§ 2.93.060. Hearing procedure on contractor's or vendor's nonresponsibility.

A.

The City finds that, in order to promote integrity in its contracting processes and to protect the public interest, it shall be the City's policy to conduct business only with responsible contractors and vendors. Notwithstanding anything to the contrary in this Code, the provisions of this Section shall apply to a determination of the nonresponsibility of a contractor or vendor.

B.

Prior to awarding a contract, the City may determine that a contractor or vendor submitting a bid is nonresponsible for purposes of that bid. Before a determination of nonresponsibility is made there shall be a hearing by the Hearing Officer in accordance with the procedures stated in this Section.

C.

The City Manager or designee shall act as Hearing Officer and shall conduct the hearing. Where the Board of Water Commissioners is the awarding authority, the Hearing Officer shall be the General Manager of the Water Department or designee.

At least fourteen (14) days prior to the hearing before the Hearing Officer, the Hearing Officer shall give written notice to the contractor or vendor which notice shall contain the evidence to be presented by the City relating to the issue of nonresponsibility and the date, time and location of the hearing.

D.

At the hearing, the contractor and/or the contractor's attorney or the vendor and/or the vendor's attorney may submit documentary evidence and present witnesses. The City will submit into the record the evidence previously provided to the contractor or vendor and may present witnesses and offer rebuttal evidence. A recording of the hearing may be made at the option of the City or the contractor or vendor. The Hearing Officer will decide the order of proceeding and any time limits on the presentation of evidence and witnesses. If the contractor or vendor or their attorney does not appear at the hearing, the Hearing Officer may proceed if proper notice to the contractor or vendor was given. Other than at the hearing, there shall not be any direct communication between the contractor or vendor or anyone acting on the contractor's or vendor's behalf and the Hearing Officer. All other communications to the Hearing Officer shall be in writing and shall be submitted to the City Clerk at least one (1) day prior to the date of the hearing, for delivery to the Hearing Officer.

E.

After the hearing, the Hearing Officer will promptly prepare a decision on the issue of nonresponsibility and deliver it to the contractor or vendor and to the City Attorney. The decision will state the basis for the determination of nonresponsibility or responsibility. The determination shall be based on the fitness and capacity of the contractor or vendor to satisfactorily perform the obligations of the contract, whether or not the contractor or vendor is qualified to perform those obligations, whether or not the contractor or vendor is trustworthy, and such other bases as may be relevant. The Hearing Officer may consider, among other things:

(1)

Any act or omission or pattern or practice of acts or omissions that negatively reflect on the contractor's or vendor's quality, fitness or capacity to perform;

(2)

Any act or omission that indicates a lack of integrity or honesty;

(3)

The making of a false claim against the City or any other public entity or engaging in collusion;

(4)

The contractor's or vendor's financial capability to perform;

(5)

The contractor's or vendor's experience with its sureties and insurance companies;

(6)

The contractor's or vendor's ability to perform on time and on budget, either in the present or as performed in the past;

(7)

Whether or not contractor or vendor has performed satisfactorily in the past on its contracts with the City or any other public entity, including, but not limited to, whether or not contractor or vendor has been in default under a contract with the City or any other public entity;

(8)

The contractor's or vendor's safety record;

(9)

The contractor's or vendor's history of claims, litigation, and termination or disqualification on public projects; and

(10)

Contractor's or vendor's contract management skills, including, but not limited to, the use of scheduling tools, submission of schedules, compliance with prevailing wage rates, and certification of accurate payroll documents.

F.

The City Clerk shall mail a copy of the decision to the contractor or vendor. The contractor or vendor shall have five (5) days to file a notice of appeal with the City Clerk. On receipt of such notice, the City Clerk shall set a time for a hearing on the appeal before the City Council and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The City Clerk shall set the time for the appeal hearing within fourteen (14) days after the City receives the notice of appeal but no sooner than five (5) days after the date shown on the notice to the contractor or vendor of the time of the appeal hearing. The City Clerk shall simultaneously send a copy of the decision of the Hearing Officer to the City Council.

If the Board of Water Commissioners is the awarding authority, the City Clerk shall immediately forward the notice of appeal to the General Manager of the Water Department who shall set the time for a hearing of the appeal before the Board of Water Commissioners and shall send written notice of the time of the appeal hearing to the contractor or vendor at least five (5) days prior to the hearing. The General Manager shall set the time for the appeal hearing on the date of the first meeting of the Board of Water Commissioners held after the General Manager receives the notice of appeal but which time is, nevertheless, at least five (5) days after the date shown on the notice to the contractor or vendor of the time of the appeal hearing. The General Manager shall simultaneously send a copy of the decision of the Hearing Officer to the Board of Water Commissioners.

G.

No new evidence or testimony may be presented by either the City or the contractor or vendor at the appeal hearing. The City Council or the Board of Water Commissioners, in its discretion, may limit the time allotted for an oral presentation by both the City and the contractor or vendor. At the conclusion of the appeal hearing, the City Council or the Board of Water Commissioners shall receive the decision of the Hearing Officer and either adopt the decision of the Hearing Officer or make its own finding on the issue of nonresponsibility for the purposes of the particular contract, and the City Clerk shall send a certified copy of the minute entry to the contractor or vendor with respect to decision of the City Council or the Secretary to the General Manager of the Water Department shall send a certified copy of the order of the Board to the contractor or vendor. Service of the minute entry or order shall be deemed made when it is deposited in the mail.

H.

The decision by the City Council or the Board of Water Commissioners on appeal to find a contractor or vendor nonresponsible for a particular contract is solely within the discretion of the body acting on behalf of the City.

(Ord. C-7805 § 1, 2002)