18:18A-1. Short title; citation
This chapter shall be known and may be cited as the "Public
School Contracts Law."
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-2. Definitions
As used in this chapter, unless the context otherwise indicates:
a. "Board of education" means and includes
the board of education of any local school district, consolidated
school district, regional school district, county vocational school
and any other board of education or other similar body other than
the State Board of Education, the Commission on Higher Education
or the Presidents' Council, established and operating under the
provisions of Title 18A of the New Jersey Statutes and having
authority to make purchases and to enter into contracts for the
provision or performance of goods or services. The term "board
of education" also shall include the board of trustees of
a charter school established under P.L.1995, c.426 (C.18A:36A-1
et seq.).
b. "Purchasing agent" means the secretary,
business administrator or the business manager of the board of
education duly assigned the authority, responsibility and accountability
for the purchasing activity of the board of education and having
the power to prepare advertisements, to advertise for and receive
bids and to award contracts as permitted by this chapter, but
if there be no secretary, business administrator or business manager,
such officer, committees or employees to whom such power has been
delegated by the board of education.
c. (Deleted by amendment, P.L.1999, c.440.)
d. "District" means and includes any local
school district, consolidated school district, regional school
district, county vocational school and any other board of education
or other similar body other than the State board, established
under the provisions of Title 18A of the New Jersey Statutes.
e. (Deleted by amendment, P.L.1999, c.440.)
f. (Deleted by amendment, P.L.1999, c.440.)
g. "Extraordinary unspecifiable services"
means services which are specialized and qualitative in nature
requiring expertise, extensive training and proven reputation
in the field of endeavor.
h. "Professional services" means services
rendered or performed by a person authorized by law to practice
a recognized profession and whose practice is regulated by law
and the performance of which services requires knowledge of an
advanced type in a field of learning acquired by a prolonged formal
course of specialized instruction and study as distinguished from
general academic instruction or apprenticeship and training.
Professional services may also mean services rendered in the provision
or performance of goods or services that are original and creative
in character in a recognized field of artistic endeavor.
i. (Deleted by amendment, P.L.1999, c.440.)
j. "Purchases" means transactions, for a
valuable consideration, creating or acquiring an interest in goods,
services and property, except real property or any interest therein.
k. "Work" means any task, program, undertaking,
or activity, related to any development, redevelopment, construction
or reconstruction performed or provided pursuant to a contract
with a board of education.
l. "Aggregate" means the sums expended or
to be expended for the provision or performance of any goods or
services in connection with the same immediate purpose or task,
or the furnishing of similar goods or services, during the same
contract year through a contract awarded by a purchasing agent.
m. "Bid threshold" means the dollar amount set
in N.J.S.18A:18A-3, above which a board of education shall advertise
for and receive sealed bids in accordance with procedures set
forth in N.J.S.18A:18A-1 et seq.
n. "Contract" means any agreement, including
but not limited to a purchase order or a formal agreement, which
is a legally binding relationship enforceable by law, between
a vendor who agrees to provide or perform goods or services and
a board of education which agrees to compensate a vendor, as defined
by and subject to the terms and conditions of the agreement. A
contract also may include an arrangement whereby a vendor compensates
a board of education for the vendor's right to perform a service,
such as, but not limited to, operating a concession.
o. "Contract year" means the period of 12
consecutive months following the award of a contract.
p. "Competitive contracting" means the method
described in sections 45 through 49 of P.L.1999, c.440 (C.18A:18A-4.1
through C.18A:18A-4.5) of contracting for specialized goods and
services in which formal proposals are solicited from vendors;
formal proposals are evaluated by the purchasing agent or counsel
or school business administrator; and the board of education awards
a contract to a vendor or vendors from among the formal proposals
received.
q. "Goods and services" or "goods or services"
means any work, labor, commodities, equipment, materials, or supplies
of any tangible or intangible nature, except real property or
any interest therein, provided or performed through a contract
awarded by a purchasing agent, including goods and property subject
to N.J.S.12A:2-101 et seq.
r. "Library and educational goods and services"
means textbooks, copyrighted materials, student produced publications
and services incidental thereto, including but not limited to
books, periodicals, newspapers, documents, pamphlets, photographs,
reproductions, microfilms, pictorial or graphic works, musical
scores, maps, charts, globes, sound recordings, slides, films,
filmstrips, video and magnetic tapes, other printed or published
matter and audiovisual and other materials of a similar nature,
necessary binding or rebinding of library materials, and specialized
computer software used as a supplement or in lieu of textbooks
or reference material.
s. "Lowest price" means the least possible
amount that meets all requirements of the request of a purchasing
agent.
t. "Lowest responsible bidder or vendor"
means the bidder or vendor: (1) whose response to a request
for bids offers the lowest price and is responsive; and (2) who
is responsible.
u. "Official newspaper" means any newspaper
designated by the board of education pursuant to R.S.35:1-1 et
seq.
v. "Purchase order" means a document issued
by the purchasing agent authorizing a purchase transaction with
a vendor to provide or perform goods or services to the board
of education, which, when fulfilled in accordance with the terms
and conditions of a request of a purchasing agent and other provisions
and procedures that may be established by the board of education,
will result in payment by the board of education.
w. "Quotation" means the response to a formal
or informal request made by a purchasing agent to a vendor for
provision or performance of goods or services, when the aggregate
cost is less than the bid threshold. Quotations may be in writing,
or taken verbally if a record is kept by the purchasing agent.
x. "Responsible" means able to complete
the contract in accordance with its requirements, including but
not limited to requirements pertaining to experience, moral integrity,
operating capacity, financial capacity, credit, and workforce,
equipment, and facilities availability.
y. "Responsive" means conforming in all
material respects to the terms and conditions, specifications,
legal requirements, and other provisions of the request.
z. "Public works" means building, altering,
repairing, improving or demolishing any public structure or facility
constructed or acquired by a board of education to house school
district functions or provide water, waste disposal, power, transportation
and other public infrastructures.
aa. "Concession" means the granting of a
license or right to act for or on behalf of the board of education,
or to provide a service requiring the approval or endorsement
of the board of education, and which may or may not involve a
payment or exchange, or provision of services by or to the board
of education, provided that the term concession shall not include
vending machines.
bb. "Index rate" means the rate of annual percentage
increase, rounded to the nearest half-percent, in the Implicit
Price Deflator for State and Local Government Purchases of Goods
and Services, computed and published quarterly by the United States
Department of Commerce, Bureau of Economic Analysis.
cc. "Proprietary" means goods or services
of a specialized nature, that may be made or marketed by a person
or persons having the exclusive right to make or sell them, when
the need for such goods or services has been certified in writing
by the board of education to be necessary for the conduct of its
affairs.
dd. "Service or services" means the performance
of work, or the furnishing of labor, time, or effort, or any combination
thereof, not involving or connected to the delivery or ownership
of a specified end product or goods or a manufacturing process.
Service or services may also include an arrangement in which a
vendor compensates the board of education for the vendor's right
to operate a concession.
Amended 1994, c.48, s.59; 1999,
c.440, s.50.
18A:18A-3. Bid threshold
a. When the cost or price of any contract awarded by
the purchasing agent in the aggregate, does not exceed in a contract
year the total sum of $17,500, the contract may be awarded by
a purchasing agent when so authorized by resolution of the board
of education without public advertising for bids and bidding therefor,
except that the board of education may adopt a resolution to set
a lower threshold for the receipt of public bids or the solicitation
of competitive quotations. If the purchasing agent is qualified
pursuant to subsection b. of section 9 of P.L.1971, c.198 (C.40A:11-9)
the board of education may establish that the bid threshold may
be up to $25,000. Such authorization may be granted for each
contract or by a general delegation of the power to negotiate
and award such contracts pursuant to this section.
b. Commencing in the fifth year after the year in
which P.L.1999, c.440 takes effect, and every five years thereafter,
the Governor, in consultation with the Department of the Treasury,
shall adjust the threshold amount and the higher threshold amount
which the board of education is permitted to establish as set
forth in subsection a. of this section or the threshold amount
resulting from any adjustment under this subsection, in direct
proportion to the rise or fall of the index rate as that term
is defined in N.J.S.18A:18A-2, and shall round the adjustment
to the nearest $1,000. The Governor shall notify all local
school districts of the adjustment no later than June 1 of every
fifth year. The adjustment shall become effective on July 1 of
the year in which it is made.
Any contract made pursuant to this section may be awarded for
a period of 24 consecutive months, except that contracts for professional
services pursuant to paragraph (1) of subsection a. of N.J.S.18A:18A-5
may be awarded for a period not exceeding 12 consecutive months.
Amended 1980, c.144, s.1; 1983,
c.171, s.1; 1999, c.440, s.51.
18A:18A-3.1. Private driver education schools
Boards of education may enter into contracts with private driver
education schools for the purpose of providing driver education
courses to students on an individual or group basis, according
to rules prescribed by the Commissioner of Education, when it
is determined by the local board of education that the private
driver education school can provide behind-the-wheel driver education
that is substantially equivalent to that provided by the board
of education, and at less cost than current or other proposed
programs.
Each private driver education school shall hold a current license
or certificate of approval issued by the Director of the Division
of Motor Vehicles pursuant to P.L. 1951, c.216 (C. 39:12-1 et
seq.), and be approved for the purposes of this act by the Commissioner
of Education.
P.L.1983, c. 281, s. 1, eff.
July 29, 1983.
18A:18A-3.2. Group legal insurance
Any school district, hereinafter referred to as an employer,
may enter into contracts of group legal insurance with an insurer
authorized, pursuant to P.L. 1981, c. 160 (C. 17:46C-1 et seq.),
to engage in the business of legal insurance in this State or
may contract with a duly recognized prepaid legal services plan
with respect to the benefits which they are authorized to provide.
The contract or contracts shall provide coverage for the employees
of the employer and may include their dependents. "Dependents"
shall include an employee's spouse and the employee's unmarried
children, including stepchildren and legally adopted children,
and, at the option of the employer and the carrier, foster children,
under the age of 19 who live with the employee in a regular parent-child
relationship, and may also include, at the option of the employer
and the carrier, other unmarried children of the employee under
the age of 23 who are dependent upon the employee for support
and maintenance. A spouse or child enlisting or inducted into
military service shall not be considered a dependent during the
military service.
"Employees" shall not include persons employed on a
short-term, seasonal, intermittent or emergency basis, persons
compensated on a fee basis, or persons whose compensation from
the public employer is limited to reimbursement of necessary expenses
actually incurred in the discharge of their duties.
The contract shall include provisions to prevent duplication
of benefits and shall condition the eligibility of an employee
for coverage upon satisfying a waiting period stated in the contract.
The coverage of an employee, and of his dependents, if any, shall
cease upon the discontinuance of his employment or upon cessation
of active full-time employment in the classes eligible for coverage,
subject to the provision as may be made in a contract by his employer
for limited continuance of coverage during disability, part-time
employment, leave of absence other than leave for military service
or layoff, or for continuance of coverage after retirement.
A contract for group legal insurance entered into pursuant to
this act shall not include any legal services attendant to a claim
brought by a teaching staff member against a board of education
or legal services for the defense of a teaching staff member facing
disciplinary action pursuant to subarticle B of article 2 of chapter
6 of Title 18A of the New Jersey Statutes (N.J.S. 18A:6-9 et seq.).
P.L. 1986, c. 73, s. 1, eff.
Aug. 5, 1986.
18A:18A-3.3. Payment of premiums
An employer entering into a contract is authorized to pay part
or all of the premiums or charges for the contract and may appropriate
any money necessary to pay the premiums or charges or portions
thereof. The contribution required of an employee toward the
cost of the coverage may be deducted from the pay, salary or other
compensation of the employee upon an authorization in writing
made to the appropriate disbursing officer.
The continuance of coverage after retirement of an employee may
be provided at the rates and under the conditions as shall be
prescribed in the contract, subject, however, to the requirements
hereinafter set forth in this section. The contribution required
of a retired employee toward the cost of the coverage may be paid
by him to his former employer or in any other manner as the employer
shall direct.
Retired employees may be required to pay for the entire cost
of coverage for themselves and their dependents at rates which
are determined based upon the reasonable expected use of retired
persons.
P.L. 1986, c. 73, s. 2, eff.
Aug. 5, 1986.
18A:18A-3.4. Employment payment
for retirees
In providing for the continuance of coverage after retirement
of employees and their dependents as authorized by section 2 of
this act and notwithstanding any of the provisions of section
2 to the contrary, the employer may assume the entire cost of
the coverage and pay all the premiums for employees who have retired
after 25 years or more of service with the employer, including
the premiums for their dependents, if any, under uniform conditions
as the school district shall prescribe.
P.L. 1986, c. 73, s. 3, eff.
Aug. 5, 1986.
18A:18A-4. Contract awarded by board of education resolution;
disqualification conditions
a. Every contract for the provision or performance of
any goods or services, the cost of which in the aggregate exceeds
the bid threshold, shall be awarded only by resolution of the
board of education to the lowest responsible bidder after public
advertising for bids and bidding therefor, except as is provided
otherwise in this chapter or specifically by any other law.
The board of education may, by resolution approved by a majority
of the board of education and subject to subsections b. and c.
of this section, disqualify a bidder who would otherwise be determined
to be the lowest responsible bidder, if the board of education
finds that any board or, in the case of a contract for a school
facilities project, the New Jersey Economic Development Authority,
has had prior negative experience with the bidder within the past
10 years, as reported in a contractor evaluation submitted pursuant
to N.J.S. 18A:18A-15 or in a school facilities project performance
evaluation submitted pursuant to regulations of the Department
of the Treasury or section 62 of 2000, c. 72 (C. 18A:7G-36), as
appropriate.
b. As used in this section, "prior negative experience"
means any of the following:
(1) the bidder has been found, through either court
adjudication, arbitration, mediation, or other contractually stipulated
alternate dispute resolution mechanism, to have: failed to provide
or perform goods or services; or failed to complete the contract
in a timely manner; or otherwise performed unsatisfactorily under
a prior contract with a board of education or, in the case of
a school facilities project, with the New Jersey Economic Development
Authority;
(2) the bidder defaulted on a contract, thereby requiring
the board of education to utilize the services of another contractor
to provide the goods or perform the services or to correct or
complete the contract;
(3) the bidder defaulted on a contract, thereby requiring
a board of education or in the case of a school facilities project,
the New Jersey Economic Development Authority, to look to the
bidder's surety for completion of the contract or tender of the
costs of completion; or
(4) the bidder is debarred or suspended from contracting
with any of the agencies or departments of the executive branch
of the State of New Jersey at the time of the contract award,
whether or not the action was based on experience with a board
of education or, in the case of a school facilities project, with
the New Jersey Economic Development Authority.
c. The following conditions apply if the board of education
is contemplating a disqualification based on prior negative experience:
(1) The existence of any of the indicators of prior
negative experience set forth in this section shall not require
that a bidder be disqualified. In each instance, the decision
to disqualify shall be made within the discretion of the board
of education and shall be rendered in the best interests of the
board of education.
(2) All mitigating factors shall be considered in
determining the seriousness of the prior negative experience and
in deciding whether disqualification is warranted.
(3) The bidder shall be furnished by the board of
education with a written notice (a) stating that a disqualification
is being considered; (b) setting forth the reason for the disqualification;
and (c) indicating that the bidder shall be accorded an opportunity
for a hearing before the board of education if the bidder so requests
within a stated period of time. At the hearing, the bidder
shall show good cause why the bidder should not be disqualified
by presenting documents and testimony. If the board of education
determines that good cause has not been shown by the bidder, it
may vote to find the bidder lacking in responsibility and, thus,
disqualified.
(4) Disqualification shall be for a reasonable, defined
period of time which shall not exceed five years.
(5) A disqualification, other than a disqualification
pursuant to which a board of education is prohibited by law from
entering into a contract with a bidder, may be voided or the period
thereof may be reduced, in the discretion of the board of education,
upon the submission of a good faith application under oath, supported
by documentary evidence, setting forth substantial and appropriate
grounds for the granting of relief, such as reversal of a judgment,
or actual change of ownership, management or control of the bidder.
(6) An opportunity for a hearing need not be offered
to a bidder whose disqualification is based on its suspension
or debarment by an agency or department of the executive branch
of the State of New Jersey. The term of such a disqualification
shall be concurrent with the term of the suspension or debarment
by the State agency or department.
d. The purchase of text books and materials that exceed
the bid threshold and are approved by a board of education pursuant
to N.J.S.18A:34-1 shall not require the further adoption of a
resolution for purchase.
Amended by 1980, c.144, s.2;
1983, c.171, s.2; 1999, c.440, s.52; 2002, c. 90, s. 1.
18A:18A-4.1. Use of competitive contracting by boards of
education; purposes
Notwithstanding the provisions of any law, rule or regulation
to the contrary, competitive contracting may be used by boards
of education in lieu of public bidding for procurement of specialized
goods and services the price of which exceeds the bid threshold,
for the following purposes:
a. The purchase or licensing of proprietary computer
software designed for board of education purposes, which may include
hardware intended for use with the proprietary software.
This subsection shall not be utilized for the purpose of acquiring
general purpose computer hardware or software;
b. The hiring of a for-profit entity or a not-for-profit
entity incorporated under Title 15A of the New Jersey Statutes
for the purpose of:
(1) the operation, management or administration of
recreation or social service facilities or programs; or
(2) the operation, management or administration of
data processing services;
c. Services performed by an energy services company,
including the design, measurement, financing and maintenance of
energy savings equipment or renovations, which result in payment
derived, in whole or in part, from the sale of verified energy
savings over the term of an agreement with a public utility or
subsidiary, but not the provision or performance of the physical
improvements that result in energy savings, provided that such
savings are calculated pursuant to guidelines promulgated by the
Board of Public Utilities and further provided that the Local
Finance Board, in consultation with the State Board of Education,
shall find that the terms and conditions of any financing agreement
are reasonable;
d. Telecommunications transmission or switching services
that are not part of a tariff or schedule of charges filed with
the Board of Public Utilities;
e. The purchase of specialized machinery or equipment
of a technical nature, or servicing thereof, which will not reasonably
permit the drawing of specifications;
f. Food services provided by food service management
companies when not part of programs administered by the New Jersey
Department of Agriculture, Bureau of Child Nutrition Programs;
g. Driver education courses provided by licensed driver
education schools;
h. At the option of the board of education, any good
or service that is exempt from bidding pursuant to N.J.S.18A:18A-5;
i. Laboratory testing services;
j. Concessions;
k. The operation, management or administration of other
services, with the approval of the Division of Local Government
Services in the Department of Community Affairs.
Any purpose included herein shall not be considered by a board
of education as an extraordinary unspecifiable service pursuant
to paragraph (2) of subsection a. of N.J.S.18A:18A-5.
P.L.1999,c.440,s.45.
18A:18A-4.2. Five-year contract term limit; exceptions
Unless an exception is provided for under N.J.S.18A:18A-42 permitting
a longer contract duration, contracts awarded pursuant to section
49 of P.L.1999, c.440 (C.18A:18A-4.5) may be for a term not to
exceed five years.
P.L.1999,c.440,s.46.
18A:18A-4.3. Competitive contracting initiated by board of
education resolution; process administration
a. In order to initiate competitive contracting, the
board of education shall pass a resolution authorizing the use
of competitive contracting each time specialized goods or services
enumerated in section 45 of P.L.1999, c.440 (C.18A:18A-4.1) are
desired to be contracted. If the desired goods or services
have previously been contracted for using the competitive contracting
process then the original resolution of the board of education
shall suffice.
b. The competitive contracting process shall be administered
by a purchasing agent qualified pursuant to subsection b. of section
9 of P.L.1971, c.198 (C.40A:11-9) or by legal counsel of the board
of education, or by the school business administrator of the board
of education. Any contracts awarded under this process shall
be made by resolution of the board of education subject to the
provisions of subsection e. of section 49 of P.L.1999, c.440 (C.18A:18A-4.5).
P.L.1999,c.440,s.47.
18A:18A-4.4. Request for proposals;
documentation; provisions
The competitive contracting process shall utilize a request for
proposals documentation in accordance with the following provisions:
a. The purchasing agent or counsel or school business
administrator shall prepare or have prepared request for proposal
documentation, which shall include: all requirements deemed
appropriate and necessary to allow for full and free competition
between vendors; information necessary for potential vendors to
submit a proposal; and a methodology by which the board of education
will evaluate and rank proposals received from vendors.
b. The methodology for the awarding of competitive contracts
shall be based on an evaluation and ranking, which shall include
technical, management, and cost related criteria, and may include
a weighting of criteria, all developed in a way that is intended
to meet the specific needs of the contracting unit, and where
such criteria shall not unfairly or illegally discriminate against
or exclude otherwise capable vendors. When an evaluation
methodology uses a weighting of criteria, at the option of the
board of education the weighting to be accorded to each criterion
may be disclosed to vendors prior to receipt of the proposals.
The methodology for awarding competitive contracts shall comply
with such rules and regulations as the Director of the Division
of Local Government Services in the Department of Community Affairs,
after consultation with the Commissioner of Education may adopt
pursuant to the "Administrative Procedure Act," P.L.1968,
c.410 (C.52:14B-1 et seq.).
c. At no time during the proposal solicitation process
shall the purchasing agent or counsel or school business administrator
convey information, including price, to any potential vendor which
could confer an unfair advantage upon that vendor over any other
potential vendor. If a purchasing agent or counsel or school
business administrator desires to change proposal documentation,
the purchasing agent or counsel or school business administrator
shall notify only those potential vendors who received the proposal
documentation of any and all changes in writing and all existing
documentation shall be changed appropriately.
d. All proposals and contracts shall be subject to the
provisions of section 1 of P.L.1977, c.33 (C.52:25-24.2) requiring
submission of a statement of corporate ownership and the provisions
of P.L.1975, c.127 (C.10:5-31 et seq.) concerning equal employment
opportunity and affirmative action.
P.L.1999,c.440,s.48.
18A:18A-4.5. Competitive contracting proposal solicitation
Competitive contracting proposals shall be solicited in the following
manner:
a. A notice of the availability of request for proposal
documentation shall be published in an official newspaper of the
board of education at least 20 days prior to the date established
for the submission of proposals. The board of education
shall promptly reply to any request by an interested vendor by
providing a copy of the request for proposals. The board of education
may charge a fee for the proposal documentation that shall not
exceed $50.00 or the cost of reproducing the documentation, whichever
is greater.
b. Each interested vendor shall submit a proposal which
shall include all the information required by the request for
proposals. Failure to meet the requirements of the request
for proposals may result in the board of education disqualifying
the vendor from further consideration. Under no circumstances
shall the provisions of a proposal be subject to negotiation by
the board of education.
c. If the board of education, at the time of solicitation,
utilizes its own employees to provide the goods or perform the
services, or both considered for competitive contracting, the
board of education shall, at any time prior to, but no later than
the time of solicitation for competitive contracting proposals,
notify affected employees of the board of education's intention
to solicit competitive contracting proposals. Employees or their
representatives shall be permitted to submit recommendations and
proposals affecting wages, hours, and terms and conditions of
employment in such a manner as to meet the goals of the competitive
contract. If employees are represented by an organization
that has negotiated a contract with the board of education, only
the bargaining unit shall be authorized to submit such recommendations
or proposals. When requested by such employees, the board
of education shall provide such information regarding budgets
and the costs of performing the services by such employees as
may be available. Nothing shall prevent such employees from
making recommendations that may include modifications to existing
labor agreements in order to reduce such costs in lieu of award
of a competitive contract, and agreements implementing such recommendations
may be considered as cause for rejecting all other proposals.
d. The purchasing agent or counsel or school business
administrator shall evaluate all proposals only in accordance
with the methodology described in the request for proposals.
After proposals have been evaluated, the purchasing agent or counsel
or school business administrator shall prepare a report evaluating
and recommending the award of a contract or contracts. The
report shall list the names of all potential vendors who submitted
a proposal and shall summarize the proposals of each vendor.
The report shall rank vendors in order of evaluation, shall recommend
the selection of a vendor or vendors, as appropriate, for a contract,
shall be clear in the reasons why the vendor or vendors have been
selected among others considered, and shall detail the terms,
conditions, scope of services, fees, and other matters to be incorporated
into a contract. The report shall be made available to the public
at least 48 hours prior to the awarding of the contract, or when
made available to the board of education, whichever is sooner.
The board of education shall have the right to reject all proposals
for any of the reasons set forth in N.J.S.18A:18A-22.
e. Award of a contract shall be made by resolution of
the board of education within 60 days of the receipt of the proposals,
except that the proposals of any vendors who consent thereto,
may, at the request of the board of education, be held for consideration
for such longer period as may be agreed.
f. The report prepared pursuant to subsection d. of
this section shall become part of the public record and shall
reflect the final action of the board of education. Contracts
shall be executed pursuant to N.J.S.18A:18A-40.
g. The secretary of the board of education shall publish
a notice in the official newspaper of the board of education summarizing
the award of a contract, which shall include but not be limited
to, the nature, duration, and amount of the contract, the name
of the vendor and a statement that the resolution and contract
are on file and available for public inspection in the office
of the secretary of the board of education.
h. The Director of the Division of Local Government Services
in the Department of Community Affairs, after consultation with
the Commissioner of Education, may adopt additional rules and
regulations, in accordance with the "Administrative Procedure
Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary
to effectuate the provisions of sections 45 through 49 of P.L.1999,
c.440 (C.18A:18A-4.1 through C.18A:18A-4.5).
P.L.1999,c.440,s.49.
18A:18A-5. Exceptions to requirement for advertising
Any contract, the amount of which exceeds the bid threshold,
shall be negotiated and awarded by the board of education by resolution
at a public meeting without public advertising for bids and bidding
therefor if
a. The subject matter thereof consists of:
(1) Professional services. The board of education
shall in each instance state supporting reasons for its action
in the resolution awarding each contract and shall forthwith cause
to be printed once, in an official newspaper, a brief notice stating
the nature, duration, service and amount of the contract, and
that the resolution and contract are on file and available for
public inspection in the office of the board of education;
(2) Extraordinary unspecifiable services which cannot
reasonably be described by written specifications. The application
of this exception as to extraordinary unspecifiable services shall
be construed narrowly in favor of open competitive bidding where
possible and the Director of the Division of Local Government
Services in the Department of Community Affairs is authorized
to establish rules and regulations after consultation with the
Commissioner of Education limiting its use in accordance with
the intention herein expressed; and the board of education shall
in each instance state supporting reasons for its action in the
resolution awarding the contract for extraordinary unspecifiable
services and shall forthwith cause to be printed, in the manner
set forth in paragraph (1) of this subsection, a brief notice
of the award of such contract;
(3) The doing of any work by employees of the board
of education;
(4) The printing of all legal notices; and legal briefs,
records and appendices to be used in any legal proceeding in which
the board of education may be a party;
(5) Library and educational goods and services;
(6) Food supplies, including food supplies for home
economics classes, when purchased pursuant to rules and regulations
of the State board and in accordance with the provisions of N.J.S.18A:18A-6;
(7) The supplying of any product or the rendering
of any service by a public utility, which is subject to the jurisdiction
of the Board of Public Utilities, in accordance with the tariffs
and schedules of charges made, charged and exacted, filed with
said board;
(8) The printing of bonds and documents necessary
to the issuance and sale thereof by a board of education;
(9) Equipment repair service if in the nature of an
extraordinary unspecifiable service and necessary parts furnished
in connection with such services, which exception shall be in
accordance with the requirements for extraordinary unspecifiable
services;
(10) Insurance, including the purchase of insurance
coverage and consultant services, which exception shall be in
accordance with the requirements for extraordinary unspecifiable
services;
(11) Publishing of legal notices in newspapers as
required by law;
(12) The acquisition of artifacts or other items of
unique intrinsic, artistic or historic character;
(13) Those goods and services necessary or required
to prepare and conduct an election;
(14) (Deleted by amendment, P.L.1999,c.440.)
(15) (Deleted by amendment, P.L.1999, c.270).
(16) (Deleted by amendment, P.L.1999,c.440.)
(17) The doing of any work by persons with disabilities
employed by a sheltered workshop;
(18) Expenses for travel and conferences;
(19) The provision or performance of goods or services
for the support or maintenance of proprietary computer hardware
and software, except that this provision shall not be utilized
to acquire or upgrade non-proprietary hardware or acquire or update
non-proprietary software;
(20) Purchases of goods and services at rates set
by the Universal Service Fund administered by the Federal Communications
Commission;
(21) Goods and services paid with funds that: are
raised by or collected from students to support the purchase of
student oriented items or materials, such as yearbooks, class
rings, and a class gift; and are deposited in school or student
activity accounts; and require no budget appropriation from the
board of education;
(22) Food services provided by food service management
companies pursuant to procedures established by the New Jersey
Department of Agriculture, Bureau of Child Nutrition Programs;
(23) Vending machines providing food or drink.
b. It is to be made or entered into with the United States
of America, the State of New Jersey, county or municipality or
any board, body, officer, agency, authority or board of education
or any other state or subdivision thereof.
c. Bids have been advertised pursuant to N.J.S.18A:18A-4
on two occasions and (1) no bids have been received on both occasions
in response to the advertisement, or (2) the board of education
has rejected such bids on two occasions because it has determined
that they are not reasonable as to price, on the basis of cost
estimates prepared for or by the board of education prior to the
advertising therefor, or have not been independently arrived at
in open competition, or (3) on one occasion no bids were received
pursuant to (1) and on one occasion all bids were rejected pursuant
to (2), in whatever sequence; any such contract may then be negotiated
and may be awarded upon adoption of a resolution by a two-thirds
affirmative vote of the authorized membership of the board of
education authorizing such a contract; provided, however, that:
(a) A reasonable effort is first made by the board
of education to determine that the same or equivalent goods or
services, at a cost which is lower than the negotiated price,
are not available from an agency or authority of the United States,
the State of New Jersey or of the county in which the board of
education is located, or any municipality in close proximity to
the board of education;
(b) The terms, conditions, restrictions and specifications
set forth in the negotiated contract are not substantially different
from those which were the subject of competitive bidding pursuant
to N.J.S.18A:18A-4; and
(c) Any minor amendment or modification of any of
the terms, conditions, restrictions and specifications which were
the subject of competitive bidding pursuant to N.J.S.18A:18A-4
shall be stated in the resolution awarding the contract; provided
further, however, that if on the second occasion the bids received
are rejected as unreasonable as to price, the board of education
shall notify each responsible bidder submitting bids on the second
occasion of its intention to negotiate, and afford each bidder
a reasonable opportunity to negotiate, but the board of education
shall not award such contract unless the negotiated price is lower
than the lowest rejected bid price submitted on the second occasion
by a responsible bidder, is the lowest negotiated price offered
by any responsible vendor, and is a reasonable price for such
goods or services.
d. Whenever a board of education shall determine that
a bid was not arrived at independently in open competition pursuant
to subsection c.(2) of N.J.S.18A:18A-5, it shall thereupon notify
the county prosecutor of the county in which the board of education
is located and the Attorney General of the facts upon which its
determination is based, and when appropriate, it may institute
appropriate proceedings in any State or federal court of competent
jurisdiction for a violation of any State or federal antitrust
law or laws relating to the unlawful restraint of trade.
e. The board of education has solicited and received
at least three quotations on materials, supplies or equipment
for which a State contract has been issued pursuant to N.J.S.18A:18A-10,
and the lowest responsible quotation is at least 10% less than
the price the board would be charged for the identical materials,
supplies or equipment, in the same quantities, under the State
contract. Any such contract or agreement entered into pursuant
to subsection d. or subsection e. may be made, negotiated or awarded
only upon adoption of a resolution by the affirmative vote of
two-thirds of the full membership of the board of education at
a meeting thereof authorizing such a contract or agreement.
A copy of the purchase order relating to any such contract, the
requisition for purchase order, if applicable, and documentation
identifying the price of the materials, supplies or equipment
under the State contract and the State contract number shall be
filed with the Director of the Division of Local Government Services
in the Department of Community Affairs within five working days
of the award of any such contract by the board of education.
The director shall notify the board of education of receipt of
the material and shall make the material available to the State
Treasurer. The board of education shall make available to
the director upon request any other documents relating to the
solicitation and award of the contract, including, but not limited
to, quotations, requests for quotations, and resolutions.
Amended 1982, c.161, s.5; 1983,
c.48; 1983, c.281, s.2; 1984, c.49, s.2; 1985, c.527, s.1;1995,
c.265; 1999, c.270, s.1; 1999, c.440, s.53.
18A:18A-6. Standards for purchase of fresh milk; penalties;
rules and regulations
In purchases of fresh milk and as a condition thereof, the board
of education shall require each vendor to agree in writing to
purchase during the year in which he proposes to furnish such
milk to the school district an amount of fresh milk from New Jersey
producers or associations of producers at least equal to the amount
he proposes to furnish to the school district plus an amount equal
to the amount, if any, he shall be required to furnish to any
other school district in the State. Every such agreement shall
be filed by the board of education with the Secretary of Agriculture
who shall be charged with the duty of enforcing the provisions
of this section. Failure by any vendor to purchase milk in compliance
with his agreement shall subject him to a penalty of not less
than $100.00 nor more than $500.00 per day for each day of noncompliance,
unless he can prove to the satisfaction of the Secretary that
he is unable to obtain sufficient milk from New Jersey producers
or associations of producers to enable him to comply with his
agreement. In the absence of such proof, the penalties herein
provided for shall be enforced and collected by the Secretary
of Agriculture in the name of the respective school district in
a summary proceeding in accordance with the Penalty Enforcement
Law (N.J.S.A. 2A:58-1 et seq.). The penalty, when recovered,
shall be paid to the school district so named in the proceeding.
Any vendor found guilty of violating his agreement shall be ineligible
for any contract award under this section for a period of 3 years
thereafter.
The Secretary of Agriculture shall adopt and promulgate such
rules and regulations as shall be necessary for the proper operation
and enforcement of this section.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-7. Emergency contracts
Any contract may be negotiated or awarded for a board of education
without public advertising for bids and bidding therefor, notwithstanding
that the contract price will exceed the bid threshold when an
emergency affecting the health or safety of occupants of school
property requires the immediate delivery of goods or the performance
of services, provided that the contracts are awarded in the following
manner:
a. The official in charge of the building, facility
or equipment wherein the emergency occurred or such other officer
or employee as may be authorized to act in place of that official,
shall notify the purchasing agent or a supervisor of the purchasing
agent of the need for the performance of a contract, the nature
of the emergency, the time of its occurrence and the need for
invoking this section. If that person is satisfied that an emergency
exists, that person shall be authorized to award a contract or
contracts for such purposes as may be necessary to respond to
the emergent needs. Such notification shall be reduced to
writing and filed with the purchasing agent as soon as practicable.
b. Upon the furnishing of such goods or services,
in accordance with the terms of the contract, the contractor furnishing
such goods or services, shall be entitled to be paid therefor
and the board of education shall be obligated for said payment.
The board of education shall take such action as shall be required
to provide for the payment of the contract price.
c. The Division of Local Government Services in the
Department of Community Affairs, after consultation with the Commissioner
of Education, shall prescribe rules and procedures to implement
the requirements of this section.
d. The board of education may prescribe additional
rules and procedures to implement the requirements of this section.
Amended 1980, c.144, s.3; 1983,
c.171, s.3; 1999, c.440, s.54.
18A:18A-8. Contracts not to be
divided
a. No contract in the aggregate which is single in character
or which necessarily or by reason of the quantities required to
effectuate the purpose of the contract includes the provision
or performance of additional goods or services, shall be divided,
so as to bring it or any of the parts thereof under the bid threshold,
for the purpose of dispensing with the requirement of public advertising
and bidding therefor.
b. In contracting for the provision or performance of
any goods or services included in or incidental to the provision
or performance of any work which is single in character or inclusive
of the provision or performance of additional goods or services,
all of the goods or services requisite for the completion of such
contract shall be included in one contract.
Amended 1980, c.144, s.4; 1983,
c.171, s.4; 1999, c.440, s.55.
18A:18A-8.1. Rules
For the purpose of ensuring consistency between the "Local
Public Contracts Law, " P.L.1971, c.198 (C.40A:11-1 et seq.),
and the "Public School Contracts Law," N.J.S.18A:18A-1
et seq., the Director of the Division of Local Government Services
in the Department of Community Affairs, after consultation with
the Commissioner of Education, and pursuant to the "Administrative
Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall
adopt rules concerning determinations of aggregation for the purposes
of whether a contract is subject to public bidding as set forth
in sections 3, 4 and 7 of P.L.1971, c.198 (C.40A:11-3, 40A:11-4
and 40A:11-7) and N.J.S.18A:18A-3, N.J.S.18A:18A-4, and N.J.S.18A:18A-8.
P.L.1999,c.440,s.56.
18A:18A-9. Periodic solicitation of bids
Every board of education shall, on an annual basis or at such
lesser intervals to be fixed by it, solicit by public advertisement
the submission of bids for the provision or performance of goods
or services which are and which under N.J.S.18A:18A-4 can be contracted
to be provided or performed only after public advertisement for
bids and bidding therefor and all contracts for the provision
or performance of such goods or services shall be awarded only
in that manner.
Amended 1999, c.440, s.57.
18A:18A-10. Board of education
purchases through State agency; procedure
a. A board of education, without advertising for bids,
or after having rejected all bids obtained pursuant to advertising
therefor, by resolution may purchase any goods or services pursuant
to a contract or contracts for such goods or services entered
into on behalf of the State by the Division of Purchase and Property.
b. A board of education may also use, without advertising
for bids, or having rejected all bids obtained pursuant to advertising,
the Federal Supply Schedules of the General Services Administration
promulgated by the Director of the Division of Purchase and Property
in the Department of the Treasury pursuant to section 1 of P.L.1996,
c.16 (C.52:34-6.1), subject to the following conditions:
(1) the price of the goods or services being procured
is no greater than the price offered to federal agencies;
(2) the Federal Supply Schedules may be used only
for purchases of up to $500,000 per year or for one product unit
at any price and only for reprographic equipment or services,
including digital copiers, used by the board of education;
(3) the board of education receives the benefit of
federally mandated price reductions during the term of the contract
and is protected from price increases during that time;
(4) the price of the goods or services being procured
is no greater than the price of the same or equivalent goods or
services under the State contract, unless the board of education
determines that because of factors other than price, selection
of a vendor from the Federal Supply Schedules would be more advantageous
to the board of education;
(5) a copy of the purchase order relating to any such contract,
the requisition or request for purchase order, if applicable,
and documentation identifying the price of the goods or services
under the Federal Supply Schedules shall be filed with the Director
of the Division of Local Government Services in the Department
of Community Affairs within five working days of the award of
any such contract by the board of education. The director shall
notify the board of education of the receipt of the material and
shall make the material available to the State Treasurer. The
board of education shall make available to the director upon request
any other documents relating to the solicitation and award of
the contract.
c. Whenever a purchase is made, the board of education
shall place its order with the vendor offering the lowest price,
including delivery charges, that best meets the requirements of
the board of education. Prior to placing such an order, the board
of education shall document with specificity that the goods or
services selected best meet the requirements of the board of education.
Amended 1996, c.16, s.4; 1999,
c.440, s.58.
18A:18A-11. Joint purchases by
districts, municipalities, counties; authority
The boards of education of two or more districts may provide
jointly by agreement for the provision and performance of goods
and services for their respective districts, or one or more boards
of education may provide for such provision or performance of
goods or services by joint agreement with the governing body of
any municipality or county.
Amended 1999, c.440, s.59.
18A:18A-12. Contents of agreement
a. Such agreements shall be entered into by resolution
adopted by each participating board of education, municipality
or county and shall set forth the categories of goods or services
to be provided or performed, the manner of advertising for bids
and of awarding of contracts, the method of payment by each participating
board of education, municipality or county, and other matters
deemed necessary to carry out the purposes of the agreement.
b. Each participant's share of expenditures for purchases
under any such agreement shall be appropriated and paid in the
manner set forth in the agreement and in the same manner as for
other expenses of the participant.
Amended 1999, c.440, s.60.
18A:18A-13. Purchases and contracts
subject to law and rules and regulations
Such purchases and all contracts pertaining thereto shall be
subject to all provisions of law and the applicable rules and
regulations of the State board.
Amended 1999, c.440, s.61.
18A:18A-14. Controversies or disputes;
determination; appeal
In the event that any controversy or dispute shall arise among
the parties (except a municipality or county) to any such contract,
the same shall be referred to the county superintendent of the
county in which the districts are situate for determination and
his determination thereon shall be binding, subject to appeal
to the commissioner and the State board pursuant to law.
In the event that the districts are in more than one county, the
controversy or dispute shall be referred to the county superintendents
of the counties for joint determination, and if they shall be
unable to agree upon a joint determination within 30 days, the
controversy or dispute shall be referred to the commissioner for
determination.
Amended 1999, c.440, s.62.
18A:18A-14.1. Electronic data processing defined
As used in this act "electronic data processing" means
the storage, retrieval, combination or collation of items of information
by means of electronic equipment involving the translation of
words, numbers and other symbolic elements into electrical impulses
or currents.
P.L.1982, c. 161, s. 1, eff.
Oct. 28, 1982.
18A:18A-14.2. Contract or lease for electronic data processing
for another school district; combination of records and information
a. Any board of education may by contract or lease provide
electronic data processing services for the board of education
of another school district, and may undertake with such other
board of education the joint operation of electronic data processing
of their several official records and other information relative
to their official activities, services and responsibilities.
b. The records and other information originating with
any board of education participating in such a contract or lease
may be combined, compiled, and conjoined with the records and
other information of any and all other participating local units
for the purposes of such electronic data processing; and any provisions
of law requiring such records to be kept confidential or to be
retained by any board of education or any officer or agency thereof
shall be deemed to be isolated thereby.
P.L.1982, c. 161, s. 2, eff.
Oct. 28, 1982.
18A:18A-14.3. Contract or lease; contents
A contract or lease entered into pursuant to this act shall set
forth the charge for all services provided, or in the case of
a joint undertaking the proportion of the cost each party thereto
shall assume and specify all the details of the management of
the joint undertaking, and any other matters that may be deemed
necessary for insertion therein, and may be amended from time
to time by the contracting parties.
P.L.1982, c. 161, s. 3, eff.
Oct. 28, 1982.
18A:18A-14.4. Party to contract
as agent
For the purpose of carrying into execution a contract or lease
for a joint enterprise under this act, any party to such contract
may act as agent for any or all the parties in acquiring, by lease,
purchase or otherwise, any property, facilities or services, in
appointing such officers and employees as may be necessary and
directing its activities, to the same extent as a board of education
is authorized to do separately.
P.L.1982, c. 161, s. 4, eff.
Oct. 28, 1982.
18A:18A-15. Specifications generally
Any specifications for the provision or performance of goods
or services under this chapter shall be drafted in a manner to
encourage free, open and competitive bidding. In particular, no
specifications under this chapter may:
a. Require any standard, restriction, condition or
limitation not directly related to the purpose, function or activity
for which the contract is awarded; or
b. Require that any bidder be a resident of, or that
the bidder's place of business be located in, the county or school
district in which the contract will be awarded or performed, unless
the physical proximity of the bidder is requisite to the efficient
and economical performance of the contract; or
c. Discriminate on the basis of race, religion, sex,
national origin creed, color, ancestry, age, marital status, affectional
or sexual orientation, familial status, liability for service
in the Armed Forces of the United States, or nationality; or
d. Require, with regard to any contract, the furnishing
of any "brand name," but may in all cases require "brand
name or equivalent," except that if the goods or services
to be provided or performed are proprietary, such goods or services
may be purchased by stipulating the proprietary goods or services
in the bid specification in any case in which the resolution authorizing
the contract so indicates, and the special need for such proprietary
goods or services is directly related to the performance, completion
or undertaking of the purpose for which the contract is awarded;
or
e. Fail to include any option for renewal, extension,
or release which the board of education may intend to exercise
or require; or any terms and conditions necessary for the performance
of any extra work; or fail to disclose any matter necessary to
the substantial performance of the contract.
The specifications for every contract for public work, the entire
cost whereof will exceed $20,000.00, shall provide that the board
of education, through its authorized agent, shall upon completion
of the contract report to the department as to the contractor's
performance, and shall also furnish such report from time to time
during performance if the contractor is then in default.
Any specification which knowingly excludes prospective bidders
by reason of the impossibility of performance, bidding or qualification
by any but one bidder, except as provided herein, shall be null
and void and of no effect and shall be readvertised for receipt
of new bids, and the original contract shall be set aside by the
board of education.
No provision in this section shall be construed to prevent a
board of education from designating that a contract for goods
or services shall be awarded to a small business enterprise, a
minority business enterprise or a women's business enterprise
pursuant to P.L.1985, c.490 (C.18A:18A-51 et seq.).
Any prospective bidder who wishes to challenge a bid specification
shall file such challenges in writing with the purchasing agent
no less than three business days prior to the opening of the bids.
Challenges filed after that time shall be considered void and
having no impact on the board of education or the award of a contract.
Amended 1983, c.266, s.1; 1985,
c.490, s.11; 1988, c.37, s.10; 1999, c.440, s.63.
18A:18A-15.1. Payment from bequest, legacy or gift; conditions
Goods or services, the payment for which utilizes only funds
received by a board of education from a bequest, legacy or gift,
shall be subject to the provisions of N.J.S.18A:18A-1 et seq.,
except that if such bequest, legacy or gift contains written instructions
as to the specifications, manufacturer or vendor, or source of
supply of the goods or services to be provided or performed, such
instructions shall be honored.
P.L.1999,c.440,s.64.
18A:18A-16. Preparation and approval
of plans and specifications for public schoolhouses
All plans and specifications for the erection, alteration, improvement
or repair of public school buildings shall be drawn by or under
the supervision of an appropriate officer employed by the board
to whom such power shall have been delegated by the board of education.
No contract for the erection of any building or any part thereof
by any board of education of any school district shall be entered
into until the final plans and specifications therefor have been
submitted to, and approved by, either the Bureau of Facility Planning
Services in the Department of Education or an appropriately licensed
code official employed by any municipality in the State, with
the written consent of that municipality. No change in any
such plans or specifications, so approved, shall be made unless
the same shall have been submitted to, and approved by, the Bureau
of Facility Planning Services in the Department of Education or
an appropriately licensed municipal code official, whichever entity
originally approved the plans.
Should a municipal planning board, acting pursuant to the provisions
of section 22 of P.L.1975, c.291 (C.40:55D-31), recommend against
the approval of plans and specifications for the erection of a
school building or any part thereof and file notice of that recommendation
within 10 days with the Bureau of Facility Planning Services of
the Department of Education for consideration during the plan
review process, the Bureau of Facility Planning Services shall
not approve the preliminary plans and specifications for educational
adequacy until the objections of the municipal planning board
have been considered.
Amended 1987,c.160; 1990,c.23,s.1.
18A:18A-16.1. Regulation, policy adoption, restriction
The State Board of Education shall adopt no regulation or policy
which requires as a condition for approval of plans and specifications
for the erection, alteration, improvement or repair of a public
school facility capacity requirements which exclude space occupied
by movable furniture, equipment and other items when calculating
net square footage.
P.L.1995,c.68,s.1.
18A:18A-17. Facilities for handicapped persons
Every board of education shall require that all plans and specifications
for bids on any contract with the board for the construction,
remodeling or renovation of any public building shall provide
facilities for the physically handicapped.
As used in this section, "remodeling or renovation"
shall mean to construct an addition to, alter the design or layout
of said public building so that a change or modification of the
entrance facilities, toilet facilities, or vertical access is
achieved, or makes substantial repairs or alterations. As used
herein, "substantial repairs or alterations" shall mean
that if the costs of making such repairs or alterations:
a. Shall exceed 60% of the value of the building the
entire building shall be made to comply with the requirements
of this section;
b. Shall be between 30% and 60% of the value of the
building, only those portions of the building repaired or altered
shall be made to comply with the requirements of this section;
or
c. Shall be under 30% of the value of the building
such repairs or alterations shall be either in accordance with
the requirement of this section, or in compliance with their previously
required condition and with the same or equivalent material or
equipment, provided the general safety and public welfare are
not thereby endangered.
The value of such public buildings shall be determined by every
board of education in accordance with a formula which shall be
established by the State Board of Education. Said formula may
take into account the size, age, type of construction, original
building cost and replacement cost of any such building.
The State Board of Education, by rules and regulations, shall
prescribe the kinds, types and quality of the aforementioned facilities
for the physically handicapped.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-17.1. Commissioner of Education authorized to withhold
State aid
The Commissioner of Education is hereby authorized to withhold
all or part of any State aid paid to any school district pursuant
to chapter 58 of Title 18A of the New Jersey Statutes or any other
law, unless and until said school district shall comply with the
provisions of N.J.S. 18A:18A-17 with respect to facilities for
the physically handicapped.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-18. Preparation of separate plans, specifications
for certain construction work, materials; bidding; awarding of
contracts
a. In the preparation of plans and specifications for
the construction, alteration or repair of any building by a board
of education, when the entire cost of the work will exceed the
bid threshold, separate plans and specifications may be prepared
for each of the following, and all work kindred thereto to be
performed or furnished in connection therewith:
(1) The plumbing and gas fitting work;
(2) The heating and ventilating systems and equipment;
(3) The electrical work, including any electrical
power plant;
(4) The structural steel and ornamental iron work;
(5) General construction, which shall include all
other work required for the completion of the project.
b. The board of education or its purchasing agent shall
advertise for and receive, in the manner provided by law, (1)
separate bids for each of the branches of work specified in subsection
a. of this section, or (2) bids for all the work, goods and services
required to complete the building to be included in a single overall
contract, or (3) both. In the case of a single bid under paragraph
(2) or (3) of this subsection, there will be set forth in the
bid the name or names of all subcontractors to whom the bidder
will subcontract the furnishing of plumbing and gas fitting, and
all kindred work, and of the heating and ventilating systems and
equipment, and electrical work, structural steel and ornamental
iron work, each of which subcontractors shall be qualified in
accordance with N.J.S.18A:18A-1 et seq. The school district shall
require evidence of performance security to be submitted simultaneously
with the list of the subcontractors. Evidence of performance
security may be supplied by the bidder on behalf of himself and
any or all subcontractors, or by each respective subcontractor,
or by any combination thereof which results in evidence of performance
security equaling, but in no event exceeding, the total amount
bid.
c. Contracts shall be awarded to the lowest responsible
bidder in each branch of work in the case of separate bids and
to the single lowest responsible bidder in the case of single
bids. In the event that a contract is advertised in accordance
with paragraph (3) of subsection b. of this section, the contract
shall be awarded in the following manner: If the sum total of
the amounts bid by the lowest responsible bidder for each branch
is less than the amount bid by the lowest responsible bidder for
all the work, goods and services, the board of education shall
award separate contracts for each of such branches to the lowest
responsible bidder therefor, but if the sum total of the amount
bid by the lowest responsible bidder for each branch is not less
than the amount bid by the lowest responsible bidder for all the
work, goods and services, the board of education shall award a
single overall contract to the lowest responsible bidder for all
of such work, goods and services. In every case in which a contract
is awarded under paragraph (2) or (3) of subsection b. of this
section, all payments required to be made under such contract
for work, goods and services supplied by a subcontractor may,
upon the certification of the contractor of the amount due to
the subcontractor, be paid directly to the subcontractor. Payments
to a subcontractor for work and materials supplied in connection
with the contract shall be made within 10 calendar days of the
receipt of payment for that work or the delivery of those materials
by the subcontractor in accordance with the provisions of P.L.1991,
c.133 (C.2A:30A-1 et seq.), and any regulations promulgated thereunder.
Amended 1980, c.144, s.5; 1983,
c.171, s.5; 1999, c.280, s.1; 1999, c.440, s.65.
18A:18A-19. Number of working days
specified
All specifications for the doing of any work for a board of education
shall fix the date before which the work shall be completed, or
the number of working days to be allowed for its completion; and
every such contract shall contain a provision for a deduction,
from the contract price, or any wages paid by the board of education
to any inspector or inspectors necessarily employed by it on the
work, for any number of days in excess of the number allowed in
the specifications.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-20. American goods and products to be used where
possible
Each board of education shall provide, in the specifications
for all contracts for work for which it will pay any part of the
cost or work which by contract it will ultimately own and maintain,
that only manufactured and farm products of the United States,
wherever available, be used in such work.
Amended 1999, c.440, s.66.
18A:18A-21. Advertisements for bids; bids; general requirements
a. Except as provided in section 5 of P.L.1985, c.490
(C.18A:18A-55), all advertisements for bids shall be published
in an official newspaper sufficiently in advance of the date fixed
for receiving the bids to promote competitive bidding, but in
no event less than 10 days prior to such date.
b. The advertisement shall designate the manner of submitting
and of receiving the bids and the time and place at which the
bids will be received. If the published specifications provide
for receipt of bids by mail, those bids which are mailed to the
board of education shall be sealed and shall be opened only for
examination at such time and place as all bids received are unsealed
and announced. At such time and place the purchasing agent of
the board of education shall publicly receive the bids and thereupon
immediately proceed to unseal them and publicly announce the contents,
which announcement shall be made in the presence of any parties
bidding or their agents who are then and there present. A proper
record of the prices and terms shall be made in the minutes of
the board. No bids shall be received after the time designated
in the advertisement.
c. Notice of revisions or addenda to advertisements or
bid documents shall be provided as follows:
(1) For all contracts except those for construction
work, notice shall be published no later than five days, Saturdays,
Sundays, and holidays excepted, prior to the date for acceptance
of bids, in an official newspaper of the board of education and
be provided to any person who has submitted a bid or who has received
a bid package, in one of the following ways: (a) in writing
by certified mail or (b) by certified facsimile transmission,
meaning that the sender's facsimile machine produces a receipt
showing date and time of transmission and that the transmission
was successful or (c) by a delivery service that provides certification
of delivery to the sender.
(2) For all contracts for construction work, notice
shall be provided no later than seven days, Saturdays, Sundays,
or holidays excepted, prior to the date for acceptance of bids,
to any person who has submitted a bid or who has received a bid
package in any of the following ways: i) in writing by certified
mail or ii) by certified facsimile transmission, meaning that
the sender's facsimile machine produces a receipt showing date
and time of transmission and that the transmission was successful
or iii) by a delivery service that provides certification of delivery
to the sender.
d. Failure of the board of education to advertise for
the receipt of bids or to provide proper notification of revisions
or addenda to advertisements or bid documents related to bids
as prescribed by this section shall prevent the board of education
from accepting the bids and require the readvertisement for bids
pursuant to subsection a. of this section. Failure to obtain
a receipt when good faith notice is sent or delivered to the address
or telephone facsimile number on file with the board of education
shall not be considered failure by the board of education to provide
notice.
Amended 1985, c.490, s.12; 1999,
c.440, s.67.
18A:18A-22. Rejection of bids
A board of education may reject all bids for any of the following
reasons:
a. The lowest bid substantially exceeds the cost estimates
for the goods or services;
b. The lowest bid substantially exceeds the board
of education's appropriation for the goods or services;
c. The board of education decides to abandon the project
for provision or performance of the goods or services;
d. The board of education wants to substantially revise
the specifications for the goods or services;
e. The purposes or provisions or both of N.J.S.18A:18A-1
et seq. are being violated; and
f. The board of education decides to use the State
authorized contract pursuant to N.J.S.18A:18A-10.
Amended 1999, c.440, s.68.
18A:18A-23. Certificate of bidder showing ability to perform
contract
There may be required from any bidder submitting a bid on public
work to any board of education, duly advertised for in accordance
with law, a certificate showing that he owns, leases, or controls
all the necessary equipment required by the plans, specifications
and advertisements under which bids are asked for and if the bidder
is not the actual owner or lessee of any such equipment, his certificate
shall state the source from which the equipment will be obtained,
and shall be accompanied by a certificate from the owner or person
in control of the equipment definitely granting to the bidder
the control of the equipment required during such time as may
be necessary for the completion of that portion of the contract
for which it is necessary.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-24. Security to accompany
bid; amount
There may be required from any person bidding on any contract,
advertised in accordance with law, that the bid be accompanied
by a guarantee payable to the board of education that, if the
contract is awarded to the bidder, the bidder will enter into
a contract therefor and will furnish any performance bond or other
security required as a guarantee or indemnification. The guarantee
shall be in the amount of 10% of the bid, but not in excess of
$20,000.00, except as otherwise provided herein, and may be given,
at the option of the bidder, by certified check, cashier's check
or bid bond. In the event that any law or regulation of
the United States imposes any condition upon the awarding of a
monetary grant to any board of education, which condition requires
the depositing of a guarantee in an amount other than 10% of the
bid or in excess of $20,000.00, the provisions of this section
shall not apply and the requirements of the law or regulation
of the United States shall govern.
Amended 1999, c.440, s.69.
18A:18A-25. Guarantee certificate
When a surety company bond is required in the advertisement or
specifications for a contract, every board of education shall
require from any bidder submitting a bid in accordance with plans,
specifications and advertisements, as provided for by law, a certificate
from a surety company stating that it will provide the contractor
with a bond in such sum as is required in the advertisement or
in the specifications.
This certificate shall be obtained for a bond-
a. For the faithful performance of all provisions
of the specifications or for all matters which may be contained
in the notice to bidders, relating to the performance of the contract;
including the guarantees required under article 12 of chapter
44 of Title 2A of the New Jersey Statutes; and
b. If any be required, for a guarantee bond for the
faithful performance of the contract provisions relating to the
repair and maintenance of any work, project or facility and its
appurtenances and keeping the same in good and serviceable condition
during the term of the bond as provided for in the notice to bidders
or in the specifications; or
c. In such other form as may be provided in the notice
to bidders or in the specifications.
If a bidder desires to offer the bond of an individual instead
of that of a surety company, the bidder shall submit with the
bid a certificate signed by such individual similar to that required
of a surety company.
The board of education may reject any such bid if it is not satisfied
with the sufficiency of the individual surety offered.
Amended 1999, c.440, s.70.
18A:18A-26. Classification of bidders as requisite to bidding
Every board of education shall require that all persons proposing
to bid on any contract requiring public advertisement for bids
with the board for public work, the entire cost whereof will exceed
$20,000.00, shall first be classified in accordance with article
6 of this chapter as to the character and amount of public work
on which they shall be qualified to submit bids. So long as such
requirement is in effect, the board of education shall accept
such bids only from persons qualified in accordance with such
classification.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977. Amended by L.1983, c. 266, s. 2, eff. July
14, 1983.
18A:18A-27. Regulations for qualifications of prospective
bidders
The State Treasurer may establish reasonable regulations appropriate
for controlling the qualifications of prospective bidders upon
contracts for public works, the entire cost whereof will exceed
the bid threshold, by the amount, class or category of goods or
services to be provided or performed which may fix the qualifications
required according to the financial ability and experience of
the bidders and the capital and equipment available to them pertinent
to and reasonably related to the class or category of goods or
services to be provided or performed in the performance of any
such contract, and may require each bidder to furnish a statement
thereof.
Such regulations shall be written in a manner:
a. Which will not unnecessarily discourage full, free
and open competition; or
b. Which will not unnecessarily restrict the participation
of small business in the public bidding process; or
c. Which will not create undue preferences; or
d. Which will not violate any other provision of this
chapter, or any other law.
No qualification rating of any bidder shall be influenced by
the bidder's race, religion, sex, national origin, nationality
or place of residence.
Such regulations shall not be effective unless they have been
adopted as provided in the "Administrative Procedure Act",
P.L.1968, c.410 (C.52:14B-1 et seq.).
Amended 1983, c.266, s.3; 1999,
c.440, s.71.
18A:18A-28. Application for classification; fee
Any person desiring such classification shall file with the department
a statement under oath in response to a questionnaire, prepared
and standardized for like classes of work, by the department together
with a fee of $10.00. The statement shall develop fully the financial
ability, adequacy of plant and equipment, organization and prior
experience of the prospective bidder, and also such other pertinent
and material facts as may be deemed desirable.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-29. Classification by classes; notice to applicants
The department shall classify all such prospective bidders as
to the character and amount of public work contracts on which
they shall be qualified to submit bids. The department shall
consider reports filed by boards of education pursuant to 18A:18A-15
as a basis for denial of a favorable classification to all prospective
bidders. The classification shall be made and an immediate notice
thereof shall be sent to the prospective bidder or bidders by
registered mail within a period of 15 days after the date of receipt
of the statement in response to the questionnaire; provided, however,
that if the department shall require additional information from
the prospective bidder, the classification shall be made and the
notice sent within 15 days after receipt of such additional information.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-30. Appeal from determination as to classification;
hearings; change
Any person, after being notified of his classification, being
dissatisfied therewith or with the classification of another person
or persons, may request in writing a hearing before the department,
and may present such further evidence with respect to his financial
ability, plant and equipment or prior experience, or that of the
other person or persons, as might tend to justify a different
classification.
Where the request for a hearing is related to the classification
of another person, the applicant for the hearing shall notify
such other person, by registered mail, of the time and place of
hearing and at the hearing shall present to the department satisfactory
evidence that such notice was given before any matters pertaining
to the classification of such other person shall be taken up.
After the hearing the department may change or affirm the classification
or classifications, the subject of the hearing.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-31. Change in classification as affecting bids; review
and reconsideration of classification
Where there have been developments subsequent to the qualification
and classification of a bidder which in the opinion of the board
of education would affect the responsibility of the bidder, information
to that effect shall forthwith be transmitted to the department
for its review and reconsideration of the classification. Before
taking final action on any such bid, the board of education concerned
shall notify the bidder and give him an opportunity to present
to the department any additional information which might tend
to substantiate the existing classification.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-32. Bidders not submitting statements within one
year ineligible to bid; affidavit of no change in status to accompany
bid; reports as to performance, etc.
No person shall be qualified to bid on any public work contract
with the board of education, the entire cost whereof will exceed
$20,000.00, who shall not have submitted a statement as required
by N.J.S. 18A:18A-28 within a period of one year preceding the
date of opening of bids for such contract. Every bidder shall
submit with his bid an affidavit that subsequent to the latest
such statement submitted by him there has been no material adverse
change in his qualification information except as set forth in
said affidavit.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977. Amended by L.1983, c. 266, s. 4, eff. July
14, 1983.
18A:18A-33. Penalties for false statements
Any person who makes, or causes to be made, a false, deceptive
or fraudulent statement in the questionnaire required to be submitted,
or in the course of any hearing under this article shall be guilty
of a misdemeanor, and upon conviction shall be sentenced to pay
a fine of not less than $100.00 nor more than $1,000.00; or, in
the case of an individual or the officer or employee charged with
the duty of making such questionnaire for a person, firm, copartnership,
association or corporation, to pay such fine or undergo imprisonment,
not exceeding 6 months, or both. All such persons and any copartnership,
association, corporation or joint stock company of which any such
person is a partner or officer or director, and any corporation
of which he owns more than 25% of the stock, shall for 5 years
from the date of such conviction be disqualified from bidding
on all public work in this State.
The board of education shall cause the forfeiture as liquidated
damages to the board of any certified check or certificate of
deposit deposited as bid security by any person who makes or causes
to be made any false, deceptive or fraudulent statement in the
questionnaire or bid affidavit required to be submitted, or in
the course of any hearing under this chapter.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-34, 18A:18A-35. (Reserved)
18A:18A-36. Time for making awards,
deposits returned
a. The board of education shall award the contract or
reject all bids within such time as may be specified in the invitation
to bid, but in no case more than 60 days, except that the bids
of any bidders who consent thereto may, at the request of the
board of education, be held for consideration for such longer
period as may be agreed. All bid security except the security
of the three apparent lowest responsible bidders shall, if requested,
be returned after 10 days from the opening of the bids, Sundays
and holidays excepted and the bids of such bidders shall be considered
as withdrawn. Within three days after the awarding of the
contract and the approval of the contractor's performance bond
the bid security of the remaining unsuccessful bidders shall be
returned to them forthwith, Sundays and holidays excepted.
b. The contract shall be signed by all parties within
the time limit set forth in the specifications, which shall not
exceed 21 days, Sundays and holidays excepted, after the making
of the award; provided, however, that all parties to the contract
may agree to extend the limit set forth in the specifications
beyond the 21-day limit required in this subsection. The contractor,
upon written request to the board of education, is entitled to
receive, within seven days of the request, an authorization to
proceed pursuant to the terms of the contract on the date set
forth in the contract for work to commence, or, if no date is
set forth in the contract, upon receipt of authorization. If
for any reason the contract is not awarded and the bidders have
paid for or paid a deposit for the plans and specifications to
the board of education, the payment or deposit shall immediately
be returned to the bidders when the plans and specifications are
returned in reasonable condition within 90 days of notice that
the contract has not been awarded.
Amended 1999, c.440, s.72
18A:18A-37. Award of purchases, contracts or agreements
All contracts enumerated in this section shall be awarded as
follows:
a. For all contracts that in the aggregate are less than
the bid threshold but 15 percent or more of that amount, and for
those contracts that are for subject matter enumerated in subsection
a. of N.J.S.18A:18A-5, except for paragraph (1) of that subsection
concerning professional services and paragraph (3) of that subsection
concerning work by employees of the board of education, the purchasing
agent shall award the contract after soliciting at least two competitive
quotations, if practicable. The award shall be made to a vendor
whose response is most advantageous, price and other factors considered.
The purchasing agent shall retain the record of the quotation
solicitation and shall include a copy of the record with the voucher
used to pay the vendor.
b. When in excess of the bid threshold, and after documented
effort by the purchasing agent to secure competitive quotations,
a contract for extraordinary unspecifiable services may be awarded
when the purchasing agent has determined in writing that solicitation
of competitive quotations is impracticable. Any such contract
shall be awarded by resolution of the board of education.
c. If authorized by the board of education by resolution,
all contracts that are in the aggregate less than 15 percent of
the bid threshold may be awarded by the purchasing agent without
soliciting competitive quotations.
d. Whenever two or more responses to a request of
a purchasing agent offer equal prices and are the lowest responsible
bids or proposals, the board of education may award the contract
to the vendor whose response, in the discretion of the board of
education, is the most advantageous, price and other factors considered.
In such a case, the award resolution or purchase order documentation
shall explain why the vendor selected is the most advantageous.
Amended 1983, c.171, s.6; 1999,
c.440, s.73.
18A:18A-38 Repealed by P.L. 1999, c.440
18A:18A-39 Repealed by P.L. 1999, c. 440
18A:18A-40. Form and execution of contracts and bonds
All contracts for the provision or performance of goods or services
shall be in writing. The State Board of Education may, subject
to the requirements of law, prescribe the forms and manner in
which contracts shall be made and executed, and the form and manner
of execution and approval of all guarantee, indemnity, fidelity
and other bonds.
Amended 1999, c.440, s.74.
18A:18A-40.1. Partial payments
Any contract, the total price of which exceeds $100,000.00, entered
into by a board of education involving the construction, reconstruction,
alteration, repair or maintenance of any building, structure,
facility or other improvement to real property, shall provide
for partial payments to be made at least once each month as the
work progresses, unless the contractor shall agree to deposit
bonds with the board of education pursuant to section 2 of P.L.1987,
c.343 (C.18A:18A-40.2).
P.L.1987,c.343,s.1; amended 1999,
c.440, s.75.
18A:18A-40.2. Withholding, deposit of negotiable bearer bonds,
notes
Whenever any contract, the total price of which exceeds $100,000.00,
entered into by a board of education for the construction, reconstruction,
alteration or repair of any building, structure, facility or other
improvement to real property, requires the withholding of payment
of a percentage of the amount of the contract, the contractor
may agree to the withholding of payments in the manner prescribed
in the contract, or may deposit with the board of education negotiable
bearer bonds of the State of New Jersey, or negotiable bearer
bonds or notes of any political subdivision of the State, the
value of which is equal to the amount necessary to satisfy the
amount that otherwise would be withheld pursuant to the terms
of the contract. The nature and amount of the bonds or notes
to be deposited shall be subject to approval by the board of education.
For purposes of this section, "value" shall mean par
value or current market value, whichever is lower.
If the contractor agrees to the withholding of payments, the
amount withheld shall be deposited, with a banking institution
or savings and loan association insured by an agency of the federal
government, in an account bearing interest at the rate currently
paid by such institutions or associations on time or savings deposits.
The amount withheld, or the bonds or notes deposited, and any
interest accruing on such bonds or notes, shall be returned to
the contractor upon fulfillment of the terms of the contract relating
to such withholding. Any interest accruing on cash payments withheld
shall be credited to the board of education.
P.L. 1987,c.343.
18A:18A-40.3. Withholding of partial payments
With respect to any contract entered into by a board of education
pursuant to section 1 of P.L.1987, c.343 (C.18A:18A-40.1) for
which the contractor shall agree to the withholding of payments
pursuant to section 2 of P.L.1987, c.343 (C.18A:18A-40.2), 5%
of the amount due on each partial payment shall be withheld by
the board of education pending completion of the contract if the
contractor does not have a performance bond. If the contractor
does have a performance bond, 2% of the amount due on each partial
payment shall be withheld by the board of education when the outstanding
balance of the contract exceeds $500,000, and 5% of the amount
due on each partial payment shall be withheld by the board of
education when the outstanding balance of the contract is $500,000
or less.
P.L.1987,c.343,s.3; amended 1993,
c.18; 1999, c.440, s.76.
18A:18A-41. Liquidated damages
Any contract made pursuant to chapter 18A of Title 18A of the
New Jersey Statutes may include liquidated damages for the violation
of any of the terms and conditions thereof or the failure to perform
said contract in accordance with its terms and conditions, or
the terms and conditions of chapter 18A of Title 18A of the New
Jersey Statutes. Notwithstanding any other provision of law to
the contrary, it shall be void, unenforceable and against public
policy for a provision in a contract entered into under Chapter
18A of Title 18A of the New Jersey Statutes to limit a contractor's
remedy for the contracting unit's negligence, bad faith, active
interference, tortious conduct, or other reasons uncontemplated
by the parties that delay the contractor's performance, to giving
the contractor an extension of time for performance under the
contract. For the purpose of this section, "contractor" means
a person, his assignees or legal representatives with whom a contracting
unit is made.
Amended 1999, c.440, s.77; L.
2001, c. 206, s. 2.
18A:18A-42. Multiyear contracts
All contracts for the provision or performance of goods or services
shall be awarded for a period not to exceed 24 consecutive months,
except that contracts for professional services pursuant to paragraph
(1) of subsection a. of N.J.S.18A:18A-5 shall be awarded for a
period not to exceed 12 consecutive months. Any board of education
may award a contract for longer periods of time as follows:
a Supplying of:
(1) Fuel for heating purposes, for any term not exceeding
in the aggregate, three years;
(2) Fuel or oil for use of automobiles, autobuses,
motor vehicles or equipment, for any term not exceeding in the
aggregate, three years;
(3) Thermal energy produced by a cogeneration facility,
for use for heating or air conditioning or both, for any term
not exceeding 40 years, when the contract is approved by the Board
of Public Utilities. For the purposes of this paragraph,
"cogeneration" means the simultaneous production in
one facility of electric power and other forms of useful energy
such as heating or process steam; or
b. Plowing and removal of snow and ice, for any term
not exceeding in the aggregate, three years; or
c. Collection and disposal of garbage and refuse,
for any term not exceeding in the aggregate, three years; or
d. Data processing service, for any term of not more
than seven years; or
e. Insurance, including the purchase of insurance
coverages, insurance consultant or administrative services, and
including participation in a joint self-insurance fund, risk management
program or related services provided by a school board insurance
group, or participation in an insurance fund established by a
county pursuant to N.J.S.40A:10-6, or a joint insurance fund established
pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), for any term
of not more than three years; or
f. Leasing or servicing of automobiles, motor vehicles,
electronic communications equipment, machinery and equipment of
every nature and kind and textbooks and non-consumable instructional
materials, for any term not exceeding in the aggregate, five years;
except that contracts for the leasing of school buses may be awarded
for any term not exceeding in the aggregate ten years. Contracts
award pursuant to this subsection shall be awarded only subject
to and in accordance with rules and regulations promulgated by
the State Board of Education; or
g. Supplying of any product or the rendering of any
service by a company providing voice, data, transmission or switching
services, for a term not exceeding five years; or
h. (Deleted by amendment, P.L.1999, c.440.)
i. Driver education instruction conducted by private,
licensed driver education schools, for any term not exceeding
in the aggregate, three years;
j. Provision or performance of goods or services for
the purpose of conserving energy in the buildings owned by any
local board of education, the entire price of which shall be established
as a percentage of the resultant savings in energy costs, for
a term not to exceed 15 years; except that these contracts shall
be entered into only subject to and in accordance with guidelines
promulgated by the Board of Public Utilities establishing a methodology
for computing energy costs;
k. Any single project for the construction, reconstruction
or rehabilitation of any public building, structure or facility,
or any public works project, including the retention of the services
of any architect or engineer in connection therewith, for the
length of time authorized and necessary for the completion of
the actual construction;
l. Laundry service and the rental, supply and cleaning
of uniforms for any term of not more than three years;
m. Food supplies and food services for any term of not
more than three years;
n. Purchases made under a contract awarded by the
Director of the Division of Purchase and Property in the Department
of the Treasury for use by counties, municipalities or other contracting
units pursuant to section 3 of P.L.1969, c.104 (C.52:25-16.1),
for a term not to exceed the term of that contract.
Any contract for services other than professional services, the
statutory length of which contract is for three years or less,
may include provisions for no more than one two-year, or two one-year,
extensions, subject to the following limitations: a. the contract
shall be awarded by resolution of the board of education upon
a finding by the board of education that the services are being
performed in an effective and efficient manner; b. no such contract
shall be extended so that it runs for more than a total of five
consecutive years; c. any price change included as part of an
extension shall be based upon the price of the original contract
as cumulatively adjusted pursuant to any previous adjustment or
extension and shall not exceed the change in the index rate for
the 12 months preceding the most recent quarterly calculation
available at the time the contract is renewed; and d. the terms
and conditions of the contract remain substantially the same.
All multiyear leases and contracts entered into pursuant to this
section 18A:18A-42, including any two-year or one-year extensions,
except contracts for insurance coverages, insurance consultant
or administrative services, participation or membership in a joint
self-insurance fund, risk management programs or related services
of a school board insurance group, participation in an insurance
fund established by a county pursuant to N.J.S.40A:10-6 or contracts
for thermal energy authorized pursuant to subsection a. above,
and contracts for the provision or performance of goods
or services to promote energy conservation authorized pursuant
to subsection j. of this section, shall contain a clause making
them subject to the availability and appropriation annually of
sufficient funds as may be required to meet the extended obligation,
or contain an annual cancellation clause. All contracts
shall cease to have effect at the end of the contracted period
and shall not be extended by any mechanism or provision, unless
in conformance with the "Public School Contracts Law,"
N.J.S.18A:18A-1 et seq., except that a contract may be extended
by mutual agreement of the parties to the contract when a board
of education has commenced rebidding prior to the time the contract
expires or when the awarding of a contract is pending at the time
the contract expires.
Amended 1983, c.13; 1983, c.108,
s.8; 1983, c.281, s.3; 1983, c.554; 1984, c.49, s.1; 1988, c.143,
s.4; 1998, c.55, s.2; 1999, c.440, s.78; 2001, c. 146, s. 2.
18A:18A-43. Supervision of school building repairs
Repairs of all school buildings shall be supervised by the business
manager of the district, if there be one, as provided by N.J.S.
18A:17-28, but if the district has no business manager, the board
may delegate such power to any appropriate officer of the board
as provided by N.J.S. 18A:16-1.2.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-44. Inspection, condemnation and rejection of work
and materials
All goods and services provided or performed under contract shall
be inspected by the purchasing agent of the district, if there
be a purchasing agent of the district, but if there be no purchasing
agent of the district, they may be inspected by an appropriate
officer employed by the board to whom such power shall have been
delegated by the board, and subject to the approval of the board
the purchasing agent or such officer, as the case may be, shall
condemn any goods or services which in his judgment do not conform
to the specifications of the contract therefor.
Amended 1999, c.440, s.79.
18A:18A-45. Manner and method of sale
Any board of education may, by resolution and by sealed bid or
public auction, authorize the sale of its personal property not
needed for school purposes.
a. If the estimated fair value of the property to
be sold exceeds 15 percent of the bid threshold in any one sale
and it is neither livestock nor perishable goods, it shall be
sold at public sale to the highest bidder.
b. Notice of the date, time and place of the public
sale, together with a description of the items to be sold and
the conditions of sale, shall be published once in an official
newspaper. Such sale shall be held not less than seven nor more
than 14 days after the publication of the notice thereof.
c. Personal property may be sold to the United States,
the State of New Jersey, another board of education, any body
politic, any foreign nation which has diplomatic relations with
the United States, or any governmental unit in these United States
by private sale without advertising for bids.
d. If no bids are received the property may then be
sold at private sale without further publication or notice thereof,
but in no event at less than the estimated fair value; or the
board of education may if it so elect, reoffer the property at
public sale. As used herein, "estimated fair value"
means the market value of the property between a willing seller
and a willing buyer less the cost to the board of education to
continue storage or maintenance of any personal property not needed
for school purposes to be sold pursuant to this section.
e. A board of education may reject all bids if it
determines such rejection to be in the public interest. In any
case in which the board of education has rejected all bids, it
may readvertise such personal property for a subsequent public
sale. If it elects to reject all bids at a second public sale,
pursuant to this section, it may then sell such personal property
without further publication or notice thereof at private sale,
provided that in no event shall the negotiated price at private
sale be less than the highest price of any bid rejected at the
preceding two public sales and provided further that in no event
shall the terms or conditions of sale be changed or amended.
f. If the estimated fair value of the property to
be sold does not exceed the applicable bid threshold established
pursuant to subsection a. of this section in any one sale or is
either livestock or perishable goods, it may be sold at private
sale without advertising for bids.
g. Notwithstanding the provisions of this section,
by resolution of the board of education, a purchasing agent may
include the sale of personal property no longer needed for school
purposes as part of specifications to offset the price of a new
purchase.
Amended 1983, c.171, s.7; 1999,
c.440, s.80.
18A:18A-46. No action for damages for action by officials
No action for damages shall lie against the State board, any
State official, or any board of education or any of its officers
because of any action taken by virtue of the provisions of this
chapter.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-46.1. Limitation on withholding of State funds from
school districts for certain violations of public school contracts
law
a. Notwithstanding any law to the contrary, except
as otherwise provided in this section, the Commissioner of Education
shall not withhold State funds from any school district, or require
any school district to remit any State funds previously paid to
that district, because of any act or omission by the district
which the commissioner determines to have been taken or permitted
to occur in violation of the extraordinary unspecifiable services
exception to the requirements for public advertisement and bidding
as set forth in N.J.S.18A:18A-5, unless the commissioner determines
that:(1)the act or omission was the result of any collusion between
any officer or employee of the district and any contract vendor;
or (2) the act or omission was prompted by an intent on the part
of any officer or employee of the district to evade the public
advertisement and bidding requirements of the "Public School
Contracts Law," N.J.S.18A:18A-1 et seq.; or (3) a prior act
or omission resulted in a withholding of State funds or a remission
of State funds due to a violation of the extraordinary unspecifiable
services exception to the requirements for public advertisement
and bidding as set forth in N.J.S.18A:18A-5.
b. If the commissioner determines that the violation
was caused by negligence and none of the provisions in paragraph
(3) in subsection a. are met, the amount of State funds withheld
shall not exceed 10% of the contract amount, or in the case of
multiple contracts, 10% of the total amount of the contracts,
or $25,000, whichever is less.
c. Any school district from which the commissioner withheld
funds or has sought to collect funds prior to the effective date
of this act due to a determination that the district acted or
permitted an action to occur in violation of the extraordinary
unspecifiable services exception to the requirements for public
advertising and bidding as set forth in N.J.S.18A:18A-5 may apply
to the commissioner for restoration of funds so withheld. If
the commissioner determines that none of the provisions set forth
in paragraph (1), (2) or (3) in subsection a. or in subsection
b. applies, the commissioner shall remit to the school district
the applicable funds previously withheld or forgive any amounts
pending collection.
d. The limitations placed upon the commissioner pursuant
to this act shall not restrict the commissioner's authority to
supervise the compliance by school districts with the requirements
of the "Public School Contracts Law," N.J.S.18A:18A-1
et seq., and to seek all other remedies pursuant to Title 18A
of the New Jersey Statutes.
P.L.1999,c.55,s.1.
18A:18A-47. Indemnity agreement
with the United States, etc.
Any board of education may enter into an agreement indemnifying
the United States of America, or any board, body, officer or agency
thereof, from loss or damage to the property of others resulting
from the furtherance of any project, undertaken or to be undertaken
by the Federal Government for the benefit of such board of education
where the cost or any part thereof is to be paid out of Federal
funds.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-48. Contracts, etc.; validated and confirmed
Any action, purchase, sale, contract or agreement taken, made
or entered into prior to the effective date of this chapter pursuant
to any of the acts, amendments and supplements repealed by this
chapter are hereby validated and confirmed, provided that in no
event shall a lease of personal property entered into prior to
the effective date of this chapter be renewed or extended, except
in accordance with the terms and provisions of this chapter.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-49. Approval required for school building
The board of education of a school district shall be required
to secure the approval of its final plans and specifications as
required by the State Uniform Construction Code for the erection
or alteration of any school building or vocational school building
or any part thereof by the Bureau of Facility Planning Services
in the Department of Education or an appropriately licensed municipal
code official.
Amended 1990,c.23,s.2.
18A:18A-49.1. Transportation of pupils to and from schools
The provisions of this chapter shall not apply to contracts for
the transportation of pupils to and from school, which contracts
are regulated by Chapter 39 of this Title.
P.L.1977, c. 114, s. 1, eff.
June 2, 1977.
18A:18A-49.2. Rules
Pursuant to the "Administrative Procedure Act," P.L.1968,
c.410 (C.52:14B-1 et seq.), the Director of the Division of Local
Government Services in the Department of Community Affairs, after
consultation with the Commissioner of Education, may adopt rules
implementing the provisions of the "Public School Contracts
Law," N.J.S.18A:18A-1 et seq.
P.L.1999,c.440,s.81.
18A:18A-50. Statutes repealed
The following sections, chapters and acts, together with all
amendments and supplements thereto, are hereby repealed:
Chapter 18 of Title 18A of the New Jersey Statutes;
Laws of 1969, c. 104, s. 2 (C. 18A:18-1.6);
Laws of 1971, c. 42 (C. 18A:18-2.1; C. 18A:18-2.2).
L.1977, c. 114, s. 1, eff. June 2, 1977.
18A:18A-51. Definitions
As used in this act:
a. "Minority" means a person who is:
(1) Black, which is a person having origins in any
of the black racial groups in Africa; or
(2) Hispanic, which is a person of Spanish or Portuguese
culture, with origins in Mexico, South America, Central America,
or the Caribbean Islands, regardless of race; or
(3) Asian-American, which is a person having origins
in any of the original peoples of the Far East, Southeast Asia,
the Indian Subcontinent, Hawaii, or the Pacific Islands; or
(4) American Indian or Alaskan native, which is a
person having origins in any of the original peoples in North
America;
b. "Women's business enterprise" means a
business which is independently owned and operated, which is qualified
pursuant to N.J.S. 18A:18A-27 and which is:
(1) A sole proprietorship owned and controlled by
a woman;
(2) A partnership or joint venture owned and controlled
by women in which at least 51% of the ownership is held by women
and the management and daily business operations of which are
controlled by one or more women who own it; or
(3) A corporation or other entity whose management
and daily business operations are controlled by one or more women
who own it, and which is at least 51% owned by women, or if stock
is issued, at least 51% of the stock is owned by one or more women;
c. "Minority business enterprise" means
a business which is independently owned and operated, which is
qualified pursuant to N.J.S. 18A:18A-27 and which is:
(1) A sole proprietorship, owned and controlled by
a minority;
(2) A partnership or joint venture owned and controlled
by minorities in which at least 51% of the ownership interest
is held by minorities and the management and daily business operations
of which are controlled by one or more of the minorities who own
it; or
(3) A corporation or other entity whose management
and daily business operations are controlled by one or more minorities
who own it, and which is at least 51% owned by one or more minorities,
or if stock is issued, at least 51% of the stock is owned by one
or more minorities;
d. "Small business enterprise" means a business
which is independently owned and operated, which is qualified
pursuant to N.J.S. 18A:18A-27 and which is a sole proprietorship,
partnership or corporation which is a size and type defined by
the Commissioner of the Department of Commerce, Energy and Economic
Development;
e. "Set-aside contract" means (1) a contract
for goods, equipment, construction, or services which is designated
as a contract for which bids are invited and accepted only from
small business enterprises, minority business enterprises or women's
business enterprises, as appropriate, (2) a portion of a contract
when that portion has been so designated, or (3) any other purchase
or procurement so designated; and
f. "Total procurements" means all purchases,
contracts or acquisitions of a board of education, whether by
competitive bidding, single source contracting, or other method
of procurement, as prescribed or permitted by law.
P.L. 1985, c. 490, s. 1; amended
1988,c.37,s.2.
18A:18A-52. Set-aside programs
a. A board of education may, by resolution, establish
a minority business enterprise set-aside program. In authorizing
such a program, the board of education shall establish a goal
of setting aside a certain percentage of the dollar value of total
procurements to be awarded as set-aside contracts to minority
business enterprises.
b. A board of education may, by resolution, establish
a women's business enterprise set-aside program. In authorizing
such a program, the board of education shall establish a goal
of setting aside a certain percentage of the dollar value of total
procurements to be awarded as set-aside contracts to women's business
enterprises.
c. A board of education may, by resolution, establish
a small business enterprise set-aside program. In authorizing
such a program, the board of education shall establish a goal
of setting aside a certain percentage of the dollar value of total
procurements to be awarded as set-aside contracts to small business
enterprises.
P.L. 1985, c. 490, s. 2; amended
1988,c.37,s.3.
18A:18A-53. Attainment of goals
a. Any goal established pursuant to section 2 of this
act may be attained by requiring that a portion of a contract
shall be subcontracted to a small business enterprise, minority
business enterprise or women's business enterprise, in addition
to designating entire contracts to these enterprises.
b. Each board of education shall make a good faith effort
to attain any goal established.
P.L. 1985, c. 490, s. 3; amended
1988,c.37,s.4.
18A:18A-54. "Public School Contracts Law" applicable
All provisions of the "Public School Contracts Law,"
N.J.S. 18A:18A-1 et seq., and any supplements thereto, shall apply
to purchases, contracts and agreements made pursuant to this act
unless otherwise superseded by the provisions of this act.
P.L. 1985, c. 490, s. 4, eff.
Jan. 17, 1986.
18A:18A-55. Designation of contracts
Notwithstanding the provisions of any law to the contrary, a
board of education which has established a small business enterprise
set-aside program, a minority business enterprise set-aside program
or a women's business enterprise set-aside program shall designate
that a contract, subcontract or other means of procurement of
goods, services, equipment, or construction shall be awarded to
a small business enterprise, a minority business enterprise or
a women's business enterprise, if the board is likely to receive
bids from at least two small business enterprises, minority business
enterprises or women's business enterprises, as appropriate, at
a fair and reasonable price.
The designations shall be made prior to any advertisement for
bids, if required. Once designated, the advertisement for bids,
if necessary, shall indicate that the contract to be awarded is
a small business enterprise set-aside contract, a minority business
enterprise set-aside contract or a women's business enterprise
set-aside contract, as appropriate. All advertisements for bids
shall be published in at least one newspaper which will best provide
notice thereof to small business enterprises, minority business
enterprises or to women's business enterprises, as appropriate,
sufficiently in advance of the date fixed for receiving the bids
to promote competitive bidding, but shall not be published less
than 10 days prior to that date.
P.L. 1985, c. 490, s. 5; amended
1988,c.37,s.5.
18A:18A-56. Withdrawal of designation
a. If the board of education determines that two bids
from small businesses, minority or women's businesses cannot be
obtained, the board may withdraw the designation of the set-aside
contract and resolicit bids on an unrestricted basis pursuant
to the provisions of N.J.S. 18A:18A-1 et seq. The cancelled designation
shall not be considered in determining whether or not the board
attained its goal established pursuant to section 2 of this act.
b. If the board of education determines that the acceptance
of the lowest responsible bid will result in the payment of an
unreasonable price, the board shall reject all bids and withdraw
the designation of the set-aside contract. Small business
enterprises, minority business enterprises or women's business
enterprises, as appropriate, shall be notified in writing of the
set-aside cancellation, the reasons for the rejection and the
board's intent to resolicit bids on an unrestricted basis pursuant
to the provisions of N.J.S. 18A:18A-1 et seq. The cancelled bid
solicitation shall not be considered in determining whether or
not the board attained its goal established pursuant to section
2 of this act.
P.L. 1985, c. 490, s. 6; amended
1988,c.37,s.6.
18A:18A-57. Annual report
Any board of education which has established a small business
set-aside program, a minority business enterprise set-aside program
or a women's business enterprise set-aside program shall prepare
a report by January 31 of each year describing the board's efforts
in attaining the set-aside goals and the percentage of the dollar
value of total procurements awarded in the immediately preceding
local fiscal year. The board of education shall publish a list
of its attainments in at least one newspaper circulating in the
school district by March 1 of each year.
P.L. 1985, c. 490, s. 7; amended
1988,c.37,s.7.
18A:18A-58. Rules, regulations
The State Board of Education, or any State department or agency
the State board may designate, may adopt rules and regulations
pursuant to the provisions of the "Administrative Procedure
Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.) as it may deem
necessary to effectuate the purposes of this act.
P.L. 1985, c. 490, s. 8, eff.
Jan. 17, 1986.
18A:18A-59. False information;
penalties
Where the local board of education determines that a business
has been classified as a small business enterprise, minority business
enterprise or women's business enterprise on the basis of false
information knowingly supplied by the business and has been awarded
a contract to which it would not otherwise have been entitled
under this act, the local board of education shall have the authority
to:
a. Assess the business any difference between the
contract amount and what the local board of education's cost would
have been if the contract had not been awarded in accordance with
the provisions of this act;
b. In addition to the amount due under subsection
a., assess the business a penalty in an amount of not more than
10% of the amount of the contract involved; and
c. Order the business ineligible to transact any business
with the local board of education for a period to be determined
by the local board of education.
Prior to any final determination, assessment or order under this
section, the local board of education shall afford the business
an opportunity for a hearing on the reasons for the imposition
of the penalties set forth in subsection a., b. or c. of this
section.
Amended 1988,c.37,s.11.
