N.J. Admin. Code § 17:12-1A.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 17:12-1A.2 - Exceptions to advertised procurement procedures

(a) All contracts issued by the Division shall be effected through advertised procurement procedures, except for the following types of contracts:

1. Contracts between State agencies or between State agencies and quasi-State agencies where one qualified agency can provide services to meet specified needs of another agency, including the transactions between using agencies and the designated Central Non-Profit Agency pursuant to 30:6-23 et seq. and Executive Order No. 67 (2005) and between using agencies and the Department of Corrections' Bureau of State Use Industries/DEPTCOR pursuant to 30:4-95;

2. Purchase orders issued or awarded under the provisions of the Division's Delegated Purchasing Authority program pursuant to the provisions of (b) below;

3. Contracts awarded by the Division upon approval by the State Treasurer to waive the public advertisement requirement, pursuant to the provisions of (c) below;

4. Cooperative agreements with one or more other states, or political subdivisions thereof or of New Jersey, or with a nationally recognized and accepted cooperative procurement entity in which other states participate, pursuant to the provisions of N.J.A.C. 17:12-1A.3; or

5. Contracts issued by the Division that allow the use of Federal procurement program contractors, including those with Federal supply schedule contracts issued by the Federal General Services Administration, pursuant to the provisions of 17:12-1A.5.

(b) Delegated Purchasing Authority purchases. State using agencies may make purchases pursuant to their assigned Delegated Purchasing Authority under the conditions set forth at (b)1 through 6 below, with provision for exception as set forth at (b)7 below. Records of all Delegated Purchasing Authority purchases shall be maintained by State agencies pursuant to each agency's record retention schedule.

1. The purchase does not exceed the formal advertised bidding threshold established at 52:25-23 or 52:34-7, or the adjusted amount established under the provisions of 52:34-7.1, and therefore does not require formal, advertised, sealed bidding.

2. The using agency's anticipated fiscal year volume for a qualifying item or service is no greater than the formal advertised bidding threshold amount set forth in (b)1 above.

3. The purchase is one that cannot be made through a State contract, the State Distribution and Support Services Unit, the Department of Corrections' Bureau of State Use Industries/DEPTCOR, or the Central Non-profit Agency (CNA).

4. The purchase has not been divided to circumvent the dollar limit imposed.

5. The purchase is one that cannot be made through a State contract, the State Distribution and Support Services Unit, the Department of Corrections' Bureau of State Use Industries/DEPTCOR, or the Central Non-profit Agency (CNA).

6. Should violations of Delegated Purchasing Authority provisions be verified, the Director may rescind or reduce the level of Delegated Purchasing Authority granted the offending State agency.

7. As established at N.J.S.A. 52:25-23.d, through written order or pursuant to a written request from a State agency, the Director may authorize a State agency to undertake an advertised procurement in excess of the amount delegated to the agency pursuant to N.J.S.A. 52:25-23, but less than $ 1,000,000 or the amount stated at N.J.S.A. 52:25-23.d, when the procurement is limited to the needs of the specific agency under the following conditions:

i. When the Director has determined that such purchases or contracts are for the procurement of goods or services that are unique to the operations of that particular using agency and are not common or similar to goods or services used by other State agencies and, therefore, not suitable for leveraging with other State agency procurements;

ii. When a public exigency exists, such as when a public health emergency, pursuant to the Emergency Health Powers Act or a state of emergency has been declared by the Governor and is in effect;

iii. The advertised procurement shall be conducted in accordance with statutes, regulations and policies governing State procurement;

iv. The Director shall designate a person within the Division to assist the State agency with the advertised procurement;

v. Under no circumstances shall the State agency proceed with the advertised procurement until the Director has given the agency written authorization to proceed; and

vi. The State agency shall maintain a record of each contract awarded by the agency, including proper proof that the contract was duly advertised and achieved competition, which shall be available for audit by the Division.

(c) Waiver of Advertising procurements. In accordance with the provisions of N.J.S.A. 52:34-8, contracting for goods and/or services in excess of the competitive bidding threshold established at N.J.S.A. 52:34-7, or the adjusted amount established under the provisions of N.J.S.A. 52:34-7.1, without public advertising, requires prior approval by the State Treasurer or the Treasurer's designee. Awards of waiver of advertising contracts shall be made in accordance with the procedures set forth in the Department of the Treasury Circular, Requests for Waivers of Advertising, as amended or re-designated, and may occur when the following conditions have been met:

1. The State agency initiating the Request for Waiver of Advertising procurement is addressing one or more of the following situations:

i. The services to be performed are of a technical and professional nature or are to be performed under the supervision of the Director and paid on a time basis;

ii. The purchase is of perishable foods or subsistence supplies;

iii. The transaction is a lease of office space, machinery, specialized equipment, building or real property, as needed for the State's business;

iv. The purchase is of supplies or services as to which proposal prices after advertising therefor were not reasonable or independently attained, provided that no negotiated purchase, contract, or agreement may be entered into unless each responsible bidder is notified, the negotiated price is lower than the lowest rejected price, and the price is the lowest negotiated price offered by any responsible bidder;

v. The purchase is from the Federal or any State government or any political subdivision thereof;

vi. A public exigency, that is, life, health, and/or other emergency that requires the immediate delivery of essential goods and/or performance of a service;

vii. Only one source of supply is available;

viii. More favorable terms can be obtained from a primary source of supply;

ix. The purchase is of styled or seasonal clothing;

x. The product(s) is (are) traded on a national commodity exchange and market fluctuations require immediate action;

xi. The purchase is of equipment of a technical nature and standardization of equipment and interchangeability of parts is in the public interest; and/or

xii. The purchase is of equipment, goods, or services related to homeland security and domestic preparedness and is paid for or reimbursed by Federal funds awarded by the U.S. Department of Homeland Security or other Federal agency, from vendors participating in a Federal procurement program, in consultation with the New Jersey Office of Homeland Security and Preparedness;

2. The Request for Waiver of Advertising packet includes documentation that establishes that informal competitive bidding was conducted if the procurement is addressing any situation(s) described in (c)1i, ii, iii, iv, viii, ix, xi, and/or xii above, and which includes written justification for any bypass of a lower bidder, or, as applicable to the sole source circumstance addressed at (c)1vii above, that due diligence was applied to determine that only one source of supply is available; and

3. The Treasurer has signed the Request for Waiver of Advertising document prepared and submitted by the State agency via the Division, except when oral authorization has been granted by the Treasurer, the Director, or their respective designees to address life, health, and/or other emergencies.

N.J. Admin. Code § 17:12-1A.2

Amended by 51 N.J.R. 141(a), effective 1/22/2019

Amended by 54 N.J.R. 1738(a), effective 9/6/2022