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New Jersey Schools Construction Corp. v. Arkay Construction

April 14, 2008

NEW JERSEY SCHOOLS CONSTRUCTION CORPORATION, PETITIONER-RESPONDENT,
v.
ARKAY CONSTRUCTION, INC., AND RANTIK PARIKH, PRESIDENT, RESPONDENTS-APPELLANTS.



On appeal from a Final Decision of the Board of Directors of the Schools Construction Corporation, Agency Docket No. 03-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges S. L. Reisner, Gilroy and Baxter.

Appellants Arkay Construction, Inc., and Rantik Parikh, appeal from the November 22, 2006, final decision of the Board of Directors of the New Jersey Schools Construction Corporation (Board), denying them prequalification*fn1 and debarring*fn2 them for three years. We affirm.

I.

On August 29, 2005, New Jersey Schools Construction Corporation (SCC) issued a notice of adverse action to appellants, denying them prequalification and debarring them as contractors eligible to engage in public works contracting for four years, pursuant to the Educational Facilities and Construction Financing Act, L. 2000 c. 72 (the Act).*fn3 On September 15, 2005, appellants filed a request for a hearing with the SCC, and the matter was forwarded to the Office of Administrative Law (OAL), as a contested case. On April 5 and 6, 2006, the hearing was conducted before an Administrative Law Judge (ALJ). On July 27, 2006, the ALJ rendered his initial decision, recommending that the denial of prequalification be affirmed, but that there be no debarment. On August 31, 2006, the SCC filed exceptions to the ALJ's initial decision. On October 25, 2006, the Board issued its final administrative decision, adopting the ALJ's findings of fact and recommendation regarding denial of prequalification. However, the Board rejected the ALJ's recommendation of no debarment, and instead, imposed a three-year debarment from the date of issuance of the notice of adverse action.

On appeal, appellants argue:

POINT I:

SCC HAS FAILED TO PROMULGATE AND PUBLISH REGULATIONS THAT PROVIDE NOTICE OF CONDITIONS WARRANTING DEBARMENT.

A. AN AGENCY MUST PROMULGATE RULES TO PROVIDE NOTICE AND GUIDE CONDUCT.

B. THE DRACONIAN PENALTY OF DEBARMENT DEMANDS PUBLISHED RULES.

C. THE ABSENCE OF GOVERNING REGULATIONS VIOLAT[ES] DUE PROCESS AND FUNDAMENTAL FAIRNESS.

POINT II.

EVEN WHEN SCC "BORROWED" DEBARMENT REGULATIONS, THE AGENCY FAILED TO FOLLOW THOSE REGULATIONS.

A. SCC SELECTIVELY APPLIED [NJ]EDA'S DEBARMENT REGULATIONS AND DID NOT MEET ITS ...


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