Current through Register Vol. 56, No. 14, July 15, 2024
(a) A local
government unit may accept unsolicited proposals from private entities for
public-private partnership agreements. A local government unit shall develop a
process for accepting unsolicited proposals in expectation of receipt of an
unsolicited proposal.
(b) An
unsolicited proposal shall include, at a minimum, the following:
1. A description of the proposed
public-private project, including the identified local government unit need to
be fulfilled by the proposed project;
2. The estimated construction and life-cycle
costs;
3. A timeline for
development;
4. Proposed plan of
financing, including projected revenues, public or private, debt, equity
investment, and a description of how the project meets needs identified in
existing plans;
5. An
identification of the permits, approvals, and/or variances needed from local,
State, and/or Federal agencies in order to develop the project; and
6. A projected schedule for obtaining such
permits and approvals, and a statement of risks, liabilities, and
responsibilities to be assumed by the private entity.
(c) A private entity submitting an
unsolicited proposal shall provide a copy in which all proprietary information
has been redacted, so that the description of the proposed public-private
project may be shared publicly. In the event that a redacted copy is not
provided, all materials shall be considered releasable.
(d) In the event that an unsolicited proposal
is received, a local government unit's governing body shall determine, on the
record, whether the following factors have been met:
1. There is a public need for the project and
the project is consistent with existing long-term plans;
2. The project will cost less than a public
sector option, or if it costs more, there are factors that warrant the
additional expense;
3. There are
specific significant benefits to the project;
4. There are specific significant benefits to
using the public-private partnership instead of other options including
No-Build;
5. The private
development will result in timely and efficient development and operation;
and
6. The risks, liabilities, and
responsibilities transferred to the private entity provide sufficient benefits
to warrant not using other means of procurement.
(e) If the local government unit receives an
unsolicited proposal, and determines that it meets the above factors, the local
government unit shall give notice to the public of an opportunity to submit
competing proposals to be considered in comparison to the proposed project
outlined in the unsolicited proposal. The local government unit shall:
1. Publish a notice of the receipt of the
proposal on the Internet site of the local government unit and through
advertisement in at least one newspaper with Statewide circulation;
2. Provide notice of the proposal at its next
scheduled public meeting of the local government unit and to the State
Treasurer. The notice shall specify the standards for evaluation and ranking of
any proposals received in response to the notice;
3. The notice shall provide that the local
government unit shall accept, for 120 days after the initial date of
publication, proposals meeting the standards outlined in the unsolicited
proposal from other private entities for eligible projects that satisfy the
same basic purpose and need; and
4.
Mail a copy of the notice to each municipal and county local government body in
the geographic area affected by the proposal.
(f) After the 120 days of public notice have
expired and any additional proposals have been received, the local government
unit shall rank the proposals in order of preference.
1. In ranking the proposals, the local
government unit shall, at a minimum, rely upon the factors outlined in (d)
above.
2. The local government unit
may also consider factors that include, but are not limited to: professional
qualifications of the entities participating in the proposed project; general
business terms and conditions of the proposed project; any innovative
engineering, architectural services, or cost-reduction terms, included in the
project; the terms of the finance plan for the project; and the need for any
contribution of local government funds required to deliver the project and/ or
discharge the agreement.
3. The
private entity selected shall comply with all laws and rules, including, but
not limited to,
section
1 of
P.L.
2001, c. 134 (N.J.S.A.
52:32-44),
sections
2 through
8 of P.L. 1975, c. 127
(N.J.S.A. 10:5-32 to 38),
section
1 of P.L. 1977, c. 33 (N.J.S.A. 52:25.24-2),
P.L.
2005, c. 51 (N.J.S.A.
19:44A-20.13et seq.), P.
L.
2005, c. 271 (N.J.S.A.
40A:11-51et seq.), Executive Order No. 117 of 2008, Executive Order No. 118 of
2008, and Executive Order No. 189 of 1988, prior to executing the
public-private partnership agreement.
(g) If no proposals are received in addition
to the unsolicited proposal, then the local government unit shall negotiate in
good faith and, if not satisfied with the results of the negotiations, the
local government unit may, at its sole discretion, terminate
negotiations.
(h) All unsolicited
proposals shall be subject to the requirements of N.J.A.C. 17:49-6.2 and
6.3.
