Current through Register Vol. 56, No. 24, December 18, 2024
(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,
N.J.S.A.
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.
