N.J. Admin. Code § 17:49-7.3

Current through Register Vol. 56, No. 23, December 2, 2024

Section 17:49-7.3 - Public notice and hearing requirements

(a) A request for qualification shall include the following:

1. A request for qualification, soliciting response from private entities for participation in a public-private partnership project shall be advertised by a school district a minimum of 45 days prior to the required date of receipt.

2. The advertisement of the request for qualification shall be published on the official Internet website of the school district and at least one newspaper with Statewide circulation.

3. A request for qualification shall clearly set forth the requirements for a public-private partnership agreement pursuant to N.J.A.C. 17:49-7.5(a).

4. Prior to issuing the request for qualification, the school district shall ensure there is a public need for the project, including a determination that the district can demonstrate to the satisfaction of the Commissioner of Education and the Chief Executive Officer of the Schools Development Authority that a school facility is necessary due to overcrowding or is in need of replacement, and that the project is consistent with the school district's long-range facilities plan pursuant to N.J.S.A. 18A:7G-4, or for charter schools, the existing long-term plans, including its charter.

5. The request for qualification shall define the standards for responsiveness, including identification of any required submissions, documents, proof of licensure or qualification, or other material information, and shall define the qualification standards for determining whether a private entity is eligible to participate in the request for proposals process.

(b) A request for proposal shall include the following:

1. After a school district determines the qualified respondents utilizing the qualification standards, the school district shall issue a notice of the list of qualified respondents, and shall issue a request for proposal to each qualified respondent no less than 90 days prior to the date established for submission of the proposals.

2. The request for proposals shall define the standards for responsiveness to the request for proposal, including identification and description of any required technical submissions, or other required documents or material, and shall also specify the minimum evaluation criteria to be used in the selection of the designated respondent, and the weight of each criterion.

3. The request for proposal shall include a provision allowing a school district to terminate a public-private agreement without penalty should the Department of Education or the State Treasurer deny approval of a school facilities project, or any local or State code official deny approval to the project, or, in the case of a charter school, the non-renewal or revocation of its charter.

(c) The ranking of proposals shall be in accordance with this subsection.

1. After the proposal or proposals have been received, and any public notification period has expired, the school district shall rank the proposals based upon the established evaluation criteria.

2. The school district may consider, in addition to cost, factors that include, but are not limited to: professional qualifications and capacity of the entity and its agents; timing of project delivery; general business terms; innovative engineering and architectural services; cost-reduction terms; finance plans; and the need for school district funds to complete the project and discharge the agreement.

3. The private entity selected shall comply with all laws and rules, including, but not limited to, section 1 of P.L. 2001, c. 134 (N.J.S.A. 52:32-44), sections 2 through 8 of P.L. 1975, c. 127 (N.J.S.A. 10:5-32 to 38), section 1 of P.L. 1977, c. 33 (N.J.S.A. 52:25.24-2), P.L. 2005, c. 51 (N.J.S.A. 19:44A-20.13et seq.), P. L. 2005, c. 271 (N.J.S.A. 40A:11-51et seq.), Executive Order No. 117 of 2008, Executive Order No. 118 of 2008, and Executive Order No. 189 of 1988, prior to executing the public-private partnership agreement.

4. A school district unit may negotiate with the selected private entity on the final terms and conditions, subject to the minimum evaluation criteria contained in the request for proposal. In the event that a school district is unable to negotiate final terms and conditions with the selected private entity, the school district may negotiate final terms and conditions with the next most favorable private entity.

5. If only one proposal is received, the school district shall negotiate in good faith and, if not satisfied with the results of the negotiations, the school district may, at its sole discretion, terminate negotiations.

(d) All public hearing and findings shall include the following:

1. After the school district has ranked the proposals and identified a potential private entity for the project under consideration, in addition to negotiation of final terms and conditions, the school district shall conduct a public hearing on the project prior to submitting the public-private proposal to the State Treasurer for review. The public hearing shall be held at a regular meeting of the school district's board of education, conducted pursuant to the Senator Byron M. Baer Open Public Meetings Act, N.J.S.A. 10:4-6et seq., or for a charter school, at a meeting of the charter school board of trustees. The hearing shall be conducted in accordance with (d)2 through 5 below.

2. Notice under this subsection shall include:

i. Notice of a public hearing must be provided not less than 14 days prior to a hearing, and shall state the date, time, and location of the public hearing;

ii. The notice must state the purpose and nature of the project under consideration by the school district;

iii. The notice must state the process for receipt of public comments, either at or before the public hearing, including any procedures required for participation in the public hearing; and

iv. The notice must be published in at least one newspaper with Statewide circulation and on the official website of the school district.

3. Public comments regarding the proposed project shall be received at or before the public hearing, in accordance with any procedures specified in the public notice, and the school district shall keep a record of such public comments. The school district shall respond to such public comments, either informally at the hearing, or in a writing made available to the public after the hearing, and shall indicate whether any changes will be made to the project, or the ranking and/or selection process, in response to the comment. A school district may, after appropriate consideration of a public comment, state in response that no changes to the project and/or selection process will be made.

4. The school district shall determine, on the record at a public hearing, that a project is in the best interest of the public by finding, with any relevant supports, that based on facts:

i. The project will cost less than the public sector option, or if it costs more, there are factors that warrant the additional expense;

ii. There is a public need for the project and the project is consistent with existing long-term plans;

iii. There are specific significant benefits to the project;

iv. There are specific significant benefits to using the public-private partnership instead of other options including No-Build;

v. The private development will result in timely and efficient development and operation; and

vi. The risks, liabilities, and responsibilities transferred to the private entity provide sufficient benefits to warrant not using other means of procurement.

5. A record of the public hearing, including the required findings, and any public comments received and responses thereto, either made at the hearing or issued in writing after the hearing, shall be made available within seven days after conclusion of the public hearing.

N.J. Admin. Code § 17:49-7.3

Adopted by 52 N.J.R. 898(a), effective 4/20/2020