Affirmative action — See Ch. 12.
§ 348-5Goals; revisions.
§ 348-6Good faith efforts.
§ 348-7Effect on provisions.
§ 348-8Purchasing Agent.
§ 348-9Affirmative Action Officer.
§ 348-10Construction contracts.
§ 348-15Certification standards.
§ 348-16Violations and penalties.
The title of this chapter shall be "An Ordinance Establishing A Qualified Minority- and Women-Owned Business Set-Aside Program."
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.
- MINORITY BUSINESS ENTERPRISE
- A business which has its principal place of business in this state, is independently owned and operated, is at least fifty-one-percent owned and controlled by minority group members and is qualified.
- MINORITY GROUP MEMBERS
- Persons who are black, Hispanic, Portuguese, Asian Americans, American Indians or Alaskan natives.
A contract for goods, equipment, construction or services, which is designated as a contract for which bids are invited and accepted only from qualified minority or women's business enterprises, as appropriate;
A portion of a contract when that has been so designated; or
Any other purchase or procurement so designated.
- THOSE PROCUREMENTS
- All purchases, contracts or acquisitions by the city which are permitted by law.
- WOMEN'S BUSINESS ENTERPRISE
- A business which has its principal place of business in this state, is independently owned and operated, is at least fifty-one-percent owned and controlled by women and is qualified.
These provisions concerning qualified minority- and women-owned businesses participation in the City of Camden's purchasing set-aside program shall apply to construction, service and procurement contracts awarded by or through Camden's Bureau of Purchasing and the city's other contracting agencies.
The purpose of this program of implementing the provisions of the City of Camden's qualified minority- and women-owned business set-aside program is to provide goals requiring 15% of the dollar value of all of the city's purchases, services and construction contracts to be set aside for qualified minority businesses and 10% of the dollar value of all purchases, services and construction contracts to be set aside for women's enterprises.
For the fiscal year beginning January 1, 1987, and for every fiscal year thereafter, the following goals for minority business enterprise/women's business enterprise (MBE/WBE) participation shall serve as the initial goals for the City of Camden to pursue. There shall be:
The Council may revise the goals established herein by subsequent ordinance.
The above-stated percentages relate to the total dollar value of all city contracting departments and contracting agencies to be set aside for MBE/WBE's, as appropriate, as goals for city departments and contracting agencies to achieve by the end of each fiscal year.
Efforts which are merely pro forma shall not be deemed the good faith efforts necessary to generate a level of minority-and women-owned business participation sufficient to meet the goals' requirements of the program.
Actions which demonstrate a good faith effort on the part of the city's contracting departments and agencies may include but are not limited to:
Notices to minority- and women-owned businesses soliciting their participation in the set-aside program.
The Purchasing Agent's provision of plans, specifications and requirements of the contract(s) to interested minority- and women-owned businesses.
The Purchasing Agent's provision of an annual list of anticipated city purchases (approximate) by item category, dollar amount and month of bid.
If a city 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 interpretated and enforced accordingly.
In the implementation of Camden's minority- and women-owned business set-aside program and pursuant to the provisions of Assembly Bill No. 2385.
The Purchasing Agent shall make a good faith effort to attain the goals established by the city's governing body pursuant to this program.
The Purchasing Agent 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 MBE/WBE's at a fair and reasonable price.
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 Business Administrator that the bids be resolicited on a restricted basis.
Designation(s) of contracts and/or subcontracts as set-aside contracts shall be made by the Purchasing Agent prior to advertisement, and notice of such designation shall be included in the advertisement.
The Purchasing Agent shall publish a list of the city's contracting agencies' attainments (goals) for the immediate preceding local fiscal year, in two newspapers circulating in the city, by March 1 of each year.
With respect to all contracts and procurements, except construction contracts, it shall be the Affirmative Action Officer's authority and responsibility to:
Ensure, through the certification procedure herein provided, that qualified businesses taking advantage of this set-aside program are legitimate minority- and women-owned businesses.
Maintain a listing of all qualified minority- and women-owned businesses in the Camden Standard Metropolitan Statistical Area for referral by the city's contracting agencies.
Submit quarterly reports to the Business Administrator to document the percentage of set-aside contracts which have been let to minority- and women-owned businesses pursuant to the city's set-aside program and New Jersey State Assembly Bill No. 2385.
Have access to all records and files of all city contracting agencies and departments which relate to construction, service and procurement contracts in order to monitor and review compliance.
Make a written annual report to the Business Administrator indicating the good faith effort made by the city's contracting agencies to attain the set-aside goals set forth in this program pursuant to the state's Assembly Bill No. 2385.
Ascertain, with the assistance of the Purchasing Agent, the identity of qualified minority- and women-owned businesses in the Camden Standard Metropolitan Statistical Area.
Classify each business according to contract types in which the business represents itself to have capabilities, place all classified businesses on a solicitation list and distribute the list to city departments and the Purchasing Agent. This list shall also include businesses within the city's Standard Metropolitan Statistical Area. Such solicitation list shall be filed with the City Clerk for public review.
Survey all businesses placed on the solicitation list to determine their past and current participation level in city contracts. The results may be used to ascertain the contracting agency's good faith effort to attain the goals as established by Camden's governing body.
With respect to construction contracts, the certification and enforcement procedures that are set forth in Ordinance No. MC-1964, as amended and supplemented,
The city's Affirmative Action Officer shall make such findings, recommendations and proposals as are necessary and appropriate to the implementation of, the city's set-aside program. If, as a result of his monitoring activities, the Affirmative Action Officer determines that the goals set forth in this chapter are not being met by the city's contracting agency or agencies, the Affirmative Action Officer may recommend any or all of the following actions listed in Subsection B(1) through (3).
The Affirmative Action Officer shall submit a report to the Business Administrator setting forth the nature of the problem(s) and any suggestions for better implementation of the program. If the Business Administrator concludes that the city's Qualified Minority- and Women-Owned Business Set-Aside Plan is unlikely to produce the minority- or women-owned business participation goals, he may recommend that the Affirmative Action Officer revise the city's plan to provide additional opportunities for qualified minority- and women-owned business participation. Such recommendations may include but shall not be limited to the following. He may recommend:
Stronger solicitation efforts to identify more qualified minority- and women-owned businesses as potential sources of supply.
The elimination of extended experience or capitalization requirements, when programmatically feasible, to permit participation of minority- and women-owned businesses in the set-aside program.
Publication of advertisements for bids in more than one newspaper, e.g., city minority-oriented newspapers.
To ensure that only qualified businesses which are owned and controlled in both form and substance by minorities and women who are counted towards the goals' requirements set forth in this chapter and Camden's minority business enterprise/women's business enterprise program(s), any minority- or women-owned business, including a joint venture, desiring to participate in Camden's set-aside program and/or minority business enterprise/women's business enterprise program(s) must be certified by Camden's Affirmative Action Officer as a legitimate minority business enterprise/women's business enterprise, except that construction businesses shall continue to be certified by the Affirmative Action Review Council pursuant to the provisions of Ordinance No. MC-1964, as amended and supplemented.
Any business wishing to be certified as a qualified minority-or women-owned business shall apply to the Affirmative Action Officer for such certification and shall complete all forms and supply all documentation required by the Affirmative Action Officer for such application.
The Affirmative Action Officer will evaluate the submitted information to determine whether the applicant meets the criteria for qualified minority- and/or women-owned business enterprises. Prior to making a certification recommendation to the city's Business Administrator, the Affirmative Action Officer may, in his/her 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 Affirmative Action Officer 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 notify the Office of Affirmative Action if there is a change in the business that affects its status as an MBE/WBE, including changes in the business that affect its status as an MBE/WBE, including changes in ownership, control or management.
If a business is denied certification, the Business Administrator or his designee shall notify the business, in writing, of the reasons for its determination. The business may appeal to the denial to the city's Affirmative Action Review Council, which shall conduct a hearing at which the business shall have the opportunity to present witnesses and documents in support of its application for certification. The business must file its request for a hearing with the Secretary to the Affirmative Action Review Council. No appeals will be considered if filed later than 15 days from the date of the notice. Businesses that are denied certification may not reapply for certification for a period of six months from the date of denial.
Businesses that have been previously certified through programs considered by the Affirmative Action Officer to be similar or in concert with the city's goals and objectives for MBE/WBE contractors may be granted certifications pursuant to this plan upon approval by the Business Administrator.
The right of the Director of Finance 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 city may, but shall not be required to, delay the award of any contract pending the appeal of the Business Administrator's decision to deny certification.
Minority business enterprises/women's business enterprises may be decertified for failure to meet the certification standards set forth in § 348-15 and for the following reasons:
For providing false or misleading information to the Affirmative Action Officer during the certification process.
If the minority business enterprise/women's business enterprise 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 minorities or women pursuant to the requirements of this program.
For failure to report to the City of Camden, 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 minority- or women-owned business enterprise.
Upon review of the documentation concerning decertification, the Affirmative Action Officer shall make a recommendation promptly to the Business Administrator concerning decertification, whereby the Business Administrator shall determine whether the MBE/WBE shall be decertified, and shall notify the business of such decision in writing. The business may appeal the decision to the Affirmative Action Review Board in accordance with the provisions of § 348-12G. 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 Business Administrator and/or his designee, but in no event longer than a period of one year.
A certified MBE/WBE shall submit any information requested by the Affirmative Action Officer annually to ascertain whether such business is still a qualified MBE/WBE pursuant to this program. If it is determined that the annual submission of information has changed to such an extent that the MBE/WBE status has changed, affecting the certified status, the Affirmative Action Officer 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 Affirmative Action Officer to be certified as a legitimate minority- or women-owned business, the following standards, in conjunction with information submitted by the applicant, shall be used:
Eligible minority business enterprises/women's business enterprises 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 minority business enterprise/women business enterprise 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 minority business enterprise/women's business enterprise. To determine the legitimacy of an independent minority business enterprise/women's business enterprise, the Affirmative Action Officer 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 nonminority firms vary from industry practice.
The minority business enterprise/women's business enterprise 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 minority or women owners. This shall include provisions in bylaws, partnership agreements or charter requirements for cumulative voting rights or otherwise that prevent the minority or women owners, without the cooperation or vote of any owner who is not a minority or woman, from making a business decision of the firm.
Where nonminority 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 minorities or women and shall not be considered an MBE/WBE business within the program's meaning.
In establishing a status of a legitimate minority- and/or women-owned business, all securities which constitute ownership and/or control of a corporation shall be held directly by minorities or women. Securities held in trust or by any guardian for a minor shall not be considered as held by a minority and/or woman in determining the ownership and/or control of a corporation.
Capital or expertise contributed by minority and/or women 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 minorities or the mere participation as an employee, rather than as a manager, shall be examples of insufficient contributions.
In determining eligibility as a minority business enterprise/women's business enterprise business, in addition to the above standards, the Affirmative Action Officer shall give special consideration to the following circumstances:
Minority business enterprises/women's business enterprises 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/employees 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 minority business enterprise/ women's business enterprise and a non-minority-owned business having interest in the minority-owned business shall be carefully monitored to determine if the interest of the minority business enterprise/women's business enterprise conflicts with the ownership and control requirements of this program.
Joint ventures may be eligible to compete as minority business enterprises/women's business enterprises under this program, provided that the minority business enterprise/women's business enterprise partner of the joint venture meets the eligibility standards of a minority business enterprise/women's business enterprise set forth herein and the MBE/WBE partner shares in the ownership, control and management responsibilities, the risks and profits of the joint venture and the minority business enterprise/women's business enterprise partner is responsible for a clearly defined portion of the work to be performed.
When this Council determines, after hearing, that a business has been classified as a minority business enterprise or women's business enterprise 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,
Assess against the business any difference between the contract and what the city'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 City of Camden for a period to be determined by this Council.