New Jersey Administrative Code
Title 5 - COMMUNITY AFFAIRS
Chapter 34 - LOCAL PUBLIC AND PUBLIC SCHOOL CONTRACTS LAWS
Subchapter 10 - DESIGN-BUILD CONTRACTS
Section 5:34-10.2 - Definitions
The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise:
"Acceptance" means the adoption of a resolution by a contracting unit authorizing the execution of a design-build contract.
"Act" means sections 26 through 41 at P.L. 2021, c. 71.
"Best value selection" means a process in which consideration is given to both a price proposal and a technical proposal, and the award of the design-build contract is based upon a combination of price and qualitative considerations pursuant to sections 28 and 36 at P.L. 2021, c. 71, and N.J.A.C. 5:3410.8, such that the successful bidder is the one whose price bid and technical proposals together are most advantageous to the contracting unit, price, and other factors considered.
"Bidder" means a design-builder submitting a statement of qualifications, or a statement of qualifications and proposal, in response to a request for qualifications or request for proposals for an award of a design-build contract.
"Construction documents" means the plans, specifications, and other documents prepared by the design-builder that set forth in detail the design for, and other necessary requirements relating to, the construction of the design-build project.
"Contract milestones" means the dates identified in the project schedule by which the design-builder must complete certain critical activities to advance the project.
"Contracting unit" means a government entity that enters into contracts pursuant to the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.), or pursuant to the Public School Contracts Law, P.L. 1977, c. 144 (N.J.S.A. 18A:18A-1 et seq.).
"Delivery system" means the procedure used to develop and construct a project.
"Design-bid-build" means the delivery system used in public projects in which a licensed and prequalified design professional or designated employee develops the project design in its entirety; the contracting unit then solicits bids and awards the contract to the lowest responsible bidder that demonstrates the ability to complete the project specified in the design.
"Design-build contract" means a contract between a contracting unit and a design-builder to provide labor, materials, and other construction services for a public project. A design-build contract may be conditional upon subsequent refinements in scope and price and may permit the contracting unit to make changes in the scope of the project without invalidating the design-build contract.
"Design-build project" means the planning, acquisition, demolition, construction, improvement, alteration, modernization, renovation, reconstruction, or rehabilitation of all or any part of a facility or right-of-way, or of any other personal property necessary for, or ancillary to, any facility or rightof-way, and shall include fixtures, furnishings, and equipment, and shall also include, but is not limited to, site acquisition, site development, architectural and engineering services, construction management, legal services, financing costs, and administrative costs and expenses incurred in connection with the project.
"Design-build project delivery" means a project delivery system that combines all or some portions of the design and construction phases of a construction project into a single contract, including, without limitation, design and regulatory permit approvals.
"Design-builder" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor, that proposes to design and construct any public project, who possesses a public works contractor registration pursuant to the provisions at P.L. 1999, c. 238(N.J.S.A. 34:11-56.48 et seq.), and who possesses, along with other individual members of the design-build team, requisite classifications or ratings from the New Jersey Division of Property Management and Construction or the New Jersey Department of Transportation, where applicable, relevant to perform work on the project.
"Design official" means an employee of the contracting unit that is both licensed to provide architectural, engineering, and/or surveying services, in accordance with N.J.S.A. 45:3-1 et seq., and P.L. 1938, c. 342 (N.J.S.A. 45:8-27 et seq.), and designated by the contracting unit to be responsible for planning, designing, and observing the construction of a design-build project or projects on behalf of the contracting unit.
"Design professional" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor, that provides licensed and prequalified architectural, engineering, and/or surveying services, in accordance with N.J.S.A. 45:3-1 et seq., and P.L. 1938, c. 342 (N.J.S.A. 45:8-27 et seq.), and that shall be responsible for planning, designing, and observing the construction of the project or projects on behalf of the contracting unit or the design builder.
"Key team member" means an individual identified as having a responsible role in the successful completion of the design-build contract, in the bidder's statement of qualifications and proposal, which response is made part of the contract.
"Legal requirements" means all applicable Federal, State, and local laws, acts, statutes, ordinances, codes, executive orders, rules, and regulations in effect, or hereinafter promulgated, that apply to the design-builder's performance of services or work under the agreement, including, but not limited to, the New Jersey Prevailing Wage Act, P.L. 1963, c. 150 (N.J.S.A. 34:11-56.25 et seq.), the Public Works Contractor Registration Act, P.L. 1999, c. 238(N.J.S.A. 34:11-56.48 et seq.), and the Construction Industry Independent Contractor Act, P.L. 2007, c. 114(N.J.S.A. 34:20-1 et seq.), the Occupational Safety and Health Act of 1970, the Soil, Erosion, and Sediment Control Act, as well as any requirements of State, Federal, or local authorities having jurisdiction over the project, as applicable.
"Notice of award" or "NOA" means a written notice from the contracting unit to the bidder prior to award, setting forth the contracting unit's intention to enter into a design-build contract with the bidder.
"Performance specifications" means a document provided in the RFP setting forth a description of an end result, objective, or standard of performance that the design-builder is expected to achieve in designing and constructing the project.
"Prequalification" means the contracting unit's approval of a bidder to submit a statement of proposal in response to a request for proposals for a design-build contract.
"Prequalified bidder" means a bidder designated by the contracting unit, based on a statement of qualifications submitted by the bidder, as eligible to submit a proposal in response to a request for proposals issued by the contracting unit.
"Prescriptive specifications" means a document provided in the request for proposals that contains a description of the materials to be employed and/or the manner in which the work is to be performed that the design-builder is required to follow.
"Price proposal" means a sealed proposal containing the maximum cost of providing the required design and construction and other services described in the RFP, which shall not be exceeded if the contracting unit accepts the proposal without change.
"Proposal" means a technical proposal and price proposal submitted together by a bidder in response to a request for proposals from a contracting unit.
"Proposal evaluation factors" means the requirements for the second phase of the selection process when statements of proposal are reviewed.
"Protest" means a challenge to a decision, statement, action, or alleged inaction of the contracting unit.
"Public highway" means public roads, streets, expressways, freeways, parkways, motorways, and boulevards, including bridges, tunnels, overpasses, underpasses, interchanges, rest areas, express bus roadways, bus pullouts and turnarounds, park-ride facilities, traffic circles, grade separations, traffic control devices, the elimination or improvement of crossings of railroads and highways, whether at grade or not at grade, bicycle and pedestrian pathways, and pedestrian and bicycle bridges traversing public highways.
"Public transportation project" means in connection with public transportation service, passenger stations, shelters, terminals, automobile parking facilities, ferries and ferry facilities, including capital projects for ferry terminals, approach roadways, pedestrian accommodations, parking, docks and other necessary land-side improvements, ramps, track connections, signal systems, power systems, information and communication systems, roadbeds, transit lanes, or rights-of-way, equipment storage, pedestrian walkway, and bridges connecting to passenger stations and servicing facilities, bridges, grade crossings, maintenance facilities, and garage facilities.
"Punchlist" means the list of incomplete or defective work, including work that does not comply with applicable code or legal requirements, to be performed or remedied by the design-builder. Punchlist(s) shall be prepared by the bridging architect in conjunction with the design professional prior to the issuance of the certificate of substantial completion.
"Qualification evaluation factors" means the requirements for the first phase of the selection process when statements of qualification are reviewed, and shall include, but not be limited to: specialized experience, training certification of professional and field workforce, technical competence, capacity to perform, safety modification rating, past performance, and other appropriate factors.
"Ranking" means the process of listing responsive bidders in order of highest to lowest total scores, based upon selection criteria specified in the RFQ and/or RFP.
"Request for proposals" or "RFP" means the document issued by the contracting unit in the second phase of a two-phase selection process that describes the procurement process and forms the basis for the design-build proposals.
"Request for qualifications" or "RFQ" means the document advertised by the contracting unit in the first phase of the two-phase selection process that describes the project in enough detail to allow potential bidders to determine if they wish to compete for a design-build contract and that requests information from bidders regarding the qualifications, experience, and organizational structure of the bidder's proposed design-build team, which information can be used by the contracting unit to prequalify bidders to submit proposals for a design-build contract.
"Schedule" means the schedule prepared and submitted by the bidder in its technical proposal to the contracting unit, wherein the bidder identifies all critical, and certain non-critical, activities, contract milestones, and the projected and actual time periods for completing such activities and contract milestones.
"SDA school district" means a school district that received education opportunity aid or preschool expansion aid in the 2007-2008 school year, as defined at P.L. 2007, c. 260, §39(N.J.S.A. 18A:7G-3).
"Selection coordinator" means the administrator of the operations and procedures of the selection process, whose activities shall include, but are not limited to, scheduling of meetings, preparing agendas, recording scores, verifying submittal information, preparing minutes of selection committee meetings, and other similar administrative duties.
"Specification" means a written description included as part of the construction documents, which sets forth the detailed technical and functional characteristics of, or the discrete design for, an item of material, equipment, or work to be incorporated into the design-build project, or a requirement of the work to be performed. A specification may include a statement of any of the contracting unit's requirements and may provide for inspection, testing, or the preparation of a construction item before procurement. Specifications shall augment and complement the drawings and plans prepared by the design-builder.
"Statement of qualifications" means the document(s) submitted by bidders in response to an RFQ that describes the qualifications and capabilities of the bidder and its key team members to perform the scope of services to be included in a design-build contract.
"Stipend" means the fee paid to a design-builder by a contracting unit to encourage competition.
"Substantial completion" means that point in time in the progress of the design-build project when certain conditions specified by the design-build contract have occurred, including, but not limited to, the issuance of a temporary certificate of occupancy, the creation of a punchlist, and the determination that the design-build project is ready for use or occupancy, in accordance with its intended use.
"Technical review committee" means a selection committee composed of at least a qualified purchasing agent designated as the contracting unit's purchasing agent, the contracting unit's authorized design professional or design official, and the contracting unit's project manager, if this individual is separate from the other aforementioned members, who are responsible for reviewing and evaluating responses by bidders to an RFQ and RFP. If a contracting unit subject to the Local Public Contracts Law does not have a designated purchasing official that is certified as a qualified purchasing agent, then the governing body shall appoint, as applicable to the contracting unit, a business administrator, municipal manager, chief financial officer, or treasurer onto the committee. If a contracting unit subject to the Public School Contracts Law does not have a designated purchasing official that is certified as a qualified purchasing agent, then the board of education shall appoint the school business administrator to serve on the committee. No governing body member shall be appointed to the technical review committee.
"Technical proposal" means the design solutions and other qualitative factors that are provided by a bidder in response to an RFP.
"Transportation project" means the construction or reconstruction of a public highway, public transportation project infrastructure, rail freight infrastructure, or other surface, underground, airborne, or waterborne transportation infrastructure for the movement of people and/or goods.
"Two-phase selection process" means a procurement process in which the first phase consists of prequalifying bidders based on statements of qualification submitted in response to an RFQ, and the second phase consists of the submission of price and technical proposals by bidders in response to an RFP.
"Work" means all design and construction services performed by the design-builder and its team, including providing all material, equipment, tools, and labor, necessary to complete the construction, as described in, and reasonably inferable from, the construction documents and the design-build contract.
