[HISTORY: Adopted by the Mayor and Borough
Council of the Borough of Berlin as indicated in article histories.
Amendments noted where applicable.]
[Adopted 10-5-2006 by Ord. No. 2006-17]
A. Purpose and intent. Although professional services
contracts and certain other contracts for goods and services are exempt
from the competitive bidding requirements of the Local Public Contracts
Law, N.J.S.A. 40A:11-1 et seq., the governing body deems it appropriate
and consistent with the provisions of recently enacted New Jersey
Legislation, now codified at N.J.S.A. 19:44A-20.1 et seq., to henceforth
award such contracts through a competitive, quality-based, fair and
open process, unless a specific determination to the contrary is made
by the governing body.
B. Process for award of professional services and other
no-bid contracts. The Borough of Berlin, or any agency or instrumentality
thereof, shall not enter into a contract, including a professional
services contract or such other contract which is exempt from public
bidding requirements having an anticipated value in excess of $17,500,
as determined by the Borough of Berlin or any agency or instrumentality,
with a business entity, except through a contract that is awarded
pursuant to a fair and open process if during the preceding one-year
period that business entity has made a contribution that is reportable
by the recipient under N.J.S.A. 19:44A-1 et seq., to any municipal
committee of a political party if a member of that political party
is in office as a member of the governing body when the contract is
awarded or to any candidate committee of any person serving in an
elected public office of the Borough of Berlin when the contract is
awarded. The fair and open process shall be quality-based and shall
be as follows:
(1) Professional services may be awarded by virtue of
a publicly advertised request for proposals (RFP) which will be issued
as one document for those appointments which are made on an annual
basis, such as, but not limited to, the positions of: Borough Attorney,
Borough Engineer, Borough Planner, Planning Board Attorney, Planning
Board Engineer, Zoning Board Attorney, Zoning Board Engineer, and
such other statutory and/or ordinance public positions.
(2) For said positions, no contract shall be awarded unless
and until the positions are:
(a) Publicly advertised in newspapers or on the Internet
Web site maintained by the Borough in sufficient time to give notice
in advance of the solicitation for the contracts;
(b) Awarded under a process that provides for public solicitation
of proposals and qualifications including the following:
[1]
Experience and reputation in the field;
[2]
Knowledge of the subject matter of the services
to be provided to the Borough;
[3]
Knowledge of the Borough, its affairs and operations;
[4]
Availability to accommodate any required meetings
of the Borough;
[6]
Compliance with the minimum qualifications established
by the Borough for the position;
[7]
Other factors determined to be in the best interest
of the Borough.
(c) Awarded and disclosed under criteria established in
writing by the Borough of Berlin prior to the solicitation of proposals
or qualifications as set forth in this ordinance;
(d) Publicly announced when awarded; and as to those RFPs
which prove to be unsuccessful, the Borough Clerk shall retain a copy
of same on file for a period of not less than 60 days.
(3) For contracts which arise on an occasional basis,
such as appraisals needed for the acquisition of land and/or open
space, as well as title searches, surveying, and similar work associated
with same; and comparable assignments, such as planning services needed
for Master Plan updates, appraisals, special counsel, special project
engineer contracts, etc., professional services contracts may be awarded
without following the foregoing provisions, so long as:
(a) The anticipated value does not exceed the $17,500
threshold set forth above; and
(b) The Borough Administrator makes every effort to solicit
at least two proposals for said work.
C. Review of RFPs by review committee. A review committee
shall be established by the Mayor consisting of not less than two
Council members to prepare, process and evaluate any RFP issued pursuant
to the professional services contracting procedures set forth above.
The review committee shall evaluate the respective qualifications
and/or proposals, taking into consideration the designated qualifications
and/or performance criteria, experience, reputation of vendor, quality
of services, quoted fee and other relevant factors in making a recommendation
of award to the governing body; and the Borough Administrator may,
in his/her sole discretion, conduct negotiations with qualified vendors
after receipt of proposals, in order to achieve the best possible
contract terms and conditions for the Borough and its taxpayers. No
contract shall be awarded, however, unless same is authorized by resolution
duly adopted in public session by the governing body.
D. Contribution statement by professional business entity.
(1) Prior to awarding any contract or agreement to procure
services, other than through a fair and open process, including banking
or insurance coverage services, with any professional business entity,
the Borough or any of its purchasing agents or agencies, as the case
may be, shall obtain a sworn statement from the professional business
entity made under penalty of perjury that the bidder or offeror has
not made a contribution in violation of this article;
[Amended 8-5-2013 by Ord.
No. 2013-10]
(2) The professional business entity shall have a continuing
duty to report any violations of this article that may occur during
the negotiation or duration of a contract. The certification required
under this subsection shall be made prior to entry into the contract
or agreement with the Borough and shall be in addition to any other
certifications that may be required by any other provision of law.
E. Contracts issued without use of the RFP process.
(1) In circumstances where the governing body or Borough
Administrator determines that the use of the RFP process is not appropriate,
such as, but not limited to, contracts with other government agencies,
and agreements with public utilities, the Administrator shall use
his/her best efforts to obtain at least two quotations for the work
and shall require the contractor to fully comply with the provisions
of N.J.S.A. et seq., N.J.S.A. 19:44A-22, and related statutes.
(2) No business entity which enters into negotiations
for or agree to any contract or agreement with the Borough of Berlin
or any department or agency thereof or of its independent authorities
for the rendition of professional, banking or insurance coverage services,
or any other consulting services, shall solicit or make any contribution
of money, or pledge of a contribution, including in-kind contributions,
to any Borough of Berlin municipal candidate or holder of the public
office having ultimate responsibility for the award of the contract,
or campaign committee supporting such candidate or officeholder, or
to any Berlin Borough party committee, between the time of first communications
between that business entity and the Borough regarding a specific
professional services agreement and the later of the termination of
negotiations or the completion of the contract or agreement.
F. Emergency exceptions. Notwithstanding the foregoing,
the governing body recognizes that the New Jersey Legislature has
provided for certain emergencies, and further recognizes that the
procedure outlined above might not be capable of being achieved in
the event of an emergency or other time constraints. Thus, should
a situation arise and time does not permit resort to this procedure,
and the immediate performance of services is necessary, then an award
for same may be made in accordance with the provisions of the Local
Public Contracts Law relating to emergency contracts, and such rules
and regulations as may be promulgated, from time to time, by the governing
body with regard to same. No such emergency contracts, however, may
be awarded without a resolution establishing a basis for the deviation
from the procedures outlined herein.