New Jersey Administrative Code › Title 17 - TREASURY - GENERAL › Chapter 12 - DIVISION OF PURCHASE AND PROPERTY: PROCUREMENT BUREAU; CONTRACT COMPLIANCE AND AUDIT UNIT; AND DISTRIBUTION SUPPORT SERVICES UNIT › Subchapter 2 - ADVERTISED PROCUREMENT PROCEDURES › Section 17:12-2.13 - Preference laws; out-of-State vendors

Current through Register Vol. 56, No. 14, July 15, 2024
(a) The following
				words and terms, when used in this section, shall have the following meanings,
				unless the context clearly indicates otherwise.
"In-State preference" or "in-state preference" means a
				  procedure established by statute, rule, regulation, or practice whereby a state
				  or local government procurement agency gives a bidder an advantage in the
				  evaluation of proposals based on whether the bidder maintains its principal
				  place of business within the borders of the state or locality, and includes any
				  advantage given to a bidder based on whether the goods or services offered in a
				  proposal were produced, manufactured, mined, or grown within the borders of the
				  state or locality.
"Out-of-State bidder" means a bidder that does not have a
				  regular place of business in New Jersey.
"Principal place of business" means a bidder's office,
				  factory, warehouse, or other space which is recognized by a state or local
				  government as the basis for applying an in-state preference in favor of the
				  bidder.
"Regular place of business" means a bona fide office,
				  factory, warehouse, or other space that is regularly maintained by the bidder,
				  occupied by one or more of the bidder's employees, and used in carrying on the
				  bidder's business. The maintenance of a temporary job site or field office in
				  New Jersey, the storage of goods in New Jersey, and the employment of an
				  independent agent or subcontractor in New Jersey do not, individually or
				  combined, constitute a regular place of business.
(b) Pursuant to the provisions of
				52:32-1.4 et seq., the Director
				shall apply on a reciprocal basis against an out-of-State bidder any in-state
				preference that is applied in favor of that bidder by the state or locality in
				which the bidder maintains its principal place of business.
(c) The Director shall provide notice of the
				Division's intent as to in-state preference through appropriate language in the
				terms, conditions, and/or specifications of the RFP.
(d) For purposes of implementing the
				provisions of this section, the Director shall make available upon request for
				public inspection a list of states having statutes, rules, and/or regulations
				that grant in-state preferences in the competitive bidding for goods and
				services. Such list may be based on surveys conducted by the Division and/or by
				research conducted by national organizations of state and local governments,
				procurement agencies, government officials, and purchasing agents, such as the
				National Association of State Purchasing Officials, the National Institute of
				Governmental Purchasing, and the Council of State Governments. In addition, the
				Director may receive and review information from prospective bidders that
				indicates that any state or local government agency outside of New Jersey
				applies an in-state preference in its procurement statutes, rules, regulations,
				ordinances, charters, or practices.
(e) The Director shall also apply in-State
				preference in the evaluation of proposals whenever a proposal is received from
				an out-of-State bidder where residential preference statutes, rules,
				regulations, or practices exist in political sub-divisions of a state. It shall
				be the responsibility of the bidder or bidders for a specific procurement to
				provide written evidence to the Director of the existence of such local
				government preference rules, regulations, ordinances, charters, or practices
				either with the bidder's proposal or within five business days after the
				deadline for proposal submission. Written evidence that is not provided to the
				Director within five business days of the public proposal opening may not be
				considered in the evaluation of that procurement, but may be retained and
				considered in the evaluation of subsequent procurements.
(f) Consistent with the procedures and
				practices of the Division, the Director shall reasonably apply any reciprocal
				in-State preference in a similar manner and to similar effect as the other
				state or locality. Where an in-state preference is applied by another state or
				locality in the form of a percentage which is added to or subtracted from
				bidders' prices, markups, or discounts, the Director shall similarly apply the
				same percentage against an affected out-of-State bidder. Where an in-state
				preference is applied by another state or a locality in the form of a
				categorical rejection of certain proposals, the Director shall apply a similar
				categorical rejection against an affected out-of-State bidder.
(g) The bidder or bidders that would benefit
				by the imposition of in-State preference must otherwise be eligible for an
				award as a responsive and responsible bidder.
(h) The Director may waive a reciprocal
				in-State preference in a specific procurement where such waiver would be in the
				best interests of the State, including where the resulting prices for goods and
				services would exceed the reasonable estimate of the using agency or would
				otherwise be unreasonably high, or where the State is entering into a long-term
				contract or a contract for large quantities of goods or services.
(i) The Director shall, as necessary, waive a
				reciprocal in-State preference on procurements supported by Federal funds where
				Federal rules prohibit the use of residential preference.
(j) The Director may waive reciprocal
				in-State preference when the action would result in an award to a bidder having
				a poor record of performance, pursuant to
				17:12-2.8 or a record of
				complaints and/or contract terminations pursuant to N.J.A.C. 17:12-4.
(k) The Director may waive reciprocal
				in-State preference when a public exigency requires the immediate delivery of
				articles or performance of the service.
(
l
) Nothing in this section
				shall be deemed to modify or restrict the authority of the Director, pursuant
				to 52:34-12, to award any contract to
				the bidder the Director determines has offered the proposal that is "most
				advantageous to the State, price and other factors considered."