New Hampshire Department of Transportation

John O. Morton Building

7 Hazen Drive

Concord, New Hampshire 03301

 

CHAPTER Tra 400  PREQUALIFICATION AND BIDDING PROCESS

 

PART Tra 401  PREQUALIFICATION OF CONTRACTORS - CLASSIFICATION AND RATING OF PROSPECTIVE BIDDER

 

          Tra 401.01  Purpose.  The purpose of these rules is to establish requirements for those contractors intending to bid on projects advertised by the department and the sanctions that can be imposed under these provisions in the public interest.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; amd by #6044, eff 6-1-95; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.02  Scope.

 

          (a)  The requirements contained in Tra 401 shall apply to all those who intend to enter the competitive bidding process seeking award of a contract advertised by the department.

 

          (b)  Unless exempted herein, only those contractors prequalified under this part shall be eligible to become bidders on contracts advertised by the department.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.03  Definitions.

 

          (a)  "Bidding crime" means any act prohibited by state or federal law and committed in any jurisdiction, involving fraud, conspiracy, collusion, lying or material misrepresentation with respect to bidding on any contract, public or private.

 

          (b)  "Commissioner" means the commissioner of the New Hampshire department of transportation, or his or her authorized agent.

 

          (c)  “Contract” means a written agreement between the state and a contractor setting forth the obligations of the parties under the contract, including, but not limited to, the performance of the work and the basis of payment, and any supplemental documents identified in the contract or incorporated into the agreement.

 

          (d)  "Contractor" means an individual, partnership, limited liability company, association, corporation, subsidiary, or joint stock company that performs contracting services, and its members, managers, officers, shareholders, representatives, trustees, or receivers appointed by any court of competent jurisdiction.

 

          (e)  "Debar" means to preclude, revoke, or limit bidding privileges for a specified period of time.

 

          (f)  "Department" means the New Hampshire department of transportation.

 

          (g)  "Prequalification committee" means a committee from within the department consisting of the prequalification administrator and 5 members of the engineering staff as designated by the commissioner.

 

          (h)  "Principal individual" means anyone who possesses sufficient legal authority within a contractor to bind the organization contractually.

 

          (i)  “Prime contractor” means a contractor who enters into a contract with the state for performance of work prescribed by the contract.

 

          (j)  "Public interest" means protecting the health and safety of the citizens, curtailing negative financial impact to the state, assisting in investigations, or promoting competitive bidding.

 

          (k) “Subcontractor” means an individual, partnership, limited liability company, association, corporation, subsidiary, or joint stock company that performs contracting services, and its members, managers, officers, shareholders, representatives, trustees, or receivers appointed by any court of competent jurisdiction to whom the prime contractor sublets any portion of the contracted work.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.04  Contractor Information; Financial Statement.

 

          (a)  Any contractor proposing to bid on projects advertised by the department shall furnish a prequalification statement on forms available from the department as described in Tra 401.05.

 

          (b)  Any contractor proposing to bid on projects advertised by the department shall furnish a financial statement meeting the following standards:

 

(1)  The financial information shall be as of the end of the contractor’s last completed fiscal year, provided that a 3-month period following the close of a fiscal year shall be allowed for the preparation of updated financial statements;

 

(2)  All information other than financial information contained in the statement shall be current as of the date of filing; and

 

(3)  Any adverse change in the financial condition of the contractor since the date of the financial statement shall be indicated, and a written explanation given for the change.

 

          (c)  A contractor’s financial statement shall be accompanied by a report of financial condition meeting the following standards:

 

(1)  A contractor may elect to self certify as to financial condition by providing financial information on balance sheet forms provided by the department pursuant to Tra 401.05(b) if the contractor seeks prequalification to bid upon projects with a value of less than $1,000,000;

 

(2)  In all cases other than (1) above, the report shall be prepared by an independent certified public accountant certified to practice in New Hampshire, including the text of any footnotes to the financial statements as prepared by the certified public accountant;

 

(3)  The report shall be accompanied by a letter expressing the unqualified opinion of the certified public accountant that the report fairly and accurately expresses the financial condition of the contractor as presented by management on the date of the report; and

 

(4)  The report shall be based upon the following levels of service by the certified public accountant:

 

a.  For projects with an estimated cost of $5,000,000 or more, the report shall be based upon an audit of the firm’s financial condition;

 

b.  For projects with an estimated cost between $1,000,000 and $5,000,000, the report shall be based upon a review of the firm’s financial condition; and

 

c.  For projects with an estimated cost of less than $1,000,000, the report shall be based upon a compiled financial statement.

 

          (d)  All information furnished shall be used to determine a contractor's classification and capacity rating in accordance with these rules.  Information so supplied to the department shall be held in strict confidence, and treated as confidential, commercial, and financial information pursuant to RSA 91-A:5.

 

          (e)  Except when prequalification statements and supplementary information are the subject of litigation or an adjudicatory hearing, only the commissioner, assistant commissioner, deputy commissioner, prequalification committee, prequalification administrator, contracts administrator in the absence of the prequalification administrator and, upon the contractor’s request, the governor and council and department of justice shall have access to the prequalification statements and supplementary information.  Other than at the request of the contractor, no reproduction shall be made of the prequalification submission, and no person with access to the information shall redisclose the information to any other person.

 

          (f)  In order to open the bidding process to a broader field of bidders and to assure competitive bidding, the prequalification process shall not apply in instances where the project is simple in scope and common to the industry including but not limited to simple carpentry or painting.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; amd by #6044, eff 6-1-95; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.05  Prequalification Statement.

 

          (a)  Any contractor proposing to bid on a project(s) advertised by the department shall provide information in font size 10 or larger on the “Prequalification Statement” form furnished by the department.

 

          (b)  The applicant shall provide the following information on the “Prequalification Statement” form:

 

(1)  Complete legal business name of contractor submitting statement;

 

(2)  Complete legal business address;

 

(3)  Date of submission;

 

(4)  Telephone number;

 

(5)  Classification requested from among the following categories:

 

a.  Road construction;

 

b.  Guardrail construction;

 

c.  Traffic signals;

 

d.  Paving;

 

e.  Bridge construction;

 

f.  Bridge rehabilitation;

 

g.  Bridge painting;

 

h.  Covered bridges;

 

i.  Marine construction;

 

j.  Site work;

 

k.  Building construction;

 

l.  Building demolition;

 

m.  HVAC work;

 

n.  Electrical work;

 

o.  Roofing;

 

p.  Asbestos work; or

 

q.  Other, as specified;

 

(6)  Identification of the contractor, including:

 

a.  Form of organization, including but not limited to:

 

1.  Corporation;

 

2.  Partnership or limited partnership;

 

3.  Limited liability company; or

 

4.  Individual ownership;

 

b.  Address of the organization;

 

c.  Years organized under present business name; and

 

d.  Experience in the type of construction work requested by applicant which shall include identification of past and current projects performed as either the prime contractor or as a subcontractor;

 

(7)  Specifics of the organization of the contractor as follows:

 

a.  If a corporation:

 

1.  Date of incorporation;

 

2.  Place of incorporation, and whether in good standing;

 

3.  Name of president;

 

4.  Name(s) of corporate officers of the rank of vice-president or above;

 

5.  Name of secretary;

 

6.  Name of treasurer; and

 

7. Names of persons or entities owning 10% or more of the corporation, and indication of the percentage owned;

 

b.  If a partnership or limited partnership: 

 

1.  Date of organization;

 

2.  Nature of partnership;

 

3.  Names of all general and limited partners; and

 

4.  Addresses of all general and limited partners; and

 

c.  If a limited liability company (LLC):

 

1.  Date of organization;

 

2.  Place of creation, and whether in good standing;

 

3.  Name of the manager and any officers if a LLC; and

 

4. Name of each member owning 10% or more of the LLC and indication of the percentage owned;

 

(8) Listing of any affiliation of the contractor organization, principal individual, officer, or director with any other contractor or material supplier;

 

(9)  Listing of all on-going projects, public and private, as either a prime or subcontractor at date of filing indicating for each project:

 

a.  Contract amount;

 

b.  Class of work, for example, site work, road construction, and bridge construction;

 

c.  Percentage completed;

 

d.  Percentage sub-contracted;

 

e.  Full name and address of the entity that awarded the contract; and

 

f.  Expected date of completion;

 

(10)  Listing of completed contracts within the past 3 years indicating for each contract:

 

a.  Contract amount;

 

b.  Class of work, for example, site work, road construction, and bridge construction;

 

c.  Percentage completed;

 

d.  Percentage sub-contracted;

 

e.  Full name and address of the entity that awarded the contract; and 

 

f.  Date of completion;

 

(11)  A statement as to whether the organization or legal entity, its officers, or its partners have in the past 3 years been:

 

a.  Found in a legal proceeding to be in default of a contract, including the date and parties to the proceeding; 

 

b.  Claimed in a legal proceeding to be in default of a contract, including the date and parties to the proceeding;

 

c.  Put on notice that the legal organization is in default of a contract, including the date of breach and parties to the contract;

 

d.  Formally accused of an antitrust violation;

 

e.  Formally accused of a bidding crime; or

 

f. Formally accused of any charge that could lead to a debarment in NH or another jurisdiction;

 

(12)  A statement as to whether any officer, partner or principal individual of the organization is in litigation for, or has ever been convicted of an antitrust violation, the name of the individual, and reason for the action;

 

(13)  A statement as to the construction industry experience of each principal individual in the organization including:

 

a.  Individual's name;

 

b.  Present position;

 

c.  Number of years of construction experience;

 

d.  Value and type of work; and

 

e.  The capacity in which the work was performed or supervised;

 

(14)  Dated financial report including the following assets:

 

a.  Cash on hand;

 

b.  Notes receivable;

 

c.  Accounts receivable;

 

d.  Inventory;

 

e.  Deposits for bids or guarantees;

 

f.  Prepaid expense;

 

g.  Cash value of life insurance on principal individuals;

 

h.  Stocks and bonds;

 

i.  Investments;

 

j.  Fixed assets, including:

 

1.  Cost;

 

2.  Accumulated depreciation; and

 

3.  Book value;

 

k.  Other assets; and

 

l.  Names of persons or entities and percentages accounting for notes receivable;

 

(15)  Dated financial report including the following liabilities and equity:

 

a.  Notes payable;

 

b.  Accounts payable;

 

c.  Equipment lease and purchase agreements;

 

d.  Amount owed on equipment;

 

e.  Real estate encumbrances;

 

f.  Federal income tax provision;

 

g.  Other liabilities;

 

h.  Deferred income;

 

i.  Capital stock paid up;

 

j.  Contingent liabilities; and

 

k.  Names of persons or entities and percentages accounting for notes payable;

 

(16)  Information relating to the financial report, including the preparer's:

 

a.  Full name;

 

b.  Complete address;

 

c.  Telephone number; and

 

d.  Whether prepared on the cash basis or accrual basis;

 

(17)  A certified copy of any written agreement between the contracting legal entity and any other legal entity that guarantees the obligations of either legal entity;

 

(18)  Listing of construction equipment to be used in performance of the work for which prequalification is sought, including complete description and book value;

 

(19)  Names and complete addresses of major material suppliers and subcontractors with whom business was done within the past 3 years;

 

(20)  Names and addresses of the following financial entities used by the contractor:

 

a.  Bank;

 

b.  Surety company; and

 

c.  Insurance agent;

 

(21)  Certification of non-collusion statement, as required by federal regulations; 

 

(22)  Authorized signature and title; and

 

(23)  Letter from bonding company indicating both single and aggregate bonding limits.

 

          (c)  An authorized officer, partner, member, manager or principal of the legal entity or organization shall sign a sworn statement, under penalties of perjury, that the information contained in the application is true and accurate to the best of his/her information and belief.  The officer shall further attest that he or she is authorized to sign the contract on behalf of the legal entity.

 

          (d)  A prequalification application and supporting documents shall be filed as follows:

 

(1)  By mail to:

 

Bureau of Contracts

7 Hazen Drive

PO Box 483

Concord, NH  03302;

 

(2)  In person to:

 

Bureau of Contracts

7 Hazen Drive

Concord, NH  03302; or

 

(3)  Electronically by first contacting the department for the correct email address in order to protect contractors’ confidential information.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; amd by #6044, eff 6-1-95; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.06  Time of Filing and Review.

 

          (a)  Prequalification statements shall be filed with the department annually.  Prequalification status shall expire one year and 3 months from the date of the financial statement filed as part of the prequalification statement.  In no case shall a request for prequalification be accepted after the tenth day before the day set for opening of bids for the project on which the contractor under consideration intends to bid.

 

          (b)  A request for prequalification shall not be considered by the committee until a prequalification statement fully completed in accordance with Tra 401.05 and a financial statement fully completed in accordance with Tra 401.04 have been submitted by the contractor concerned.  If the information contained in any statement required under this part is insufficient, the commissioner shall refuse to furnish such contractor with an official proposal form for an advertised project.

 

          (c)  The prequalification committee shall analyze the prequalification statement and financial statement and obtain verification of the information set forth in the statements.  Obtaining verification shall include, but not be limited to, such methods as requesting written or oral references and evaluating past performance on state projects in any capacity.  The prequalification committee shall request further clarification of information, or a personal interview with the contractor, if necessary to evaluate the prequalification statement and the financial statement.

 

          (d)  The prequalification committee shall consider a request for the revision of a prequalification rating at any time based upon the submission of information showing increased financial ability, equipment, or ability to perform work.

 

          (e) The prequalification committee shall consider the request of a debarred contractor to lift debarment at any time based upon the submission of information to show that cause for continuance of a debarment no longer exists.

 

Source.  #4175, eff 12-1-86; amd by #4454, eff 7-1-88; ss by #5677, eff 7-29-93; amd by #6044, eff 6-1-95; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.07  Classification.

 

          (a)  Contractors shall be classified by the prequalification committee into one or more of the following areas of expertise:

 

(1)  Road construction;

 

(2)  Guardrail construction;

 

(3)  Traffic signals;

 

(4)  Paving;

 

(5)  Bridge construction;

 

(6)  Bridge rehabilitation;

 

(7)  Bridge painting;

 

(8)  Covered bridges;

 

(9)  Marine construction;

 

(10)  Site work;

 

(11)  Building construction;

 

(12)  Building demolition;

 

(13)  HVAC work;

 

(14)  Electrical work;

 

(15)  Roofing;

 

(16)  Asbestos work; and

 

(17)  Other, as specified.

 

          (b)  The prospective contractor shall indicate, at the place provided in the statement, the particular area(s) of expertise in which the contractor desires to prequalify.

 

          (c)  Classification shall be awarded in one or more areas of expertise based upon:

 

(1)  All information provided in the prequalification statement;

 

(2)  The actual past experience of the contractor in performance of work in one or more of the areas of expertise; and

 

(3)  References received based upon past work which indicate a record of successful performance of work as a contractor in that area of expertise.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.08  Capacity Rating.

 

          (a)  The prequalification committee shall determine annually the capacity rating of a contractor.

 

          (b)  Capacity rating means the bidder’s maximum bonding aggregate, and  shall be the largest amount, expressed in dollar volume, of work a contractor shall be judged capable of performing at any time, either as prime contractor or subcontractor, regardless of the location of the work and with whom it has contracted.  The contractor shall be qualified by the prequalification committee to bid on a project based upon the contractor’s financial statement, contract value of work on hand and bonding limits, both single and aggregate.  The capacity rating shall be subject to change during a year based upon updated information received by the prequalification committee or upon application from the contractor.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.09  Prequalification Determination.

 

          (a)  The prequalification committee shall use a combination of classification and capacity rating to determine the qualification of proposed contractors to bid on specific projects.

 

          (b)  The dollar value of the contractor's incomplete work as either a prime contractor or subcontractor shall be deducted from the capacity rating.  The remainder shall be called the current capacity rating.  Final prequalification determinations shall be expressed in terms of current capacity rating.

 

          (c)  The department shall notify each applicant who is prequalified of the amount of its current capacity rating and the classification of work on which the applicant shall be eligible to bid during the year.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.10  Request for Proposal.

 

          (a)  Although sample copies of all project documents shall be released to the public pursuant to RSA 91-A, no request for proposal forms to be filed as part of an actual bid for a department project shall be provided to a prospective bidder who is not prequalified, except as provided under Tra 401.04(f).  A contractor shall not be considered prequalified prior to filing the prequalification statement and financial report or prior to determination of classification and capacity ratings by the prequalification committee.

 

          (b)  Proposals shall not be issued to a contractor if performance evaluation reports show that on projects already under contract at the time of requesting proposals, the contractor is making unsatisfactory progress on the work.  Unsatisfactory progress shall include but not be limited to a negative evaluation of timeliness of performance or quality of work performed.

 

          (c)  Prequalified contractors shall seek the issuance of a request for proposal by completing, signing and submitting a “Request for Proposal” form, available from the department, containing the following information:

 

(1)  The contractors name, address, and telephone number; 

 

(2)  Project name and number for which a request is being made;

 

(3)  Identification of the prime and subcontractor; and

 

(4)  Status of all work under contract as of the date of the request which shall include:

 

a.  Description of the contract;

 

b.  Identification and address of the owner involved;

 

c.  The amount of the contract;

 

d.  The total value of uncompleted work in dollar amount;

 

e.  The total value of uncompleted work to be performed by a subcontractor in dollar amount; and

 

f.  The contract completion date.

 

          (d)  The prequalification committee shall issue a “Request for Proposal” form for use in actual bidding to a prospective bidder only if a review of the prequalification statement and financial statement shows that: 

 

(1)  The current capacity rating of the contractor exceeds the estimated value of the proposed contract;

 

(2)  The bonding capacity of the contractor exceeds the estimated value of the proposed contract;

 

(3)  The contractor possesses sufficient equipment and human resources to perform the work under the proposed contract as well as the  projects the contractor has under current contract; and

 

(4)  The contractor has in the past met or exceeded contract performance expectations for a state contract:

 

a.  In the same classification of expertise;

 

b.  In the same or a similar location; and

 

c.  For work of similar or greater complexity as the proposed work for which the contractor has requested a proposal.

 

          (e)  In instances when the contractor has no prior project experience working with the department, the contractor shall be limited to 2 or fewer projects, unless sufficiently determined by the department to be capable of handling more projects based upon the contractor’s bonding capacity, number of employees, net worth, the value of projects the contractor has completed in the prior 3 years, and the estimate value, complexity and location of the pending contract.

 

          (f)  Request for proposal forms shall be labeled with the name of the bidder and shall be non-transferable, except for a jointly prepared request for proposal submitted in accordance with Tra 401.11.

 

Source.  #4175, eff 12-1-86; EXPIRED: 12-1-92

 

New.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.11  Joint Qualification Rating.

 

          (a)  When 2 or more prequalified contractors wish to combine all or a portion of their assets for bidding on a project, they shall do so by filing with the department a jointly prepared request for proposal.

 

          (b) If a contractor applying for prequalification is organized into more than one legal entity, the contractor may obtain a larger capacity rating than would be available for the smaller of the 2 legal entities if:

 

(1)  The larger of the 2 legal entities supplies a written guarantee for the legal obligations of the smaller entity who is the prospective bidder;

 

(2)  The guarantee includes all assets and liabilities of the guarantor; and

 

(3)  The guarantee holds the guarantor and the prospective bidder responsible for the contract and actions of the prospective bidder on the contract. 

 

Source.  #5677, eff 7-29-93; ss by #7013, INTERIM, eff 6-20-99, EXPIRED: 10-18-99

 

New.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          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.

 

Source.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 

          Tra 401.13  Request for Hearing.

 

          (a)  Decisions of the prequalification committee with respect to the following determinations may be appealed to the commissioner by filing a request for hearing pursuant to Tra 202 and RSA 541-A:

 

(1)  Classification;

 

(2)  Capacity rating;

 

(3)  Prequalification status;

 

(4)  Denial of prequalification;

 

(5)  Requests to revise prequalification status;

 

(6)  Requests for joint qualification rating;

 

(7)  Refusal to approve cross corporate guarantee;

 

(8)  Suspension, revocation, or limitation on prequalification; or

 

(9)  Debarment.

 

          (b)  A request for hearing shall be sent to:

 

Commissioner

New Hampshire Department of Transportation

P.O. Box 483

Concord, NH 03302-0483

 

          (c)  A request for hearing shall be in writing and made within 30 days from the date of receipt of the decision by the applicant.

 

          (d)  The filing of a request for hearing shall not stay the bidding process on any proposed contract upon which an applicant has sought to be prequalified.

 

Source.  #7176, eff 12-23-99; EXPIRED: 12-23-07

 

New.  #9452, eff 4-8-09; ss by #12400, eff 10-4-17

 


Appendix

 

Rule

Statute Implemented

Tra 401.01

RSA 228:4, 228:4-a

Tra 401.02

RSA 228:4, 228:4-a

Tra 401.03

RSA 228:4, 228:4-a

Tra 401.04

RSA 228:4, 228:4-a, 91-A:5, IV

Tra 401.05

RSA 228:4, 228:4-a

Tra 401.06

RSA 228:4, 228:4-a

Tra 401.07

RSA 228:4, 228:4-a

Tra 401.08

RSA 228:4, 228:4-a

Tra 401.09

RSA 228:4, 228:4-a

Tra 401.10

RSA 228:4, 228:4-a

Tra 401.10 (a)

RSA 228:4, 228:4-a, 91-A:4, III-V

Tra 401.10 (b)-(f)

RSA 228:4, 228:4-a

Tra 401.11

RSA 228:4, 228:4-a

Tra 401.12

RSA 228:4, 228:4-a, 541-A:30, III

Tra 401.13

RSA 228:4, 228:4-a, 541-A: 30 through 36