New Jersey-2024-A4940-Introduced

An Act concerning public contracts, amending P.L.1999, c.440, and amending and supplementing P.L.1982, c.189.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1999, c.440 (C.40A:11-4.1) is amended to read as follows:

1. Notwithstanding the provisions of any law, rule, or regulation to the contrary, competitive contracting may be used by local contracting units in lieu of public bidding for procurement of specialized goods and services the price of which exceeds the bid threshold, for the following purposes:

a. The purchase or licensing of proprietary computer software designed for contracting unit purposes, which may include hardware intended for use with the proprietary software. This subsection shall not be utilized for the purpose of acquiring general purpose computer hardware or software;

b. The hiring of a for-profit entity or a not-for-profit entity incorporated under Title 15A of the New Jersey Statutes for the purpose of:

(1) the operation and management of a wastewater treatment system, a stormwater management system, or a water supply or distribution facility of the type described in subsection (37) of section 15 of P.L.1971, c.198 (C.40A:11-15), provided that competitive contracting shall not be used as a means of awarding contracts pursuant to P.L.1985, c.37 (C.58:26-1 et al.) and P.L.1985, c.72 (C.58:27-1 et al.);

(2) the operation, management or administration of recreation or social service facilities or programs, which shall not include the administration of benefits under the Work First New Jersey program established pursuant to P.L.1997, c.38 (C.44:10-55 et seq.), or under General Assistance;

(3) the operation, management or administration of data processing services; or

(4) the operation and management of a county hospital pursuant to the "Local Hospital Authority Law," P.L.2006, c.46 (C.30:9-23.15 et al.);

c. (Deleted by amendment, P.L.2009, c.4)

d. Homemaker--home health services;

e. Laboratory testing services;

f. Emergency medical services;

g. Contracted food services;

h. Performance of patient care services by contracted medical staff at county hospitals, correctional facilities and long-term care facilities;

i. At the option of the governing body of the contracting unit, any good or service that is exempt from bidding pursuant to section 5 of P.L.1971, c.198 (C.40A:11-5);

j. Concessions;

k. The operation, management or administration of other services, with the approval of the Director of the Division of Local Government Services;

l. Maintenance, custodial, and groundskeeping services;

m. Consulting services;

n. Emergency medical billing services;

o. Property appraisal services;

p. Reassessment or revaluation services;

q. Grant writing services;

r. Animal control services;

s. Private on-site inspection agency services, as may be authorized by rules and regulations adopted by the Department of Community Affairs; or

t. The provision or performance of goods or services for the purpose of producing Class I renewable energy or Class II renewable energy, as those terms are defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by, or operations conducted by, the contracting unit, the entire price of which is to be established as a percentage of the resultant savings in energy costs; provided, however, that a contract shall be entered into only subject to and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs.

Any purpose included herein shall not be considered by a contracting unit as an extraordinary unspecifiable service pursuant to subparagraph (ii) of paragraph (a) of subsection (1) of section 5 of P.L.1971, c.198 (C.40A:11-5).

As used in this section, "stormwater management system" means the same as that term is defined in section 3 of P.L.2019, c.42 (C.40A:26B-3).

(cf: P.L.2022, c.139, s.3)

2. Section 45 of P.L.1999, c.440 (C.18A:18A-4.1) is amended to read as follows:

45. Notwithstanding the provisions of any law, rule or regulation to the contrary, competitive contracting may be used by boards of education in lieu of public bidding for procurement of specialized goods and services the price of which exceeds the bid threshold, for the following purposes:

a. The purchase or licensing of proprietary computer software designed for board of education purposes, which may include hardware intended for use with the proprietary software. This subsection shall not be utilized for the purpose of acquiring general purpose computer hardware or software;

b. The hiring of a for-profit entity or a not-for-profit entity incorporated under Title 15A of the New Jersey Statutes for the purpose of:

(1) the operation, management or administration of recreation or social service facilities or programs; or

(2) the operation, management or administration of data processing services;

c. Services performed by an organization engaged in providing energy conservation education and training services to train employees of a board of education to reduce consumption of energy;

d. Telecommunications transmission or switching services that are not part of a tariff or schedule of charges filed with the Board of Public Utilities;

e. The purchase of specialized machinery or equipment of a technical nature, or servicing thereof, which will not reasonably permit the drawing of specifications;

f. Food services provided by food service management companies when not part of programs administered by the New Jersey Department of Agriculture, Bureau of Child Nutrition Programs;

g. Driver education courses provided by licensed driver education schools;

h. At the option of the board of education, any good or service that is exempt from bidding pursuant to N.J.S.18A:18A-5;

i. Laboratory testing services;

j. Concessions;

k. The operation, management or administration of other services, with the approval of the Division of Local Government Services in the Department of Community Affairs;

l. Maintenance, custodial, and groundskeeping services;

m. Consulting services;

n. Grant writing services; or

o. The provision or performance of goods or services for the purpose of producing Class I renewable energy, as that term is defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by a board of education, the entire price of which is to be established as a percentage of the resultant savings in energy costs; provided, however, that these contracts shall be entered into only subject to and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs.

Any purpose included herein shall not be considered by a board of education as an extraordinary unspecifiable service pursuant to paragraph (2) of subsection a. of N.J.S.18A:18A-5.

(cf: P.L.2009, c.4, s.2)

3. Section 2 of P.L.1982, c.189 (C.18A:64A-25.2) is amended to read as follows:

2. As used in this article, unless the context otherwise indicates:

a. "Board of trustees" means the board of trustees of a county college and the community college commission of a community college agency;

b. "County college" means any body corporate known as

(1) the board of trustees of a county college established pursuant to chapter 64A of Title 18A of the New Jersey Statutes, or

(2) the community college commission of a community college agency established pursuant to P.L.1974, c.89 (C.18A:64A-30 et seq.);

c. "Contracting agent" means the business officer of the county college having the power to prepare advertisements to advertise for and receive bids and to make awards for the county college in connection with the purchases, contracts or agreements permitted by this article, or [such] an officer, committee, or employee to whom [such] this power has been delegated by the county college;

d. "Contracts" mean contracts or agreements for the performance of work or the furnishing or hiring of services, materials or supplies as distinguished from contracts of employment;

e. "Legal newspaper" means a newspaper circulating in the county or counties in which the county college has been established, printed and published in the English language at least once a week for at least one year continuously;

f. "Materials" include goods and property subject to chapter 2 of Title 12A of the New Jersey Statutes, apparatus or any other tangible thing except real property or any interest therein;

g. "Extraordinary unspecifiable services" mean services or products which cannot be reasonably described by written specifications;

h. "Professional services" mean services rendered or performed by a person authorized by law to practice a recognized profession and whose practice is regulated by law and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. Professional services also mean services rendered in the performance of work that is original and creative in character in a recognized field of artistic endeavor;

i. "Project" means any work, undertaking, construction or alteration;

j. "Purchases" are transactions, for a valuable consideration, creating or acquiring an interest in goods, services and property, except real property or any interest therein;

k. "Work" includes services and any other activity of a tangible or intangible nature performed or assumed pursuant to a contract or agreement with a county college;

l. "Competitive contracting" means the methods described in sections 6 through 10 of P.L. , c. (C. ) (pending before the Legislature as this bill) of contracting for specialized goods and services in which formal proposals are solicited from vendors; formal proposals are evaluated by the contracting agent or counsel; and the county college awards a contract to a vendor from among the formal proposals received;

m. "Goods and services" or "goods or services" means any work, labor, commodities, equipment, materials, or supplies of any tangible or intangible nature, except real property or any interest therein, provided or performed through a contract awarded by a contracting agent, including goods and property subject to the Uniform Commercial Code - Sales, N.J.S.12A:2-101 et seq.;

n. "Services" means the performance of work, or the furnishing of labor, time, or effort, or any combination thereof, not involving or connected to the delivery or ownership of a specified end product, goods, or a manufacturing process. Services may include an arrangement in which a vendor compensates a county college for the vendor's right to operate a concession;

o. "Concession" means the granting of a license or right to act for or on behalf of the county college, or to provide a service requiring the approval or endorsement of the board of trustees, and which may or may not involve a payment or exchange, or provision of services by or to the county college. The term concession shall include vending machines.

(cf: P.L.1994, c.48, s.140)

4. Section 9 of P.L.1982, c.189 (C.18A:64A-25.9) is amended to read as follows:

9. a. Any county college, without advertising for bids, or after having rejected all bids obtained pursuant to advertising therefor, may purchase any materials, supplies, goods, services or equipment pursuant to a contract or contracts for such materials, supplies, goods, services or equipment entered into on behalf of the State by the Division of Purchase and Property. The terms and conditions of the contracts awarded by the Division of Purchase and Property shall be binding upon the county college and the vendor; however, a county college shall not be entitled to any bonding or indemnification protections provided to the State unless the vendor agrees to extend the protections to the county college.

b. A county college may also use, without advertising for bids, or having rejected all bids obtained pursuant to advertising, the Federal Supply Schedules of the General Services Administration as permitted by the "Federal Acquisition Streamlining Act of 1994," Pub.L. 103-355, and federal regulations adopted thereunder or schedules from other federal procurement programs.

c. Whenever a purchase is made, the county college shall place its order with the vendor offering the lowest price, including delivery charges, that best meets the requirements of the county college. Prior to placing [such] an order, the county college shall document with specificity that the materials, supplies, goods, services or equipment selected best meet the requirements of the county college.

(cf: P.L.2006, c.10, s.3)

5. Section 28 of P.L.1982, c.189 (C.18A:64A-25.28) is amended to read as follows:

28. [Duration of certain contracts.] A county college may only enter into a contract exceeding 24 consecutive months for the:

a. Supplying of:

(1) Fuel for heating purposes for any term not exceeding in the aggregate three years; or

(2) Fuel or oil for use in automobiles, autobuses, motor vehicles or equipment for any term not exceeding in the aggregate three years; [or]

b. Plowing and removal of snow and ice for any term not exceeding in the aggregate three years; [or]

c. Collection and disposal of garbage and refuse for any term not exceeding in the aggregate three years; [or]

d. Providing goods or services for the use, support or maintenance of proprietary computer hardware, software peripherals and system development for the hardware for any term of not more than five years; [or]

e. Insurance, including the purchase of insurance coverages, insurance consultant or administrative services, and including participation in a joint self-insurance fund, risk management programs or related services provided by a county college insurance group, or participation in an insurance fund established by a county pursuant to N.J.S.40A:10-6, for any term of not more than three years; [or]

f. Leasing or service of automobiles, motor vehicles, electronic communications equipment, machinery and equipment of every nature and kind for any term not exceeding in the aggregate five years; [or]

g. Supplying of any product or rendering of any service by a company providing voice, data, transmission or switching services, for a term not exceeding five years; [or]

h. The providing of food supplies and services, including food supplies and management contracts for student centers, dining rooms and cafeterias, for a term not exceeding 30 years; [or]

i. (Deleted by amendment, P.L.2009, c.4).

j. Any single project for the construction, reconstruction or rehabilitation of a public building, structure or facility, or a public works project including the retention of the services of an architect or engineer in connection with the project, for the length of time necessary for the completion of the actual construction; [or]

k. The management and operation of bookstores for a term not exceeding 30 years; [or]

l. Custodial or janitorial services for any term not exceeding in the aggregate three years; [or]

m. Child care services for a term not exceeding three years; [or]

n. Security services for a term not exceeding three years; [or]

o. Ground maintenance services for a term not exceeding three years; [or]

p. Laundering, dry-cleaning or rental of uniforms for a term not exceeding three years; [or]

q. The performance of work or services or the furnishing of materials and supplies for the purpose of producing class I renewable energy, as that term is defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by, or operations conducted by, the contracting unit, the entire price of which is to be established as a percentage of the resultant savings in energy costs, for a term not to exceed 30 years; provided, however, that these contracts shall be entered into only subject to and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs; or

r. Purchases made under a contract awarded by the Director of the Division of Purchase and Property in the Department of the Treasury for use by a county college pursuant to section 3 of P.L.1969, c.104 (C.52:25-16.1), for a term not to exceed the term of the contract.

All multi-year leases and contracts entered into pursuant to this section, except contracts and agreements for the provision of work or the supplying of equipment to promote energy conservation through the production of class I renewable energy and authorized pursuant to subsection q. of this section, and except contracts for insurance coverages, insurance consultant or administrative services, participation or membership in a joint self-insurance fund, risk management programs or related services of a county college insurance group, and participation in an insurance fund established by a county pursuant to N.J.S.40A:10-6 or a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), shall contain a clause making them subject to the availability and appropriation annually of sufficient funds to meet the extended obligation or contain an annual cancellation clause.

(cf: P.L.2009, c.90, s.45)

6. (New section) a. Notwithstanding the provisions of any law, rule, or regulation to the contrary, competitive contracting may be used by a county college in lieu of public bidding for procurement of specialized goods and services, the price of which exceeds the bid threshold, for the following purposes:

(1) purchasing or licensing proprietary computer software designed for county college purposes, which may include hardware intended for use with the proprietary software. This paragraph shall not be utilized for the purpose of acquiring general purpose computer hardware or software;

(2) hiring a for-profit entity or a not-for-profit entity incorporated under Title 15A of the New Jersey Statutes for the purpose of:

(a) operating, managing, or administering recreation or social service facilities or programs; or

(b) operating, managing, or administering data processing services;

(3) obtaining services performed by an organization engaged in providing energy conservation education and training services to train employees of a county college to reduce energy consumption;

(4) procuring telecommunications transmission or switching services that are not part of a tariff or schedule of charges filed with the Board of Public Utilities;

(5) obtaining laboratory testing services;

(6) procuring maintenance, custodial, and groundskeeping services;

(7) grant writing services;

(8) concessions;

(9) the performance of work or services or the furnishing of materials and supplies for the purpose of producing class I renewable energy, as that term is defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by, or operations conducted by, the county college, the entire price of which is to be established as a percentage of the resultant savings in energy costs; provided, however, that these contracts shall be entered into only subject to and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs;

(10) at the discretion of the county college, procuring any good or service that is exempt from bidding pursuant to section 5 of P.L.1982, c.189 (C.18A:64A-25.5); and

(11) operating, managing, or administering other services, with the approval of the Division of Local Government Services in the Department of Community Affairs.

b. Any purpose listed in subsection a. of this section shall not be considered by a county college as an extraordinary unspecifiable service pursuant to paragraph (2) of subsection a. of section 5 of P.L.1982, c.189 (C.18A:64A-25.5).

7. (New section) Unless an exemption is provided for pursuant to section 28 of P.L.1982, c.189 (C.18A:64A-25.28) permitting a longer contract duration, a contract awarded pursuant to section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill) may be awarded for a term not exceeding five years.

8. (New section) a. To initiate competitive contracting, the county college shall authorize the use of competitive contracting, by resolution of the board of trustees, each time specialized goods and services enumerated in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill) may be procured.

b. The competitive contracting process shall be administered by the contracting agent or by legal counsel of the county college. Any contracts awarded by the county college pursuant to this process shall be made by resolution of the board of trustees in accordance with the provisions of section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill).

9. (New section) The competitive contracting process shall utilize a request for proposals documentation in accordance with the following provisions:

a. The contracting agent or counsel shall prepare, or have prepared, a request for proposals documentation, which shall include:

(1) all requirements deemed appropriate and necessary to allow for full and free competition between vendors;

(2) information necessary for potential vendors to submit a proposal; and

(3) a methodology for the evaluation and ranking of 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 for the purpose of meeting the specific needs of the county college. The criteria shall not unfairly or illegally discriminate against or exclude otherwise capable vendors. When an evaluation methodology uses a weighting of criteria, the county college may disclose to vendors the weight to be accorded to each criterion, prior to receipt of the proposals. The methodology for awarding competitive contracts shall comply with any rules and regulations promulgated by the Director of the Division of Local Government Services in the Department of Community Affairs pursuant to section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. A contracting agent or counsel shall not, at any time during the proposal solicitation process, convey information, including price, to any potential vendor that may provide the vendor an unfair advantage over any other potential vendor. If a change is made to the proposal documentation, the contracting agent or counsel shall notify only the potential vendors who received the proposal documentation of any and all changes in writing and all existing documentation shall be changed accordingly.

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.

10. (New section) Competitive contracting proposals shall be solicited in the following manner:

a. A notice of the availability of a request for proposals documentation shall be published in a legal newspaper of the county college at least 20 days prior to the date established for the submission of proposals. The county college shall promptly reply to any request by an interested vendor by providing a copy of the request for proposals. The county college may charge a fee for the proposal documentation that shall not exceed $50 or the cost of reproducing the documentation, whichever is greater.

b. Each interested vendor shall submit a proposal which shall include all the information required by the request for proposals. Failure to meet the requirements of the request for proposals may result in the county college disqualifying the vendor from further consideration. The provisions of a proposal shall not be subject to negotiation by the county college.

c. If the county college, at the time of solicitation, utilizes its own employees to provide the goods or perform the services, or both, that are being considered for competitive contracting, the county college shall, at any time prior to, but no later than the time of solicitation for competitive contracting proposals, notify affected employees of the county college's intention to solicit competitive contracting proposals. Employees or their representatives shall be permitted to submit recommendations and proposals affecting wages, hours, and terms and conditions of employment in a manner that meets the goals of the competitive contract. If employees are represented by an organization that has negotiated a contract with the county college, only the bargaining unit shall be authorized to submit the recommendations or proposals. When requested by the employees, the county college shall provide information regarding budgets and the costs of performing the services by the employees, as may be available. Nothing shall prevent the employees from making recommendations that may include modifications to existing labor agreements in order to reduce costs in lieu of the award of a competitive contract, and agreements implementing the recommendations may be considered as cause for rejecting all other proposals.

d. The contracting agent or counsel shall evaluate all proposals only in accordance with the methodology described in the request for proposals. After proposals have been evaluated, the contracting agent or counsel shall prepare a report evaluating and recommending the award of a contract. The report shall:

(1) list the names of all potential vendors who submitted a proposal;

(2) summarize the proposals of each vendor who submitted a proposal;

(3) rank the vendors in order of evaluation;

(4) recommend the selection of a vendor or vendors, as appropriate, for a contract;

(5) be clear in the reasons why the vendor or vendors have been selected among others considered;

(6) detail the terms, conditions, scope of services, fees, and other matters to be incorporated into a contract; and

(7) be made available to the public at least 48 hours prior to the awarding of the contract, or when made available to the board of trustees, whichever is sooner.

The county college shall have the right to reject all proposals.

e. The report prepared pursuant to subsection d. of this section shall become part of the public record and shall reflect the final action of the county college.

f. Award of a contract by a county college utilizing competitive contracting shall be made, by resolution of the board of trustees, within 60 days of the receipt of the proposals, except that the proposals of any vendors who consent thereto, may, at the request of the county college, be held for consideration for a longer period as may be agreed.

g. All contracts awarded through competitive contracting pursuant to the provisions of sections 6 through 10 of P.L. , c. (C. ) (pending before the Legislature as this bill) for the provision of goods or performance of services shall be in writing. The board of trustees may, subject to the requirements of law, prescribe the forms and manner that contracts shall be made and executed, and the form and manner of the execution and approval of all guarantee, indemnity, fidelity, and other bonds.

h. The county college shall publish a notice in the legal newspaper of the county college summarizing the award of a contract, which shall include but not be limited to:

(1) the nature, duration, and amount of the contract;

(2) the name of the vendor; and

(3) a statement that the resolution and contract are on file and available for public inspection in the office of the county college.

11. The Director of the Division of Local Government Services in the Department of Community Affairs, after consultation with the Secretary of Higher Education, may adopt rules and regulations, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary to effectuate the provisions of sections 6 through 10 of P.L. , c. (C. ) (pending before the Legislature as this bill).

12. This act shall take effect on the first day of the fourth month next following the date of enactment.

STATEMENT

This bill expands competitive contracting for local contracting units and board of education and permits county colleges to utilize competitive contracting.

Under current law, local contracting units and boards of education are permitted to use competitive contracting in lieu of public bidding for specialized goods and services exceeding the bid threshold. This bill expands the list of specialized goods and services for which local contracting units and boards of education can use competitive contracting. Specifically, the bill permits local contracting units to utilize competitive contracting for the provision or performance of goods and services for the purpose of producing Class I or Class II renewable energy. The bill also permits boards of education to utilize competitive contracting for: maintenance, custodial, and groundskeeping services; consulting services; grant writing services; or the provision or performance of goods and services for the purpose of producing Class I renewable energy.

Additionally, the bill enables a county college to utilize competitive contracting in lieu of public bidding for the procurement of certain listed specialized goods and services that exceed the bid threshold. The bill authorizes the use of competitive contracting for the following purposes: (1) purchasing or licensing certain proprietary computer software; (2) hiring a for-profit entity or a not-for-profit entity incorporated under current law to operate, manage, or administer recreation or social services facilities or programs and data processing services; (3) obtaining services concerning energy conservation education; (4) procuring certain telecommunications services; (5) obtaining laboratory testing services; (6) procuring maintenance, custodial, and groundskeeping services; (7) contracting for grant writing services; (8) concessions; (9) contracting for specified services to produce Class I renewable energy; (10) procuring any service exempt from the requirements for public advertising under current law, at the discretion of the county college; and (11) operating, managing, or administering other services, with the approval of the Division of Local Government Services in the Department of Community Affairs.

The bill stipulates that contracts awarded for these purposes may be awarded for a term not to exceed five years, unless otherwise permitted by law.

The bill enumerates the process by which competitive contracting may be utilized by the county colleges, including: the requirements for request for proposals documentation; the manner in which county colleges are to solicit competitive contract proposals; and the methods for awarding competitive contracts.

Finally, the bill revises the process by which county colleges may purchase any materials, supplies, goods, services or equipment under a contract entered into on behalf of the State by the Division of Purchase and Property. The bill stipulates that the terms and conditions of the contracts awarded by the Division of Purchase and Property are to be binding. The bill also provides that a county college is not entitled to any bonding or indemnification protections provided to the State unless the vendor agrees to extend the protections to the county college. Under the bill, a county college is permitted to enter into these contracts for a period exceeding 24 consecutive months, up to the length of the contract term.