Definitions

PURPOSE: This rule contains the definitions of terms used in this chapter. (1) Definitions. The following definitions apply to this chapter: (A) Affiliate. Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other; or a third person controls or has the power to control both. Indicia of control include, but are not limited to, the following: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, a business entity organized following the suspension or the termination of a person which has the same or similar management, ownership, or principal employees as the suspended or terminated, ineligible, or voluntarily excluded person, or joint ventures. A successor business entity is also an affiliate for the purpose of this chapter; (B) Agency. Any federal, state, or local public governmental entity (other than a court acting in its judicial capacity) which engages in procurement, purchasing, or competitive bidding of public contracts, including the department or the commission, or which possesses the authority to declare a potential bidder or contractor ineligible to bid on or receive publicly-awarded contracts; (C) Board. See review board; (D) Chief engineer. The chief engineer of the Missouri Department of Transportation; (E) Civil judgment. The disposition of a civil action by any state or federal court of competent jurisdiction, whether entered by verdict, decision, settlement, stipulation, or otherwise, which creates a civil liability or finding for some or all of the wrongful acts alleged; or a final determination of liability in a local, state, or federal civil judicial or administrative proceeding, including a proceeding under this chapter, seeking civil penalties or other remedies for making, presenting, or submitting any false, fictitious or fraudulent claims or statements to an agency, or causing such to be made, presented, or submitted to an agency, including but not limited to, those within the Federal Program Fraud Civil Remedies Act (31 U.S.C. sections 3801 to 3812); (F) Commission. The Missouri Highways and Transportation Commission; (G) Contract. A written agreement between the contractor and the commission or department, setting forth the obligation of the parties thereunder, including, but not limited to, the performance of the work, the furnishing of labor and materials, and the basis of payment. A contract may include two (2) or more different highway projects as part of a required or permissive combination. “Contract” shall also refer to all contracts entered into between the contractor and any subcontractor or supplier at any tier; (H) Contractor. Contractor means any individual or other legal entity that— 1. Directly or indirectly (for example, through an affiliate), submits offers for or is awarded, a government contract, including a contract for carriage under government or commercial bills of lading, or a subcontract under a government contract; or 2. Conducts business, or reasonably may be expected to conduct business, with the government as an agent or representative of another contractor; (I) Conviction. An adjudication of guilt of a criminal offense which may be punished by imprisonment, rendered by any state or federal court of competent jurisdiction, whether entered upon a verdict or a plea, including a plea of nolo contendere or an “Alford” plea, and regardless of whether imposition of a sentence of a fine or imprisonment is suspended or executed. A conviction exists immediately when the adjudication of guilt is entered, even though the date for sentencing or probation has not yet occurred, and even though that adjudication of guilt may be subject to defense motions, withdrawal of the plea, or appeal; (J) Department. The Missouri Department of Transportation. “Department” includes the chief engineer and all other officers and employees of the department, unless the text of this chapter clearly indicates a contrary construction is intended; (K) Disqualification. To determine ineligibility or unfitness for contracting or being a subcontractor or supplier under any contract with the commission or the department. A disqualified contractor is considered not responsible for contracting or being a subcontractor or supplier under any contract with the commission or the department. For purposes of this chapter, disqualification may consist of suspension of the contractor, subcontractor or supplier; (L) Division. Refers to the divisions of construction, design, materials, maintenance, traffic, and bridge within the Missouri Department of Transportation; (M) Indictment. Indictment for a felony or misdemeanor in any state or under federal law. An information or other filing by competent authority charging a criminal offense shall be given the same effect as an indictment; (N) Ineligible. Excluded from participation in contracts with the commission or the department; (O) Principal. A person is a principal of a firm if s/he is an officer, director, owner, partner, or other person with that firm who has primary management, supervisory or bidding duties or authority; (P) Review board. The review board for purposes of this chapter consists of three (3) or more of the following: the assistant chief engineer; and two (2) appropriate division engineers or directors from the following divisions as designated by the chief engineer: design, construction and materials, maintenance, traffic and highway safety, and bridge; or any of their designates; (Q) State. Includes the state of Missouri, as well as all other states, territories, and possessions of the United States; (R) Subcontractor. Any individual, partnership, corporation or a person or firm participating as part of a joint venture, to whom a contractor sublets any part of the work under a commission contract; (S) Successor. A person, firm, or corporation is a successor to another if it is a business entity organized following the disqualification of the other, and it has the same or similar management, ownership, or principal employees as the disqualified person, firm, or corporation; and (T) Supplier. A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with the contractor or with any subcontractor to furnish material or equipment to be incorporated in work by the contractor or subcontractor. AUTHORITY: Art. IV, section 29, Mo. Const., sections 226.020, 226.130, 226.150, 227.030, 227.100, and 227.210, RSMo 2016, and Title 49 Code of Federal Regulations part 29.* Original rule filed Dec. 12, 1996, effective June 30, 1997. Amended: Filed Dec. 8, 2016, effective July 30, 2017. *Original authority: 226.020, RSMo (1939); 226.130, RSMo (1939), amended 1993, 1995; 226.150, RSMo (1939), amended 1977; 227.030, RSMo (1939); 227.100, RSMo (1939), amended 1963, 1967, 1969, 2002; and 227.210, RSMo (1939).