The purpose of implementing the provisions of the City's
qualified Veteran Business Enterprise's "VBE" Set-Aside Program
is to provide preference to VBEs for the opportunity to bid and be
awarded selected City contracts in an amount up to 1% of the City's
purchases, services and construction contracts for qualified veterans'
business enterprise.
For the purposes of this chapter, the following definitions
shall apply:
CITY
The City of Pleasantville.
CONSTRUCTION CONTRACT
Any agreement for the erection, repair or alteration of any
building, structure, bridge, roadway or other improvement to real
property.
COUNTY
The County of Atlantic.
QUALIFIED VETERAN BUSINESS ENTERPRISE
The meaning set forth at N.J.S.A. 40A:11-41(i), namely a
business which has its principal place of business in this state,
is independently owned and operated, is at least 25% owned and controlled
by a veteran or that wherein at least 25% of the required workforce
for the contract are veterans, and 25% of the labor hours charged
to the contract are accrued by employees who are veterans including
new hires if additional workers are required to perform the contract,
and is qualified pursuant to section 25 of P.L.1971, c. 198 (N.J.S.A.
40A:11-25).
SET-ASIDE CONTRACTS
A.
A contract for goods, equipment, construction or services, which
is designated as a contract for which bids are invited and accepted
only from a qualified veteran business enterprise;
B.
A portion of a contract when that has been so designated; or
C.
Any other purchase or procurement so designated.
TOTAL PROCUREMENTS
All purchases, contracts or acquisitions of the City, whether
by competitive bidding, single-source contracting, or other method
of procurement, as prescribed or permitted by law.
VETERAN
The meaning set forth at N.J.S.A. 40A:11-41(h), namely the
same meaning as set forth in Subsection b. of N.J.S.A. 11A:5-1, except
that the veteran shall present to the Adjutant General of the Department
of Military and Veterans' Affairs sufficient evidence of a record
of service and receive a determination of status no later than the
date established for the submission of bids.
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 interpreted and enforced accordingly.
In the implementation of the City's qualified veteran-owned
business set-aside program and pursuant to the provisions of N.J.S.A.
40A:11-43:
A. The City may advertise the qualified veteran business enterprise
set-aside program on its electronic sign, on the City television station,
on its website, and in any other media it deems appropriate in an
attempt to identify qualified veteran business enterprises.
B. The Administrator shall recommend to the City Council a contract,
subcontract or other means of procurement as a set-aside contract
if it is likely to receive bids from at least two VBEs at a fair and
reasonable price.
C. If it is determined by the Finance/Purchasing Department that two
bids cannot be obtained or that acceptance of the low responsible
bid will result in the payment of an unreasonable price, the Finance/Purchasing
Department may recommend to the City Council that the bids be resolicited
on an unrestricted basis.
D. Upon recommendation from the Administrator designation(s) of contracts
and/or subcontracts as set-aside contracts shall be made by the City
Council prior to advertisement, and notice of such designation shall
be included in the advertisement.
E. The City Auditor shall include in the audit a report at the end of
each fiscal year identifying each contract awarded as a result of
its qualified veteran business enterprise set-aside program.
F. Set-aside designation, as described in Subsection
B, shall be made prior to any advertisement for bids (if required). Notice of such designation shall be included in the advertisement not less than 10 days prior to the date fixed for receiving bids.
With respect to all contracts and procurements, it shall be
the Finance/Purchasing Department's authority and responsibility
to:
A. Ensure, through the certification procedure herein provided, that
qualified businesses taking advantage of this set-aside program are
legitimate VBEs.
B. Maintain a listing of known VBE businesses in the proximate area
for referral by the City.
C. Have access to all City records and files which relate to construction,
service and procurement contracts in order to monitor and review compliance.
A certified VBE shall submit any information requested by the
Finance/Purchasing Department annually to ascertain whether such business
is still a qualified VBE pursuant to this program. If it is determined
that the annual submission of information has changed to such an extent
that the VBE status has changed, affecting the certified status, the
Finance/Purchasing Department 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
Finance/Purchasing Department to be certified as a legitimate VBE,
the following, in conjunction with information submitted by the applicant,
shall be used:
A. Eligible VBEs 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 VBE 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 separate
entity for tax or corporate purposes is not necessarily sufficient
for recognition as a VBE. To determine the legitimacy of an independent
VBE, the Finance/Purchasing Department 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
non-VBE firms vary from industry practice.
B. The VBE's 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 veteran owners. This shall include provisions in bylaws, partnership
agreements or charter requirements for cumulative voting rights or
otherwise that prevent the veteran owners, without the cooperation
or vote of any owner who is not a veteran, from making a business
decision of the firm.
C. Where non-veteran 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 veterans and shall not be considered
a VBE business within the program's meaning on the basis of veteran
ownership.
D. In establishing a status of a legitimate VBE, all securities which
constitute qualifying ownership and/or control of a corporation shall
be held directly by veterans. Securities held in trust or by any guardian
for a minor shall not be considered as held by a veteran in determining
the ownership and/or control of a corporation.
E. Capital or expertise contributed by veteran 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 veterans
or the mere participation as an employee, rather than as a manager,
shall be examples of insufficient contributions.
F. In determining eligibility as a VBE, in addition to the above standards,
the Finance/Purchasing department shall give special consideration
to the following circumstances:
(1) VBEs 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.
(2) Careful scrutiny and review of previous and/or continuing and/or
time of the relationships between or among present owners shall be
conducted to ensure that the employer/owner has the management responsibilities
pursuant to this program.
(3) Any relationship between a VBE and a non-veteran-owned business having
interest in the VBE shall be carefully monitored to determine if the
interest of the VBE conflicts with the ownership and control requirements
of this program.
G. Joint ventures may be eligible to compete as VBEs under this program,
provided that the VBE partner of the joint venture meets the eligibility
standards of a VBE set forth herein and the VBE partner shares in
the ownership, control and management responsibilities, the risks
and profits of the joint venture and the VBE partner is responsible
for a clearly defined portion of the work to be performed.
Pursuant to N.J.S.A. 40A:11-48, the City Administrator and/or
Chief Financial Officer shall submit a report to Council describing
the City's efforts in attaining the set-aside goals and the percentage
of the dollar value of total procurements awarded to VBE. Council
shall publish a list of the City's attainments in the immediately
preceding fiscal year, including the municipal or county average,
in a newspaper circulate in the municipality by March 1 of each year.
Should any portion of this chapter be declared unconstitutional
or impermissible by a court of competent jurisdiction, said declaration
shall not affect the remaining portions of this chapter which shall
continue in full force and effect.