[HISTORY: Adopted by the Mayor and Council of the Town of Clinton as indicated in article histories. Amendments noted where applicable.]
Article I Restrictions on Award of Contracts Exempt from Public Bidding
[Adopted 11-6-2012 by Ord. No. 12-11]
It shall be the purpose of this article to foster competition in the contracting process that is exempt from public bidding and thereby to avoid the appearance of improper influence in public contracting through unregulated contributions to public officials who award contracts by business entities who seek public contracts.
As used in this article, the following terms shall have the meanings set forth below:
- BUSINESS ENTITY
- An individual person; firm; corporation; professional corporation; partnership; organization; or association. When a business entity is a natural person, a contribution by that person's spouse or any child living at home shall be deemed to be a contribution by the business entity. When a business entity is other than a natural person, a contribution by all principals, partners, officers, or directors of the entity or their spouses; any subsidiaries directly or indirectly controlled by the entity; or any political organization organized under § 527 of the Internal Revenue Code that is directly or indirectly controlled by the entity shall be deemed to be a contribution by the business entity.
- A. Includes:
- (1) Every candidate for Town of Clinton elective municipal office;
- (2) Every candidate committee established by or for the benefit of a candidate for Town of Clinton elective municipal office;
- (3) Every joint candidate committee established in whole or in part by or for the benefit of a candidate for Town of Clinton elective municipal office;
- (4) Every political party committee of the Town of Clinton.
- B. To the extent not defined herein, the terms in the foregoing paragraph have the meaning set forth in N.J.A.C. 19:25-1.7.
- CONTRACT FOR PROFESSIONAL OR EXTRAORDINARY SERVICES
- All contracts for professional services and/or extraordinary unspecifiable services as such terms are used in the Local Public Contracts Law at N.J.S.A. 40A:11-5.
- Has the meaning set forth in N.J.A.C. 19:25-1.7. By way of illustration, and not limitation, this definition includes gifts, pledges, loans, and in-kind contributions.
To the extent that it is not inconsistent with state or federal law, the Town of Clinton and any of its departments, instrumentalities, Chief Financial Officer, or purchasing agents, shall not enter into any agreement or otherwise procure a contract for professional or extraordinary services from any business entity if such business entity has solicited or made any contribution to a candidate or a holder of public office in the Town of Clinton having ultimate responsibility for the award of a contract, within one calendar year immediately preceding the date of the contract or agreement.
No business entity who submits a proposal for, enters into negotiations for, or agrees to any contract or agreement with the Town of Clinton or any of its departments or instrumentalities, for the provision of professional services or extraordinary unspecified services shall knowingly solicit or make any contribution to a candidate or a holder of public office in the Town of Clinton having ultimate responsibility for the award of a contract between the time of first communication between that business entity and the municipality regarding a specific agreement for professional services or extraordinary unspecified services, and the later of the termination of negotiations or rejection of any proposal, or the completion of the performance or specified time period of that contract or agreement.
For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be:
The Town of Clinton governing body (including the Mayor), if the contract requires approval or appropriation from the Mayor or governing body; or
The Mayor of the Town of Clinton if the contract requires approval of the Mayor, or if a public officer who is responsible for the award of a contract is appointed by the Mayor.
No person may be awarded a subcontract to perform under a contract subject to this article if the subcontractor would be disqualified by § 6-3A from receiving the contract at the time that the subcontract is awarded. Nor may any person who would be disqualified by § 6-3A from receiving the contract perform substantially all of the obligations described in a contract for professional or extraordinary services that is subject to this article.
No contribution or solicitation of a contribution made prior to the effective date of this article shall be deemed to give rise to a violation of this article.
No contract subject to this article may be renewed, extended, or materially modified unless the resulting renewal, extension, or modification would be allowable under the provisions of this article if it were an initial contract.
Prior to awarding any contract for professional or extraordinary services to any business entity, the Town of Clinton or its Chief Financial Officer, purchasing agents and departments, as the case may be, shall receive a sworn statement from said business entity which is the intended recipient of said contract that he/she/it has not made a contribution in violation of this article. The Town of Clinton, its Chief Financial Officer, purchasing agents and departments shall be responsible for informing the Town Council that the aforementioned sworn statement has been received and that the business entity is not in violation of this article, prior to awarding the contract or agreement.
A business entity shall have a continuing duty to report to the Town of Clinton any contribution that constitutes a violation of this article made during the negotiation, proposal process or the duration of a contract. The Town of Clinton, its purchasing agents and departments shall be responsible for informing the governing body within 10 business days after receipt of said report from the business entity, or at the next Town Council meeting following receipt of said report from the business entity, whichever comes first.
The certification required under this subsection shall be made prior to entry into the contract or agreement with the Town of Clinton, 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 business entity that is a party to a contract for professional or extraordinary services may cure a violation of § 6-3 of this article, if, within 30 days after the date on which the applicable ELEC report is published, said business entity notifies the municipality in writing and seeks and receives reimbursement of the contribution from the recipient of such contribution.
The contribution prohibition prior to entering into a contract contained in this article does not apply to contracts which are awarded to the lowest responsible bidder after public advertising for bids and bidding therefor within the meaning of N.J.S.A. 40A:11-4, or are awarded in the case of emergency under N.J.S.A. 40A:11-6. There is no exemption for contracts awarded pursuant to a fair and open process under N.J.S.A. 19:44A-20 et seq.
It shall be material breach of the terms of a Town of Clinton contract for professional or extraordinary services if a business entity that is a party to such agreement or contract has:
Made or solicited a contribution in violation of this article;
Knowingly concealed or misrepresented a contribution given or received;
Made or solicited contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;
Made or solicited any contribution on the condition or with the agreement that it will be recontributed to a candidate or holder of public office having ultimate responsibility for the award of a contract;
Engaged or employed 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 the business entity to the restrictions of this article;
Funded contributions made by third parties, including consultants, attorneys, family members, and employees;
Engaged in any exchange of contributions to circumvent the intent of this article; or
Directly or indirectly, through or by any other person or means, done any act which if done directly would subject the business entity to the restrictions of this article.
Any business entity that violates this article shall be disqualified from eligibility for future Town of Clinton contracts for a period of four calendar years from the date of violation.