[HISTORY: Adopted by the Township Committee of the Township
of Middle as indicate in article histories. Amendments noted where
applicable.]
[Adopted 11-4-2019 by Ord. No. 1600-19]
Whereas:
A. To protect its financial investments and its substantial proprietary
interests as a market participant the Township of Middle has a compelling
interest in ensuring that all its contracts for public construction
projects that it undertakes for which it provides financial assistance
are performed promptly, at reasonable costs and with the highest degree
of quality by qualified reputable contractors and properly trained
and skilled workers and for these reasons shall implement this article;
and
B. The requirements of this article are intended to supplement, not
replace, existing contractor qualification and performance standards
or criteria currently required by the Local Public Contracts Law,
N.J.S.A. 40A:11-1 et seq., other contracting provisions as outlined
herein or other legislative obligations; and
C. The Township of Middle in order to fulfill its obligations as outlined
under N.J.S.A. 40A:11-1 and to ensure that contracts are awarded in
an atmosphere that invites competition and guards against favoritism,
improvidence, arbitrary conduct, extravagance, fraud, corruption,
and for the purpose of securing the best project work results possible
at the lowest cost practicable; and
D. The Township of Middle, pursuant to N.J.S.A. 40A:11-2(32), possesses
certain discretion in determining the "lowest responsible bidder"
and is entitled to specify the terms of the contract when its solicits
bids along with the criteria that bidders must meet in order to be
considered a "responsible" bidder pursuant to N.J.S.A. 40A:11-25 and
in the exercise of its proprietary duties and responsibilities so
as to ensure that bidders are qualified responsible firms that understand
the unique challenges affecting construction project delivery, including
but not limited to selecting subcontractors who have developed a satisfactory
record of past performance and adequate expertise, including a highly
trained workforce and an established record of successfully performing
work projects in a safe, timely, cost-effective and professional manner;
and
E. The Township of Middle solicits bids and/or proposals on many different
types of construction contracts with varying factors affecting each
procurement decision, and therefore must take into account the reasonable
benefits arising from each bid and in the exercise of and in order
to protect its proprietary interests due to the substantial taxpayer
investments involved in the public construction project(s); and
F. In order to protect its substantial proprietary interests the Township
of Middle has the inherent right to adopt procurement licensing and
economic development regulations/ordinances and so as to ensure and
pursuant to N.J.S.A. 40A:11-4 that the bidder has not had a prior
negative experience and so as to impose bid specifications designed
to ensure the performance capabilities of prospective bidders pursuant
to N.J.S.A. 40A:11-25; and
G. Due to the magnitude of the bid threshold herein and in order to
ensure the intended purpose of each of its work projects and that
financial responsibility is an important factor in determining the
lowest responsible bidder for public construction projects for which
it provides financial assistance, the Township of Middle, through
its contracting authority, shall require that every contractor and
subcontractor that bids on a public construction project contract
produce satisfactory evidence that the contractor/subcontractor is
properly registered and authorized to conduct the type of work to
be performed, including evidence that demonstrates that the entity
possesses, complies with, and maintains such compliance with all valid
licenses, registrations, ordinances and certificates required by the
federal, state, and county laws, as well as complying with any general
business license requirements of Township of Middle both prior to
the award and during the term of the contract; and
H. The Township of Middle, in order to make its determination as to
whether the bidding entity is responsible, shall confirm and substantiate
that the contract awardee(s) can reasonably be expected to complete
and perform under the contract specifications, and the Township of
Middle, pursuant to N.J.S.A. 40A:11-20 through 40A:11-22 et seq.,
may require the successful bidder to post a bid performance and/or
material bond(s) as well as the submission of documentation to verify
that the successful bidder has secured any insurance requirements
as required by applicable law and in conformance with said law, including
general liability insurance, workers' compensation insurance
and unemployment compensation insurance; and shall also determine
if the successful bidder can reasonably be expected to complete the
project within the time constraints as delineated in the request for
bids and other procurement documents; and shall through the submission
of documents from the bidder(s) and pursuant to N.J.S.A. 40A:11-20
through 40A:11-22 determine if the bidding entity maintains a satisfactory
level of past performance and integrity as well as possesses the financial,
supervisory, personnel, material, equipment, and other resources and
expertise required to satisfactorily meet that entity's contractual
responsibilities and obligations; and
I. In its determination of whether a bidder is "responsible," and to
avoid any risks to projects caused by unqualified firms or firms held
to be considered unsafe, the Township of Middle shall consider a bidder's
record of conformity with environmental, labor and health and safety
laws and regulations, including compliance with the requirements of
the U.S. Department of Labor's Occupational Safety and Health
Administration ("OSHA") and the New Jersey Department of Labor and
Workforce Development. In order to ensure that its workforce is compliant
with safe working procedures in order to protect the public, as well
as to ensure to the greatest extent possible that work site accidents,
injuries, etc., are minimized, shall affirm that any employee which
will be assigned to the work project at a minimum has completed at
least the ten-hour training course for safety standards established
by OSHA; and
J. Current challenges in the construction labor market relating to the
supply of skilled craft personnel exacerbate normal construction industry
challenges, including those impacting project cost, quality of work,
safety and scheduling parameters, which has been well documented by
numerous industry sources both nationally and locally for over a decade,
including Confronting the Skilled Workforce Shortage, Construction
Users Roundtable (June 2004); The Perfect Storm: Factors Come Together
Creating a Storm in the Construction Workforce. The Construction Executive
(June 2004); America's Construction Industry: Identifying and
Addressing Workforce Challenges, ETA/Business Relations Group Report
(Dec. 2004); Craft Labor Supply Outlook: 2005-2015, Construction Labor
Research Council (2004); 2013 U.S. Markets Construction Overview,
FMI Corporation (2012); 2013 Dodge Construction Outlook, McGraw-Hill
Construction Research & Analytics Group (Oct. 2012); Construction
Users Roundtable, Skilled Labor Shortage Risk Mitigation; WP-1101,
January 2015; Pam Hunter, Firms Anticipate More Worker Shortages Ahead,
Engineering News Record, p. 13, February 9, 2015; and
K. In addition to a growing demand and shrinking supply, one of the
key factors driving and further compounding construction industry
skill supply challenges has been the continuous decline in skill training
in this industry generally over the past several decades, a fact documented
by the U.S. Commerce Department; L. Huang, Robert E. Chapman, and
David T. Butry, Metrics and Tools for Measuring Construction Productivity;
Technical and Empirical Considerations, U.S. Department of Commerce,
National Institute of Standards and Technology, Office of Applied
Economics, p. 23 (September 2009); and
L. The growing need of meeting skilled labor demands and the general
decline of a pool of trained workers produces conditions that increase
the likelihood of contractors and subcontractors deploying unskilled,
untrained workers to construction job sites, including persons who
receive little or no adequate safety training and, consequently, due
to the inherent dangers that exist within the construction industry
pose serious risks of injury to themselves, their coworkers and the
general public, while also undermining important cost factors, as
well as the scheduling goals of capital projects; and
M. Leading organizations in the construction industry, including trade
associations representing project owners such as the Construction
Users Roundtable, have repeatedly issued strong recommendations to
parties purchasing construction services for large capital projects
that, due to persistent, acute labor supply challenges, contractors
and subcontractors should be prequalified on the basis of craft labor
training to protect the project owner's financial and proprietary
interests by ensuring that such firms have an adequate supply of trained,
skilled craft personnel to perform the project; Confronting the Skilled
Workforce Shortage, Construction Users Roundtable (June 2004); Construction
Users Roundtable, Skilled Labor Shortage Risk Mitigation, WP-1101,
January 2015; and
N. In seeking to address and remediate issues of construction skill
shortages and the problems they cause for the industry including safety
risks, the United States Congress passed the Fitzgerald Act, Pub.
L. No. 75-308, 560 Stat. 664, H.R. REP> No. 75-945 (the National Apprenticeship
Act), which created a system in which workers could be properly trained
in construction skills and safety procedures through registered, formal
apprenticeship training programs that meet established qualification,
safety and performance standards and that such programs registered
and approved by the United States Department of Labor ("US DOL"),
stresses the need to expand industry apprenticeship programs as a
means of building the pool of skilled labor, especially in the construction
industry, U.S. Department's of Labor, Commerce, Educations, and
Health and Human Resources, What Works in Job Training: A Synthesis
of the Evidence 8 (July 22, 2014); and
O. The courts have recognized that states, counties and local jurisdictions,
acting to protect substantial proprietary interests, have the right
to stop procurement, licensing and economic development legislation
and/or to impose contract bid specifications designed to ensure the
performance capabilities of all prospective bidders and their employees,
including apprenticeship training requirements and other craft labor
qualifications; see Bldg. & Const. Trades Council of the Metro.
Dist. V. Assoc. Builders & Contractors of Mass/R.I., Inc., 407
U.S. 218 (1993); Associates Builders & Contractors v. Mich. Dep't
of Labor & Econ. Growth, 543 F.3d 275 (6th Cir. 2008); Hotel Employees
& Restaurant Emps. Union, Local 57 v. Sage Hospitality Res., LLC,
390 F2d 206 (3rd Cir. 2004); Associated Builders & Contractors,
Inc., New Castle County-F. Supp. 3d, 2015 WL 7257916 (D. Del. Nov.
17, 2015); and
P. Due to the critical impact that skilled construction craft labor
has on public construction projects due to the limited availability
of skilled construction craft labor, as well as potential imminent
skill shortages, and most significantly due to the magnitude of the
threshold amount herein and so as to insure that the work project
will be completed in a timely and safe manner in order to protect
its proprietary interests and the interest of the taxpayer funding
of such projects, it is necessary to require contractors and subcontractors
to participate in established, formal apprenticeship training programs
for the purpose of promoting successful, cost-effective project delivery;
and
Q. The most efficient means that bidders and their subcontractors have
in order to ensure a highly trained, safety conscious and skilled
workforce, as well as to provide for a safe project delivery is to
require that bidders utilize an apprenticeship training program, registered
with and approved by the US DOL, or any state agency having equal
or higher requirements as the US DOL, for each separate apprenticeable
occupation for which it employs employees in compliance with the performance
standards of enrollment and graduation under 29 CFR Part 29, 29.5
and 29.6. The bidder shall be further required to demonstrate and
affirm in its contractor certification form that it is in compliance
with 29 CFR 29 et al., as well as the provisions of N.J.S.A. 34:20-1
et seq., the Construction Industry Independent Contractor Act; and
R. As a condition of performing work on a public construction project
and/or construction projects subject to this article, all bidders,
pursuant to N.J.S.A. 40A:11-26, shall submit a completed contractor
responsibility certification provided by Township of Middle at the
time the bidder submits its bid pursuant to N.J.S.A. 40:11-20 through
40:11-27 et seq. Moreover, and pursuant to N.J.S.A. 40:11-27, all
bidders must respond to the contractor responsibility certification
under oath. In addition, all bidders shall further simultaneously
submit with its contractor responsibility certification and, pursuant
to N.J.S.A. 40:11-16(a) and (b) and N.J.S.A. 40:11-23-2(d), a subcontractor
list containing the names of any proposed contractors required to
be listed in the bid, including the subcontractor's address and
a description of their work expertise; and
S. Should it be established, after awarding a contract that any of the
information required by this article and provided by the bidding entity
to the Township of Middle was falsified or inaccurate, the bidder
will be subject to the penalties as outlined under N.J.S.A. 40:11-27
through 40:11-34 et al., and the contract shall be voided; and
T. The following definitions shall govern within this article:
FINANCIAL ASSISTANCE
Something of economic value provided by the Township of Middle
to a private entity, expressly articulated or identified, in writing,
by the Township of Middle, including, but not limited to real property,
loans, loan guarantees, grants, tax exemptions, tax abatements, tax
incentive financing, and rent subsidies or reductions approved, funded,
authorized, administered or provided by the local government entity
or any of its instruments in connection with construction.
PUBLIC CONSTRUCTION CONTRACT
Any public construction project for the construction, reconstruction,
demolition, alteration or renovation of buildings at the public expense,
required to be bid under the Local Public Contracts Law, and which requires that workers be paid the prevailing
wage determined by the Commissioner of Labor pursuant to the provisions
of the applicable statutory language.
A. Due to the magnitude of the threshold amount as stated herein, the
Township of Middle recognizes that there is a need to ensure that
work on public works projects, maintenance work and contracts for
public works are performed by responsible, qualified firms that maintain
the capacity, expertise, personnel, equipment and other qualifications
and resources necessary to successfully perform public contracts in
a timely, reliable and cost-effective manner.
B. To effectuate the purpose of selecting responsible contractors for
public contracts and to protect the substantial taxpayer investments
in such contracts, prospective contractors and subcontractors shall
be required to meet pre-established, clearly defined, minimum standards
relating to contractor responsibility, competency, experience, and
the adequacy of resources.
C. Further, due to the critical impact that skilled construction craft
labor has on public works projects, and due to the limited availability
of skilled construction craft labor, it is necessary to require contractors
and subcontractors to participate in bona fide apprenticeship training
programs in the trades and classifications in which they employ construction
craft personnel.
D. Therefore, the Township of Middle shall require compliance with the
provisions of this article by business entities seeking to provide
services to the Township of Middle as specified herein. The requirements
of this article are intended to supplement, not replace, existing
contract qualification and performance standards or criteria currently
required by law, public policy or contracting documents. However,
in the event that any of the provisions of this article conflict with
any law, public policy or contracting documents, or is held to be
invalid and unenforceable by a court of competent jurisdiction, the
remaining provisions shall remain in full force and effect.
A. All contractors and subcontractors of any tier that perform work
on projects valued at or above $250,000, including any public works
project, N.J.S.A. 40A:11-2(34), maintenance work, or contracts for
public works, shall meet the requirements of this article.
B. All firms engaged in contracts covered by this article shall be qualified,
responsible contractors and subcontractors that have sufficient capabilities
in all respects to successfully perform contracts on which they are
engaged and will continue to have sufficient capability for the duration
of the contract in question, including the necessary experience, equipment,
technical skills and qualifications, as well as the adequate organizational,
financial and personnel resources necessary to perform the contract.
Firms bidding on public contracts shall also be required to have a
satisfactory past performance record and a satisfactory record of
law compliance, business integrity and business ethics.
A. As a condition of performing work on a contract subject to this article,
a general contractor, construction manager or contractor seeking the
award of a contract shall submit a contractor responsibility certification
at the time it submits its bid for the contract work. The failure
to submit the contractor responsibility certification shall disqualify
a contractor from performing the contract work.
B. The contractor responsibility certification shall be completed on
a form provided by the contracting unit, as defined at N.J.S.A. 40A:11-2(1),
governing body, as defined at N.J.S.A. 40A:11-2(2), or other procurement
entity or agency, and shall reference the project for which a bid
is being submitted by name and contract or project number.
C. In the contractor responsibility certification form, the construction
manager, general contractor or contractor shall confirm and verify
its past performance and work history and its current qualifications
and performance capabilities.
D. In the contractor responsibility certification form, the construction
manager, general contractor or contractor will, pursuant to the obligation
and criteria as set forth in N.J.S.A. 40A:11-16 and 40A:11-23.2(d),
provide a list of its subcontractors.
E. Notwithstanding, N.J.S.A. 40A:11-16 in the contractor responsibility
certification, the firm shall further provide subcontractor responsibility
certifications for all identified subcontractors within 10 days of
receiving the notice of intent to award contract or within 10 days
of being awarded a contract.
F. In the contractor responsibility certification form, the firm shall
attest to the following:
(1) The firm has not been disbarred or suspended by any federal, state
or local government agency or authority in the past three years or
has not defaulted on any project in the past three years.
(2) The firm has not had any type of business, contracting or trade license,
registration and other certification revoked or suspended in the past
three years.
(3) The firm and its owners have not been convicted of any crime relating
to the contracting business by a final decision of a court of law
or government body in the past seven years.
(4) The firm has not, within the past three years, been found in violation
of any law applicable to its contracting business, including, but
not limited to, licensing laws, tax laws, prompt payment laws, wage
and hour laws, prevailing wage laws, environmental laws with others,
where the result of such violation was the payment of a fine, back
pay damages or any other type of penalty in the amount of $3,000.
(5) The firm will utilize skilled workers who have successfully participated
in and completed an apprenticeship program or other training program
certified by the US DOL and in compliance with 29 CFR 29. A questionnaire
attached to the contractor certification form will provide for the
attestation of compliance.
(6) The firm shall notify the contracting unit, governing body, or other
procurement entity or agency within seven days of any material changes
to all matters attested to in this certification.
(7) The firm understands that the contractor responsibility certification
requirements shall be executed by a person who has sufficient knowledge
to address all matters in the certification and shall include an attestation
stating, under the penalty of perjury, that the information submitted
is true, complete and accurate.
(8) The contractor and subcontractor responsibility certification forms
attached hereto shall be used to verify that all bidders meet the
requirements of this article.
(9) After a notice of intent to award contract has been issued, the Township
of Middle shall undertake a review process for a period of at least
14 days to determine whether the prospective awardee is a qualified,
responsible contractor in accordance with the requirements of this
article and other applicable laws and regulations and has the resources
and capabilities to successfully perform the contract.
(10)
If the Township of Middle determines that a contractor or subcontractor
responsibility certification contains false or misleading material
information that was provided knowingly or with reckless disregard
for the truth, the bidder shall be subject to the penalties as outlined
under N.J.S.A. 40A:11-34.
(11)
All certification forms will be available for public inspection
through a publicly accessible website or other comparable means within
30 days after a notice of intent to award contract has been issued.
(12)
The Township of Middle may conduct any additional inquiries
to verify that the prospective awardee and its subcontractors have
the technical qualifications and performance capabilities necessary
to successfully perform the contract and that the firms have a sufficient
record of law compliance and business integrity to justify the award
of a public construction project contract. In conducting such inquiries,
the Township of Middle may seek relevant information from the firm,
its prior clients or customers, its subcontractors or any other relevant
source.
(13)
If at the conclusion of its internal review, the Township of
Middle determines that all responsibility certifications have been
properly completed and executed and concludes that the qualifications,
background and responsibility of the prospective awardee and the firms
on its subcontractor list are satisfactory, it shall issue a written
contractor responsibility determination verifying that the prospective
awardee is a qualified, responsible contractor. In the event a firm
is determined to be nonresponsible, the Township of Middle shall advise
the firm of its finding, in writing, and proceed to conduct a responsibility
review of the next lowest, responsive bidder or, if necessary, rebid
the project.