[HISTORY: Adopted by the Board of Chosen Freeholders of Mercer
County 7-12-2018 by Ord. No. 2018-5. Amendments noted where applicable.]
[Pursuant to P.L. 2020, c. 67, effective 1-1-2021, the Code
of Mercer County has been amended to delete the term “Board
of Chosen Freeholders” and replace it with the term “Board
of County Commissioners.” In addition, the terms “Freeholder”
and “Chosen Freeholder” have been deleted and replaced
by the term “County Commissioner.”]
The title of this chapter shall be "An Ordinance Establishing
a Qualified Minority, Women, Veteran-Owned Business, or Small Business
set-aside program" (hereinafter "set-aside program"). This chapter
is being enacted pursuant to and in accordance with the provisions
of N.J.S.A. 40A:11-41 et seq.
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.
Any agreement for the sale of goods or for the provision
of services to the County of Mercer.
Persons who are Black, Hispanic, Portuguese, Asian Americans,
American Indians or Alaskan natives, as per N.J.S.A. 40A:11-41.
A database that identifies businesses that are registered
as a small business enterprise and/or certified as a minority/women/veteran-owned
business enterprise with the State of New Jersey, through the Division
of Revenue.
A minority-owned enterprise, or a women-owned enterprise,
or veteran-owned enterprise, or small business enterprise, as defined
herein and qualified under N.J.S.A. 40A:11-25, or a general contractor
who hires as a subcontractor, a minority-owned, woman-owned, veteran-owned,
and/or small-business enterprise, as part of a contract award by the
County (hereinafter "qualified business").
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 minority group members and is qualified pursuant
to N.J.S.A. 40A:11-25.
A business which has its principal place of business in this
state, is independently owned and operated and meets all other qualifications
as may be established in accordance with N.J.S.A. 52:27H-21.7 et seq.
[Amended 10-22-2019 by Ord. No. 2019-5]
A business which has its principal place of business in this
state, is independently owned and operated, and is at least 51% owned
and controlled by a veteran, and is qualified under N.J.S.A. 40A:11-25.
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 women, and is qualified pursuant to N.J.S.A. 40A:11-25.
A contract for goods, equipment, construction, or professional
services, inclusive of subcontracts, which is designated as contract
for which bids are invited and accepted only from qualified businesses,
qualified small business enterprises, qualified veteran business enterprises,
qualified minority business enterprises or qualified women's business
enterprises, as appropriate;
A portion of a contract when that portion has been so designated;
or
Any other purchase or procurement so designated.
A contract by which one agrees to render services or to provide
materials necessary for the performance of another contract.
All purchases, contracts, or acquisitions by the County as
permitted by law.
Any citizen and resident of this state now or hereafter honorably
discharged or released under honorable circumstances that served in
any branch of the Armed Forces of the United States or a Reserve component
thereof for at least 90 days, and shall include disabled veterans.
These provisions concerning qualified businesses participation
in the County's set-aside program shall apply to contracts for goods,
services, professional services, and/or construction awarded by or
through the County's Purchasing Department.
The purpose of this set-aside program is to set aside, or otherwise
allocate, 10% of the dollar value of all the County's goods, services,
professional services, and construction contracts in a fiscal year
to be utilized for qualified business enterprises.
A.
For the fiscal year beginning July 1, 2018, and for every fiscal
year thereafter, the following goals for qualified business participation
shall serve as the initial goals for the County of Mercer. Of the
10% set-aside or allocation, there shall be:
(1)
Thirty percent County contract participation for qualified minority
business enterprises.
(2)
Thirty percent County contract participation for qualified women's
business enterprises.
(3)
Thirty percent County contract participation for qualified veteran
business enterprises.
(4)
Ten percent County contract participation for qualified small
businesses.
B.
The above-stated percentages relate to the total dollar value of
all the County's contracting departments to be set aside for qualified
businesses, as appropriate, as goals for the County departments to
achieve by the end of each fiscal year.
C.
The monetary value of subcontracts awarded subject to the set-aside
program shall be included when reviewing whether the goals established
by the set-aside program have been achieved.
D.
The County will conduct a disparity study, to be completed by December
31, 2019. All contracts awarded pursuant to this chapter prior to
the completion of that study shall be done in good faith effort to
attain the goals as outlined herein.
If a County contract for goods, services, professional services,
or construction, which would otherwise be subject to the provision
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.
A.
In general.
(1)
The County Deputy Administrator/Finance shall make a good-faith
effort to attain the goals established for the set-aside program.
(2)
The County Deputy Administrator/Finance shall designate a contract,
subcontract or other means of procurement as a set-aside contract
if it is likely to receive bids from at least two qualified businesses
at a fair and reasonable price.
(3)
If it is determined by the Purchasing Agent that two bids cannot
be obtained or that acceptance of the low responsible bid will result
in the payment of an unreasonable price, the Purchasing Agent may
recommend to the County Deputy Administrator/Finance that the bids
be resolicited on an unrestricted basis.
(4)
Designation(s) of contracts and/or subcontracts as set-aside
contracts shall be made by the County Deputy Administrator/Finance
prior to advertisement and notice of such designation shall be included
in the advertisement.
(5)
The Purchasing Agent will submit semiannual reports to the County
Deputy Administrator/Finance to document the percentage of set-aside
contracts which have been awarded to qualified businesses.
(6)
Pursuant to N.J.S.A. 40A:11-48, the Purchasing Agent will make
annual written reports to the County Deputy Administrator/Finance
indicating the good faith effort made by the County's contracting
agencies to attain the set-aside goals. The reports shall be submitted
to the County Executive and the Board of County Commissioners setting
forth the previous annual activity. The County shall publish a list
of the County's contracting agencies' attainments (goals) for the
immediate preceding local fiscal year, in two newspapers circulating
in the County, by March 1 of each year.
(7)
The County Deputy Administrator/Finance with the Purchasing
Agent will assist qualified businesses for participation in this program
through educational and outreach programs.
(8)
The Purchasing Agent shall set forth the nature of problem(s)
and any suggestions for better implementation of the set-aside program.
If the County Deputy Administrator/Finance concludes that the County's
set-aside program is unlikely to attain the stated participation goals,
he/she may recommend that the Purchasing Agent revise the County's
plan to provide additional opportunities for qualified business participation,
including the following:
(a)
Recommendation as to stronger solicitation, education and outreach
efforts to identify more qualified minority, women, and veteran-owned
businesses and small businesses.
(b)
Recommendations as to the elimination of extended experience
or capitalization requirements, to permit participation of qualified
businesses.
(c)
Recommendations as to publication of advertisements for bids
in more than one newspaper, e.g., County minority-oriented newspapers.
A.
The County will rely upon and utilize the NJSAVI database to determine
certified businesses.
B.
Each qualified business shall submit a fully executed certification
to the County's Purchasing Department, affirming that his or her business
meets all the requirements to be a qualified business by January 1
of each year.
C.
The qualified business shall notify the Purchasing Agent if there
is a change in the business that affects its status as a qualified
business, including changes in ownership, control or management.
A.
Any business may be disqualified by the County and not be eligible
to participate in the set-aside program, for the following reasons:
(1)
Providing false or misleading information to the Purchasing
Agent.
(2)
No longer an ongoing business entity.
(3)
Failure to report to the County of Mercer, within 10 days, any
determination denying or revoking the certification of the business
as a minority, or women, or veteran-owned, or small business enterprise.
(4)
Failure of the business to maintain registration with the NJSAVI
database.
B.
During the term of the contract with the County if a business is
disqualified, the County may exercise its right to terminate the contract
within 30 days of notification of disqualification.
A.
When the County determines that a business is no longer covered under
NJSAVI 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 chapter as a result, the County may,
in accordance with the provisions afforded to it by N.J.S.A. 40A:11-47:
(1)
Assess against the business any difference between the contract
and what the County's cost would have been if the contract had not
been awarded in accordance with the provisions of this program;
(2)
In addition to the amount due under Subsection A(1), assess against the business a penalty in an amount of not more than 10% of the amount of the contract involved;
(3)
Order the business ineligible to transact any business with
the County, pursuant to the provisions of N.J.S.A. 40A:11-4, for a
period to be determined by the County, which shall not exceed five
years; and/or
(4)
File an action to enforce a civil penalty imposed by this section
providing for its collection or enforcement by a civil proceeding,
which action shall be brought as a summary action in the New Jersey
Superior Court, Law Division pursuant to New Jersey Court Rule 4:67
and other applicable laws, as same may be amended and supplemented.
B.
Prior to any final determination, assessment or order under this
section, the County shall afford the business an opportunity for a
hearing on the reasons for the imposition of the penalty.
