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Chapter 505: Debarment

Section 505.01 Home Rule Powers Asserted

Notwithstanding any requirements or conflicting provisions of any other law or regulation, Cuyahoga County hereby exercises its home rule powers to establish its own Debarment Law and empowers the Cuyahoga County Inspector General and the Cuyahoga County Debarment Review Board to administer the Debarment Law in accordance with Chapter 505 of the Cuyahoga County Code.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )          

Section 505.02 Scope of Debarment

  1. Prohibitions on Debarred Contractors
    1. No Submission of Offers.  A contractor debarred under Chapter 505 of the Cuyahoga County Code may not submit any bids, proposals, statements of qualifications, or any other offers to contract with, enter into an agreement with, or to in any other way do business with Cuyahoga County for the duration of the debarment period regardless of whether the work under the proposed contract or agreement will take place after expiration of the debarment period. 
    2. No Contracting with the County.  A contractor debarred under Chapter 505 of the Cuyahoga County Code may not enter into any contract or agreement with the County for the duration of the debarment period.
    3. No Subcontracting on County Contracts.  A contractor debarred under Chapter 505 of the Cuyahoga County Code may not serve as a subcontractor on any county contract or agreement for the duration of the debarment period.
  2. Prohibitions on County Contractors. No contractor may subcontract any work on a county project to a debarred contractor.  A contractor who knowingly subcontracts work to a debarred contractor shall be subject to automatic debarment for a period of three years. 
  3. Prohibitions on County.
    1. The County may not contract with, enter into an agreement with, or otherwise do business with a debarred contractor.
    2. The County may not allow any of its contractors to subcontract with any debarred contractor on a county project. 
    3. The County shall automatically disqualify any and all bids, proposals, statements of qualifications, or any other offers received from a debarred contractor during the period of debarment.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.03 Grounds for Debarment

  1. Five-Year Debarment.  The Cuyahoga County Inspector General may debar, for a period of five years, a contractor for a conviction of or a civil judgment within the preceding five years anywhere in the United States, its territories, or outlying areas, for any of the following:            
    1. Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract;
    2. Violation of any federal, state, or local ethics laws, regulations, or policies;
    3. Violation of any federal or state antitrust statutes, regulations, or policies;
    4. Violation of any federal, state, or local laws, regulations, or policies relating to the submission of bids, proposals, statements of qualifications, or any other type of offers;
    5. Collusion to restrain competition by any means;
    6. Embezzlement;
    7. Theft;
    8. Forgery;
    9. Bribery;
    10. Falsification;
    11. Destruction of records;
    12. Making false statements;
    13. Tax evasion;
    14. Criminal violation of any federal, state, or local tax laws;
    15. Violation of any federal, state, or local laws intended to protect against abusive debt collection practices, such as the federal Fair Debt Collection Practices Act;
    16. Receiving stolen property;
    17. Intentionally affixing a label indicating that a product was made in a jurisdiction when the product was not made in that jurisdiction;         
    18. Any other cause listed in Section 505.03(B) or Section 505.03(C) of this Chapter; or
    19. Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a contractor.
  2. Three-Year Debarment.  The Cuyahoga County Inspector General may debar, for a period three years, a contractor, based upon a reasonable belief, for any of the following within the preceding three years:
    1. Violation of the terms of a public contract or subcontract in a serious manner, such as:
      1. Willful or reckless failure to perform in accordance with the terms of one or more contracts; or
      2. A history of failure to perform, or of unsatisfactory performance of, one or more contracts;
    2. Violation of the terms, conditions, or requirements of a Small Business Enterprise program, a Disadvantaged Business program, a Minority and Female Business Enterprise program, or any other similar program, including, but not limited to, acting as a front company by purporting to be a Small Business Enterprise, a Disadvantaged Business, a Minority or Female Business, a Veteran owned business, or any other such type of business  when not in fact;
    3. Violation of prevailing wage laws;
    4. Submission of false information in connection with any bids, proposals, statements of qualifications, or any other offers to the County or any other public or private entity;
    5. Abuse of the selection process by repeatedly withdrawing bids or proposals before purchase orders or contracts are issued or failing to accept orders based upon firm bids;
    6. Attempting to influence a public employee to breach ethical conduct standards or to influence contract award;
    7. Commission of an unfair trade practice under any federal, state, or local laws;
    8. Failure to cooperate in monitoring contract performance by refusing to provide information or documents required in a contract or failing to respond to complaints;
    9. Failure to cooperate with a Cuyahoga County or any other public investigation or audit;
    10. Filing a lawsuit against Cuyahoga County that a court finds to be frivolous or filed in bad faith;
    11. Provided that the tax or court-cost liability is determined to finality and the contractor is delinquent in making payment, delinquent taxes or court costs as follows:
      1. Delinquent federal or state taxes in an amount that exceeds $3,000; or
      2. Any delinquent Cuyahoga County taxes or court costs in any amount;
    12. Any other cause listed in Section 505.03(A) of this Chapter without regard to whether there is a conviction or civil judgment against the contractor for such cause;
    13. Violation of any other responsible business practice; or
    14. Any other cause determined by the Inspector General to be sufficiently serious and compelling so as to represent lack of good faith or responsibility by the contractor.
  3. 18- Month Debarment.  The Cuyahoga County Inspector General may debar, for a period of 18 months, a contractor, based upon a reasonable belief, for any of the following within the preceding 18 months:
    1. Breach or violation of any contract or agreement with the County; or
    2. Commission of an act of moral turpitude in its business practices not provided for in Section 505.03, subsections A and B herein. 
  4. Single Debarment Per Incident. The Inspector General may not debar a contractor under this Chapter more than once for the same incident.  However, if a contractor is debarred under Section 505.03(B) or Section 505.03(C) and the contractor is later convicted or subjected to a civil judgment for the same incident for which the contractor was debarred, the Inspector General may automatically extend the duration of the debarment to five years.  If the Inspector General extends the duration of any debarment under this provision, the contractor may appeal the extension to the Debarment Review Board and from there to the Cuyahoga County Court of Common Pleas under Ohio Revised Code Chapter 2506 in the same manner as it has the right to appeal the initial debarment under Section 505.06 of this Chapter.
  5. Term of Debarment if Extenuating Circumstances Exist.
    1. If the Inspector General is satisfied that extenuating circumstances warrant a reduction in the duration of a debarment, the Inspector General may reduce the duration of a debarment as follows:
      1. The Inspector General may reduce the duration of a five-year debarment under Section 505.03(A) to a three-year debarment;
      2. The Inspector General may reduce the duration of a three-year debarment under Section 505.03(B) to an 18-month debarment; or
      3. The Inspector General may reduce the duration of an 18-month debarment under Section 505.03(C) to a one-year debarment.
    2. If the Inspector General reduces the duration of a debarment as provided herein, the Inspector General must expressly identify the extenuating circumstances in the Notice of Debarment.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.04 Actions of Associated Persons or Entities Giving Rise to Debarment or Suspension of Contractors

If a contractor is an entity, it shall be subject to debarment under this Chapter if the actions or inactions giving rise to debarment are of a person or entity (hereinafter “associated person” or “associated entity”) that has a substantial interest in the contractor entity or whose actions should be attributed to the contractor.  The Inspector General shall consider the actions of an associated person or associated entity in determining whether the contractor shall be debarred.  The Inspector General may determine that the associated person or entity has a substantial interest in the contractor entity or that its actions should be attributed to the contractor entity, and may thus debar the contractor entity, if any of the following exists:

  1. The associated person or associated entity has either a direct or beneficial ownership or control of five percent or more of the contractor entity;
  2. The associated person or associated entity is an officer, director, or otherwise involved in the management of the contractor entity;
  3. The associated person or associated entity has participated in contract negotiations, is a signatory to a contract, or has the authority to establish, control, or manage the contract performance or labor practices of the contractor;
  4. The associated person or associated entity is a parent, subsidiary, or other affiliate of the contractor entity;
  5. The associated person or associated entity provided any seed money or other monetary support within the last five years to the contractor entity;
  6. The associated person or associated entity provided any loans, except for loans provided by federally chartered banks and credit unions, (whether paid or unpaid) within the last five years to the contractor entity; or
  7. Any other action of an associated person or associated entity demonstrating that the associated person or entity has a substantial interest in the contractor entity or that their actions should be attributed to the contractor entity. 

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.05 Debarment Web Site

The County shall give notice of debarment under Chapter 505 of the Cuyahoga County Code on the County’s web site as follows:

  1. The Agency of Inspector General shall maintain a listing on its web site of all debarred contractors.  The listing shall include the date of the issuance of the debarment and the expiration thereof.
  2. The Cuyahoga County Office of Procurement and Diversity shall provide a link on its web site to the Agency of Inspector General’s list of debarred contractors.
  3. The Agency of Inspector General shall exercise good faith efforts to expeditiously remove contractors from the list of debarred contractors upon the expiration of the debarment period or reversal of the Agency’s debarment of a contractor.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.06 Debarment Procedures

The following procedures shall govern the debarment process:
  1. Debarment by the Inspector General.               
    1. Notice of Potential Debarment and Opportunity for Contractor to Respond.
      1. Prior to debarment, the Inspector General shall provide a written “Notice of Potential Debarment” to the contractor.  The Notice of Potential Debarment shall include all of the following:
        1. A notice that the Inspector General is considering debarring the contractor;
        2. A notice that if the contractor is debarred, the contractor will not be able to enter into any contracts or agreements with the County and that it will not be able to submit any bids, proposals, statements of qualifications, or any other offers to the County;
        3. A notice that if the contractor is debarred, the contractor will be barred from doing any work as a subcontractor on a county contract or agreement;
        4. A notice that if the contractor is debarred, the County will automatically disqualify any bids, proposals, statements of qualifications, or any other offers from the contractor;
        5. A notice of the grounds for the potential debarment;
        6. A notice of the duration of the potential debarment;
        7. A notice that the contractor has the right to submit written materials and evidence to the Inspector General to explain why the contractor should not be debarred;
        8. A notice of the due date and time by which any written materials and evidence submitted by the contractor must be received by the Inspector General.  The due date and time may not be less than 14 calendar days and no more than 60 calendar days from the Inspector General’s mailing or other means of transmitting the notice to the contractor; and
        9. A notice that the contractor has the right to request a meeting with the Inspector General or his or her representative to explain the contractor’s evidence and why the contractor should not be debarred.  The Notice shall specify the location and two dates on which the meeting may take place if the contractor were to request a meeting.  The Notice shall also specify the means and deadline by which the contractor may request the meeting and choose one of the two dates provided by the Inspector General in the Notice.  The Notice shall also provide that if the contractor does not request the meeting by the deadline and in the manner provided for in the Notice, the contractor shall be deemed to have waived its right to the meeting. 
      2. For the purposes of this Section, “Notice” shall mean a written communication sent by certified mail, return receipt requested, to the last known address of a party, its identified counsel, or agent for service of process.  In the case of a business, such notice may be sent to any partner, principal officer, director, owner or co-owner, or joint venture.  If no return receipt is received within 10 calendar days of mailing, receipt shall then be presumed.
    2. Inspector General’s Decision on Debarment.
      1. After expiration of the time period provided in the Notice of Potential Debarment in which the contractor may respond to the Notice of Potential Debarment, the Inspector General shall render a decision on the potential debarment within a reasonable time period under the circumstances.
      2. If the Inspector General determines not to debar the contractor, the Inspector General shall issue a written notice of his/her determination to the contractor.  
      3. If the Inspector General determines to debar the contractor, the Inspector General shall do all of the following:
        1. The Inspector General shall add the contractor on the listing of debarred contractors on its web site and shall issue a written “Notice of Debarment” to the Contractor.
        2. The Notice of Debarment shall include all of the following:

          a. A notice that the contractor has been debarred;

          b. A notice that the debarred contractor may not submit any bids, proposals, statements of qualifications, or any other such offers to the County or otherwise enter into any contract or agreement with the County;

          c. A notice that the debarred contractor may not do any work as a subcontractor on any county contract or agreement;

          d. A notice that the County will automatically disqualify any bids, proposals, statements of qualifications, or any other contractual offers to the County from the debarred contractor;

          e. A notice of the duration of the debarment, including the starting and expiration dates of the debarment;

          f. A notice that the debarred contractor may appeal the debarment to the Debarment Review Board within 30 days by filing the original copy of its Notice of Appeal with the Inspector General and a copy with the Clerk of the Debarment Review Board;

          g. A notice of the exact due date on which the 30th day falls and by which the Notice of Appeal must be received by the Inspector General and the Clerk of the Debarment Review Board;

          h. A notice that the debarred contractor bears the burden of proof before the Debarment Review Board;

          i. A notice that the debarred contractor has the right to introduce testimony and to cross-examine witnesses at the hearing before the Debarment Review Board;

          j. A notice that if the debarred contractor intends to introduce evidence before the Debarment Review Board that was not submitted to the Inspector General, the debarred contractor must submit, with sufficient detail and factual background, the specific assignments of error upon which the debarred contractor seeks to rely in its appeal before the Debarment Review Board, and must identify all such evidence with specificity and include copies of any written evidence within 30 days of filing its Notice of Appeal. The evidence submission deadline may be extended only at the discretion of the Debarment Review Board;

          k. A notice that the debarred contractor may not introduce any evidence at the hearing before the Debarment Review Board that was not submitted to the Inspector General in response to the Notice of Potential Debarment or included by the evidence submission deadline as provided in section 505.06(A)(2)(c)(ii)(j) herein; and

          l. A notice that a debarred contractor’s failure to file its Notice of Appeal as provided herein within the 30-day time period as provided in the Notice of Debarment is a jurisdictional failure that may not be otherwise remedied.

          m. A notice that the Inspector General shall, upon the request of the debarred contractor, produce copies of all written evidence the Inspector General reviewed when making his or her decision to debar, unless such production is otherwise prohibited by law.
  2. Appeal to the Debarment Review Board.
    1. A contractor may appeal the Inspector General’s decision to affirm the debarment to the Cuyahoga County Debarment Review Board within 30 days of the Inspector General’s issuance of the decision.
    2. The Debarment Review Board shall set the appeal for a hearing in an open meeting within a reasonable time period.
    3. The debarred contractor shall bear the burden of proof before the Debarment Review Board.
    4. The debarred contractor shall have the right to introduce testimony and to cross-examine witnesses at the hearing. 
    5. The Debarment Review Board shall render its decision on the appeal within a reasonable time period. 
  3. Appeal to the Cuyahoga County Court of Common Pleas.
    1. If the Debarment Review Board affirms the Inspector General’s debarment, the debarred contractor may appeal the Board’s decision to the Cuyahoga County Court of Common Pleas within 30 days of the Board’s issuance of its decision.
    2. The appeal to the Court of Common Pleas shall be governed by Revised Code Chapter 2506.

(Ordinance Nos. O2016-0002, Enacted 4/26/2016, Effective 5/27/2016; O2014-0031, Enacted 4/28/2015, Effective 4/29/2015; O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 ) 

Section 505.07 Suspensions of Contractors 

The Inspector General may suspend, without additional review, for a period not to exceed one year, a contractor currently suspended or debarred by any of the following, provided that such suspension may not last longer than the underlying suspension or debarment:

  1. The United States Government or any board, commission, committee, department, agency, or other authority thereof;
  2. The District of Columbia, Puerto Rico or any of the 50 States or any board, commission, committee, department, agency, or other authority thereof;
  3. Any quasi-governmental entity, including, but not limited to, non-profit, private corporations, such as JobsOhio or the Indiana Economic Development Corporation, established by any of the 50 States, the District of Columbia, or Puerto Rico;
  4. Any political subdivision or other governmental or quasi-governmental board, commission, committee, corporation, or other such entity in the United States, including, but not limited to, counties, municipalities, villages, townships, school districts, housing authorities, solid waste districts, sewer districts, port authorities, boards of developmental disabilities, boards of health, boards of alcohol, drug and mental health services, land banks, and community development corporations; or
  5. Any public or private educational institutions.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.08 Debarment Duration to Include Suspension   

If a contractor suspended by the Inspector General is later debarred by the Inspector General for the same incident, the duration of the suspension shall count toward the duration of the debarment so that the total combined duration of the debarment and suspension for the same incident does not exceed the total duration of debarment allowed for the same incident.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.09 Prospective Application

Any debarment under this Chapter shall not act to invalidate otherwise properly authorized county contracts entered before the enactment of this Chapter.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.10 Commencement of Department Period and Good Faith in Exercising Discretion

  1. Debarment Period to Commence from Date of Issuance of Debarment.

    The debarment period for any debarment issued under this Chapter shall commence from the date of the Inspector General’s issuance of the debarment and posting of the debarment on the Inspector General’s web site. 
  2. Good Faith in Exercising Discretion.

    The Cuyahoga County Inspector General and Debarment Review Board shall exercise their discretion in good faith to ensure consistent application of this Chapter.   

(Ordinance Nos. O2014-0031, Enacted 4/28/2015, Effective 4/29/2015; O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 ) 

Section 505.11 Impact of Reversal or Expiration of Debarment

A debarment under this Chapter that is either expired or reversed by the Debarment Review Board or a court under R.C. Chapter 2506 may no longer be used for any purposes against the debarred contractor.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )  

Section 505.12 Exceptions and Exemptions

  1. Emergency Contracts and Purchases. The prohibitions outlined in this Chapter shall not apply to any contracts made for any emergency events pursuant to Section 501.01(P) of the Cuyahoga County Code.  
  2. Sole Source Contracts. If a County contracting authority is unable to identify more than one source through which a purchase or contract may be made, and the sole source is on the Debarred Contractors’ List, the contracting authority may apply to the Cuyahoga County Council for an exemption from the requirements of this Chapter.  If Council is satisfied with the sole-source status of the contractor and the need for the proposed contract or purchase, it may grant the exemption by adopting a resolution.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )

Section 505.13 Training

The Inspector General shall train vendors on the County’s debarment requirements and procedures as part of the vendor ethics trainings required by the Ethics Ordinance.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 ) 

Section 505.14 Compliance with Federal and State Debarment Requirements

The Inspector General shall take all steps necessary to ensure that the County is in compliance with all mandatory federal and state debarment obligations to which the County is subject.

(Ordinance No. O2012-0026, Enacted 12/11/2012, Effective 12/13/2012 )