SENATE, No. 436
STATE OF NEW JERSEY
INTRODUCED JANUARY 18, 1996
By Senators SINAGRA and CIESLA
An Act concerning certain projects and supplementing P.L.1963, c.150 (C.34:11-56.25 et seq.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. Any person who submits a bid directly to a public body for a contract for any public work subject to the provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.) and is not awarded the contract (hereinafter referred to in this section as the "plaintiff") may bring an action for damages in a court of competent jurisdiction against the contractor who was directly awarded the contract by the public body or any subcontractor of that contractor (hereinafter referred to in this section as the "defendant") alleging that the defendant has, in connection with work performed pursuant to the contract, violated the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) or failed to pay any contribution, tax, assessment or benefit required by any other applicable law.
b. Upon finding that one or more defendants violated the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) or failed to pay any contribution, tax, assessment or benefit required by any other applicable law in connection with work performed pursuant to the contract, and that the plaintiff submitted a bid for the contract which was less than the sum total of the bid accepted by the public body plus any additional amount that the defendant or defendants would have paid during the term of the contract to be in full compliance with P.L.1963, c.150 (C.34:11-56.25 et seq.) and other applicable laws in connection with the contract, the court shall order the defendant or defendants to pay to the plaintiff the entire amount of damages sustained plus reasonable attorney's fees or, if the court finds the noncompliance to be intentional, three times the amount of damages sustained plus reasonable attorney's fees. If there are two or more defendants, the court shall allocate the payments for damages sustained and attorney's fees among the defendants in a reasonable manner. Nothing in this section shall be construed as requiring payments to a plaintiff by any contractor or subcontractor who has not violated the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) or failed to pay any contribution, tax, assessment or benefit required by any other applicable law in connection with work performed pursuant to the contract.
c. A plaintiff may designate an agent or representative to maintain the action for and on behalf of all other plaintiffs who are similarly situated. In any action involving two or more plaintiffs, each plaintiff shall recover the entire amount of damages sustained by that plaintiff, as determined by the court, or if the court finds the noncompliance to be intentional, each plaintiff shall recover three times the entire amount of damages sustained by that plaintiff.
d. For the purposes of this section, the damages sustained by a plaintiff shall include the plaintiff's costs of preparing and submitting the bid and may, if sought by the plaintiff, include profits that the court determines the plaintiff would have made if the plaintiff had been awarded the contract and complied with the P.L.1963, c.150 (C.34:11-56.25 et seq.) and other applicable laws.
e. If the court determines that the defendant did not, in connection with work performed pursuant to the contract, violate the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) or fail to pay any contribution, tax, assessment or benefit required by other applicable law, the court shall order the plaintiff to pay the reasonable attorney's fees of the defendant.
f. As used in this section:
"Person" means any individual, corporation, company, partnership, firm, association or business;
"Contractor" means a person who is directly awarded a contract for a public work by a public body; and
"Subcontractor" means any subcontractor or lower tier subcontractor of a contractor.
2. This act shall take effect immediately.
STATEMENT
This bill permits any contractor who unsuccessfully bids for a public works contract to bring a court action as a plaintiff against the bidder who won the bid or the winning bidder's subcontractors based on violations of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.) or other applicable laws requiring payments in connection with the contract.
If the court finds that the winning bidder or a subcontractor of that bidder violated the laws and that the sum of the winning bid plus any additional payments that the violator or violators would have paid to be in full compliance with the laws is greater than the plaintiff's bid, the court is required to order the violator or violators to pay the reasonable attorney's fees of the plaintiff and the damages sustained by the plaintiff or triple damages, if the violation was intentional.
The action may be joined by similarly situated plaintiffs, each of whom is entitled to full damages or triple damages, if the violation is intentional. Damages include the plaintiff's costs of bidding and may, if sought by the plaintiff, include profits that the plaintiff would have made if the plaintiff had won the bid.
If the court determines that there was no violation, the plaintiff is required to pay the reasonable attorney's fees of the defendant.
The purpose of this bill is to give recourse for conscientious, law-abiding building contractors who are often underbid by unscrupulous competitors who fail to pay the wages, benefits or taxes required by law and undermine the health, safety and training standards needed to sustain appropriate quality levels in public works. The bill empowers the private sector to help ensure that required wages are paid in full, along with the associated unemployment insurance contributions, taxes and health benefits, therefore reducing State costs caused by uncompensated health care, lost taxes and contributions and substandard construction practices.
Concerns certain projects.