N.J. Admin. Code § 5:34-10.19

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

Section 5:34-10.19 - Protests and administrative hearings

(a) A bidder that intends to submit or has submitted a statement of qualifications for the first phase of the design-build procurement may request an informal hearing before the contracting unit to protest the RFQ process or documents by submitting a written protest to the contracting unit at least five business days prior to the date and time scheduled for opening of the statements of qualifications, setting forth in detail the grounds for such protest. The protest must contain all legal and factual arguments, materials, or other documents that support the protestor's position, and must indicate whether the protestor requests an informal hearing. The contracting unit may deny any protest that is filed less than five business days prior to the scheduled opening of statements of qualifications, or that fails to provide the specific reasons for and arguments supporting the protest.

(b) A bidder that intends to submit or has submitted a statement of proposal for the second phase of the design-build procurement may request an informal hearing before the contracting unit to protest the RFP process or documents by submitting a written protest to the contracting unit at least five business days prior to the date and time scheduled for opening of the technical proposals, setting forth in detail the grounds for such protest. The protest must contain all legal and factual arguments, materials, or other documents that support the protestor's position, and must indicate whether the protestor requests an informal hearing. The contracting unit may deny any protest that is filed less than five business days prior to the scheduled opening of technical proposals, or that fails to provide the specific reasons for and arguments supporting the protest.

(c) A bidder protesting its failure to be prequalified, or the prequalification of another bidder may request an informal hearing before the contracting unit to protest the prequalification by submitting a written protest to the contracting unit setting forth the specific grounds for challenging the prequalification. The protest must contain all factual and legal arguments, materials, or other documents that support the protestor's position, and must indicate whether the protestor requests an informal hearing. The protesting bidder must submit a written protest within five business days of receiving written notification of their prequalification or failure to be prequalified. The contracting unit may deny any protest that is filed more than five business days after the bidder's receipt of written notification, or any protest that fails to provide the specific reasons for and arguments supporting the protest.

(d) A bidder protesting the scoring of its technical and/or price proposals, or those of another bidder, may request an informal hearing before the contracting unit to protest the scoring of technical and/or price proposals, by submitting a written protest to the contracting unit setting forth the specific grounds for challenging such scorings. The protest must contain all factual and legal arguments, materials, or other documents that support the protestor's position and a statement as to whether the protestor requests the opportunity for an informal hearing. The protestor must submit a written protest within five business days of the public announcement of the bidders' scores. The contracting unit may deny any such protest that is filed more than five business days after the public announcement of the bidder's scores, or any protest that fails to provide the specific reasons for and arguments supporting the protest.

(e) A bidder that has submitted a proposal may request an informal hearing before the contract to protest the award of a contract to another bidder by submitting to the contracting unit a written protest, setting forth the specific grounds for challenging such award, within five business days of the public announcement of the award. The protest must contain all factual and legal arguments, materials, or other documents that support the protestor's position and a statement as to whether the protestor requests an informal hearing. The contracting unit may deny any protest that is filed more than five business days after the public announcement of the award, or any protest that fails to provide the specific reasons for and arguments supporting the protest.

(f) Challenges by a design-builder of a design-build performance evaluation by a contracting unit subject to the Public School Contracts Law may request an informal hearing before the contracting unit by submitting to the contracting unit a written protest setting forth the specific grounds for such protest, within 15 calendar days after the date of receipt of written notification of the performance evaluation. The protest must contain all factual and legal arguments, materials, or other documents that support the protestor's position and must indicate whether the protestor requests an informal hearing. The contracting unit may deny any protest that is filed more than 15 calendar days after the design-builder's receipt of written notification of the performance evaluation, or any protest that fails to provide the specific reasons for and arguments supporting the protest.

(g) Hearing procedures shall be, as follows:

1. The contracting unit, in its sole discretion, shall determine whether to grant an informal hearing regarding any protest. Informal hearings are for fact-finding purposes for the benefit of the contracting unit and the contracting unit shall have the sole discretion as to whether to hold an informal hearing. Alternatively, the contracting unit may determine that sufficient information already exists in the record so that a decision may be made without a hearing, and the contracting unit may waive the hearing and issue a final determination, accordingly. In the event that the contracting unit determines that a hearing is not necessary, a written decision will be issued by the contracting unit within five business days of receipt of all documents related to the protest;

2. Informal hearings will be held, where feasible, within 14 business days of the receipt of the request. Hearings will be heard, where practicable, by either the governing body or a hearing officer designated by the governing body. The governing body or the hearing officer shall issue a final written decision within 30 calendar days of the conclusion of the hearing unless, due to the circumstances of the hearing, a greater timeframe is required. For all protests of the RFQ or RFP processes and documents, the written decision will issue prior to the opening of statements of qualification or proposals, respectively. If a decision based upon a protest results in a modification of the aforesaid process or documents, such decision shall be conveyed to all potential bidders by addendum; and

3. In an informal hearing, the contracting unit may, in instances where public exigency exists or where there is potential for substantial savings to the contracting unit, modify, or amend the time frames or any other requirements provided in this subchapter. In these instances, the contracting unit shall document, for the record, the rationale for such amendment and give adequate notice to the parties.

(h) The provisions at N.J.S.A. 40A:11-50 shall govern a design-builder's challenge to a design-build performance evaluation by a contracting unit that is subject to the Local Public Contracts Law.

N.J. Admin. Code § 5:34-10.19

Adopted by 54 N.J.R. 1307(a), effective 5/27/2022

Adopted by 54 N.J.R. 2374(a), effective 12/19/2022