Note To §§1-7
P.L. 1997, CHAPTER 399, approved January 19, 1998
Senate, No. 2194 (Second Reprint)
An Act concerning policies and procedures for contracting for certain professional services by State agencies, and supplementing P.L.1954, c.48 (C.52:34-6 et seq.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. It is the policy of this State that State contracts for architectural, engineering and land surveying services shall be publicly announced prior to being awarded and that contracts for these services shall be negotiated on the basis of demonstrated competence and qualifications for the type of professional services required and at fair and reasonable compensation.
2. As used in this act:
"agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality created by a principal department and any independent State authority, commission, instrumentality or agency, which is authorized by law to contract for professional architectural, engineering or land surveying services;
"compensation" means the basis of payment by an agency for professional architectural, engineering or land surveying services;
"professional firm" means any individual, firm, partnership, corporation, association or other legal entity permitted by law to 1[practice architecture,] provide professional architectural,1 engineering, or land surveying 1services1 in this State;
"professional architectural, engineering and land surveying services" means those services, including planning, environmental, and construction inspection services required for the development and construction of projects, within the scope of practice of architecture, professional engineering or professional land surveying as defined by the laws of this State or those performed by an architect, professional engineer or professional land surveyor in connection with his professional employment practice.
3. A professional firm which wishes to be considered qualified to provide professional architectural, engineering, or land surveying services to an agency seeking to negotiate a contract or agreement for the performance of such services shall file or shall have filed with the agency a current statement of qualifications and supporting data. Such a statement may be filed at any time during a calendar year. The content of any such statement shall conform to such regulations with respect thereto as the State Treasurer, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate. For the purposes of this section and section 5 of this act, no statement which shall have been filed more than 1[one year] two years1 prior to the publication of an advertisement pursuant to the provisions of section 4 of this act shall be deemed to be a current statement with respect to qualification of the firm which shall have filed the statement to provide professional architectural, engineering, or land surveying services under any contract or agreement of which notice is given through that advertisement.
A statement of qualifications and supporting data filed with an agency under this section shall be a public record for all purposes of P.L.1963, c.73 (C.47:1A-1 et seq.).
4. Notwithstanding the provisions of sections 2 through 4 of P.L.1954, c.48 (C.52:34-7 through 52:34-9), a contract or agreement with an agency for the procurement of professional architectural, engineering, or land surveying services shall be 1[made, negotiated, or awarded only after public advertisement of notice that such a contract or agreement is to be made or awarded] publicly advertised prior to the solicitation of proposals or expressions of interest from interested firms1. To the extent consistent with the purposes and provisions of this section, the 1[notice] advertisement1 shall conform to the requirements applicable under subsections (a) and (b) of section 7 of P.L.1954, c.48 (C.52:34-12) 1[to an advertisement for bids] or may be publicly advertised through electronic means1. The advertisement shall include a statement of the criteria 1[, established as provided under subsection b. of section 5 of this act,]1 by which the agency seeking to procure those professional services shall 1evaluate the technical qualifications of professional firms and1 determine the order of preference to be used in designating the firms most highly qualified to perform the services; this statement shall either set forth explicitly and in full the terms of those criteria or identify them by reference to the regulation or regulations in which those criteria shall have been promulgated as required by subsection c. of 1[that]1 section 5 1of this act1. In addition, the advertisement shall include notice that professional firms wishing to be considered for selection as a potential provider of such services in connection with a proposed project must have submitted to the agency a current statement of qualifications and supporting data as prescribed in section 3 of this act.
5. a. In the procurement of architectural, engineering and land surveying services, no agency shall make, negotiate, or award a contract or agreement for the performance of such services with or to any professional firm which has not filed with the agency a current statement of qualifications and supporting data as prescribed under section 3 of this act.
b. For each proposed project, an agency shall evaluate current statements of qualifications and supporting data on file with the agency. 1[If desired, the] The1 agency may solicit 1[statements of qualifications] proposals or expressions of interest1 unique to the specific project which would in narrative form outline design concepts and proposed methods of approach to the assignment. The agency shall select, in order of preference, based upon 1the1 criteria 1[established by the agency, no fewer than] included in the advertisement required by section 4 of this act, at least1 three professional firms deemed to be the most highly qualified to provide the services required 1, except that the agency may select fewer professional firms if fewer such firms responded to the solicitation or meet the qualifications required for the project1.
c. An agency which intends or expects to make, negotiate or award a contract or agreement for the procurement of professional architectural, engineering, or land surveying services shall, before publishing an advertisement of notice with respect to any such contract or agreement, have adopted by regulation and have promulgated, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the criteria by which it shall with respect to any such contract or agreement make the selection of qualified firms as prescribed by subsection b. of this section. The provisions of this subsection shall not be construed to require the adoption by an agency of regulations regarding the selection criteria to be applicable with respect to a particular contract if such regulations were previously promulgated and remain in effect with respect to such a contract.
6. 2[An] Once the top three or more ranked firms have been identified, each firm, at the request of the agency, shall submit a fee proposal. The firms shall not be told of their ranking position at that time. Using the three fee proposals to provide a general guideline, an2 agency shall negotiate a contract with the most 1technically1 qualified professional firm for architectural, engineering or land surveying services at compensation which the agency determines to be fair and reasonable to the State of New Jersey. In making this 1[decision] determination1, the agency shall take into account the estimated value of the services to be rendered and the scope, complexity, and professional nature thereof. Should the agency be unable to negotiate a satisfactory contract with the professional firm considered to be the most qualified at a fee the agency determines to be fair and reasonable, negotiations with that professional firm shall be formally terminated. The agency shall then undertake negotiations with the second most qualified professional firm. Failing accord with the second most qualified professional firm, the agency shall formally terminate negotiations. The agency shall then undertake negotiations with the third most qualified professional firm. Should the agency be unable to negotiate a satisfactory contract with any of the selected professional firms, it shall select additional professional firms in order of their competence and qualifications and it shall continue negotiations in accordance with this section until an agreement is reached.
7. 1[The] Notwithstanding the provisions of section 2 of P.L.1954, c.48 (C.52:34-7) to the contrary, the1 provisions of this act shall only apply to contracts for architectural, engineering and land surveying services in excess of $25,000. Nothing in this act shall preclude a State agency from using procurement processes other than those prescribed herein if those processes have been approved by the federal government 1or other State statute1 or if an emergency has been declared by the chief executive officer of the agency.
8. This act shall take effect 1[immediately] on the 360th day after enactment but an agency may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act1.
Provides that State contracts for architectural, engineering and land surveying services would be subject to a process of competitive negotiation and would not be publicly bid.