N.J. Admin. Code § 17:12-2.8

Current through Register Vol. 56, No. 11, June 3, 2024

Section 17:12-2.8 - Poor performance as a basis for bypass of low bidder

(a) A record of poor performance on prior and/or current State contracts by a bidder submitting a lower priced proposal is sufficient basis for bypassing its proposal. In determining whether a bidder's poor performance warrants the bypass of its proposal, the Director shall take into consideration the frequency and seriousness of the bidder's poor performance as a contractor. Poor contract performance is evidenced by:

1. Complaints filed pursuant to 17:12-4.3, which have been resolved against rather than in favor of the contractor; or

2. Other information contained in the Division's vendor performance records, contained in a using agency's records, or obtained from audits or investigations of the bidder's prior work experience completed by the Division, a using agency, another state or Federal jurisdiction, a cooperative purchasing participant, or, its current licensure, registration, or certification status and relevant prior licensure, registration, or certification history, or its status or rating with established business/financial reporting services, as applicable.

(b) The Director may, in those instances where there is evidence of a record of poor performance by a bidder with customers or jurisdictions other than the State, request additional information beyond that in the bidder's proposal from the bidder in question regarding the bidder's present capability to perform adequately under the terms of the contract in question. If the bidder's response to the Division's request, in the Director's discretion, fails to demonstrate its current ability to perform adequately, the Director may bypass that bidder's proposal.

(c) Subsections (a) and (b) above shall not be construed to otherwise limit the Director's authority to bypass lower-priced proposals or proposals that are otherwise less advantageous to the State, in accordance with the statutory authority established at 52:34-12(g).

(d) Notice of a decision to bypass a bidder's proposal based upon poor performance shall be given to that bidder at the time the notice of intent to award is issued to all bidders.

(e) After receiving notice of bypass for poor performance, that bidder, in accordance with the provisions of 17:12-3.3, may challenge the bypass decision. If in the Director's judgment the bidder has substantiated its ability to perform the contract, or it is otherwise in the public interest, the Director may reverse the decision to bypass and may withdraw the notice of intent to award to allow the bidder's proposal to be evaluated and considered for award, if it was not evaluated with the other proposals.

N.J. Admin. Code § 17:12-2.8

Amended by 51 N.J.R. 141(a), effective 1/22/2019