S2947

An Act concerning certain local public contracts and amending P.L.1971, c.198 and P.L.1999, c.39.

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

1. Section 23 of P.L.1971, c.198 (C.40A:11-23) is amended to read as follows:

23. a. All advertisements for bids shall be published in an official newspaper of the contracting unit sufficiently in advance of the date fixed for receiving the bids to promote competitive bidding, but in no event less than 10 days prior to such date; except that all advertisements for bids on contracts for the collection and disposal of municipal solid waste shall be published in an official newspaper of the contracting unit circulating in the county or municipality, and in at least one newspaper of general circulation published in the State, sufficiently in advance of the date fixed for receiving the bids to promote competitive bidding, but not less than 60 days prior to that date. For all contracts, the date fixed for receiving the bids shall not fall on a Monday, or any day directly following a State or federal holiday.

b. The advertisement shall designate the manner of submitting and the method of receiving the bids and the time and place at which the bids will be received. If the published specifications provide for receipt of bids by mail, those bids which are mailed to the contracting unit shall be sealed and shall only be opened for examination at such time and place as all bids received are unsealed and announced. At such time and place the contracting agent of the contracting unit shall publicly receive the bids, and thereupon immediately proceed to unseal them and publicly announce the contents, which announcement shall be made in the presence of any parties bidding or their agents, who are then and there present, and shall also make proper record of the prices and terms, upon the minutes of the governing body, if the award is to be made by the governing body of the contracting unit, or in a book kept for that purpose, if the award is to be made by other than the governing body, and in such latter case it shall be reported to the governing body of the contracting unit for its action thereon, when such action thereon is required. No bids shall be received after the time designated in the advertisement.

c. Notice of revisions or addenda to advertisements or bid documents shall be provided as follows:

1) For all contracts except those for construction work and municipal solid waste collection and disposal service, notice shall be published no later than seven days, Saturdays, Sundays, and holidays excepted, prior to the date for acceptance of bids, in an official newspaper of the contracting unit and be provided to any person who has submitted a bid or who has received a bid package, in one of the following ways: i) in writing by certified mail or ii) by certified facsimile transmission, meaning that the sender's facsimile machine produces a receipt showing date and time of transmission and that the transmission was successful or iii) by a delivery service that provides certification of delivery to the sender.

2) For all contracts for construction work, notice shall be provided no later than seven days, Saturdays, Sundays, or holidays excepted, prior to the date for acceptance of bids, to any person who has submitted a bid or who has received a bid package in any of the following ways: i) in writing by certified mail or ii) by certified facsimile transmission, meaning that the sender's facsimile machine produces a receipt showing date and time of transmission and that the transmission was successful or iii) by a delivery service that provides certification of delivery to the sender. Notwithstanding section 1 of P.L.1995, c.23 (C.47:1A-1.1) concerning the confidentiality of government records containing information which, if disclosed, would give an advantage to competitors or bidders, when three or more parties have received bid documents, upon request by any person the contracting unit shall make available the names of all parties who have received the bid documents. This information shall be made available in a timely manner and in accordance with P.L.1963, c.73 (C.47:1A-1 et seq.). Alternatively, if the contracting unit maintains its own website, the contracting unit may post the information on that site.

3) For municipal solid waste collection and disposal contracts, notice shall be published in an official newspaper of the contracting unit and in at least one newspaper of general circulation published in the State no later than seven days, Saturdays, Sundays, and holidays excepted, prior to the date for acceptance of bids.

d. Failure of the contracting unit to advertise for the receipt of bids [or], to provide proper notification of revisions or addenda to advertisements or bid documents related to bids, or to provide the names of all parties receiving the bid documents to any requesting person or by posting that information on its website, as prescribed by this section shall prevent the contracting unit from accepting the bids and require the readvertisement for bids pursuant to subsection a. of this section. Failure to obtain a receipt when good faith notice is sent or delivered to the address or telephone facsimile number on file with the contracting unit shall not be considered failure by the contracting unit to provide notice.

(cf: P.L.2007, c.4, s.1)

2. Section 1 of P.L.1999, c.39 (C.40A:11-23.1) is amended to read as follows:

1. All plans, specifications and bid proposal documents for the erection, alteration, or repair of a building, structure, facility or other improvement to real property, the total price of which exceeds the amount set forth in, or the amount calculated by the Governor pursuant to, section 3 of P.L.1971, c.198 (C.40A:11-3), shall include:

a. a document for the bidder to acknowledge the bidder's receipt of any notice or revisions or addenda to the advertisement or bid documents; and

b. a form listing those documentary and informational forms, certifications, and other documents that the contracting agent requires each bidder to submit with the bid. The form shall list each of the items to be submitted with the bid proposal and a place for the bidder to indicate, by initialing each entry, that the bidder has included those required items with the completed bid proposal. Each bidder shall complete this form and submit it with the bid proposal in addition to those documentary and informational forms, certifications, and other documents that are listed on the form; and

c. a statement indicating whether uniformed law enforcement officers will be required for the project. The statement shall include a line item allowance, which shall be a good faith effort on the part of the contracting unit, to reasonably estimate the total cost of traffic control personnel, vehicles, equipment, administrative, or any other costs associated with additional traffic control requirements required by the contracting unit, or any other public entity affected by the project, above and beyond the bidder's traffic control personnel, vehicles, equipment, and administrative costs. The individuals responsible for the assignment of uniformed law enforcement officers for any municipalities affected by a project shall be required to determine where traffic safety control is needed for a project, and calculate the number and placement of all necessary personnel, equipment, and the costs associated with these, including hourly rates, and submit this information to the contracting unit.

The contracting unit shall not be responsible for additional traffic control costs beyond the number of working days specified in the construction contract in accordance with section 17 of P.L.1971, c.198 (C.40A:11-17), when such a delay is caused by the contractor and liquidated damages have been assessed.

The statement prescribed under this subsection shall not be required if the contracting unit will provide for the direct payment of uniformed law enforcement officers and any additional costs directly associated with the provision of those officers; and

d. at the option of the contracting unit, specified alternate proposals in addition to a base specification. When the contracting unit specifies alternate proposals, the determination of which bidder's response to a request for bids offers the lowest price shall be made on the basis of the price of: (i) the base specification plus the price of any selected specified alternate proposals; or (ii) a choice of specified alternative proposals within the limit of funds that may be made available for a project. If a contracting unit provides for more than one specified alternate proposal, the contracting unit shall specify in the bid specification the criteria or ranked order by which specified alternate proposals shall be selected and included in the award of the contract by the governing body, provided that this requirement shall only apply to a project with a total estimated cost, including specified alternate proposals, of greater than $500,000. The aggregate dollar value of accepted specified alternative proposals shall not exceed 50 percent of the base bid. If a contracting unit is found in a court of law to have chosen specific alternative proposals in a manner intended to award a contract to a specific vendor, the bids shall be voided, the contracting unit shall rebid the project, and a plaintiff who prevails in any proceeding shall be entitled to a reasonable attorney's fee.

For the purposes of this subsection:

"Specified alternate proposal" means a requirement of the bid specification for bidders to submit prices for reduced, modified or supplemental work in addition to the base proposal which may include, but not be limited to, a change in project scope or the use of alternative materials or methods of construction;

"Base specification" means the plans and specifications for the erection, alteration or repair of the building, structure, facility or other improvement to real property that are required to be met by all bidders without exception; and

e. in the case of a project that includes the removal of soil from the site, disclosure of any documentation relative to the known soil conditions at the site including, but not limited to, any test results specifying the level of contamination, if any, of the soil that has been found at the site of the project, or if a project is located on a site with historical or suspected contamination, a line item allowance or minimum unit price line item for soil testing and contaminated soil disposal, which shall be a good faith effort on the part of the contracting unit to reasonably estimate the total cost of testing the soil and disposing of it; and

f. a bidder's affidavit of non-collusion to ensure that the bidder has not participated in any collusion with any other bidder or owner representative or otherwise taken any action in restraint of free and competitive bidding.

(cf: P.L.2012, c.73, s.1)

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

STATEMENT

This bill amends the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.) to provide that once three or more parties have received bid documents, the local contracting unit would be required to release the names of all parties who have received bid documents, upon request.

The local contracting unit would be required to make the information available in a timely manner and in accordance with P.L.1963, c.73 (C.47:1A-1 et seq.). Alternatively, if the contracting unit maintains its own website, the contracting unit may post the information on that site. Failure to release or post the information would prevent the contracting unit from accepting bids and require the readvertisement of bids.

The purpose of this bill is to allow subcontractors, including minority-owned and women-owned subcontracting businesses, to have timely access to bidders on public projects so that they can submit subcontracting bids to those bidders for the purpose of enabling those bidders to put together their lowest possible bids to the benefit of the local contracting unit. Under the current system, if the names of the parties who have received bid documents is not released or made public, then only subcontractors specifically contacted by a bidder are able to submit bids on subcontracting work. By expanding the pool of subcontractors vying for a job, the cost should be reduced and the bidder able to submit a lower cost proposal. The bill would also help ensure that minority-owned and women-owned subcontracting businesses get fair opportunity to compete for work on public projects.

Additionally, the bill would require bid proposal documents for contracts to erect, alter, repair or improve real property, the total price of which exceeds the Local Public Contracts Law bid threshold, to include a bidder's affidavit of non-collusion. This requirement is being imposed to ensure that bidders have not participated in collusion with other bidders or owner representatives, or otherwise taken any action in restraint of free and competitive bidding.