§ 337.165 — Contract crime; denial or revocation of a certificate of qualification

Florida § 337.165

• Jurisdiction: Florida
• Title: XXVI
• Ch. 337: CONTRACTING; ACQUISITION, DISPOSAL, AND USE OF PROPERTY

Text

(1) The following words and phrases, when used in this section, have the following meanings: (a) The term “affiliate” means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term “affiliate” includes the officers, directors, executives, shareholders active in management, employees, and agents of the affiliate. The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another. (b) The term “certificate” means the certificate of qualification required and granted pursuant to s. 337.14 or other form of authorization issued pursuant to s. 337.105. (c) The term “contract crime” means any violation of state or federal antitrust laws with respect to a public contract or any violation of any state or federal law involving fraud, bribery, collusion, conspiracy, or material misrepresentation with respect to a public contract. (d) The term “contractor” means any person who bids or applies to bid on work let by the department or any counterpart agency of any other state or of the Federal Government or who provides professional services to the department or other such agency. The term “contractor” includes the officers, directors, executives, shareholders active in management, employees, and agents of the contractor. (e) The term “convicted” or “conviction” means a finding of guilt or a conviction of a contract crime, with or without an adjudication of guilt, in any federal or state trial court of record as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere. (f) The term “pooling” means a combination of persons or corporations engaged in the same business, or for the purpose of engaging in a particular business or commercial or speculative venture, in which all contribute to a common fund or place their holdings of a given stock or other security in the hands and control of a managing member or committee.

(2)(a) No contractor or his or her affiliate shall be qualified to bid on work let by the department when it is determined that he or she has, subsequent to January 1, 1978, been convicted of a contract crime within the jurisdiction of any state or federal court. (b)1. Any provision of chapter 120 to the contrary notwithstanding, when the department receives notice that a contractor has been convicted of a contract crime, the department shall inform the contractor or the contractor’s affiliate in writing of its intent to deny or revoke the certificate of the contractor or affiliate to bid on work let by the department and of the contractor’s right to a hearing, the procedure which must be followed, and the applicable time limits. If a hearing is requested within 10 days of receipt of the notice of intent, the department shall notify the contractor or affiliate of the time, date, and place of the hearing, which hearing shall be held within 30 days of receipt of the request for the hearing. If the department determines that the contractor has been convicted of a contract crime, it shall deny or revoke the certificate of the contractor or affiliate for a period of 36 months. 2. Any person who is notified by the department of its intent to deny or revoke his or her certificate to bid on work let by the department because of his or her status as an affiliate of a contractor convicted of a contract crime may, at the hearing requested under subparagraph 1., offer proof that he or she is not an affiliate as defined by paragraph (1)(a). The submission of an affidavit alone shall not constitute competent substantial evidence that the person is not an affiliate. If the department finds that such person is not an affiliate, the person’s certificate may not be denied or revoked. (c) A contractor or affiliate whose certificate has been denied or revoked because of a conviction of a contract crime and who is subsequently convicted of a contract crime committed within 10 years of such denial or revocation may not be considered for eligibility pursuant to paragraph (d) until 24 months after the date of the denial or revocation based upon such subsequent conviction. (d) A contractor or affiliate whose certificate has been denied or revoked may, at any time after denial or revocation, petition for and be granted a hearing to determine his or her eligibility for reapplication or reinstatement upon such terms and conditions as may be prescribed upon finding that reapplication or reinstatement is in the public interest. The petition shall be filed with the department. Any hearing conducted by the department shall be conducted within 30 days after receipt of the petition, unless otherwise stipulated by the parties. If the contractor or affiliate requests in his or her petition that the hearing be conducted by the Division of Administrative Hearings of the Department of Management Services, the department shall, within 5 days after receipt of the petition, notify the division of the request. The director of the Division of Administrative Hearings shall, within 5 days after the notice by the department, assign an administrative law judge, who shall conduct the hearing within 30 days thereafter, unless otherwise stipulated by the parties. The department shall be a party in interest in any hearing conducted by the Division of Administrative Hearings. In determining whether reapplication or reinstatement would be in the public interest, the department or division administrative law judge shall give consideration to any relevant mitigating circumstances, which may include, but are not limited to, the following: 1. The degree of culpability; 2. Prompt and voluntary payment of damages to the state as a result of the contractor’s violation of state or federal antitrust laws; 3. Cooperation with any state or federal prosecution or investigation of a contract crime; 4. Disassociation with those involved in a contract crime; 5. Reinstatement in other state or federal jurisdictions; and 6. The needs of the department in completing its programs in a timely, cost-effective manner. The department or division administrative law judge shall also consider the failure of the contractor or affiliate to comply with the notification provisions of subsection (5). Any hearing requested under this paragraph shall be conducted and concluded without undue delay. The administrative law judge shall, within 30 days after the hearing, complete and submit a final order to the department, which order may not be altered or amended by the department. If eligibility for reapplication or reinstatement is denied, the contractor or affiliate may not petition for a subsequent hearing for a period of 9 months following the date of the order of denial or revocation. However, a hearing prior to the expiration of such period may be authorized by the department if, in its discretion, it determines that a hearing is in the public interest.

(3) A contractor or affiliate whose certificate is denied or revoked pursuant to this section may not act as a prime contractor, a material supplier, a subcontractor, or a consultant on any department contract or project during the period of such denial or revocation.

(4) The denial or revocation of a contractor’s or affiliate’s certificate shall not affect the contractor’s or affiliate’s obligations under any preexisting contract.

(5) A contractor or the contractor’s affiliate who is currently qualified or seeking to be qualified by the department shall notify the department within 30 days after conviction of a contract crime applicable to him or her or to any of his or her affiliates, or to any of the contractor’s or the contractor’s affiliate’s officers, directors, executives, shareholders active in management, employees, or agents.

(6) Whenever the department has reason to believe that a contractor or the contractor’s affiliate who is currently qualified or seeking to be qualified by the department has been convicted of a contract crime, or may be affiliated with a person so convicted, the department may issue a written demand upon the contractor or affiliate, concerning any such conviction or affiliation, to appear and be examined under oath, to answer written interrogatories under oath, and to produce documents or other tangible evidence for inspection and copying.

Legislative History

s. 2, ch. 83-4; s. 152, ch. 84-309; s. 120, ch. 92-279; s. 55, ch. 92-326; s. 496, ch. 95-148; s. 72, ch. 96-410.