STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2008 SESSION
Assemblyman RONALD S. DANCER
District 30 (Burlington, Mercer, Monmouth and Ocean)
Repeals bidding requirement for local public contracts to allow bidders to avoid unresponsive bid if they inadvertently omit business registration from bid proposal provided that bidder was registered before bid submission deadline.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning local public contracts and amending P.L.1999, c.39 and P.L.2001, c.134.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1999, c.39 (C.40A:11-23.2) is amended to read as follows:
2. When required by the bid plans and specifications, the following requirements shall be considered mandatory items to be submitted at the time specified by the contracting unit for the receipt of the bids; the failure to submit any one of the mandatory items shall be deemed a fatal defect that shall render the bid proposal unresponsive and that cannot be cured by the governing body:
a. A guarantee to accompany the bid pursuant to section 21 of P.L.1971, c.198 (C.40A:11-21);
b. A certificate from a surety company pursuant to section 22 of P.L.1971, c.198 (C.40A:11-22);
c. A statement of corporate ownership pursuant to section 1 of P.L.1977, c.33 (C.52:25-24.2);
d. A listing of subcontractors pursuant to section 16 of P.L.1971, c.198 (C.40A:11-16);
e. A document provided by the contracting agent in the bid plans, specifications, or bid proposal documents for the bidder to acknowledge the bidder's receipt of any notice or revisions or addenda to the advertisement or bid documents; and
f. [A copy of the contractor's, and subcontractors' listed pursuant to subsection d. of this section, business registration as required pursuant to section 1 of P.L.2001, c.134 (C.52:32-44).] (Deleted by amendment, P.L. , c. .) (pending before the Legislature as this bill)
(cf: P.L.2004, c.57, s.1)
2. Section 1 of P.L.2001, c.134 (C.52:32-44) is amended to read as follows:
1. a. For the purposes of this section:
"Business organization" means an individual, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof;
"Business registration" means a business registration certificate issued by the Department of the Treasury or such other form or verification that a contractor or subcontractor is registered with the Department of the Treasury;
"Contractor" means a business organization that seeks to enter, or has entered into, a contract to provide goods or services or to construct a construction project with a contracting agency;
"Contracting agency" means 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, or any independent State authority, commission, instrumentality or agency, or any State college or university, any county college, or any local unit;
"Local unit" means any contracting unit as defined pursuant to section 2 of P.L.1971, c.198 (C.40A:11-2), any board of education as defined pursuant to N.J.S.18A:18A-2, a private firm that has entered into a contract with a public entity for the provision of water supply services pursuant to P.L.1995, c.101 (C.58:26-19 et al.), a private firm or public authority that has entered into a contract with a public entity for the provision of wastewater treatment service pursuant to P.L.1995, c.216 (C.58:27-19 et al.), and a duly incorporated nonprofit association that entered into a contract with the governing body of a city of the first class for the provision of wastewater treatment services pursuant to P.L.1995, c.216 (C.58:27-19 et al.);
"Subcontractor" means any business organization that is not a contractor that knowingly provides goods or performs services for a contractor or another subcontractor in the fulfillment of a contract issued by a contracting agency.
b. No contract shall be entered into by any contracting agency unless the contractor provides a copy of its business registration in accordance with the following schedule:
(1) In response to a request for bids or a request for proposals, at the time a bid or proposal is submitted. In its sole discretion, a local contracting unit may waive this requirement and allow the contractor a reasonable amount of time to submit its business registration, provided that the business registration was obtained on or prior to the last date for submission of bids or proposals ; or
(2) For all other transactions, before the issuance of a purchase order or other contracting document. In its sole discretion, the contracting unit may waive this requirement if a business registration has been previously provided to the contracting agency.
c. A subcontractor shall provide a copy of its business registration to any contractor who shall forward it to the contracting agency. No contract with a subcontractor shall be entered into by any contractor under any contract with a contracting agency unless the subcontractor first provides proof of valid business registration. The contracting agency shall file all business registrations received by the contracting agency with other procurement documents related to the contract.
d. A contract entered into by a contracting agency with a contractor shall include provisions under subsection b. of this section and this subsection for the contractor to comply with, and for the contractor to notify subcontractors by written notice to comply with subsection c. of this section. A contracting agency shall not be responsible for a contractor's failure to comply with this section. The contractor shall maintain and submit to the contracting agency a list of subcontractors and their addresses that may be updated from time to time during the course of the contract performance. A complete and accurate list shall be submitted before final payment is made for goods provided or services rendered or for construction of a construction project under the contract.
e. Notice of the provisions of this section shall be included by the contracting agency in any bid specification, requests for proposals, or other documents notifying potential contractors of opportunities to provide goods or perform services for a contracting agency.
f. Nothing in this section shall in any way alter the provisions or change the responsibilities or obligations of casino industry licensees as set forth in section 92 of P.L.1977, c.110 (C.5:12-92).
g. (1) A contractor or a contractor with a subcontractor that has entered into a contract with a contracting agency, and each of their affiliates, shall collect and remit to the Director of the Division of Taxation in the Department of the Treasury the use tax due pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) on all their sales of tangible personal property delivered into this State.
(2) A contracting agency entering into a contract with a contractor, or a contractor with a subcontractor, shall include in its contract to provide goods or perform services or to construct a construction project with that contractor, or a contractor with a subcontractor, for the term of the contract, a requirement that the contractor or subcontractor and each of their affiliates shall collect and remit to the Director of the Division of Taxation in the Department of the Treasury the use tax due pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) on all their sales of tangible personal property delivered into this State.
(3) For the purposes of this subsection, "affiliate” means any entity that (1) directly, indirectly, or constructively controls another entity, (2) is directly, indirectly, or constructively controlled by another entity, or (3) is subject to the control of a common entity. For purposes of this subsection an entity controls another entity if it owns, directly or individually, more than 50% of the ownership interest in that entity.
h. The State Treasurer may adopt regulations pursuant to the "Administrative Procedure Act", P.L.1968, c.410 (C.52:14B-1 et seq.) as are necessary to administer the provisions of this act.
(cf: P.L.2004, c.57, s.3.)
3. This act shall take effect immediately.
This bill would grant discretion to local governments to allow a bidder a reasonable amount of time to submit its business registration, provided that the bidder was registered on or before the last date for submitting bids. Under current law, if a business mistakenly omits its business registration from its bid proposal, the contracting unit is required to declare the omission a "fatal error" and consider the bid unresponsive. Current law does not allow a governing body to waive this restriction or provide additional time for a bidder to submit its business registration. This bill would allow a governing body to operate more efficiently in the event that a bidder who is already registered mistakenly omits its businesses registration from its bid proposal.