Bill Text: NJ S3502 | 2024-2025 | Regular Session | Introduced
Bill Title: Establishes sheltered market program for certain business enterprises seeking State contracts.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced) 2024-06-26 - Introduced in the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee [S3502 Detail]
Download: New_Jersey-2024-S3502-Introduced.html
Sponsored by:
Senator GORDON M. JOHNSON
District 37 (Bergen)
Senator NELLIE POU
District 35 (Bergen and Passaic)
SYNOPSIS
Establishes sheltered market program for certain business enterprises seeking State contracts.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning a sheltered market program for certain business enterprises and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act, P.L. , c. (C. ) (pending before the Legislature as this bill):
"Chief" means the Chief Diversity Officer established in the New Jersey Department of the Treasury pursuant to section 1 of P.L.2017, c.95 (C.52:32-18.1), or its successor.
"Department" means the Department of the Treasury.
"Disabled veterans' business" shall have the same meaning as in section 2 of P.L.2015, c.116 (C.52:32-31.2).
"Economically disadvantaged" shall have the same meaning as in section 1 of P.L.2023, c.300 (C.52:32-31.15).
"LGBTQ+" means lesbian, gay, bisexual, transgender, queer, questioning, or other gender identities and sexual orientations that are non-cisgender and non-heterosexual.
"LGBTQ+-owned business" shall have the same meaning as in section 1 of P.L.2024, c.10.
"Minority business" shall have the same meaning as in section 3 of P.L.1983, c.482 (C.52:32-19).
"Qualified business enterprise" means a disabled veterans' business, minority business, women's business, small business, economically or socially disadvantaged business, LGTBQ+-owned business, or veteran-owned business certified by the department.
''Sheltered market program'' means a program under which certain contracts or categories of contracts subject to R.S.52:25-23 or section 2 of P.L.1954, c.48 (C.52:34-7) are designated by the chief or a State agency, with approval from the chief, for qualified business enterprises.
"Small business" shall have the same meaning as in section 2 of P.L.1987, c.55 (C.52:27H-21.8).
"Socially disadvantaged" shall have the same meaning as in section 1 of P.L.2023, c.300 (C.52:32-31.15).
"State agency" means any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department and any independent State authority, commission, instrumentality or agency which is authorized by law to award contracts.
"Veteran" shall have the same meaning as in section 2 of P.L.2011, c. 147 (C.52:32-50).
"Women's business" shall
have the same meaning as in section 2 of P.L.1986, c.195 (C.52:27H-21.18).
2. a. The chief shall establish criteria for determining which contracts or categories of contracts subject to R.S.52:25-23 or section 2 of P.L.1954, c.48 (C.52:34-7) shall be designated by the chief, or a State agency with the approval of the chief, for inclusion in a sheltered market program. Such criteria shall include, but may not be limited to, the degree of historical underutilization of qualified business enterprises, based upon a review of qualified business enterprises in the State's central certification registry, a State-commissioned disparity study, or a similar study or review of a similar dataset.
b. The State's central certification registry or a similar dataset shall have at least two qualified business enterprises that can satisfy a contract or category of contracts in order for a State agency or the chief to establish a sheltered market program.
c. A State agency may object to the contract or contracts being placed into a sheltered market program if the head of the State agency determines that participating in the sheltered market program will be contrary to an important State public policy, the practical limitations of the agency or contract, or an applicable legal order. Such objection shall result in that contract or contracts being excluded from the sheltered market program. All such objections shall be in writing, shall be submitted to the chief, and shall be considered public documents within the meaning of P.L.1963, c.73 (C.47:1A-1 et seq.).
d. State agencies shall publish all contracts or categories of contracts approved for the sheltered market program on their respective websites prior to opening such contracts for bidding, and the chief shall cause such contracts to be published on the department's website.
e. State agencies and the chief shall conduct outreach regarding available contracts under the sheltered market program to qualified business enterprises.
f. State agencies shall conduct general or pre-bid submission conferences or workshops to help potential bidders understand the bidding process for the sheltered market program.
g. State agencies shall offer each bidder to a contract designated for the sheltered market program the option to debrief on the process following the award of the contract and conclusion of any challenges to contract awards after the expiration of the time period for challenges to be filed.
h. The chief shall implement procedures for State agencies to review and assess, at least annually, the performance of the vendor selected for each contract awarded under the sheltered market program.
State agencies shall submit, on or before June 30 of each year, an annual written report to the chief with a review and assessment of the performance of the sheltered market program over the previous year. The report shall include:
(1) the number and dollar value of contracts awarded to qualified business enterprises under the sheltered market program;
(2) the total number, the percentage, the total dollar value, and the percentage dollar value of contracts awarded by State agencies to qualified business enterprises eligible for participation in the sheltered market program;
(3) recommendations for continuing, modifying, or terminating the sheltered market program; and
(4) a description of efforts undertaken to increase contracting with qualified business enterprises.
3. a. A State contract shall not be awarded under a sheltered market program for a term exceeding three years, including any renewal, extension, or option, except that if a contract awarded under the sheltered market has reached the end of the three-year maximum term and the procurement process has begun, but a contract has not yet been awarded, the State agency, if it determines it is in the best interests of the State, may extend the existing sheltered market contract for the period of time needed to complete the procurement process and award the replacement contract.
b. All contracts awarded in the sheltered market program shall contain termination for cause and termination for convenience clauses, consistent with the State agency's standard terms and conditions.
4. Any participant in the sheltered market program serving as a prime contractor shall make a good faith effort to offer subcontracting opportunities to qualified business enterprises. Failure on the part of a contractor to demonstrate a good faith effort may be cause for the rejection of bids made by that contractor for contracts awarded under this act, P.L. , c. (C. ) (pending before the Legislature as this bill).
Whether a participant has made good faith efforts shall be determined by the State agency in consultation with the chief. For purposes of determining whether a prime contractor has made a good faith effort to comply with the sub-contracting requirements of this section, the State agency shall consider:
a. whether the contractor has advertised the opportunity to, or otherwise made qualified business enterprises aware of the opportunity and, in such event, (1) whether qualified business enterprises exhibited interest in working with the prime contractor on a particular project by attending, or having attended, a pre-bid conference, if any, scheduled by the State agency awarding the contract; and (2) whether qualified business enterprises, which have been solicited by the contractor, have responded in a timely fashion to the contractor's request to engage qualified business enterprises prior to the State agency's bid date;
b. whether the contractor provided timely written notification of subcontracting opportunities for the contract to appropriate qualified business enterprises that appear in the State's central certification registry which lists businesses certified as eligible to perform contracts under any State program;
c. whether the contractor can reasonably structure the amount of work to be performed under subcontracts to increase the likelihood of participation by qualified business enterprises; and
d. any other actions as determined appropriate by the chief, and established by rules adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
5. a. State contracts awarded pursuant to this act, P.L. , c. (C ) (pending before the Legislature as this bill), shall be subject to the same safeguards, protections, and processes established by law, rule, or regulation and applicable to all other State contracts, except to the extent inconsistent with this act.
b. A State agency may raise vendor performance issues in the same manner as vendor performance issues are raised for non-sheltered market program contracts, except that the State agency shall also notify the chief of any vendor performance issues.
6. Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the State Treasurer shall adopt, immediately upon filing with the Office of Administrative Law, such rules and regulations as the State Treasurer deems necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), which rules and regulations shall be effective for a period not to exceed 180 days after the date of the filing. Prior to the expiration of the rules and regulations, the department shall amend, adopt, or readopt the rules and regulations in accordance with the requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
7. This act shall take effect immediately and shall apply to contracts awarded on and after the 181st day next following the effective date.
STATEMENT
This bill establishes a sheltered market program that allows for State agencies, with the approval of the Chief Diversity Officer, to designate certain public contracts for availability to contractors who have been certified by the Department of the Treasury. This program will be available to contractors who are certified as a disabled veterans' business, minority business, women's business, small business, economically or socially disadvantaged business, LGTBQ+-owned business, or veteran-owned business.
The bill directs the Chief Diversity Officer to establish criteria for determining which contracts should be designated for this program, including the degree of historical underutilization of qualified business enterprises based on a review of qualified business enterprises in the State's central certification registry or a State-commissioned disparity study. State agencies will be permitted to object to the designation of certain contracts for the program if they determine such designation would be contrary to an important State public policy, the practical limitations of the agency or contract, or an applicable legal order.
The bill also requires that State agencies publish all contracts or categories of contracts approved for the sheltered market program on their respective websites prior to opening such contracts for bidding, and the chief publishes such contracts on the department's website.
The bill further requires State agencies and the chief to conduct outreach regarding available contracts under the sheltered market program to qualified business enterprises and State agencies to conduct general or pre-bid submission conferences or workshops to help potential bidders understand the bidding process for the sheltered market program. State agencies will also be required to offer each bidder to a contract designated for the sheltered market program the option to debrief on the process following the award of the contract and conclusion of any challenges to contract awards after the expiration of the time period for challenges to be filed.
This bill will require each State agency to submit an annual report to the chief on the implementation of the sheltered market program, including: (1) the number and dollar value of contracts awarded to qualified business enterprises under the sheltered market program; (2) the total number, the percentage, the total dollar value, and the percentage dollar value of contracts awarded by State agencies to qualified business enterprises eligible for participation in the sheltered market program; (3) recommendations for continuing, modifying, or terminating the sheltered market program; and (4) a description of efforts undertaken to increase contracting with qualified business enterprises.
The bill provides that a State contract will not be awarded under the sheltered market program for a term to exceed three years, and that each contract will include termination for cause and termination for convenience clauses, consistent with the State agency's standard terms and conditions.
Finally, the bill requires that prime contractors awarded contracts under the terms of the bill make a good faith effort to offer subcontracting opportunities to qualified business enterprises.
The bill provides that failure on the part of a contractor to demonstrate a good faith effort may be cause for the rejection of bids made by that contractor. In determining whether a good faith effort has been made, the State agency and the chief will consider whether the contractor has advertised the opportunity to qualified business enterprises and (1) whether qualified business enterprises exhibited interest in working with the prime contractor on a particular project by attending, or having attended, a pre-bid conference, if any, scheduled by the State agency awarding the contract; and (2) whether qualified business enterprises, which have been solicited by the contractor, have responded in a timely fashion to the contractor's request to engage qualified business enterprises prior to the State agency's bid date. The chief and the State agency will also consider whether the contractor provided timely written notification of subcontracting opportunities to qualified business enterprises that appear in the State's central certification registry and whether the contractor can reasonably structure the amount of work to be performed under subcontracts to increase the likelihood of participation by qualified business enterprises.
