N.J. Admin. Code § 17:49-6.4

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

Section 17:49-6.4 - Unsolicited proposals

(a) A local government unit may accept unsolicited proposals from private entities for public-private partnership agreements. A local government unit shall develop a process for accepting unsolicited proposals in expectation of receipt of an unsolicited proposal.

(b) An unsolicited proposal shall include, at a minimum, the following:

1. A description of the proposed public-private project, including the identified local government unit need to be fulfilled by the proposed project;

2. The estimated construction and life-cycle costs;

3. A timeline for development;

4. Proposed plan of financing, including projected revenues, public or private, debt, equity investment, and a description of how the project meets needs identified in existing plans;

5. An identification of the permits, approvals, and/or variances needed from local, State, and/or Federal agencies in order to develop the project; and

6. A projected schedule for obtaining such permits and approvals, and a statement of risks, liabilities, and responsibilities to be assumed by the private entity.

(c) A private entity submitting an unsolicited proposal shall provide a copy in which all proprietary information has been redacted, so that the description of the proposed public-private project may be shared publicly. In the event that a redacted copy is not provided, all materials shall be considered releasable.

(d) In the event that an unsolicited proposal is received, a local government unit's governing body shall determine, on the record, whether the following factors have been met:

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

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

3. There are specific significant benefits to the project;

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

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

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

(e) If the local government unit receives an unsolicited proposal, and determines that it meets the above factors, the local government unit shall give notice to the public of an opportunity to submit competing proposals to be considered in comparison to the proposed project outlined in the unsolicited proposal. The local government unit shall:

1. Publish a notice of the receipt of the proposal on the Internet site of the local government unit and through advertisement in at least one newspaper with Statewide circulation;

2. Provide notice of the proposal at its next scheduled public meeting of the local government unit and to the State Treasurer. The notice shall specify the standards for evaluation and ranking of any proposals received in response to the notice;

3. The notice shall provide that the local government unit shall accept, for 120 days after the initial date of publication, proposals meeting the standards outlined in the unsolicited proposal from other private entities for eligible projects that satisfy the same basic purpose and need; and

4. Mail a copy of the notice to each municipal and county local government body in the geographic area affected by the proposal.

(f) After the 120 days of public notice have expired and any additional proposals have been received, the local government unit shall rank the proposals in order of preference.

1. In ranking the proposals, the local government unit shall, at a minimum, rely upon the factors outlined in (d) above.

2. The local government unit may also consider factors that include, but are not limited to: professional qualifications of the entities participating in the proposed project; general business terms and conditions of the proposed project; any innovative engineering, architectural services, or cost-reduction terms, included in the project; the terms of the finance plan for the project; and the need for any contribution of local government funds required to deliver the project and/ or 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.

(g) If no proposals are received in addition to the unsolicited proposal, then the local government unit shall negotiate in good faith and, if not satisfied with the results of the negotiations, the local government unit may, at its sole discretion, terminate negotiations.

(h) All unsolicited proposals shall be subject to the requirements of N.J.A.C. 17:49-6.2 and 6.3.

N.J. Admin. Code § 17:49-6.4

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