DEBARMENT POLICY ON
NON-RESPONSIBLE PERSONS IN PROCUREMENT TRANSACTIONS
Section:
401.6
Board Report:
00-0322-PO1
Date Adopted:
March 22,
2000
Policy: 1.
GENERAL
INFORMATION
1.1
Policy
(a) In order to ensure the effective and
efficient administration of the Board's procurement practices, it is policy of
the Chicago Board of Education (the "Board") to do business only with
responsible persons. Toward this end, the Board shall have the discretion to
exclude from participation in its procurement transactions and activities a
person who is debarred pursuant to this Debarment Policy and Procedures or who
appears on any suspended, excluded or debarment list issued by any agency of any
Federal, State or local government. (b) Debarment is a serious action which
may lead to the person being excluded from procurement transactions with the
Board for a period of up to three years. Accordingly, this Debarment Policy and
Procedures provide a person subject to a debarment action with due process
pursuant to which the seriousness of the person's acts or omissions and any
mitigating factors will be considered in making any debarment decision.
Debarment shall be used only in the public interest and for the Board's
protection, not for purposes of punishment.
1.2 Purpose and Applicability
The
Debarment Policy and Procedures have been adopted by the Board to further its
goal of protecting the Board from business relations with
dishonest, unethical, or otherwise irresponsible
persons by:
(a) setting forth the acts or omissions
that are grounds for debarment; (b) providing for the maintenance and
updating of a list of debarred participants and participants who are excluded
from participation in covered transactions; (c) setting forth the consequences of a
debarment of voluntary exclusion; (d) prescribing procedures to provide due
process that the Board shall use to debar any person; and (e) offering
such other guidance as is necessary for the effective implementation and
administration of this Debarment Policy and Procedures.
1.3 Coverage
The Debarment Policy
and Procedures apply to: (i) any person who has participated, is currently
participating or may reasonably be expected to participate in a covered transaction, irrespective of the source of funding; (ii) any
person who has participated, is currently participating or may reasonably be
expected to participate in a related transaction,
irrespective of the source of funding; (iii) any principal of the persons
described in (i) and (ii) above; and (iv) any affiliate of the
persons described in (i), (ii) or (iii)
above.
1.4 Definitions
(a) Affiliate. Persons are affiliates of
each other if, directly or indirectly, either one controls or has the power to
control the other, or, a third person controls or has the power to control both.
Indicia of control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities and
equipment, common use of employees or a business entity organized or following
the suspension, debarment, bankruptcy, dissolution, or reorganization of a
person which has the same or similar management, ownership or principal employee
as the debarred, excluded or voluntarily excluded person. (b) Agency. Any executive department or
other agency of the executive branch of a local, State or Federal government,
excluding independent regulatory agencies. (c) Board.Board of Education of the City of Chicago. (d) Benefits. Money or any other thing of
value provided by, or realized because of, a Board procurement transaction or
activity. Thing of value includes insurance or guarantees of any
kind. (e)
Civil Judgment. The disposition of a civil action by any court of competent
jurisdiction, whether entered by verdict, decision, settlement, stipulation or
otherwise creating a civil liability for the wrongful acts complained
of. (f)
Consent Decree.A settlement between the Board and a
person whereby the person promises to refrain from certain acts or omissions
prohibited by the Debarment Policy. (g) Contractor. As used in this part, contractor means any person
that: (1) submits offers form, or is awarded, or reasonably may be expected to
submit offers for or be awarded, a bid and/or contract with the government or
the Board (or a subcontract under a government or Board contract);
or (2) conducts business with the government or the Board s an agent or
representative of another contractor. (h) Conviction. A judgement of conviction of a criminal offense by any court of
competent jurisdiction, whether entered upon a verdict or a plea, including a
please of no contest ("nolo contendere"). (i) Covered Transaction. Any procurement
program, activity, agreement or transaction with the Board, regardless of type,
amount or source of funding. (j) Debarment. An involuntary exclusion by the Board in accordance with the
Debarment Policy and Procedures with respect to a person's participation in
covered transactions and/or related transactions. (k) Ex
parte Communication. Any communication with a
Hearing Officer, direct or indirect, oral or written, concerning the merits of
procedures of any pending proceeding which is made by a party in the absence of
any other party. (l)
Government.
Any local, State or Federal government, unless otherwise
designated. (m)
Hearing Officer. An official appointed by the Chief Executive Officer or designee to
preside over debarment proceedings. The official need not be an administrative
law judge, attorney or employee of the Board, but must be adjudged by the Chief
Executive Officer or designee to have sufficient expertise to conduct
proceedings under this Debarment Policy and Procedures. (n) List
of Parties Excluded from Board Procurement Transactions. A list compiled, maintained and distributed internally by the Chief
Purchasing Officer, containing the names of and other information regarding
contractors debarred, suspended or voluntarily excluded under the Debarment
Policy and Procedures. (o)
Notice. The
written communication served on a Respondent in accordance with Section 3.2 of
the Debarment Policy Procedures, to initiate a debarment action. Notice shall be
considered to have been received by the addressee five (5) days after being sent
to the last known address by the Board from information provided by the
addressee. (p)
Participant.
Any person who submits a proposal for, enters into, or reasonably may be
expected to enter into a covered transaction. This term also includes any person
who acts on behalf of or is authorized to commit a participant in a covered
transaction as an agent or representative of another
participant. (q)
Person. Any individual, corporation,
partnership, association, unit of government or legal entity, however organized,
except: foreign governments or foreign governmental entities, public
international organizations, foreign government owned (in whole or in part) or
controlled entities and entities consisting wholly or partially of foreign
governments or foreign governmental entities. (r) Preponderance of the Evidence. Proof
by information that, compared with that opposing it, leads to the conclusion
that the fact at issue is more probably true than not. (s) Principal. Officer, director, owner,
partner, key employee or other person within a participant with significant
management or supervisory responsibilities; a person who has a critical
influence on or substantive control over a covered transaction, whether or not
employed by the participant; or any affiliate of a participant, the operations
of which are so intertwined with the participant that the separate corporate
identities may be disregarded. (t) Proposal. Any response to a solicited or unsolicited bid, application, request
for proposal, invitation to bid or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or indirectly,
in or under a covered transaction. (u) Related
Transaction. A transaction directly related to a
covered transaction, which assists the participant in executing a covered
transaction, regardless of the extent the person performing the related
transaction has a critical influence or on substantive control over the covered
transaction. Related transactions include, but are not limited to, transactions
of the participant with any of the following persons: (1)
contractors; (2) principal
investigators; (3) loan officers; (4) staff
appraisers and inspectors; (5) underwriters; (6) bonding
companies; (7) appraisers and
inspectors; (8) real estate agents and
brokers; (9) management and marketing
agents; (10) accountants, consultants, investment
bankers, architects, engineers, attorneys and others in a business relationship
with participants in connections with a covered transaction under a Board
procurement transaction, or agreement or activity; (11) suppliers
of materials and equipment in connection with a Board procurement transaction,
agreement or activity; (12) closing
agents; (13) turnkey developers of
projects; (14) title companies; (15) escrow
agents; (16) project owners; (17) employees
or agents of any of the above. (v) Respondent. A person against whom a debarment action has been
initiated. (w)
Suspension. A
temporary involuntary exclusion from participation in covered transactions
and/or related transactions with the Board. A suspension cannot exceed one
year. (x)
Voluntary Exclusion or Voluntarily
Excluded. A
status, assumed by a person pursuant to the terms of a settlement, pursuant to
which the person shall be excluded from participating in covered transactions
and related transactions with the Board in accordance with the terms of the
settlement. (y)
Warning Letter.A written communication from the Board
to one or more persons concerning acts and omissions prohibited by the Debarment
Policy.
2. DEBARMENT
2.1
General
The causes of debarment set forth in
this section are not intended to be an exhaustive list of the acts or omissions
for which a person may be debarred; grounds other
than those enumerated in this section may be a basis for debarment. Moreover,
the existence of a cause for debarment does not necessarily require that
a Respondent be debarred; rather, the seriousness of
the Respondent's acts or omissions and any mitigating factors should be
considered in making any debarment decision.
2.2 Causes for
Debarment
Debarment may be imposed pursuant
to the Debarment Policy and Procedures for any of the following acts or
omissions.
(a) Conviction of or civil judgment
for: (1) commission of a fraud or criminal offense in connection with
obtaining or attempting to obtain or performing a public or private agreement or
transaction; (2) commission of an act in violation of
Federal or State antitrust statutes, including those proscribing price fixing
between competitors, allocation of customers between competitors or bid
rigging; (3) commission of embezzlement, theft,
forgery, bribery, falsification, destruction or concealment of records, making
false statements, submitting false information, attempting to commit a fraud
against the Board, receiving stolen property, making false claims or obstructing
justice, fraudulently obtaining public funds; or (4) commission
of any other offense indicating a lack of business integrity or
honesty. (b) Violation of the terms of a Board or
other public or private policy, rule, procedure, agreement or transaction of
such a serious nature that, if the Board were to
transact business with the contractor, it would affect the integrity of Board
programs, policies or activities. Such violations include but are not limited to
the following: (1) a failure
to perform in accordance with the terms of one or more Board rules, policies,
agreements or transactions, including, but not limited to failure to comply with
MBE/WBE participation goals, bid "rigging" and "stringing" of contracts not
requiring Board authorization; (2) failure to perform or unsatisfactory
performance on a public or private agreement or transaction; or (3) a
violation of a statutory or regulatory provision or requirement applicable to a
public or private agreement or transaction. (c) Any of the
following acts: (1) knowingly or negligently doing
business with a debarred, suspended or voluntarily excluded person, in
connection with a covered transaction or a related transaction; (2) violation
of a material provision of a voluntary exclusion agreement entered into with the
Board or of any settlement of a debarment action; (3) violation
of any Board requirements for providing a drug-free workplace;
or (4) debarment by any governmental agency. (d) Any other
act or omission of a serious or compelling nature which weighs against a
determination that a person is responsible, which may include, but is not limited to violation(s) of: (1) The Civil
Rights Act of 1964 as amended 42 U.S.C.A. Sec. 2000, et. seq.; The Age
Discrimination in Employment Act, 29 U.S.C.A. §621 et. seq.; Section 504 of the
Rehabilitation Act, 29 U.S.C.A. §701, et. seq., as amended; The Americans With
Disabilities Act, 42 U.S.C.A. §12101, et. seq.; The Davis-Bacon Act, 40
U.S.C.A., §276a, et. seq.; The Copeland "Anti-Kickback" Act, 40 U.S.C.A. §276b,
et. seq.; and the Illinois Human Rights Act, 775 ILCS 5/1-10 as amended; Public
Officers' Corrupt Practices Act, 50 ILCS 105/3 et. seq. (2) Board
Rules, Policies or Procedures; (3) Settlement agreements and consent
decrees which impose obligations on the person to perform certain activities
and/or to refrain from certain acts; (4) violation of any law, regulation or
agreement relating to conflict of interest with respect to government funded
procurement; (5) violation of any nondiscrimination
provisions included in any public agreement or transaction; or (6)
performance or conduct on one or more private or public agreements or
transactions which caused or may have caused a threat to the health or safety of
the person's employees, any other persons involved with the transaction, the
general public or property. (e) Commission of any other act
indicating a lack of business integrity or honest, including, but not limited
to, non-compliance with public policy, deficiencies
in on-going contracts, false certifications or statements, fraud in performance
or billing or lack of financial or technical resources. (f) For the
public of this section, "agreement" is deemed to include contracts or
subcontracts.
2.3 Voluntary Exclusion;
Settlements; Scope of Debarment
(a) Debarment
of a Respondent under this Debarment Policy and Procedures constitutes debarment
of all its principals, divisions and other organizational elements from all covered transactions and related
transactions, unless the debarment decision is limited by its terms to one or
more specifically identified principals, individuals,
divisions or other organization elements or to specific types of
transactions. (b) As may be appropriate, the debarment
action may include any affiliate of the participant that is specifically named
and given notice of the proposed debarment and an
opportunity to respond. Notice need not be given to an affiliate that is a
principal as defined in Section 1.4(t). (c) The
debarment of a Respondent under this Debarment Policy and Procedures may include
the debarment of any other business is, has been or will be controlled or owned by the Respondent.
2.4 Imputing Conduct
For the
purposes of determining the scope of debarment, conduct may be imputed as
follows:
(a) The fraudulent, criminal or other
seriously improper conduct of any principal or other individual associated with
a participant may be imputed to the participant when
the conduct occurred in connection with the principal's or individual's
performance of duties for or on behalf of the participant, or with the
participant's knowledge, approval or acquiescence.
The participant's acceptance of the benefits derived from the conduct shall be
evidence of such knowledge, approval or acquiescence. (b) The fraudulent, criminal or other
seriously improper conduct of a participant may be imputed to any principal or
other individual associated with the participant who
participated in, knew of or had reason to know of the participant's
conduct. (c) The fraudulent, criminal or other
seriously improper conduct of one participate in a joint venture, grant pursuant
to a joint application or similar arrangement may be imputed to other
participants if the conduct occurred for or on behalf of the joint venture,
grant pursuant to a joint application or similar arrangement or with the
knowledge, approval or acquiescence of these participants. Acceptance of the
benefits derived from the conduct shall be evidence of such knowledge, approval
or acquiescence.
2.5 Period of
Debarment
Debarments shall be for a period
commensurate with the seriousness of the Respondent's conduct, up to a maximum
of three (3) years.
2.6 Effect of
Debarment
(a) Except to the extent prohibited by
law, persons who are debarred shall be excluded from covered transactions and
related transactions as either participants or
principals with the Board for the period of their debarment. (b) Persons
who are debarred from participation in Board transactions shall be placed on a
list of debarred participants, which list shall be disseminated to Board schools and offices and to other government procurement
offices. (c) Persons who participate in Board
transactions during the period of their debarment will not be paid for goods and
services provided.
3. ACTIONS OTHER THAN DEBARMENT
In the event that it is determined that the subjects acts or
omissions are insufficient to warrant debarment, one or more of the following
actions may be taken.
3.1 Voluntary
Exclusion
(a) The Board and the participant may
agree to a voluntary exclusion of the participant and any of its principals
and/or affiliates from Board activities and transactions for a period of up to three (3) years. (b) Persons
who are voluntarily excluded from participation in Board transactions shall be
placed on a list of debarred participants, which list shall be disseminated to Board schools and offices. (c) Persons
who participate in Board transactions during the period of their voluntary
exclusion will not be paid for goods and services provided, and
may be considered for
debarment.
3.2 Consent
Decree
Persons found to be in violation of
one or more provisions of the Debarment Policy may enter into a settlement in
the form of a consent decree with the Board. The consent decree will specifically provide that the person will refrain
the act(s) or omission(s) that had been found to be in violation of the
Debarment Policy. A consent decree may be entered
into alone or in conjunction with one or more of the procedures described in
this section.
3.3 Warning
Letter
Where there appears to be an act or
omission in violation of the Debarment Policy, a warning letter may be issued to
the person. In all subsequent transactions between
the person and the Board, the warning letter will be considered notice
concerning such acts or omissions and may be evidence in a subsequent
debarment proceeding.
4. SUSPENSION
In the event that
the State or Federal prosecutor's office issues an indictment against a person
or a person's affiliate, the Board may issue a notice of suspension to
disqualify a person and/or the person's affiliate from contracting for or
participating in covered transactions. The suspension may include work or
contracts in progress.
The Board may modify or
terminate the suspension at any time. If the Board does not initiate debarment
proceedings within twelve (12) months after the date of the suspension notice,
the suspension will terminate automatically. However, once debarment proceedings
have been initiated, the suspension may continue
indefinitely.
5. INITIATION OF DEBARMENT ACTION
5.1 General
The Board shall
process debarment actions as informally as practicable, consistent with the
principles of fundamental fairness, using the procedures set forth in
the Debarment Policy and
Procedures.
5.2 Notice
Procedure
(a) Upon a determination by the Chief
Purchasing Officer or her designee that adequate grounds for debarment exist,
the Hearing Officer shall be notified of the
following: (1) the Board's intent to debar the
person; (2) the identity and last known address
of the person to be debarred, who shall be named as a Respondent in the
debarment proceeding; (3) the grounds for the person's
debarment; and (4) a brief statement of the issues the
Board intends to present at the hearing. (b) The
Hearing Officer shall initiate the debarment proceeding by notice to the
Respondent in writing at least ninety (90) days prior to the date of
the debarment review hearing, advising the Respondent
of the following: (1) that the Board is seeking to debar
the Respondent pursuant to the Debarment Procedures; (2) the
reasons for the proposed debarment in terms sufficient to put the Respondent on
notice of the conduct or transaction(s) upon which it is based; (3) a brief
statement of the issues the Board intends to present at the
hearing; (4) the date, time and place of the
debarment review hearing; (5) that the Respondent must submit a
written response within thirty (30) days of the receipt of the Hearing Officer's
notice; (6) that the Respondent may appear at the
debarment review hearing to challenge the debarment action and that failure to
appear may result in a waiver of the Respondent's defenses to the debarment
action and be taken as an admission by the Respondent that the basis for
debarment is accurate, except to the extent the Respondent challenges the
debarment action solely by means of a written submission pursuant to Section
6.1(c) of the Debarment Policy and Procedures; (7) that the
Board ma submit a reply to the Respondent's written response pursuant to Section
6.2 of the Debarment Policy and Procedures; (8) the
potential effect of a debarment; and (9) a copy of the Debarment Policy and
Procedures. (c) Notice to the Respondent shall be
deemed sufficient if it is served by any reasonable means, including by first
class mail or delivery to the Secretary of the State
of Illinois for any person registered therewith, or as otherwise specified in
Section 6.5(b). (d) Any attempt by the Respondent to
affirmatively avoid service (by way of example, and not limitation, refusing to
pick up a certified letter) shall be deemed
ineffective and shall not prevent the debarment proceeding from going
forward.
6.FILING DOCUMENTS
6.1 Respondent's Response
(a)
The Respondent shall submit to the Hearing Officer and
serve in accordance with Section 6.5 a response to the notice of administrative
action within thirty (30) days of receipt of the Hearing Officer's notice which
response shall: (1) state whether the Respondent will
appear at the hearing; and (2) briefly respond to the allegations of
the Chief Purchasing Officer. Allegations by the Chicago Purchasing Officer
contained in the notice to the Respondent may be deemed admitted by the Hearing
Officer when not specifically denied in the Respondent's
response. (b) The response may set forth any
affirmative defenses, and evidentiary support therefor, to the allegations by
the Board. Where a Respondent intends to rely on any affirmative defense, it
must be set forth in the response. (c) If the Respondent intends to waive
its right to a hearing and rely solely on the response in support of its
position, the response must clearly state such intention. Failure to clearly
state such intention may be deemed a waiver of the Respondent's defenses to the
debarment action if the Respondent does not appear at the
hearing. (d) In the event that the Respondent
fails to file a written response in accordance with this section, the
allegations of the Chief Purchasing Officer shall be deemed admitted, the
Hearing Officer shall enter an order of default and notify the parties of the
said entry. Upon entry of an order of default, the Board will be required only
to show damages to support the requested penalty.
6.2 Reply by Board
The Board may
submit to the Hearing Officer and serve in accordance with Section 6.5 a reply
to the Respondent's response not later than thirty (30) days
after receiving the Respondent's
response.
6.3
Stipulations
The parties are encouraged to
meet and resolve as many matters as possible prior to the hearing by stipulated
agreement. The parties may stipulate as to any relevant matters of fact or law. Stipulations may be received in
evidence at the hearing, and when received shall be binding on the parties with
respect to the matter stipulated.
6.4 Document and
Submission Requirements
(a) An original
and one copy of all documents to be presented to the Hearing Officer at or
before the debarment hearing shall be served on the Hearing Officer, and copies
of all documents served on the Hearing Officer shall be served simultaneously on
the opposing party at the specific location designed on the notice of debarment
in accordance with Rule 6.4. (b) Documents
served in accordance with this section and Section 6.5 shall state clearly the
party's name and the title of the document. All documents should be typewritten
or printed in clear, legible form.
6.5
Service
(a) All documents
required or permitted under this Debarment Policy and Procedures (in addition to
being served on the Hearing Officer in accordance with Section 6.4) shall be
served upon: (1) the Department of Law for the Board
(unless the notice designated an alternative representative for the Board) at
125 S. Clark Street, 7th Floor, Chicago, Illinois
60603. (2) the Respondent or Respondent's representative; and (3) the Chief
Purchasing Officer at 125 S. Clark Street, 10th Floor, Chicago, Illinois
60603. (b) Service of documents, including the notice shall be made by any
reasonable means, including by first class mail, telecopy or delivery
to: (1) the person to be served or that person's designated repreatative or
agent, at the last know address; (2) the person's last known place of
business; or (3) for a principal of the person, on the
entity for which the person is a principal. (c) Proof of
service shall not be required unless the fact of service is denies under oath
and put in issue by appropriate objection on the part of the person allegedly
served. In such cases, service may be established by written receipt signed by
or on behalf of the person to be served, or may be established prima facie by
any responsible means, including, but not limited to, affidavit or certificate
of service of mailing.
6.6 Time
Computation
Any period of time prescribed or
allowed by the Debarment Policy and Procedures shall include in his computation
of the prescribed period Saturdays, Sundays and national holidays, except that when the last day of the period
computed is a Saturday, Sunday, national holiday or other day the Board is
closed, the period shall run until the end of the
next following business day.
7.HEARING
OFFICER: POWERS AND RESPONSIBILITIES
7.1 General
To ensure the fair and
efficient administration of the debarment proceedings, they shall be presided
over by a Hearing Officer, as defined in Section 1.4(m) of the Debarment Policy and Procedures. The Board may employ or appoint more
than one Hearing Officer, if necessary, for the efficient administration of
debarment actions.
7.2 Powers of the Hearing Officer
The Hearing Officer shall conduct a fair and impartial hearing and,
to that end, shall have the power to:
(1)
schedule the debarment review hearing date, time and
place; (2) postpone the debarment review hearing date; (3) regulate
the course of the hearing and the conduct of the parties and their
counsel; (4) hold conferences to facilitate the
settlement or simplification of the issues by consent of the parties or at the
request of a party; (5) consider and rule upon all
evidentiary and procedural matters pertaining to the hearing, including, but not
limited to, setting page limits on documents that
may be submitted; (6) make findings of fact and take notice
of any material fact not appearing in evidence in the record which would
properly be a matter of judicial
notice; (7) receive evidence and rule upon offers
of proof; (8) submit proposed subpoenas to an
authorized Board official with a request that such subpoenas be issued as
authorized by law; (9) administer oaths and
affirmations; (10) issue a decision imposing debarment
of the Respondent with respect to future Board transactions, or imposing no
sanction; (11) recommend to the Chief Purchasing
Officer, if so requested, a course of action to remedy Respondent's past actions
which gave rise to the debarment action;
and (12) take any other action necessary to protect each party's rights, to
avoid delay in the disposition of the debarment proceeding and to
maintain order.
7.3 Prohibition Against Ex parte
Communications
(a) Ex parte
communications are prohibited except where: (1)
the purpose and content of the communication have been
disclosed in advance or simultaneously to all parties involved;
or (2) the communication is a request for
information to the Hearing Officer's staff concerning the status of the
debarment action. (b) Unauthorized
ex parte communications shall not be taken into consideration by the Hearing
Officer in deciding any matter in issue.
7.4
Disqualification of a Hearing Officer
(a)
When the Hearing Officer has a close relationship with,
or financial interest in, the Respondent or any of its principals (other than as
a consequence of his/her position as an employee or official of the Board), the
nature of which would create the likelihood of appearance of bias, the Hearing
Officer may withdraw by notice to the Chief Executive Officer and the parties,
or be disqualified by the Chief Executive Officer. (b)
If a relationship as described in subjection (a) above
exists and the Hearing Officer does not withdraw nor does the Chief Executive
Officer act to disqualify him/her, then a part may submit a disqualification
request pursuant to Section 7.4 at least thirty (30) days prior to the hearing
date. The Chief Executive Officer shall respond to the disqualification request
within fourteen (14) days by letter to the moving party, with copies to the
Hearing Officer and the non-moving party or its designated
representative.
8.HEARING
PROCEDURE: WAIVER
8.1 Right to
Hearing
(a) All Respondents subject to debarment
pursuant to this Debarment Procedure shall be entitled to a hearing at the date,
time and place set forth in the notice. (b)
The Respondent may elect to waive its right to a hearing
and rely solely on a written response; pursuant to section 6.1 of the Debarment
Policy and Procedures. If the Respondent elects to waive its right to a hearing,
such waiver must be clearly stated in the Respondent's response. If the
Respondent waives his right to hearing, the Board shall not be relieved of the
necessity of providing the fact support their allegations or defenses. However,
if the Respondent fails to file a written response as required under Section
6.1, the allegations of the Chief Purchasing Officer shall be deemed admitted,
an order of default shall be entered and the Board will be required only to
submit proof of damages to support the requested penalty. (c)
The Hearing Officer shall perform no independent
collection of evidence and shall render a decision based on the evidence as
submitted by the parties, although the Hearing Officer may take judicial notice
of common, uncontested facts.
8.2 Conduct of
Hearing
(a) The hearing
shall be informal in nature and the Hearing Officer may ask questions at any
time. (b) The hearing shall proceed with all
reasonable speed. The Hearing Officer may order recesses for good cause, stated
on the record. The Hearing Officer may, for convenience of the parties or in the
interest of justice, order that the hearing be continued or extended to a later
date.
8.3 Representation of the
Parties
(a) In each case
to be presented to the Hearing Officer, the Board shall be represented by its
Attorney or his designee. (b) The
Respondent may be represented at the hearing as follows: (1)
individuals may appear on their own
behalf; (2) a member of a partnership or joint
venture may appear on behalf of the partnership or joint
venture; (3) a bona fide officer may appear on
behalf of a corporation or association upon a showing of adequate
authorization; (4) an attorney who submits a notice of
appearance with the Hearing Officer may represent the Respondent;
or (5) an individual not included within subsections (1) through (4) of
this section may represent the Respondent upon an adequate showing, as determined by the Hearing Officer, that the
individual posses the legal, technical or other qualifications necessary to advise and assist in the presentation of
the Respondent's case.
8.4 Standard of
Proof
The cause for debarment must be
established by a preponderance of the evidence. If the debarment is based upon a
conviction, a civil judgment or a debarment by another governmental agency, the standard shall be deemed to have
been met.
8.5 Burden of
Proof
The Board has the burden of proof to
establish the cause for debarment. The Respondent has the burden of proof to
establish mitigating circumstances.
8.6 Order
of Presentation
The following should be the
order of presentation at the hearing, but may be altered at the discretion of
the Hearing Officer:
Board: Opening
statement Respondent: Opening
statement Board: Presentation of case in
chief Respondent: Cross-examination of
Board witnesses (if any) Respondent: Presentation of
defense Board: Cross-examination of
Respondent witnesses (if any) Board: Rebuttal witnesses (if
any) Respondent: Cross-examination of
Board rebuttal witnesses (if any) Board: Closing
statement Respondent: Closing
statement Board: Closing
rebuttal
8.7 Rules of
Evidence
(a) Every party
shall have the right to present its case or defense by oral or documentary
evidence, to submit rebuttal evidence and to conduct such cross-examination as
may be required for a full and true disclosure of the fact. Irrelevant,
immaterial or unduly repetitious evidence may be excluded by the Hearing
Officer. (b) Neither the
Federal Rules of Evidence nor any other set of formal rules of evidence shall
apply to the conduct of proceedings under the Debarment Policy and Procedures.
Parties may object to the admissibility of any evidence, but the Hearing Officer
may allow the admission of any such evidence and consider the objection as an
argument with respect to the weight to be given the evidence. (c)
The Hearing Officer shall not have the power or
authority to compel any witness or party to give evidence in contravention of
any evidentiary privilege recognized under applicable law, including, but not
limited to, the Fifth Amendment privilege against self-incrimination under the
Constitution of the United State of America and the attorney-client
privilege.
8.8 Closing of the
Hearing
The closing of the record may be
postponed by the Hearing Officer, in his/her discretion, in order to permit the
admission of other evidence into te record. In the event further evidence is admitted, each part shall be given an
opportunity to respond to such evidence.
9.
DEBARMENT DETERMINATION AND
REVIEW
9.1 Hearing Officer's
Decision
(a) After the
Respondent has been afforded an opportunity to be heard, the Hearing Office
shall issue a determination and order based upon evidence and arguments
presented by the parties. The determination shall be founded upon reliable and
probative evidence. (b) The Hearing
Officer's written determination shall contain the following
information: (1) a reference to the notice of proposed
debarment; (2) the evidence supporting the decision,
including, where appropriate, any evidence of mitigating
circumstances; (3) the scope and period of debarment,
including the beginning and ending dates; (4) the time
period in which the Respondent may submit an appeal under Section 9.2;
and (5) any other information the Hearing Officer believes (in his/her
discretion) necessary to explain his/her determination. (c) Within
thirty(30) days from the date of the close of the hearing, the Hearing Officer
shall submit his/her written determination to the Chief Executive Officer and
the Chief Purchasing Officer and shall simultaneously serve the written
determination and order on the Respondent.
9.2
Appeal of Final Determination
(a) Any party may
request review of the Hearing Officer's determination by filing a written appeal
with the Chief Executive Officer within twenty-one (21) days of receipt of the
Hearing Officer's final determination. The appeal shall specifically identify
the issues and basis upon which the party seeks review and shall be served in
accordance with Section 6.5 of the Debarment Policy and
Procedures. (b) Parties opposing the appeal may
submit a response opposing review. The response must be submitted to the Chief
Executive Officer and served in accordance with Section 6.5 within fourteen (14)
days of the receipt of the opposing party's appeal. (c) Any appeal
may be granted or denied in the discretion of the Chief Executive Officer or
designee. The Chief Executive Officer or designee shall issue a determination
setting forth one of the following: (1) affirming the final determination of
the Hearing Officer; (2) overturning
the final determination of the Hearing officer; (3) directing
a modification of the final determination, including, but not limited to, the
scope or duration of any debarment; or (4) referring
the matter back to the Hearing Officer for additional investigation or
findings. (d) The Chief Executive Officer or his
designee shall issue a determination within thirty (30) days of submission of
the appeal, unless notice is given to the Hearing Officer and the parties
extending the period for submitting a determination. The Chief Executive Officer
or his designee shall be limited to the factual record produced before the
Hearing Officer upon review. The determination of the Chief Executive Officer or
his designee need not be a formal written determination; rather, a letter served
upon all parties in accordance with Section 6.5 setting forth the determination
of the Hearing Officer is sufficient. (e) The
submission of an appeal shall have no effect on the final determination of the
Hearing Officer, unless and until the Chief Executive Officer or designee issues
a determination pursuant to subsection (d) above modifying the Hearing Officer's
determination.
9.3 Review of Debarment
Period
(a) After the
period of appeal has lapsed, a debarred Respondent may request that the Chief
Executive Officer withdraw or modify the terms of the debarment, based on any of
the following: (1) newly discovered material
evidence; (2) reversal of a conviction or civil
judgment upon which a debarment was based; (3) a
meaningful change in ownership or management; (4)
elimination of other causes for which the debarment was imposed;
or (5) any other reason that is in the best interests of the Chicago Public
Schools. (b) A request for review shall be in
writing, supported by documentary evidence and served in accordance with Section
6.5 of the Debarment Policy and Procedures.