Section Tra 401.12 - Denial of Prequalification and Debarment; Right To A Hearing(a) The department shall deny prequalification to a prospective contractor for any of the following reasons: (1) The applicant knowingly made materially false, deceptive, or fraudulent statements either on the application, or at any conference with the prequalification committee, or on any bid proposal form;(2) The applicant has been convicted of participating in anti-trust violations;(3) The applicant is currently debarred from performing work in any state or on federal projects; or(4) Other factors are present which would materially affect the contractor's ability to perform contractual responsibilities, including but not limited to poor performance on previous contracts in any state or on federal projects.(b) The department shall debar any prequalified contracting firm, its affiliates, or subsidiary firms, or principal individuals if the prequalification committee receives information from the contractor, a governmental unit, or a public record that: (1) The contractor knowingly made materially false, deceptive or fraudulent statements either on the application, at any conference with the prequalification committee, on any bid proposal form, or on documents filed with the department including but not limited to statement of hours worked, work performed, finances, cost, equipment used/purchased, materials used, or payments made;(2) The contractor has been convicted of participating in anti-trust violations;(3) A contractor, or any of its principal individuals, has been convicted of any bidding crime as a result of a jury or bench trial, any plea of guilty or nolo contendere, any public admission of a contractor related to a bidding crime, or any admission of a bidding crime written and signed or made under oath by an unindicted co-conspirator;(4) A contractor, or any of its principal individuals, has been debarred by some other state or federal agency for reasons substantially similar to those listed above in preceding subparagraph (3) regarding bidding crimes;(5) Other factors of a serious and compelling nature are present which materially affect the contractor's ability to perform its contractual responsibilities, including but not limited to poor performance reflected in performance evaluations created during the performance of the work on previous contracts; or(6) A contractor has failed or neglected to advise the department of a conviction upon any bidding crime or debarment by any other state or federal agency within 30 days of such conviction or debarment.(c) Any contracting firm, its affiliates or subsidiary firms, or any principal individual considered for debarment shall be formally notified by certified mail of the opportunity to request a hearing pursuant to Tra 202 30 days prior to actual debarment, provided that if necessary to protect the public interest in situations involving threat to public health or safety, the committee shall debar a contracting firm, its affiliates or subsidiary firms, or any principal individual effective immediately, and hold a hearing pursuant to RSA 541-A:30, III.(d) The prequalification committee shall suspend or otherwise delay inquiry into possible debarment if such inquiry might impede state or federal investigations.(e) If debarred, the term of debarment shall be 36 months, unless the prequalification committee determines that the reason for debarment no longer exists, or that the debarred contractor has successfully completed the terms of sentence, including probation responsibilities, for a bidding crime.(f) The prequalification committee shall extend the debarment term beyond 36 months if any of the bases for debarment still exist, and such bases continue to materially affect the contractor's ability to perform contractual responsibilities.(g) Debarment shall in no way affect the obligation of a contracting firm to complete services already under contract.(h) Any debarred contracting firm, its affiliates or subsidiary firms, or any principal individual shall not participate in any capacity on any project administered by the state unless the terms of the debarment are limited to enable the contractor to participate in activities not covered by the debarment order.(i) A contractor shall be debarred by the department based upon debarment in another state or by a federal agency, unless after investigation and inquiry of the contractor, the debarring agency, and any available outside sources, the department makes an exception to the debarment requirement based upon the circumstances involved, including: (1) Whether the action for which the contractor was disbarred would have resulted in disbarment in New Hampshire if the action had occurred here;(2) Whether the contractor has dismissed any officers or employees who were responsible for the action that resulted in disbarment;(3) The process involved with the debarment from the other state or federal agency, including whether the debarment is being appealed;(4) Whether the state is experiencing a need that the disbarred contractor is particularly suited to fill;(5) Whether the contractor has met or exceeded contract performance expectations for a contract in New Hampshire within the past 5 years;(6) Whether the disbarment was the result of a unique instance of misconduct, as opposed to a pattern of misbehavior;(7) The severity or lack of severity of the conduct that resulted in disbarment in the other state or by a federal agency suggest that a different penalty, if any, should apply in New Hampshire;(8) Any other facts or conditions exist which indicate the contractor will be able to successfully complete its work on behalf of the state of New Hampshire; or(9) Any other facts or conditions exist which would indicate that the contractor will not continue to act in the manner that resulted in disbarment.N.H. Admin. Code § Tra 401.12
#7176, eff 12-23-99; EXPIRED: 12-23-07
New. #9452, eff 4-8-09
Amended by Volume XXXVII Number 41, Filed October 12, 2017, Proposed by #12400, Effective 10/4/2017, Expires 10/4/2027.