[HISTORY: Adopted by the Township Committee
of the Township of Hamilton as indicated in article histories. Amendments
noted where applicable.]
[1]
Editor’s Note: Former Art. I, Political Contribution
Limits, adopted 10-20-2008 by Ord. No. 1636-2008, was repealed 12-18-2017
by Ord. No. 1867-2017.
[Adopted 4-7-2014 by Ord.
No. 1765-2014[1]]
[1]
Editor's Note: This ordinance was adopted as Ch. 14, but was
redesignated to maintain the organization of the Code.
The purpose of implementing the provisions of the Township's
qualified veteran business enterprise's VBE set-aside program
is to provide preference to VBEs for the opportunity to bid and be
awarded selected Township contracts in an amount of up to 1% of the
Township's purchases, services and construction contracts for
qualified veterans' business enterprise.
For the purposes of this chapter, the following definitions
shall apply:
Any agreement for the erection, repair or alteration of any
building, structure, bridge, roadway or other improvement to real
property.
The County of Atlantic.
The meaning set forth at N.J.S.A. 40A:11-41i, namely a business
which has its principal place of business in this state, is independently
owned and operated, is at least 51% owned and controlled by a veteran
or that wherein at least 50% of the required workforce for the contract
are veterans, and 50% of the labor hours charged to the contract are
accrued by employees who are veterans, including new hires if additional
workers are required to perform the contract, and is qualified pursuant
to Section 25 of P.L.1971, c. 198 (N.J.S.A. 40A:11-25).
A contract for goods, equipment, construction or services, which
is designated as a contract for which bids are invited and accepted
only from a qualified veteran business enterprise;
A portion of a contract when that has been so designated; or
Any other purchase or procurement so designated.
All purchases, contracts or acquisitions of the Township,
whether by competitive bidding, single-source contracting, or other
method of procurement, as prescribed or permitted by law.
The Township of Hamilton (Atlantic County).
The meaning set forth at N.J.S.A. 40A:11-41h, namely the
same meaning as set forth in Subsection b of N.J.S.A. 40A:5-1, except
that the veteran shall present to the Adjutant General of the Department
of Military and Veterans Affairs sufficient evidence of a record of
service and receive a determination of status no later than the date
established for the submission of bids.
A.
For the fiscal year beginning January 1, 2014, and for every year
thereafter, the goal for the qualified veteran business enterprise
set-aside program shall be 1% of the Township's purchases, services
and construction contracts.
B.
The Township Committee may revise the goals established herein by
subsequent ordinance.
C.
The above-stated percentages relate to the total dollar value of
all Township contracting departments to be set aside for qualified
veteran business enterprises as goals for the Township to achieve
by the end of each fiscal year.
If a Township contract, construction, service or procurement,
which would otherwise be subject to the provisions of this chapter,
is or becomes subject to federal or state laws which conflict with
this program or actions thereof, federal or state law shall apply,
and the contract shall be interpreted and enforced accordingly.
In the implementation of the Township's qualified veteran-owned
business set-aside program and pursuant to the provisions of N.J.S.A.
40A: 11-43:
A.
The Township shall advertise the qualified veteran business enterprise
set-aside program on its electronic sign, and on the Township television
station, in an attempt to identify qualified veteran business enterprises.
B.
The Administrator shall recommend to the Township Committee a contract,
subcontract or other means of procurement as a set-aside contract
if it is likely to receive bids from at least two VBEs at a fair and
reasonable price.
C.
If it is determined by the Finance/Purchasing Department that two
bids cannot be obtained or that acceptance of the low responsible
bid will result in the payment of an unreasonable price, the Finance/Purchasing
Department may recommend to the Township Committee that the bids be
re-solicited on an unrestricted basis.
D.
Upon recommendation from the Administrator, designation(s) of contracts
and/or subcontracts as set-aside contracts shall be made by the Township
Committee prior to advertisement, and notice of such designation shall
be included in the advertisement.
E.
The Township Auditor shall include in the audit a report at the end
of each fiscal year identifying each contract awarded as a result
of its qualified veteran business enterprise set-aside program.
With respect to all contracts and procurements it shall be the
Finance/Purchasing Department's authority and responsibility
to:
A.
Ensure, through the certification procedure herein provided, that
qualified businesses taking advantage of this set-aside program are
legitimate VBEs.
B.
Maintain a listing of known VBE businesses in the proximate area
for referral by the Township.
C.
Have access to all Township records and files which relate to construction,
service and procurement contracts in order to monitor and review compliance.
A.
To ensure that only qualified businesses which meet the veteran ownership
or employment requirements set forth in N.J.S.A. 40A:11-41i in both
form and substance are counted towards the goals' requirements
set forth in this chapter, any veteran-owned business, including a
joint venture, desiring to participate in the Township set-aside program
must be certified by the Finance/Purchasing Department as a legitimate
VBE.
B.
Any business wishing to be certified as a VBE business shall apply
to the Finance/Purchasing Department for such certification and shall
complete all forms and supply all documentation required by the Finance/Purchasing
Department for such application.
C.
The Finance/Purchasing Department will evaluate the submitted information
to determine whether the applicant meets the criteria for qualified
veteran business enterprises. Prior to making a certification, the
Finance/Purchasing Department may, in its discretion, request an interview
with the applicant. Failure of an applicant to comply with requests
for information or documentation may result in a determination of
certification status based on the information supplied or a suspension
of the application for certification.
D.
Following certification, the Finance/Purchasing Department may require
the business to furnish additional information from time to time in
order to establish its continued eligibility for certification.
E.
Upon becoming certified, a business shall immediately notify the
Finance/Purchasing Department if there is a change in the business
that affects its status as a VBE, including changes in ownership,
percent of veterans on contract staffing, control or management.
F.
If a business is denied certification, the Finance/Purchasing Department
shall notify the business, in writing (notice shall be sent by regular
mail and return receipt requested to the address provided by the business),
of the reasons for its determination. The business may appeal the
denial to the Township Administrator or his designee, who shall conduct
a hearing at which the business shall have the opportunity to present
witnesses and documents in support of its application for certification.
No appeals will be considered if filed later than 15 days from the
date of the delivery or attempted delivery by the post office of the
return receipt requested notice and/or 20 days after the date of the
notice sent by regular mail. Businesses that are denied certification
may not reapply for certification for a period of six months from
the date of denial.
G.
The right of the Township to evaluate a bidder or contractor's
ability to satisfy financial, technical or other criteria, separate
and apart from the certification process provided for in this program,
is not altered by this chapter.
H.
The certification granted pursuant to this section shall entitle
a business to participate in any category of contract or procurement
for which it qualifies. The certification shall not be considered
contract or project specific. The Township may, but shall not be required
to, delay the award of any contract pending the appeal of the Finance/Purchasing
Department decision to deny certification.
A.
A VBE may be decertified for failure to meet the certification standards set forth in § 16-13 and for the following reasons:
(1)
For providing false or misleading information to the Finance/Purchasing
Department during the certification process.
(2)
If the VBE is no longer an ongoing business entity.
(3)
If the business entity has changed to the extent that it is no longer
owned and controlled by veterans or does not employ a sufficient numbers
of veterans pursuant to the requirements of this program.
(4)
For failure to report to the Township, within 10 days, any determination
of the federal government or any state government, municipality or
school board, or any department, subdivision, agency or authority
of the federal government or any state government, municipality or
school board denying or revoking the certification of the business
as a veterans business enterprise.
B.
Upon review of the documentation concerning decertification, the Finance/Purchasing Department shall promptly decide the issue and notify the business of the decision in writing. The business may appeal the decision to the Township Administrator or his designee in accordance with the provisions of § 16-13F. Reasons for decertifying a business shall be expressed by certified mail. The decertified business may not reapply for certification for a period of time to be determined by the Township Administrator and/or his designee, but in no event longer than a period of one year.
A certified VBE shall submit any information requested by the
Finance/Purchasing Department annually to ascertain whether such business
is still a qualified VBE pursuant to this program. If it is determined
that the annual submission of information has changed to such an extent
that the VBE status has changed, affecting the certified status, the
Finance/Purchasing Department may recommend that the business be required
to reapply for certification pursuant to this program.
To determine whether a business shall be recommended by the
Finance/Purchasing Department to be certified as a legitimate VBE,
the following, in conjunction with information submitted by the applicant,
shall be used:
A.
Eligible VBEs under this program shall be independent businesses.
There shall be conclusive evidence that the ownership and control
of such business is real, substantial and continuing and shall go
beyond the pro forma ownership of the business as reflected in its
ownership documents. The VBE owners shall enjoy the customary interests
of ownership. They shall share in the risks and profits commensurate
with their interest of ownership. Recognition of the business as a
separate entity for tax or corporate purposes is not necessarily sufficient
for recognition as a VBE. To determine the legitimacy of an independent
VBE, the Finance/Purchasing Department shall consider all relevant
factors concerning ownership and control of business assets, including
but not limited to the date the business was established, whether
its resources for the work of the contract are adequate and the degree
to which financial, equipment-leasing and other relationships with
non-VBE firms vary from industry practice.
B.
The VBE's owners shall have the power to direct or cause management
and policy directions of the firm/business as well as make major decisions
on matters of management, policy and operations. The firm shall not
be subject to any restrictions limiting the customary discretions
of the veteran owners. This shall include provisions in bylaws, partnership
agreements or charter requirements for cumulative voting rights or
otherwise that prevent the veteran owners, without the cooperation
or vote of any owner who is not a veteran, from making a business
decision of the firm.
C.
Where nonveteran owners of the firm are disproportionately responsible
for the firm's operation, then, by the standards of this program,
the firm is not controlled by veterans and shall not be considered
a VBE business within the program's meaning on the basis of veteran
ownership.
D.
In establishing a status of a legitimate VBE, all securities which
constitute qualifying ownership and/or control of a corporation shall
be held directly by veterans. Securities held in trust or by any guardian
for a minor shall not be considered as held by a veteran in determining
the ownership and/or control of a corporation.
E.
Capital or expertise contributed by veteran owners to acquire their
interest in the firm shall be real and substantial. A promise to contribute
capital, a note payable to the firm or its owners who are not veterans
or the mere participation as an employee, rather than as a manager,
shall be examples of insufficient contributions.
F.
In determining eligibility as a VBE, in addition to the above standards,
the Finance/Purchasing Department shall give special consideration
to the following circumstances:
(1)
VBEs which are newly formed and whose ownership and/or control have
changed since the date and/or time of the advertisement of the contract
shall be closely monitored to determine the reasons and the relationship
between the timing, formation and/or change in the firm.
(2)
Careful scrutiny and review of previous and/or continuing employer/employee
relationships between or among present owners shall be conducted to
ensure that the employer/owner has the management responsibilities
pursuant to this program.
(3)
Any relationship between a VBE and a non-veteran-owned business having
interest in the VBE shall be carefully monitored to determine if the
interest of the VBE conflicts with the ownership and control requirements
of this program.
G.
Joint ventures may be eligible to compete as VBEs under this program,
provided that the VBE partner of the joint venture meets the eligibility
standards of a VBE set forth herein and the VBE partner shares in
the ownership, control and management responsibilities, the risks
and profits of the joint venture, and the VBE partner is responsible
for a clearly defined portion of the work to be performed.
A.
When the Township determines, after hearing, that a business has
been classified as a VBE on the basis of false information knowingly
supplied by the business and has been awarded a contract to which
it would not otherwise have been entitled under this Act, the Township
may:
(1)
Assess against the business any difference between the contract and
what the Township's cost would have been if the contract had
not been awarded in accordance with the provisions of this chapter.
(2)
Assess against the business a penalty in an amount of not more than
10% of the amount of the contract involved.
(3)
Bar the business from transacting business with the Township for
a period of one year.
B.
Nothing contained herein shall preclude the violator from facing
criminal sanctions for false swearing and other crimes that may be
applicable under the New Jersey Criminal Code.
