[HISTORY: Adopted by the Township Committee
of the Township of Waterford as indicated in article histories. Amendments
noted where applicable.]
GENERAL REFERENCES
Purchasing procedures — See Ch. 59.
[Adopted 9-27-2006 by Ord. No. 2006-15[1]]
[1]
Editor's Note: This ordinance was repealed 12-28-2011 by Ord.
No. 2011-23 and then subsequently reinstated 1-25-2012 by Ord. No.
2012-1.
The following standards and criteria are hereby
adopted and shall be made applicable to all contracts awarded and/or
confirmed by the Township Committee and any and all boards, authorities,
and committees appointed, either through the authority of statute
or ordinance, by the Township Committee, unless a specific contrary
intention is expressed in an individual case by the Township Committee.
A.
Purpose and intent. Although professional services
contracts and certain other contracts for goods and services are exempt
from the competitive bidding requirements of the Local Public Contracts
Law, N.J.S.A. 40A:11-1 et seq., the Township Committee deems it appropriate,
and consistent with the provisions of recently enacted New Jersey
legislation, now codified at N.J.S.A. 19:44A-20.1 et seq., to henceforth
award such contracts through a competitive, quality-based, fair and
open process, unless a specific determination to the contrary is made
by the Township Committee.
B.
Process for award of professional services and other
no-bid contracts. The Township of Waterford, or any agency or instrumentality
thereof, shall not enter into a contract, including a professional
services contract, or such other contract which is exempt from public
bidding requirements, having an anticipated value in excess of $17,500,
as determined by the Township of Waterford or any agency or instrumentality,
with a business entity, except through 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 N.J.S.A. 19:44A-1 et seq. to any municipal
committee of a political party if a member of that political party
is in office as a member of the Township Committee when the contract
is awarded or to any candidate committee of any person serving in
an elected public office of the Township of Waterford when the contract
is awarded. The fair and open process shall be quality-based and shall
be as follows:
(1)
Professional services may be awarded by virtue of
a publicly advertised request for proposals (RFP) which will be issued
as one document for those appointments which are made on an annual
basis, such as, but not limited to, the positions of: Township Attorney,
Township Engineer, Township Planner, Planning Board Attorney, Planning
Board Engineer, Zoning Board Attorney, Zoning Board Engineer, and
such other statutory and/or ordinance public positions.
(2)
For said positions, no contract shall be awarded unless
and until the positions are:
(a)
Publicly advertised in newspapers or on the internet
website maintained by the Township in sufficient time to give notice
in advance of the solicitation for the contracts;
(b)
Awarded under a process that provides for public solicitation
of proposals and qualifications, including the following:
[1]
Experience and reputation in the field;
[2]
Knowledge of the subject matter of the services
to be provided to the Township;
[3]
Knowledge of the Township, its affairs and operations;
[4]
Availability to accommodate any required meetings
of the Township;
[5]
Compensation proposal;
[6]
Compliance with the minimum qualifications established
by the Township for the position;
[7]
Other factors determined to be in the best interest
of the Township.
(c)
Awarded and disclosed under criteria established in
writing by the Township of Waterford prior to the solicitation of
proposals or qualifications as set forth in this article;
(d)
Publicly announced when awarded; and as to those RFPs
which prove to be unsuccessful, the Township Clerk shall retain a
copy of same on file for a period of not less than 60 days.
(3)
For contracts which arise on an occasional basis,
such as appraisals needed for the acquisition of land and/or open
space, as well as title searches, surveying, and similar work associated
with same; and comparable assignments, such as planning services needed
for Master Plan updates, appraisals, special counsel, special project
engineer contracts, etc., professional services contracts may be awarded
without following the foregoing provisions, so long as:
C.
Review of RFPs by review committee. A review committee
shall be established by the Mayor, consisting of not fewer than two
committee members, to prepare, process and evaluate any RFP issued
pursuant to the professional services contracting procedures set forth
above. The review committee shall evaluate the respective qualifications
and/or proposals, taking into consideration the designated qualifications
and/or performance criteria, experience, reputation of vendor, quality
of services, quoted fee and other relevant factors in making a recommendation
of award to the Township Committee; and the Township Clerk may, in
his/her sole discretion, conduct negotiations with qualified vendors,
after receipt of proposals, in order to achieve the best possible
contract terms and conditions for the Township and its taxpayers.
No contract shall be awarded, however, unless same is authorized by
resolution duly adopted in public session by the Township Committee.
D.
Contribution statement by professional business entity.
(1)
Prior to awarding any contract or agreement to procure
services, including banking or insurance coverage services, with any
professional business entity, the Township or any of its purchasing
agents or agencies, as the case may be, shall receive a sworn statement
from the professional business entity, made under penalty of perjury,
that the bidder or offer or has not made a contribution in violation
of this article.
(2)
The professional business entity shall have a continuing
duty to report any violations of this article that may occur during
the negotiation or duration of a contract. The certification required
under this subsection shall be made prior to entry into the contract
or agreement with the Township and shall be in addition to any other
certifications that may be required by any other provision of law.
E.
Contracts issued without use of the RFP process.
(1)
In circumstances where the Township Committee determines
that the use of the RFP process is not appropriate, such as, but not
limited to, contracts with other government agencies, and agreements
with public utilities, the Township Clerk shall use his/her best efforts
to obtain at least two quotations for the work and shall require the
contractor to fully comply with the provisions of N.J.S.A.19:44A-22
et seq. and related statutes.
(2)
No business entity which enters into negotiations
for, or agrees to, any contract or agreement with the Township of
Waterford or any department or agency thereof, or of its independent
authorities for the rendition of professional, banking or insurance
coverage services, or any other consulting services, shall solicit
or make any contribution of money, or pledge of a contribution, including
in-kind contributions, to any Township of Waterford municipal candidate
or holder of the public office having ultimate responsibility for
the award of the contract, or campaign committee supporting such candidate
or officeholder, or to any Waterford Township party committee, between
the time of first communications between that business entity and
the Township regarding a specific professional services agreement
and the later of the termination of negotiations or the completion
of the contract or agreement.
F.
Emergency exceptions. Notwithstanding the foregoing,
the Township Committee recognizes that the New Jersey Legislature
has provided for certain emergencies and further recognizes that the
procedure outlined above might not be capable of being achieved in
the event of an emergency or other time constraints. Thus, should
a situation arise, and time does not permit resort to this procedure,
and the immediate performance of services is necessary, then an award
for same may be made in accordance with the provisions of the Local
Public Contracts Law relating to emergency contracts and such rules
and regulations as may be promulgated, from time to time, by the Township
Committee with regard to same. No such emergency contracts, however,
may be awarded without a resolution establishing a basis for the deviation
from the procedures outlined herein.
[Adopted 7-18-2012 by Ord. No. 2012-9]
As used in this article, the following terms shall have the
meanings indicated:
Whose contributions are regulated by this article:
An individual, including the individual’s spouse, and
any child/children;
A firm, corporation, professional corporation, partnership,
limited liability company, organization, association, and any other
manner and kind of business entity;
All partners or officers of such an entity, in the aggregate,
and their spouses and child/children;
Any person, subcontractor, subsidiary, corporation, firm, partnership, limited liability company, organization or association who or which has received or indefeasibly acquired the right to receive, from a person described in Subsection A above, more than $100,000 in compensation or income of any kind (including, by way of illustration and not limitation, wages, salaries, sums paid to independent contractors, benefits, dividends, profit-sharing, pension contributions, deferred contributions, stock, stock options or gifts) in any twelve-month period prior to the award of, or during the term of, a contract subject to this article.
(1) Every candidate for Township of Waterford elective municipal
office; (2) every candidate committee established by or for the benefit
of a candidate for Township of Waterford elective municipal office;
(3) every joint candidate committee established in whole or in part
by or for the benefit of a candidate for Township of Waterford elective
municipal office; (4) every political party committee of the Township
of Waterford; and (5) every political committee, continuing political
committee, or other form of association or organization that regularly
engages in the support of candidates for the Township of Waterford
Municipal elective offices or Township of Waterford Municipal political
parties or political party committees. The terms in this definition
shall have the meanings prescribed in N.J.A.C. 19:25-1.7.
All contracts for “professional services” and
“extraordinary unspecifiable services,” as such terms
are used in N.J.S.A. 40A:11-5.
The meaning prescribed in N.J.A.C. 19:25-1.7. By way of illustration,
and not limitation, this definition includes pledges, loans, and in-kind
contributions.
A.
To the extent that it is not inconsistent with state or federal law, the Township of Waterford and any of its departments, instrumentalities or purchasing agents shall not enter into any agreement or otherwise contract to procure “professional services,” as such term is defined at N.J.S.A. 40A:11-2(6) and used at N.J.S.A. 40A:11-5(1)(a)(i), and/or banking, insurance or other consulting service (hereinafter “professional services”), nor “extraordinary unspecified services,” as such term is defined at N.J.S.A. 40A:11-2(7) and used at N.J.S.A. 40A:11-5(1)(a)(ii), and/or media, public relations, lobbying, parking garage management or other consulting and/or management service (hereinafter “extraordinary unspecified services”) from any business entity if such business entity has, within one calendar year immediately preceding the date of the contract or agreement, solicited or made any contribution in excess of the thresholds specified in Subsection C of this section to:
(1)
A candidate,
candidate committee or joint candidates committee of any candidate
for elective municipal office in the Township of Waterford or a holder
of public office having ultimate responsibility for the award of a
contract;
(2)
Any
Township of Waterford political party committee; or
(3)
Any
continuing political committee or political action committee that
regularly engages in the support of the Township of Waterford candidates
and elections.
B.
Contributions.
(1)
No business entity who submits a proposal for, enters into, negotiates for, or agrees to any contract or agreement with the Township of Waterford or any of its departments or instrumentalities for the rendition of professional services or extraordinary unspecified services shall, 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, solicit or make, either directly or indirectly, any contribution in excess of the thresholds specified in Subsection C of this section to:
(a)
A
candidate, candidate committee or joint candidates committee of any
candidate for elective municipal office in the Township of Waterford
or a holder of public office having ultimate responsibility for the
award of a contract;
(b)
Any
Township of Waterford political party committee; or
(c)
Any
political action committee.
(2)
For purposes of this subsection, an indirect contribution shall include a contribution made to a political organization (as defined in Subsection F below) that subsequently makes a contribution to (i) any category of individual or organization described above in Subsection B(1)(a), (b) or (c) of this section; or (ii) another political organization, which then directly, or through a series of subsequent contributions to other political organizations, makes a contribution to any category of individual or organization described above in Subsection B(1)(a), (b) or (c) of this section, regardless of whether:
(a)
The
business entity had knowledge of such political organization’s
or political organizations’, as the case may be, contributions;
or
(b)
Such
political organization's or political organizations', as the case
may be, use the funds of the business entity in making the contribution
or contributions, as the case may be.
C.
Monetary
thresholds.
(1)
The
monetary thresholds of this article are:
(a)
A
maximum of $300 per calendar year for any purpose to any single 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 Township of Waterford;
(b)
A
maximum of $500 per calendar year to any political action committee
that regularly engages in the support of Township of Waterford candidates.
(2)
However, for each business entity party to a contract for professional or extraordinary unspecified services as defined in Subsection A, when such business entity’s contribution is aggregated with all “persons” defined in “business entity” in § 10-3 above, by virtue of their affiliation to that business entity party, a maximum of $2,500 to all Township of Waterford candidates, candidates committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Township of Waterford political committees and political party committees, as described herein, combined, without violating Subsection A of this section.
D.
For purposes
of this section, the office that is considered to have ultimate responsibility
for the award of the contract shall be the Mayor and Township Committee
of the Township of Waterford.
E.
Rules regarding subcontractors. No person may be awarded a subcontract to perform under a contract subject to this article 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 this article.
F.
No Waterford
Township candidate for committee shall accept any contribution from
any state, county or municipal or other political party or committee,
political action committee, union or any other association or organization
that regularly engages in the support of candidates for elective office
(collectively, ”political organizations” and each, a “political
organization”) to the extent the political organization received
funds constituting such contribution from another political organization
or individual and that results in contributions that exceed the contribution
thresholds, limits and restrictions set forth in this article. It
is the express intent and purpose of this provision to prohibit the
practice commonly known as “wheeling.”
No contribution or solicitation of contributions 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.
A.
Prior to awarding any contract or agreement to procure “professional services” or “extraordinary unspecified services” from any business entity, the Township of Waterford 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 § 10-4 of this article. The Township of Waterford, its purchasing agents and departments shall be responsible for informing the Township Committee 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.
B.
A business
entity shall have a continuing duty to report to the Township of Waterford
any contributions that constitute a violation of this article that
are made during the negotiation, proposal process or the duration
of a contract. The Township of Waterford, 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 Township Committee meeting following receipt
of said report from the business entity, whichever comes first.
C.
The certification
required under this section shall be made prior to entry into the
contract or agreement with the Township of Waterford, 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 services or extraordinary unspecified services may cure a violation of § 10-4 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 limitations prior to entering into a contract in § 10-4A 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.
A.
It shall
be a material breach of the terms of a Township of Waterford agreement
or contract for professional services or extraordinary unspecified
services when a business entity that is a party to such agreement
or contract has:
(1)
Made
or solicited a contribution in violation of this article;
(2)
Knowingly
concealed or misrepresented a contribution given or received;
(3)
Made
or solicited contributions through intermediaries for the purpose
of concealing or misrepresenting the source of the contribution;
(4)
Made
or solicited any contribution on the condition or with the agreement
that it will be contributed to a candidate, candidate committee or
joint committee of any candidate for elective municipal office in
the Township of Waterford, or a holder of public office having ultimate
responsibility for the award of a contract, or any Township of Waterford
political committee or political party committee, or any political
action committee;
(5)
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 professional business entity itself,
would subject that entity to the restrictions of this article;
(6)
Funded
contributions made by third parties, including consultants, attorneys,
family members and employees;
(7)
Engaged
in any exchange of contributions to circumvent the intent of this
article; or
(8)
Directly
or indirectly, through or by any other person or means, done any act
which, if done directly, would subject that entity to the restrictions
of this article.
C.
Any person
who knowingly, purposely, or recklessly violates any provision of
this article, or who conspires with another person to violate any
provision of this article, or who, with the purpose of promoting or
facilitating a violation of this article, solicits another person
to commit it, or aids or agrees or attempts to aid another person
in planning or committing it, shall be subject to punishment, including
fines and/or imprisonment as set forth in N.J.S.A. 19:44A-22, which
penalty provisions shall be utilized by the Township of Waterford
in the enforcement of this article.