[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Editor's Note: This ordinance repealed former Ch. 7, Business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.
A.Â
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.Â
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.Â
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.Â
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.Â
"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.
A.Â
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.Â
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)Â
For purposes of this chapter, a business shall be deemed to have
its principal place of business in New Jersey:
(a)Â
When it has been either incorporated or registered to do business
in New Jersey; and
(b)Â
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)Â
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.Â
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.Â
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.Â
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.Â
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.Â
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.
A.Â
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.Â
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.Â
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)Â
If an applicant fails to complete fully the vendor registration form
or to document same, its application may be delayed or rejected.
(2)Â
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.
A.Â
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.Â
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.Â
Each
department shall make a good faith effort to obtain the goals established
by the administration.
A.Â
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.Â
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.Â
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.Â
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.Â
All
bids/formal quotations may be rejected on a DIP contract and the contract
may be rebid as an ordinary contract where:
(1)Â
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)Â
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)Â
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.Â
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.
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.
A.Â
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.Â
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.Â
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.
A.Â
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.Â
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.