N.J. Admin. Code § 19:38A-4.1

Current through Register Vol. 57, No. 1, January 6, 2025

Section 19:38A-4.1 - Grounds for revocation of prequalification or denial of a renewal application

(a) The Authority has the burden of proof in revoking a current, valid prequalification, and in denying a timely, complete application to renew a current, valid prequalification.

(b) Any prequalification may be revoked or a renewal may be denied by the Authority for any of the following causes:

1. Fraud, deceit, or misrepresentation in securing prequalification, failure to supply information, or the supplying of information which is untrue or misleading, as to a material fact pertaining to the responsibility of the firm, any key person, or any person required to be listed in the application;

2. Lack of responsibility, integrity, reliability, expertise, competency, or lack of any required license or permit, to engage in contracting or professional consultant services by the firm or any key person;

3. Conviction of the firm, any key person, or any person required to be listed in the application, of any of the following crimes under the laws of New Jersey or the equivalent thereof under the laws of any other jurisdiction:

i. Murder, kidnapping, robbery, criminal usury, arson, burglary, any crime of the third degree or above specified in Chapters 14, 20 or 21 of Title 2C of the New Jersey Statutes, any offense specified in Chapters 27, 28 or 30 of Title 2C of the New Jersey Statutes, racketeering, violation of the criminal provisions of the New Jersey Antitrust Act, P.L. 1970, c. 73 (N.J.S.A. 56:9-1 et seq.), any purposeful or knowing violation of the criminal provisions of any environmental protection law, any criminal violation or disorderly persons offense under the Act, any offense showing lack of business integrity or honesty, or an attempt or conspiracy to commit any of the violations listed above; or

ii. Any other offense, attempt or conspiracy to commit any offense under any state or Federal law which indicates that prequalification of the firm would be inimical to the policy of the Act, the integrity of school facilities projects, or the public interest.

iii. The provisions of this paragraph shall not apply with regard to any conviction which occurred more than 10 years before the application, or to any conviction which has been addressed by a judicial order of expungement or a pardon; however, the Authority may consider the conduct underlying the criminal conviction;

4. The commission by the firm, key person or any person who is required to be listed in the application of any act or acts which would constitute any offense enumerated in (b)3 above, even if such conduct has not been or may not be prosecuted under the criminal laws of this State or any other jurisdiction or has been prosecuted under the criminal laws of this State or any other jurisdiction and such prosecution has been terminated in a manner other than with a conviction;

5. Identification of the firm, any key person, any person required to be listed in the application, or any other person shown to have a beneficial interest in the business of the firm, as a career offender or a member of a career offender cartel or an associate of a career offender or career offender cartel, where such identification, membership or association creates a reasonable belief that the participation of that person in any activity financed under the Act would be inimical to the policies of the Act or the public interest. For the purposes of this paragraph, "career offender" means any person whose behavior is pursued in an occupational manner or context for the purpose of economic gain, utilizing such methods as are deemed criminal violations of the public policy of this State; and a "career offender cartel" means any group of persons who operate together as career offenders;

6. Failure of the firm, a key person or any person who is required to be listed on the application to cooperate or comply with orders issued by any legislative investigatory body or other official investigatory body of any state or its subdivisions or of the United States when such body is engaged in the investigation of crimes or misconduct relating to public works contracting, official corruption, corrupt practices or organized crime activity;

7. Violations of any of the laws governing the conduct of elections of the State of New Jersey or of its political subdivisions;

8. Violations of the Law Against Discrimination (N.J.S.A. 10:5-1 et seq.,) or of the act banning discrimination in public works employment (N.J.S.A. 10:2-1 et seq.) or of the "Act prohibiting discrimination by industries engaged in defense work in the employment of persons therein" (N.J.S.A. 10:1-10 et seq.);

9. Violations of any laws governing hours of labor, minimum wage standards, prevailing wage standards, discrimination in wages, or child labor;

10. Violations of any laws governing the licensing or conduct of occupations or professions or regulated industries, or violation of contractual or statutory provisions regulating contingent fees;

11. Willful failure to perform in accordance with contract specifications or within contractual time limits;

12. Failure to perform or less than satisfactory performance in accordance with the terms of one or more contracts, provided that such failure or less than satisfactory performance has occurred within a reasonable time preceding the application;

13. Debarment, disqualification, revocation or suspension of the firm's right to bid or contract by an agency of government, if based on a cause equivalent to one set forth in this subchapter;

14. Offering, conferring, or agreeing to confer any benefit to induce the Authority, a school district, or any person either to perform or violate an official duty, or to violate the provisions of these regulations or of any law related to or implicating integrity or any rule or regulation adopted pursuant thereto; or

15. Any other cause of such serious and compelling nature that the granting of prequalification would be inconsistent with the policies of the Act or the public interest.

(c) The rendering of a final judgment, including by a guilty plea or plea of nolo contendere, by a court of competent jurisdiction or by an administrative agency empowered to render such judgment, shall be sufficient but not required to establish the existence of the criteria set forth in (b)7, 8, 9, and 10 above.

(d) If a firm, key person, or person required to be listed in the application has been convicted of a crime which may be grounds for denial of a renewal application or revocation of prequalification, the Authority may consider any of the following actions taken or proposed by the firm in determining whether to deny renewal of, or revoke, prequalification:

1. Changes in the firm's organizational structure to reduce the opportunity and motivation of individual employees to engage in illegal activity, including procedures for informing employees of the requirements of relevant state and Federal law;

2. Changes in the firms long and short term planning to ensure that the firm implements procedures and policies to prevent future violations of the law;

3. Changes in the firm's legal, accounting, or other internal or external control and monitoring procedures to discourage or prevent future violations of state or Federal law;

4. Changes in the firm's ownership, control, personnel, and personnel selection practices and the implementation of a reward or disincentive system in order to encourage employees to comply with relevant state and Federal law;

5. Agreement by the firm to permit monitoring by or on behalf of the Authority for a specific length of time of any changes in the firm's policy, procedure, or structure to insure the continued responsibility and integrity of the firm, the cost of such monitoring to be borne by the firm; or

6. Any other actions taken by the firm which demonstrate the firm's current responsibility and integrity.

N.J. Admin. Code § 19:38A-4.1

Amended by R.2014 d.002, effective 1/6/2014.
See: 45 N.J.R. 1597(a), 46 N.J.R. 134(a).
Substituted "Authority" for "Corporation" throughout; in (b)1, inserted a comma following "deceit", "information", "misleading", and "key person"; in the introductory paragraph of (b)3, inserted a comma following "key person" and "application"; in (b)3iii, substituted "conviction" for "Conviction"; in (b)14, inserted a comma following "conferring", and in the introductory paragraph of (d), inserted a comma following "key person".