OAR 731-005-0710: Disqualification of an Entity

(1) Authority. ODOT may disqualify an Entity from consideration of award of ODOT's Contracts after providing the Entity with notice and a reasonable opportunity to be heard in accordance with section (3) of this rule. (a) Standards for Conduct Disqualification. As provided in ORS 279C.440, ODOT may disqualify an Entity for: (A) Conviction for the commission of a criminal offense as an incident in obtaining or attempting to obtain a public or private Contract or subcontract, or in the performance of such Contract or subcontract; (B) Conviction 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 that currently, seriously and directly affects the Entity's responsibility as a Contractor; (C) Conviction under state or federal antitrust statutes; or (D) Violation of a public or private Contract provision that is regarded by ODOT to be so serious as to justify Disqualification under ORS 279C.440(2)(d). (E) The Entity does not carry workers’ compensation or unemployment insurance in compliance with statutory and contractual requirements. (b) Standards for DBE Disqualification. As provided in ORS 200.065, 200.075 or 279A.110, ODOT may disqualify an Entity's right to submit an Offer or to participate in a Contract (e.g. subcontractors) as follows: (A) For a DBE Disqualification under ORS 200.065, ODOT may disqualify an Entity upon finding that: (i) The Entity fraudulently obtained or retained or attempted to obtain or retain or aided another person to fraudulently obtain or retain certification as a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business; (ii) The Entity knowingly made a false claim that any person is qualified for certification or is certified under ORS 200.055 for the purpose of gaining a Contract or subcontract or other benefit; or (iii) The Entity has been disqualified by another Agency pursuant to ORS 200.065. (B) For a DBE Disqualification under ORS 200.075, ODOT may disqualify an Entity upon finding that: (i) The Entity has entered into an agreement representing that a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business pursuant to ORS 200.055 certified enterprise, will perform services or supply materials under a Contract without the knowledge and consent of the certified enterprise; (ii) The Entity exercises management and decision-making control over the internal operations, as defined by ORS 200.075(1)(b), of any certified enterprise; (iii) The Entity uses a disadvantaged business enterprise (“DBE”), a minority-owned business (“MBE”), a woman-owned business (“WBE”), a business that a veteran owns, or an emerging small business (“ESB”) to perform services under a Contract or to provide supplies under a Contract to meet an established DBE/MBE/WBE/ESB goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075(4), in performing its obligations under the Contract; or (iv) If an Entity is disqualified for a DBE Disqualification under ORS 200.075, ODOT shall not permit such Entity to participate in ODOT's Contracts. (C) For a DBE Disqualification under ORS 279A.110, ODOT may disqualify an Entity if ODOT finds that the Entity discriminated against a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business in awarding a subcontract under a prior Contract with ODOT. (2) Notice of Intent to Disqualify. ODOT shall notify the Entity in Writing of a proposed Disqualification under subsection (1) above, personally or in writing. This notice shall: (a) State that ODOT intends to disqualify the Entity; (b) Set forth the reasons for the Disqualification; (c) Include a statement of the Entity's right to a hearing if requested in Writing within the time stated in the notice and that if ODOT does not receive the Entity's Written request for a hearing within the time stated, the Entity shall have waived its right to a hearing; (d) Include a statement of the authority and jurisdiction under which the hearing will be held; (e) Include a reference to the particular sections of the statutes and rules involved; (f) State the proposed Disqualification period; and (g) State that the Entity may be represented by legal counsel. (3) Hearing. ODOT shall schedule a hearing upon ODOT receipt of the Entity's timely request. ODOT shall notify the Entity of the time and place of the hearing and provide information on the procedures, right of representation and other rights related to the conduct of the hearing prior to hearing. (4) Notice of Disqualification. ODOT will notify the Entity in Writing of its Disqualification under subsection (1) above, personally or by registered or certified mail, return receipt requested. The notice shall contain: (a) The effective date and period of Disqualification; (b) The grounds for Disqualification; and (c) A statement of the Entity's appeal rights and applicable appeal deadlines. For a Conduct Disqualification or a DBE Disqualification under ORS 279A.110, the disqualified Entity must notify ODOT in Writing within three business days after receipt of ODOT's notice of Disqualification if the Entity intends to appeal ODOT's decision.