New Jersey Administrative Code
Title 5 - COMMUNITY AFFAIRS
Chapter 34 - LOCAL PUBLIC AND PUBLIC SCHOOL CONTRACTS LAWS
Subchapter 9 - SPECIAL CIRCUMSTANCES
Section 5:34-9.4 - Concessions

Universal Citation: NJ Admin Code 5:34-9.4

Current through Register Vol. 56, No. 6, March 18, 2024

(a) The Local Public Contracts Law, 40A:11-1 et seq., and the Public School Contracts Law, 18A:18A-1 et seq., define the term "concession" as the granting of a license or right to act for or on behalf of the contracting unit, or to provide a service requiring the approval or endorsement of the contracting unit, and which may or may not involve a payment or exchange, or provision of services by or to the contracting unit. In the case of the Public School Contracts Law, vending machines are specifically excluded from the definition. Further, a concession is only subject to this section if it is awarded to or supports a for-profit organization or purpose.

(b) Concessions are specifically deemed to include, but are not limited to, the following:

1. The right to publish a map, newsletter, directory, or calendar containing the meeting schedules and other information about contracting unit services or activities where the contractor sells advertising as full or partial payment for providing the service;

2. Installation of "welcome to (name of entity)" signs on public property where a local organization pays a fee to the sign manufacturer, who may or may not make a payment to the contracting unit, and includes the name of the local organization on the sign;

3. Use of public space or facilities (such as scoreboards, bus shelter or facility advertising) for advertising in exchange for fees or services, or discounts on services;

4. Installation of vending machines in public facilities (except for vending machines in schools);

5. The donation, sale, installation, or maintenance of equipment or facilities for use of the contracting unit;

6. The choice of a local or long distance telephone service for pay phones on public property;

7. Copying machines in a government or library facility made available for public use;

8. The right to sell goods or services on public property; or

9. Other services, rights or use as may meet the definition of concession.

(c) A concession shall not be deemed to include contributions of goods, services, or financial support for the sponsorship of the celebration of public events where the contributions offset in full or in part the cost of the specific event. For the purpose of providing examples, such public events include, but are not limited to, seasonal recreation programs, concert series, holiday celebrations, and tourism related programs. In addition, vending machines in public facilities that are considered as protected speech under the United States Constitution, such as newspapers, or facilities used for collection of material being sent through a pickup and delivery service are not deemed to be a concession.

(d) Prior to commencing procurement of any concession, the governing body of the contracting unit shall:

1. Obtain from legal counsel an opinion of the legality of procuring the concession; and

2. Pass a resolution authorizing the procurement of a concession. The resolution shall include:
i. A description of the public need to award a concession;

ii. The concession to be awarded;

iii. The considerations, including the benefits and any risks the governing body took into account in reaching the decision to award a concession;

iv. An estimate of the total value of the concession;

v. If any, an estimate of any revenue or services to be received by the contracting unit;

vi. The basis of award of the concession is based upon the most advantageous price and other factors or the lowest responsible bidder;

vii. An estimate of any costs to be incurred by the contracting unit as part of the concession;

viii. Any services, facilities, or endorsement to be provided by the contracting unit; and

ix. The method to be used to procure the concession pursuant to (g) below.

(e) The original legal opinion and resolution required in (d) above shall suffice for purposes of the subsequent procurement of a particular concession where the entire procurement process had been previously completed.

(f) The total estimated value of the concession shall be considered as the aggregate value in determining the procurement method that will be used. The concession shall be awarded in accordance with the relevant procedure for the method used to procure the concession. The total estimated value shall include all revenue, if any, that may be expected to be received by the concessionaire, which shall be deemed to include the value of all payments, goods, and services received by the contracting unit. A specific exception to this subsection shall be the use of bank automated teller machines or other cash vending machines. The threshold for this service shall be based on the estimated annual value of fees charged to users of the service and the value of all payments, goods and services received by the contracting unit.

(g) Unless otherwise specifically provided for by law, concessions shall be awarded through either of the following means:

1. By informal quotations, when the total estimated value of the concession is less than the bid threshold; or

2. By receipt of public bid or competitive contracting, when the total estimated value of the concession exceeds the bid threshold or at any time at the option of the governing body.

(h) While contracting units that are boards of education are not required to use the concession process for food and drink vending machines, the use of these provisions are recommended to enhance the integrity of the procurement process. If a contracting unit that is a board of education combines food and drink vending machines with concessions in a single procurement, the procedures of this section shall apply for the entire procurement.

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