000) as a prime contractor must be registered as a
Subcontractor as provided for in Rule
672-5-.11. |
| (3) |
The Prequalification Committee may, upon
proper notice, require a Contractor who already has been qualified under these
Rules to file a new application at anytime that the Prequalification Committee
deems it necessary for a Contractor to bring its statements up-todate. Such
application shall be filed within thirty (30) days after the Committee's
request and failure on the part of the Contractor to comply may be grounds for
disqualification pursuant to Rule
672-5-.15. |
| (4) |
The Department reserves the right to
require an application which may include a request for additional information
or documentation for qualification for certain projects designated prior to the
letting regardless of the value of the contract. |
| (5) |
A Prospective Contractor shall submit
Applications for Qualification, as provided herein, at least once every two (2)
years or on such intermediate occasions as may be deemed necessary by either
the Prospective Contractor or the Prequalification Committee. The Prospective
Contractor must submit an updated Application for Qualification when it has
sold twenty-five percent (25%) or more of its assets. |
The Engineer may designate certain specialty items of work and
exempt Prospective Bidders bidding to perform such work from the requirements
of these Rules.
| (1) |
The Engineer
will, as part of past performance, require the District Engineers to execute
and submit a past performance report on all prime contractors performing work
for the Department. |
| (2) |
Where a
Prospective Bidder has no record of work with the Department, past performance
information will be obtained from others for whom it has performed
work. |
| (3) |
These reports shall be
used as a basis for determining upon renewal or resubmission of an application,
the Prospective Bidder's, past performance rating, which rating shall then be
considered in determining the Ability or Multiplying Factor in accordance with
the forms on file in the office of the Prequalification Committee. |
| (1) |
Each
Prospective Contractor shall state the Maximum Capacity Rating desired. Each
Prospective Contractor will be rated in accordance with its financial ability,
adequacy of plant and equipment, organization, prior experience, record of
construction and any other pertinent, relevant and material facts. The
Prospective Contractor will be assigned a Maximum Capacity Rating which will
designate the quantity of work upon which it will be eligible to bid. The
Prequalification Committee will give notice of such rating by electronic mail
using the address provided in the application within thirty (30) days after
receipt of such fully executed Application for Qualification. The determination
of the Maximum Capacity Rating will be made subject to the rules set forth
herein and Department policy. |
| (2) |
The Maximum Capacity Rating will be a flat sum determined by the following
formula:
Q = F [C + 60% (DA)]
Q = Maximum Capacity Rating
F = Ability or Multiplying Factor
C = Current Assets less current liabilities; plus plant and
equipment used for road and bridge construction only
DA = Net Deferred Assets [(Property and plant and equipment not
used for road and bridge construction only plus all non-current assets) - any
deferred liabilities or non-current liabilities (maturing beyond one year)].
Net Deferred Assets will equal zero (0), if the calculated value is less than
or equal to zero (0).
|
| (1) |
A Prospective
Bidder dissatisfied with its Maximum Capacity Rating may request an informal
hearing in writing within ten (10) days of receipt of its Maximum C informal
hearing will be before the Board of Review. At this informal hearing, neither
the Department nor the Prospective Bidder shall be represented by an attorney
nor be allowed to present witnesses. Documentary evidence may be presented by
the Department or Prospective Bidder. Failure to request a formal hearing
within ten (10) days after receipt of the Maximum Capacity Rating shall act as
a waiver of the right of the Prospective Bidder to further appeal its Maximum
Capacity Rating. |
| (2) |
If a request
for an informal hearing is received timely from the Prospective Bidder, the
Board of Review shall set a date and time for an informal hearing to be held in
the matter, and shall issue a written notice of the informal hearing to the
Prospective Bidder. The written notice may be served personally or by certified
mail, return receipt requested, mailed to the Prospective Bidder's last known
mailing address. |
| (3) |
Within
fourteen (14) days after the conclusion of the informal hearing, the Board of
Review shall render a written Preliminary Decision. The Board of Review shall
cause a copy of this recommendation to be served upon the Prospective Bidder,
which may be served personally or by certified mail, return receipt requested,
mailed to the Prospective Bidder's last known mailing address. |
| (4) |
Within fourteen (14) days of receipt of
the Preliminary Decision, the Prospective Bidder may request a formal hearing
with the Commissioner. Failure to request a formal hearing within fourteen (14)
days after receipt of the Preliminary Decision shall act as waiver of any
additional appeal rights of the Prospective Bidder and the Preliminary Decision
of the Board of Review shall become the Final Decision. |
| (5) |
In the event that a formal hearing has
been requested by the Prospective Bidder, the Commissioner shall set a date and
time for a hearing to be held in the matter, and shall issue a written notice
of the hearing to the Prospective Bidder. The written notice of the hearing
shall inform the Prospective Bidder of the date and time of the hearing, and of
its right to attend, to be represented by counsel, to cross-examine witnesses
against it, and to respond and present evidence on all issues. The written
notice may be served personally or by certified mail, return receipt requested,
mailed to the Prospective Bidder's last known mailing address. |
| (6) |
Within thirty (30) days after the
hearing, the Commissioner shall issue a Final Decision and shall cause a copy
of this recommendation to be served upon the Prospective Bidder, which may be
served personally or by certified mail, return receipt requested, mailed to the
Prospective Bidder's last known mailing address. The Commissioner may instruct
the Prequalification Committee to increase, decrease or not change the Maximum
Capacity rating of the Prospective Bidder. |
| (7) |
An appeal from the Final Decision of the
Commissioner is directly appealable to the Superior Court. |
| (1) |
A Prospective Bidder may be issued
Proposal Forms covering various projects. In the event a bidder submits a low
bid on one or more projects and the aggregate amount is greater than the
Current Capacity of the bidder, the Department will exercise its discretion in
selecting the particular project or projects to award which will give the best
financial advantage to the Department. The determination of the low bidder on
any project or projects on which bids have been disqualified due to the
operation of the above procedure will be made without consideration of the bid
or bids so disqualified. |
| (2) |
Nothing in these Rules shall be construed as depriving the Department of the
right to reject any bid when, in the opinion of the Department, circumstances
and developments have changed the Prospective Bidder's qualification so as to
affect its reliability. However, before taking such action the Department will
notify the Prospective Bidder and give it an opportunity to present additional
information to the Board of Review which might tend to substantiate its
existing Maximum Capacity Rating or Current Capacity Rating. |
| (1) |
In order that the Department may have the
necessary information to pass upon the ability of a Prospective Bidder to
satisfactorily complete a project, each low bidder must submit on each proposal
within one (1) business day after the letting a Certification of Capacity to
perform the work. Such forms may be obtained from the office of the
Prequalification Committee. In making this certification, the Prospective
Bidder certifies that its Current Capacity is sufficient to cover the amount of
its proposal. |
| (2) |
If the
Prospective Bidder certifies that it has obligations of uncompleted work under
contract, the initiation of work on which for good and sufficient contractual
reasons, must be deferred beyond a period of twelve (12) months after the date
of the opening of bids for the work for which the Prospective Bidder is
submitting its bid, the Prequalification Committee may give consideration to
temporarily reducing the debits against the Prospective Bidder's Current
Capacity by the amounts of the dollar values of such items. If the Prospective
Bidder desires such consideration where the award of a contract is contingent
upon the deferral of such charges against its Current Capacity, Prospective
Bidder must list the projects on which such deferrals are requested in its
Certification of Capacity and it must attach a detailed explanation of the
circumstances. |
| (3) |
The penalty for
making a false Certification of Capacity may be disqualification from bidding
on future work for a ninety (90) day period. The appeal procedure will be the
same as that set out in
672-5-.14(2). |
| (1) |
In order for the Department to maintain a
register of Subcontractors, any person desiring to perform work on Department
projects as a Subcontractor must obtain a Certificate of Registration by
submitting a notification of such desire under oath to the Department on forms
to be furnished by the Department. The original notification may be filed at
any time, but in no case less than ten (10) days prior to the prime
contractor's requesting approval of the subcontract to which the Prospective
Subcontractor will be a party. The notification must include the following
information:
| (a) |
A statement as to the
Prospective Subcontractor's major plant and equipment, which shall give details
as to type, age and condition; |
| (b) |
A statement of the Prospective Subcontractor's organization which shall develop
the adequacy of such organization, including key personnel, to undertake
work; |
| (c) |
A statement of the
experience of the Prospective Subcontractor, including its principal officers
and key employees, which shall show the number of years the Prospective
Subcontractor has been engaged in the contracting business and disclose
generally its experience over that period; |
| (d) |
A statement which shall give an accurate
record of any work, whether under its present name or some other, on which it
has been engaged in the five (5) years next preceding this notification, both
in Georgia and elsewhere, as a contractor of record or under a subcontract,
giving a description of the project undertaken, the type of work in which it
engaged, the location of the work, the contract amount and the name of the
contracting person, firm, corporation or agency. In the case of work performed
under a subcontract, the prime contractor shall be named; |
| (e) |
A complete and accurate statement of any
liens, stop notices or claims filed against the Prospective Subcontractor on
any project listed in response to Rule 672-5-.11(1)(d).The statement shall also
disclose any failure or failures to complete a contract or contracts and any
liquidated damages or penalties, monetary or otherwise imposed by reason of any
contract undertaken and determined to be in noncompliance with pertinent
statutes within the five (5) year period preceding this notification. A
detailed explanation of all such items shall be given; |
| (f) |
A statement setting forth any other
relevant, pertinent and material facts or data which the Prospective
Subcontractor deems would show that it is qualified to perform the work which
it has represented that it is willing and capable of undertaking; |
| (g) |
A statement which shall list the specific
area of class/classes of work for which the Prospective Subcontractor is
qualified; and |
| (h) |
A statement of
specific geographic location within the State which lists the Department
district in which the contractor will typically work. |
| (i) |
A certification by the Prospective
Subcontractor that it is not currently suspended or debarred by another state
or federal governmental entity or has not been voluntarily excluded in another
state or federal governmental entity and that no state or federal governmental
entity has instituted any action to suspend or debar the Prospective
Subcontractor. The Application of any Prospective Subcontractor who is
currently suspended or debarred by another state or federal governmental entity
or who has been voluntarily excluded in another state or federal governmental
entity, regardless of whether the Prospective Subcontractor intends to bid on
state or federally funded projects, will be rejected. The Application must
further contain the certification that, if at any time during the period that a
Prospective Subcontractor maintains a Certificate of Registration an action is
instituted by a state or federal governmental entity to suspend or debar the
Prospective Subcontractor, or the Prospective Contractor becomes voluntarily
excluded in another state or federal governmental entity, the Prospective
Subcontractor will immediately notify the Department's Director of
Construction; and |
|
| (2) |
A
person desiring to remain on the register of Subcontractors shall submit a
notification of such desire on forms provided by the Department no less often
than once every two (2) years and more often should it be deemed necessary by
either the Prospective Subcontractor or the Prequalification Committee. Should
the Prequalification Committee request such a filing, the notification shall be
filed within thirty (30) days after receipt of the request. Failure on the part
of the Prospective Subcontractor to file the notification every two years or to
file the notification requested by the Prequalification Committee within thirty
(30) days after receipt of such request shall be grounds for its removal from
the register of Subcontractors pursuant to Rule
672-5-.15. The Prospective
Subcontractor must submit an updated notification of desire to remain on the
register of Subcontractors on forms provided by the Department, when it has
sold or acquired a large number of assets. |
| (3) |
Subcontractors will be assigned a Maximum
Capacity Rating, which shall represent the maximum dollar amount of work a
registered Subcontractor may undertake on Department projects at any one time.
The value of any single subcontract will not exceed Two Million Dollars
($2,000,000). The Maximum Capacity Rating for each registered Subcontractor
will be established utilizing the following formula:
Q = F[$250,000.00]
Q = Maximum Capacity Rating
F = Ability or Multiplying Factor as established by performance
ratings.
|
| (4) |
The
registration of, and assignment of a Maximum Capacity Rating to, a
Subcontractor by the Department is not, nor shall it be construed as, a
warranty, certification, implication or assurance by the Department that the
registered Subcontractor is qualified, either as to the type of work or
quantity, to undertake the work for which the Subcontractor is hired by the
prime contractor. The registration of, and assignment of a Maximum Capacity
Rating to, a Subcontractor by the Department shall not relieve the prime
contractor of its responsibility to determine that its Subcontractors are in
fact qualified to perform the work for which they are engaged nor relieve the
prime contractor of any rights, liabilities, duties or obligations under its
contract with the Department. |
| (1) |
The prime
Contractor may subcontract portions of the project to other prequalified
Contractors or registered Subcontractors up to the amount provided for in the
contract specifications. In figuring the total amount of Current Capacity
available to a Contractor, it will be given credit for the work subcontracted
after the Subcontractor has been approved in writing by the
Department. |
| (2) |
No Person shall
both prequalify as a Contractor and register as a Subcontractor. Any
subcontract work undertaken by a prequalified Contractor shall be counted
against its Current Capacity. |
Any combination of bidders, each of whom is prequalified in
accordance with these Rules will be permitted to bid jointly.
| (1) |
The Certification of Qualification or the
Certificate of Registration of any Person who makes or causes to be made any
false, deceptive, or fraudulent statement(s) on the application required to be
submitted, or in the course of any hearing under these Rules, may be
temporarily suspended or permanently revoked. |
| (2) |
The following process will apply when the
Prequalification Committee receives information to give it reasonable cause to
believe that there is a false, deceptive, or fraudulent statement(s) made by a
Prospective Bidder on the application:
| (a) |
When the Prequalification Committee receives information to give it reasonable
cause to believe that there is a false, deceptive, or fraudulent statement(s)
made by a Prospective Bidder on the application, the Prequalification Committee
shall make a recommendation to the Board of Review for action to be taken
against the Prospective Bidder which may include but is not limited to
permanent revocation of the Contractor's Certificate of Qualification or
Subcontractor's Certificate of Registration or the suspension of such
Certificate of Qualification or Certificate of Registration for a certain
period of time. The Prequalification Committee shall cause a copy of this
recommendation to be served upon the Prospective Bidder, which may be served
personally or by certified mail, return receipt requested, mailed to the
Prospective Bidder's last known mailing address. |
| (b) |
The Prospective Bidder may request an
informal hearing in writing within ten (10) days of receipt of the
recommendation of the Prequalification Committee. The informal hearing will be
before the Board of Review. The purpose of this informal hearing is to provide
an opportunity for the Prospective Bidder to respond to the findings of the
Prequalification Committee before formal action is taken. At this informal
hearing, neither the Department nor the Prospective Bidder shall be represented
by an attorney nor be allowed to present witnesses. Documentary evidence may be
presented by the Department or Prospective Bidder. Failure to request a formal
hearing within ten (10) days after receipt of recommendation from the
Prequalification Committee shall act as waiver of any additional appeal rights
of the Prospective Bidder. |
| (c) |
If a
request for an informal hearing is received timely from the Prospective Bidder,
the Board of Review shall set a date and time for an informal hearing to be
held in the matter, and shall issue a written notice of the informal hearing to
the Prospective Bidder. The written notice of the informal hearing shall inform
the Prospective Bidder of the charges against it and of the date and time of
the informal hearing. The written notice may be served personally or by
certified mail, return receipt requested, mailed to the Prospective Bidder's
last known mailing address. |
| (d) |
Within fourteen (14) days after the conclusion of the informal hearing, the
Board of Review shall render a written Preliminary Decision. The Board of
Review shall cause a copy of this Preliminary Decision to be served upon the
Prospective Bidder, which may be served personally or by certified mail, return
receipt requested, mailed to the Prospective Bidder's last known mailing
address. Within fourteen (14) days of receipt of the Preliminary Decision, the
Prospective Bidder may request a formal hearing with the Commissioner. Failure
to request a formal hearing within fourteen (14) days after receipt of the
Preliminary Decision shall act as waiver of any additional appeal rights of the
Prospective Bidder and the Preliminary Decision of the Board of Review shall
become the Final Decision. |
| (e) |
In
the event that a formal hearing has been requested by the Bidder, the
Commissioner shall set a date and time for a hearing to be held in the matter,
and shall issue a written notice of the hearing to the Prospective Bidder. The
written notice of the hearing shall inform the Prospective Bidder of the
charges against it, of the date and time of the hearing, and of its right to
attend, to be represented by counsel, to cross-examine witnesses against it,
and to respond and present evidence on all issues. The written notice may be
served personally or by certified mail, return receipt requested, mailed to the
Prospective Bidder's last known mailing address. |
| (f) |
Within thirty (30) days after the
hearing, the Commissioner shall issue a Final Decision and shall cause a copy
of this recommendation to be served upon the Prospective Bidder, which may be
served personally or by certified mail, return receipt requested, mailed to the
Prospective Bidder's last known mailing address. In the event the Commissioner
determines that there is cause for suspension or revocation, the Commissioner
shall direct the Prequalification Committee either to revoke the Contractor's
Certificate of Qualification or Subcontractor's Certificate of Registration or
to suspend the Certificate of Qualification or Certificate of Registration for
a period of no less than thirty (30) days and no more than five (5)
years. |
| (g) |
An appeal from the Final
Decision of the Commissioner is directly appealable to the Superior
Court. |
|
| (3) |
For a false,
deceptive or fraudulent statement made in the course of any hearing with the
Commissioner, the Commissioner will have the power to immediately permanently
revoke the Contractor's Certificate of Qualification or Subcontractor's
Certificate of Registration or to suspend such Certificate of Qualification or
Certificate of Registration for a period of time as determined by the
Commissioner. An appeal from the decision of the Commissioner is directly
appealable to the Superior Court. |
| (1) |
The Department may suspend for a
specified period of time, or revoke for good cause, any Contractor's
Certificate of Qualification or Subcontractor's Certificate of Registration.
Any Contractor whose Certificate of Qualification or Subcontractor whose
Certificate of Registration has been suspended or revoked for good cause will
not be permitted to submit bid proposals or subcontract to perform work on any
Department contracts, regardless of the dollar amount of the bid during the
period of suspension or revocation. Good cause shall include but not be limited
to the following:
| (b) |
Failure, due to the fault of the Contractor, to carry out any contract awarded
by the Department; |
| (c) |
Default on
any contract awarded by the Department; |
| (d) |
Falling more than fifteen percent (15%)
behind schedule, due to the fault of the Contractor, on two (2) or more
projects under contract excluding resurfacing projects; |
| (e) |
Conviction or entry of a plea of guilty,
nolo contendere, or first offender treatment, by persons who are principles,
owners, or partners with the Contractor or Subcontractor, for 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 the contract or
subcontract, or for conspiracy, contract or combination in restraint of trade
or of free and open competition in any transaction with a state, the United
States, or any state or federal agency or instrumentality or political
subdivision thereof; |
| (f) |
Conviction
or entry of a plea of guilty, nolo contendere, or first offender treatment, by
persons who are principles, owners, or partners with the Contractor or
Subcontractor under State or Federal statutes of 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 currently, seriously, and directly affects responsibility as a State
contractor as determined by the Department; |
| (g) |
Conviction or entry of a plea of guilty,
nolo contendere, or first offender treatment, by persons who are principles,
owners, or partners with the Contractor or Subcontractor under State or Federal
antitrust statutes arising out of the submission of bids or
proposals; |
| (h) |
Any other cause so
serious and compelling as to affect the present responsibility of the
Contractor or Subcontractor, including a suspension or debarment by another
state or federal governmental entity; |
| (i) |
Any violation of the conflict of interest
provisions of O.C.G.A. Sections
45-10-20
through
45-10-28; |
| (j) |
Failure to comply with any Federal
regulation(s); and |
| (k) |
In the
absence of Department approval, the failure of the Contractor to make payments
to subcontractor(s) or supplier(s) in contravention of contractual and/or
statutory requirements, or a pattern or practice of making late payments to
subcontractor(s) or supplier(s) in contravention of contractual and/or
statutory requirements, when such payments are not withheld in response to
subcontractor or supplier performance disputes or issues. |
|
| (2) |
The following process will apply when the
Prequalification Committee receives information to give it reasonable cause to
believe that there is good cause for suspension or revocation:
| (a) |
The Prequalification Committee shall make
a recommendation to the Board of Review for action to be taken against the
Contractor or Subcontractor. The Prequalification Committee shall cause a copy
of this recommendation to be served upon the Contractor or Subcontractor, which
may be served personally or by certified mail, return receipt requested, mailed
to the Contractor's or Subcontractor's last known mailing address. |
| (b) |
The Contractor or Subcontractor may
request an informal hearing in writing within ten (10) days of receipt of the
recommendation of the Prequalification Committee. The informal hearing will be
before the Board of Review. The purpose of this informal hearing is to provide
an opportunity for the Contractor or Subcontractor to respond to the findings
of the Prequalification Committee before formal action is taken. At this
informal hearing, neither the Department nor the Contractor or Subcontractor
shall be represented by an attorney nor be allowed to present witnesses.
Documentary evidence may be presented by the Department or Contractor or
Subcontractor. Failure to request a formal hearing within ten (10) days after
receipt of recommendation from the Prequalification Committee shall act as a
waiver of the Contractor's or Subcontractor's further appeal rights. |
| (c) |
If a request for an informal hearing is
received timely from the Contractor or Subcontractor, the Board of Review shall
set a date and time for an informal hearing to be held in the matter, and shall
issue a written notice of the informal hearing to the Contractor or
Subcontractor. The written notice of the informal hearing shall inform the
Contractor or Subcontractor of the charges against it and of the date and time
of the informal hearing. The written notice may be served personally or by
certified mail, return receipt requested, mailed to the Contractor's or
Subcontractor's last known mailing address. |
| (d) |
Within fourteen (14) days after the
conclusion of the informal hearing, the Board of Review shall render a written
Preliminary Decision. The Board of Review shall cause a copy of this
Preliminary Decision to be served upon the Contractor or Subcontractor, which
may be served personally or by certified mail, return receipt requested, mailed
to the Contractor's or Subcontractor's last known mailing address. Within
fourteen (14) days of receipt of the Preliminary Decision, the Contractor or
Subcontractor may request a formal hearing with the Commissioner. Failure to
request a formal hearing within fourteen (14) days after receipt of the
Preliminary Decision shall act as waiver of any additional appeal rights of the
Contractor or Subcontractor and the Preliminary Decision of the Board of Review
shall become the Final Decision. |
| (e) |
In the event that a formal hearing has
been requested by the Bidder, the Commissioner shall set a date and time for a
hearing to be held in the matter, and shall issue a written notice of the
hearing to the Contractor or Subcontractor. The written notice of the hearing
shall inform the Contractor or Subcontractor of the charges against it, of the
date and time of the hearing, and of its right to attend, to be represented by
counsel, to cross-examine witnesses against it, and to respond and present
evidence on all issues. The written notice may be served personally or by
certified mail, return receipt requested, mailed to the Contractor's or
Subcontractor's last known mailing address. |
| (f) |
Within thirty (30) days after the
hearing, the Commissioner shall issue a Final Decision and shall cause a copy
of this recommendation to be served upon the Contractor or Subcontractor, which
may be served personally or by certified mail, return receipt requested, mailed
to the Contractor's or Subcontractor's last known mailing address. In the event
the Commissioner determines that there is good cause for suspension or
revocation, the Commissioner shall direct the Prequalification Committee either
to revoke the Contractor's Certificate of Qualification or Subcontractor's
Certificate of Registration or to suspend it for a period of no less than
thirty (30) days and no more than five (5) years. |
| (g) |
An appeal from the Final Decision of the
Commissioner is directly appealable to the Superior Court. |
|
| (3) |
The suspension or revocation of the
Contractor's Certificate of Qualification or Subcontractor's Certificate of
Registration shall not affect obligations under any pre-existing contracts
except as may be amended by the parties. |
| (4) |
In the event a successful bidder refuses
or fails to execute and return the contract and forfeits the bid bond, the
Prequalification Committee will evaluate the circumstances and is authorized to
disqualify the bidder for submitting a bid on the same project if it is
reoffered for bids. |
Contractors who submit bids to the Department of Transportation
or Subcontractors who submit quotes on subcontract work to other Contractors
who are bidders on Department contracts shall be governed according to the
following:
| (a) |
Contractors and
Subcontractors shall conduct their business in Georgia strictly in accordance
with the laws of the State of Georgia, and of the United States, and with the
lawfully promulgated regulations of the Department. |
| (b) |
Contractors and Subcontractors shall:
| 1. |
Bid or quote competitively without regard
to any artificial territories or boundaries created or designated by agreement
with any other potential Contractor or Subcontractor. |
| 2. |
Not seek or obtain, directly or
indirectly, from any other potential Contractor or Subcontractor, a
deliberately higher, noncompetitive bid or quote than its bid or
quote. |
| 3. |
Not agree with any other
potential Contractor or Subcontractor, directly or indirectly, to submit a bid
or quote deliberately higher than the bid or quote submitted by any other
potential Contractor or Subcontractor. |
| 4. |
Not seek or obtain, directly or
indirectly, from any other potential Contractor or Subcontractor, an agreement
not to submit a bid or quote. |
| 5. |
Not seek to prevent or discourage anyone, through threats or intimidation,
implied or direct, from submitting a bid or quote. |
| 6. |
Not seek or engage in an agreement,
directly or indirectly, with any other potential Contractor or Subcontractor,
to allocate any contract or subcontract to its firm or any other
firm. |
| 7. |
Not engage in any of the
acts or practices commonly known as "Complimentary Bidding" on a contract or
subcontract. |
| 8. |
Not protect the low
bidder on an unawarded contract upon rebid of that contract. |
| 9. |
Not contact, either directly or
indirectly, other potential competing Contractors or Subcontractors to
determine if that Contractor or Subcontractor is, or is not, going to bid or
quote on a contract or subcontract on which you are bidding or quoting. Neither
Subcontractors nor material suppliers shall provide to prime Contractors any
information relating to their quotes to any other prime Contractor. This Rule
does not apply to discussions among participants of joint bids. |
|
| (c) |
A showing of a violation of
any of the foregoing Subsections (b)1.-9. shall constitute evidence of
unacceptable behavior by a Contractor or Subcontractor and the Prequalification
Committee shall be authorized to revoke the certificate of qualification or
certification of registration under Rule
672-5-.15. Subsections (b)1.-9. above,
shall not be construed to restrict (1) legitimate and lawful joint bids, or (2)
the giving or receiving of legitimate quotes to perform subcontract
work. |
