New Jersey is well-known for having strict, comprehensive, and complex pay-to-play laws.  Two new changes to an annual pay-to-play filing required of some government contractors will only enhance that reputation.

State law requires a company that receives $50,000 annually through government contracts in New Jersey to file a report by March 30 of the following year disclosing most of its public contracts and political contributions in the state.  Covered companies must disclose their 2015 activity online using Form BE by March 30, 2016.

The New Jersey Election Law Enforcement Commission (“ELEC”) recently amended Form BE to include two new requirements effective this year.  First, the filer must certify that the statements in the form are true, and that he or she is aware that willfully filing a false statement may lead to punishment.  Second, the form now requires that a filer identify whether each disclosed contract “was awarded pursuant to a fair and open process.”

These changes may appear minor but are significant for three reasons.  First, highlighting the possibility of false statements prosecution signals  a potential liability for contractors at a time of increased attention to pay-to-play violations in New Jersey.  The state is wrapping up its largest-ever prosecution of pay-to-play violations in which multiple executives of a company pled guilty to evading the pay-to-play laws.  Individual sentences included six-figure fines, debarment, and likely jail time, while the company paid $2 million in fines and is no longer in business.  In this atmosphere, and with this new certification, a truthful and accurate disclosure is of paramount importance.

Second, the fair and open certification touches on other parts of New Jersey’s notoriously complex pay-to-play reporting and prohibition system.  For example, certain laws only apply to contracts not awarded via a fair and open process, so identifying a contract as one that was not awarded by a fair and open process highlights the contract for regulatory agencies.  Disclosing that a large contract was awarded by other than a fair and open process may create public relations problem for contractors as well.

Third, determining whether a contract was awarded pursuant to a fair and open process is not always a simple task.  State law requires a contract awarded according to a “fair and open process” to, “at a minimum,” be:

  • advertised in advance in newspapers or on the contracting entity’s website;
  • awarded by a process providing for public solicitation for proposals and under a process established in writing; and
  • opened and announced publicly upon award.

However, the final decision on whether a contracting process was fair and open is left to the entity awarding the contract.  This means that the fair and open analysis rules might change based on who awarded the contract.  Nonetheless, contractors will have to make this determination and disclosure with the new false statements certification lurking in the background.

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Photo of Andrew Garrahan Andrew Garrahan

Andrew Garrahan represents and counsels clients at the intersection of law and politics. He guides them through both regulatory compliance issues and government investigations on matters including state and federal campaign finance, ethics, lobbying, and corruption, as well as in congressional investigations.

Andrew’s…

Andrew Garrahan represents and counsels clients at the intersection of law and politics. He guides them through both regulatory compliance issues and government investigations on matters including state and federal campaign finance, ethics, lobbying, and corruption, as well as in congressional investigations.

Andrew’s prior career in political fundraising gives him a unique perspective on the challenges faced by his clients, which include corporations, candidates, government officials, political and nonprofit organizations, and private individuals.

Andrew’s counseling and advisory practice includes:

  • guiding clients on structuring of and compliance for their state and federal lobbying and grassroots advocacy campaigns;
  • representing campaigns, Super PACs, corporations, trade associations, and individuals on the applicability of the Federal Election Campaign Act (FECA) and state campaign finance law;
  • counseling on Foreign Agents Registration Act (FARA) registration and disclosure, and its interaction with the Lobbying Disclosure Act (LDA);
  • helping companies comply with state and federal ethics laws, particularly on gifts and conflicts of interests, and domestic anticorruption; and
  • auditing corporate political law compliance practices.

Andrew’s investigations and defense work includes:

  • representing clients in Congressional investigations, including responding to letter requests and subpoenas;
  • preparing company officers and other individuals for testimony in Congressional investigative hearings;
  • defending clients in Department of Justice matters related to campaign finance, lobbying, ethics, and public corruption; and
  • representing clients before the FEC and state campaign finance, lobbying, and ethics regulators.
Photo of Kevin Glandon Kevin Glandon

Insurance Advocacy for Policyholders

Kevin Glandon has helped policyholders recover over $1 billion for first party losses and third-party liabilities. Kevin has extensive experience with complex, multimillion-dollar property damage and business interruption claims arising out of catastrophic events, including damage to or destruction…

Insurance Advocacy for Policyholders

Kevin Glandon has helped policyholders recover over $1 billion for first party losses and third-party liabilities. Kevin has extensive experience with complex, multimillion-dollar property damage and business interruption claims arising out of catastrophic events, including damage to or destruction of commercial real estate, hotels, and manufacturing plants caused by hurricanes, floods, and fires–prominent risks potentially impacted by climate change. Kevin also has significant experience litigating and advising on coverage for environmental and products liability claims.

Kevin also assists clients with insurance recovery under cyber, fidelity and crime insurance, builder’s risk, and product recall policies, and has advised on impacts due to communicable disease and insurance-related due diligence in connection with major acquisitions. He advises clients regarding efficient and practical insurance strategies to prepare for and respond to first-party losses and third-party claims, and has worked extensively with forensic accountants, insurance brokers, and subject matter experts to achieve an effective, multidisciplinary approach to claim resolution. Kevin’s insurance-related experience spans the fields of commercial real estate, hospitality, manufacturing, government contracting, energy production, and professional sports.

Political Law

He also has experience advising clients in compliance and defense matters regarding political and election law, including the Foreign Agents Registration Act, the Securities and Exchange Commission’s pay-to-play rules, the Federal Election Campaign Act, Senate and House ethics rules, and numerous state and local political and election laws and regulations.