New Jersey-2012-S2584-Introduced

An Act revising the process for awarding certain public contracts in connection with an emergency and amending and supplementing various parts of the statutory law.

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

1. (New section) a. A contract of the State or of any State instrumentality or independent State authority for the delivery of goods or the performance of services in connection with the relief of an emergency declared by the Governor, pursuant to the "Disaster Control Act," P.L.1941, c.393 (C.App.A:9-30 et seq.), that is in excess of the threshold amount for public bidding, including but not limited to a contract that is awarded without public advertising for bids pursuant to subsection (b) of section 5 of P.L.1954, c.48 (C.52:34-10) because the public exigency requires the immediate delivery of those goods or the immediate performance of those services, shall be negotiated and awarded in an expedited manner on the basis of demonstrated competence and qualifications for the delivery or performance of that type of good or service and at a fair and reasonable price pursuant to a competitive contracting process as provided by this section.

As used in this section, "independent State authority" means an authority, board, bureau, office, commission, committee, council, instrumentality or agency of the State, which is a public body corporate and politic established pursuant to law, having the power to sue and be sued and to issue bonds.

b. The intent to award a contract pursuant to this section shall be publicly announced and a request for proposals posted in a conspicuous location on the Internet website of the Department of the Treasury as soon as possible. Proposals may also be solicited from firms known to have the requisite competence and qualifications. Any firm that wishes to be considered for the contract shall submit its proposal electronically within 48 hours of the announcement of the intent to award a contract and shall include a statement of its competence and qualifications, along with supporting documentation and data in such form and detail as shall be required.

c. The criteria for evaluating proposals shall include, but not be limited to, the following:

ability to meet specifications, requirements, terms and conditions;

ability to provide the services, positions and equipment;

qualifications of the project manager;

team member qualifications;

the firm's project management system;

references and past performance;

quality assurance;

cost factors;

business information; and

health and safety.

d. Firms submitting proposals shall be ranked in order from most qualified to least qualified to perform the contract based on the criteria set forth in subsection c. of this section. Negotiations shall be conducted by telephone, electronically, or in person with the top three most qualified firms and the contract awarded to the firm whose proposal is most advantageous to the State in view of those criteria.

e. Upon its award, the contract shall be posted on the Internet website of the Department of the Treasury along with the successful vendor's statement of its competence and qualifications, and supporting documentation and data.

f. A contract awarded pursuant to this section shall not incorporate by reference the provisions of a contract entered into by any other jurisdiction.

g. Nothing contained in this section shall be construed as preventing the purchase of goods or services from federal Supply Schedules or through established cooperative purchasing agreements with other jurisdictions, when permitted by law.

h. The provisions of this section shall not apply if it is determined by the federal government or a court of competent jurisdiction that its application would violate federal law or regulation.

2. (New section) a. A contract that is to be awarded by a contracting unit, as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), for the delivery of goods or the performance of services in connection with the relief of an emergency declared by the Governor, pursuant to the "Disaster Control Act," P.L.1941, c.393 (C.App.A:9-30 et seq.), that is in excess of the threshold amount for public bidding, including but not limited to a contract that is awarded without public advertising for bids because the public exigency requires the immediate delivery of the goods or the performance of those services, shall be negotiated and awarded in expedited manner on the basis of demonstrated competence and qualifications for that type of good or service and at fair and reasonable price pursuant to a competitive contracting process as provided by this section.

b. The intent to award a contract pursuant to this section shall be publicly announced and a request for proposals posted in a conspicuous location on the Internet website of the contracting unit as soon as possible. Proposals may also be solicited from firms known to have the requisite competence and qualifications. Any firm that wishes to be considered for the contract shall submit its proposal electronically within 48 hours of the announcement of the intent to award a contract and shall include a statement of its competence and qualifications, along with supporting documentation and data in such form and detail as shall be required.

c. The criteria for evaluating proposals shall include, but not be limited to, the following:

ability to meet specifications, requirements, terms and conditions;

ability to provide the services, positions and equipment;

qualifications of the project manager;

team member qualifications;

the firm's project management system;

references and past performance;

quality assurance;

cost factors;

business information; and

health and safety.

e. Upon its award, the contract shall be posted on the Internet website of the contracting unit with the successful vendor's statement of its competence and qualifications, and supporting documentation and data.

f. A contract awarded pursuant to this section shall not incorporate by reference the provisions of a contract entered into by any other jurisdiction.

g. Nothing contained in this section shall be construed as preventing the purchase of goods or services from federal Supply Schedules or through State agencies, joint agreements with other contracting units, or established cooperative purchasing agreements with other jurisdictions, when permitted by law.

h. The provisions of this section shall not apply if it is determined by the federal government or a court of competent jurisdiction that its application would violate federal law or regulation.

3. Section 11 of P.L.2004, c.19 (C.19:44A-20.12) is amended to read as follows:

11. Nothing contained in this act shall be construed as prohibiting the awarding of a contract when the public exigency requires the immediate delivery of goods or performance of emergency services as determined by the State Treasurer; except that the provisions of P.L.2004, c.19 (C.19:44A-20.3 et seq.) shall apply to business entities seeking or performing contracts pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), including contracts awarded through a fair and open process. The State Treasurer may waive the application of that law with respect to contributions made prior to the awarding of a contract upon a determination that its application would result in insufficient competition, but the provisions of that law shall apply to contributions made during the performance of a contract. As used in this section, "insufficient competition" means the receipt of fewer than three responsive bids or proposals.

(cf: P.L.2004, c.19, s.11)

4. Section 10 of P.L.2005, c.51 (C.19:44A-20.22) is amended to read as follows:

10. This act shall not prohibit the awarding of a contract when the public exigency requires the immediate delivery of goods or performance of services as determined by the State Treasurer; except that the provisions of P.L.2005, c.51 (C.19:44A-20.13 et seq.) shall apply to business entities seeking or performing contracts pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill). The State Treasurer may waive the application of that law with respect to contributions made prior to the awarding of a contract upon a determination that its application would result in insufficient competition, but the provisions of that law shall apply to contributions made during the performance of a contract. As used in this section, "insufficient competition" means the receipt of fewer than three responsive bids or proposals.

(cf: P.L.2005, c.51, s.10)

5. Section 2 of P.L.2005, c.271 (C.19:44A-20.26) is amended to read as follows:

2. a. (1) Not later than 10 days prior to entering into any contract having an anticipated value in excess of $17,500, except for a contract that is required by law to be publicly advertised for bids, a State agency, county, municipality, independent authority, board of education, or fire district shall require any business entity bidding thereon or negotiating therefor, to submit along with its bid or price quote, a list of political contributions as set forth in this subsection that are reportable by the recipient pursuant to the provisions of P.L.1973, c.83 (C.19:44A-1 et al.) and that were made by the business entity during the preceding 12-month period, along with the date and amount of each contribution and the name of the recipient of each contribution. A business entity contracting with a State agency shall disclose contributions to any State, county, or municipal committee of a political party, legislative leadership committee, candidate committee of a candidate for, or holder of, a State elective office, or any continuing political committee. A business entity contracting with a county, municipality, independent authority, other than an independent authority that is a State agency, board of education, or fire district shall disclose contributions to: any State, county, or municipal committee of a political party; any legislative leadership committee; or any candidate committee of a candidate for, or holder of, an elective office of that public entity, of that county in which that public entity is located, of another public entity within that county, or of a legislative district in which that public entity is located or, when the public entity is a county, of any legislative district which includes all or part of the county, or any continuing political committee.

(2) The provisions of this section shall not apply to a contract when a public emergency requires the immediate delivery of goods or services, except that this section shall apply to business entities seeking or performing contracts in connection with an emergency pursuant to section 1 or 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) which shall disclose the list of political contributions required by this subsection as soon as possible but not later than 10 days after entering into a contract, if disclosure 10 days prior to entering into the contract is not possible. The failure to make a disclosure required by this paragraph shall render a contract voidable.

b. When a business entity is a natural person, a contribution by that person's spouse or child, residing therewith, shall be deemed to be a contribution by the business entity. When a business entity is other than a natural person, a contribution by any person or other business entity having an interest therein shall be deemed to be a contribution by the business entity. When a business entity is other than a natural person, a contribution by: all principals, partners, officers, or directors of the business entity or their spouses; any subsidiaries directly or indirectly controlled by the business entity; or any political organization organized under section 527 of the Internal Revenue Code that is directly or indirectly controlled by the business entity, other than a candidate committee, election fund, or political party committee, shall be deemed to be a contribution by the business entity.

c. As used in this section:

"business entity" means a for-profit entity that is a natural or legal person, business corporation, professional services corporation, limited liability company, partnership, limited partnership, business trust, association or any other legal commercial entity organized under the laws of this State or of any other state or foreign jurisdiction;

"interest" means the ownership or control of more than 10% of the profits or assets of a business entity or 10% of the stock in the case of a business entity that is a corporation for profit, as appropriate; and

"State agency" means any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department, the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch, and any independent State authority, commission, instrumentality or agency.

d. Any business entity that fails to comply with the provisions of this section shall be subject to a fine imposed by the New Jersey Election Law Enforcement Commission in an amount to be determined by the commission which may be based upon the amount that the business entity failed to report.

(cf: P.L.2007, c.304, s.1)

6. This act shall take effect immediately.

STATEMENT

This bill creates an expedited competitive contracting process for the awarding of State and local government contracts for the purchase of goods or services in connection with a state of emergency declared by the Governor. It also provides that the so-called "pay-to-play" laws, as well as laws requiring the disclosure of political contributions by business entities performing public contracts, will apply to such contracts.