[Third Reprint]

SENATE, No. 3137

STATE OF NEW JERSEY

218th LEGISLATURE

INTRODUCED OCTOBER 18, 2018

 


 

Sponsored by:

Senator  STEPHEN M. SWEENEY

District 3 (Cumberland, Gloucester and Salem)

Senator  STEVEN V. OROHO

District 24 (Morris, Sussex and Warren)

Senator  TROY SINGLETON

District 7 (Burlington)

Assemblyman  LOUIS D. GREENWALD

District 6 (Burlington and Camden)

Assemblyman  MATTHEW W. MILAM

District 1 (Atlantic, Cape May and Cumberland)

Assemblyman  R. BRUCE LAND

District 1 (Atlantic, Cape May and Cumberland)

 

Co-Sponsored by:

Assemblymen Armato, Mazzeo, Assemblywoman Pintor Marin, Assemblyman Karabinchak, Assemblywoman Pinkin, Assemblymen Space, Wirths and Assemblywoman Murphy

 

 

 

 

SYNOPSIS

     The “Electronic Construction Procurement Act.”

 

CURRENT VERSION OF TEXT

     As amended by the General Assembly on December 16, 2019.

 


An Act concerning public contracts and supplementing various parts of the statutory law.

 

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

 

     1.    Sections 1 through 8 of P.L.    , c.     (C.          ) (pending before the Legislature as this bill) shall be known and may be cited as the “Electronic 3[Bidding]3 Construction 3Procurement3 Act.”

 

     2.    The Legislature finds and declares that advances in electronic technology offer opportunities to enhance governmental efficiencies.  In order to explore these avenues of improved government efficiency, it is in the best interests of the State to require public entities to adopt proven technologies for the procurement of public works construction through means of electronic technology, and to require the 3[State to promulgate] promulgation of3 standards for the use of these technologies that provide for the integrity and procedural protections of sealed public bidding and competitive contracting translated to an electronic environment.

 

     3.  As used in P.L.    , c.     (C.         ) (pending before the Legislature as this bill):

     2[“Public contracting unit” means a government entity that contracts for the procurement of goods, services, or the construction of public works pursuant to the “Public School Contracts Law,” N.J.S.A.18A:18A-1 et seq.; the “State College Contracts Law,” N.J.S.A.18A:64-52 et seq.; the “County College Contracts Law,” N.J.S.A.18A:64A-25.1 et seq.; N.J.S.A.52:18A-235 et seq. (the schools development authority law); the “Local Public Contracts Law,” N.J.S.A.40A:11-1 et seq.; and chapters 32, 33, and 34 of Title 52 of the Revised Statutes (the State and its agencies and instrumentalities).]2

     3[“Electronic procurement” means the use of computer technology and the Internet for the advertising and submission of public bids, providing notice of revisions or addenda to advertisements or bid documents, the receipt of proposals and quotations, and related practices to assist in determining the lowest responsible bidder 2[who is] , the bidder whose bid is determined to be2 most advantageous, price and other factors considered, 2[as appropriate, for the procurement of public works construction] or other agency-appropriate bid or proposal procurement standard2.]

     “Electronic construction procurement” means, for the purposes of State public works construction projects of State public contracting units, and for the purposes of local unit public works construction projects whenever the value of such a project exceeds $5,000,000, the use of computer technology and the Internet for the advertising and submission of public bids, providing notice of revisions or addenda to advertisements or bid documents, the receipt of proposals and quotations, and related practices to assist in determining the lowest responsible bidder or other agency-appropriate bid or proposal procurement standard.3

     2“Local public contracting unit” means a government entity that contracts for the procurement of goods, services, or the construction of public works pursuant to the “Public School Contracts Law,” N.J.S.18A:18A-1 et seq. 3[)]3 ; the “County College Contracts Law,” P.L.1982, c.189 (C.18A:64A-25.1 et seq.); and the “Local Public Contracts Law,” P.L.1971, c.198 (C.40A:11-1 et seq.).2

     “Public works construction” means any project that is subject to the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.), and is contracted for by a public contracting unit for the purposes of construction, reconstruction, demolition, alteration, custom fabrication, repair work, or maintenance work, including painting and decorating, done under contract and paid for, in whole or in part, out of the funds of a public body.  Public works construction also means construction, reconstruction, demolition, alteration, custom fabrication, repair work, or maintenance work, done on any property or premises, whether or not the work is paid for from public funds if at the time of the entering into the contract, the property or premises is owned by the government entity.

     2“State public contracting unit” means a government entity that contracts for the procurement of goods, services, or the construction of public works pursuant to the “State College Contracts Law,” P.L.1986, c.43 (C.18A:64-52 et seq.); P.L.2007, c.137 (C.52:18A-235 et seq.); and chapters 32, 33, and 34 of Title 52 of the Revised Statutes.2

 

     3[4. 2[Public] a.  Local public2 contracting units shall use an electronic procurement process for public works construction contracts whenever the project’s value exceeds $5,000,000, subject to the provisions of           P.L.     , c.     (C.       ) (pending before the Legislature as this bill).

     2b.   State public contracting units shall use an electronic procurement process for public works construction contracts when the project requires public advertisement, subject to the provisions of           P.L.     , c.     (C.       ) (pending before the Legislature as this bill

     c.2   The State Treasurer, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate regulations to effectuate the electronic procurement of public works construction, in consultation with the State Comptroller, the Commissioner of Community Affairs, the Commissioner of Education, and the Secretary of Higher Education.  The regulations shall set forth each of the steps the State Treasurer deems appropriate to be taken by each 2State or local2 public contracting unit for contracts that meet those criteria.  The regulations shall also set forth a procedure to be followed by a 1State or local1 public contracting unit for the awarding of a contract for the administration of the electronic procurement process.]3

 

     34.   A local public contracting unit, as defined in section 3 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill), shall use an electronic construction procurement process for public works construction contracts whenever the project’s value exceeds $5,000,000.  The electronic construction procurement process required to be used by local public contracting units pursuant to this section shall be the process developed by the Director of the Division of Local Government Services in the Department of Community Affairs by regulations promulgated for the electronic procurement practices authorized in the “Local Unit Electronic Procurement Act,” P.L.2018, c.156 (C.40A:11-4.7 et al.).3

 

      35.   a.  A State public contracting unit, as defined in section 3 of P.L.     , c.         (C.       ) (pending before the Legislature as this bill), shall use an electronic construction procurement process for public works construction contracts whenever the project requires public advertisement, subject to the provisions of  P.L.     , c.     (C.       ) (pending before the Legislature as this bill).

     b.    The State Treasurer, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate regulations to effectuate the electronic procurement of public works construction by the State.  The regulations shall set forth procedures to be followed by each State public contracting unit for contracts that meet those criteria as deemed appropriate by the State Treasurer.  The regulations shall also set forth a procedure to be followed by a State public contracting unit for the awarding of a contract for the administration of the electronic procurement process.3

 

     3[5.] 6.3  a.  The regulations 3[adopted] promulgated by the State Treasurer3 pursuant to section 3[4] 53 of P.L.    , c.  (C.    ) (pending before the Legislature as this bill) shall require that contracts to be awarded for 3State3 public works construction 3projects3 pursuant to the provisions of P.L.    , c.        (C.    ) (pending before the Legislature as this bill) contain the following bidding components:

     (1)  general conditions of the contract;

     (2) plans and specifications of the public works construction project;

     (3)  competitive bidding for the contract, if appropriate;

     (4)  2[prequalification] classification2 of firms submitting bids;

     (5) statement of corporate ownership of the entity or entities submitting bids;

     (6)  bid bond and performance bond security;

     (7)  execution of the contract;

     (8)  certification of financial ability to complete work;

     (9)  commencement of work;

     (10)  1[single-prime bids;

     (11)]1  prevailing wage mandate;

     1[(12)] 2[111] (11)2 acknowledgement of addenda;

     1[(13)] 2[121] (12)2 naming of prime subcontractors;

     1[(14)] 2[131] (13)2 specified alternates;

     1[(15)] 2[141 explicit retainage amount disclosed;

     1[(16)] 151] (14)2 non-collusion affidavit; and

     1[(17)] 2[161] (15)2 political contribution disclosure.

     b.    The State Treasurer shall also promulgate a bid proposal form to be used by contractors or vendors bidding for work under P.L.    , c.                  (C.         ) (pending before the Legislature as this bill).

     c.     The regulations shall require that a contractor or vendor seeking a contract for public works construction pursuant to P.L.    , c.        (C.    ) (pending before the Legislature as this bill) be classified with the Division of Property Management and Construction in the Department of 1the1 Treasury 1, or be prequalified by the Department of Transportation, New Jersey Transit, or the New Jersey Turnpike Authority,1 prior to submitting a bid.

 

     3[6.] 7.3  The regulations 3[adopted] promulgated by the State Treasurer3 pursuant to section 3[4] 53 of P.L.  , c.   (C.   ) (pending before the Legislature as this bill) shall require that electronic procurement processes meet the following requirements:

     a.     five years of use by a public contracting unit to secure electronic bids;

     b.    allow public contracting units to advertise bids and distribute bidding documents including plans and specifications;

     c.     be a closed loop system that allows contractors, vendors, and bidders, to receive bid solicitations and documentation, as well as submit bids electronically;

     d.    provide a digital lockbox that ensures bid information cannot be accessed by a third party before the bid deadline, including an electronic bidding servicer or the State;

     e.     allow bids to be encrypted upon submission and when in the digital lockbox;

     f.     use digital signature technology and provide for identity verification;

     g.    allow for electronic bid validation;

     h.    allow bids to be 2[edited or]2 withdrawn 2and resubmitted2 by the vendor or bidder at any point up to the published bid deadline;

     i.     allow addenda to be issued electronically with addenda automatically applied to the online bid form;

     j.     provide capabilities to create and edit templates of bid forms;

     k.    provide the means for the State to require data types, including but not limited to numeric prices;

     l.     calculate extensions for contractors, bidders or vendors based on price and quality when applicable;

     m.   alert contractors, vendors, and bidders of missing required data;

     n.    provide email notification to contractors, vendors, and bidders of issuance of bid advertisement and addenda;

     o.    provide commodity 2or classification2 codes 2as required by the contracting agency2 to allow for targeted notifications to contractors, vendors, and bidders;

     p.    provide system implementation services and training to public contracting units at no cost; and

     q.    offer scheduled training webinars for contractors, vendors, and bidders at no cost.

 

     3[7.] 8.3  a.  The regulations promulgated by the State Treasurer pursuant to section 3[4] 53 of P.L.   , c.    (C.             ) (pending before the Legislature as this bill) shall include, but not be limited to, practices that, notwithstanding any other law to the contrary:

     (1)   convert the current statutory, regulatory, and policy procedures related to sealed bidding to an electronic procurement environment;

     (2)   authorize public contracting units to accept commercial standards for electronic forms of bid security; and

     (3)   establish minimum standards that shall be met by systems and services that provide and administer electronic procurement processes.

     b.  The State Treasurer shall also consult with: the Attorney General to develop safeguards to protect against collusion and bid rigging; the Division of Purchase and Property 2and the Division of Property Management and Construction2 in the Department of the Treasury to develop practices used for electronic procurement; and the Office of Information Technology in, but not of, the Department of the Treasury, to ensure the privacy and security of electronic transactions.

     c.  Notwithstanding any law, rule, or regulation to the contrary, plans and specifications for public works construction contracts that require the seal and signature of a professional engineer, architect, or land surveyor may be included in an electronic file used for electronic procurement as long as the original document from which the electronic file is derived contains a physical or electronic seal and signature as otherwise required by law.  If the State Board of Engineers and Land Surveyors and the New Jersey State Board of Architects adopt rules to permit digital seals and signatures, those rules shall supersede this subsection.

 

     3[8.] 9.3     Notwithstanding any provisions of chapters 32, 33, and 34 of Title 52 of the Revised Statutes to the contrary, the State, and any agency or instrumentality of the State, shall use electronic procurement processes for public works construction contracts whenever the 2[project’s value exceeds $5,000,000,] project requires public advertisement pursuant to section 7 of P.L.1954, c.48 (C.52:34-12),2 in accordance with the provisions of P.L.    , c.     (C.          ) (pending before the Legislature as this bill).

 

     3[9.] 10.3  Notwithstanding any provisions of the “Public School Contracts Law,” N.J.S.18A:18A-1 et seq. to the contrary, a board of education shall use electronic procurement processes for public works construction contracts whenever the project’s value exceeds $5,000,000, 3[in accordance with] pursuant to3 the 3[provisions] requirements3 of 3section 4 of3 P.L.   , c.  (C.      ) (pending before the Legislature as this bill).  3A board of education shall not incur any costs or fees related to the use of the electronic procurement process required by this section, including, but not limited to, any cost or fee related to the use or purchase of any required equipment or software.3

 

     3[10.] 11.Notwithstanding any provisions of the “State College Contracts Law,” P.L.1986, c.43 (C.18A:64-52 et seq.) to the contrary, a State college shall use electronic procurement processes for public works construction contracts whenever the 2[project’s value exceeds $5,000,000] project requires public advertisement2, in accordance with the provisions of           P.L.    , c.     (C.          ) (pending before the Legislature as this bill).

 

     3[11.] 12.3  Notwithstanding any provisions of the “County College Contracts Law,” P.L.1982, c.189 (C.18A:64A-25.1 et seq.) to the contrary, a county college shall use electronic procurement processes for public works construction contracts whenever the project’s value exceeds $5,000,000, 3[in accordance with] pursuant to3 the 3[provisions] requirements3 of 3section 4 of3 P.L.    , c.     (C.          ) (pending before the Legislature as this bill).  3A county college shall shall not incur any costs or fees related to the use of the electronic procurement process required by this section, including, but not limited to, any cost or fee related to the use or purchase of any required equipment or software.3

 

     3[12.] 13.Notwithstanding any provisions of P.L.2007, c.137 (C.52:18A-235 et seq.) to the contrary, the development authority shall use electronic procurement processes for public works construction contracts whenever the 2[project’s value exceeds $5,000,000] project requires public advertisement2, in accordance with the provisions of P.L.   , c.  (C.       ) (pending before the Legislature as this bill).

 

     3[13.] 14.3  Notwithstanding any provisions of the “Local Public Contracts Law,” P.L.1971, c.198 (C.40A:11-1 et seq.) to the contrary, a contracting unit shall use electronic procurement processes for public works construction contracts whenever the project’s value exceeds $5,000,000, 3[subject] pursuant3 to the 3[provisions] requirements3 of 3section 4 of3 P.L.     , c.   (C.      ) (pending before the Legislature as this bill).  3A contracting unit shall not incur any costs or fees related to the use of the electronic procurement process required by this section, including, but not limited to, any cost or fee related to the use or purchase of any required equipment or software.3

 

     3[14.] 15.3  This act shall take effect on the first day of the 2[sixth] thirteenth2 month next following enactment.