M.G.L. c. 29, §29F allows the state to debar and suspend contractors and subcontractors from participating in Massachusetts public construction projects for conduct placing their business honesty and competency in doubt. Debarment means an exclusion from public contracting for a specified period of time. The length of debarment depends on the seriousness of the offense. Suspension means temporary disqualification, usually during proceedings leading to debarment.
The causes justifying debarment are many and varied. Conviction for bribery, theft, forgery, destroying business records, receiving stolen property or rigging bids will do it. A conviction or final adjudication that a contractor has violated any of the following statutes will also provide grounds for debarment: anti-trust, campaign contribution, employment discrimination, hours of labor, prevailing wages, overtime pay, equal pay, child labor or workers compensation. In addition, a judicial or administrative adjudication establishing repeated or aggravated violations of labor relations or occupational health and safety statutes will suffice.
Debarment may also be imposed by the Commissioner of the Division of Capital Asset Management (formerly DCPO) or the Secretary of Administration even without a judicial adjudication of wrongdoing. All the Commissioner or Secretary need do is to find substantial evidence that the contractor (a) willfully provided false information in obtaining or performing a public contract, (b) willfully failed to comply with record keeping and accounting requirements, (c) has a record of failing to satisfactorily perform public contracts, or (d) has a record of frequent and severe health and safety violations.
In addition, c. 29, §29F provides for automatic debarment or suspension of any contractors debarred or suspended by any federal agency. The state debarment or suspension runs simultaneously with the federal debarment or suspension.
A contractor is entitled to written notice of any suspension or proposed debarment stating the reasons. A suspension may take effect immediately if the Commissioner determines it is necessary to prevent serious harm to the Commonwealth. Otherwise, the Commissioner determines whether to suspend after reviewing the contractor’s written response due within 14 days of the notice. A suspension lasts only until a determination is made whether to debar the contractor.
Debarment cannot be imposed until the Contractor has the opportunity to request a hearing.
If he does, debarment cannot be imposed until conclusion of the hearing and issuance of a decision by the Commissioner or Secretary finding sufficient evidence to support debarment. When suspension precedes debarment, the period of suspension shall be considered in determining the debarment period.
A debarment may include all affiliates of the debarred contractor.
The obvious purpose is to prevent the debarred contractor from circumventing the effect of the debarment by continuing to bid public contracts through related entities controlled by the same people.
A contractor debarred or suspended is prohibited from submitting any bid on a public project during the period of suspension or debarment. And during that period, every public awarding authority is prohibited from considering any bid from or executing, renewing or extending any contract with the debarred or suspended contractor.
The Secretary of Administration is required to maintain a list of debarred contractors and subcontractors. That list is provided to the Inspector General, the Attorney General, and the State Auditor. It is also published by the Secretary of State in the Central Register.
Debarment not only prevents a contractor from participating in public construction for a period of time, it also attaches a stigma to that contractor’s name and reputation which could last well beyond the term of the disbarment.
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