[HISTORY: Adopted by the Mayor and Township Council of the Township of Toms River 12-8-2009 by Ord. No. 4230-09. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. 84, Contracts, Public, adopted at the general election held 11-8-2005 by Ord. No. I&R-01-05, as amended.
The purpose of this chapter is to comply with and adopt the provisions of Chapter 19, P.L. 2004, as amended P.L. 2005, c. 51, and Chapter 271, P.L. 2005 (the "Pay to Play Acts").
Editor's Note: See N.J.S.A. 19:44A-20.3 et seq.
As used in this chapter, unless otherwise noted, the following terms shall have the meanings indicated, as delineated within N.J.S.A. 19:44A-20.7:
- BUSINESS ENTITY
- Any natural or legal person, business corporation, professional services corporation, limited-liability company, partnership, limited partnership, business trust, association or any other legal commercial entity organized under the laws of this state or of any other state or foreign jurisdiction.
- The ownership or control of more than 10% of the profits or assets of a business entity or 10% of the stock in the case of a business entity that is a corporation for profit, as appropriate.
The Township of Toms River, and any agency or instrumentality thereof, shall not enter into a contract having an anticipated value in excess of $17,500, as determined in advance and certified in writing by the Township, with a business entity, except a contract that is awarded pursuant to a fair and open process, if, during the preceding one-year period, that business entity has made a contribution that is reportable by the recipient under P.L. 1973, c. 83 (N.J.S.A. 19:44A-1 et seq.), to any Toms River Township committee of a political party, if a member of that political party is serving in an elective public office of Toms River when the contract is awarded, or to any candidate committee of any person serving in an elective public office of that municipality when the contract is awarded; and
A business entity that has entered into a contract having an anticipated value in excess of $17,500 with the Township of Toms River, or any agency or instrumentality thereof, except a contract that is awarded pursuant to a fair and open process, shall not make such a contribution, reportable by the recipient under P.L. 1973, c. 83 (N.J.S.A. 19:44A-1 et seq.), to any Toms River Township committee of a political party, if a member of that political party is serving in an elective public office of that municipality when the contract is awarded, or to any candidate committee of any person serving in an elective public office of that municipality when the contract is awarded during the term of that contract.
When a business entity is a natural person, a contribution by that person's spouse or child, residing therewith, shall be deemed to be a contribution by the business entity. When a business entity is other than a natural person, a contribution by any person or other business entity having an interest therein 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 business entity or their spouses; any subsidiaries directly or indirectly controlled by the business entity; or any political organization organized under Section 527 of the Internal Revenue Code that is directly or indirectly controlled by the business entity, other than a candidate committee, election fund, or political party committee, shall be deemed to be a contribution by the business entity.
If a business entity makes a contribution that would cause it to be ineligible to receive a public contract, or, in the case of a contribution made during the term of a public contract, that would constitute a violation of the Pay to Play Acts, the business entity may request, in writing, within 60 days of the date on which the contribution was made, that the recipient thereof repay the contribution and, if repayment is received within those 60 days, the business entity would again be eligible to receive a contract, or would no longer be in violation, as appropriate.
Nothing contained in this chapter shall be construed as prohibiting the awarding of a contract when the public exigency requires the immediate delivery of goods or performance of emergency services as determined in accordance with § 40-13.
Prior to awarding any contract, except a contract that is awarded pursuant to a fair and open process, the Township of Toms River shall require the business entity to which the contract is to be awarded to provide a written certification that it has not made a contribution that would bar the award of a contract pursuant to this act. A business entity shall have a continuing duty to report to the Election Law Enforcement Commission any contributions that constitute a violation of this act that are made during the duration of a contract.
Violations of this chapter shall result in penalties as prescribed within N.J.S.A. 19:44A-20.10 and 19:44A-20.11.
§ 84-9 Fair and open process utilized to award contracts with anticipated value in excess of $17,500.
The Township shall award all contracts with a business entity having an anticipated value in excess of $17,500 on the basis of the fair and open process herein, in accordance with N.J.S.A. 19:44A-20.7. For purposes of this section, contracts awarded by public bidding pursuant to N.J.S.A. 40A:11-4, and competitive contracting pursuant to N.J.S.A. 40A:11-4.1 to 40A:11-4.5, shall be deemed to have satisfied the Township's "fair and open process." This section shall not apply to any contract for which the entity is regulated by the state so as to prohibit or restrict said entity from making political contributions.
Fair and open process defined.
Requests for proposal shall be published by the posting of a public notice at least 10 days prior to the awarding of any contract herein.
The public notice shall be:
Mailed, telephoned, telegrammed, faxed, or hand delivered to at least two newspapers designated to receive such notice because they have the greatest likelihood of informing the public within the municipality, one of which shall be the official newspaper of the municipality; and
Filed with the Township Clerk.
The public notice shall, at minimum, include:
A description of the goods or services needed, including, where appropriate, a description of tasks involved.
Threshold qualification requirements setting the highest possible minimum standards for qualifying to compete for the particular goods or services and tasks involved.
Notice that the selection criteria are on file and available at a stated location in the Township.
Deadline and place for all submissions.
The selection criteria to be used in awarding a contract or agreement for goods or services shall include:
Name and business address of proposed contractor. For service contracts, the names and roles of the individuals who will perform the task, and a description of their experience with projects similar to the matter being advertised.
References which include evidence of successful transactions for provision of similar goods or services.
Description of ability to provide the goods or services in a timely fashion (for service contracts, include staffing, familiarity, and location of key staff).
Cost details. For service contracts, include the hourly rates of each of the individuals who will perform services, time estimates for each individual, all expenses, and, where appropriate, total cost of "not to exceed" amount.
Qualifications of the individuals who will perform the tasks and the amounts of their respective participation (services only).
Other relevant experience.
Ability to perform the task or provide goods in a timely fashion.
Cost consideration, including, but not limited to, as applicable, historical costs for similar goods or services, expertise involved and comparable costs for comparable public entities.
All submissions shall be kept on file during the term of the related contract, and shall be public records after the deadline for the submission of proposals.
Contracts awarded under this section shall be publicly announced and awarded.