N.J. Admin. Code § 12:60-7.3

Current through Register Vol. 56, No. 8, April 15, 2024

Section 12:60-7.3 - Conditions of debarment

(a) Debarment from public works or EDA contracts shall be made only with the approval of the Commissioner, except as otherwise provided by law.

(b) The Commissioner may debar a person, after an investigation and determination that the person has failed or refused to pay the prevailing wage rate.

(c) A violation as listed in (b) above shall not necessarily require that a person be debarred. In each case, the decision to debar shall be made at the discretion of the Commissioner unless otherwise provided by law. The Commissioner may consider the following factors as material in each decision to debar:

1. The record of previous violations by the person with the Division of Wage and Hour Compliance;

2. Previous cases of debarment by the Commissioner;

3. The frequency of violations by the person discovered in previous cases;

4. The significance or scale of the violations, consisting of shortfalls in wages or fringe benefits computed in audits;

5. The existence of outstanding audit(s) or failure(s) to pay;

6. Failure to respond to a request to produce records, forms, documents, or proof of payments; and

7. Submission of falsified or altered records, forms, documents, or proof of payment.

(d) The Commissioner may suspend a person pending debarment. The bases therefor shall include any or all of the following:

1. A history of any previous violation by the contractor of the New Jersey Prevailing Wage Act or Contractor Registration Act or any of their subsidiary regulations;

2. A history of a prior debarment or of a penalty imposed in a contested matter;

3. The existence of other contested prevailing wage or contractor registration matters pending against the contractor;

4. The size and scale of an outstanding audit by the Division of Wage and Hour Compliance is such as to indicate that the alleged violation by the contractor of the New Jersey Prevailing Wage Act, even absent a previous history of violations thereof, is significant; and/or

5. Aggravating factors which may include, but are not limited to:

i. Falsified testimony or statements;

ii. Attempts to evade investigations conducted by the Department;

iii. Attempts to intimidate or coerce workers from cooperating with the Department and its representatives in the investigation of the contractor;

iv. A history of not adhering to prior settlement agreements reached previously with the Department regarding the payment of wages, fees and penalties; and

v. A history of hiring subcontractors who have been found to be in violation of the Prevailing Wage Act or the Contractor Registration Act.

(e) When the Commissioner suspends a person from contracting, the person suspended shall be furnished with a written notice, which may be included in the notification of debarment, stating:

1. That suspension has been imposed, the date on which it becomes effective and the reasons therefor;

2. That if the contractor chooses to contest the suspension pending debarment, the contractor shall notify the Department in writing of that decision within 72 hours of receipt of the notification of suspension; and

3. That the suspension is for a temporary period, but that whenever debarment action has been initiated, the suspension may continue until the legal proceedings are completed.

(f) A Departmental-level hearing on the suspension will be held before the Director of the Division of Wage and Hour Compliance, or his or her designee, within seven days of the receipt by the Department of the contractor's notification contesting the suspension.

1. The Director, or his or her designee, shall permit the contractor to explain his or her position as to why suspension should not be imposed and to present evidence expeditiously in support of that position;

2. At the conclusion of the Departmental-level hearing, the Director, or his or her designee, shall consider all of the evidence so presented and shall reevaluate the necessity of the suspension, if so warranted by the evidence; and

3. The Director, or his or her designee, shall issue a written determination upholding or reversing the suspension and the reasons for same within five business days of the hearing.

(g) If the contractor disagrees with the written determination, he or she shall appeal said determination to the Office of Administrative Law for a hearing pursuant to the Administrative Procedure Act, 52:14B-1 et seq. and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1, in connection with the underlying debarment action.

N.J. Admin. Code § 12:60-7.3

Amended by R.2002 d.329, effective 10/7/2002.
See: 34 N.J.R. 2255(a), 34 N.J.R. 3528(a).
Rewrote (d) and recodified former (d)1 as (e); added (f) and (g).
Amended by R.2009 d.260, effective 8/17/2009.
See: 41 N.J.R. 1157(a), 41 N.J.R. 3091(c).
In (c)1, substituted "Division" for "Office".