New Jersey § 40a:11-13

§ 40a:11-13.

Specifications. Any specifications for the provision or performance of goods or services

under this act shall be drafted in a manner to encourage free, open and competitive

bidding. In particular, no specifications under this act may: (a) Require any standard, restriction, condition or limitation not directly related

to the purpose, function or activity for which the contract is awarded; or (b) Require that any bidder be a resident of, or that the bidder's place of business

be located in, the county or municipality in which the contract will be awarded or

performed, unless the physical proximity of the bidder is requisite to the efficient

and economical performance of the contract; except that no specification for a contract

for the collection and disposal of municipal solid waste shall require any bidder

to be a resident of, or that the bidder's place of business be located in, the county

or municipality in which the contract will be performed; or (c) Discriminate on the basis of race, religion, sex, national origin, creed, color,

ancestry, age, marital status, affectional or sexual orientation, familial status,

liability for service in the Armed Forces of the United States, or nationality; or (d) Require, with regard to any contract, the furnishing of any “brand name,” but

may in all cases require “brand name or equivalent,” except that if the goods or services

to be provided or performed are proprietary, such goods or services may be purchased

by stipulating the proprietary goods or services in the bid specification in any case

in which the resolution authorizing the contract so indicates, and the special need

for such proprietary goods or services is directly related to the performance, completion

or undertaking of the purpose for which the contract is awarded; or (e) Fail to include any option for renewal, extension, or release which the contracting

unit may intend to exercise or require; or any terms and conditions necessary for

the performance of any extra work; or fail to disclose any matter necessary to the

substantial performance of the contract; or (f) Require that any bidder submit a financial statement if either a guarantee, by

certified check, cashier's check or bid bond, or a surety company certificate is also

required to be furnished by the bidder, unless any law or regulation of the United

States imposes a condition upon the awarding of a monetary grant to be used for the

purchase, contract or agreement, which condition requires that a financial statement

be submitted. (g) As used in this subsection: “ asphalt price index ” means the asphalt price index as determined and published by the New Jersey Department

of Transportation; “ basic asphalt price index ” means the asphalt price index for the month preceding the month in which the bids

are opened; “ department ” means the New Jersey Department of Transportation; “ fuel price index ” means the fuel price index as determined and published by the New Jersey Department

of Transportation; and “ pay item ” means a specifically described item of work for which the bidder provides a per

unit or lump sum price in a bid specification determined and published by the New

Jersey Department of Transportation. In addition to the requirements of paragraphs (a) through (f) of this section, any

bid specification for the provision or performance of goods or services under P.L.1971,

c. 198 ( C.40A:11-1 et seq. ) that includes the purchase or use of 1,000 or more tons of hot mix asphalt shall

include a pay item for an asphalt price adjustment reflecting changes in the cost

of asphalt cement. The pay item for asphalt price adjustment shall apply to each ton of hot mix asphalt

purchased or used by the contracting unit. Any bid specification prepared pursuant to P.L.1971, c. 198 ( C.40A:11-1 et seq. ) that includes the purchase or use of less than 1,000 tons of hot mix asphalt shall

include a pay item for an asphalt price adjustment applicable to any quantity of hot

mix asphalt exceeding 1,000 tons that may be purchased or used in the work in the

event that performance of the work, including change orders, requires more than 1,000

tons of hot mix asphalt. As set forth in section 7 of P.L.1971, c. 198 ( C.40A:11-7 ), no contract shall be divided to disaggregate the quantity of hot mix asphalt or

equivalent asphalt cement-based paving product to be purchased or used for the purpose

of avoiding compliance with this paragraph. The asphalt price adjustment shall be calculated in accordance with the formula and

relevant instructions published in the most recent edition of the “New Jersey Department

of Transportation Standard Specifications for Road and Bridge Construction.” All invoices for payment shall be accompanied by the calculation of any asphalt price

adjustment and a showing of the current month's asphalt price index and the basic

asphalt price index. Every bid specification prepared pursuant to P.L.1971, c. 198 ( C.40A:11-1 et seq. ) shall be eligible for a fuel price adjustment. Fuel that is eligible for a fuel price adjustment shall be the sum of the quantities

of the eligible pay items in the contract multiplied by the fuel usage factors as

determined by the department. The types of fuel furnished shall be at the discretion of the contractor. The fuel requirement for items not determined by the department to be eligible, and

for pay items in the bid specifications calling for less than 500 gallons of fuel,

shall not be eligible for a fuel price adjustment. If more than one pay item has the same nomenclature but with different thicknesses,

depths, or types, each individual pay item must require 500 gallons or more of fuel

to be eligible for a fuel price adjustment. If more than one pay item has the same nomenclature, similar pay items shall be

combined and the combination must require 500 gallons or more of fuel to be eligible

for the fuel price adjustment. Fuel price index adjustments shall not be made in those months for which the monthly

fuel price index has changed by less than five percent from the basic fuel price index. Any specification which knowingly excludes prospective bidders by reason of the impossibility

of performance, bidding or qualification by any but one bidder, except as provided

herein, shall be null and void and of no effect and shall be readvertised for receipt

of new bids, and the original contract shall be set aside by the governing body. Any specification for a contract for the collection and disposal of municipal solid

waste shall conform to the uniform bid specifications for municipal solid waste collection

contracts established pursuant to section 22 of P.L.1991, c. 381 ( C.48:13A-7.22 ). Any specification may include an item for the cost, which shall be paid by the contractor,

of creating a file to maintain the notices of the delivery of labor or materials required

by N.J.S.2A:44-128 . Any prospective bidder who wishes to challenge a bid specification shall file such

challenges in writing with the contracting agent no less than three business days

prior to the opening of the bids. Challenges filed after that time shall be considered void and having no impact on

the contracting unit or the award of a contract.