ASSEMBLY, No. 1771
STATE OF NEW JERSEY
INTRODUCED MARCH 25, 1996
By Assemblyman BATEMAN
An Act providing for the disqualification and debarment of certain individuals and business entities from entering into contracts with State and local government agencies, supplementing Title 52 of the Revised Statutes and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares that:
a. The citizens of this State are entitled to expect that all individuals and businesses contracting to provide goods and services to all State agencies and local government agencies are honest, responsible and competent to perform their duties.
b. In addition, all parties doing business with State agencies and local government agencies should have confidence in the integrity of the competitive bidding process and in the fact that public contracts are awarded according to a process which is fair and equitable.
c. There is a need, therefore, to establish a process whereby dishonest, irresponsible or incompetent individuals and businesses will be excluded from contracting with State agencies and local government agencies but which includes procedural safeguards to protect contractors from arbitrary exclusion.
2. (New section) Sections 1 through 13 of this act shall be known and may be cited as the "Public Contractor Debarment Act."
3. (New section) As used in sections 1 through 13 of this act:
"Affiliate" means a person who directly or indirectly controls or has the power to control another person.
"Board of education" shall have the meaning provided in section 2 of "The Public School Contract Law," N.J.S.18A:18A-2.
"Conduct" means an act or omission and includes performance or failure to perform under the terms of a contract.
"Debarment" means an exclusion from contracting with a State agency or local government agency for any cause set forth in this act.
"Governing body" shall have the meaning provided in section 2 of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-2).
"Local government agency" means any "contracting unit" as defined in section 2 of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-2).
"Person" means any natural person, company, firm, association, corporation or other entity.
"Reasonable cause" means evidence sufficient to cause a reasonable person to believe that a cause for debarment exists. Evidence that a grand jury has returned an indictment or that a court has found probable cause to support a criminal charge shall be deemed sufficient to cause a reasonable person to believe that the person named engaged in the conduct charged in the indictment, complaint or information.
"State agency" means any board, division, commission, agency, council, department, authority or office in the Executive and Legislative branches of State government now existing or hereafter established and having the legal authority to enter into contracts or to qualify prospective bidders under the provisions of "The Public School Contract Law," N.J.S.18A:18A-1 et seq.
"Public contract" means any contract or agreement entered into by a State agency or local government agency to purchase goods, services or both and any contract as defined in N.J.S.18A:18A-2 entered into by any board of education.
"The head of a State agency" means the individual or group of individuals constituting the highest authority within any State agency.
"State officer or employee" has the meaning provided in subsection b. of section 2 of P.L.1971, c.182 (C.52:13D-13).
"Special State officer or employee" has the meaning provided in subsection e. of section 2 of P.L.1971, c.182 (C.52:13D-13).
"Vendor" means any person who provides, offers or proposes to provide goods or services to or perform any contract for any State agency or local government agency.
4. (New section) a. In accordance with the procedures established in section 6 of this act, the head of a state agency or the governing body of a local government agency shall provide for the debarment of any person for the following causes:
(1) the person is disqualified from public contracting pursuant to subsection e. of N.J.S.2C:51-2;
(2) the person has been convicted of an offense in another jurisdiction for which the person would be disqualified from public contracting pursuant to subsection e. of N.J.S.2C:51-2 if the offense had been committed in or prosecuted under the laws of this State, and the Attorney General has not ordered otherwise as the public need may require; or
(3) the person is a business, corporation, partnership, association or proprietorship in which an individual who is disqualified from public contracting pursuant to subsection e. of N.J.S.2C:51-2 or subsection b. (1) of this section is a principal, an owner, directly or indirectly, or a controller of 5% or more of the stock or other equity interest, and the Attorney General has not ordered otherwise as the public need may require.
b. The head of a State agency or the governing body of a local government agency may, in accordance with the procedures established in section 6 of this act, provide for the debarment of any person for any of the following causes if, after considering all of the circumstances, including the date, nature, and seriousness of the conduct, and after considering any evidence of rehabilitation or reform of individuals, practices or policies, the head of the state agency or the governing body of the local government agency determines that debarment of the person is in the best interest of the public:
(1) commission of a criminal offense in connection with obtaining or attempting to obtain a public or private contract or subcontract or in the performance of such a contract or subcontract unless debarment is required by subsection a. of this section;
(2) violation of the federal "Organized Crime Control Act of 1970," as amended and supplemented, unless debarment is required by subsection a. of this section;
(3) commission of an offense under chapters 15, 17, 18, 20, 21, 27, 28 29, 30 or 41 of Title 2C of the New Jersey Statutes or of any offense under the laws of this State which indicates a lack of honesty or business integrity unless debarment is required by subsection a. of this section;
(4) commission of an offense in another jurisdiction which would be an offense described in paragraph (1) of this subsection or under the chapters of Title 2C of the New Jersey Statutes enumerated in paragraph (3) of this subsection had the offense been committed in or prosecuted under the laws of New Jersey or commission of any other offense under the laws of another jurisdiction which indicates a lack of honesty or business integrity unless debarment is required by subsection a. of this section;
(5) violation of federal or State antitrust statutes or the federal "Anti-Kickback Act," and the "Anti-Kickback Act Enforcement Act of 1986," as amended and supplemented;
(6) violation of any of the laws governing the conduct of elections of the federal government or of the State of New Jersey or political subdivisions of the State of New Jersey;
(7) violation of the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.); the act banning discrimination in public works employment, R.S.10:2-1 et seq.; or the act prohibiting discrimination by industries engaged in defense work in the employment of persons therein, P.L.1942, c.114 (C.10:1-10 et seq.);
(8) violation of any laws governing hours of labor, minimum wage standards, prevailing wage standards, discrimination in wages, or child labor;
(9) violation of any laws governing the conduct of occupations or professions or regulated industries;
(10) knowingly making any false statement of fact in or knowingly omitting any fact material to a bidding or contract document;
(11) a record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, including failure to perform within contract prices or time limits, or to perform according to specifications or professional standards, provided that such failure or unsatisfactory performance has occurred within a reasonable time preceding the determination to debar and was caused by acts within the control of the person debarred;
(12) violation of contractual or statutory provisions regulating contingent fees;
(13) the person is an affiliate of and is controlled by or is operating to the benefit of a person who has been debarred;
(14) failure to comply with the provisions of any federal or State tax law;
(15) failure to comply with the provisions of any federal or State environmental law;
(16) the person has been found guilty of violating the "Local Government Ethics Law," P.L.1991, c.29 (C.40A:9-22.1 et seq.) or of any code of ethics in effect pursuant to that act, in accordance with the procedures set forth in that act, or of violating the provisions of the "School Ethics Act," P.L.1991, c.393 (C.18A:12-21 et seq.), in accordance with the procedures set forth in that act;
(17) direct or indirect payment, offer to pay, or agreement to pay anything of any value of any kind to:
(a) any State officer or employee or special State officer or employee of any State agency with which such person transacts, offers or proposes to transact business;
(b) a member of the immediate family of any State officer or employee or special State officer or employee with which such person transacts, offers or proposes to transact business; or
(c) any partnership, firm or corporation that employs, is associated with, or in which an interest within the meaning of subsection g. of section 2 of P.L.1971, c.182 (C.52:13D-13) is held by any State officer or employee or special State officer or employee with which such person transacts, offers or proposes to transact business;
(18) failure to report, in writing, to the Attorney General and the Executive Commission on Ethical Standards, the solicitation of anything of value not authorized by law by any State officer or employee or special State officer or employee with which such person transacts, offers or proposes to transact business;
(19) unless the Executive Commission on Ethical Standards, upon application by the State officer or employee or special State officer or employee, has granted a waiver on the ground that the relationship does not present the potential, actuality or appearance of a conflict of interest, directly or indirectly, undertaking a private business, commercial or entrepreneurial relationship with, whether or not pursuant to employment, contract or other agreement, express or implied, or selling an interest in the vendor to:
(a) any State officer or employee or special State officer or employee having any duties or responsibilities in connection with the purchase, acquisition or sale of any property or services by or to any State agency or any instrumentality thereof; or
(b) any person, firm or entity with which any State officer or employee or special State officer or employee having any duties or responsibilities in connection with the purchase, acquisition or sale of any property or services by or to any State agency or any instrumentality thereof is employed or associated or in which such an officer or employee has an interest within the meaning of subsection g. of section 2 of P.L.1971, c.182 (C.52:13D-13);
(20) influencing, attempting to influence or causing to be influenced, any State officer or employee or special State officer or employee in his official capacity in any manner that might tend to impair the objectivity or independence of judgment of such officer or employee;
(21) causing or influencing, or attempting to cause or influence any State officer or employee or special State officer or employee to use, or attempt to use, his official position to secure unwarranted privileges or advantages for the vendor or any other person; or
(22) any other cause affecting responsibility as a public contractor of such serious and compelling nature as may be determined by the head of a State agency or the governing body of a local government agency to warrant debarment.
c. Nothing in this section is to be construed to prohibit vendors from:
(1) contracting with State officers or employees or special State officers or employees under the same terms and conditions as are offered or made available to members of the general public;
(2) giving a gift conferred on account of kinship or other personal relationship independent of the recipient's official status or the recipient's relationship to a person with official status; or
(3) giving a benefit so trivial that it involves no risk of creating an appearance that a State officer or employee or special State officer or employee would perform official duties in a biased or partial manner.
5. (New section) a. Except as otherwise provided by law, the head of a State agency or the governing body of a local government agency may, in the public interest and in accordance with the provisions for debarment or suspension established in section 6 and section 7 of this act, debar or suspend an affiliate of a person who is subject to suspension or debarment for a cause set forth in section 4 of this act, if the person's conduct is fairly attributed to the affiliate and if, after considering all of the circumstances, including the date and the seriousness of the conduct and any evidence of rehabilitation or reform of individuals, practices or policies, the head of the State agency or the governing body of a local government agency determines that debarment is in the best interest of the public.
b. An offense, or failure or inadequacy of the performance of an employee, agent, officer or director of a corporation or partnership is fairly attributed to the corporation or partnership under the following circumstances:
(1) if the person acted within the scope of his employment and on behalf of the corporation or partnership; or
(2) if the directors or high managerial agents of the corporation or partnership authorized, solicited, requested, commanded or failed to exercise due diligence to prevent the person's offense, failure or inadequacy of performance.
c. An offense or failure or inadequacy of performance is fairly attributed to any affiliate who does any of the following:
(1) knowingly aids, facilitates or otherwise contributes to the person's offense or failure or inadequacy of performance;
(2) solicits, requests or commands the person's offense or failure or inadequacy of performance; or
(3) fails to exercise due diligence to prevent the offense, or failure or inadequacy of performance of a person under the affiliate's supervision.
6. (New section) a. Except as provided in subsection f. of this section, a State agency or local government agency which seeks to debar a person shall:
(1) prior to the debarment, notify the person in writing of the proposed debarment, the cause for debarment alleged, and that the person has a right to a hearing prior to debarment if the person submits a written request for a hearing within 10 days of receipt of the notice of proposed debarment; and
(2) in the case of a State agency, transmit a copy of the notice to the Attorney General, and in the case of a local government agency, transmit a copy of the notice to the attorney for the governing body of the local government agency.
b. Prior to debarment of any person who submits a written request for a hearing within 10 days of receipt of the notice, a hearing shall be held. In the case of a debarment sought by a State agency, the hearing shall be deemed to be and shall be conducted as a contested case pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). In the case of a debarment sought by a local government agency, the hearing shall be held before the governing body of the local government agency, or a person, board, committee or commission that is statutorily authorized to hear such matters; except that when a local government agency seeks to debar any person because of a record of failure to perform or of unsatisfactory performance, as provided by paragraph (11) of subsection b. of section 4 of P.L. , c. (C. )(now pending before the Legislature as this bill), the hearing shall be conducted, on the local governing body's behalf, by the State Treasurer or the State Treasurer's designee within the Department of Treasury.
Except as provided in subsection e. of this section, cause for debarment must be established as follows:
(1) by proof by a preponderance of the evidence; or
(2) upon the rendering of a final judgment or conviction of a court of competent jurisdiction or of a final order by an administrative agency empowered to render an order determining the facts establishing the cause for debarment.
c. In the event that an appeal taken from judgment, conviction or order upon which a debarment is based results in a reversal of the judgment, conviction or order, the debarment shall be removed upon the request of the debarred person unless other cause for debarment is established according to the procedures set forth in this section.
d. Reversal of a judgment, conviction or order on appeal, or dismissal or other favorable disposition of a charge or complaint alleging an offense or violation set forth in paragraphs (1) through (9) or paragraphs (14) through (16) of subsection b. of section 4 of this act does not preclude a State agency or the governing body of a local government agency from determining, according to the procedures set forth in this section, that the conduct or omission that led to the charge or complaint requires debarment pursuant to paragraph (22) of subsection b. of section 4 of this act.
e. Where a State agency or local government agency, or an agency of another State or of the federal government, has debarred a person for a cause other than commission of an offense specified in subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of this act, another State agency or local government agency may impose a similar debarment without according an opportunity for a hearing, after providing the person with notice of the proposed debarment and an opportunity to present, in writing, evidence or argument in opposition to the debarment. Where a State agency or local government agency, or an agency of another state or the federal government, has debarred a person for commission of an offense specified in subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of this act, another State agency or local government agency shall impose the same debarment unless the Attorney General orders otherwise as the public need may require.
f. Debarment shall be for a reasonable, definitely stated period of time which shall not exceed five years, except that:
(1) no debarment imposed pursuant to this section shall extend beyond the date of the initial debarment upon which it is based;
(2) unless modified by the Attorney General as the public need may require, a debarment imposed pursuant to subsection a. of section 4 of this act shall be for a period consistent with the period of disqualification provided in subsection e. of N.J.S.2C:51-2;
(3) the head of a State agency or the governing body of a local government agency, on not more than one occasion, may extend a period of debarment, for a period not to exceed five years, after giving the person notice of the reasons for the extension and providing the person with an opportunity to present documentary evidence and argument as to why the additional period of debarment should not be imposed;
(4) the head of a State agency or the governing body of a local government agency may, unless otherwise provided by law, remove or shorten the period of debarment upon the basis of the person's good faith application under oath, supported by documentary evidence, and setting forth substantial and appropriate grounds for the granting of relief, such as newly discovered material evidence, reversal of a conviction or judgment, actual change of ownership, management or control, or the elimination of the causes for which debarment was imposed; and
(5) the head of a State agency or the governing body of a local government agency, unless otherwise provided by law, may modify a debarment, other than a debarment for commission of an offense specified in subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of this act, with respect to a particular contract if the head of the State agency or the governing body finds that the particular modification is essential to the public interest.
7. (New section) a. A person may be suspended pending debarment as follows: except as provided in subsection b. of this section, prior to the debarment of any person, the head of a State agency or the governing body of a local government agency may order a suspension and thereby exclude the person from contracting with the agency pending initiation and final determination of a debarment proceeding, if:
(1) the head of a State agency and the Attorney General or the governing body of a local government agency and the attorney for the governing body find that there is reasonable cause to believe that a person is subject to debarment for any cause set forth in section 4 of this act and that the public interest requires the immediate exclusion of the person from public contracting pending debarment; and
(2) The head of the State agency or the governing body of the local government agency provides the person with a written notice of the following:
(a) the suspension;
(b) its effective date;
(c) the reasons for the suspension, to the extent the Attorney General or the attorney for the governing body determines that they can properly be disclosed; and
(d) the person's right to submit, in writing, evidence or argument as to why the suspension should not be imposed.
b. Where a State agency or local government agency, or an agency of another state or the federal government, has suspended a person, another State agency or a local government agency may impose a similar suspension on the basis of the initial suspension alone, in accordance with the provisions of paragraph (2) of subsection a. of this section.
c. A suspension ordered pursuant to this section shall be terminated:
(1) if the head of the State agency or the governing body of the local government agency determines that the suspension is unwarranted;
(2) 60 days after the effective date of the suspension, unless the State agency or local government agency has initiated debarment proceedings or unless civil, criminal or other administrative proceedings concerning the conduct providing the basis for the suspension have been initiated by some person or governmental entity; or
(3) upon application of the person suspended at the conclusion of a legal proceeding that has been initiated within 60 days of suspension.
d. Nothing in subsection c. of this section shall be construed to preclude a subsequent suspension or subsequent initiation of debarment proceedings.
8. (New section) The head of a State agency or the governing body of a local government agency which has taken action to suspend or debar pursuant to the provisions of this act shall prepare and continuously update a list of all persons suspended or debarred by that agency. The list shall be transmitted to the State Treasurer, who shall prepare a master list of all persons suspended or debarred pursuant to this act or barred from public contracting pursuant to subsection e. of N.J.S.2C:51-2 and provide for the publication of the list in the New Jersey Register on a monthly basis. The master list shall include the names of all persons debarred, the reason for debarment, the name of the agency, the date of any suspension and the effective date and duration of the debarment.
9. (New section) A State agency or local government agency may use a suspension or a debarment, other than a debarment for commission of an offense specified in subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of this act, imposed pursuant to this act as a cause for rejecting any bid submitted for a public contract. Unless otherwise authorized by the Attorney General as the public need requires, a State agency or local government agency shall reject a bid for a public contract submitted by a person who has been debarred for commission of an offense specified in subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of this act.
10. (New section) Every person who submits a bid for award of a public contract shall be required to submit sworn statements:
a. indicating whether the person or any affiliate of the person is debarred or suspended pursuant to the provisions of the Public Contractor Debarment Act, P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) and describing the grounds for and duration of any such order of debarment or suspension; and
b. indicating whether the person or, if the person is a business, including any corporation, partnership, association, or proprietorship, any individual who owns directly or indirectly, or controls 5% or more of the stock or other equity interest of such person, has been convicted under the laws of this State or of another jurisdiction of any criminal offense enumerated in section 4 of this act and stating the offense and date of any such conviction.
11. (New section) a. A State agency or local government agency is authorized to receive information regarding the criminal conduct or criminal record of any person in connection with any investigation of the qualifications of a person who seeks to enter or has entered into a contract with the agency.
b. A State agency, after considering, in light of the public interest, factors such as the dollar amount of contracts it awards, the sensitivity or hazardous nature of the work to be performed pursuant to contracts it awards, and the opportunity for abuse of the public interest in the performance of work pursuant to the contracts it awards, shall include, in the rules and regulations promulgated pursuant to section 13 of this act, a rule that:
(1) identifies, by description of the character or amount of the work, goods or services involved, the contracts for which it will require State criminal history background checks as a prerequisite to qualification to bid on or award of a State contract;
(2) identifies, by description of position, responsibility or duties, the officers, directors, agents, employees and affiliates who will be required to submit to a State criminal history background check; and
(3) establishes procedures for collection of the fees required by section 2 of P.L.1985, c.69 (C.53:1-20.6) for State criminal history background checks that are conducted as a condition of a person's qualification to submit a bid on or to receive an award of a particular contract or class of contracts.
c. A State agency or local government agency may not disseminate information received pursuant to this section except to federal, State, and local agencies that are evaluating the person's fitness to participate in a public contract or as may be required in the performance of duties imposed or in the conduct of proceedings required by the provisions of this act.
12. (New section) The provisions of Executive Order No. 34 of 1976 and Executive Order No. 189 of 1988 are rescinded. Any debarment ordered pursuant to the provisions of Executive Order No. 34 or Executive Order No. 189 shall remain in effect until it expires, unless the debarment is modified or terminated pursuant to the provisions of section 6 of the "Public Contractor Debarment Act," P.L. , c. (C. ) (now pending before the Legislature as this bill).
13. (New section) Each State agency shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) promulgate rules and regulations to effectuate the purposes of this act. To the extent consistent with this act, regulations promulgated pursuant to Executive Order No. 34 of 1976 or Executive Order No. 189 of 1988 are continued until modified or repealed pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
14. N.J.S.2C:51-2 is amended to read as follows:
2C:51-2. Forfeiture of Public Office. a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2) He is convicted of an offense involving or touching such office, position or employment; or
(3) The Constitution or a statute other than the code so provides.
b. A court of this State shall enter an order of forfeiture pursuant to subsection a.:
(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of sentencing; or
(2) Upon application of the county prosecutor or the Attorney General, when the forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.
c. No court shall grant a stay of an order of forfeiture pending appeal of a conviction or forfeiture order unless the court is clearly convinced that there is a substantial likelihood of success on the merits. If the conviction be reversed or the order of forfeiture be overturned, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.
Any official action taken by the convicted person on or after the date as of which a forfeiture of the person's office shall take effect shall, during a period of 60 days following the date on which an order of forfeiture shall have been issued hereunder, be voidable by the person's successor in office or, if the office of the person was that of member of the governing body of a county, municipality or independent authority, by that governing body.
d. In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S.2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.
e. Any forfeiture or disqualification under subsection a., b. or d. which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.
f. (1) Except as may otherwise be ordered by the Attorney General as the public need may require[, any] :
(a) Any person convicted of an offense under section 2C:27-2, 2C:27-3, 2C:27-4, 2C:27-6, 2C:27-7, 2C:29-4, 2C:30-2, [or] 2C:30-3 or 2C:41-2 of this Title shall be ineligible, either directly or indirectly, to submit a bid, enter into any contract, or to conduct any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State for a period of, but not more than, 10 years from the date of conviction for a crime of the first or second degree, or five years from the date of conviction for a crime of the third degree[.] ; and
b. Any person convicted of a crime under this Title involving the award, procurement or performance of a public contract or subcontract shall be forever ineligible, either directly or indirectly, to submit a bid, enter into any contract, or to conduct any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State.
It is the purpose of this [subsection] paragraph to bar any individual convicted of any of the above enumerated offenses and any business, including any corporation, partnership, association or proprietorship in which such individual is a principal, or with respect to which such individual owns, directly or indirectly, or controls 5% or more of the stock or other equity interest of such business, from conducting business with public entities.
(2) The Attorney General or a county prosecutor who obtains a conviction for a crime enumerated in paragraph (1) of this subsection shall provide the State Treasurer with a copy of the judgment of conviction and shall thereafter notify the State Treasurer if any such conviction is reversed. If the Attorney General, as authorized by this subsection issues an order modifying a bar imposed pursuant to paragraph (1) of this subsection, the Attorney General shall notify the State Treasurer.
The State Treasurer shall keep and maintain a list of all individuals and corporations barred from conducting such business pursuant to this [section] subsection. The list shall indicate either that the bar is permanent on the date on which a bar of limited duration expires.
g. In any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.
(cf: P.L.1995, c.250, s.1)
15. N.J.S.18A:18A-23 is amended to read as follows:
18A:18A-23. Certificate of bidder showing ability to perform contract.
a. There may be required from any bidder submitting a bid on public work to any board of education, duly advertised for in accordance with law, a certificate showing that he owns, leases, or controls all the necessary equipment required by the plans, specifications and advertisements under which bids are asked for and if the bidder is not the actual owner or lessee of any such equipment, his certificate shall state the source from which the equipment will be obtained, and shall be accompanied by a certificate from the owner or person in control of the equipment definitely granting to the bidder the control of the equipment required during such time as may be necessary for the completion of that portion of the contract for which it is necessary.
b. There shall be required from any bidder submitting a bid on a contract to any board of education, duly advertised in accordance with law, sworn statements indicating whether the person or any affiliate of the person is debarred or suspended pursuant to the provisions of the Public Contractor Debarment Act, P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) and describing the grounds for and duration of any such order of debarment or suspension and indicating whether the person, or, if the person is a business, including any corporation, partnership, association or proprietorship, any individual who owns, directly or indirectly, or controls 5% or more of the stock or equity interest of such person, has been convicted under the laws of this State or any other jurisdiction of any criminal offense enumerated in section 4 of that act and stating the offense and date of such conviction.
(cf: N.J.S.18A:18A-23)
16. N.J.S.18A:18A-26 is amended to read as follows:
18A:18A-26. Classification of bidders as requisite to bidding.
Every board of education shall require that all persons proposing to bid on any contract requiring public advertisement for bids with the board for public work, the entire cost whereof will exceed $20,000.00, shall first be classified in accordance with article 6 of this chapter as to the character and amount of public work on which they shall be qualified to submit bids. So long as such requirement is in effect, the board of education shall accept such bids only from persons qualified in accordance with such classification. Unless otherwise authorized by the Attorney General as the public need requires, no board of education shall accept a bid for a public contract submitted by a person who is debarred pursuant to subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of the Public Contractor Debarment Act, P.L. , c. (C. ) (now pending before the Legislature as
sections 1 through 13 of this bill).
(cf: P.L.1983, c.266, s.2)
17. N.J.S.18A:18A-28 is amended to read as follows:
18A:18A-28. Application for classification; fee.
Any person desiring such classification shall file with the department a statement under oath in response to a questionnaire, prepared and standardized for like classes of work, by the department together with a fee of $10.00. The statement shall develop fully the financial ability, adequacy of plant and equipment, organization and prior experience of the prospective bidder, and also such other pertinent and material facts as may be deemed desirable. The person shall also file sworn statements indicating whether the person or any affiliate of the person is debarred or suspended pursuant to the provisions of the "Public Contractor Debarment Act," P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) and describing the grounds for and duration of any such order of debarment or suspension and indicating whether the person or, if the person is a business, including any corporation, partnership, association or proprietorship, any individual who owns, directly or indirectly, or controls 5% or more of the stock or equity interest of such person, has been convicted under the laws of this State or of any other jurisdiction of any criminal offense enumerated in section 4 of that act and stating the offense and date of such conviction.
(cf: N.J.S.18A:18A-28)
18. N.J.S.18A:18A-31 is amended to read as follows:
18A:18A-31. Change in classification as affecting bids; review and reconsideration of classification.
Where there have been developments subsequent to the qualification and classification of a bidder which in the opinion of the board of education would affect the responsibility of the bidder or establish cause for debarment pursuant to section 4 of the Public Contractor Debarment Act, P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill), information to that effect shall forthwith be transmitted to the department for its review and reconsideration of the classification. Before taking final action on any such bid, the board of education concerned shall notify the bidder and give him an opportunity to present to the department any additional information which might tend to substantiate the existing classification.
(cf: N.J.S.18A:18A-31)
19. N.J.S.18A:18A-32 is amended to read as follows:
18A:18A-32. Bidders not submitting statements within one year ineligible to bid; affidavit of no change in status to accompany bid; reports as to performance, etc.
No person shall be qualified to bid on any public work contract with the board of education, the entire cost whereof will exceed $20,000.00, who shall not have submitted a statement as required by N.J.S. 18A:18A-28 within a period of one year preceding the date of opening of bids for such contract. Every bidder shall submit with his bid an affidavit that subsequent to the latest such statement submitted by him there has been no material adverse change in his qualification information except as set forth in said affidavit. Debarment or existence of cause for debarment pursuant to section 4 of the Public Contractor Debarment Act,P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) shall be deemed a material adverse change for purposes of this section.
(cf: P.L.1983, c.266, s.4)
20. N.J.S.18A:18A-37 is amended to read as follows:
18A:18A-37. Award of purchases, contracts or agreements.
All purchases, contracts or agreements which require public advertisement for bids shall be awarded to the lowest responsible bidder. Unless the Attorney General orders otherwise, no purchases, contracts or agreements shall be awarded to a person who is debarred pursuant to subsection a. or paragraphs (1) through (4) of subsection b. of section 4 of the Public Contractor Debarment Act, P.L. , c. (C ) (now pending before the Legislature as sections 1 through 13 of this bill) or disqualified from public contracting pursuant to subsection e. N.J.S.2C:51-2.
Prior to the award of any other purchase, contract or agreement, the contracting agent shall, except in the case of the performance of professional services, solicit quotations, whenever practicable, on any such purchase, contract or agreement the estimated cost or price of which is 20% or more of the amount set forth in, or calculated by the Governor pursuant to, N.J.S.18A:18A-3 and the award thereof shall be made, in accordance with N.J.S.18A:18A-3 or N.J.S.18A:18A-4, as the case may be, on the basis of the lowest responsible quotation received, which quotation is most advantageous to the board of education, price and other factors considered; provided, however, that if the contracting agent deems it impractical to solicit competitive quotations in the case of extraordinary unspecifiable service, or, in the case of such or any other purchase, contract or agreement awarded hereunder, having sought such quotations determines that it should not be awarded on the basis of the lowest quotation received, the contracting agent shall file a statement of explanation of the reason or reasons therefor, which shall be placed on file with said purchase, contract or agreement.
(cf: P.L.1983, c.171, s.6)
21. Section 7 of P.L.1966, c.185 (C.27:7-35.7) is amended to read as follows:
7. The prequalification committee to be appointed by the Commissioner of Transportation, shall consist of such officials as the commissioner may deem appropriate for the performance of these duties. In addition to its duties pertaining to the classification of prospective bidders, the prequalification committee shall conduct all hearings pertaining to the suspension and debarment of classified persons and persons desiring classifications with the department.
(cf: P.L.1977, c.67, s.7)
22. Section 6 of P.L.1975, c.353 (C.40A:11-6.1) is amended to read as follows:
6. Awards of purchases, contracts or agreements. All purchases, contracts or agreements which require public advertisement for bids shall be awarded to the lowest responsible bidder. No purchase contract or agreement which requires public advertisement for bids shall be awarded to a person who is debarred pursuant to The Public Contractor Debarment Act, P.L. , c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) because of the commission of an offense specified in subsection a or paragraphs (1), (2), (3) or (4) of subsection b. of section 4 of that act unless authorized by the Attorney General as the public need requires.
Prior to the award of any other purchase, contract or agreement, the contracting agent shall, except in the case of the performance of professional services, solicit quotations, whenever practicable, on any such purchase, contract or agreement the estimated cost or price of which is $1,000.00 or more, and the award thereof shall be made, in accordance with sections 3 (C.40A:11-3) or 4 (C.40A:11-4), as the case may be, of the "Local Public Contracts Law," P.L.1971, c.198 on the basis of the lowest responsible quotation received, which quotation is most advantageous to the contracting unit, price and other factors considered; provided, however, that if the contracting agent deems it impracticable to solicit competitive quotations in the case of extraordinary unspecifiable service, or, in the case of such or any other purchase, contract or agreement awarded hereunder, having sought such quotations determines that it should not be awarded on the basis of the lowest quotation received, the contracting agent shall file a statement of explanation of the reason or reasons therefor, which shall be placed on file with said purchase, contract or agreement.
(cf: P.L.1983, c.418, s.1)
23. Section 26 of P.L.1971, c.198 (C.40A:11-26) is amended to read as follows:
26. Standard questionnaire; effect of unsatisfactory answers. The governing body of any contracting unit may adopt a standard form of statement or questionnaire for bidders on public works and contracts and may require from any person proposing to bid upon any such public work or contract a statement or answers showing his financial ability and experience in performing public work and describing the equipment available to such bidder in the performance of such work or contract, and if not satisfied with the sufficiency of this statement or answers may refuse to furnish plans and specifications to him. The governing body of each contracting unit shall require each person proposing to bid to submit a sworn statement indicating whether the person, or any affiliate of the person, is debarred or suspended pursuant to the provisions of the "State Contractor Debarment Act," P.L. c. (C. ) (now pending before the Legislature as sections 1 through 13 of this bill) and describing the grounds for and duration of any such order of debarment or suspension and indicating whether the person or, if the person is a business, including any corporation, partnership, association or proprietorship, any individual who owns directly or indirectly, or controls 5% or more of the stock or other equity interest of such person, has been convicted under the laws of this State or of any other jurisdiction of any criminal offense enumerated in section 4 of that act and stating the offense and date of any such conviction.
(cf: P.L.1971, c.198, s.26)
24. Section 31 of P.L.1971, c.198 (C.40A:11-31) is amended to read as follows:
31. Reconsideration by board of review; request for the time limit. Any prospective bidder who is dissatisfied with his original classification [or], reclassification or debarment may upon receipt of notice thereof, request in writing a hearing of the matter before the board of review. The request shall be filed with the contracting agent and the secretary of the board.
The board shall hold a hearing at which the prospective bidder shall be entitled to be heard and to submit additional information.
The board shall review the responsibility of all prospective bidders who have filed statements or answers, considering both the statement, answers and any additional information given at the hearing, and shall certify to the contracting unit concerned, its decision as to the original classifications or reclassifications, if any. The decisions shall be made by a majority vote.
In order for any change in classification by the board to be effective for public work or contract previously advertised, the request shall be filed not less than [5] five days prior to the final day for submission of bids, and the board shall hold a hearing and act upon the request not less than [2] two days prior to the date fixed for the next opening of bids on any public work or contract for which such prospective
bidders might be qualified to bid as a result of the reclassification.
(cf: P.L.1971, c.198, s.31)
25. This act shall take effect immediately.
STATEMENT
This bill broadens the scope of the law providing for the exclusion ("debarment") of certain vendors of goods and services from eligibility to seek or receive public contracts. The bill also establishes new procedures for enforcing debarment.
Grounds for debarment; duration of the debarment.
1. Mandatory debarment. New Jersey's Code of Criminal Justice presently provides that, "except as may otherwise may be ordered by the Attorney General as the public need may require," a person convicted of certain offenses under the Code shall be debarred from bidding for or conducting any business with a State agency or a political subdivision of the State for up to 10 years from the date of conviction if the crime is of the second degree or up to five years from that date if the crime is of the third degree (N.J.S.2C:51-2, subsection e). These offenses include bribery and various other crimes involving the actual or attempted exercise of corrupt influence on the performance of official duty (N.J.S.2C:27-2, 2C:27-4, 2C:27-6, 2C:27-7), the gift or acceptance of a benefit to refrain from reporting or seeking prosecution of an offense (N.J.S.2C:29-4), unauthorized exercise by a public servant of official functions for personal gain (N.J.S.2C:30-2), and misuse of privileged access to official information (N.J.S.2C:30-3). Also subject to mandatory debarment is any firm in which an individual convicted of any of these enumerated offenses controls an interest of 5% or more.
To this list of automatically disqualifying offenses under the Criminal Code, the legislation adds the crimes of making threats to influence the performance of official duties (N.J.S.2C:27-3) and racketeering (N.J.S.A.2C:41-2). The bill would also apply mandatory debarment to a person convicted in another jurisdiction of an offense, conviction of which under New Jersey law would be grounds for such disbarment.
The bill requires that the term of any mandatory debarment for crimes of the second degree (and, to accommodate the statutory grading of the newly included crime of racketeering, those of the first degree) shall be the full 10 years. The term of mandatory debarment for crimes of the third degree is to be the full five years. The bill provides that, in the case of a person convicted under any crime under the Code involving the award, procurement or performance of a public contract, the debarment is to be permanent. The provision for modification of the mandatory debarment sanction by order of the Attorney General is retained.
2. Discretionary debarment. Current law does not authorize a public contracting agency, at its discretion, to debar vendors from eligibility to seek or do business with the agency. Under the bill, however, the head of a State agency or the governing body of a local government agency may, in the interest of the public, debar a person for misconduct not constituting grounds for mandatory debarment after considering certain circumstances of the misconduct and any evidence of rehabilitation. Types of misconduct (not including those subject to mandatory debarment under item 1, supra) that would constitute grounds for discretionary debarment include the following:
a. Commission of a crime relating to the obtaining or performance of a public of a public contract;
b. Violation of the federal "Organized Crime Control Act of 1970";
c. Commission of an offense under any of certain chapters of the Code of Criminal Justice, viz., chapter 15 (robbery), chapter 17 (arson and other property destruction), chapter 18 (burglary), chapter 20 (theft, extortion, receipt of stolen property, etc.), chapter 21 (forgery and fraud), chapter 27 (corrupt influencing of public officials), chapter 28 (perjury and like misconduct), chapter 29 (obstruction of law enforcement), chapter 30 (official misconduct) or chapter 41 (racketeering), or any offense under other New Jersey law which indicates a lack of honesty or business integrity;
d. Commission in another jurisdiction of an offense which would, if prosecuted in New Jersey, be an offense (1) relating to public contracting, or (2) under the chapters just enumerated, or (3) indicating a lack of honesty or business integrity;
e. Violation of federal or State antitrust statutes or the federal "anti-kickback" laws;
f. Violation of laws governing the conduct of federal, State, or local elections;
g. Violation of certain State laws against discrimination in employment;
h. Violation of the laws governing hours of labor, wage standards and discrimination, and child labor;
i. Violation of laws governing regulated occupations, professions and industries;
j. Knowing false statements in, or omission to state a fact material to, a bidding or contract document;
k. A poor performance record;
l. Violation of contractual or statutory provisions regulating contingent fees;
m. Affiliation with and being subject to control by a debarred person;
n. Failure to comply with federal or State tax law;
o. Failure to comply with federal or State environmental law;
p. Violation of the "Local Government Ethics Law" or any code of ethics promulgated thereunder, or of the "School Ethics Act", as determined in accordance with those statutes;
q. Paying, or offering or agreeing to pay, anything of value to a State official serving in an agency with which the person does or proposes to do business, or any firm with which the official is employed or associated or in which the official has an interest;
r. Failure to report improper solicitations by a State official with whom the person so solicited seeks or does business;
s. Undertaking a private business relationship with or selling an interest in the vendor to either a public official having responsibility for procurement or a firm in which such an official has an interest;
t. Influencing or attempting to influence a State official in a manner tending to impair the official's objectivity or independence of judgment;
u. Influencing or attempting to influence a State official to abuse that person's office for the benefit of the vendor; and
v. Any other cause which affects responsibility as a public contractor and is sufficiently serious as to warrant debarment.
Enforcement procedures.
The bill establishes procedures which a State or local government agency is to follow when it seeks to debar a person. These procedures include: written notice of the proposed debarment, including the specification of the cause alleged and advisement of the right to a hearing; holding of a hearing on the question under procedures used in similar cases; and adoption of a finding of cause for debarment only upon proof by a preponderance of the evidence or upon the rendering in an official proceeding of a final judgment, conviction or final administrative order, as appropriate. Reversal on appeal of such a judgment, conviction or order or other favorable disposition of a charge or complaint alleging certain of the offenses subject to discretionary debarment does not preclude a State agency or local governing body from seeking debarment for misconduct sufficiently serious to warrant it.
Effect of prior debarment.
If a person has been debarred by an agency of one jurisdiction, including the federal government and agencies of other states, for conduct that would support either mandatory debarment or discretionary debarment under any of items a. through d. above, an agency of another jurisdiction shall impose the same debarment. If a person has been debarred in one jurisdiction for conduct supporting discretionary debarment under the other enumerated items, he or she may be debarred in another jurisdiction.
Authorizes any State or local government agencies to debar certain persons from contracting with agency.