N.J. Admin. Code § 17:12-2.13

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

Section 17:12-2.13 - Preference laws; out-of-State vendors

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

"In-State preference" or "in-state preference" means a procedure established by statute, rule, regulation, or practice whereby a state or local government procurement agency gives a bidder an advantage in the evaluation of proposals based on whether the bidder maintains its principal place of business within the borders of the state or locality, and includes any advantage given to a bidder based on whether the goods or services offered in a proposal were produced, manufactured, mined, or grown within the borders of the state or locality.

"Out-of-State bidder" means a bidder that does not have a regular place of business in New Jersey.

"Principal place of business" means a bidder's office, factory, warehouse, or other space which is recognized by a state or local government as the basis for applying an in-state preference in favor of the bidder.

"Regular place of business" means a bona fide office, factory, warehouse, or other space that is regularly maintained by the bidder, occupied by one or more of the bidder's employees, and used in carrying on the bidder's business. The maintenance of a temporary job site or field office in New Jersey, the storage of goods in New Jersey, and the employment of an independent agent or subcontractor in New Jersey do not, individually or combined, constitute a regular place of business.

(b) Pursuant to the provisions of 52:32-1.4 et seq., the Director shall apply on a reciprocal basis against an out-of-State bidder any in-state preference that is applied in favor of that bidder by the state or locality in which the bidder maintains its principal place of business.

(c) The Director shall provide notice of the Division's intent as to in-state preference through appropriate language in the terms, conditions, and/or specifications of the RFP.

(d) For purposes of implementing the provisions of this section, the Director shall make available upon request for public inspection a list of states having statutes, rules, and/or regulations that grant in-state preferences in the competitive bidding for goods and services. Such list may be based on surveys conducted by the Division and/or by research conducted by national organizations of state and local governments, procurement agencies, government officials, and purchasing agents, such as the National Association of State Purchasing Officials, the National Institute of Governmental Purchasing, and the Council of State Governments. In addition, the Director may receive and review information from prospective bidders that indicates that any state or local government agency outside of New Jersey applies an in-state preference in its procurement statutes, rules, regulations, ordinances, charters, or practices.

(e) The Director shall also apply in-State preference in the evaluation of proposals whenever a proposal is received from an out-of-State bidder where residential preference statutes, rules, regulations, or practices exist in political sub-divisions of a state. It shall be the responsibility of the bidder or bidders for a specific procurement to provide written evidence to the Director of the existence of such local government preference rules, regulations, ordinances, charters, or practices either with the bidder's proposal or within five business days after the deadline for proposal submission. Written evidence that is not provided to the Director within five business days of the public proposal opening may not be considered in the evaluation of that procurement, but may be retained and considered in the evaluation of subsequent procurements.

(f) Consistent with the procedures and practices of the Division, the Director shall reasonably apply any reciprocal in-State preference in a similar manner and to similar effect as the other state or locality. Where an in-state preference is applied by another state or locality in the form of a percentage which is added to or subtracted from bidders' prices, markups, or discounts, the Director shall similarly apply the same percentage against an affected out-of-State bidder. Where an in-state preference is applied by another state or a locality in the form of a categorical rejection of certain proposals, the Director shall apply a similar categorical rejection against an affected out-of-State bidder.

(g) The bidder or bidders that would benefit by the imposition of in-State preference must otherwise be eligible for an award as a responsive and responsible bidder.

(h) The Director may waive a reciprocal in-State preference in a specific procurement where such waiver would be in the best interests of the State, including where the resulting prices for goods and services would exceed the reasonable estimate of the using agency or would otherwise be unreasonably high, or where the State is entering into a long-term contract or a contract for large quantities of goods or services.

(i) The Director shall, as necessary, waive a reciprocal in-State preference on procurements supported by Federal funds where Federal rules prohibit the use of residential preference.

(j) The Director may waive reciprocal in-State preference when the action would result in an award to a bidder having a poor record of performance, pursuant to 17:12-2.8 or a record of complaints and/or contract terminations pursuant to N.J.A.C. 17:12-4.

(k) The Director may waive reciprocal in-State preference when a public exigency requires the immediate delivery of articles or performance of the service.

(l) Nothing in this section shall be deemed to modify or restrict the authority of the Director, pursuant to 52:34-12, to award any contract to the bidder the Director determines has offered the proposal that is "most advantageous to the State, price and other factors considered."

N.J. Admin. Code § 17:12-2.13

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