P.L. 1975, C. 127 (N.J.A.C. 17:27)

MANDATORY AFFIRMATIVE ACTION LANGUAGE
PROCUREMENT, PROFESSIONAL AND SERVICE CONTRACTS

During the performance of this contract the contractor agrees as follows:

The contractor or subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation. The contractor will take affirmative action to ensure that such applicants are recruited and employed, and that employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status or sex. Such action shall include, but not limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Public Agency Compliance Officer setting forth provisions of this nondiscrimination clause;

The contractor or subcontractor, where applicable will, in all solicitations in advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status or sex;

The contractor or subcontractor, where applicable, will send to each labor union or representative or workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer advising the labor union or workers' representative of the contractor's commitments under this act and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

The contractor or subcontractor, where applicable, agrees to comply with the regulations promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time.

The contractor or subcontractor agrees to attempt in good faith to employ minority and female workers consistent with the applicable county employment goals prescribed by N.J.A.C. 17:27-5.2 promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time or in accordance with a binding determination of the applicable county employment goals determined by the Affirmative Action Office pursuant to N.J.A.C. 17:27-5.2 promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time.

The contractor or subcontractor agrees to inform in writing appropriate recruitment agencies in the area, including employment agencies, placement bureaus, colleges, universities, labor unions, that it does not discriminate on the basis of age, creed, color, national origin, ancestry, marital status or sex, and that it will discontinue the use of any recruitment agency which engages in direct or indirect discriminatory practices.

The contractor or subcontractor agrees to revise any of its testing procedures, if necessary, to assure that all personnel testing conforms with the principles of job-related testing, as established by the statutes and court decisions of the State of New Jersey and as established by applicable Federal law and applicable Federal court decisions.

The contractor or subcontractor agrees to review all procedures relating to transfer, upgrading, downgrading and layoff to ensure that all such actions are taken without regard to race, creed, color, national origin, ancestry, marital status or sex, and conform with the applicable employment goals, consistent with the statutes and court decisions of the State of New Jersey and applicable Federal law and Federal court decisions.

The contractor and its subcontractors shall furnish such reports or other documents to the Affirmative Action Office as may be requested by the office from time to time in order to carry out the purposes of these regulations, and public agencies shall furnish such information as may be requested by the Affirmative Action Office for conducting a compliance investigation pursuant to Subchapter 10 of the Administrative Code (NJAC 17:27) and all provisions of the American with Disabilities Act.

CONDITIONS

GENERAL: The vendor agrees to protect, defend and save harmless the city of Perth Amboy against any demand for the use of any patented material, process, device or article that may enter into the manufacture, construction, or form any part of the materials or services covered by this order; and the vendor agrees further to indemnify and save harmless the City of Perth Amboy, its officers, agents and employees from suits or actions of every nature and description brought against it for, or on account of any injuries or damages received or sustained by any party or parties, by, or from any of the acts of the vendor, his servants or agents. In case of default by the vendor, the City of Perth Amboy may procure the articles or services covered by this order from other sources and hold the vendor responsible for any excess occasioned thereby.

QUALITY: All materials or services furnished on this order must be as specified, and subject to our inspection and approval within a reasonable time after delivery at destination. Materials or services other than those specified in this order must not be substituted without authority from the Issuing Department Manager. Material rejected will be returned at the vendor’s risk and expense.

QUANTITY: The quantity of material ordered must not be exceeded without written authority.

PACKING: Damage to any material not packed to insure proper protection to same will be charge to vendor. Packages must be marked plainly with shipper’s name and City order number. No charges are allowed for boxing or crating unless previously agreed upon in writing.

DELIVERY: All materials must be shipped F.O.B. shipping point, VENDOR IS TO PREPAY SHIPPING CHARGES AND ADD TO INVOICE. Delivery must actually be effected within the time stated on purchase order, failing in which we reserve the right to cancel this order and purchase elsewhere.

RESPONSIBLE BIDDER: Failure of a Bidder to execute a purchase order awarded to him or to comply with any of the terms and conditions therein may disqualify him from receiving future orders.

This order, if accepted, is subject to the following terms and conditions:

General

This order shall be governed by the laws of the State of New Jersey.
This order is invalid unless signed by the City Purchasing Agent.
Each package must contain a packing slip showing contents and the City's purchase order number.
No charges other than those specified will be allowed.
The signed payment voucher and invoice must be forwarded to the "Ship To" Department.
The vendor agrees to protect, defend and save harmless the city of Perth Amboy against any demand for the use of any patented material, process, device or article that may enter into the manufacture, construction, or form any part of the materials or services covered by this order; and the vendor agrees further to indemnify and save harmless the City of Perth Amboy, its officers, agents and employees from suits or actions of every nature and description brought against it for, or on account of any injuries or damages received or sustained by any party or parties, by, or from any of the acts of the vendor, his servants or agents. In case of default by the vendor, the City of Perth Amboy may procure the articles or services covered by this order from other sources and hold the vendor responsible for any excess occasioned thereby.
Vendor shall have been deemed to accept the written offer contained herein by either signing the purchase order or by shipping the goods or providing the service within the time period specified.
This purchase order shall be not assignable by the vendor without the written consent of the City of Perth Amboy.
The City of Perth Amboy is tax exempt.
The City of Perth Amboy does not pay interest or late fees.

Product or Service

The City of Perth Amboy reserves the right to:
Reject and return at the vendor's expense, material in excess of quantity ordered or defective material.
Reject delivery and/or cancel the order or any or all installment deliveries upon failure to ship the order or any installment of it within the time or times specified, or to ship the quantity or quality ordered.
Suspend or cancel deliveries during the existence of strikes, labor disturbances, secondary boycotts, fires, floods or other situations arising from causes not within the City's control.
All goods and articles furnished hereunder are warranted to be merchantable and free from all material defects and of good workmanship and fit for the purposes intended. It is further guaranteed that all goods and articles conform to the specifications included or referred to herein. This warranty shall survive any inspection, delivery, acceptance or payment by the City of Perth Amboy for material or service.
All goods and articles furnished shall comply with all regulations and specifications, including but not limited to OSHA regulations and specifications in effect at the time of delivery.
In order to comply with New Jersey Worker and Community Right to Know Act, the Material Safety Data Sheet and Labeling must accompany the shipment.
All materials must be shipped F.O.B. Destination. The City will not pay freight or express charges, except by previous agreement.

Responsible Vendor

In the performance of this order, vendor will comply with the provisions of the Fair Labor Standards Act and of any other applicable Federal or State Laws and regulations, and vendor further agrees that any provisions required by such laws and regulations to be included herein shall be deemed to be incorporated by reference.
Vendors must supply the City with a W-9 form.
Public Law 2001, Chapter 134 requires vendors providing goods/services to the City to provide proof of registration with the Department of Treasury, Division of Revenue (Business Registration Certificate - BRC). A vendor, subcontractor or supplier who fails to provide proof of business registration or provides false business registration information shall be liable for penalties as noted in the statute. Information on the law and its requirements is available at 609-292-9292 or http://www.nj.gov/treasury/revenue/busregcert.shtml

Prevailing Wage

The Public Works Contractor Registration Act (PWCRA) requires that all contractors, including named subcontractors, to register with the Department of Labor prior to submitting price proposals or engaging on certain public works contracts that exceed the prevailing wage threshold. The prevailing wage threshold is $15,444 for municipalities and $2,000 for all non-municipal entities, such as boards of education, authorities, fire districts, counties, etc.

Because the PWCRA uses the definition of public works contracts under the prevailing wage law, where the law uses the term bidding, contracting units are advised to read that as meaning to submit a price proposal. Thus, the law applies to the formal bidding process where the contract is awarded to the lowest responsible bidder, and the receipt of informal quotations awarded to the vendor whose proposal is the “most advantageous, price and other factors considered.”

Under the law a contractor is a person, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof who enters into a contract which is subject to the provisions of the New Jersey Prevailing Wage Act [N.J.S.A. 34:11-56.25 et seq.]. It applies to contractors based in New Jersey or in another state.

The PWCRA defines “public works projects” as contracts for public work as defined in the Prevailing Wage Act [N.J.S.A. 34:11-56.26(5)]. The term means:
Construction, reconstruction, demolition, alteration, or repair work, or maintenance work, including painting and decorating, done under contract and paid for in whole or in part out of the funds of a public body, except work performed under a rehabilitation program.
Public work shall also mean construction, reconstruction, demolition, alteration, or repair work, done on any property or premises, whether or not the work is paid for from public funds,…”
Maintenance work means the repair of existing facilities when the size, type or extent of such facilities is not thereby changed or increased. While “maintenance” includes painting and decorating and is covered under the law, it does not include work such as routine landscape maintenance or janitorial services.

In order to provide guidance to contracting officials on implementing the law, nine key principles have been identified in the law. The nine items follow:
The law applies to all public works contracts that exceed the contracting unit’s prevailing wage threshold, as set by N.J.S.A 34:11-56.26 (a) and (b).
The law applies to contracts for which public bidding is required, as well as those for which quotations are received.
All named contractors in a bid proposal (including out-of-state contractors) must be registered with the Department of Labor’s Division of Wage and Hour Compliance at the time proposals are received by the public entity.
For clarity, Local Finance Notice 2004-9 dated 4/28/04 uses the following term: Received, in context of when “proposals are received, means the deadline or moment in time when proposals are formally opened and no other proposals are accepted.
The law requires contractors to submit certificates after a bid proposal is received and prior to awarding the contract. (N.J.S.A. 34:11-56.55)
After bid proposals are received, and prior to contract award, the contractor most likely to receive the contract award must submit to the public entity copies of certifications of all listed sub-contractors.
The contracting agent must review the certificates to be sure they were in effect at the time the bid proposals were received.
Non-listed subcontractors do not have to be registered until they physically start the public work assigned to them.
Bid proposal documents need to inform those submitting proposals of these requirements.
Emergency work is covered under the provisions of the Prevailing Wage Act and the PWCRA.

It is specifically recommended that language be included in specifications especially those sections regarding Instructions to Bidders advising potential bidders that:
All named sub-contractors must be registered with the Department of Labor pursuant to the PWCRA at the time the proposal is received, or the proposal will be determined to be non-responsive.
Any non-listed sub-contractor must be registered with the Department of Labor prior to physically starting work.

A contractor's certification can be confirmed by contacting the Department of Labor's Division of Wage and Hour Compliance website (www.nj.gov/labor/lsse/lspubcon.html). This site only shows approved contractors; there is no pending approval or a grace period. If a contracting unit encounters a problem in its review of certifications, or difficulty in making an award because of a non-registered contractor, they should contact the Contractor Registration Unit as soon as possible.

N.J.S.A. 34:11-56.56 provides several methods for the Department of Labor to enforce the law. The Department can deny renewal, revoke or suspend the registration of a contractor for a period of not more than five years, or, as a condition of initial or continued registration, require a surety bond payable to the State of New Jersey.

Additional information on the PWCRA can be obtained from the: Contractor Registration Unit Telephone: 609-292-9464 Division of Wage and Hour Compliance Fax: 609-633-8591 New Jersey Department of Labor E-mail: [email protected]

PO Box 389 Web site: www.nj.gov/labor/lsse/lspubcon.html Trenton, New Jersey 08625-0389

The web site has links to the PWCRA Registration Form, Listing of Contractors, Prevailing Wages and other useful information.

Contact the Division of Local Government Services at (609) 292-7842, by fax at (609) 633-6243 or by e-mail at [email protected] for assistance in the application of the Local Public Contracts Law or related PWCRA issues. As specific situations are presented to the contracting unit, local legal advisors should review this guidance as to its applicability.