§ 4.46.100. Sanctions and penalties for non-compliance.

A.

The BAO shall recommend appropriate mechanisms to enforce the provisions of the EBO Program to the Purchasing Agent including, but not limited to, withholding of progress payments for non-compliance. Further, the failure of a Bidder or Participant to comply with the requirements of this Chapter may be considered a material breach of Participant's agreement with the Metropolitan Government and may be grounds for suspension or debarment pursuant to the standards set forth in Section 4.36.020 of this code. Sanctions shall not be imposed unless there is evidence of specific conduct on the part of Participant that is inconsistent with or in direct contravention of the applicable provisions of this Program. In determining appropriate sanctions, the Purchasing Agent, in consultation with the BAO, shall consider the following factors:

1.

Whether the failure to comply with applicable requirements involved intentional conduct or, alternatively, may be reasonably concluded to have resulted from a misunderstanding on the part of the Participant of the duties imposed on them by this Program;

2.

The number of specific incidences of failure by the Participant to comply;

3.

Whether the Participant has been previously suspended;

4.

Whether the Participant has failed or refused to provide the BAO with any information required or requested by this Program;

5.

Whether the Participant has materially misrepresented any applicable facts in any filing or communication to the BAO; and

6.

Whether the Participant has subsequently restructured or taken other action to cure the deficiencies in meeting applicable requirements.

In the event that a Participant is able to adequately demonstrate and document good faith efforts to achieve initial compliance and/or perform as initially agreed-upon with regard to MBE/WBE participation, then the Participant shall not be liable for such sanctions or damages.

B.

Appeal of Sanctions. Sanctions imposed by the Purchasing Agent under this Chapter are subject to administrative review as follows:

1.

A Participant has the right to appeal sanctions imposed by the Purchasing Agent to the Procurement Appeals Board ("Board"). Appeal of debarments and suspensions shall be in accordance with Section 4.36.120 of this code. The Purchasing Agent shall inform the Participant of its rights to administrative review in the notice of imposition of sanctions provided to the Participant.

2.

Time Limitation on Filing an Appeal. The aggrieved Participant shall file its appeal with the Board within thirty days of receipt of the Purchasing Agent's notice of imposition of sanctions.

3.

Decision of the Procurement Appeals Board. On any appeal under this section, the Board shall promptly decide whether, or the extent to which, the sanction imposed on the Participant was in accordance with the Constitution, statutes, this code, regulations, and the best interest of the Metropolitan Government, and was fair. The Board may modify or reverse the sanction imposed on the Participant by the Purchasing Agent.

(Ord. BL2018-1419 § 1, 2019)