Current through Register Vol. 56, No. 18, September 16, 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,
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.
