[Added 12-21-2010 by Ord. No. 15-2010]
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 Section 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 Borough of Washington elective municipal office;
- (2) Every candidate committee established by or for the benefit of a candidate for Borough of Washington elective municipal office;
- (3) Every joint candidate committee established in whole or in part by or for the benefit of a candidate for Borough of Washington elective municipal office;
- (4) Every political party committee of the Borough of Washington;
- (5) Every political party committee of the County of Warren; and
- (6) Every political committee, continuing political committee, or other form of association or organization that regularly engages in the support of candidates for the Borough of Washington municipal or Warren County elective offices or Borough of Washington municipal or Warren County political parties or political party committees.
- B. 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 Borough of Washington and any of its departments, instrumentalities 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 Borough of Washington having ultimate responsibility for the award of a contract in excess of the thresholds specified in Subsection C below 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 Borough of Washington or any of its departments or instrumentalities for the rendition 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 Borough of Washington 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.
The maximum contributions permitted are: 1) $300 per calendar year each for any purpose to any candidate or candidate committee for Mayor or governing body, or $500 per calendar year to any joint candidates' committee for Mayor or governing body, or $300 per calendar year to a political committee or political party committee of the Borough of Washington; 2) $500 per calendar year to a Warren County political committee or political party committee; and 3) $500 per calendar year to any PAC. However, a business entity may not annually contribute for any purpose in excess of $2,500 to all candidates and holders of public office in the Borough of Washington having ultimate responsibility for the award of a contract.
For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be: 1) the Borough of Washington Mayor or governing body, if the contract requires approval or appropriation from the Mayor or governing body; or 2) the Mayor of the Borough of Washington 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 § 3-26.3, if the subcontractor would be disqualified by Subsection A from receiving the contract at the time that the subcontract is awarded. Nor may any person who would be disqualified by Subsection A from receiving the contract perform substantially all of the obligations described in a contract for professional or extraordinary services that is subject to § 3-26.3.
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 § 3-26.3.
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 § 3-26.3 if it were an initial contract.
Prior to awarding any contract for professional or extraordinary services to any business entity, the Borough of Washington or its 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 § 3-26.3. The Borough of Washington, its purchasing agents and departments shall be responsible for informing the Borough Council that the aforementioned sworn statement has been received and that the business entity is not in violation of § 3-26.3, prior to awarding the contract or agreement.
A business entity shall have a continuing duty to report to the Borough of Washington any contribution that constitutes a violation of § 3-26.3 made during the negotiation, proposal process, or the duration of a contract. The Borough of Washington, 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 Borough Council meeting following receipt of said report from the business entity, whichever comes first.
The certification required under this section shall be made prior to entry into the contract or agreement with the Borough of Washington 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 § 3-26A, 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 received reimbursement of the contribution from the recipient of such contribution.
The contribution limitations prior to entering into a contract in § 3-26.3 do 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.
The monetary thresholds in § 3-26.3C shall be increased effective March 1 of each calendar year by the percentage increase, in the prior calendar year, of the consumer price index for all urban consumers (CPI-U) for New York-Northern New Jersey-Long Island region, rounded to the nearest $10. The Clerk of the Borough of Washington shall, by no later than April 1 of each calendar year, prepare and publish the revised thresholds on the official municipal website and in an official municipal newspaper.
It shall be material breach of the terms of a Borough of Washington 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 § 3-26.10A shall be disqualified from eligibility for future Borough of Washington contracts for a period of four calendar years from the date of violation.