N.J. Admin. Code § 17:49-8.3

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

Section 17:49-8.3 - Public notice and hearing requirements

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

1. A request for qualification, soliciting a response from private entities for participation in a public-private partnership project shall be advertised sufficiently in advance to generate competitive interest, but at a minimum at least 45 days prior to the advertised date for submission of responses to the request for qualification.

2. The advertisement of the request for qualifications shall be published on the official Internet website of the State government entity 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. 17:49-8.5(a).

4. 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 State government entity determines the qualified respondents utilizing the qualification standards, the State government entity 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. A State governmental entity may authorize the use of stipends on public-private partnership projects when there is a substantial opportunity for innovation and the costs for developing a proposal are significant. The extent of such stipend shall solely relate to the costs associated with work product of unsuccessful proposers submitted in response to a request for proposals.

i. The aggregate value of stipends provided to all private entities afforded stipends shall not exceed 0.05 percent of the total projected cost of the project.

ii. The extent to which any stipend will be available for work product submitted shall be affirmatively outlined in the request for proposal.

(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 State government entity shall rank the proposals based upon the established evaluation criteria.

2. The State government entity 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 State government funds to deliver 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.), section 2 of P.L. 2018, c. 9 (N.J.S.A. 10:5-12), 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 State government entity 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 State government entity is unable to negotiate final terms and conditions with the selected private entity, the State government entity may negotiate final terms and conditions with the next most favorable private entity.

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

(d) All public hearings or public comments shall include the following:

1. After the State government entity 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 State government entity shall conduct a public hearing or provide a public comment period on the project, prior to submitting the public-private proposal to the State Treasurer for approval.

2. Notice under this subsection shall include:

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

ii. The notice must state the purpose and nature of the project under consideration by the State government entity;

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;

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

v. The notice must be published in at least one newspaper with Statewide circulation and on the official website of the State government entity.

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 State government entity shall keep a record of such public comments. The State government entity shall respond to such public comments, either informally at the hearing, or in a writing made available to the public after the hearing or public notice period, 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 State government entity 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 State government entity shall determine, on the record at a public hearing or via notice following the end of a public comment period conducted in lieu of a 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 and all public comment received, as well as the responses to the comments, either made at the hearing or issued in writing after the hearing shall be made within seven days after conclusion of the public hearing. Where public engagement was solicited through a comment period in lieu of a public hearing, the State government entity shall retain a record of all comments received, and shall issue a document summarizing the comments and the State government entity's response to those comments within seven days after the conclusion of the public comment period.

N.J. Admin. Code § 17:49-8.3

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