Bill Text: NJ A3548 | 2010-2011 | Regular Session | Introduced
Bill Title: Requires Director of Division of Local Government Services, in consultation with State Comptroller, to promulgate rules and regulations concerning best practices in public contracts.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-12-06 - Introduced, Referred to Assembly Housing and Local Government Committee [A3548 Detail]
Download: New_Jersey-2010-A3548-Introduced.html
Sponsored by:
Assemblyman MATTHEW W. MILAM
District 1 (Cape May, Atlantic and Cumberland)
Assemblyman NELSON T. ALBANO
District 1 (Cape May, Atlantic and Cumberland)
SYNOPSIS
Requires Director of Division of Local Government Services, in consultation with State Comptroller, to promulgate rules and regulations concerning best practices in public contracts.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning best practices in public contracts and amending P.L.1971, c.198.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1971, c.198 (C.40A:11-3) is amended to read as follows:
3. a. When the cost or price of any contract awarded by the contracting agent in the aggregate does not exceed in a contract year the total sum of $17,500, the contract may be awarded by a purchasing agent or other employee so designated by the governing body when so authorized by ordinance or resolution, as appropriate to the contracting unit, without public advertising for bids, except that the governing body of any contracting unit may adopt an ordinance or resolution to set a lower threshold for the receipt of public bids or the solicitation of competitive quotations. If a purchasing agent has been appointed, the governing body of the contracting unit may establish that the bid threshold may be up to $25,000 or the threshold amount adjusted by the Governor pursuant to subsection c. of this section. Such authorization may be granted for each contract or by a general delegation of the power to negotiate and award such contracts pursuant to this section.
b. Any contract made pursuant to this section may be awarded for a period of 24 consecutive months, except that contracts for professional services pursuant to subparagraph (i) of paragraph (a) of subsection (1) of section 5 of P.L.1971, c.198 (C.40A:11-5) may be awarded for a period not exceeding 12 consecutive months. The Division of Local Government Services shall adopt and promulgate rules and regulations concerning the methods of accounting for all contracts that do not coincide with the contracting unit's fiscal year.
c. The Governor, in consultation with the Department of the Treasury, shall, no later than March 1 of every fifth year beginning in the fifth year after the year in which P.L.1999, c.440 takes effect, adjust the threshold amount, in direct proportion to the rise or fall of the index rate as that term is defined in section 2 of P.L.1971, c.198 (C.40A:11-2), and shall round the adjustment to the nearest $1,000. The Governor shall, no later than June 1 of every fifth year, notify each governing body of the adjustment. The adjustment shall become effective on July 1 of the year in which it is made.
d. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall promulgate rules and regulations concerning best practices for contracts that do not exceed the bid threshold, to include, but not be limited to, the following:
(1) Ensuring that the pool of vendors solicited for competitive quotations is as expansive as possible;
(2) Ensuring that the eligibility requirements for a vendor seeking to compete for a contract are limited only by concerns related to the vendor's responsibility;
(3) Ensuring that requests for proposals contain a clear and detailed statement of work to be undertaken, and that the contracting unit includes a clear, complete, and specific statement of work in the final executed contract with the vendor, both of which emphasize the result to be achieved, rather than detailing the process for accomplishing that goal;
(4) Ensuring that proposals are judged on the basis of predetermined, merit-based evaluative criteria, which are made known to vendors before proposals are submitted, and disclosed to prospective vendors as early as possible in the procurement process, such as in the request for proposals or other solicitation document;
(5) Ensuring that weighing of evaluative criteria is used if some criteria are determined to be more important than others. The weight assigned to each criterion generally should be disclosed in the request for proposals;
(6) Ensuring that the evaluative criteria are judged by a qualified evaluation committee, which is established before proposals are received, and which is sufficiently qualified to evaluate the strengths and weaknesses of the proposals submitted. Potential evaluation committee members should be screened meticulously for conflicts of interest;
(7) Ensuring that the evaluation process should be explainable to evaluators and competing vendors, and capable of withstanding scrutiny under a protest challenge, and ensuring that the meaning of each criterion and the reason each criterion is part of the evaluative analysis is explained to evaluators before judging;
(8) Ensuring that each member of the qualified evaluation committee scores each proposal and provides comments that explain the score assigned to each criterion, and that the scoring process and award recommendations should be well-documented and retained;
(9) Ensuring that every step in the evaluative process should be documented through scoring sheets, a written record of what transpired during any permitted negotiations between vendors and procurement officials, a written comparative analysis of competing proposals, and a written award recommendation;
(10) Ensuring that the written award recommendation explains the factors that led to the award decision, offers qualitative discussion of the leading competing proposals, and describes the specific characteristics of the winning vendor's proposal that resulted in its selection over the others; and
(11) Ensuring that the period of time for the preservation of procurement materials should be set by the contracting unit.
e. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall review these rules and regulations at least once every two years after their initial promulgation, and make any revisions necessary to ensure that current best practices in the procurement of goods or services are followed by all contracting units.
(cf: P.L.2009, c.166, s.2)
2. Section 4 of P.L.1971, c.198 (C.40A:11-4) is amended to read as follows:
4. a. Every contract awarded by the contracting agent for the provision or performance of any goods or services, the cost of which in the aggregate exceeds the bid threshold, shall be awarded only by resolution of the governing body of the contracting unit to the lowest responsible bidder after public advertising for bids and bidding therefor, except as is provided otherwise in this act or specifically by any other law. The governing body of a contracting unit may, by resolution approved by a majority of the governing body and subject to subsections b. and c. of this section, disqualify a bidder who would otherwise be determined to be the lowest responsible bidder, if the governing body finds that it has had prior negative experience with the bidder.
b. As used in this section, "prior negative experience" means any of the following:
(1) the bidder has been found, through either court adjudication, arbitration, mediation, or other contractually stipulated alternate dispute resolution mechanism, to have: failed to provide or perform goods or services; or failed to complete the contract in a timely manner; or otherwise performed unsatisfactorily under a prior contract with the contracting unit;
(2) the bidder defaulted on a contract, thereby requiring the local unit to utilize the services of another contractor to provide the goods or perform the services or to correct or complete the contract;
(3) the bidder defaulted on a contract, thereby requiring the local unit to look to the bidder's surety for completion of the contract or tender of the costs of completion; or
(4) the bidder is debarred or suspended from contracting with any of the agencies or departments of the executive branch of the State of New Jersey at the time of the contract award, whether or not the action was based on experience with the contracting unit.
c. The following conditions apply if the governing body of a contracting unit is contemplating a disqualification based on prior negative experience:
(1) The existence of any of the indicators of prior negative experience set forth in this section shall not require that a bidder be disqualified. In each instance, the decision to disqualify shall be made within the discretion of the governing body and shall be rendered in the best interests of the contracting unit.
(2) All mitigating factors shall be considered in determining the seriousness of the prior negative experience and in deciding whether disqualification is warranted.
(3) The bidder shall be furnished by the governing body with a written notice (a) stating that a disqualification is being considered; (b) setting forth the reason for the disqualification; and (c) indicating that the bidder shall be accorded an opportunity for a hearing before the governing body if the bidder so requests within a stated period of time. At the hearing, the bidder shall show good cause why the bidder should not be disqualified by presenting documents and testimony. If the governing body determines that good cause has not been shown by the bidder, it may vote to find the bidder lacking in responsibility and, thus, disqualified.
(4) Disqualification shall be for a reasonable, defined period of time which shall not exceed five years.
(5) A disqualification, other than a disqualification pursuant to which a governing body is prohibited by law from entering into a contract with a bidder, may be voided or the period thereof may be reduced, in the discretion of the governing body, upon the submission of a good faith application under oath, supported by documentary evidence, setting forth substantial and appropriate grounds for the granting of relief, such as reversal of a judgment, or actual change of ownership, management or control of the bidder.
(6) An opportunity for a hearing need not be offered to a bidder whose disqualification is based on its suspension or debarment by an agency or department of the executive branch of the State of New Jersey. The term of such a disqualification shall be concurrent with the term of the suspension or debarment by the State agency or department.
d. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall promulgate rules and regulations concerning best practices for contracts which exceed the bid threshold, to include, but not be limited to, the following:
(1) Ensuring that the pool of prospective bidders reached by the advertising is as expansive as possible;
(2) Ensuring that the eligibility requirements for a vendor seeking to compete for a contract are limited only by concerns related to the vendor's responsibility;
(3) Ensuring that requests for bids contain a clear and detailed statement of work to be undertaken, and that the contracting unit includes a clear, complete, and specific statement of work in the final executed contract with the vendor, both of which emphasize the result to be achieved, rather than detailing the process for accomplishing that goal;
(4) Ensuring that bid submissions are judged on the basis of predetermined, merit-based evaluative criteria, which are made known to vendors before bids are submitted, and disclosed to prospective bidders as early as possible in the procurement process, such as in the request for bids or other solicitation document;
(5) Ensuring that weighing of evaluative criteria is used if some criteria are determined to be more important than others. The weight assigned to each criterion generally should be disclosed in the request for bids;
(6) Ensuring that the evaluative criteria are judged by a qualified evaluation committee, which is established before bids are received, and which is sufficiently qualified to evaluate the strengths and weaknesses of the bids submitted. Potential evaluation committee members should be screened meticulously for conflicts of interest;
(7) Ensuring that the evaluation process should be explainable to evaluators and competing vendors, and capable of withstanding scrutiny under a protest challenge, and ensuring that the meaning of each criterion and the reason each criterion is part of the evaluative analysis is explained to evaluators before judging;
(8) Ensuring that each member of the qualified evaluation committee scores each bid and provides comments that explain the score assigned to each criterion, and that the scoring process and award recommendations should be well-documented and retained;
(9) Ensuring that every step in the evaluative process should be documented through scoring sheets, a written record of what transpired during any permitted negotiations between vendors and procurement officials, a written comparative analysis of competing bid proposals, and a written award recommendation;
(10) Ensuring that the written award recommendation explains the factors that led to the award decision, offers qualitative discussion of the leading competing bid proposals, and describes the specific characteristics of the winning vendor's bid proposal that resulted in its selection over the others; and
(11) Ensuring that the period of time for the preservation of procurement materials should be set by the contracting unit.
e. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall review these rules and regulations at least once every two years after their initial promulgation, and make any revisions necessary to ensure that current best practices in the procurement of goods or services are followed by all contracting units.
(cf: P.L.1999, c.440, s.8)
3. Section 4 of P.L.1999, c.440 (C.40A:11-4.4) is amended to read as follows:
4. The competitive contracting process shall utilize request for proposals documentation in accordance with the following provisions:
a. The purchasing agent or counsel or administrator shall prepare or have prepared a request for proposal documentation, which shall include: all requirements deemed appropriate and necessary to allow for full and free competition between vendors; information necessary for potential vendors to submit a proposal; and a methodology by which the contracting unit will evaluate and rank proposals received from vendors.
b. The methodology for the awarding of competitive contracts shall be based on an evaluation and ranking, which shall include technical, management, and cost related criteria, and may include a weighting of criteria, all developed in a way that is intended to meet the specific needs of the contracting unit, and where such criteria shall not unfairly or illegally discriminate against or exclude otherwise capable vendors. When an evaluation methodology uses a weighting of criteria, at the option of the contracting unit the weighting to be accorded to each criterion may be disclosed to vendors prior to receipt of the proposals. The methodology for awarding competitive contracts shall comply with such rules and regulations as the director may adopt, after consultation with the Commissioner of Education, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. At no time during the proposal solicitation process shall the purchasing agent or counsel or administrator convey information, including price, to any potential vendor which could confer an unfair advantage upon that vendor over any other potential vendor. If a purchasing agent or counsel or administrator desires to change proposal documentation, the purchasing agent or counsel or administrator shall notify only those potential vendors who received the proposal documentation of any and all changes in writing and all existing documentation shall be changed appropriately.
d. All proposals and contracts shall be subject to the provisions of section 1 of P.L.1977, c.33 (C.52:25-24.2) requiring submission of a statement of corporate ownership and the provisions of P.L.1975, c.127 (C.10:5-31 et seq.) concerning equal employment opportunity and affirmative action.
e. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall promulgate rules and regulations concerning best practices in competitive contracting, to include, but not be limited to, the following:
(1) Ensuring that the pool of vendors solicited is as expansive as possible;
(2) Ensuring that the eligibility requirements for a vendor seeking to compete for a contract are limited only by concerns related to the vendor's responsibility;
(3) Ensuring that requests for proposals contain a clear and detailed statement of work to be undertaken, and that the contracting unit includes a clear, complete, and specific statement of work in the final executed contract with the vendor, both of which emphasize the result to be achieved, rather than detailing the process for accomplishing that goal;
(4) Ensuring that proposals are judged on the basis of predetermined, merit-based evaluative criteria, which are made known to vendors before proposals are submitted, and disclosed to prospective vendors as early as possible in the procurement process, such as in the request for proposals or other solicitation document;
(5) Ensuring that weighing of evaluative criteria is used if some criteria are determined to be more important than others. The weight assigned to each criterion generally should be disclosed in the request for proposals;
(6) Ensuring that the evaluative criteria are judged by a qualified evaluation committee, which is established before proposals are received, and which is sufficiently qualified to evaluate the strengths and weaknesses of the proposals submitted. Potential evaluation committee members should be screened meticulously for conflicts of interest;
(7) Ensuring that the evaluation process should be explainable to evaluators and competing vendors, and capable of withstanding scrutiny under a protest challenge, and ensuring that the meaning of each criterion and the reason each criterion is part of the evaluative analysis is explained to evaluators before judging;
(8) Ensuring that each member of the qualified evaluation committee scores each proposal and provides comments that explain the score assigned to each criterion, and that the scoring process and award recommendations should be well-documented and retained;
(9) Ensuring that every step in the evaluative process should be documented through scoring sheets, a written record of what transpired during any permitted negotiations between vendors and procurement officials, a written comparative analysis of competing proposals, and a written award recommendation;
(10) Ensuring that the written award recommendation explains the factors that led to the award decision, offers qualitative discussion of the leading competing proposals, and describes the specific characteristics of the winning vendor's proposal that resulted in its selection over the others; and
(11) Ensuring that the period of time for the preservation of procurement materials should be set by the contracting unit.
f. The Director of the Division of Local Government Services, in consultation with the State Comptroller, shall review these rules and regulations at least once every two years after their initial promulgation, and make any revisions necessary to ensure that current best practices in the procurement of goods or services are followed by all contracting units.
(cf: P.L.2009, c.4, s.7)
4. This act shall take effect immediately.
STATEMENT
This bill requires the Director of the Division of Local Government Services, in consultation with the State Comptroller, to promulgate rules and regulations concerning best practices in all forms of contracting for the procurement of goods and services by contracting units, to include, but not be limited to, the following:
(1) Ensuring that the pool of vendors solicited is as expansive as possible;
(2) Ensuring that the eligibility requirements for a vendor seeking to compete for a contract are limited only by concerns related to the vendor's responsibility;
(3) Ensuring that requests for proposals contain a clear and detailed statement of work to be undertaken, and that the contracting unit includes a clear, complete, and specific statement of work in the final executed contract with the vendor, both of which emphasize the result to be achieved, rather than detailing the process for accomplishing that goal;
(4) Ensuring that proposals are judged on the basis of predetermined, merit-based evaluative criteria, which are made known to vendors before proposals are submitted, and disclosed to prospective vendors as early as possible in the procurement process, such as in the request for proposals, request for bids, or other solicitation document;
(5) Ensuring that weighing of evaluative criteria is used if some criteria are determined to be more important than others. The weight assigned to each criterion generally should be disclosed in the request for proposals;
(6) Ensuring that the evaluative criteria are judged by a qualified evaluation committee, which is established before proposals are received, and which is sufficiently qualified to evaluate the strengths and weaknesses of the bids or proposals submitted. Potential evaluation committee members should be screened meticulously for conflicts of interest;
(7) Ensuring that the evaluation process should be explainable to evaluators and competing vendors, and capable of withstanding scrutiny under a protest challenge, and ensuring that the meaning of each criterion and the reason each criterion is part of the evaluative analysis is explained to evaluators before judging;
(8) Ensuring that each member of the qualified evaluation committee scores each proposal and provides comments that explain the score assigned to each criterion, and that the scoring process and award recommendations should be well-documented and retained;
(9) Ensuring that every step in the evaluative process should be documented through scoring sheets, a written record of what transpired during any permitted negotiations between vendors and procurement officials, a written comparative analysis of competing bids or proposals, and a written award recommendation;
(10) Ensuring that the written award recommendation explains the factors that led to the award decision, offers qualitative discussion of the leading competing bids or proposals, and describes the specific characteristics of the winning vendor's bid or proposal that resulted in its selection over the others; and
(11) Ensuring that the period of time for the preservation of procurement materials should be set by the contracting unit.
The bill requires the Director of the Division of Local Government Services, in consultation with the State Comptroller, to review these rules and regulations at least once every two years after their initial promulgation, and make any revisions necessary to ensure that current best practices in the procurement of goods or services are followed by all contracting units.
