§ 18A:18A-4 — Contract awarded by board of education resolution; disqualification conditions

18A:18A-4. a. Every contract for the provision or performance of any goods or services, the cost of which in the aggregate exceeds the bid threshold, shall be awarded only by resolution of the board of education to the lowest responsible bidder after public advertising for bids and bidding therefor, except as is provided otherwise in this chapter or specifically by any other law. The board of education may, by resolution approved by a majority of the board of education and subject to subsections b. and c. of this section, disqualify a bidder who would otherwise be determined to be the lowest responsible bidder, if the board of education finds that: (1) any board of education has had prior negative experience with the bidder within the past 10 years, as reported in a contractor evaluation submitted pursuant to N.J.S. 18A:18A-15; or (2) in the case of a contract for a school facilities project as defined in section 3 of P.L.2000, c.72 (C.18A:7G-3), there has been at least one instance of prior negative experience with the bidder by any board of education, or by the New Jersey Economic Development Authority or the New Jersey Schools Development Authority, or any combination thereof, as reported in a contractor evaluation submitted pursuant to N.J.S.18A:18A-15, a school facilities project performance evaluation, or in a mandatory uniform performance evaluation conducted pursuant to section 62 of P.L.2000, c.72 (C.18A:7G-36), as appropriate. b. As used in this section, "prior negative experience" means any of the following: (1) the bidder has been found, through either court adjudication, arbitration, mediation, or other contractually stipulated alternate dispute resolution mechanism, to have: failed to provide or perform goods or services; or failed to complete the contract in a timely manner; or otherwise performed unsatisfactorily under a prior contract with a board of education or, in the case of a school facilities project, with the New Jersey Economic Development Authority or the New Jersey Schools Development Authority; (2) the bidder defaulted on a contract, thereby requiring a board of education or, in the case of a school facilities project, the New Jersey Economic Development Authority or the New Jersey Schools Development Authority, to utilize the services of another contractor to provide the goods or perform the services or to correct or complete the contract; (3) the bidder defaulted on a contract, thereby requiring a board of education or, in the case of a school facilities project, the New Jersey Economic Development Authority or the New Jersey Schools Development Authority, to look to the bidder's surety for completion of the contract or tender of the costs of completion; (4) the bidder is debarred or suspended from contracting with any of the agencies or departments of the executive branch of the State of New Jersey at the time of the contract award, whether or not the action was based on experience with a board of education or, in the case of a school facilities project, with the New Jersey Economic Development Authority or the New Jersey Schools Development Authority; (5) the bidder's prequalification to bid on a school facilities project, which prequalification was granted pursuant to the process established by the development authority under section 59 of P.L.2000, c.72 (C.18A:7G-33), has been revoked by the New Jersey Schools Development Authority; (6) the bidder has been suspended from contracting or engaging in work or services on a school facilities project; or (7) the bidder's prequalification to submit bids on a school facilities project has been revoked pursuant to subsection b. of section 61 of P.L.2000, c.72 (C.18A:7G-35) or subsection b. of section 62 of P.L.2000, c.72 (C.18A:7G-36). c. The following conditions apply if the board of education is contemplating a disqualification based on prior negative experience: (1) The existence of any of the indicators of prior negative experience set forth in this section shall not require that a bidder be disqualified. In each instance, the decision to disqualify shall be made within the discretion of the board of education and shall be rendered in the best interests of the board of education. (2) All mitigating factors shall be considered in determining the seriousness of the prior negative experience and in deciding whether disqualification is warranted. (3) The bidder shall be furnished by the board of education with a written notice (a) stating that a disqualification is being considered; (b) setting forth the reason for the disqualification; and (c) indicating that the bidder shall be accorded an opportunity for a hearing before the board of education if the bidder so requests within a stated period of time. At the hearing, the bidder shall show good cause why the bidder should not be disqualified by presenting documents and testimony. If the board of education determines that good cause has not been shown by the bidder, it may vote to find the bidder lacking in responsibility and, thus, disqualified. (4) Disqualification shall be for a reasonable, defined period of time which shall not exceed five years. (5) A disqualification, other than a disqualification pursuant to which a board of education is prohibited by law from entering into a contract with a bidder, may be voided or the period thereof may be reduced, in the discretion of the board of education, 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 reversal of a judgment, or actual change of ownership, management or control of the bidder. (6) An opportunity for a hearing need not be offered to a bidder whose disqualification is based on its suspension or debarment by an agency or department of the executive branch of the State of New Jersey. The term of such a disqualification shall be concurrent with the term of the suspension or debarment by the State agency or department. d. The purchase of text books and materials that exceed the bid threshold and are approved by a board of education pursuant to N.J.S.18A:34-1 shall not require the further adoption of a resolution for purchase. L.1977, c.11; amended 1980, c.144, s.2; 1983, c.171, s.2; 1999, c.440, s.52; 2002, c.90; 2023, c.311, s.22.