SENATE, No. 1888
STATE OF NEW JERSEY
INTRODUCED MARCH 10, 1997
By Senator BUBBA
An Act concerning the designation of certain State purchases and construction contracts as set-asides for businesses owned and operated by disabled veterans and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Set-Aside Act for Disabled Veterans' Businesses."
2. As used in this act:
"Contracting agency" means the State or any board, commission, committee, authority or agency of the State.
"Chief" means the Chief of the Office of Small Business Assistance.
"Department" means the Department of Commerce, Energy and Economic Development.
"Office" means the Office of Small Business Assistance in the Department of Commerce, Energy and Economic Development.
"Disabled veteran" means a resident of this State who is certified by the federal Department of Veterans' Affairs as having any degree of service-connected disability.
"Disabled veterans' business" means a business which has its principal place of business in the State, is independently owned and operated and at least 51% of which is owned and controlled by persons who are disabled veterans.
"Disabled veterans' business set-aside contract" means a contract for goods, equipment, construction or services which is designated as a contract with respect to which bids are invited and accepted only from disabled veterans' businesses, or a portion of a contract when that portion has been so designated.
3. The Office of Small Business Assistance in the Department of Commerce, Energy and Economic Development shall administer a disabled veterans' business set-aside program which shall be in addition to any other set-aside program established by law.
4. a. Notwithstanding the provisions of any State bidding or public contracts laws to the contrary, but subject to any supervening federal statutes or rules, contracting agencies, in consultation with the department, may designate a contract, or a portion thereof, for goods, equipment, construction or services to be awarded by a contracting agency as a disabled veterans' business set-aside contract pursuant to the goals and procedures established in this act, whenever there is a reasonable expectation that bids may be obtained from at least three qualified disabled veterans' businesses capable of furnishing the desired goods, equipment, construction or services at a fair and reasonable price. The designation shall be made prior to the advertisement for bids.
b. Where application of the goals and procedures established under this act would jeopardize the State's participation in a program from which the State receives federal funds or other benefits, the contracting agency may, in consultation with the department, withdraw the affected contracts from consideration or calculation.
5. a. There are established the goals that contracting agencies award at least 3% of their contracts to disabled veterans' businesses. These goals may, where appropriate, be attained by the direct designation of prime contracts for these business or, in the case of a prime contract not directly so designated, by requiring that a portion of such a prime contract be subcontracted to a disabled veterans' business. Each contracting agency shall make a good faith effort to attain the goals established in this subsection.
b. For purposes of attaining this goal, contracting agencies shall, when necessary, specifically set aside contracts or portions of contracts for which only these businesses may bid.
6. If the department and the contracting agency disagree as to whether a set-aside is appropriate for a contract or a portion of a contract, the dispute shall, within seven days, be submitted to the State Treasurer, or his designee, for final determination.
7. The advertisement for bids on a disabled veterans' business set-aside contract shall indicate the invitation to bid as a set-aside. The advertisement shall be in such newspaper or newspapers as will best give notice thereof to appropriate bidders and shall be sufficiently in advance of the purchase or contract to promote competitive bidding among the businesses for which the contract is being set aside. The newspaper or newspapers in which the advertisement shall appear shall be selected by the contracting agency in consultation with the office. The advertisement shall designate the time and place at which sealed proposals shall be received and publicly opened and read, the amount of the cash or certified check, if any, which shall accompany each bid and such other items as the contracting agency may deem proper. The advertisement shall be made by that contracting agency pursuant to the procedure set forth in the law governing State contracts, where this act is inconsistent with that law.
8. a. The department shall establish reasonable regulations appropriate for controlling the designation of prospective disabled veterans' business bidders and shall maintain lists of designated businesses.
b. The department shall establish a procedure whereby businesses may request inclusion on appropriate lists for disabled veterans' businesses.
c. The department shall establish a procedure for annually reviewing the lists and determining whether the businesses on the lists shall continue to be designated as disabled veterans' businesses.
d. The department shall establish a procedure whereby the designation of a business as a disabled veterans' business may be challenged by a third party.
e. Any procedures established pursuant to subsections b., c., and d. of this section shall include notice to the business whose designation is at issue and an opportunity for a hearing at the department. The hearing shall not be considered a contested case under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
9. When a contract or portion thereof has been designated as a disabled veterans' business set-aside, invitations for bids shall be confined to businesses designated by the department as appropriate for the set-aside and bids from other bidders shall be rejected. The purchase, contract or expenditure of funds shall be awarded among the businesses, considering conformity with specifications and terms, in accordance with the statutes and rules governing purchases by the contracting agency. The award shall be made with reasonable promptness by the contracting agency with written notice to the department.
10. If the contracting agency determines that the acceptance of the lowest responsible bid on a disabled veteran business set-aside contract will result either in the payment of an unreasonable price or in a contract otherwise unacceptable pursuant to the statutes and rules governing purchases by that agency, the contracting agency shall reject all bids and withdraw the designation of the set-aside contract. Bidders shall be notified of the set-aside cancellation, the reasons for the rejection and the State's intent to resolicit bids on an unrestricted basis. The canceled solicitation shall not be counted as a set-aside for the purpose of attaining established set-aside goals. Except in cases of emergency, prior to the final award of the contract, the contracting agency shall provide an opportunity for a hearing on the reasons for the rejection of the set-aside designation. This hearing shall not be considered a contested case under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
11. Each contracting agency shall submit an annual report to the department according to a schedule announced by the department. This report shall include the following information:
a. the total dollar value and number of contracts awarded to disabled veterans' businesses, including a separate accounting of any set-aside contracts, and the percentage of the total State procurements by the contracting agency that the figure of total dollar value and the number of set-asides reflect;
b. the types and sizes of businesses receiving set-aside awards and the nature of the purchases and contracts; and
c. the efforts made to publicize and promote the program.
The department shall receive and analyze the reports submitted by the contracting agencies and, utilizing these data, submit an annual report to the Governor and the Legislature showing the progress being made toward the objectives and goals of this act during the preceding fiscal year.
12. Each contracting agency shall annually develop, in consultation with the department, a plan for achieving its disabled veterans' business goals.
13. The department and office shall consult regularly with representatives of the contracting industry for the purpose of implementing the provisions of this act. These consultations shall take place no less than once every six months.
14. Where the department determines that a business has been classified as a disabled veteran business on the basis of false information knowingly supplied by the business and has been awarded a contract to which it would not otherwise have been entitled under this act, the department shall:
a. assess the business any difference between the contract amount and what the State's cost would have been if the contract had not been awarded in accordance with the provisions of this act;
b. in addition to the amount due under subsection a., assess the business a penalty in an amount of not more than 10% of the amount of the contract involved;
c. order the business ineligible to transact any business with the State for a period of not less than three months and not more than 24 months; and
d. prior to any final determination, assessment or order under this section, afford the business an opportunity for a contested case hearing pursuant to P.L.1968, c.410 (C.52:14B-1 et seq.).
All payments to the State pursuant to subsection a. of this section shall be deposited in the fund out of which the contract involved was awarded. All payments to the State pursuant to subsection b. of this section shall be deposited in the General Fund.
15. This act shall take effect immediately.
STATEMENT
This bill creates a State contract set-aside program for disabled veterans to be administered by the Office of Small Business Assistance. It establishes a goal that contracting agencies set aside at least 3% of their contracts for disabled veterans' businesses. A disabled veterans' business is defined as a business which has its principal place of business in New Jersey, is independently owned and operated and at least 51% of which is owned and controlled by persons who are disabled veterans. The set-aside program would create economic opportunity for disabled veterans and recognize their service and sacrifice.
Creates State contract set-aside program for businesses owned and operated by disabled veterans.