Township of Montclair, NJ Chapter 7 Diversity Inclusion Program

[HISTORY: Adopted by the Council of the Township of Montclair 6-21-2022 by Ord. No. O-22-10.[1] Amendments noted where applicable.]

[1] Editor's Note: This ordinance repealed former Ch. 7, Business Set-Aside Program, adopted 6-28-1988 by Ord. No. 88-45 (Ch. 9 of the 1979 Code), as amended.

§ 7-1 Goals established; attainment; allotment; Diversity Inclusion Program (DIP) contracts.

A. Pursuant to N.J.S.A. 40A:11-41, the Township of Montclair hereby establishes minority business enterprise (MBE), veterans' business enterprise, disability-owned business enterprise (DOBE), LGBTQ business enterprise and women's business enterprise (WBE) a Diversity Inclusion Program as a means of achieving the goals herein adopted.

B. There is hereby established a goal of awarding no less than 20% of the Township contracts to minority-owned businesses for the purchase of goods and services. In determining compliance with the 20% goal, the aggregate cost of all such contracts within a fiscal year shall be considered.

C. The goal of 20% for minority-owned business, veteran-owned, LGBTQ-owned, disability-owned and women-owned business participation in Township contracts for the purchase of goods and services may be attained through direct contracts with minority business enterprises, veterans' business enterprises, disability-owned business enterprise, LGBTQ, and women's business enterprises; requiring nonminority, nonwomen, nondisabled, nonveteran and non-LGBTQ business enterprises to subcontract a portion of their total contracts to minority, veterans', disabled, LGBTQ, or women's business enterprises; or joint ventures.

D. The percentage of the dollar value of the Township's total procurement to be filled by means of the DIP, and the process for achieving the same shall be determined by the Affirmative Action Officer after review by the Township Manager. By February 1 of each year, the Affirmative Action Officer shall meet with the various department heads, Chief Financial Officer (CFO) and the Law Department to determine what aggregate procurements are to be made by the Township and what contracts for goods, equipment, construction, or services shall be designated for the MBE, veterans' business enterprise, LGBTQ business enterprise, DOBE and WBE DIP members. The Manager shall make a report to the Township Council indicating the goods and contracts to be included in that fiscal year.

E. "DIP contracts" shall mean a contract for goods, equipment, construction, or services which is designated as a contract for which bids are invited and accepted only from qualified minority business enterprises, veterans' business enterprises, disability-owned business enterprises, LGBTQ business enterprises, and qualified women enterprises, as appropriate; a portion of a contract when that portion has been so designated; or any other purchase or procurement so designated.

§ 7-2 Standards of eligibility; definitions.

A. A business may be eligible as a minority business, veterans' business, disabled business, LGBTQ business, a women business, or any combination of the two.

B. In order to be eligible as a minority-owned business, veteran-owned business, disability-owned business, LGBTQ-owned business or a women-owned business, a business must both have its principal place of business in New Jersey and be independently owned and operated.

(1) For purposes of this chapter, a business shall be deemed to have its principal place of business in New Jersey:

(a) When it has been either incorporated or registered to do business in New Jersey; and

(b) When either 51% or more of its employees work in New Jersey, as evidenced by the payment of New Jersey unemployment taxes, or 51% or more of its business activities take place in New Jersey, as evidenced by its payment of income or business taxes; if the business has been in operation for one year or more.

(2) For purposes of these rules, a business shall be deemed independently owned and operated if its management is responsible for both its daily and its long-term operation and if its management owns at least 51% interest in the business.

C. In order to be eligible as a minority-owned business, a business must be independently owned and operated and at least 51% of which is owned and controlled by persons who are Black, Hispanic, Portuguese, Asian-American, American Indian, or Alaskan natives.

D. In order to be eligible as a women-owned business, a business must be independently owned and operated and at least 51% of which is owned and controlled by women.

E. In order to be eligible as a LGBTQ-owned business, a business must be independently owned and operated and at least 51% of which is owned and controlled by a person or persons who identify as part of the LGBT community (including nonbinary and gender nonconforming individuals).

F. In order to be eligible as a veteran-owned business, a business must be independently owned and operated and at least 51% of which is owned and controlled by one or more veteran(s) or service-disabled veteran(s).

G. In order to be eligible as a disability-owned business, a business must be independently owned and operated and at least 51% of which is owned by persons with disabilities.

§ 7-3 Registration procedures.

A. Any business which seeks to register with the Township as a minority-owned business, women-owned business, LGTBQ-owned business, veteran-owned business, or disability-owned business must provide a certification from the State of New Jersey certifying diversity ownership to the Affirmative Action Officer. If a State of New Jersey certification process does not exist for the particular diversity business structure, a comparable certification from a New Jersey State or nationally recognized registry may be submitted. LGTBQ-owned business may submit proof of its business listing with the National LGBT Chamber. Such certifications/proofs must be attached to a vendor registration which shall be prepared by the Affirmative Action Officer and be available from the Office of Affirmative Action and Department of Finance - Purchasing Department.

B. From a compilation of these completed vendor registration forms, the Affirmative Action Officer shall maintain a DIP master list which shall contain the names and addresses of all eligible businesses for the DIP program. This list shall be updated and made current on, as a minimum requirement, a yearly basis.

C. As part of its application to the Affirmative Action Officer, a business shall document its principal place of business and independent status and, as appropriate, the character of its ownership. Where available, this documentation should include appropriate forms or reports otherwise submitted to or issued by state and federal agencies, such as employee or affirmative action reports filed with the New Jersey Department of Labor or certificates of incorporation issued by the New Jersey Department of State.

(1) If an applicant fails to complete fully the vendor registration form or to document same, its application may be delayed or rejected.

(2) If an applicant knowingly supplies incomplete or inaccurate information, the applicant shall be disqualified and may be subject to other penalties described in N.J.A.C. 17:12-6.8 and 12A:10-1.8.

§ 7-4 Notification requirements and procurement process.

A. When a business is accepted by the Office of Affirmative Action as a minority-owned business, women-owned business, LGBTQ-owned business, veteran-owned business, or disability-owned business, the business will be added by the Office of Affirmative Action onto the DIP vendors lists which shall be used in determining whether the Township has fulfilled its contracting goals and shall be used in soliciting bids or contracts as part of the DIP for minority businesses, veterans' businesses, disability-owned business, LGBTQ and/or women businesses and other purchasing and contracting situations. There will be no limits to the number of businesses on the various minority business, veterans' business, disability business, LGBTQ and women business bidder's lists. Each eligible applicant will be placed on that list or those lists for which they may be qualified.

B. When a business is accepted as a minority-owned business, veteran-owned business, disability-owned business, LGBTQ and/or women-owned business, that business may bid on contracts which are specifically determined to be a part of the DIP under this chapter.

C. Each department shall make a good faith effort to obtain the goals established by the administration.

§ 7-5 Award standards and Affirmative Action Officer's responsibility for monitoring compliance.

A. Any contract specifically designated for DIP businesses must be competitively bid, either through public advertising or through solicitation of formal quotations and may be awarded only if responsible bids/formal quotations from at least two qualified bidders are received.

B. The specifications for a DIP contract shall clearly and conspicuously state that an award may go only to a business duly registered with and approved by the Office of Affirmative Action.

C. The specifications shall further state that a bidder who is not already approved may submit a bid but then must submit a certification from the State of New Jersey or other nationally recognized registry certifying diversity ownership outlined in § 7-3A to the Office of Affirmative Action for approval as a veteran, minority, disabled, LGBTQ, or women-owned business enterprise as appropriate, no later than the bid opening date and, in order to be eligible for an award, must be approved by the Office of Affirmative Action no later than five working days after the bid-opening date. The specification shall state that if, for whatever reason, there is no approval of that bidder from the Office of Affirmative Action, no later than five working days from the bid-opening date, the Township shall reject that bid without any obligation or recourse to the bidder.

D. The Affirmative Action Officer shall have the responsibility for approving all solicitations of bids/formal quotations prior to their offering by the Purchasing Agent. The Affirmative Action Officer shall further indicate his or her approval on all contracts entered into by the Purchasing Agent prior to their execution by the Township and/or the submission of contracts to the Municipal Council for its review and approval.

E. All bids/formal quotations may be rejected on a DIP contract and the contract may be rebid as an ordinary contract where:

(1) In evaluating the women, veterans, disabled, LGBTQ and/or minority business bids, the Purchasing Agent determines that acceptance of any of the bids/formal quotations would subject the Township to an unreasonable expense or to a contract otherwise unacceptable pursuant to the Township's contracting and purchasing laws and rules; or

(2) The Purchasing Agent does not receive at least two bids/formal quotations from qualified vendors approved as women, veterans, disabled, LGBTQ and/or minority businesses, as appropriate; and

(3) The minority business enterprises, veteran business enterprise, disabled, LGBTQ enterprise or women business enterprises knowingly supplied false information on the business, and the contract would not otherwise have been awarded.

F. Immediately after rejecting all bids/formal quotations, the Purchasing Agent may, without any delay, rebid the contract as an ordinary award. Women, veterans, disabled, LGBTQ, and minority business bidders may participate in this rebidding program.

§ 7-6 Annual report.

The Affirmative Action Officer shall submit a biannual report to the Municipal Council by June 30 and December 31 of each year describing the Township's effort in attaining the DIP goals and the percentage of the dollar value of total procurements awarded under this chapter.

§ 7-7 Designation as a part of Diversity Inclusion Program (DIP).

A. Notwithstanding the provisions of any law to the contrary, a contracting agency of a county or municipality which has established a qualified small business enterprise Diversity Inclusion Program (hereinafter DIP), Local Public Contracts Law N.J.S.A. 40A:11-1 et seq.

B. A qualified veteran business enterprise, a qualified minority business enterprise, a qualified disability business enterprise, a qualified LGBTQ business or a qualified women's business enterprise as part of our DIP shall designate that a contract, subcontract or other means of procurement of goods, services, equipment, or construction be awarded to a qualified veteran business enterprise, a qualified minority business enterprise, a qualified disability business enterprise, qualified LGBTQ business enterprise or a qualified women's business enterprise, if a contracting agency is likely to receive bids from at least two qualified small business enterprises, qualified veteran business enterprises, a qualified disability-owned business enterprise, qualified LGBTQ business enterprise, qualified minority business enterprises or qualified women's business enterprises, as appropriate, at a fair and reasonable price.

C. Such designations shall be made prior to any advertisement for bids, if required. Once designated, the advertisement for bids, if necessary, shall indicate that the contract to be awarded is a qualified veteran business enterprise DIP contract, a qualified disability business enterprise DIP contract, a qualified LGBTQ business enterprise DIP contract, a qualified minority business enterprise DIP contract or a qualified women's business enterprise DIP contract, as appropriate. All advertisements for bids shall be published in the designated newspapers which will provide notice thereof to qualified minority business enterprises, qualified women's business enterprises, qualified veteran-owned business enterprises, qualified disability-owned business enterprise, and qualified LGBTQ business enterprises, as appropriate, sufficiently in advance of the date fixed for receiving the bids to promote competitive bidding but shall not be published less than 10 days' prior to that date.

§ 7-8 Diversity Inclusion Program cancellation.

A. If the contracting agency determines that two bids from qualified veteran business enterprises, qualified minority business enterprises, qualified disability-owned business enterprises, qualified LGBTQ business enterprises, or qualified women's businesses cannot be obtained, the contracting agency may withdraw the designation of the DIP contract and resolicit bids on an unrestricted basis pursuant to the provisions of P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.). The cancelled designation shall not be considered in determining the percentage of contracts awarded pursuant to Subsection C of § 7-1 of this chapter.

B. If the contracting agency determines that the acceptance of the lowest responsible bid will result in the payment of an unreasonable price, the contracting agency shall reject all bids and withdraw the designation of the DIP contract. Qualified veteran business enterprises, qualified disability-owned business enterprises, qualified LGBTQ business enterprises, qualified minority business enterprises or qualified women's business enterprises, as appropriate, shall be notified in writing of the DIP cancellation, the reasons for the rejection and the agency's intent to resolicit bids on an unrestricted basis pursuant to the provisions of P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.). The cancelled bid solicitation shall not be considered in determining the percentage of contracts awarded pursuant to Subsection C of § 7-1 of this chapter.