New Jersey-2024-A3510-Introduced

An Act authorizing local joint venture and set-aside programs and amending P.L.1985, c.482.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1985, c.482 (C.40A:11-41) is amended to read as follows:

1. As used in [this act] P.L.1985, c.482 (C.40A:11-41 et seq.):

a. "County or municipal contracting agency" shall mean the governing body of a county or municipality or any department, board, commission, committee, authority or agency of a county or municipality but shall not include school districts;

b. "Minority group members" shall mean persons who are black, Hispanic, Portuguese, Asian-American, American Indian or Alaskan natives;

c. "Qualified women's business enterprise" shall mean a business which has its principal place of business in this State, is independently owned and operated, is at least 51 percent owned and controlled by women and is qualified pursuant to section 25 of P.L.1971, c.198 (C.40A:11-25);

d. "Qualified minority business enterprise" shall mean a business which has its principal place of business in this State, is independently owned and operated, is at least 51 percent owned and controlled by minority group members and is qualified pursuant to section 25 of P.L.1971, c.198 (C.40A:11-25);

e. "Qualified small business enterprise" shall mean a business which has its principal place of business in this State, is independently owned and operated and meets all other qualifications as may be established in accordance with P.L.1981, c.283 (C.52:27H-21.1 et seq.);

f. "Set-aside contracts" shall mean (1) a contract for goods, equipment, construction, or services which is designated as a contract for which bids are invited and accepted only from qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises or qualified women's business enterprises, as appropriate, and, if authorized by the contracting agency, joint ventures, (2) a portion of a contract when that portion has been so designated, or (3) any other purchase or procurement so designated;

g. "Total procurements" shall mean all purchases, contracts or acquisitions of a county or municipal contracting agency, whether by competitive bidding, single source contracting, or other method of procurement, as prescribed or permitted by law;

h. "Veteran" means any resident of this State now or hereafter who has served in any branch of the Armed Forces of the United States or a Reserve component thereof or the National Guard of this State or another state as defined in section 1 of P.L.1963, c.109 (C.38A:1-1), and has been discharged honorably or under general honorable conditions from such service, 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, which shall include the applicant's DD-214, DD-215, or DD-256 form as issued by the federal government; NGB-22 or other approved separation forms as outlined by all branches of the Armed Forces; a county-issued veteran identification card pursuant to P.L.2012, c.30 (C.40A:9-78.1 et seq.); or a veteran identification card as issued by the United States Department of Veterans Affairs under the "Veterans Identification Card Act of 2015,"
(38 U.S.C. s.5706) and receive a determination of status no later than the date established for the submission of bids; and

i. "Qualified veteran business enterprise" shall mean a business which has its principal place of business in this State, is independently owned and operated, is at least 51 percent owned and controlled by a veteran or that wherein at least twenty five percent of the required workforce for the contract 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 (C.40A:11-25). The business shall also submit forms quarterly to the contracting agency showing proof of veteran status for all the veteran employees.

j. "Joint venture" shall mean an association of one or more qualified women's business enterprises, qualified minority business enterprises, or qualified veteran business enterprises and one or more businesses that are not qualified women's business enterprises, qualified minority business enterprises, or qualified veteran business enterprises, which association proposes to perform a contract as a single for-profit enterprise. To qualify as a joint venture, each business and business enterprise joining together shall enter into a written agreement which specifies the terms and conditions of the relationship between the members of the joint venture and the role of each member of the joint venture in performing the contract. Each member of a joint venture shall contribute property, capital, efforts, skill, and knowledge to the joint venture.

(cf: P.L.2019, c.500, s.11)

2. Section 2 of P.L.1985, c.482 (C.40A:11-42) is amended to read as follows:

2. a. The governing body of a county or municipality may, by ordinance or resolution, as appropriate, establish a qualified minority business enterprise set-aside program or a joint venture and set-aside program. In authorizing such a program, the governing body of a county or municipality shall establish a goal for its contracting agencies of setting aside a certain percentage of the dollar value of total procurements to be awarded as set-aside contracts to qualified minority business enterprises, joint ventures which include one or more qualified minority business enterprises, or both qualified minority business enterprises and joint ventures.

b. The governing body of a county or municipality may, by ordinance or resolution, as appropriate, establish a qualified women's business enterprise set-aside program or a joint venture and set-aside program. In authorizing such a program, the governing body of a county or municipality shall establish a goal for its contracting agencies of setting aside a certain percentage of the dollar value of total procurements to be awarded as set-aside contracts to qualified women's business enterprises, joint ventures which include one or more qualified women's business enterprises, or both qualified women's business enterprises and joint ventures.

c. The governing body of a county or municipality may, by ordinance or resolution, as appropriate, establish a qualified small business enterprise set-aside program. In authorizing such a program, the governing body of a county or municipality shall establish a goal for its contracting agencies of setting aside a certain percentage of the dollar value of total procurements to be awarded as set-aside contracts to qualified small business enterprises.

d. The governing body of a county or municipality may, by ordinance or resolution, as appropriate, establish a qualified veteran business enterprise set-aside program or a joint venture and set-aside program. In authorizing such a program, the governing body of a county or municipality shall establish a goal for its contracting agencies of setting aside a certain percentage of the dollar value of total procurements to be awarded as set-aside contracts to qualified veteran business enterprises, joint ventures which include one or more qualified veteran business enterprises, or both qualified veteran business enterprises and joint ventures.

(cf: P.L.2013, c.5, s.2)

3. Section 3 of P.L.1985, c.482 (C.40A:11-43) is amended to read as follows:

3. a. Any goal established pursuant to section 2 of [this act] P.L.1985, c.482 (C.40A:11-42) may be attained by requiring that a portion of a contract be subcontracted to a qualified small business enterprise, qualified veteran business enterprise, qualified minority business enterprise [or], qualified women's business enterprise, and, if applicable, joint ventures, in addition to designating entire contracts to these enterprises and joint ventures.

b. Each contracting agency shall make a good faith effort to attain any goal established by its governing body. The governing body shall evaluate each contracting agency's efforts by comparing the percentage of the dollar value of a contracting agency's total procurements awarded to qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises [or], qualified women's business enterprises, and, if applicable, joint ventures, as appropriate, to the percentage of the dollar value of the county's or municipality's total procurements awarded to qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises [or], qualified women's business enterprises, and, if applicable, joint ventures, as appropriate.

(cf: P.L.2013, c.5, s.3)

4. Section 5 of P.L.1985, c.482 (C.40A:11-45) is amended to read as follows:

5. 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 set-aside program, a qualified veteran business enterprise set-aside or joint venture and set-aside program, a qualified minority business enterprise set-aside or joint venture and set-aside program or a qualified women's business enterprise set-aside or joint venture and set-aside program shall designate that a contract, subcontract or other means of procurement of goods, services, equipment, or construction be awarded to a qualified small business enterprise, a qualified veteran business enterprise, a qualified minority business enterprise [or], a qualified women's business enterprise, or, if applicable, a joint venture, if a contracting agency is likely to receive bids from at least two qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises [or], qualified women's business enterprises, or, if applicable, joint ventures, as appropriate, at a fair and reasonable price.

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 small business enterprise set-aside contract, qualified veteran business enterprise set-aside contract, a qualified minority business enterprise set-aside contract or a qualified women's business enterprise set-aside contract, as appropriate. All advertisements for bids shall be published in at least one newspaper which will best provide notice thereof to qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises or to qualified women's 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.

(cf: P.L.2013, c.5, s.4)

5. Section 6 of P.L.1985, c.482 (C.40A:11-46) is amended to read as follows:

6. a. If the contracting agency determines that two bids from qualified small, qualified veteran, qualified minority [or], qualified women's businesses , or, if applicable, joint ventures, cannot be obtained, the contracting agency may withdraw the designation of the set-aside contract and resolicit bids on an unrestricted basis pursuant to the provisions of P.L.1971, c.198 (C.40A:11-1 et seq.). The cancelled designation shall not be considered in determining the percentage of contracts awarded pursuant to subsection b. of section 3 of [this act] P.L.1985, c.482 (C.40A:11-43).

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 set-aside contract. Qualified small business enterprises, qualified veteran business enterprises, qualified minority business enterprises [or], qualified women's business enterprises, or joint ventures, as appropriate, shall be notified in writing of the set-aside 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 (C.40A:11-1 et seq.). The cancelled bid solicitation shall not be considered in determining the percentage of contracts awarded pursuant to subsection b. of section 3 of [this act] P.L.1985, c.482 (C.40A:11-43).

(cf: P.L.2013, c.5, s.5)

6. Section 8 of P.L.1985, c.482 (C.40A:11-48) is amended to read as follows:

8. Each contracting agency of a county or municipality which has established a qualified small business enterprise set-aside program, a qualified veteran business enterprise set-aside or joint venture and set-aside program, a qualified minority business enterprise set-aside or joint venture and set-aside program or a qualified women's business enterprise set-aside or joint venture and set-aside program shall submit a report to its governing body by January 31 of each year describing the agency's efforts in attaining the set-aside goals and the percentage of the dollar value of total procurements awarded pursuant to subsection b. of section 3 of [this act] P.L.1985, c.482 (C.40A:11-43). The governing body shall publish a list of each agency's attainments in the immediately preceding local fiscal year, to include the county or municipal average, in at least one newspaper circulating in the county or municipality, as appropriate, by March 1 of each year.

(cf: P.L.2013, c.5, s.7)

7. This act shall take effect immediately.

STATEMENT

This bill would authorize local contracting units to establish women's, minority, and veteran business enterprise joint venture and set-aside programs. The "Local Public Contracts Law" has authorized local contracting units to establish minority and women's business enterprise set-aside programs since 1985, and veteran business enterprise set-aside programs since 2013, as a way to encourage the growth and competitiveness of minority, women's, and veteran businesses.

This bill would amend the current local set-aside law to permit a local contracting unit to set aside a percentage of the dollar value of total procurements to be awarded as set-aside contracts to joint ventures which include one or more qualified women's, minority, or veteran business enterprises. This joint venture method, allowing traditionally disadvantaged women's, minority, and veteran-owned businesses to partner with more seasoned businesses into joint ventures, has been successfully employed in other places as a way to remove historic roadblocks that prevent disadvantaged businesses from competing in the public bidding process.