177-038-0260 Suspension of Persons (1) Suspension. The Lottery may suspend a Person from an Award of Lottery Contracts for up to three years if: (a) Contract Performance: The Person has performed unsatisfactorily under a Contract or has committed a material breach of a Contract. (b) Contract Offense Conviction: The Person has been convicted of a criminal offense resulting from obtaining, or attempting to obtain, a public or private contract or subcontract, or resulting from the performance of such contract or subcontract. (c) Business Offense Conviction: The Person has been convicted 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 that currently, seriously and directly affects the Person's responsibility as a Contractor or that the Lottery determines may affect the fairness, integrity, honesty, or security of the Lottery or any Lottery games. (d) Antitrust Conviction: The Person has been convicted under state or federal antitrust statutes. (e) Workers’ Compensation or Employment Statute Violation: The Person does not carry worker's compensation or unemployment insurance as required by statute. (f) Other: The Lottery may attribute improper conduct of an individual or entity or its affiliate or affiliates having a contract with a Person to the Person for purposes of suspension determinations where the impropriety occurred in connection with the individual’s or entity’s duty for, on behalf of, or with the knowledge, approval, or acquiescence of, the Person. (2) Notice. Lottery will provide written notice to a Person suspended by Lottery under OAR 177-038-0260. (3) Suspension Protest Opportunity: Any Person who receives a suspension notice from the Lottery may submit a written protest of the notice to the Senior Procurement Manager within the later of five Days following the date of the suspension notice or the date specified in the suspension notice. (a) Suspension Protest Content: All suspension protests must be in writing and signed either in writing or electronic form by the Person’s authorized representative. The suspension protest must state all facts and arguments upon which the Person is basing the protest. (b) Lottery's Response: The Lottery's Senior Procurement Manager will review each timely-submitted suspension protest and will issue a written response to the Person within three Business Days following the Lottery’s receipt of the protest. (A) Response Content: The Lottery’s written response may include the Senior Procurement Manager’s decision affirming or denying the suspension protest, a notice to the Person that the Lottery needs additional time to evaluate the protest, or a request for additional information from the Person that the Lottery may need to evaluate the protest. (B) Follow-up Response: The Lottery will issue a follow-up response to the Person within a reasonable time following Lottery’s notice to the Person that the Lottery needs additional time to evaluate the suspension protest or following the Lottery’s receipt of the additional information that the Lottery has requested from the Person. (4) Suspension Effective Date: A Person’s suspension under this section is effective when the Person’s rights to protest the suspension under Subsections 3 and 5 are exhausted. (5) Appeal of Protest Determination: (a) Appeal to the Director: (A) General: If the Person disagrees with the Senior Procurement Manager's suspension protest decision, the Person may appeal the decision to the Director by submitting a written appeal to the Director within three Business Days following the date of the Senior Procurement Manager’s suspension protest decision. (B) Process: The Director will review all timely-submitted appeals of the Senior Procurement Manager’s suspension protest decision and will issue a written response to the Person within three Business Days following the Director’s receipt of the appeal. The Director may include in the written response the Director’s affirmation, rejection or modification of the Senior Procurement Manager’s suspension protest decision, a notice to the Person that the Director needs additional time to evaluate the appeal, or a request for additional information from the Person that the Director may need to evaluate the appeal. (C) Director’s Follow-up Response: The Director will issue a follow-up response to the Person within a reasonable time following the Director’s notice to the Person that the Director needs additional time to evaluate the appeal or following the Director’s receipt of the additional information the Director has requested from the Person. (b) Appeal to Commission: (A) General: If the Person disagrees with the Director’s decision on the appeal of the Senior Procurement Manager’s suspension protest decision, the Person may appeal the Director’s decision to the Commission by submitting a written appeal to Commission, through the Director, within two Business Days following the date of the Director’s decision. (B) Process: When considering the appeal of the Director’s decision, the Commission will review the suspension protest documents and other information presented to the Senior Procurement Manager and to the Director. The Commission will issue a written response to the appeal of the Director’s decision within a reasonable time following the Commission’s receipt of the appeal. The Commission may include in the written response the Commission’s affirmation, rejection or modification of the Director’s decision on the appeal of the Senior Procurement Manager’s suspension protest decision, a notice to the Person that the Commission needs additional time to evaluate the appeal, or a request for additional information from the Person that the Commission may need to evaluate the appeal. (C) Commission’s Follow-up Response: The Commission will issue a follow-up response to the Person within a reasonable time following the Commission’s notice to the Person that the Commission needs additional time to evaluate the appeal or following the Commission’s receipt of the additional information the Commission has requested from the Person. (6) Late Protests; Late Appeals: The Lottery will not consider a Person’s suspension protest or appeal submitted after the submission timelines specified in this rule. (7) Judicial Review: A Person may seek judicial review of the Commission's decision made pursuant to this section as set forth in ORS Chapter 183 for orders other than contested cases. Statutory/Other Authority: ORS Chapter 461 & Oregon Constitution, Article XV, §4(4) Statutes/Other Implemented: ORS 461.400, ORS 461.410, ORS 461.420, ORS 461.430 & ORS 461.440 History: LOTT 8-2018, adopt filed 09/28/2018, effective 10/01/2018