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

Current through Register Vol. 56, No. 14, July 15, 2024
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.