§ 28-137. Procurement goals—Sanctions for failure to comply with article V requirements.

(a)

If a vendor, contractor or consultant is found to be in violation of the provisions of article V, to otherwise be in breach of a contract, to perform as or to, utilize MBEs or WBEs for a non-commercially useful function or as a conduit, to fail to submit information required in section 28-131, to submit false, misleading, or materially incomplete statements, documentation or records, including, but not limited to, good faith efforts or letters of intent, or to fail to cooperate in an investigation, it shall be subject to sanctions. The city may exercise any or all of its rights, including, but not limited to, withholding funds, imposition of monetary penalty, suspension or termination, contained in the terms and conditions of the contract or purchase order. If the contract or purchase order is suspended or terminated, the city reserves all its rights at law or equity.

(b)

In the event that the DSBO director determines, in his or her sole discretion, that a vendor, contractor or consultant is in noncompliance with article V, the vendor, contractor or consultant may be assessed a civil, remedial penalty, of not more than one hundred fifty (150) percent of the total amount of MBE/WBE utilization demonstrated in the contract or purchase order for each MBE or WBE involved. In assessing such civil penalty:

(1)

The DSBO director shall calculate the applicable amount of civil penalty, and may reduce or waive all or part of such penalty, in his or her sole discretion, in consideration of the following factors:

a.

The length of the period of noncompliance;

b.

The history of previous noncompliance with any provision of this article V;

c.

The monetary impact of the civil penalty on the vendor, contractor or consultant in correcting such noncompliance; or

d.

The other facts and circumstances relevant to the noncompliance of the vendor, contractor or consultant;

(2)

The DSBO director shall collect assessed and unpaid civil penalties under this subsection by action initiated in state district court for collection of such penalty. A stay of any order of the DSBO director pending judicial review shall not relieve any vendor, contractor or consultant from any civil penalty obligation imposed under this section.

(3)

Any such assessed civil penalties may also be offset against any amount otherwise due and owing to the vendor, contractor or consultant on the contract or purchase order.

(4)

The city contract or purchase order may be suspended or terminated with the city reserving all its rights at law or equity.

(5)

The debarment board, established under section 20-77 of this Code, upon request of the DSBO director, may suspend or debar the vendor, contractor or consultant from participation in city or private contracting covered hereunder for a period as may be determined by the debarment board, in its sole discretion, based upon the grounds of violating this article V, pursuant to such suspension and debarment procedures as may be established by the city, as set forth in section 20-77. The DSBO director in that event shall regard as nonresponsive any bid or proposal received during this time period that includes the vendor, contractor or consultant as a vendor, contractor, consultant, subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, broker or distributor.

(6)

If a vendor, contractor or consultant or other business enterprise knowingly receives new or additional work on a contract or purchase order as a result of actions set out in this section, then the penalties in this section may be applied to such business enterprise.

(7)

The DSBO may either suspend or revoke an offending MBE's or WBE's eligibility for certification as an MBE or WBE or may suspend its participation from counting toward a procurement goal, and, the city subject to other city law, may suspend or debar MBEs or WBEs from participating in future city contracts, based upon such MBE's or WBE's acting as a conduit, failing to comply with the provisions of article V, failing to perform a commercially useful function on a contract or purchase order, failing to submit information as required by section 28-131, submitting false, misleading or materially incomplete statements, documentation or records, or failing to cooperate in investigations.

(c)

The DSBO director may, in his or her sole discretion, impose any one (1) or more of the sanctions set out in this section against any vendor, contractor, consultant, subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, broker, or distributor determined to be in violation of the section, provided that the DSBO director shall first advise the manager and purchasing director or department head, as appropriate, of the proposed sanction in writing. If the manager, purchasing director, or department head advises the DSBO director in writing that the imposition of such sanction would not be in the best interests of the city, the DSBO director shall consult with the appropriate official to make a final decision as to whether to impose such sanctions.

(d)

Suspected criminal violations shall be referred to the proper authorities for prosecution. If a conviction or a guilty plea is obtained pursuant to such prosecution, the perpetrator may be barred from contracting with the city to the extent authorized by law.

(Ord. No. 86-14, § 1, 2-18-14)