Bill Text: NJ A1354 | 2018-2019 | Regular Session | Introduced
Bill Title: Imposes oversight, cost analysis, and fee requirements for State contracts; includes State contract performance in conscientious employee protection act; limits to three years all State contracts; requires certain disclosures on State contracts.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-09 - Introduced, Referred to Assembly State and Local Government Committee [A1354 Detail]
Download: New_Jersey-2018-A1354-Introduced.html
STATE OF NEW JERSEY
218th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Sponsored by:
Assemblyman JAMES J. KENNEDY
District 22 (Middlesex, Somerset and Union)
SYNOPSIS
Imposes oversight, cost analysis, and fee requirements for State contracts; includes State contract performance in conscientious employee protection act; limits to three years all State contracts; requires certain disclosures on State contracts.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning contracts awarded by the State and amending various parts of the statutory law and supplementing chapter 34 of Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1986, c.105 (C.34:19-3) is amended to read as follows:
3. An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care, or, in the case of the performance of a State contract, reasonably believes constitutes improper quality of service; or
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care, or, in the case of the performance of a State contract, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of service; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care, or, in the case of the performance of a State contract, constitutes improper quality of service;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
(cf: P.L.2005, c.329, s.1)
2. Section 1 of P.L.1954, c.48 (C.52:34-6) is amended to read as follows:
1. a. All purchases, contracts or agreements, the cost or contract price whereof is to be paid with or out of State funds shall, except as otherwise provided in this act, be made or awarded only after public advertisement for bids therefor, in the manner provided in this act.
b. No contract awarded by a State agency for the provision of services to the State or to the public, or any member of the public shall have a term that exceeds three years, nor shall any contract awarded for a term of less than three years be renewed without rebidding for a period that when added to the initial term exceeds three years. The performance of a contract may exceed a period of three years only if an additional specified period is required to bring to completion a specific, clearly defined project or activity or an identified emergency requires the extension until the emergency condition or occurrence is stabilized, is under control or is ended. As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
(cf: P.L.1954, c.48, s.1)
3. Section 5 of P.L.1954, c.48 (C.52:34-10) is amended to read as follows:
5. Any such purchase, contract or agreement may be made, negotiated or awarded pursuant to section 3 of this act when
(a) the purchase is to be made from, or the contract to be made with, the Federal or any State Government or any agency or political subdivision thereof; or
(b) the public exigency requires the immediate delivery of the articles or performance of the service; or
(c) only 1 source of supply is available; or
(d) more favorable terms can be obtained from a primary source of supply; or
(e) articles of wearing apparel are to be purchased which are styled or seasonal in character; or
(f) commodities traded on a national commodity exchange are to be purchased and fluctuations of the market require immediate action; or
(g) the equipment to be purchased is of a technical nature and the procurement thereof without advertising is necessary in order to assure standardization of equipment and interchangeability of parts in the public interest.
Paragraph (b) of this section shall apply when there is any condition or occurrence that requires an immediate response for the protection of the life, safety, or well-being of the members of the public of this State, or any member thereof, or for the protection or restoration of property, public or private, endangered, damaged, or destroyed as a result, actual or potential, of such condition or occurrence. The condition or occurrence may have arisen or resulted from flood, hurricane, storm, tornado, high water, wind-driven water, tidal wave, drought, fire, earth quake, explosion, civil disorder or other catastrophe that is or threatens to be of sufficient severity and magnitude to substantially endanger the health, safety and property of the public of this State or any member thereof. Paragraph (b) of this section shall apply, and the term of any contract awarded shall be, only for the duration of the condition or occurrence and its immediate aftermath during which it is necessary to ensure that affected members of the public are safe and immediately-needed care is being provided to them and that damage to property is stabilized.
(cf: P.L.1954, c.48, s.5)
4. Section 4 of P.L.2005, c.336 (C.52:34-10.4) is amended to read as follows:
4. a. The Director of the Division of Purchase and Property in the Department of the Treasury shall promulgate regulations, applicable to all contracts for which the director is responsible, and for all contracts for which any State agency is responsible, that establish procedures for (1) contract oversight and the monitoring of contract performance for all contracts including those providing services to the State or to the public or any member thereof, and including those awarded in the event of an emergency; and (2) complaint resolution. The regulations shall require the use of a vendor performance database by all State agencies and shall provide the specifications for such database. The director shall establish and maintain a vendor performance database with such specifications for the use of the division and of all State agencies awarding contracts.
b. The specifications for a vendor performance database shall include the ability for the division and all State agencies to:
track performance outcomes and expenditures for each contract;
facilitate reviews and catalogues of information;
facilitate information exchange between contract users and State Contract Managers;
facilitate the evaluation of every contractor's performance on all contracts with the State; and
facilitate the allocation of State Contract Managers in accordance with section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. The database shall be a centralized system viewable at different levels by State Contract Managers, contract users, State investigators and auditors, members and employees of the Legislature, the Office of the State Comptroller, the Office of Management and Budget, and the public. The database shall be designed to permit complete access for State Contract Managers, State investigators and auditors, the Contract Oversight Ombudsman, community oversight committees, the Office of the State Comptroller, and the Office of Management and Budget, and to permit more limited searchable access with regard to formats and functions to contract users, members and employees of the Legislature, and the public.
Data to be included in the database shall include, but not be limited to, the following for every State contract:
contract number;
contracting agency;
Lead State Contract Manager's name and contact information;
identifying information for the contractor, which must be consistent for all contracts to allow accurate filtering by contractor;
original price of the contract;
amount of money paid to the contractor to date;
performance data on the contract, including, but not limited to, achievement of contracted benchmarks and outcomes, and qualitative reviews by clients, contracting agency, or State Contract Managers;
number of complaints for each complaint code as such codes are set forth in regulations, including complaints by clients, State employees, and State Contract Managers;
failure to perform on any contract term; and
cost overruns and corresponding explanations.
d. State Contract Managers shall have the primary responsibility for entry of information into the database. Of the data listed in subsection c. of this section, State Contract Managers shall be specifically responsible for entering data on overall contract performance, including, but not limited to, cost overruns, fidelity to contract terms, and financial performance with regard to cost per person, cost per outcome, and overall cost effectiveness; complaints; and assessment of outcomes, including but not limited to, service quality. Vendors shall be required to enter objective, administrative data and performance data that can be checked and verified by State Contract Managers and others with access to the database.
e. The Office of Information Technology shall be responsible for the technological aspects of maintaining and upgrading the database, and, in coordination with the Office of the State Comptroller, the Office of Management and Budget, and State Contract Managers, for maintaining and upgrading the format, content, and specifications of the database. Such funds as shall be necessary for the maintenance and upgrade of the database shall be appropriated annually from the State general fund.
f. As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
(cf: P.L.2005, c.336, s.4)
5. Section 7 of P.L.2005, c.336 (C.52:34-10.7) is amended to read as follows:
7. a. [The] State Contract [Manager] Managers shall be [the] State [employee] employees who shall be responsible for the overall management and administration of a State contract , which shall include, but not be limited to, any contract for the provision of services to the State or to the public or any member thereof and any contract awarded in the event of an emergency, entered into on behalf of the State by the Division of Purchase and Property in the Department of the Treasury or entered into by a State agency. State Contract Managers shall have no responsibilities other than the overall management and administration of a State contract. The State agency awarding or using the contract shall designate [the] a Lead State Contract Manager and a number of State Contract Managers to be determined pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill), for that contract and inform the Director of the Division of Purchase and Property of [its] that designation, except that the director may designate the Lead State Contract Manager and other State Contract Managers when the director deems necessary. The Lead State Contract Manager and managers for each contract shall be identified at the time of execution of the contract. At that time, the contractor shall be provided with [the] each State Contract Manager's name, department, division, agency, address, telephone number, fax phone number, and E-mail address.
b. State Contract Managers shall be assigned to only one State agency for the overall management and administration of the contracts of that agency, except that, for emergency contracts, State Contract Managers may be reallocated as deemed necessary by the director. Nothing in this section shall permit the assignment of State Contract Managers in a manner that violates the sufficiency ratios required by section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
Any State Contract Manager may serve as the Lead Contract Manager on any contract in their assigned agency, subject to the limitations in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. State Contract Managers shall have such experience and training as shall be required by the State Treasurer. The State Treasurer shall specify the qualifications and training required of State Contract Managers. At a minimum, the qualifications shall include the requirements set forth in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill). Periodic in-service training shall also be required, provided that all State Contract Managers shall receive training every two years.
d. The employment of each State Contract Manager shall be approved in writing by the Department of the Treasury.
e. No contractor shall serve as a State Contract Manager.
f. For a contract where only one State agency uses the contract, the Lead State Contract Manager shall be responsible for engaging the contractor, assuring that purchase orders are issued to the contractor, directing the contractor to perform the work of the contract, approving the deliverables and approving payment vouchers. The Lead State Contract Manager shall be the person that the contractor contacts after the contract is executed for answers to any questions and concerns about any aspect of the contract. The Lead State Contract Manager shall be responsible for coordinating the use and resolving minor disputes between the contractor and the State agency. The Lead State Contract Manager shall be responsible for coordinating the efforts of all other State Contract Managers assigned to the contract in accordance with the oversight plan provided in accordance section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill).
If the contract has multiple users, the director or the agencies may designate the Lead State Contract Manager for that contract. The Lead State Contract Manager shall be the central coordinator of the use of the contract for all using agencies, while other State employees engage and pay the contractor. All persons and agencies that use the contract shall notify and coordinate the use of the contract with the Lead State Contract Manager. For contracts that have multiple users and for which more than one State Contract Manager is required pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), the director shall ensure that the State Contract Managers are drawn equally from the using agencies to the extent feasible.
g. The Lead State Contract Manager shall serve as the liaison with the Department of the Treasury, the State Commission on Investigation, the Office of the State Comptroller, and the Office of Management and Budget to facilitate contract oversight, monitoring, assessment, enforcement, and compliance.
[The] h. A Lead State Contract Manager shall have the following additional duties:
if the Lead State Contract Manager determines that the contractor has failed to perform the required work and is unable to resolve that failure to perform directly with the contractor, the Lead State Contract Manager shall file a formal complaint with the contract compliance unit in the Division of Purchase and Property or with the State agency and request that office to assist in the resolution of the contract performance problem with the contractor;
the Lead State Contract Manager shall be responsible for arranging for contract extensions and preparing any re-procurement of the contract with the [Purchase Bureau] division or agency;
the Lead State Contract Manager shall be responsible for obtaining permission from the director or agency to reduce the scope of work, amend the contract or add work or special projects to the contract after contract award;
the Lead State Contract Manager shall be responsible for completion of a project performance assessment form for submission to the division or agency, with a copy to the Office of Management and Budget and for entering the corresponding data into the vendor performance database; [and]
the Lead State Contract Manager shall be responsible for submitting the contractor final deliverables to the Associate Director of the Office of Management and Budget; and
the Lead State Contract Manager shall be responsible for aggregating information received from other State officers and employees with regard to the contractor's performance and for entering the corresponding data into the vendor performance database in accordance with section 4 of P.L.2005, c.336 (C.52:34-10.4).
i. Any contract user that is unable to resolve disputes with a contractor shall refer those disputes to the Lead State Contract Manager for resolution. Any questions related to performance of the work of the contract by contract users shall be directed to the Lead State Contract Manager. The contractor may contact the Lead State Contract Manager if the contractor cannot resolve a dispute with contract users.
j. As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
k. A person who has held a position as a State Contract Manager, or any member of the person's immediate family, or any partnership, firm, or corporation with which such person is associated or in which the person has an interest, or any partner, officer, director, or employee while the person is associated with such partnership, firm, or corporation, shall not, within two years next subsequent to the termination of the employment of such person, hold, directly or indirectly, an interest in, or hold employment with, or represent, appear for or negotiate on behalf of, any vendor or contractor that was awarded a public contract with which the person had been directly involved. Any person who willfully violates the provision of this subsection is a disorderly person, and shall be subject to a fine not to exceed $1,000, or imprisonment not to exceed six months, or both. In addition, any former State employee found by the State Ethics Commission to have violated the provision of this subsection shall be assessed a fine of not less than $500 nor more than $10,000, which penalty may be collected in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.)
(cf: P.L.2005, c.336, s.7)
6. (New section) a. To be eligible for designation as a State Contract Manager, a State employee shall earn 120 hours of continuing professional education. The continuing professional education shall have been earned within 10 years before the date of application for certification as a State Contract Manager by Rutgers, The State University. This requirement shall not apply when advanced degrees are substituted for the continuing professional education.
The qualifying continuing professional education shall cover the following content areas:
pre-award of public contracts: procurement administration; budgeting methods; and contract costing or cost accounting.
acquisition planning strategy: negotiations processes; sourcing; and relational contracting.
post-award of public contracts: contract administration; supply management; quality assurance.
strategic procurement planning: analytic techniques; strategic planning; contingency and continuity operations planning; and succession planning.
b. To retain the State Contract Manager designation, the manager shall complete at least 60 hours of continuing professional education in government contract management topics or related technical subjects every five years. The continuing professional education shall contribute to the designated State Contract Manager's professional proficiency and professional growth. To determine if programs contribute to professional proficiency and to facilitate documentation, the following criteria for continuing professional education programs may be considered as appropriate:
an agenda or outline shall be prepared in advance and retained by the program sponsor that indicates the name of the instructor, the subject or topic covered, the date and length of the program, and when appropriate, the program's learning objectives and any prerequisites;
the program is developed and presented by individuals qualified or experienced in the topic or subject matter;
program materials are technically accurate, current, and sufficient to meet the program's learning objectives;
the program is reviewed, when appropriate, by other qualified or experienced individuals, and the nature and extent of any review may vary depending on characteristics of the program;
evaluations of the program are obtained from instructors and participants, when appropriate; and
attendance records are maintained.
The following group programs and activities qualify for continuing professional education hours, provided they are on acceptable topics and subjects as specified above:
internal training programs in the form of courses, seminars, and workshops, which shall be the preferred method;
university and college courses which are taken for credit and noncredit; and
education and development programs presented at conferences, conventions, meetings, seminars, and workshops of professional organizations.
c. Rutgers, The State University, shall develop and provide the continuing professional education program set forth in this section. The State shall pay for the cost of the program for each employee. The program format shall provide for discussion and interaction among the participants and instructors. The program shall be provided through on-line modules and in person at the workplace by qualified instructors. The program shall include a skills evaluation prior to commencement of the program to ascertain the level of knowledge of each participant and to designate those modules that the participant needs not complete for the certification. A State employee shall be provided with time during the workday to participate in the program without being required to use leave time. State employees serving as State Contract Managers on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) shall have one year from the date Rutgers certifies that the program is operational to meet the requirements of this section. Any State employee who is designated for the first time as a State Contract Manager after that certification date shall have met the requirements of the section prior to designation.
7. (New section) a. The Division of Purchase and Property in the Department of the Treasury or a State agency shall issue in writing, at least 30 days prior to the generation of any request for proposals, a certification that the division or agency has sufficient resources, as defined in this section, to ensure the oversight, monitoring, assessment, enforcement, and compliance of the contract to be awarded. This section shall apply to all contracts awarded, including, but not limited to, contracts awarded for the provision of services to the State and to the public or any member thereof and contracts awarded in the event of an emergency.
Each certification shall be submitted to the State Treasurer and made available to the public along with all other relevant contract documents.
b. For the purpose of this section, the division or an agency shall be deemed to have sufficient resources to oversee the contract if, at a minimum, the following conditions are met:
(1) a minimum number of State Contract Managers have been, or in the case of contracts awarded in an emergency, will be assigned to the contract.
The minimum number of managers shall be determined as follows:
(a) for contracts for goods, there shall be one Lead State Contract Manager.
(b) for contracts for services to be provided to the State and for contracts for infrastructure projects, there shall be one Lead State Contract Manager and the ratio of State Contract Managers to employees providing the service shall not be less than 1:60.
(c) for contracts for services to be provided to the public or any member thereof, there shall be one Lead State Contract Manager and the ratio of State Contract Managers to employees providing the service shall not be less than the following. This subparagraph shall apply when the services provided to the public or members thereof do not require direct interaction on a regular basis with the person and the interaction is not essential to maintaining on a daily basis the health, safety, and welfare of the person.
|
Number of Employees |
Number of Staff Needed to Oversee Contract |
|
>=20 |
1 |
|
21-50 |
2 |
|
51-75 |
3 |
|
76-100 |
4 |
|
101-120 |
5 |
|
121-150 |
6 |
|
151-200 |
7 |
|
201-250 |
8 |
|
251-300 |
9 |
|
301-350 |
10 |
|
351-450 |
11 |
|
>450 |
2.5% of the number of employees |
(d) for contracts for services to be provided to the public or any member thereof, there shall be one Lead State Contract Manager and the ratio of State Contract Managers to members of the public receiving the service shall not be less than the following. This subparagraph shall apply when the services provided to the public or members thereof require direct interaction on a regular basis with the person and the interaction is essential to maintaining on a daily basis the health, safety, and welfare of the person.
|
Number of Members of the Public Receiving Services |
Number of Staff Needed to Oversee Contract |
|
>=80 |
1 |
|
81-200 |
2 |
|
201-300 |
3 |
|
301-400 |
4 |
|
401-480 |
5 |
|
481-600 |
6 |
|
601-800 |
7 |
|
801-1,000 |
8 |
|
1,001-1,200 |
9 |
|
1,201-1,400 |
10 |
|
1,401-1,800 |
11 |
|
>1,801 |
2.5% of the number of employees |
(2) no Lead State Contract Manager is assigned to more than one contract, whether as a Lead State Contract Manager or otherwise, at any given time unless;
(a) the Lead State Contract Manager is assigned only to contracts for goods; or
(b) the total number of contracted employees under all contracts to which the Lead State Contract Manager is assigned as Lead State Contract Manager is 40 or fewer.
(3) the certification contains an oversight plan approved by the State Treasurer in accordance with regulations developed as required in subsection c. of this section.
c. The State Treasurer shall set forth in writing detailed requirements for acceptable oversight plans. These requirements shall allow the division and State agencies the flexibility to develop plans consistent with each contract and the agencies resources. At a minimum, for contracts with more than one State Contract Manager, oversight plans must include a detailed description of how the State Contract Managers will be assigned.
d. If a certification is not issued or a certification finds that there are insufficient resources, the contract shall not be awarded, except that a contract in the event of an emergency may be awarded. For contracts awarded in the event of an emergency without a showing of sufficient resources, the certification shall include a plan detailing how emergency funds will be used to increase oversight capacity to a level that will constitute sufficient resources within 45 days. In the event of an emergency, the sufficient resources requirement may be met by including State Contract Managers from other State agencies.
e. The Office of Management and Budget shall conduct an assessment of each certificate issued to verify that sufficient resources exist and shall periodically assess the resources of the division and each State agency. The result of the assessment shall be made available to the State Treasurer, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature. This assessment shall also be made available to the public.
f. The Office of Management and Budget shall have the authority and responsibility to investigate and make recommendations on the resources of the division and State agencies for the purpose of this section. The office shall issue written reports on the findings and recommendations and make them available to the State Treasurer, the public, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature.
g. The State Treasurer shall conduct a review of the sufficient resources requirements set forth in this section after this section has been in force for three years and shall issue a report, including recommendations for modifications, to the Governor, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature. The report shall also be made available to the public.
h. Any person or organization may commence a civil action, in the name of the person or organization, in a court of competent jurisdiction against a State agency alleged to be in violation of the requirement of this section. The action may be for injunctive or other equitable relief to compel compliance, and the court shall order such relief, by way of injunction or otherwise, as may be proper under all the facts and circumstances of the case, to compel compliance for the purposes of this section.
i. As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
8. (New section) a. When a contract that is to be awarded on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) for the provision of services to the State or to the public or any member thereof and those services are being performed by employees of the State prior to the award, or prior to the generation of the corresponding request for proposals, the Division of Purchase and Property in the Department of the Treasury or the State agency shall conduct an activity-based cost analysis of the services being performed by the employees of the State. Upon completion of the analysis, the division or the agency shall conduct an avoidable cost analysis to determine the savings that would result from the award of the contract. The avoidable cost analysis shall factor in the cost of contract award, oversight, monitoring, assessment, enforcement, and compliance.
b. When a contract that is to be awarded on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) for the provision of services to the State or to the public or any member thereof and those services are being performed by a contractor under a contract that is set to expire prior to the award, or prior to the generation of the corresponding request for proposals, the Division of Purchase and Property in the Department of the Treasury or any State agency shall conduct a public sector cost comparator to estimate how the cost of the services being performed by employees of the State compare. Upon completion of the analysis, the division or agency shall conduct an avoidable cost analysis to determine the savings that would result from the award of the contract. The avoidable cost analysis shall factor in the cost of the contract award, oversight monitoring assessment, enforcement, and compliance.
c. A contract for services to be provided to the public or a member of the public shall require, as a term of the contract, the contractor to account for and explain in full the costs of those services and shall disclose those costs, upon request, to the division or State agency. Normal business operations including, but not limited to, the number of personnel and their salaries shall not be deemed proprietary information under the provisions of any contract. Once disclosed to the division or State agency, the accounting and explanation shall be a government record for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.), with any exemption afforded to trade mark or proprietary commercial and financial information narrowly construed in favor of public review, examination, and copying.
d. These analyses shall be conducted prior to the creation and issuance of all requests for proposals. The analysis and results shall be set forth in a written report in a standardized format and made available to the public. The State Treasurer shall specify the standard format to be used for this purpose and the minimum requirements for all such analyses.
e. The results of these analyses shall be used in deciding whether or not to award the contract for the services and, if a contract is to be awarded, in generating the request for proposals.
The division or agency shall submit the analyses to the State Treasurer, the State Auditor, and the Office of the State Comptroller. The State Auditor and State Comptroller shall review the analyses promptly. The analyses shall not be considered complete and final until the State Auditor and State Comptroller have approved the analyses after review and notified the agency of that approval. If the analyses are not performed or complete and final, the division or agency shall not make a final award of the relevant contract and, if awarded, the contract shall not be valid.
f. This section shall not apply to a contract awarded in the event of an emergency.
g. As used in this section, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
As used in this section, "public sector cost comparator" shall be a theoretical calculation of the total costs and risks for the public sector of developing and operating a service for the State or for the public or a member thereof. It shall be the sum of cash flows for a pre-determined duration, incorporating the efficiency gains arising from the manager learning curve, and retained risk. The comparator shall be comprised of four parts: the raw public cost comparator, the competitive neutrality public cost comparator; the transferable risk; and the retained risk.
9. (New section) a. (1) There is created within the Department of the Treasury the Office of the Contract Oversight Ombudsman. The ombudsman shall be appointed by the Governor with the advice and consent of the Senate. The ombudsman shall serve for a term of five years and may be dismissed by the Governor only for cause after notice and opportunity to be heard. The ombudsman shall devote his entire time to the duties of this office. If the ombudsman shall be unable for any reason to serve a full term of office, the Governor may designate an acting ombudsman until a successor is appointed and qualified. The ombudsman shall be a person qualified by training and experience to direct and perform the work of the position. The ombudsman shall have at least a baccalaureate degree and at least seven years of experience in public contract procurement, oversight, monitoring, assessment, enforcement, and compliance.
(2) The ombudsman shall oversee the selection process for members of community oversight committees. In addition, the ombudsman shall: oversee the work of the community oversight committees; appoint and employ staff to assist the ombudsman in accordance with any applicable law or regulation within the limits of the funds provided for that purpose; investigate complaints and mediate disputes regarding the execution of any State contract that provides services to the public or any member thereof; and generally review, study, assess, coordinate, and oversee compliance with laws and regulations on State contract oversight, monitoring, assessment, enforcement, and compliance.
The ombudsman may call upon the assistance of the services of those employees of any State department, board, bureau, commission or agency as may be required and as may be necessary for its purposes. In addition, the ombudsman may call upon any State department, board, bureau, commission or agency for such documents, materials and information as may be deemed necessary.
b. There may be established one community oversight committee in each of the following departments: Department of Human Services; Department of Children and Families; Department of Corrections; Department of Environmental Protection; and Department of Community Affairs. A community oversight committee shall provide oversight for each contract awarded by the department to provide services to the public or any member thereof, and make recommendations to the department concerning contract awards, oversight, monitoring, assessment, enforcement, and compliance. The duties and responsibilities of a committee shall include monitoring of measures undertaken to improve accountability to preclude the risk that those measures are undertaken at the expense of quality of service delivery or working conditions of employees.
c. Each community oversight committee shall be established either by the commissioner of each department when deemed appropriate and necessary, or by the ombudsman after the receipt by the ombudsman of a petition requesting that such a committee be established in that department. The petition shall have been signed by a number of members of the public who are over the age of 18 years and who are or may be recipients of the services of that department, or members or recipients of organizations that advocate for and support those recipients. The ombudsman shall determine what number of signatures shall be deemed significant and sufficient to conclude that there is a need for the establishment of a community oversight committee.
d. Each community oversight committee established shall be composed of seven members as follows:
three members of the public who are or may be recipients of services provided under a contract awarded by the department or family members of such recipients, or who are members or officers of organizations that advocate for and support those recipients;
one member who is an employee directly involved in providing services pursuant to a contract with the department to the public or any member thereof, who is elected by the other employees of the contractor also directly involved in providing such services, or selected by the representative of such employees for collective negotiations purposes;
one member who is a therapist or counselor, if appropriate for that department, who is elected by the members of a professional association located in this State of which the therapist or counselor is a member, or selected by the head of such an association, otherwise one member who is a member of the public with expertise in the mission of the department;
one member who holds an academic position in an institution of higher education in this State and has the education or experience relevant to the services provided to the public or any member thereof pursuant to a contract awarded by the department, who is selected by the Secretary of Higher Education; and
one member who is representative of State contractors executing contracts that provide services to the public or any member thereof.
e. (1) A person who is interested, or a person who is selected or elected to serve on a committee after such election or selection, shall submit an application, with such information as the applicant chooses to submit, to become a member of the committee. In the alternative, an organization may submit an application requesting approval to select or elect a person who may apply for appointment to become a member of the committee. A person selected or elected by such an organization shall submit an application to the selection committee for appointment as a member of the committee.
(2) The ombudsman shall convene a selection committee to accept and review applications and appoint the members of each committee, or approve organizations that will elect or select a person who may submit an application for appointment as a committee member.
The members of the selection committee convened by the ombudsman shall be appropriate members of the public or academia with the education, training, and experience relevant to services provided to the public or any member thereof by the department for which the community oversight committee is being established.
(3) The appointment of members of each committee shall be based on the applicant's: in-depth knowledge of the services provided by the department; demonstrated service to the population of recipients of those services; demonstrated relationship to the recipients; legitimacy as a representative as perceived by the recipients; long-standing presence in the service area; and technical skills or experience with contract management or oversight
The selection committee shall develop and employ a process that requires the assignment by the members of the committee of a score for each criterion. The applicant receiving the highest score shall be appointed, except that another applicant may be appointed if the committee sets forth in writing a detailed explanation of the reasons for that appointment.
f. (1) The members of each oversight committee shall be appointed to serve for a period of four years and may be terminated only for cause upon notice and opportunity to be heard, except that members appointed from among employees of a contractor shall serve only during the term of the contract. Of the members initially appointed, three shall be designated to serve for a period of two years, two shall be designated to serve for a period of three years, and two shall be designated to serve for a period of four years. A vacancy in the membership of the committee shall be filled in the same manner as the original appointment.
(2) The members of the committee shall serve without compensation, but shall be eligible for reimbursement for necessary and reasonable expenses incurred in the performance of their official duties within the limits of funds appropriated or otherwise made available to the commission for its purposes. A member of the committee shall be reimbursed for compensation not received during the member's service on the committee. A member of the committee shall be permitted by the employer to take a paid or unpaid leave for all time needed to perform service for the committee without negative consequences to the employment.
(3) The ombudsman shall ensure that each member of a community oversight committee receives training and resources necessary and appropriate to fulfill his or her duties and responsibilities. Each member of the committee shall be trained in contract oversight through a program developed and provided by Rutgers, The State University.
(4) Each committee member and staff shall have access to all information regarding the contracts of that department. The committee shall have the duty and responsibility to initiate investigations of contract awards, oversight, monitoring, assessment, enforcement, and compliance, and may recommend enforcement action to the department. The committee shall recommend to the department that a contract be terminated expeditiously if the committee finds that the contract is not being executed properly, with detailed written findings of that fact submitted with the recommendation. The members of the committee shall have the right to accompany any inspector at the workplace of a contractor during an investigation, and shall have the right to be present and ask questions at the end of an inspection at any exit conference and any subsequent conference. The members of the committee shall be provided with copies of any inspection report and any subsequent correspondence between the State and the contractor. The community oversight committee shall maintain records of requests for investigations of contracts on a website available to the public
The members of each community oversight committee shall be immune from any liability for any action taken in the good faith performance of their official duties in connection with the committee.
(5) The Office of the State Comptroller shall appoint an employee of that office to provide staff services to each committee, with no employee serving on more than one committee. The employee shall be a person with proven investigatory skills based on education, training, or experience. The employee shall report directly to the ombudsman, shall be supervised by the ombudsman and the ombudsman may dismiss the employee from serving as the staff for the community oversight committee.
10. (New section) a. When a State oversight agency issues a written report and makes recommendations for regulatory or policy action regarding the award, oversight, monitoring, assessment, enforcement, or compliance of a State contract or contracts, that State oversight agency shall rank each recommendation as either critical, strongly recommended, or suggested, and shall specify time frames for the adoption of critical recommendations. Ratings of critical recommendations should apply to, and only to, those recommendations that are necessary to avoid waste, fraud, or abuse. Critical recommendations shall be binding upon the State agency to which it is applied and that State agency shall implement the recommendations within the time frame specified in the report whenever any complementary State oversight agency, as defined in subsection e. of this section, concurs that the critical designation is appropriate, provided, however, that, for State oversight agencies not explicitly named in subsection e. of this section both the Office of the State Comptroller and the State Commission on Investigation or the Office of the State Auditor shall concur for the critical designation to be binding. Any concurrence under this subsection shall be in writing and appended to the original recommendations.
b. If the recommendations cannot be implemented in the time frame specified or in a substantially similar manner as recommended, the State agency shall submit a response setting forth in detail the reasons and its efforts to achieve full or partial implementation. The response shall be addressed to the State oversight agency that authored the report and to the State Treasurer and shall be made available to the public as an addendum to the report. The agency shall provide to the State oversight agency, the Governor, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature, monthly progress reports on implementation.
c. Any person or organization may commence a civil action, in the name of the person or organization, in a court of competent jurisdiction against a State agency alleged to be in violation of the requirement of this section to implement binding recommendations. The action may be for injunctive or other equitable relief to compel compliance, and the court shall order such relief, by way of injunction or otherwise, as may be proper under all the facts and circumstances of the case, to compel compliance for the purposes of this section.
d. Nothing in this section shall be deemed to override the requirements relating to the promulgation of regulations as set forth in the "Administrative Procedures Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
e. As used in this section, "State oversight agency" means the Office of the State Comptroller, the State Auditor, the State Commission on Investigation, or the Office of the Contract Oversight Ombudsman and the respective community oversight committees created pursuant to section 9 of P.L. , c. (pending before the Legislature as this bill), or any other State investigative agency or auditor. For the purposes of subsection a. of this section, the Office of the State Comptroller shall be complementary to the Office of the State Auditor, the State Commission on Investigation and the Office of the Contract Oversight Ombudsman and the respective community oversight committees; the State Commission on Investigation shall be complementary to the Office of the State Comptroller and the Office of the Contract Oversight Ombudsman and the respective community oversight committees.
As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
11. (New section) a. The State Treasurer, in consultation with the Chief Technology Officer, shall design, develop, and maintain a single, searchable Internet site that allows the public to search, aggregate, or summarize data and information. Data shall be downloadable in a file format, commonly referred to as a comma-separated values or character-separated values file, that is plain text using a character set, and consists of records with the records divided into fields separated by delimiters where each record has the same sequence of fields.
b. The site shall contain all requests for proposals issued, all bids received, all contracts awarded, and all bid and contract related documents received by the Division of Purchase and Property in the Department of the Treasury and by any State agency that awards contracts, including contracts for the provision of services to the State or to the public or any member thereof and contracts awarded in the event of an emergency. The site shall also contain any other data or information specified by the State Treasurer, after consultation with the Chief Technology Officer, on State contract award, oversight, monitoring, assessment, enforcement, and compliance, including all information that is not confidential contained in the vendor performance database as established pursuant to section 4 of P.L.2005, c.336 (C.52:34-10.4).
c. The site and the download of data shall be accessible to the public without charge.
d. The site shall include data and information by State fiscal year. The data and information shall be periodically updated and no data or information shall be removed once it is posted on the site except in the case of an error or correction of an error. All required data and information shall be made available on the site as soon as practicable.
e. All State agencies shall cooperate with the State Treasurer and the Chief Technology Officer in compiling the data and information necessary to comply with this section.
f. This section shall not be deemed to require disclosure of information deemed private, personal, or confidential by State or federal law.
g. As used in this subsection, "State agency" means any of the principal departments in the Executive Branch of the State government, and any division, agency, board, bureau, office, commission or other instrumentality within or created by such department, but not including any independent State authority, commission, instrumentality or agency, that is authorized by law to award public contracts.
12. (New section) a. There shall be charged a fee to be paid by each bidder that responds to a request for a proposal for a State contract at the time a bid is submitted in response, or, in any other case, by the entity with whom a State agency commences negotiations for the award of a State contract at the time negotiations commence. The fee shall be payable to the State Treasurer and deposited into the fund established pursuant to subsection b. of this section. The fee shall not be refundable. No bids shall be reviewed and no negotiations continued unless the fee is paid in full.
The State Treasurer shall establish a sliding scale fee schedule taking into account the cost of the contract, the number of members of the public to be provided services by the contractor, the number of employees of the contractor assigned to implement the contract, and the cost to be incurred by the State to oversee, monitor, assess, enforce, and ensure compliance with that contract.
The fee schedule shall be set forth in regulations promulgated by the State Treasurer pursuant to the "Administrative Procedures Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
b. There is hereby created and established in the Department of the Treasury a separate special account to be known as the "Contract Oversight Fund," into which shall be deposited all State revenues derived through subsection a. of this section. Moneys in the fund, and any interest earned thereon, shall be appropriated exclusively for the expenditures for State contract oversight, monitoring, assessment, enforcement, and compliance through appropriate accounts. On or about March 15 and September 15 of each year, the State Treasurer shall issue a written report to the Governor, and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature, accounting for the total revenues received in the fund and the specific amounts of money appropriated from the fund for the specified expenditures during the preceding six months ending December 31 and June 30 account. The report shall be made available to the public.
13. This act shall take effect on the first day of the sixth month next following enactment, except that the Department of the Treasury and any State agency may take such anticipatory administration action in advance as shall be necessary for the implementation of this act.
STATEMENT
This bill is based on the recommendations set forth in the report entitled "Overlooking Oversight: A Lack of Oversight in the Garden State is Placing New Jersey Residents and Assets at Risk." This report was issued in March of 2014 by the Department of Labor Studies and Employment Relations, New Brunswick, and the Department of Public Policy and Administration, Camden, of Rutgers University.
The bill imposes various requirements with regard to the oversight of contracts issued by State agencies.
Section 1: This section amends the New Jersey Conscientious Employee Protection Act to provide protection to both private and public employees who bring to the attention of employers and public agencies improper quality of service issues with regard to State contracts or who refuse to participate in such services.
Section 2: This section limits to three years, including any periods of renewal without rebidding, the term of any State contract awarded by a State agency for the provision of services to the State or to the public or any member thereof.
Section 3: This section creates a definition for State contracts that need to be awarded without advertising for bids because there is a public exigency that requires the immediate delivery of articles or performance of services.
Section 4: This section requires the Director of the Division of Purchase and Property in the Department of the Treasury to establish a vendor performance database, and requires the entry of certain information into the database.
Section 5: This section requires the designation of a Lead State Contract Manager, and other managers for each contract awarded by any State agency, and specifies their designation, training, duties, and post-employment restriction.
Section 6: This section details the training required for all State Contract Managers.
Section 7: This section requires each State agency to issue a certification that it has sufficient resources for the oversight, monitoring, assessment, enforcement, and compliance of a contract to be awarded, and specifies when the certificate is to be issued, the minimum level of resources that should be available, and the conduct of reviews and assessments of the certificates and resources.
Section 8: This section requires a cost analysis prior to the award of a contract for the provision of services to the State or to the public or any member thereof, and specifies how the analysis is to be conducted.
Section 9: This section creates the Office of the Contract Oversight Ombudsman, and provides for the establishment of one community oversight committee in each of the following departments: Department of Human Services; Department of Children and Families; Department of Corrections; Department of Environmental Protection; and Department of Community Affairs.
Section 10: This section requires that, if recommendations of a State oversight agency, as defined, are ranked by that agency as critical because they are necessary to avoid waste, fraud, or abuse, the recommendations will be binding upon the State agency reviewed under certain circumstances.
Section 11: This section requires the State Treasurer, in consultation with the Chief Technology Officer, to maintain a single, searchable Internet site that allows the public to search, aggregate, or summarize data and information on all requests for proposals issued, all bids received, all contracts awarded, and all bid and contract related documents.
Section 12: This section requires the payment of a fee by each bidder that responds to a request for a proposal for a State contract, or, in any other case, by the entity with whom a State agency commences negotiations for the award of a State, to support State contract oversight, monitoring, assessment, enforcement, and compliance.
