The Division of Local Government Services (DLGS) has adopted on an emergency basis and concurrently proposed an amendment to N.J.A.C. 5:34-6.1 permitting municipalities under enhanced state oversight to award multi-year emergency contracts for solid waste collection and/or recycling collection, under certain circumstances.
Pursuant to the amendments, a municipality is deemed subject to enhanced state oversight if the municipality is under the Transitional Aid to Localities Program or any successor discretionary aid program for municipalities in financial distress, State Supervision Act, Municipal Rehabilitation and Economic Recovery Act, Municipal Stabilization and Recovery Act, or a financial review board.
Prior to the emergency adoption and concurrent proposal, N.J.A.C. 5:34-6.1 prohibited the use of an emergency purchasing procedure to enter into a multi-year contract under any circumstances. Under the emergency rules, a municipality subject to enhanced oversight from the state that seeks the authorization to enter into a multi-year contract would be required to demonstrate:
- The existence of an actual or imminent emergency requiring the immediate delivery of solid waste collection and/or recycling collection services;
- The need for the solid waste collection and/or recycling collection services could not have been reasonably foreseen, or the need for such service has arisen notwithstanding a good faith effort on the part of the contracting unit to plan for the services required by the contracting unit;
- The proposed duration of the contract is necessary to meet the immediate needs of the emergency and facilitate the provision of the services on a non-emergency basis;
- The proposed contract is for solid waste collection and/or recycling collection services critical to the health, safety, and welfare of the residents living in the municipality wherein the contracting unit is entering into the contract;
- The municipality is taking sufficient measures to ultimately ensure that the services being contracted for will be able to be provided on a non-emergent basis;
- The proposed contract would not otherwise exceed the applicable maximum term permitted pursuant to N.J.S.A. 40A:11-15; and
- The contracting unit has adequately investigated all potential alternatives to the proposed multi-year contract.
The municipality must demonstrate that a prior bid for the service failed to elicit at least one response from a responsible and responsive bidder, or that all responsible and responsive bids were rejected for either substantially exceeding the municipality’s appropriation or the Local Public Contract Law is being violated, and that service delivery could be discontinued before the municipality can facilitate the provision of the service on a non-emergency basis. A copy of the request must also be provided to the New Jersey Department of Environmental Protection.
The emergency rules became effective August 2 and are set to expire October 1, 2023, unless fully adopted. Before the emergency rules can become fully adopted, DLGS must provide a public comment period. Public comments must be submitted by September 20, 2023, through email to dlgs@dca.nj.gov.
If you submit written comments, please forward a copy to League Associate General Counsel, Frank Marshall at fmarshall@njlm.org.
Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481, x137.