[HISTORY: Adopted by the Township Committee of the Township of Hamilton as indicated in article histories. Amendments noted where applicable.]
Article I Political Contribution Limits
Article II Qualified Veteran Business Enterprise Set-Aside Program
[Adopted 10-20-2008 by Ord. No. 1636-2008]
To the extent that it is not inconsistent with state or federal law, the Township of Hamilton and any of its purchasing agents or departments or instrumentalities of the municipality thereof, as the case may be, shall not enter into any agreement or otherwise contract to procure services from any professional business entity, including those awarded pursuant to any process, including a fair and open process, if such professional business entity has solicited or made any contribution of money, or pledge of a contribution, including in-kind contributions, to a campaign committee of any municipal candidate or holder of public office having ultimate responsibility for the award of a contract, or to any Township of Hamilton or Atlantic County party committee, or to any political action committee (PAC) that regularly engages in the support of municipal or county elections and/or municipal or county parties, in excess of the thresholds specified in Subsection D within one calendar year immediately preceding the date of the contract or agreement.
No professional business entity or vendor who submits a proposal for, enters into negotiations for, or agrees to any contract or agreement (including nonemergency contracts awarded by N.J.S.A. 40A:11-1 et seq or the "fair and open" process pursuant to N.J.S.A. 19:44A-20 et seq) with the municipality or any departments thereof, for the rendition of professional services, or goods and services, as the case may be, shall knowingly solicit or make any contribution of money, pledge of contribution, including in-kind contributions, to: any municipality candidate or holder of public office having ultimate responsibility for the award of a contract, or to any Township of Hamilton or Atlantic County party committee, or to any PAC that regularly engages in the support of municipal or county elections and/or municipal or county parties, between the time of first communication between that professional business entity or vendor and the municipality regarding a specific professional services agreement or goods and services agreement, as the case may be, and the later of the termination of negotiations or rejection of any proposal, or the completion of the contract or agreement.
For purposes of this article, a "professional business entity" and a "vendor" seeking a public contract mean an individual, including the individual's spouse, if any, and any child living at home; person; firm; corporation; professional corporation; partnership; organization; or association. The definition of a business entity and vendor includes all principals who own 10% or more of the equity in the corporation or business trust, partners, and officers (in the aggregate) employed by the entity or vendor, as well as any subsidiaries directly controlled by the business entity or vendor.
Any individual meeting the definition of "professional business entity" or "vendor" under this section may annually contribute a maximum of $300 each for any purpose to any candidate, for Mayor or governing body, or $300 to the Township of Hamilton party or $500 to the Atlantic County party committee or to a PAC referenced in this article, without violating Subsection A of this section. However, any group of individuals meeting the definition of "professional business entity" or "vendor" under this section, including such principals, partners, and officers of the entity or vendor in the aggregate, may not annually contribute for any purpose in excess of $2,500 to all Township of Hamilton candidates and officeholders with ultimate responsibility for the award of the contract, and all Township of Hamilton or Atlantic County political parties and PACs referenced in this article combined, without violating Subsection A of this section.
For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be the Township Committee of the Township of Hamilton.
No contribution of money or any other thing of value, including in-kind contributions, made by a professional business entity or vendor to any candidate for the Township Committee of the Township of Hamilton or Atlantic County party committee or PAC referenced in this article shall be deemed a violation of this article, nor shall an agreement for property, goods, or services, of any kind whatsoever, be disqualified thereby, if that contribution was made by the professional business entity or vendor prior to the effective date of this article.
Prior to awarding any contract or agreement to procure services with any professional business entity and any contract or agreement to procure goods and services from a vendor, the Township of Hamilton or its purchasing agents and departments, as the case may be, shall receive a sworn statement from the professional business entity or vendor, made under penalty of perjury, that the bidder or offeror has not made a contribution in violation of § 16-1 of this article.
The professional business entity and vendor shall have a continuing duty to report any violations of this article that may occur during the negotiation, proposal process or duration of a contract. The certification required under this subsection shall be made prior to entry into the contract or agreement with the Township of Hamilton, or prior to the provision of services or goods, as the case may be, and shall be in addition to any other certifications that may be required by any other provision of law.
A professional business entity, vendor, or municipal candidate or officeholder, or Township of Hamilton or Atlantic County party committee or PAC referenced in this article, may cure a violation of § 16-1 of this article, if, within 30 days after the date on which the applicable ELEC report is published, the professional business entity or vendor notifies the municipality in writing and seeks and receives reimbursement of the contribution from the relevant municipal candidate or officeholder, Township of Hamilton or Atlantic County political party or PAC referenced in this article.
The contribution limitations prior to entering into a contract in § 16-1A do not apply to contracts that are required by law to be awarded to the lowest bidder.
It shall be a breach of the terms of the Township of Hamilton professional service agreement or agreement for goods or services for a business entity to:
Make or solicit a contribution in violation of this article;
Knowingly conceal or misrepresent a contribution given or received;
Make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;
Make or solicit any contribution on the condition or with the agreement that it will be contributed to a campaign committee of any candidate or holder of the public office of Township of Hamilton;
Engage or employ a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any contribution which, if made or solicited by the business entity itself, would subject that entity to the restrictions of this article;
Fund contributions made by third parties, including consultants, attorneys, family members, and employees;
Engage in any exchange of contributions to circumvent the intent of this article; or
Directly or indirectly, through or by any other person or means, do any act which would subject that entity to the restrictions of this article.
Furthermore, any professional business entity that violates Subsection A(z) through (8) shall be disqualified from eligibility for future Township of Hamilton contracts for a period of four calendar years from the date of the violation.
[Adopted 4-7-2014 by Ord. No. 1765-2014]
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:
- CONSTRUCTION CONTRACT
- Any agreement for the erection, repair or alteration of any building, structure, bridge, roadway or other improvement to real property.
- The County of Atlantic.
- QUALIFIED VETERAN BUSINESS ENTERPRISE
- 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. 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;
- B. A portion of a contract when that has been so designated; or
- C. Any other purchase or procurement so designated.
- TOTAL PROCUREMENTS
- 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.
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.
The Township Committee may revise the goals established herein by subsequent ordinance.
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:
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.
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.
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.
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.
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:
Ensure, through the certification procedure herein provided, that qualified businesses taking advantage of this set-aside program are legitimate VBEs.
Maintain a listing of known VBE businesses in the proximate area for referral by the Township.
Have access to all Township records and files which relate to construction, service and procurement contracts in order to monitor and review compliance.
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.
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.
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.
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.
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.
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.
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.
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 VBE may be decertified for failure to meet the certification standards set forth in § 16-13 and for the following reasons:
For providing false or misleading information to the Finance/Purchasing Department during the certification process.
If the VBE is no longer an ongoing business entity.
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.
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.
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:
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.
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.
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.
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.
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.
In determining eligibility as a VBE, in addition to the above standards, the Finance/Purchasing Department shall give special consideration to the following circumstances:
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.
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.
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.
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.
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:
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.
Assess against the business a penalty in an amount of not more than 10% of the amount of the contract involved.
Bar the business from transacting business with the Township for a period of one year.
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.