§ 63G-6a-904 — Debarment or suspension from consideration for award of contracts -- Process -- Causes for debarment -- Judicial review.

(1) (1)(a) Subject to Subsection (1)(b), a procurement official may:
(1)(a)(i) debar a person for cause from consideration for award of contracts for a period not to exceed three years; or
(1)(a)(ii) suspend a person from consideration for award of contracts if there is cause to believe that the person has engaged in any activity that might lead to debarment.
(1)(b) Before debarring or suspending a person under Subsection (1)(a), a procurement official shall:
(1)(b)(i) consult with:

(1)(b)(i)(A) the procurement unit involved in the matter for which debarment or suspension is sought; and
(1)(b)(i)(B) the attorney general, if the procurement unit is in the state executive branch, or the procurement unit's attorney, if the procurement unit is not in the state executive branch;
(1)(b)(ii) give the person at least 10 days' prior written notice of:

(1)(b)(ii)(A) the reasons for which debarment or suspension is being considered; and
(1)(b)(ii)(B) the hearing under Subsection (1)(b)(iii); and
(1)(b)(iii) hold an informal hearing in accordance with Subsection (1)(c).
(1)(c) (1)(c)(i) At an informal hearing under Subsection (1)(b)(iii), a procurement official may:

(1)(c)(i)(A) subpoena witnesses and compel their attendance at the hearing;
(1)(c)(i)(B) subpoena documents for production at the hearing;
(1)(c)(i)(C) obtain additional factual information; and
(1)(c)(i)(D) obtain testimony from experts, the person who is the subject of the proposed debarment or suspension, representatives of the procurement unit, or others to assist the procurement official to make a decision on the proposed debarment or suspension.
(1)(c)(ii) The Rules of Evidence do not apply to an informal hearing under Subsection (1)(b)(iii).
(1)(c)(iii) A procurement official shall:

(1)(c)(iii)(A) record a hearing under Subsection (1)(b)(iii); and
(1)(c)(iii)(B) preserve all records and other evidence relied upon in reaching a decision until the decision becomes final.
(1)(c)(iv) The holding of an informal hearing under Subsection (1)(b)(iii) or the issuing of a decision under Subsection (1)(c)(v) does not affect a person's right to later question or challenge the jurisdiction of the procurement official to hold a hearing or issue a decision.
(1)(c)(v) A procurement official shall:

(1)(c)(v)(A) promptly issue a written decision regarding a proposed debarment or suspension, unless the matter is settled by mutual agreement; and
(1)(c)(v)(B) mail, email, or otherwise immediately furnish a copy of the decision to the person who is the subject of the decision.
(1)(c)(vi) A written decision under Subsection (1)(c)(v) shall:

(1)(c)(vi)(A) state the reasons for the debarment or suspension, if debarment or suspension is ordered; and
(1)(c)(vi)(B) inform the person who is debarred or suspended of the right to judicial review as provided in this chapter.
(1)(c)(vii) A decision of debarment or suspension is final and conclusive unless the decision is overturned by a court under Subsection (4).
(2) A suspension under this section may not be for a period exceeding three months, unless an indictment has been issued for an offense which would be a cause for debarment under Subsection (3), in which case the suspension shall, at the request of the attorney general, if the procurement unit is in the state executive branch, or the procurement unit's attorney, if the procurement unit is not in the state executive branch, remain in effect until after the trial of the suspended person.
(3) The causes for debarment include the following:

(3)(a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of a public or private contract or subcontract;
(3)(b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a contractor for the procurement unit;
(3)(c) conviction under state or federal antitrust statutes;
(3)(d) failure without good cause to perform in accordance with the terms of the contract;
(3)(e) a violation of this chapter; or
(3)(f) any other cause that the procurement official determines to be so serious and compelling as to affect responsibility as a contractor for the procurement unit, including debarment by another governmental entity.
(4) (4)(a) A person who is debarred or suspended under this section may seek judicial review of the debarment or suspension by filing a petition for judicial review in district court.
(4)(b) A petition under Subsection (4)(a):
(4)(b)(i) is a complaint governed by the Utah Rules of Civil Procedure;
(4)(b)(ii) shall name the procurement unit as respondent;
(4)(b)(iii) shall be accompanied by a copy of the written decision as to which judicial review is sought; and
(4)(b)(iv) is barred unless filed in district court within 30 days after the date of the issuance of the written decision of suspension or debarment under Subsection (1)(c)(v).
(4)(c) A district court's review of a petition under Subsection (4)(a) shall be de novo.
(4)(d) A district court shall, without a jury, determine all questions of fact and law, including any constitutional issue, presented in the pleadings.
(5) A procurement unit may consider a cause for debarment under Subsection (3) as the basis for determining that a person responding to a solicitation is not responsible:

(5)(a) independent of any effort or proceeding under this section to debar or suspend the person; and
(5)(b) even if the procurement unit does not choose to seek debarment or suspension.
(6) A rulemaking authority may make rules pertaining to the suspension and debarment process under this section, including rules governing an informal hearing under Subsection (1)(b)(iii).

Legislative History

Amended by Chapter 257, 2020 General Session