[Added 7-21-2022 by Ord. No. 2022:20]
A.
These rules are adopted by the contracting unit of Pennsauken Township
to establish requirements and procedures for the procurement of design-build
contracts and are intended to be consistent with the rules promulgated
by the Division of Community Affairs at N.J.A.C. 5:34-10.1 to -10.19.
Section 3 of P.L. 2021, c. 71 confers broad powers on the contracting
unit to enter into contracts for the "planning, designing and observing
the construction of the project or projects." This statutory authority
includes the procurement of design, construction, and other project-related
services in one contract when the contracting unit determines that
a single point of responsibility for a combination of these services
is in the best interests of a facilities project.
B.
These rules allow for the contracting unit to engage a design professional
(i.e., a licensed and prequalified design professional, or an employee
of the contracting unit licensed to provide architectural, engineering,
or surveying service), to assist the contracting unit, with developing
performance criteria and a scope of work statement that defines the
project and provide prospective design-builders with sufficient information
to ensure that the design meets the requirements of the contracting
unit.
C.
These rules provide for the contracting unit to select design-builders
according to the proposals that are the most advantageous to the contracting
unit, based upon a "best value selection" process premised on a combination
of cost and qualitative factors, with consideration given to price
at least equal to the consideration given to all other factors combined.
The rules provide for the following two-phase selection process:
(1)
The public advertisement of a request for qualifications (RFQ)
that describes the project, outlines the scope of work for the project
and solicits responses outlining the qualifications of bidders; and
(2)
The issuance of a request for proposals (RFP) to a "short list"
of bidders, selected on the basis of their responses to the RFQ, which
outlines the criteria to be used for selection and the weight that
will be given to each of these criteria in the evaluation process,
and which solicits technical and price proposals.
D.
These rules further provide for a technical review committee, comprised
of representatives of the contracting unit, the contracting unit's
project manager, and the contracting unit's authorized design
professional, to provide technical review and evaluation services,
including evaluating and ranking the qualifications of bidders during
the RFQ process and evaluating and scoring technical proposals submitted
to the contracting unit in response to an RFP.
E.
Design-build project delivery offers the potential for such benefits
as a shorter overall design and construction process, greater cost
reliability and reduced risk through enhanced project coordination.
In order to achieve such results, these rules provide the contracting
unit with the flexibility to adjust the design-build process, for
example, to vary the level of design in the initial design-build information
package and/or select and weight the qualitative factors to be addressed
in a technical proposal according to the specific needs and complexities
of the project.
As used in this article, the following terms shall have the
meanings indicated:
The adoption of a law, ordinance, or resolution by the State
of New Jersey, any of its political subdivisions, any authority created
by the Legislature of the State of New Jersey and any instrumentality
or agency of the State of New Jersey or of any of its political subdivisions,
authorizing the execution of a design-build contract.
Any selection process in which proposals contain both price
and qualitative components and award is based upon a combination of
price and qualitative considerations.
A government entity that enters into contract pursuant to
the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et
seq.), or the Township of Pennsauken.
The procedure used to develop and construct a project.
The entity, whether natural person, partnership, joint stock
company, corporation, trust, professional corporation, business association,
or other legal business entity or successor that provides licensed
and prequalified architectural, engineering, or surveying services
in accordance with R.S. 45:3-1 et seq., and P.L. 1938, c. 342 (C.
45:8-27 et seq.), and that shall be responsible for planning, designing
and observing the construction of the project or projects.
The delivery system used in public projects in which a licensed
and prequalified design professional or designated employee develops
the project design in its entirety; the contracting unit then solicits
bids and awards the contract to the lowest responsible bidder that
demonstrates the ability to complete the project specified in the
design.
A contract between a contracting unit and a design-builder
to provide labor, materials, and other construction services for a
public project. A design-build contract may be conditional upon subsequent
refinements in scope and price, and may permit the contracting unit
to make changes in the scope of the project without invalidating the
design-build contract.
The entity, whether natural person, partnership, joint-stock
company, corporation, trust, professional corporation, business association,
or other legal business entity or successor, that proposes to design
and construct any public project, who is registered pursuant to the
provisions of P.L.1999, c.238 (C.34:11-56.48 et seq.), and classified
by the New Jersey Division of Property Management and Construction
or the New Jersey Department of Transportation, where applicable,
to perform work on a design-build project.
The requirements for the first phase of the selection process,
and shall include, but not be limited to: specialized experience,
training certification of professional and field workforce, technical
competence, capacity to perform, safety modification rating, past
performance and other appropriate factors. Price shall only be considered
in the second phase of the selection process.
The governing body of the municipality, when the purchase
is to be made or the contract or agreement is to be entered into by,
or on behalf of, a municipality.
An offer to enter into a design-build contract.
A challenge to a decision, statement, action, or alleged
inaction of the contracting unit.
The process of listing responsive bidders in order of highest
to lowest total scores, based upon selection criteria set forth in
the RFQ and/or RFP.
The document issued by the contracting unit in the second
phase of a two-phase selection process that describes the procurement
process and forms the basis for the design-build proposals.
The document advertised by the contracting unit in the first
phase of the two-phase selection process that describes the project
in enough detail to allow potential bidders to determine if they wish
to compete for a design-build contract and that requests information
from bidders regarding the qualifications, experience, and organizational
structure of the bidder's proposed design-build team, which information
can be used by the contracting unit to select a short list of bidders
to compete for a design-build contract.
The administrator of the operations and procedures of the
selection process, whose activities shall include, but are not limited
to, scheduling of meetings, preparing agendas, recording scores, verifying
submittal information, preparing minutes of selection committee meetings,
and other similar administrative duties.
The narrowing of the field of bidders through the selection
of bidders who are evaluated on qualification factors other than price,
as indicated in the RFQ, and whose proposals are judged most advantageous
to the contracting unit in terms of qualifications other than price.
A written description included as part of the construction
documents, which sets forth the detailed technical and functional
characteristics of, or the discrete design for, an item of material,
equipment, or work to be incorporated into the project, or a requirement
of the work to be performed. A specification may include a statement
of any of the contracting unit's requirements and may provide
for inspection, testing, or the preparation of a construction item
before procurement. Specifications shall augment and complement the
drawings and plans prepared by the design-builder.
The document(s) submitted by bidders in response to an RFQ
that describes the qualifications and capabilities of the bidder and
its key team members to perform the scope of services to be included
in a design-build contract.
The fee paid to a design-builder by the contracting unit
to encourage competition.
A selection committee comprised of a representative of the
contracting unit, the contracting unit's project manager, and
the contracting unit's authorized design professional (i.e.,
design criteria architect) who are responsible for reviewing and evaluating
responses by bidders to an RFQ and RFP.
That portion of a design-build proposal which contains design
solutions and other qualitative factors that are provided in response
to an RFP.
A procurement process in which the first phase consists of
short listing, based on qualifications submitted in response to an
RFQ, and the second phase consists of the submission of price and
technical proposals in response to an RFP.
The New Jersey Uniform Construction Code, as set forth in
N.J.A.C. 5:23, and all applicable subcodes, as such codes are amended
from time to time.
A form of best value selection in which a percentage of evaluation
weight is preestablished for qualitative factors and for price, and
the award of a design-build contract is based upon the highest total
points awarded to a bidder.
All design and construction services performed by the design-builder
and its team, including providing all material, equipment, tools and
labor, necessary to complete the construction, as described in and
reasonably inferable from the construction documents and the design-build
contract.
A.
Any and all submissions made in response to any RFQ and any RFP are
subject to the provisions of the Open Public Records Act, P.L. 2001,
c. 404, 47:1A-1 et seq., and the exceptions from disclosure provided
therein.
B.
The design-builder shall notify the contracting unit prior to the
issuance of press releases and other public dissemination of information
concerning a project, and such shall acknowledge contracting unit
financing and assistance in the undertaking of the project.
A.
The design-builder shall make available records and accounts pertaining
to projects to the State Comptroller and the State Auditor in their
investigations, examinations and inspections of the activities related
to the financing and undertaking of projects. The design-builder shall
also cooperate, upon request, in sharing information with other state
or federal entities.
B.
The design-builder shall be responsible to keep and maintain all
of those records and accounts, including records and accounts of subcontractors
and subconsultants, for project activities as necessary in order to
evidence compliance with the Act and all applicable regulations and
contractual requirements. Such records shall be retained by the design-builder
for 10 years following substantial completion of a project, and any
additional period required for the resolution of litigation, claims,
or audit findings. Thereafter, those records shall be transferred
to the contracting unit, unless the contracting unit, in its sole
discretion, requests an earlier transfer of such records from the
design-builder to the contracting unit or another designated entity.
At any time, upon request of the contracting unit, the design-builder
shall make records relating to the design-build project available
to the contracting unit, within four business days of the request
for documents, at no cost to the contracting unit.
C.
In the event that any litigation, claim, audit, or request pursuant
to the Open Public Records Act, 47:1A-1 et seq., relating to the procurement
or the performance of work under the design-build contract is commenced
prior to expiration or termination of the design-build contract, all
records relating to the procurement and the contract shall be retained
until all litigation, claims, audit findings, document requests, and
related appeals, if any, have been resolved with finality.
Any firm or individual who makes, or causes to be made, a false,
deceptive, or fraudulent statement in its submittal in response to
the RFQ or RFP or in the course of any hearing, litigation, mediation,
or other proceeding may be disqualified from bidding, suspended, and/or
debarred, and may be subject to prosecution pursuant to applicable
law.
This article establishes the Technical Review Committee and
outlines its responsibilities for the evaluation and scoring of the
qualifications of bidders that have submitted responses to an RFQ,
and the evaluation and scoring of the technical proposals of bidders
that have submitted proposals in response to an RFP.
A.
When the design and construction of a project will be undertaken
pursuant to this chapter, the contracting unit will designate a Technical
Review Committee to review and evaluate responses by bidders to an
RFQ and RFP. The members of the Technical Review Committee shall consist
of a representative of the contracting unit, the contracting unit's
project manager, and the contracting unit's authorized design
professional (i.e., a licensed and prequalified design professional,
or an employee of the contracting unit licensed to provide architectural,
engineering, or surveying service). A member of the contracting unit
shall be appointed as selection coordinator and shall administer the
selection process and serve as selection coordinator for the Technical
Review Committee. The contracting unit's attorney may advise
the Technical Review Committee.
B.
Each member of the Technical Review Committee shall be responsible
for:
(1)
Independently evaluating and scoring the statements of qualifications
submitted by bidders in response to an RFQ; and
(2)
Evaluating and scoring, in consultation with the other members
of the Technical Review Committee, the technical proposals submitted
by bidders in accordance with the weighted criteria process set forth
in an RFP.
C.
The Technical Review Committee may use such advisors as it deems
necessary to give opinions on evaluating proposals. The names of such
advisors shall be included in the report submitted to the governing
body.
D.
Once the responses are received and the identity of the bidders is
ascertained, the members of the Technical Review Committee will be
given a list of all firms that submitted a bid. Each member of the
Technical Review Committee, prior to the evaluation of any submission,
shall execute a certification that he or she has no personal interest,
financial or familial, in any of the bidders to be evaluated, any
of the named subcontractors or subconsultants to the bidders, or any
of the principals, subsidiaries, or parent companies of such bidders.
A committee member or advisor shall be deemed to have a conflict of
interest if their review and evaluation of statements of qualifications
and statements of proposal would violate the Local Government Ethics
Law, N.J.S.A. 40A:9- 22.1 et seq., or the School Ethics Act, N.J.S.A.
18A:12-21 et seq. as applicable. Furthermore, should any of the Technical
Review Committee members indicate that a conflict or personal interest
exists once the identity of the bidders is revealed, that member shall
not serve on the Technical Review Committee. In the event that an
evaluation committee member is discovered to have a conflict, such
evaluation committee member will be removed from the selection committee
by the contracting unit. The conflicted committee member shall be
replaced with an appropriate person with sufficient knowledge and
expertise to review and evaluate statements of qualifications and
statements of proposal, if replacement with a new member is feasible
at the time of removal of the conflicted committee member, and such
replacement will not have an adverse impact on either the evaluation
process or the procurement schedule or process generally.
E.
The names of the members of the Technical Review Committee shall
be made public once the contract is awarded, pursuant to 52:34-10.3(c).
This article provides for the retention by the contracting unit
of design professional consultants to act in the contracting unit's
interests during the solicitation and award of design-build contracts
for projects; namely, a licensed and prequalified design professional
(i.e., design criteria architect), or an employee of the contracting
unit licensed to provide architectural, engineering, or surveying
service, to develop performance criteria and a scope of work statement
that defines the project and provides prospective design-builders
with sufficient information regarding the contracting unit's
requirements.
The contracting unit shall either appoint a licensed and prequalified
design professional, or designate an employee of the contracting unit
licensed to provide architectural, engineering, or surveying services,
to provide technical advice, construction review services, and professional
expertise on behalf of the contracting unit.
A.
A design-build information package shall be prepared by the contracting
unit, with the assistance of a design professional either on staff
of the contracting unit and/or the design criteria architect, develop
performance criteria and a scope of work statement that defines the
project and provides prospective design-builders with sufficient information
regarding the contracting unit's requirements, which include:
evaluation factor criteria and preliminary design documents, general
budget parameters, and general schedule or delivery requirements to
enable the design-builders to submit proposals which meet the contracting
unit's needs.
B.
Solicitations for each design-build contract shall include, but not
be limited to, the following:
(1)
The identity of the contracting unit which shall award the design-build
contract;
(2)
The procedures to be followed for submitting proposals, the
criteria for evaluation of proposals and their relative weight, and
the procedures for making awards, including a reference to the requirements
of sections 2 through 9 of P.L. 2021, c. 71 (C. 52:35B-2 through C.
52:35B-9) and the regulations of the contracting unit;
(3)
The proposed terms and conditions for the design-build contract;
(4)
A description of the drawings, specifications, or other submittals
to be submitted with the proposal, with guidance as to the form and
level of completeness of the drawings, specifications, or submittals
that shall be acceptable;
(5)
A schedule for planned commencement and completion of the design-build
contract;
(6)
Budget limits for the design-build contract, if any;
(7)
Affirmative action, disadvantaged business or set-aside goals
or requirements for the design-build contract, in accordance with
the requirements of all rules, regulations, standards, or policies
adopted by the contracting unit;
(8)
The required qualifications of the design-builder;
(9)
Requirements for contractors and the design professional to
have performance bonds, payment bonds, and insurance, and to meet
all the qualifications of the Division of Property Management and
Construction in the Department of the Treasury or the New Jersey Department
of Transportation, where applicable; and
(10)
A statement that the prospective design-builder is in compliance
with all applicable laws, including the "New Jersey Prevailing Wage
Act," P.L. 1963, c. 150 (C. 34:11-56.25 et seq.), "The Public Works
Contractor Registration Act," P.L. 1999, c. 238 (C. 34:11-56.48 et
seq.), and the "Construction Industry Independent Contractor Act,"
P.L. 2007, c. 114 (C. 34:20-1 et seq.).
C.
The solicitation may include any other information which the contracting
unit in its discretion chooses to supply, including without limitation,
surveys, soils reports, drawings or models of existing structures,
environmental studies, photographs or references to public records.
D.
The terms and conditions for the payment of a stipend, if a stipend
is offered.
E.
Notice of solicitations shall be advertised for a minimum of 30 calendar
days in the same manner in which proposals generally are solicited
for public projects.
F.
The solicitation must be crafted in such a way as to encourage free,
fair and open competition without unfairly or illegally discriminating
against otherwise capable design-builders. No solicitation may:
(1)
Require any standard, restriction, condition, or limitation
not directly related to the project's purpose, function or activity;
(2)
Discriminate on the basis of race, religion, sex, national origin,
creed, color, ancestry, age, marital status, affectional or sexual
orientation, familial status, liability for service in the Armed Forces
of the United States, or nationality;
(3)
Require in the scope of work statement the furnishing of any
"brand name" without allowing an equivalent, except that proprietary
goods or services are permitted only if the need for same is directly
related to the performance, completion, or undertaking of the project;
(4)
Require a financial statement to be provided with the statement
of qualifications; or
(5)
Require that the bidder, or any key team member identified by
the bidder, be a resident of, or have their place of business located
in, the county or municipality in which the contract will be awarded
or performed.
Design professional consultants who assist the contracting unit
in the preparation of an RFQ or an RFP will not be permitted to participate
as a bidder or sub-consultant to a bidder submitting a statement of
qualifications in response to the RFQ or a proposal in response to
the RFP.
This article establishes the contracting unit's criteria
and procedures for the use of a two-phase design-build selection process.
In the first phase, the contracting unit initially ranks bidders based
on statements of qualifications and then selects a short list of bidders
to receive the RFP based on the ranking. In the second phase, the
contracting unit receives the submission of price and technical proposals
in response to the RFP and awards the design-build contract to the
bidder whose proposal receives the highest overall score.
The contracting unit may establish appropriate and special prequalification
requirements as may be necessary in order to ensure competitive technical
and price proposals, or as may be dictated by the unique or specialized
nature of the work to be performed under the design-build contract.
A.
The contracting unit shall publicly advertise an RFQ. The RFQ shall
contain the following information:
(1)
A general description of the project;
(2)
The scope of work;
(3)
The minimum qualification requirements for bidders;
(4)
A request for the submission of a statement of qualifications
which will describe the qualifications of prospective bidders;
(5)
The phase-one evaluation factors to be used in the determination
of a short list of bidders;
(6)
The technical evaluation factors to be utilized in the second
phase of the selection process;
(7)
A statement of the number of bidders to be selected for the
short list; and
(8)
Any other requirements, as determined in the sole discretion
of the contracting unit.
B.
Bidders desiring to submit technical and price proposals shall submit
a statement of qualifications and an organizational chart of the bidder
and its key team members and the other information required by the
RFQ.
A.
The Technical Review Committee shall review and evaluate the responsive
submissions of bidders and determine the relative ability of each
such bidder to perform the work under the design-build contract. Each
solicitation for proposals of qualification shall establish the relative
importance assigned to the evaluation factors and subfactors to be
considered. The evaluation of the qualifications of each bidder may
include, but need not be limited to, consideration of the following
factors:
(1)
Specialized experience and technical competence;
(2)
Experience of the prospective bidder and proposed design-build
team on projects of similar size, scope, and complexity;
(3)
Experience of the prospective bidder and proposed design-build
team on design-build projects of similar size, scope, and complexity
from project completed within the last five years;
(4)
Training certification of professional and field workforce;
(5)
Experience of key team members on projects of similar size,
scope and complexity;
(6)
Experience of the key team members on design-build projects
of similar size, scope and complexity;
(7)
Principal location of the company;
(8)
Capability to perform;
(9)
Safety modification rating;
(10)
Past performance of the individual members of the design-builder's
team in their respective capacities;
(11)
An organizational chart of the bidder, and the key team members
of the proposed design-build team;
(12)
A certification that the bidder, along with the bidder's
proposed design-build team, including individual key team members,
is not debarred from awards of federal contracts for public work as
defined in N.J.S.A. 52:32-44.1;
(13)
Documentation that the bidder, and to the extent necessary for
the project, key team members and other subcontractors have a current
DPMC design-build classification and such other DPMC classifications
and ratings issued pursuant to N.J.A.C. 17:19-1 et seq. as may be
necessary for the project;
(14)
A listing of all public works projects for which a contracting
unit has made a determination of prior negative experience with respect
to the design-builder or members of its proposed design-build team
within the past five years pursuant to N.J.S.A. 40A:11-4 or N.J.S.A.
18A:18A-4;
(15)
Measures taken by the bidder and members of the proposed design-build
team to promote workforce diversity with respect to women and minorities;
(16)
Any other pertinent information necessary to establish the qualifications
of the prospective bidder and proposed design-build team to undertake
the design-build contract;
(17)
Other appropriate technical and qualification factors as determined
by the Department of Community Affairs, where applicable.
B.
At the conclusion of the first phase of the selection process, the
technical review committee shall develop a short list of the bidders
whose qualifications are deemed most advantageous to the contracting
unit in terms of qualification factors other than price, as indicated
in the RFQ. A solicitation for proposals of qualification shall state
the maximum number of design-builders that are to be selected to submit
second proposals. The maximum number specified in the solicitation
shall be at least two and shall not exceed six. The bidders selected
for the short list shall be invited to participate in the second phase
of the process. The short list will be published on the contracting
unit's website at www.twp.pennsauken.nj.us and all bidders that
supplied submissions will be notified in writing of the bidders selected
for the short list.
A.
Only bidders that have been short listed during the RFQ process will
be permitted to submit a proposal in response to an RFP.
B.
The date fixed for receiving the proposals shall be no fewer than
14 days later than the request for proposals issued by the contracting
unit. The date fixed for receipt of the proposals shall not fall on
a Monday or any day directly following a state or federal holiday.
C.
The RFP includes, without limitation:
(1)
The design-build information package;
(2)
Technical and price proposal forms;
(3)
The design-build contract;
(4)
Instructions to bidders;
(5)
The criteria for evaluation of proposals prepared by a design
professional or designated employee as defined in section 10 of P.L.
2021, c. 71 (C. 18A:64-76.5) and their relative weight, including
a minimum of 50% consideration based on the cost of the bid;
(6)
A description of the drawings, specifications, or other submittals
to be submitted with the technical proposal, with guidance as to the
form and level of completeness of the drawings, specifications or
submittals that will be acceptable;
(7)
Budget limits for the work;
(8)
Requirements for bid bonds, performance bonds, payment bonds,
and insurance;
(9)
Schedule requirements, as set forth in the RFQ;
(10)
Amount of the stipend, if any; and
(11)
The documents required to be submitted upon the notice of award.
A.
The Technical Review Committee shall issue an RFP for the project
to the bidders who were short listed in the phase one RFQ process.
B.
Proposals shall be submitted to the design professional or designated
employee retained by the contracting unit. No proposal shall be considered
until certification is issued by the design professional or designated
employee retained by the contracting unit that the proposal is consistent
with the evaluation factors.
C.
The Technical Review Committee may provide for a preproposal conference
at a designated date, time, and location at which bidders that have
been short listed may ask questions and seek clarification concerning
any of the information, data, or documents contained within the RFP.
Preproposal conferences may be mandatory or optional, as stated in
the RFP.
D.
The RFP shall require the submission of a proposal in two separate
parts: a technical proposal and a price proposal. The technical and
price proposals shall be evaluated separately, in accordance with
the evaluation factors and process set forth in the RFP. The evaluation
factors may include, but need not be limited to, design concepts,
management approach, key personnel, quality assurance and control,
proposed technical solutions, and the other factors, as applicable.
E.
The technical proposal shall include design concepts or proposed
solutions to requirements addressed within the scope of work, preliminary
design drawings, outline specifications, technical reports, calculations,
permit requirements, a management plan, schedule and other information
and/or data requested in the RFP.
F.
Proposals shall identify each person to whom the design-builder proposes
to delegate obligations under the design-build contract. Persons so
identified shall not be replaced without the approval of the contracting
unit. Each design-build team shall include a licensed or prequalified
design professional independent from the contracting unit's licensed
architect or engineer. The licensed or prequalified design professional
shall be named in any proposal submitted to the contracting unit.
G.
The price proposal shall be submitted in a separate sealed envelope
and shall provide a price for all design services and construction
work required to complete construction of the project. Proposals shall
establish the cost of the design-build contract which shall not be
exceeded if the proposal is accepted without change. Afterward, the
maximum cost in the proposal may be converted to fixed prices by negotiated
agreement between the contracting unit and the design-builder. The
envelope containing the price proposal shall indicate clearly that
it is the price proposal and shall identify the bidder's name,
project number, and any other information required by the RFP. The
price proposals shall remain sealed until expiration of the time established
for making proposals as set forth in the solicitation.
(1)
Each price proposal shall be accompanied by a bid bond as specified
in the RFP.
(2)
The Technical Review Committee shall examine all documents required
to be submitted with the technical proposal for completeness and conformity
with the requirements of the RFP. If the Technical Review Committee
determines that a technical proposal received must be rejected as
nonresponsive, it shall notify the bidder in writing of the rejection
of its proposal and the reason for the rejection within 10 business
days of its receipt, unless there are circumstances that require additional
time.
(3)
The submission of technical and price proposals is conclusive
evidence that the bidder has completely reviewed the RFP and the design-build
contract and fully understands and agrees to all of the requirements,
terms, conditions, revisions, and/or addenda set forth therein.
(4)
A statement that the bidder is in compliance with all laws applicable
to the project, including the "New Jersey Prevailing Wage Act," P.L.
1963, c. 150 (C. 34:11-56.25 et seq.), "The Public Works Contractor
Registration Act," P.L. 1999, c. 238 (C. 34:11-56.48 et seq.), and
the "Construction Industry Independent Contractor Act," P.L. 2007,
c. 114 (C. 34:20-1 et seq.).
(5)
The Technical Review Committee, meeting together, may conduct
interviews with each bidder prior to ranking the bidders. The Technical
Review Committee shall score the technical proposals using the criteria
and methodology set forth in the request for proposals, with consideration
of price at least equal to the consideration given to all other factors,
and make an award recommendation to the governing body of the contracting
unit.
(6)
The contracting unit shall separately evaluate the submitted
technical and price proposals against the published factors and weighting
to arrive at a composite score. A minimum of 50% consideration shall
be based on the cost of the price proposal. After the proposals have
been evaluated, a report shall be prepared concerning the Technical
Review Committee's proposal evaluations and award recommendation.
The report shall list the names of all bidders submitting a proposal
and shall summarize each statement of proposal submitted. The report
shall rank the bidders in order of evaluation, clearly state the reasons
for the committee's award recommendation, and detail the terms,
conditions, scope of services, fees and other matters to be incorporated
into the contract. The bidder with the highest overall score shall
be recommended to the contracting unit's governing body for an
award of the design-build contract. The report shall be made available
to the public at least 48 hours prior to the governing body's
award of the contract or when made available to the governing body,
whichever is sooner, except that the details of each bidders'
respective technical proposals shall not be disclosed.
(7)
Before awarding a design-build contract, the governing body
shall determine that there was adequate competition for the contract.
The Technical Review Committee shall have considered at least two
complete and responsive proposals before the governing body can proceed
with awarding the contract.
(8)
The governing body of the contracting unit shall award the contract
in accordance with section 32 of P.L. 2021, c. 71 (C. 40A:11-59).
(9)
Acceptance of a proposal shall be made by written notice to
the design-builder which submitted the accepted proposal.
(10)
The contracting unit shall make public the design-builder to
be awarded the contract for the project.
A.
At the same time notice of acceptance is delivered, the contracting
unit shall also inform, in writing, the other design-builders that
their proposals were not accepted.
B.
Proposals received after the submission date and time prescribed
in the advertisement and RFP shall be rejected.
C.
The governing body shall have the right to reject any and all proposals
for excessive cost, insufficient competition, or any other reason,
in accordance with law, except for the purpose of evading the provisions
and policies of sections 26 through 33 of P.L. 2021, c. 71 (C. 40A:11-53
through C. 40A:11-60). The contracting unit shall solicit new proposals
using the same evaluation factors, budget constraints, or qualifications,
unless there has been a material change in circumstances affecting
the needs of the contracting unit, including but not limited to an
environmental issue, natural disaster, state of emergency, or unforeseen
fiscal constraint.
D.
The governing body may cancel a notice of award at any time before
the execution of the design-build contract, if the contracting unit
deems it advisable to do so in the interest of the state or the public
interest.
E.
A governing body may not award a design-build contract unless the
technical review committee evaluated at least two complete and responsive
proposals from design-builders.
F.
Proposals may be withdrawn for any reason at any time prior to acceptance.
G.
When a design-builder receives notification from the governing body
that the proposal, which it has submitted, has not been accepted,
the design-builder may, within 30 days, request to review the design-build
proposals submitted, the Technical Review Committee evaluation scores
from the selection process, and the final recommendation of award
document. The design-builder shall submit this request in writing.
A.
At the discretion of the contracting unit, a stipend may be paid,
based upon the project size and type, which shall not exceed 3% of
the project's estimated cost, to eligible bidders who submit
responsive but unsuccessful proposals in response to the RFP. The
decision to do so shall be based on the contracting unit's analysis
of the estimated proposal development costs, the complexity of the
project, and the anticipated degree of competition during the procurement
process. The purpose of the stipend is to encourage the submission
of proposals, and to increase competition by offering to compensate
responsive, but unsuccessful bidders, for a portion of the estimated
proposal development costs.
B.
The terms and conditions for the payment of a stipend shall be included
in the RFP.
C.
Whether or not a stipend is provided to an unsuccessful bidder, submission
of a technical proposal by a bidder shall indicate the bidder's
agreement and consent that the work produced within that bidder's
technical proposal shall be provided to the contracting unit for its
use in connection with the design-build contract awarded, or in connection
with a subsequent procurement, without obligation to pay any additional
compensation to the unsuccessful bidder.
D.
Bidders submitting a response to the RFP which is determined by the
contracting unit in its sole discretion to be nonresponsive or irregular,
will not be entitled to a stipend.
A.
Except as may otherwise be specifically provided in this section,
the engagement of a design-builder shall be subject to approval by
the contracting unit and may only be executed in accordance with the
contracting unit's procedures.
B.
Prior to the execution of a design-build contract, the bidder that
was provided a notice of award shall exist in the legal status in
which it will perform its responsibilities pursuant to the design-build
contract.
C.
The contracting unit will send the successful design-builder a notice
of award letter. The notice of award letter shall contain a list of
the additional documents required to be submitted by the design-builder
with the executed contract. The notice of award will specify the time
within which the executed contract and required documents must be
returned.
D.
Each payment and each performance bond must be in an amount at least
equal to the total contract price.
(1)
All bonds shall comply with the requirements of this chapter
and relevant state statutes. All bonds submitted by the design-builder
shall be issued only in accordance with 2A:44-143 through 147 to the
design-builder and shall indicate aggregate bonding limits.
(2)
Bonds shall be issued only by companies authorized to transact
business in the State of New Jersey.
E.
If the design-builder fails to return the executed contract and performance
and payment bonds and other required documents within the time specified
by the contracting unit, the contracting unit may take whatever action
is appropriate and authorized by law including, but not limited to,
withdrawing or canceling the notice of award to the delinquent bidder
and awarding the contract to the next-highest ranked bidder; cancelling
the procurement; or proceeding to recover under the bid bond submitted
with the price proposal.
F.
All contracts executed pursuant to this chapter shall provide for,
among other things, termination for the convenience of the contracting
unit and for cause.
G.
No agreement is valid or binding on the contracting unit unless and
until it is executed by an appropriately authorized representative
of the contracting unit. Any work performed prior to the execution
of the contract by the contracting unit is voluntary, and represents
a gift to the contracting unit. In the event the notice of award is
cancelled or withdrawn, the bidder is not entitled to any remuneration
for any work performed prior to the execution of the contract.
H.
Upon the successful bidder's submission of all required documentation
or materials as specified in the Notice of Award, and the contracting
unit's acceptance of such documentation, the contracting unit
will execute the design-build contract and provide the successful
bidder with the fully-executed design-build contract.
I.
Pursuant to N.J.S.A. 52:15C-10, for such contracts valued over $2.5M
but less than $12.5M, contracting units must provide post-award notification
for any contract within 20 days of the award.
A.
This article sets forth the procedures that govern protests and administrative
hearings regarding design-build procurements, including protests challenging
the form of the RFQ or the RFP, the ranking of bidders during the
RFQ phase, and the scoring of technical proposals of bidders.
B.
For purposes of this article, protests of the type described are
not contested cases subject to the requirements of the Administrative
Procedure Act, 52:14B-1 et seq.
A.
Administrative hearings before the contracting unit may include the
following subject matter and may be requested by the following entities:
(1)
RFQ process or documents: A bidder that intends to submit or
has submitted a statement of qualifications for the first phase of
the design-build procurement, may request an informal hearing before
the contracting unit to protest the RFQ process or documents by submitting
a written protest to the contracting unit at least five business days
prior to the date and time scheduled for opening of the statements
of qualifications, setting forth in detail the grounds for such protest.
The protest must contain all legal and factual arguments, materials
or other documents that support the protestor's position, and
must indicate whether the protestor requests an informal hearing.
The contracting unit may deny any protest that is filed less than
five business days prior to the scheduled opening of statements of
qualifications, or that fails to provide the specific reasons for
and arguments supporting the protest.
(2)
RFP process or documents: A bidder that intends to submit or
has submitted proposals for the second phase of the design-build procurement
may request an informal hearing before the contracting unit to protest
the RFP process or documents by submitting a written protest to the
contracting unit at least five business days prior to the date and
time scheduled for opening of the technical proposals, setting forth
in detail the grounds for such protest. The protest must contain all
legal and factual arguments, materials or other documents that support
the protestor's position, and must indicate whether the protestor
requests an informal hearing. The contracting unit may deny any protest
that is filed less than five business days prior to the scheduled
opening of technical proposals, or that fails to provide the specific
reasons for and arguments supporting the protest.
(3)
Technical and price proposal scoring: A bidder protesting the
scoring of its technical and/or price proposals, or those of another
bidder, may request an informal hearing before the contracting unit
to protest the scoring of technical and/or price proposals, by submitting
a written protest to the contracting unit setting forth the specific
grounds for challenging such scorings. The protest must contain all
factual and legal arguments, materials or other documents that support
the protestor's position and a statement as to whether the protestor
requests the opportunity for an informal hearing. The protestor must
submit a written protest within five business days of the public announcement
of the bidders' scores. The contracting unit may deny any such
protest that is filed more than five business days after the public
announcement of the bidder's scores, or any protest that fails
to provide the specific reasons for and arguments supporting the protest.
(4)
Award of contract: A bidder that has submitted a proposal in
response to an RFQ or RFP may request an informal hearing before the
contracting unit to protest the award of a contract to another bidder
by submitting to the contracting unit a written protest, setting forth
the specific grounds for challenging such award, within five business
days of the public announcement of the award. The protest must contain
all factual and legal arguments, materials or other documents that
support the protestor's position and a statement as to whether
the protestor requests an informal hearing. The contracting unit may
deny any protest that is filed more than five business days after
the public announcement of the award, or any protest that fails to
provide the specific reasons for and arguments supporting the protest.
A.
Hearing procedures shall be as follows:
(1)
The contracting unit, in its sole discretion, shall determine
whether to grant an informal hearing regarding any protest. Informal
hearings are for fact-finding purposes for the benefit of the contracting
unit and the contracting unit shall have the sole discretion as to
whether to hold an informal hearing. Alternatively, the contracting
unit may determine that sufficient information already exists in the
record so that a decision may be made without a hearing, and the contracting
unit may waive the hearing and issue a final agency decision accordingly.
In the event that the contracting unit determines that a hearing is
not necessary, a written decision will be issued by the contracting
unit within five business days of receipt of all documents related
to the protest.
(2)
Informal hearings will be held, where feasible, within 14 business
days of the receipt of the request. The hearing officer(s) shall issue
a final written decision within 30 calendar days of the conclusion
of the hearing unless, due to the circumstances of the hearing, a
greater time is required. For all protests of the RFQ or RFP processes
and documents, the written decision will issue prior to the opening
of statements of qualification or proposals, respectively. If a decision
based upon a protest results in a modification of the aforesaid process
or documents, such decision shall be conveyed to all potential bidders
by addendum.
(3)
For matters of dispute that may occur relative to the activities
of the contracting unit, if formal hearings are warranted, such hearings
will be held by an administrative law judge pursuant to the Administrative
Procedure Act, 52:14B-1 et seq. and 52:14F-1 et seq., as applicable.
A.
The design-builder shall contract for architectural or engineering
services as defined by and in accordance with R.S. 45:3-1 et seq.,
P.L. 1938, c. 342 (C. 45:8-27 et seq.), and all other applicable licensing
statutes.
B.
The design-build team shall include a licensed or prequalified design
professional independent from the contracting unit's licensed
architect or engineer, for the technical integrity of final project
design, constructability, extensions of the design, and operability
and maintainability, pursuant to the design-build information package
and/or in the design-build contract. Persons so identified shall not
be replaced without the approval of the contracting unit.
C.
The role of the design-builder may include, but need not be limited
to, the management and control of quality, cost and the integrated
schedule for design, permit applications, material and equipment acquisition,
construction, training for operation and maintenance, inspection and
close out of the project.
D.
The contracting unit's review and acceptance of interim or completed
design submissions and/or construction documents is for the purpose
of mutually establishing a conformed set of contract documents compatible
with the requirements of the work. The contracting unit's review
and acceptance of interim or completed design submissions or construction
documents shall not be deemed to transfer design liability from the
design-builder to the contracting unit.
Proposals shall establish the cost of the design-build contract
which shall not be exceeded if the proposal is accepted without change.
Afterward, the maximum cost in the proposal may be converted to fixed
prices by negotiated agreement between the contracting unit and the
design-builder. If a design-build contract is procured as a GMP contract,
the design-builder shall be responsible for cost overruns in excess
of the GMP, as properly adjusted, pursuant to the terms of the design-build
contract. If the design-builder's cost of work and fee are less
than the GMP as properly adjusted, the cost savings shall accrue to
the contracting unit, unless the terms are specified otherwise.
A.
No substitutions or deletions of key team members may be made during
the selection process or after award of the contract, without prior
written approval from the contracting unit.
B.
Unauthorized changes to a bidder's key team members who were
specifically identified in the response to the RFP at any time during
the selection process may result in the elimination of the bidder
from further consideration.
A.
Every design-builder awarded a design-build contract procured pursuant
to these regulations will be subject to evaluation in accordance with
this section. The performance evaluation will consider the design-builder's
performance as a contractor in the following categories: quality of
work; scheduling; management; cost control and change orders; safety
and industrial hygiene; small business goals; and close-out.
B.
The design-builder's performance will be evaluated periodically
during the progress of the project. The evaluation will be performed
by a reviewer with direct involvement in the management or supervision
for the project.
C.
The design-builder's performance evaluations will be used by
the contracting unit in evaluating and scoring bidders as to their
prior experience on contracting unit projects, in accordance with
the provisions of these regulations.
D.
Design-builders shall be evaluated on their construction performance
with respect to the various evaluation categories using the following
evaluation ratings:
(1)
Outstanding (O) or 100% — far exceeds the contract requirements
by consistently exhibiting excellent performance. Always meets, and
almost always exceeds the contract requirements;
(2)
Very good (VG) or 90% — often exceeds the contract requirements
and frequently provides a high level of performance. Typically meets
and often exceeds the contract requirements;
(3)
Satisfactory (S) or 80% — provides an acceptable level
of performance consistently meeting the contract requirements;
(4)
Marginal (M) or 70% — performs slightly below the requirements
of the contract, meeting the contract requirements on an intermittent
basis; and
(5)
Unsatisfactory (U) or 60% — fails to meet important contract
requirements, resulting in a negative impact on the entire project.
E.
The numerical scores established in Subsection D may be subject to special adjustment factors for certain categories deemed by the contracting unit to be particularly critical to contractor performance, with such special adjustment factors specified in the RFP. The numerical ratings for each category shall be tabulated to arrive at an overall numerical evaluation score for each performance evaluation.
