SENATE, No. 2194

 

STATE OF NEW JERSEY

 

INTRODUCED JUNE 12, 1997

 

 

By Senator MARTIN

 

 

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 practice architecture, engineering, or land surveying 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 one year 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 made, negotiated, or awarded only after public advertisement of notice that such a contract or agreement is to be made or awarded. To the extent consistent with the purposes and provisions of this section, the notice shall conform to the requirements applicable under subsections (a) and (b) of section 7 of P.L.1954, c.48 (C.52:34-12) to an advertisement for bids. The advertisement shall include a statement of the criteria, established as provided under subsection b. of section 5 of this act, by which the agency seeking to procure those professional services shall 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 that section 5. 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. If desired, the agency may solicit statements of qualifications 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 criteria established by the agency, no fewer than three professional firms deemed to be the most highly qualified to provide the services required.

    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. An agency shall negotiate a contract with the most 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 decision, 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. The 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 or if an emergency has been declared by the chief executive officer of the agency.

 

    8. This act shall take effect immediately.

 

 

STATEMENT

 

    This bill provides that the selection of persons to perform architectural, engineering, and land surveying services, including planning, environmental, and construction inspection services, required for the development and construction of projects (hereafter, "professional services") for the State shall be based upon professional qualification. The provisions of the bill continue the current exemption of contracts for such professional services from the regular competitive bidding process, but establish certain uniform statutory procedures to govern both the qualification of professional service firms wishing to provide such services and the awarding of such contracts to firms so determined to be qualified.

    The provisions of the bill may be summarized as follows:

    (1) A State agency that undertakes a project requiring the employment of a firm to provide professional services (as defined above) in connection with the project is to negotiate any agreement for the performance of those services with the most qualified firm.

    (2) For each proposed project, an agency shall select, in order of preference and based upon criteria established by the agency, at least three professional firms deemed to be the most highly qualified to provide the services required. This preference-ordered designation of qualified firms is to be based on an evaluation of statements of qualifications and supporting data which professional service providers have filed with the agency within the preceding year, and "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." The State Treasurer is to specify by regulation the content of these statements. The agency may solicit narrative statements of qualifications unique to the specific project which would outline design concepts and proposed methods of approach to the assignment.

    (3) State agencies are required to advertise their intention to award a contract for professional services. The advertisement is to conform, so far as consistent with the use of a qualification-based selection process, to the standard form of notice applicable to an advertisement for bids. The advertisement is to include a statement of criteria by which the order of qualification preference is determined. Before publishing such an advertisement, the agency is to adopt and promulgate the criteria by which it shall make the selection of qualified firms; this requirement, however, "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."

    (4) The contract which an agency negotiates with the "most qualified professional firm" as prescribed under (1) above shall be "at compensation which the agency determines to be fair and reasonable to the State of New Jersey", taking into account "the estimated value of the services to be rendered and the scope, complexity, and professional nature thereof." If these negotiations fail, negotiations are to be attempted with the next most qualified firm, and so on.

    The bill does not apply to professional services contracts of $25,000 or less.

 

 

                             

 

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.