1. Debarment,
suspension and disqualification are measures which shall be invoked
by the State to exclude or render ineligible certain persons from
participation in contracts and subcontracts with the State, or
in projects or contracts performed with the assistance of the
subject to the approval of the State, on the basis of a lack of
responsibility. These measures shall be used for the purpose of
protecting the interests of the State and not for punishment.
To assure the State the benefits to be derived from the full and
free competition between and among such persons and to maximize
the opportunity for honest competition and performance, these
measure shall not be invoked for any longer than deemed necessary
to protect the interests of the State.
2. As used
in this Order,
(a) "Debarment"
means an exclusion from state contracting, on the basis of lack
of responsibility evidenced by an offense, failure, or inadequacy
of performance, for a reasonable period of time commensurate
with the seriousness of the offense, failure, or inadequacy
of performance.
(b) "Suspension"
means an exclusion from state contracting for a temporary period
of time, pending the completion of an investigation or legal
proceedings.
(c) "Disqualification"
means a debarment or a suspension which denies or revokes a
qualification to bid or otherwise engage in state contracting
which has been granted or applied for pursuant to statute, or
rules and regulations.
(d) "State"
means the 樱花视频, or any of the departments or
agencies in the Executive Branch of government with the lawful
authority to engage in contracting.
(e) "Person"
means any natural person, company, firm, association, corporation,
or other entity.
(f) "State
Contracting" means any arrangement giving rise to an obligation
to supply any thing to or perform any service for the State,
other than by virtue of state employment, or to supply any thing
to or perform any service for a private person where the State
provides substantial financial assistance and retains the right
to approve or disapprove the nature or quality of the goods
or service or the persons who may supply or perform the same.
(g) "Affiliates"
means persons having an overt or covert relationship such that
any one of them directly or indirectly controls or has power
to control another.
3. The executive
head of each department or agency in the Executive Branch, with
the lawful authority to engage in state contracting, shall, within
ninety days of the date of this Order and in accordance with the
provisions of the Administrative Procedures Act (P.L.1968, c.410,
C.52:14B-1 et seq.), promulgate rules and regulation governing
the causes, conditions and procedures applicable to determinations
of debarment, suspension and disqualification by that department
or agency. Such rules and regulations shall to the extent consistent
with existing law conform to the minimum standards hereinafter
set forth, but need not be limited to such standards. In addition
to any other filing required by law to be made, each executive
head shall file with the Attorney General and the Treasurer a
copy of such rules and regulations as may be promulgated.
4. Subject
to the conditions hereinafter described, the rules and regulations
referred to in Section 3 supra, shall authorize the department
or agency to debar a person in the public interest for any of
the following causes:
(a) Commission
of a criminal offense as an incident to obtaining or attempting
to obtain a public or private contract, or subcontract thereunder,
or in the performance of such contract or subcontract.
(b) Violation
of the Federal Organized Crime Control Act of 1970, or commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, perjury, false swearing, receiving stolen property,
obstruction of justice, or any other offense indicating a lack
of business integrity or honesty.
(c) Violation
of the Federal or State Antitrust Statutes, or of the Federal
Anti-Kickback Act (18 U.S.C. 874, 40 U.S.C. 276 B,c).
(d) Violation
of any of the laws governing the conduct of elections of the
樱花视频 or of its political subdivisions.
(e) Violations
of the "Law Against Discrimination" (P.L. 1945, c.169, C.10:5-1
et seq., as supplemented by P.L. 1975, c.127), or of the act
banning discrimination in public works employment (C.10:2-1
et seq.), or of the "Act Prohibiting Discrimination by Industries
Engaged in Defense Work in the Employment of Persons Therein"
(C.114, L.1942, C.10:1-10 et seq.).
(f) Violations
of any laws governing the hours of labor, minimum wage standards,
prevailing wage standards, discrimination in wages, or child
labor.
(g) Violations
of any laws governing the conduct of occupations or professions
or regulated industries.
(h) Willful
failure to perform in accordance with contract specifications
or within contractual time limits.
(i) A
record of failure to perform or of unsatisfactory performance
in accordance with the terms of one or more contracts, provided
that such failure or unsatisfactory performance has occurred
within a reasonable time preceding the determination to debar
and was caused by acts within the control of the person debarred.
(j) Violation
of contractual or statutory provisions regulating contingent
fees.
(k) Any
other cause affecting responsibility as a State contractor of
such serious and compelling nature as may be determined by the
department or agency to warrant debarment, including such conduct
as may be prescribed by the laws or contracts enumerated in
this paragraph even if such conduct has not been or may not
be prosecuted as violations of such laws or contracts.
5. The rules
and regulations concerning debarment required herein shall include
in substance the following conditions:
(a) Debarment
shall be made only upon approval of the executive head of the
department or agency, except as otherwise provided by law.
(b) The
existence of any of the causes set forth in paragraph 4 of this
Order shall not necessarily require that a person be debarred.
In each instance, the decision to debar shall be made within
the discretion of the head of the department or agency unless
otherwise required by law, and shall be rendered in the best
interests of the State.
(c) All
mitigating factors shall be considered in determining the seriousness
of the offense, failure or inadequacy of performance and in
deciding whether debarment is warranted.
(d) The
existence of a cause set forth in subparagraph's (a), (b), (c),
(d), (e), (f), and (g) of paragraph 4 of this Order shall be
established upon the rendering of a final judgment or conviction
by a court of competent jurisdiction or by an administrative
agency empowered to render such judgment. In the event an appeal
taken from such judgment or conviction results in reversal thereof,
the debarment shall be removed upon the request of the debarred
person unless other cause for debarment exists.
(e) The
existence of a cause set forth in subparagraph (h), (i), (j),
and (k) of paragraph 4 of this Order shall be established by
evidence which the department or agency determines to be clear
and convincing in nature.
(f) Debarment
for the cause set forth in subparagraph (l) of paragraph 4 of
this Order shall be proper provided that one of the causes set
forth in subparagraph 4(a) through 4(k) was the basis for debarment
by the original debarring agency. Such debarment may be based
entirely on the record of facts obtained by the original debarring
agency, or upon a combination of such facts and additional facts.
6. The rules
and regulations concerning debarment required by this Order shall
include in substance the following provisions regarding procedures,
period of debarment and scope of debarment:
(a) A
department or agency seeking to debar a person or his affiliates
shall furnish such party with a written notice: (i) stating
that debarment is being considered, (ii) setting forth the reasons
for the proposed debarment, and (iii) indicating that such party
will be accorded an opportunity for a hearing if he so requests
within a stated period of time. All such hearings shall be conducted
in accordance with the provisions of the Administrative Procedures
Act. However, where one department or agency may also impose
a similar debarment without according an opportunity for a hearing,
provided that the second agency furnishes notice of the proposed
similar debarment to that party, and accords that party an opportunity
to present information in his behalf to explain why the proposed
similar debarment should not be imposed in whole or in part.
(b) Debarment
shall be for a reasonable, definitely stated period of time
which as a general rule shall not exceed five years. Debarment
for an additional period shall be permitted provided that notice
thereof is furnished and the party is accorded an opportunity
to present information in his behalf to explain why the additional
period of debarment should not be imposed.
(c) Except
as otherwise provided by law, a debarment may be removed or
the period thereof may be reduced in the discretion of the debarring
agency upon the submission of a good faith application under
oath, supported by documentary evidence, setting forth substantial
and appropriate grounds for the granting of relief, such as
newly discovered material evidence, reversal of a conviction
or judgment, actual change of ownership, management or control,
or the elimination of the causes for which the debarment was
imposed.
(d) A
debarment may include all known affiliates of a person, provided
that each decision to include an affiliate is made on a case
by case basis after giving due regard to all relevant facts
and circumstances. The offense, failure or inadequacy of performance
of an individual may by imputed to a person with whom he is
affiliated, where such conduct was accomplished within in the
course of his official duty or was effected by him with the
knowledge or approval of such person.
7. Subject
to the conditions hereinafter described, the rules and regulations
required by this Order shall authorize the department or agency
to suspend a person in the public interest for any cause specified
in paragraph 4 of this Order, or upon a reasonable suspicion that
such cause exists.
8. The rules
and regulations concerning suspension required by this Order shall
include in substance the following conditions:
(a) Suspension
shall be imposed only upon approval of the executive head of
the department or agency and upon approval of the Attorney General,
except as otherwise provided by law.
(b) The
existence of any cause for suspension shall not require that
a suspension by imposed, and a decision to suspend shall be
made at the discretion of the executive head of the department
and of the Attorney General, and shall be rendered in the best
interest of the State.
(c) Suspension
shall not be based upon unsupported accusation, but upon adequate
evidence that cause exists or upon evidence adequate to create
a reasonable suspicion that cause exists.
(d) In
assessing whether adequate evidence exists, consideration shall
be given to the amount of credible evidence which is available,
to the existence or absence of corroboration as to important
allegations, and to inferences which may properly be drawn from
the existence or absence of affirmative facts.
(e) Reasonable
suspicion of the existence of a cause described in subparagraph's
(a), (b), (c), (d), (e), (f), and (g) of paragraph 4 of this
Order may be established by the rendering of a final judgment
or conviction by a court or administrative agency of competent
jurisdiction, by grand jury indictment, or by evidence that
such violations of civil or criminal law did in fact occur.
(f) A
suspension invoked by an agency for any of the causes described
in subparagraph's (a), (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), and (l) of paragraph 4 of this Order may be the basis
for the imposition of a concurrent suspension by another agency,
which may impose such suspension without the approval of the
Attorney General.
9. The rules
and regulations concerning suspension required by this Order shall
include in substance the following provisions regarding procedures,
period of suspension and scope of suspension:
(a) A
department or agency may suspend a person or his affiliates,
provided that within ten days after the effective date of the
suspension, the agency provides such party with a written notice:
(i) stating that a suspension has been imposed and its effective
date, (ii) setting forth the reasons for the suspension to the
extent that the Attorney General determines that such reasons
may be properly disclosed, (iii) stating that the suspension
is for a temporary period pending the completion of an investigation
and such legal proceedings as may ensue, and (iv) indicating
that, if such legal proceedings are not commenced or the suspension
removed within sixty days of the date of such notice, the party
will be given either a statement of the reasons for the suspension
and an opportunity for a hearing if he so requests, or a statement
declining to give such reasons and setting forth the agency's
position regarding the continuation of the suspension. Where
a suspension by one agency has been the basis for suspension
by another agency, the latter shall note that fact as a reason
for its suspension.
(b) A
suspension shall not continue beyond eighteen months from its
effective date unless civil or criminal action regarding the
alleged violation shall have been initiated within that period,
or unless debarment action has been initiated. The suspension
may continue until the legal proceedings are completed.
(c) A
suspension may include all known affiliates of a person, provided
that each decision to include an affiliate is made on a case
by case basis after giving due regard to all relevant facts
and circumstances. The offense, failure or inadequacy of performance
of an individual may be imputed to a person with whom he is
affiliated, where such conduct was accomplished within the course
of his official duty or was effectuated by him with the knowledge
or approval of such person.
10. The
rules and regulations required by this Order shall contain such
provisions as may be necessary to conform existing practices and
procedures under any relevant pre-qualification statutes to the
procedures governing debarment and suspension required herein,
to the extent that such existing practices and procedures may
concern the disqualification of any person from state contracting.
11. The
rules and regulations required by this Order shall provide that
the exclusion from state contracting by virtue of debarment, suspension
or disqualification shall extend to all state contracting and
subcontracting within the control or jurisdiction of the department
or agency which imposed the exclusion. However, when it is determined
essential to the public interest by the head of the department
or agency, and upon filing of a finding thereof with the Attorney
General, an exception from total exclusion may be made with respect
to a particular state contract.
12. Insofar
as practicable, prior notice shall be given to the Attorney General
and the Treasurer of any proposed debarment or suspension.
13. The
Treasurer shall maintain a current list of the names of all persons
suspended or debarred, the effective date and term if any thereof
and the agency or agencies which imposed same. Such list shall
be available for public inspection.
14. Departments
and agencies required by this Order to promulgate rules and regulations
governing debarment and suspension are hereby authorized in connection
with any proceeding thereunder to receive such information regarding
the criminal conduct or criminal record of any person to the extent
that such disclosure is deemed appropriate by the Attorney General,
consistent with existing federal and state law.
15. Nothing
required by this Order shall be construed to limit the authority
of any department or agency to refrain from contracting with the
discretion allowed by law.
GIVEN,
under my hand and seal,
this 17th day of March in the year
of our Lord, one thousand nine hundred
and seventy-six, and of the Independence
of the United States, the two hundredth
/s/
Brendan Byrne
-seal-
GOVERNOR