N.J. Admin. Code § 17:49-9.3

Current through Register Vol. 57, No. 1, January 6, 2025

Section 17:49-9.3 - Public notice and hearing requirements

(a) A request for qualification shall include:

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

2. The advertisement of the request for qualifications shall be published on the official Internet website of the county college, State college, or State university 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. 17:49-9.5(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:

1. After a county college, State college, or State university determines the qualified respondents satisfy the qualification standards, it 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 county college, State college, or State university may authorize the use of stipends on public-private partnership projects when there is a substantial opportunity for innovation and the costs of 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 county college, State college, or State university shall rank the proposals based upon the established evaluation criteria.

2. The county college, State college, or State university 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, architectural services, cost-reduction terms, finance plans, and the need for State or county college or university 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.), 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 county college, State college, or State university 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 county college, State college, or State university is unable to negotiate final terms and conditions with the selected private entity, the county college, State college, or State university may negotiate final terms and conditions with the next most favorable private entity.

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

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

1. After the county college, State college, or State university has ranked the proposals and identified a potential private entity for the project under consideration, in addition to negotiation of final terms and conditions, it shall conduct a public hearing on the project, prior to submitting the public-private proposal to the State Treasurer for approval. The hearing shall be conducted in accordance with the Senator Byron M. Baer Open Public Meetings Act, N.J.S.A. 10:4-6et seq., prior to submitting the public-private proposal to the State Treasurer for consideration. 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;

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 county college, State college, or State university.

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 county college, State college, or State university shall keep a record of such public comments. The county college, State college, or State university 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 State or county college or university 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 county college, State college, or State university 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, the public comments received on the proposal, and the county college, State college, or State university's responses to those comments shall be made available within seven days after conclusion of the public hearing. The documentation of comments and responses must include written comments received before or during the hearing, responses made orally during the hearing, and responses made in writing after the hearing.

N.J. Admin. Code § 17:49-9.3

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