HomeMy WebLinkAboutReccommending City's Board of Public works Update it's "Sewer Insurance Program Policy" to Include Suspension Provisions for and Required Reporting to Common Council Be Resumed ImmediatelyAttest:
RESOLUTION
4476 -15
Passed by the Common Council of the City of South Bend, Indiana
July 13, 15
2Q-
Presented by me to the Mayor of the City of South Bend, Indiana
July 14 20 15
City Clerk
President of Common Council
Approved and signed by me —T' I I `l 20-Li.
City Clerk
0
Resolution No. Lf t 7 b -i
Bill No. I S- L
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,
RECOMMENDING THAT THE CITY'S BOARD OF PUBLIC WORKS UPDATE ITS "SEWER
INSURANCE PROGRAM POLICY" TO INCLUDE SUSPENSION PROVISIONS FOR ENTITIES
DOING BUSINESS WITH THE CITY AND THAT REQUIRED REPORTING TO THE
COMMON COUNCIL AND THE UTILITY COMMITTEE BE RESUMED IMMEDIATELY
G the Common Council of the City of South Bend, Indiana recognizes that on September
15, 1980, the Common Council passed Ordinance No. 6830 -80 which created a program to assist home
owners when dealing with the potential costly repair of private sewer connections when they fail; and
CA" the Common Council further notes that over the years, this sewer insurance program has
been a very important program which has helped protect the health and safety of the citizens of South
Bend and has helped contribute to the efficient operation of the overall sewer system; and
the Board of Public Works took over the responsibilities of the Board of Wastewater
Commissioners when the Wastewater Board was terminated; and the reporting requirements of South
Bend Municipal Code §17-64 to both the Council and the Council's Utility Committee remain in fall
force and effect; and
the Council notes that such required reporting has lapsed; and the Council further notes
that the Board of Public Works "Sewer Insurance Program Policy" which the Board approved on
November 12, 2013, appears to be deficient in light of the fact that it references incorrect citations to the
governing provisions of the South Bend Municipal Code and that the policy fails to include reasonable
measures to ensure that all vendors are responsible in fulfilling their legal and contractual obligations
when doing business with the City of South Bend under the Sewer Insurance Program; and
the Common Council recognizes the both the federal government and municipalities in
Indiana have included language addressing debarment (removing contractor eligibility for contracts for a
fixed period of time) and suspension (removing eligibility for the duration of an investigation or litigation)
as appropriate and reasonable business practices; and
some examples at the federal level which authorize debarment and suspension include,
but are not limited to: the Federal Acquisition Regulation (FAR) which govern contracting with executive
branch agencies in order to "prevent improper dissipation of public funds" and provides in part for
debarment or suspension for a "serious or compelling" cause; the Buy American Act (41 U.S. Code
§8303); Clean Air Act (33 U.S. Code § 1368,. §7606); Davis -Bacon Act (40 U.S. Code §3144); and the
Drug -Free Workplace Act (41 U.S. Code §8102); and
Resolution Addressing Recommendations to the City Administration
Page 2
y the Common Council recommends that the Board of Public Works immediately consider
updating its Sewer Insurance Program Policy which the Board approved on November 12, 2013, to allow
for the suspension of any contractor who is suspected of violating any federal or state law, or whose
activities may indicate a lack of business integrity which may seriously affect the responsibilities and
duties of a contractor to the potential detriment of the City, under this Program; and
the Common Council notes that the U.S. Congress have held many hearings on suspension
and debarment in light of the "magnitude of federal spending on contracts and reports that agencies
awarded contracts to vendors who previously allegedly engaged in misconduct"; and
the Council has found that the City of Indianapolis utilizes in their "standard general
conditions" provisions on debarment and suspension whereby a contractor doing business with the City
certifies that neither the entity or its principals are "...presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from or ineligible for participation in any federal
assistance program... "; requires the contractor"... not to subcontract with any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation in and federal assistance
program... "; and requires the contract to "...provide immediate notice .... if, at any time .... it is debarred,
suspended, proposed for debarment, declared ineligible, voluntarily excluded from or become ineligible
for participation in any federal assistance program [with] such event being cause for termination..."; and
by analogy, at the federal level, the Code of Federal Regulations provide in part in Subpart
9.402 Debarment, Suspension, and Ineligibility that sanctions such as suspension may "...be imposed
only in the public interest for the Government's protection and not for purposes of punishment ",
and that "agencies are encouraged to establish methods and procedures for coordinating their debarment
or suspension actions" (Emphasis added).
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Section I. The South Bend Common Council believes that the City of South Bend has a duty and
responsibility to protect and safeguard all public funds by the most efficient mechanisms possible, which
include having reasonable practices, policies, procedures and standards for all governmental contracts.
Section II. The Common Council farther believes that in light of the amount of taxpayer monies spent on
contracts, and the ongoing investigation of at least one contractor doing business with the Board of Public
Works, that there is a need for the Board to immediately review and revise its Sewer Insurance Program
Policy of November 12, 2013, in order to protect the public interest and regain the public trust.
Section III. The Common Council therefore recommends that the Board of Public Works immediately
review and update the Sewer Insurance Program's policies pursuant to all governing laws to ensure that
contractors who fail to fulfill their legal or contractual obligations have their due process rights properly
Resolution Addressing Recommendations to the City Administration
Page 3
balanced against the greater good of protecting the public interests and public assets. The Council further
believes that provisions addressing suspensions would help protect the integrity of City governmental
programs by ensuring that only responsible persons and companies participate. The Council recommends
that such review include, but not be limited to:
1. Developing policies and procedures which are transparent, which reflect best practices, which are
regularly updated and filed with the Office of the City Clerk and posted on the City's website; and
2. Developing policies and procedures that an entity would be excluded or disqualified from bidding
on, quoting on, or participating in a contract with the City of South Bend for a temporary period
of time, pending the completion of an investigation or legal proceeding involving that entity; and
Developing policies and procedures which ensure that all contractors may be suspended during
any period of time that there may be an ongoing investigation as to the contractor's practices or
procedures; or an investigation of a contractor's alleged misconduct or ensuing legal proceedings;
and
4. Developing policies and procedures which increase the information made available to contractors
which better address their required responsibilities and duties; and
that the City Administration collaborate with the Common Council in protecting the public interests by
complying with South Bend Municipal Code § 17 -64 addressing `Bi- Annual Financial Statement and
Report Required; Quarterly Report Filed with the Common Council's Utility Committee ".
Section IV. This Resolution shall be in full force and effect fr�om� and after its adoption by the Common
Council and approval by the Mayor.
L
Derek D. Dieter, Council Member at Large
South Be C mmon Council Vice - President
.41.E -Z
Karen Ll White, Council Member arge
Comm z ' Co ittee of the Whole Chairperson
Tim Scott, r at Large
South Bend Common Council President
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Office of the City�t�l .?"p,;s:'s', �f^ Buttigieg, M r of Bend
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NOT APPROVS
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CITY CLERIC, SOUTH BEND, IN
TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND:
Your Committee of the Whole, to whom was referred:
BILL NO.
15 -64 A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, RECOMMENDING
THAT THE CITY'S BOARD OF PUBLIC WORKS UPDATE
ITS "SEWER INSURANCE PROGRAM POLICY" TO
INCLUDE SUSPENSION PROVISIONS FOR ENTITIES
DOING BUSINESS WITH THE CITY AND THAT
REQUIRED REPORTING TO THE COMMON COUNCIL
AND THE UTILITY COMMITTEE BE RESUMED
IMMEDIATELY
Respectfully report that they have examined the matter and that in their opinion,
this bill is being recommended to the full Council with a favorable
recommendation.
This bill was heard by the Utilities Committee.
Karen L. White
Chairperson, Committee of the Whole
Appendix 1
Suspension and Debarment Actions in FY 2014
Agency/Department
Suspensions
Proposed
Debarments
Debarments"
Agriculture
37
51
32
AID
7
15
12
Commerce
Defense
Air Force
2
109
2
177
4
138
Army
131
392
279
Defense Logistics Agency
15
164
110
Navy
145
262
208
Education
33
15
27
Energy
42
42
21
Environmental Protection
Agency
119
176
148
General Services Administration
11
56
50
Health and Human Services
7
32
32
Homeland Security
10
338
339
Housing and Urban
Development
197
272
278
Interior
11
39
42
Justice
9
8
8
Labor
0
0
0
NASA
13
18
8
National Science Foundation
9
33
25
Nuclear Regulatory Commission
0
0
0
Office of Personnel
Management
14
12
15
Small Business Administration
27
26
21
Social Security Administration
0
0
0
State
16
28
24
Transportation
43
51
47
Treasury
0
6
36
Veterans Affairs
2
26
25
Total Actions
1,009
2,241
1,929
* The ISDC obtained this information through a survey of member agencies.
* *The number of debarments does not include voluntary exclusion actions, which are reported
in Appendix 2.
Filed ir1 =:#Ice
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CITY CLEW, SOUTH BEND, IN
Appendix 2
Actions Related to Suspension and Debarment in FY 2014*
Agency/Department
Show
Cause
Notices
Referrals **
Declinations **
Administrative
Agreements
Voluntary
Exclusions
A 'culture
0
87
12
0
2
AID
2
28
0
1
0
Commerce
Defense
Air Force
0
35
2
286
0
2
0
3
0
0
Army
15
807
5
5
0
Defense Logistics
Agency
1
180
0
0
0
Navy
27
457
0
3
0
Education
0
77
0
4
4
Energy
42
48
4
0
0
Environmental Protection
Agency
0
255
38
3
1
General Services
Administration
9
128
0
2
0
Health and Human
Services
0
45
1
1
0
Homeland Security
5
385
1
1
0
Housing and Urban
Development
1
348
234
0
0
Interior
2
54
1
3
0
Justice
4
15
0
0
0
Labor
0
0
0
0
0
NASA
7
40
1
3
0
National Science
Foundation
0
27
0
1
2
Nuclear Regulatory
Commission
0
0
0
0
0
Office of Personnel
Management
1
19
1
0
0
Small Business
Administration
5
60
4
6
0
Social Security
Administration
2
0
0
0
0
State
1
44
0
0
0
Transportation
0
53
7
11
1
Treasury
1
6
3
0
0
Veterans Affairs
1
14
1
0
0
Total Actions
161
3,465
315
47
10
* The ISDC obtained this information through a survey of member agencies.
* *A referral and subsequent action or declination by the SDO may cross fiscal years, so a direct
comparison between referrals and actions taken will not produce a statistically reliable result.
Appendix 3
Government -wide Suspension & Debarment Activity
FYs 2010- 2014
Suspensions
1200
1009
1000
2081
2000
887
836
800
1718
1500
612
600
1265
1000
400
500
200
0
0
2010 2011 2012 2013 2014
2010 2011 2012 2013 2014
Proposed Debarments
2500
2229 2241
2081
2000
1718
1500
1265
1000
500
0
2010 2011 2012 2013 2014
Debarments
2500
1929
2000
1633 1722 1696
1500
973
1000
500
0
2010 2011 2012 2013 2014
10
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Common Council
City of South Bend Indiana
Derek D. Dieter, Council Member at Large
4'h Floor County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
(574) 235 -5982 (574) 235 -9173 Facsimile (574)235 -5567 TTY/TDD
July 7, 2015
Members of the Common Council
4th Floor County -City Building
South Bend, Indiana 46601
Re: Recommendations Calling for a Change of City Administration Policies
Dear Council Members:
At the last Common Council meeting held on June 22 "d, we were advised by the City Administration that
the Board of Public Works has no policies to temporarily remove any company from a list of companies
previously authorized to do business with the City, while a company is under investigation.
We, the Common Council Officers believe that the City has a duty to protect the public interest and to
also properly monitor the expenditure of all taxpayer dollars. It is clear that many other governmental
entities protect the public interest, with many examples being briefly summarized in the attached
Resolution.
We urge you to support this Resolution which recommends that the Board of Public Works immediately
begin a review of their practices addressed in the Board's "Sewer Insurance Program Policy" by:
1. Developing policies and procedures which are transparent, which reflect best practices, which are
regularly updated and filed with the Office of the City Clerk and posted on the City's website; and
2. Developing policies and procedures that an entity would be excluded or disqualified from bidding
on, quoting on, or participating in a contract with the City of South Bend for a temporary period
of time, pending the completion of an investigation or legal proceeding involving that entity; and
3. Developing policies and procedures which ensure that all contractors may be suspended during
any period of time that there may be an ongoing investigation as to the contractor's practices or
procedures; or an investigation of a contractor's alleged misconduct or ensuing legal proceedings;
and
July 7, 2015
Page 2
4. Developing policies and procedures which increase the information made available to contractors
which better address their required responsibilities and duties.
We also believe that compliance with City Code provisions addressing the City's Sewer Insurance
Program should begin immediately. The Board is required to share information with the Council.and also
with the Council's Utilities Committee, about the sewer insurance program.
In reviewing the legislative history on the 1980 ordinance which created this program, transparency and
accountability were critical from its very beginning. Unfortunately those reporting requirements have not
been fulfilled by the Administration. Oversight of this program which was created by the Common
Council, is important since the program has helped many South Bend residents over the years.
We have attached an article published on May 21, 2014 entitled "Federal Contracts and Grants: Agencies
have Taken Steps to Improve Suspension and Debarment Programs ". It highlights actions taken from
2009 -2013 on six (6) federal agencies which aims to improve governmental operations by:
• Protecting the government's interests
• Improving oversight
• Verifying accuracy
• Sharing results in the interest of transparency
Each year the U.S. Congress is to receive a status update on the federal suspension and debarment system.
This report was filed on March 31, 2015 and contained charts detailing suspension and debarment actions
for fiscal year 2014. We have attached those charts which clearly indicate that pro- active actions in this
area are being taken.
We believe that we owe it to the citizens of South Bend, to see that similar goals and objectives are carried
out here. We are the elected public servants who are entrusted with financial stewardship over our public's
funds. We look forward to discussing this with you and seek your support. Thank you.
SincereI ,
Derek D. Dieter, Council Vice - President
Council Member at Large
Karen L. White, Committee of the Whole Chairperson
Council Member at Large
Attachments
Tim Sco siden
I" District Council Member
Filed in :" _ offlce
f
1i L"8 4U15 j
JOHi-
CITY CLERK, SOUTH BEND, IN