§ 18-270. Contract sanctions for failure to comply with requirements of division.

(a)

If a contractor is found to be in violation of the provisions of this division; 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 by this division; to submit false, misleading, or materially incomplete statements, documentation, or records, including but not limited to contractor utilization plan, letters of intent, or good faith efforts; or to fail to cooperate in an investigation, it shall be subject to sanctions. The unified government may exercise any or all of its rights, including but not limited to withholding funds, imposing monetary penalties, or suspending or terminating the contract, contained in the contract terms and conditions. If the contract is suspended or terminated, the unified government reserves all its rights at law or equity, with the suspension or termination being deemed a response to a contractor default.

(b)

In the event that the coordinator determines that a contractor has not complied with this division, the coordinator may assess the contractor a civil, remedial penalty of not more than 150 percent of the contract amount that would have been allocated to one or more MBEs or WBEs but for the contractor's noncompliance. In assessing a civil penalty:

(1)

The coordinator shall calculate the applicable amount of civil penalty, and may reduce or waive all or part of the penalty 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 division;

c.

The monetary impact of the civil penalty on the contractor in correcting the noncompliance; or

d.

Other facts and circumstances relevant to the noncompliance of the contractor.

(2)

The coordinator shall collect assessed and unpaid civil penalties under this subsection by action initiated in state district court. A stay of any order of the coordinator pending judicial review shall not relieve a contractor from any civil penalty obligation imposed under this section.

(3)

Any assessed civil penalties may be offset against any amount, including but not limited to contract retainage, otherwise due and owing to the contractor on the contract.

(4)

The contract may be suspended or terminated, with the unified government reserving all its rights at law or equity, with such suspension or termination being deemed a response to a contractor default;

(5)

The coordinator may suspend or debar the contractor from participating in unified government contracts subject to this division for a period as may be determined by the coordinator under such suspension and debarment procedures as may be established by the unified government. In that event, the coordinator shall regard as non-responsive any bid or proposal received during this time period that includes the contractor as a contractor, joint venturer, subcontractor, or supplier.

(6)

If a contractor or other business enterprise knowingly receives new or additional work on a contract 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 coordinator may suspend or revoke an offending MBE's or WBE's eligibility for participation, may suspend its participation from counting toward a project goal, and may suspend or debar it from participating in future unified government contracts based upon such MBE's or WBE's acting as a conduit, failing to comply with the provisions of this division, failing to perform a commercially useful function on a contract, failing to submit required information, submitting false, misleading, or materially incomplete statements, documentation, or records, or failing to cooperate in an investigation.

(c)

The coordinator may impose any one or more of the sanctions set out in this section against any contractor, joint venturer, subcontractor, or supplier determined to be in violation of the section, provided that the coordinator shall first advise the affected department head of the proposed sanction in writing. If the department head advises the coordinator in writing that the department head believes that imposition of the sanction would not be in the best interests of the unified government, the coordinator shall consult with the department head before making a decision as to whether to impose the sanction.

(d)

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

(Ord. No. O-17-09, § 1(18-170), 2-19-2009)