DEPARTMENT OF HUMAN SERVICES - Government of New …



DEPARTMENT OF HUMAN SERVICES

OFFICE OF ADMINISTRATION

OFFICE OF CONTRACT POLICY AND MANAGEMENT

Contract Administration

Proposed Readoption with Amendments: N.J.A.C. 10:3-1, 2, and 3

Authorized By: Jennifer Velez, Commissioner, Department of Human Services

Authority: N.J.S.A. 30:1-12, et seq.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN

Submit comments by April 27, 2009:

Howard Mass, Director

Office of Administration

Department of Human Services

222 South Warren Street

P.O. Box 700

Trenton, New Jersey 08625-0700

The agency proposal follows:

Summary

Pursuant to N.J.S.A. 30:1-12, the Department of Human Services (Department) proposes to readopt N.J.A.C. 10:3 with amendments. This chapter is due to expire on November 14, 2008, pursuant to N.J.S.A. 52:14B-5.1c.

The Department has reviewed these rules and has determined that they continue to be necessary, proper and reasonable for the purpose for which they were originally promulgated.

The following is a description of the sections of N.J.A.C. 10:3:

N.J.A.C. 10:3-1, Debarment, Suspension and Disqualification of a Person(s), sets forth rules governing the exclusion of a provider from eligibility for consideration in the granting of contracts for goods or services by the Department of Human Services. The rules specify that a permanent exclusion must be based on the past performance and a history of lack of responsibility evidenced by offense, failure or inadequacy of performance for a period of time appropriate to the circumstances. A suspension, on the other hand, is a temporary exclusion that may be imposed pending completion of an investigation or legal proceeding. This subchapter includes sections on: Definitions; Causes for debarment of a person; Conditions affecting debarment of a person(s); Procedures, period of debarment and scope of debarment; Causes for suspension of a person(s); Conditions for suspensions of a person(s); Extent of debarment, suspension or disqualification; Prior notice; List of debarred, suspended or disqualified person(s); Authority to contract; Impact upon existing regulations; Appeals; and Conflict of Interest.

N.J.A.C. 10:3-2, Capital Funding Program and Funding Agreements, sets forth the agreements to be used by the Department for capital planning projects. This subchapter includes sections on: the Capital funding program; Capital Funding Agreement for Construction, Purchase, or Purchase and Renovation of Community-Based Facilities; Capital Funding Agreement for Renovation, Remodeling, Extension or Other Improvements to Agency-Owned or Leased Community Facilities; and Capital Funding Agreements for Community-Based Facility Planning and Design Services.

N.J.A.C. 10:3-3, Request for Proposal (RFP), establishes the policy and procedures by which a departmental component, County Human Services Advisory Council (CHSAC), or other designated entity issues an RFP and by which all groups or entities respond to RFP’s for contracts for the provision of third-party social services or training. Subchapter 3 includes sections on related to the purpose and scope thereof; definitions; request for proposal; sole source services; internal controls for proposals; funding proposal program summary and evaluation data; list of required information; composition of a review panel; evaluation of proposal; evaluation of applicant; notification of selection; document retention; contract negotiation; and exceptions to procedures.

This subchapter also includes four Appendices’: Appendix A is the Addendum to Request for Proposal for Social Services and Training Contracts; Appendix B is the Statement of Assurance; Appendix C is Privatization Participation Form; and Appendix D is the Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion.

The Department proposes amendments to N.J.A.C. 10:3-3. In general, the Department proposes several technical and grammatical amendments throughout the rules. The substantive proposed amendments are as follows: N.J.A.C. 10:3-3 (a) currently provides that when the Department issues a public announcement of the availability of funds for the purchase of services in accordance with N.J.S.A. 52:14-3.4, 3.5, and 3.6, the announcement shall be in a manner that permits reasonable competition among eligible provider agencies. The departmental component shall publish the announcement in the New Jersey Register and publications directed at minorities. Likewise, N.J.S.A. 52: 14-34.2, Notice of availability of State grant funds, publication content indicates, “In addition to all other notification requirements imposed by law, each state department, agency, and commission which awards Federal or State grant funds shall publish a notice regarding the availability of those funds in the New Jersey Register or an appropriate publication of the department, agency or commission.”

The Department proposes to amend N.J.A.C. 10:3-3.3(a) to remove the requirement of publishing the notice of availability of grant funds in the New Jersey Register and, instead, requiring that the notice of availability of grant funds be published on the Department’s website for Public Notices. This would allow the Department more flexibility in the announcement of Requests for Proposals

The Department proposes to amend the last sentence of N.J.A.C. 10:3-3.3 (a) regarding “the Contract Policy and Management Unit” to reflect the name change to the Office of Contract Policy and Management.”

The Department proposes to amend N.J.A.C. 10:3-3.3 (d) to reflect the proposed change of notification of grant funds from the New Jersey Register to the DHS website. Also, the rule will further be amended by changing the “Department’s informal review process” to the “Department’s Protest process”.

N.J.A.C. 10:3-3.3 (e) 12 provides a reference that “a list of depository libraries where the Contract Policy and Information Manual may be reviewed prior to proposal”. The Department proposes to amend the latter rule-to reflect the Department’s establishment of a website location in April 2005 for easy web access to the Department’s Contract Manuals. This website is always up-to-date and the policy circulars can be reviewed and downloaded by those seeking access to the aforementioned contract-related information. The URL for the Department’s website for the Contract Manuals is cited in the proposed amended rule.

N.J.A.C. 10:3-3.7 (c), regarding the composition of a review panel, presently provides that “the panel should consist of a diverse group of people having expertise in area such as, contracting, finance, programs/services, including clients, DHS regional and county representatives, and community representatives; or an allocation review panel under the auspices of the CHSAC/Designated Entities”. The Department proposes an amendment thereof to reflect its position, and that of the Attorney General, that only public employees should be the decision makers on contracting issues so as to avoid unnecessary problems pertaining to accountability, confidentially and potential conflicts of interest or the appearance thereof, among those parties who have an interest in contracting with the Department. In that regard, the Department has historically welcomed advice from our community partners and clients regarding the services we provide. In order to continue this practice, while avoiding the aforementioned pitfalls, the Department may establish through its departmental components, as appropriate, an advisory panel which may be comprised of clients and community collaboratives/stakeholders who will provide advise to the review panel. The advisory panel participation within this process will provide an opportunity for consumers/clients to convey their unique perspectives and recommendations on the proposed services. It also allows the subject matter experts to provide their programmatic and technical expertise recommendations, as well as those of the stakeholders and community participants. By doing so, the vision and recommendation of the latter will help assure the delivery to consumers/ families/clients of vital services and programs. The advisory panel members shall have no vote in the contractual award process. Thus, the proposed amended rule will provide that the responsible unit for the coordination of the RFP shall convene a Review panel of at least three public employees to assess, rate and rank proposals to recommend an Applicant for departmental funding and if warranted, to convene the advisory panel to provide advice to the public employees. No members of the advisory panel may render advice on any matter in which they, their employer or a family member have a pecuniary interest.

All panel members will complete a conflict of interest form.

The review panel may utilize the services of a consultant/expert to provide programmatic or other technical expertise that will assist the voting members in the review process. Consultants may not serve as voting members of the Review Panel and must sign a conflict of interest form.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is exempted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a) 5.

Social Impact

The readoption of these rules with amendments will continue to safeguard the community and provider agencies with which the Department contracts and with the Department’s that benefit from such services and facilities. The Social Impact can be viewed as beneficial.

Debarment, suspension and disqualification provisions continue to protect the community and citizens from illicit dealings and provide for uniform application of policy. The Capital Funding Program and Funding Agreements’ consolidated standardized contract documents provide consistency with more than one departmental component and incorporates terms and conditions application to all departmental components. The Request for Proposal rules with proposed amendments maintain the terms and conditions applicable to all departmental components, CHSACS or other designated entities.

Economic Impact

The rules proposed for readoption with amendments have no direct impact on the regulated community or Departments’ clients. The protection provided by debarment, suspension and disqualification of provider agencies, the consolidation of Capital funding program and agreement documents, and the proposed amendments to the Request for Proposal policies and procedures continues to ensure the awarding and administration of third-party social services contracts to agencies are treated consistently throughout the Department.

Federal Standards Statement

The rules proposed for readoption do not require an analysis because no Federal standards which apply to the subject of this rulemaking are exceeded in these rules. The Federal Standards which apply to these rules are, but not limited to, the following: Title VI of the Civil Rights Act of 1964; 34 C.F.R. §100;

Section 504 of the Rehabilitation Act of 1973; 29 U.S.C. s794; 34 CFR part 104; Americans with Disabilities Act; Age discrimination Act of 1975; 42 U.S.C. §6101 et seq.; 45 C.F.R. §90; Equal Employment Opportunities Act; Davis-Bacon Act;

40 U.S.C. §§276a through 276a-5; 29 C.F.R. § 5.5; 31 U.S.C. §1352; and Federal Executive Orders 12549 and 12689.

Jobs Impact

The rules proposed for readoption with amendments will not result in the loss of jobs; rather, it will provide the Department with flexibility in publishing notices of the availability of grant funds more expeditiously than by publishing them in the New Jersey Register. Thus, it will contribute to the generation of jobs due to the infusion of funds into the community in which the recipient programs are located. Readoption of this rule is necessary to continue the mission of third party contracting for essential programs and services to Department clients and to preserve existing programs for Department clients and the existing jobs for agencies providing these programs and services.

Agriculture Industry Impact

The proposed readoption with amendments has no impact on the agriculture industry.

Regulatory Flexibility Statement

10:3-1, Debarment, Suspension and Disqualification of a Person, imposes requirements on small business at N.J.A.C. 10:3-1.4(a) 3, which requires submission of documentation in support of a request to remove or reduce a period of debarment. Requirements are also imposed at N.J.A.C. 10:3-1.14 (c), which prohibits offers or actual gratuities to any State employee. Requirements imposed at N.J.A.C. 10:3-1.14(e) prohibits business relationships with State employees. Requirements imposed at N.J.A.C. 10:3-1.14 (f) prohibit attempts to influence, or actual influence, of any State employee in order to impair the objectivity or judgement of that official. Requirement imposed at N.J.A.C. 10:3-1.14 (g) prohibits the use of influence to obtain unwarranted privileges. All of these requirements are imposed in accordance with Executive Order No.34 (1978) and Executive Order No. 189 (1988), and the Department can not modify them, whether based on business size of any other criteria.

N.J.A.C. 10:3-2, Capital Funding Program and Funding Agreement, does imposes some recording, recordkeeping or specific requirements on small businesses as that term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. Under this program, the Department grants funding to non-profit agencies, some of which may be considered small businesses under the Act. These nonprofits, in turn, contract with other agencies which actually perform the work. The small businesses receive the grants are required to provide certain information to the Department. ; however, such reporting , recordkeeping and compliance requirements mirror the information provided in the normal course of business as part of the regular ongoing audit process under the Standard Contract/Agreement Document. There is no differentiation based on business size, there are no capital cost, and on professional services are needed in order to comply.

N.J.A.C.10:3-3, Request for Proposal (RFP), sets the standards by which every provider agency replying to an RFP must comply. There are no recordkeeping or reporting requirements; however, each provider agency applying for funding through the RFP process must follow N.J.A.C. 10:3-3, Request for Proposal which sets forth compliance requirements and the information required to ensure consistent and equitable review for a contract award with the Department of Human Services.

Smart Growth Impact

The Department does not anticipate that the rules proposed for readoption with amendments will have any impact on the achievement of smart growth or the implementation of the State Development and Redevelopment Plan.

Housing Affordability Impact Statement

The rules proposed for readoption with amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average cost associated with housing because the rules concern contract administration in the Department.

Smart Growth Development Impact

The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in new Jersey because the rules concern contract administration for the Department.

Full text of the rules proposed for readoption may be found in the New Jersey Administration Code at N.J.A.C. 10:3.

Full text of the proposal follows (additions indicate by underlining, thus: deletions indicated in brackets [thus]:

SUBCHAPTER 3. REQUEST FOR PROPOSAL

10:3-3.3 Request for Proposal

(a) The departmental component or CHSAC/designated entity shall issue a public announcement of the availability of funds for the purchase of services in accordance with N.J.S.A. 52:14-34.4, 34.5, and 34.6. The announcement shall be made in the manner to permit reasonable competition among eligible provider agencies. The departmental component shall publish the announcement [in the New Jersey Register] on the Department of Human Services (DHS) website for public notices and publications directed towards minorities. In addition, the departmental component may choose to do one of the following as a second notification: mail the announcement to identified prospective provider agencies, including those that may provide similar, but not the specific service requested, minority organizations and culturally diverse and sensitive groups or advertise in newspapers of general circulation. [Upon publication in the New Jersey Register, the Contract Policy and Management Unit] The Office of Contract Policy and Management (OCPM) will upload the announcement of the notice of the RFP on the Department of Human Services Web Page at [state.nj.us/humanservices/DHSHome.htlm] state.nj.us/humanservices/grantan.html

(b)-(c) no change

(d) The proposal process shall be completed within 120 days of publication of the RFP notice [in the New Jersey Register, inclusive of all informal review processes.] on the DHS website, inclusive of all Protest processes. See N.J.A.C. 10:3-3.13 for exceptions.

(e) Within three business days after a potential applicant has requested a proposal package, the departmental component or the CHSAC/designated entity shall forward a proposal package to, or the package may be picked up by, those prospective applicants responding to the public announcement. In addition, when the CHSAC/designated entity has been delegated the responsibility to solicit proposals on behalf of the Department, all appropriate procedures, as appropriate, shall be followed. The proposal package shall contain, at a minimum, the following information and requirements:

1.-11. (No change)

12. [A list of depository libraries where] The URL of the DHS/OCPM website where the Contract Reimbursement Manual and Contract Policy and Information Manual may be reviewed and downloaded prior to proposal. The URL of that link is state.nj.us/humanservices/ocpm/contract_manuals.htm.

13- 14 (No Change.)

15. A statement explaining the [departmental component’s informal review process and that informal reviews] Department’s Protest process and that Protest process by the departmental component must be completed within the time frame specified in the RFP or within 30 days after receipt of the CHSAC/designated entity recommendations, and that [informal review] Protest process by the within the 90-day process time period and prior to the recommendations being sent to the departmental component.

10:3-3.5 Internal Controls for proposals

(a) –(g) (No change.)

h. The departmental component shall communicate to the CHSAC/designated entity the outcome of any departmental component [informal review] protest process on [an] a CHSAC/designated entity RFP and forward a copy of the final award letter to all parties concerned.

(i)-(j) (No change.)

10:3-3.7 Composition of review panel

(a) The unit responsible for RFP coordination shall convene a review panel[of at least three persons to assess, rate and rank proposal to recommend an applicant for funding. The panel shall be broadly representative and culturally diverse. In no case shall a panel convene absent representation of at least one minority, inclusing that of the CHSAC or the designated entity.] consisting of , at a minimum of three public employees that will represent the best interest of both the Departmental component and the State in the selection of the successful contractor. These public employees on the review panel will serve as sole voting members in the contractual award selection process. The panel may consist of a diverse group of people having expertise in areas such as contracting, finance, programs/services, including DHS regional and county representatives; or an allocations review panel under the auspices of the CHSAC/designated entity. The responsible unit shall present an objective process to the review panel for the purpose of rating the proposals. In addition thereto, if needed, the departmental component may convene an advisory panel to provide their programmatic and service-oriented expertise to the review panel. The advisory panel may consist of community stakeholders and clients/consumers. Members of the advisory panel shall not have a vote in the contractual award process and may not render advice on any matter in which they, their employer or a family member have a pecuniary interest.

(b) A panel member must disqualify himself or herself from the panel when he or she has any interest, financial, or otherwise, direct or indirect, in the results of the panel’s evaluations (see Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq.) All review panel and advisory panel members may be required to complete a conflict of interest form.

[(c) [The panel should consist of a diverse group of people having expertise in areas such as contracting, finance, programs/services, including clients, DHS regional and county representatives, and community representatives; or an allocations review panel under the auspices of the CHSAC/designated entity].

(c) The review panel may utilize the services of a consultant/expert to provide programmatic or other technical expertise that may assist the voting members in the review process. Consultants may not serve as voting members of the Review panel and may be required to complete a conflict of interest form.

(d) – (e) (No change.)

10:3-3.10 Notification of selection

(a) Upon determining which proposals are most responsive and advantageous to the needs of the clients to be served or services to be rendered, cost and other factors considered, the Departmental component shall notify all applicants in writing of its selection within the time frames specified in the request for proposal, not to exceed 90 day from the publication of the RFP announcement [in the New Jersey Register.] on the DHS Public Notice website. The [informal review] protest process if done by the component , must be completed in a time frame appropriate to the [departmental component] Department’s policies, which shall be referenced in the RFP and the total RFP process shall not exceed 120 days from publication of the RFP announcement [in the New Jersey Register.] on the DHS Public Notice website.

1. (No change.)

2. The contract is not binding until funding has been verified and the Department’s [standard language document and the contract confirmation letter are] Standard Language Document is signed by both parties.

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