The Township Administrator, subject to the Charter
and ordinances of the Township and under the general direction of
the Township Council, shall purchase all materials, supplies and equipment
to be furnished and work and labor to be done for the Township, except
that the plans and specifications for all public work contracts and
the award of such contracts shall be delegated to the Township Engineer
for report and recommendation to the Council.
There shall be an interdepartmental Purchasing
Standards Committee, consisting of the Township Administrator, Clerk
and Engineer, who shall review the various needs of the departments
for goods and services and, so far as practicable, establish uniform
standards for requisitions and purchases. Such standards, when approved
by the Council, shall be binding upon all departments of the Township
government.
[Adopted 10-6-2014 by Ord. No. 14-44]
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A. Social responsibility is a concern in awarding public contracts,
and the contracting authority shall require all bidders to certify
to bidder's record of conformity with environmental, labor, and health
and safety laws, including compliance with the requirements of the
United States Department of Labor's Occupational Safety and Health
Administration. The bidder and its subcontractors must participate
in an apprentice program, registered and approved by the United States
Department of Labor, for each separate trade or classification for
which it employs craft employees, unless the contractor or subcontractor
certifies that every worker shall be paid not less than the journeyworker's
rate established for the apprenticeable trade performed pursuant to
P.L. 1963, c. 150 (N.J.S.A. 34:11-56.25 et seq.). All bidders and
subcontractors must continue to participate in such apprenticeship
programs for the duration of the project. In additional, the bidder
and any and all of its subcontractors will be required to show that
such apprenticeship programs provide each trainee with combined classroom
and on-the-job training under the direct and close supervision of
a highly skilled worker in an occupation recognized as an apprenticeable
trade and meets the program's performance standards of enrollment
and graduation under 29 CFR 29.6. Furthermore, the bidder shall be
required to demonstrate and affirm that it is in compliance with the
provisions of N.J.S.A 34:20-1 et seq., "Construction Industry Independent
Contractor Act."
B. Satisfactory evidence that it provides a benefit configuration being
no less than required under N.J.S.A. 34:11-56.25 et seq., "New Jersey
Prevailing Wage Act," is minimally required to demonstrate that a
bidding entity is "responsible." Furthermore, the bidder shall affirm
that it has made a good-faith effort to provide 25% of all project
work hours to residents of the Township of Bloomfield. For the purposes
of this section, good-faith effort shall constitute a minimum of at
least two community job fairs related to the construction of this
project and adherence to the aforementioned provisions of being considered
a "responsible bidder." Should it be established, after awarding of
a contract, that any of the information required by this article and
provided by the bidding entity to the Township of Bloomfield was falsified
or inaccurate, the contract shall be voided.
If any provision of the article shall be held to be invalid
or unenforceable by a court of competent jurisdiction, any holding
shall not invalidate any other provisions of this article, and all
remaining provisions shall remain in full force and effect.
The following definitions shall govern this article:
PUBLIC CONSTRUCTION CONTRACT
Any public construction project for the construction, reconstruction,
demolition or renovation of publicly owned buildings performed by
or at the direction of the Township of Bloomfield at the public expense
for a cost of $5,000,000 or more, for which it is required by law
that workers be paid the prevailing wage determined pursuant to the
"New Jersey Prevailing Wage Act," P.L. 1963, c. 150 (N.J.S.A. 34:11-56.25
et seq.).
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
[Added 4-29-2019 by Ord.
No. 19-17]
A. Whereas:
(1)
To protect its financial investments and its substantial proprietary
interests as a market participant, the Township of Bloomfield has
a compelling interest in ensuring that all its contracts for public
construction projects that it undertakes for which it provides financial
assistance are performed promptly, at reasonable costs and with the
highest degree of quality by qualified, reputable contractors and
properly trained and skilled workers and for these reasons shall implement
this section; and
(2)
The requirements of this section are intended to supplement,
not replace, existing contractor qualification and performance standards
or criteria currently required by the Local Public Contracts Law,
N.J.S.A. 40A:11-1 et seq., other contracting provisions as outlined
herein or other legislative obligations; and
(3)
In order to fulfill its obligations as outlined under N.J.S.A.
40A:11-1 and to ensure that contracts are awarded in an atmosphere
that invites competition and guards against favoritism, improvidence,
arbitrary conduct, extravagance, fraud, corruption, and for the purpose
of securing the best project work results possible at the lowest cost
practicable; and
(4)
The Township of Bloomfield, pursuant to N.J.S.A. 40A:11-2(32),
possesses certain discretion in determining the "lowest responsible
bidder" and is entitled to specify the terms of the contract when
its solicits bids along with the criteria that bidders must meet in
order to be considered a "responsible" bidder pursuant to N.J.S.A.
40A: 11-25 and in the exercise of its proprietary duties and responsibilities
so as to ensure that bidders are qualified responsible firms that
understand the unique challenges affecting construction project delivery,
including, but not limited to, selecting subcontractors who have developed
a satisfactory record of past performance and adequate expertise,
including a highly trained workforce and an established record of
successfully performing work projects in a safe, timely, cost effective
and professional manner; and
(5)
The Township of Bloomfield solicits bids and/or proposals on
many different types of construction contracts with varying factors
affecting each procurement decision, and therefore must take into
account the reasonable benefits arising from each bid and in the exercise
of and in order to protect its proprietary interests due to the substantial
taxpayer investments involved in the public construction project(s);
and
(6)
In order to protect its substantial proprietary interests, the
Township of Bloomfield has the inherent right to adopt procurement
licensing and economic development regulations/ordinances and so as
to ensure and pursuant to N.J.S.A. 40A:11-4 that the bidder has not
had a prior negative experience and so as to impose bid specifications
designed to ensure the performance capabilities of prospective bidders
pursuant to N.J.S.A. 40A:11-25; and
(7)
Due to the magnitude of the bid threshold herein and in order
to ensure the intended purpose of each of its work projects and that
financial responsibility is an important factor in determining the
lowest responsible bidder for public construction projects for which
it provides financial assistance, the Township of Bloomfield, through
its contracting authority, shall require that every contractor and
subcontractor that bids on a public construction project contract
produce satisfactory evidence that the contractor/subcontractor is
properly registered and authorized to conduct the type of work to
be performed, including evidence that demonstrates that the entity
possesses, complies with, and maintains such compliance with all valid
licenses, registrations, ordinances and certificates required by the
federal, state, and county laws, as well as complying with any general
business license requirements of the Township of Bloomfield both prior
to the award and during the term of the contract; and
(8)
The Township of Bloomfield, in order to make its determination
as to whether the bidding entity is responsible, shall confirm and
substantiate that the contract awardee(s) can reasonably be expected
to complete and perform under the contract specifications, and the
Township of Bloomfield, pursuant to N.J.S.A. 40A:11-20 through 40A:11-22
et seq., may require the successful bidder to post a bid performance
and/or material bond(s) as well as the submission of documentation
to verify that the successful bidder has secured any insurance requirements
as required by applicable law and in conformance with said law, including
general liability insurance, workers' compensation insurance and unemployment
compensation insurance; and shall also determine if the successful
bidder can reasonably be expected to complete the project within the
time constraints as delineated in the request for bids and other procurement
documents; and shall, through the submission of documents from the
bidder(s) and pursuant to N.J.S.A. 40A:11-20 through 40A:11-22 determine
if the bidding entity maintains a satisfactory level of past performance
and integrity as well as possesses the financial, supervisory, personnel,
material, equipment, and other resources and expertise required to
satisfactorily meet that entity's contractual responsibilities and
obligations; and
(9)
In its determination of whether a bidder is "responsible," and
to avoid any risks to projects caused by unqualified firms or firms
held to be considered unsafe, the Township of Bloomfield shall consider
a bidder's record of conformity with environmental, labor and health
and safety laws and regulations, including compliance with the requirements
of the U.S. Department of Labor's Occupational Safety & Health
Administration ("OSHA") and the New Jersey Department of Labor and
Workforce Development. In order to ensure that its workforce is compliant
with safe working procedures in order to protect the public as well
as to ensure to the greatest extent possible that work site accidents,
injuries, etc., are minimized shall affirm that any employee which
will be assigned to the work project at a minimum has completed at
least the ten-hour training course for safety standards established
by OSHA; and
(10)
Current challenges in the construction labor market relating
to the supply of skilled craft personnel exacerbate normal construction
industry challenges, including those impacting project cost, quality
of work, safety and scheduling parameters, which has been well documented
by numerous industry sources both nationally and locally for over
a decade, including Confronting the Skilled Workforce Shortage, Construction
Users Roundtable (June 2004); The Perfect Storm: Factors Come Together
Creating a Storm in the Construction Workforce, The Construction Executive
(June 2004); America's Construction Industry: Identifying and Addressing
Workforce Challenges, ETA/Business Relations Group Report (Dec. 2004);
Craft Labor Supply Outlook: 2005-2015, Construction Labor Research
Council (2004); 2013 U.S. Markets Construction Overview, FMI Corporation
(2012); 2013 Dodge Construction Outlook, McGraw-Hill Construction
Research & Analytics Group (Oct. 2012); Construction Users Roundtable,
Skilled Labor Shortage Risk Mitigation; WP-110 I, January 2015; Pam
Hunter. Firms Anticipate More Worker Shortages Ahead, Engineering
News Record, p. 13, February 9, 2015; and
(11)
In addition to a growing demand and shrinking supply, one of
the key factors driving and further compounding construction industry
skill supply challenges has been the continuous decline in skill training
in this industry generally over the past several decades, a fact documented
by the U.S. Commerce Department; L. Huang, Robert E. Chapman, and
David T. Butry, Metrics and Tools for Measuring Construction Productivity;
Technical and Empirical Considerations, U.S. Department of Commerce,
National Institute of Standards and Technology, Office of Applied
Economics, p. 23 (Sept. 2009); and
(12)
The growing need of meeting skilled labor demands and the general
decline of a pool of trained workers produces conditions that increase
the likelihood of contractors and subcontractors deploying unskilled,
untrained workers to construction job sites, including persons who
receive little or no adequate safety training and, consequently, due
to the inherent dangers that exist within the construction industry,
pose serious risks of injury to themselves, their coworkers and the
general public, while also undermining important cost factors as well
as the scheduling goals of capital projects; and
(13)
Leading organizations in the construction industry, including
trade associations representing project owners such as the Construction
Users Roundtable, have repeatedly issued strong recommendations to
parties purchasing construction services for large capital projects
that, due to persistent, acute labor supply challenges, contractors
and subcontractors should be prequalified on the basis of craft labor
training to protect the project owner's financial and proprietary
interests by ensuring that such firms have an adequate supply of trained,
skilled craft personnel to perform the project; Confronting the Skilled
Workforce Shortage, Construction Users Roundtable (June 2004); Construction
Users Roundtable, Skilled Labor Shortage Risk Mitigation, WP-1101,
January 2015; and
(14)
In seeking to address and remediate issues of construction skill
shortages and the problems they cause for the industry, including
safety risks, the United States Congress passed the Fitzgerald Act,
Pub. L. No. 75-308, 560 Stat. 664, H.R. REP. No. 75-945 (the National
Apprenticeship Act), which created a system in which workers could
be properly trained in construction skills and safety procedures through
registered, formal apprenticeship training programs that meet established
qualification, safety and performance standards and that such programs
registered and approved by the United States Department of Labor (US
DOL), stresses the need to expand industry apprenticeship programs
as a means of building the pool of skilled labor, especially in the
construction industry, U.S. Departments of Labor, Commerce, Educations,
and Health and Human Resources, What Works in Job Training: A Synthesis
Of the Evidence 8 (July 22, 2014); and
(15)
The courts have recognized that states, counties and local jurisdictions,
acting to protect substantial proprietary interests, have the right
to stop procurement, licensing and economic development legislation
and/or to impose contract bid specifications designed to ensure the
performance capabilities of all prospective bidders and their employees,
including apprenticeship training requirements and other craft labor
qualifications; see Bldg. & Const. Trades Council of the Metro.
Dist. V: Assoc. Builders & Contractors of Mass.IR.I, Inc., 407
U.S. 218 (1993); Associates Builders & Contractors v. Mich. Dep't
of Labor & Econ. Growth, S43 F.3d 275 (6th Cir. 2008); Hotel Employees
& Restaurant Emps. Union, Local 57 v. Sage Hospitality Res., LLC,
390 F2d 206 (3'd Cir. 2004); Associated Builders & Contractors,
Inc., New Castle County - F. Supp. 3d, 2015 WL 7257916 (D. Del. Nov.
17, 2015); and
(16)
Due to the critical impact that skilled construction craft labor
has on public construction projects due to the limited availability
of skilled construction craft labor, as well as, potential imminent
skill shortages, and most significantly due to the magnitude of the
threshold amount herein and so as to insure that the work project
be completed in a timely and safe manner in order to protect its proprietary
interests and the interest of the taxpayer funding of such projects,
it is necessary to require contractors and subcontractors to participate
in established, formal apprenticeship training programs for the purpose
of promoting successful, cost effective project delivery; and
(17)
The most efficient means that bidders and their subcontractors'
have in order to ensure a highly trained, safety conscious and skilled
workforce, as well as, to provide for a safe project delivery is to
require that bidders utilize an apprenticeship training program, registered
with and approved by the US DOL, or any state agency having equal
or higher requirements as the US DOL, for each separate apprenticeable
occupation for which it employs employees in compliance with the performance
standards of enrollment and graduation under 29 CFR 29.5 and 29.6.
The bidder shall be further required to demonstrate and affirm in
its Contractor Certification Form that it is in compliance with 29
CFR Part 29, as well as the provisions of N.J.S.A. 34:20-1 et seq.
the "Construction Industry Independent Contractor Act"; and
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(18)
As a condition of performing work on a public construction project
and/or construction projects subject to this section, all bidders
pursuant to N.J.S.A. 40A:11-26 shall submit a completed contractor
responsibility certification provided by the Township of Bloomfield
at the time the bidder submits its bid pursuant to N.J.S.A. 40A:11-20
through 40A:11-27 et seq. Moreover and pursuant to N.J.S.A. 40A:11-27,
all bidders must respond to the contractor responsibility certification
under oath. In addition, all bidders shall further simultaneously
submit with its contractor responsibility certification and pursuant
to N.J.S.A. 40A:11-16(a) and (b) and N.J.S.A. 40A:11-23.2(d), a subcontractor
list containing the names of any proposed contractors required to
be listed in the bid, including the subcontractor's address and a
description of their work expertise; and
(19)
Should it be established, after awarding a contract that any
of the information required by this section and provided by the bidding
entity to the Township of Bloomfield was falsified or inaccurate,
the bidder will be subject to the penalties as outlined under N.J.S.A.
40A:11-27 through 11-34 et al., and the contract shall be voided;
and
(20)
The following definitions shall govern within this section:
FINANCIAL ASSISTANCE
Something of economic value provided by the Township of Bloomfield
to a private entity, expressly articulated or identified, in writing,
by the Township of Bloomfield, including, but not limited to, real
property, loans, loan guarantees, grants, tax exemptions, tax abatements,
tax incentive financing, and rent subsidies or reductions approved,
funded, authorized, administered or provided by the local government
entity or any of its instruments in connection with construction.
PUBLIC CONSTRUCTION CONTRACT
Any public construction project for the construction, reconstruction,
demolition, alteration or renovation of buildings at the public expense,
required to be bid under the Local Public Contracts Law, and which requires that workers be paid the prevailing
wage determined by the Commissioner of Labor pursuant to the provisions
of the applicable statutory language.
B. Purpose.
(1)
Due to the magnitude of the threshold amount as stated herein,
the Township recognizes that there is a need to ensure that work on
public works projects, maintenance work and contracts for public works
are performed by responsible, qualified firms that maintain the capacity,
expertise, personnel, equipment and other qualifications and resources
necessary to successfully perform public contracts in a timely, reliable
and cost-effective manner.
(2)
To effectuate the purpose of selecting responsible contractors
for public contracts and to protect the substantial taxpayer investments
in such contracts, prospective contractors and subcontractors shall
be required to meet preestablished, clearly defined, minimum standards
relating to contractor responsibility, competency, experience, and
the adequacy of resources.
(3)
Further, due to the critical impact that skilled construction
craft labor has on public works projects, and due to the limited availability
of skilled construction craft labor, it is necessary to require contractors
and subcontractors to participate in bona fide apprenticeship training
programs in the trades and classifications in which they employ construction
craft personnel.
(4)
Therefore, the Township of Bloomfield shall require compliance
with the provisions of this section by business entities seeking to
provide services to the Township of Bloomfield as specified herein.
The requirements of this section are intended to supplement, not replace,
existing contract qualification and performance standards or criteria
currently required by law, public policy or contracting documents.
However, in the event that any of the provisions of this section conflicts
with any law, public policy or contracting documents, or is held to
be invalid and unenforceable by a court of competent jurisdiction,
the remaining provisions shall remain in full force and effect.
(a)
All contractors and subcontractors of any tier that perform
work on projects valued at or above $250,000, including any public
works project, N.J.S.A. 40A:11-2(34), maintenance work, or contracts
for public works, shall meet the requirements of this section.
(b)
All firms engaged in contracts covered by this section shall
be qualified, responsible contractors and subcontractors that have
sufficient capabilities in all respects to successfully perform contracts
on which they are engaged and will continue to have sufficient capability
for the duration of the contract in question, including the necessary
experience, equipment, technical skills and qualifications, as well
as the adequate organizational, financial and personnel resources
necessary to perform the contract. Firms bidding on public contracts
shall also be required to have a satisfactory past performance record
and a satisfactory record of law compliance, business integrity and
business ethics.
C. Contractor responsibility certification requirements.
(1)
As a condition of performing work on a contract subject to this
section, a general contractor, construction manager or contractor
seeking the award of a contract shall submit a contractor responsibility
certification at the time it submits its bid for the contract work.
The failure to submit the contractor responsibility certification
shall disqualify a contractor from performing the contract work.
(2)
The contractor responsibility certification shall be completed
on a form provided by the contracting unit, as defined at N.J.S.A.
40A:11-2(1), governing body, as defined at N.J.S.A. 40A:11-2(2), or
other procurement entity or agency, and shall reference the project
for which a bid is being submitted by name and contract or project
number.
(3)
In the contractor responsibility certification form the construction
manager, general contractor or contractor shall confirm and verify
its past performance and work history and its current qualifications
and performance capabilities.
(4)
In the contractor responsibility certification form the construction
manager, general contractor or contractor will, pursuant to the obligation
and criteria as set forth in N.J.S.A. 40A:11-16 and 40A:11-23.2(d)
provide a list of its subcontractors.
(5)
Notwithstanding N.J.S.A. 40A:11-16 in the contractor responsibility
certification, the firm shall further provide subcontractor responsibility
certifications for all identified subcontractors within 10 days of
receiving the notice of intent to award contract or within 10 days
of being awarded a contract.
(6)
In the contractor responsibility certification form, the firm
shall attest to the following:
(a)
The firm has not been disbarred or suspended by any federal,
state or local government agency or authority in the past three years
or has not defaulted on any project the past three years.
(b)
The firm has not had any type of business, contracting or trade
license, registration and other certification revoked or suspended
in the past three years.
(c)
The firm and its owners have not been convicted of any crime
relating to the contracting business by a final decision of a court
of law or government body in the past seven years.
(d)
The firm has not within the past three years been found in violation
of any law applicable to its contracting business, including, but
not limited to, licensing laws, tax laws, prompt payment laws, wage
and hour laws, prevailing wage laws, environmental laws with others,
where the result of such violation was the payment of a fine, back
pay damages or any other type of penalty in the amount of $3,000.
(e)
The firm will utilize skilled workers who have successfully
participated in and completed an apprenticeship program or other training
program certified by the US DOL and in compliance with 29 CFR Part
29. A questionnaire attached to the contractor certification form
will provide for the attestation of compliance.
(f)
The firm shall notify the contracting unit, governing body,
or other procurement entity or agency within seven days of any material
changes to all matters attested to in this certification.
(g)
The firm understands that the contractor responsibility certification
requirements shall be executed by a person who has sufficient knowledge
to address all matters in the certification and shall include an attestation
stating, under the penalty of perjury, that the information submitted
is true, complete and accurate.
(h)
The contractor and subcontractor responsibility certification
forms attached hereto shall be used to verify that all bidders meet
the requirements of this section.
(i)
After a notice of intent to award contract has been issued,
the Township of Bloomfield shall undertake a review process for a
period of at least three days to determine whether the prospective
awardee is a qualified, responsible contractor in accordance with
the requirements of this section and other applicable laws and regulations
and has the resources and capabilities to successfully perform the
contract.
(j)
If the Township of Bloomfield determines that a contractor or
subcontractor responsibility certification contains false or misleading
material information that was provided knowingly or with reckless
disregard for the truth the bidder shall be subject to the penalties
as outlined under N.J.S.A. 40A:11-34.
(k)
All certification forms will be available for public inspection
through a publicly accessible website or other comparable means within
30 days' after a notice of intent to award contract has been issued.
(l)
The Township of Bloomfield may conduct any additional inquiries
to verify that the prospective awardee and its subcontractors have
the technical qualifications and performance capabilities necessary
to successfully perform the contract and that the firms have a sufficient
record of law compliance and business integrity to justify the award
of a public construction project contract. In conducting such inquiries,
the Township may seek relevant information from the firm, its prior
clients or customers, its subcontractors or any other relevant source.
(m)
If, at the conclusion of its internal review, the Township of
Bloomfield determines that all responsibility certifications have
been properly completed and executed and concludes that the qualifications,
background and responsibility of the prospective awardee and the firms
on its subcontractor list are satisfactory, it shall issue a written
contractor responsibility determination verifying that the prospective
awardee is a qualified, responsible contractor. In the event a firm
is determined to be nonresponsible, the Township shall advise the
firm of its finding, in writing, and proceed to conduct a responsibility
review of the next lowest, responsive bidder or, if necessary, rebid
the project.