A3834

An Act concerning the debarment of contractors for conviction of certain computer-related crimes and supplementing Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. Any contract that is negotiated and awarded pursuant to any law by the State, by a public authority, commission or board, or a contracting unit as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), for the purchase or maintenance of a computer, computer equipment, a computer network, computer system, computer software, computer program, database entry, compilation or maintenance, telecommunications devices, services or utilities, or any other contract for any materials or services in which the vendor may access any data or database contained in a computer, computer equipment, computer storage medium, computer system or computer network that belongs to or is maintained on behalf of the State, a public authority, commission or board or a local contracting unit, shall include a provision that the vendor shall not have been, and shall not hire or employ any person or subcontractor who has been, convicted or adjudicated delinquent for a violation of any offense specified in P.L.1984, c.184 (C.2C:20-23 et seq.), as amended and supplemented, or N.J.S.2C:21-17, or any similar offense defined by the laws of this State, another state or the federal government.

b. Every vendor shall certify that the vendor and every person or subcontractor hired or employed by the vendor, or to be hired or employed by the vendor, has not been convicted or adjudicated delinquent for any offense that would disqualify the vendor from being awarded a public contract pursuant to subsection a. of this section

c. A court imposing a sentence or disposition, or admitting a person into a supervisory treatment program pursuant to N.J.S.2C:43-12 or similar law, for an offense described in subsection a. of this section shall promptly notify the Division of Purchase and Property in the Department of the Treasury. The Director of Purchase and Property shall maintain a registry of persons who have been convicted or adjudicated delinquent for an offense specified in subsection a. of this section. The registry shall be deemed to be a government record pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) and shall be consulted by vendors and by any agency prior to awarding a contract. The failure of a person to be listed in the registry shall not relieve that person or his employer of the debarment imposed by this section.

d. A person debarred by this section may make application to the Director of Purchase and Property to terminate the debarment upon proof that the person has not committed an offense within five years following conviction, or release from confinement, or termination of parole or probation, whichever is later, and is unlikely to commit another offense.

e. A person shall be deemed to have been convicted of an offense if any judgment of guilt or an adjudication of delinquency has been entered by a court of competent jurisdiction, whether by verdict or a plea, or if the person has been admitted into a pretrial intervention program pursuant to N.J.S.2C:43-12 or any similar law.

f. A vendor subject to this section who employs any person or subcontractor in violation of this section shall be in material and substantial breach of the contract and shall be liable for any or all of the following:

(1) liquidated damages in an amount not less than $5,000 nor more than $50,000;

(2) a civil penalty in an amount not less than $5,000 nor more than $50,000, as determined by the Division of Purchase and Property or the Commissioner of Community Affairs; and

(3) ineligibility for an award of any public contract for a period of three years. A vendor shall not be determined to be ineligible if the vendor demonstrates by clear and convincing evidence that, notwithstanding that the vendor employed all reasonable means to comply with the requirements of this section, the vendor did not know that an employee or subcontractor had a conviction specified in subsection a. of this section. The Director of Purchase and Property and the Commissioner of Community Affairs shall maintain a registry of persons and vendors who have been made ineligible for public contracts as specified in this subsection. The registry shall be deemed to be a government record pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) and shall be consulted by any agency prior to awarding a contract.

g. The Director of Purchase and Property and the Commissioner of Community Affairs shall adopt additional regulations for the enforcement of this act.

2. a. Any person who is:

(1) awarded a contract pursuant to any law by the State, by a public authority, commission or board, or a contracting unit as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), for the purchase or maintenance of a computer, computer equipment, a computer network, computer system, computer software, computer program, database entry, compilation or maintenance, telecommunications devices, services or utilities, or any other contract for any materials or services in which the vendor may access any data or database contained in a computer, computer equipment, computer storage medium, computer system or computer network that belongs to or is maintained on behalf of the State, a public authority, commission or board or a local contracting unit; or

(2) a provider of electronic communication service or remote computing service who does business in this State;

shall promptly notify the Division of Criminal Justice when there is a reasonable basis to believe that the vendor has been the victim of, or the vendor's property or facilities have been used to commit, any computer criminal activity as defined in P.L.1984, c.184 (C.2C:20-23 et seq.), as amended or supplemented, or any similar offense defined by the laws of this State, another state or the federal government. Notification may be made by use of a toll-free telephone hotline, the Internet or any other means designated by the Attorney General for receiving reports of computer criminal activity.

b. Every governmental agency or unit of this State, including any political subdivision, county or local government, shall promptly notify the Division of Criminal Justice when there is a reasonable basis to believe that the governmental agency or unit, political subdivision, county or local government has been the victim of, or its property or facilities have been used to commit, any computer criminal activity defined in P.L.1984, c.184 (C.2C:20-23 et seq.), as amended or supplemented, or any substantially similar offense defined by the laws of this State, another state or the federal government.

c. A violation of subsection a. of this section by a vendor shall be a material and substantial breach of the public contract. The Attorney General may bring an action in the Superior Court for the award of damages and the imposition of civil penalties. Upon determining that any vendor or provider of electronic communication service or remote computing service has violated subsection a. of this section, the court may enter a judgment for any or all of the following:

(1) liquidated damages in an amount not less than $5,000 nor more than $50,000;

(2) a civil penalty in an amount not less than $5,000 nor more than $50,000;

(3) ineligibility for an award of any public contract for a period of three years;

(4) suspension or revocation of a license, franchise, certificates of incorporation, or privilege to do business in this State; and

(5) such other remedies as the court deems just, including injunctive relief.

d. Each separate violation of this section shall constitute a distinct violation and a separate sanction shall be imposed for each such violation.

e. The Attorney General shall adopt additional regulations for the enforcement of this section.

f. As used in this section, the terms "electronic communication service" and "remote computing service" shall have the same meaning as in section 2 of P.L.1968, c.409 (C.2A:156A-2), but shall be limited to those corporations, businesses or persons that provide such services to the public.

g. A provider of electronic communication services or remote computing services, including any employees, officers and agents, who makes any report pursuant to this section shall be immune from civil liability arising from such notification.

3. This act shall take effect immediately.

STATEMENT

This bill provides for the debarment from performing public computer contracts of persons convicted of certain computer-related crimes. In addition, the bill requires public entities, as well as a vendor performing public computer-related contracts, to report certain computer criminal activity. The bill establishes monetary and other penalties for noncompliance.