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SPECIAL NOTICETHE TWO-YEAR CH. 51 CERTIFICATION PROCESS IS SUSPENDED UNTIL THE NEW, COMBINED CH. 51/EO 117 FORM IS DESIGNED. PLEASE NOTE: The Ch. 51 Q&A DOES NOT address the expanded pay-to-play requirements imposed by Executive Order (EO) 117. For EO 117 Q&A click here |
SPECIAL NOTICE NEW “PAY-TO-PLAY” RESTRICTIONS TO TAKE EFFECT NOVEMBER 15, 2008 For further information CLICK HERE |
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Effective
October 15, 2004 |
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To be eligible for an award, a vendor must comply with the requirements of Public Law 2005, Chapter 51 (N.J.S.A. 19:44A-20.13-20.25, superseding Executive Order 134 (2004)). | |
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Please address all questions by sending your inquiries here. |
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State Contractor Political Contribution Compliance
Public Law 2005, Chapter 51
Q & A
PLEASE NOTE The Ch. 51 Q&A DOES NOT address the expanded pay-to-play requirements imposed by Executive Order (EO) 117. For EO 117 Q&A click here |
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Question # 100. | When processing the EO134
forms is it required to have the forms notarized? |
Answer: No. |
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Question # 101. | We are the concessionaire at certain
venues within the State of New Jersey. Many of our contracts with
the owner/operators of such venues provide that we are to be the
exclusive food and beverage provider at such venues. Since there
is no bid process, and the State agency is required to use our
company for its food and beverage needs should it decide to schedule
an event at such venue, it would appear that the rationale behind
EO 134 wouldn't be implicated (i.e., that the fair bidding process
shouldn't be compromised through the use of political donations).
In other words, there is no bid process, there are no alternative
suppliers, and accordingly, there is no opportunity for a vendor
to gain favor through contributions. Accordingly, in such an "exclusive
rights" circumstance, must we as the service provider still comply
with EO 134? |
Answer: Under the circumstances described, it
appears that the relevant contracts for EO 134/Chapter 51 purposes
would be the agreements between your company and any public agencies
or authorities that are the owners/operators of the venues, if
applicable, not a State agency which may schedule events at the
venues. |
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Question # 102. | The New Jersey Sports Authority has
collective bargaining agreements with 13 different unions. Are
the unions subject to the provisions of EO 134? |
Answer: No. Collective bargaining agreements
are not transactions subject to the EO 134. |
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Question # 103. | For purposes of determining the principals
of a limited liability company (LLC-1) that holds a state contract
valued over $17,500, would a corporation which owns 1% of LLC-1,
but which is the managing member of LLC-1 be a principal subject
to the restrictions and reporting requirements of P.L. 2005 c.51?
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Answer: No. A limited liability company is a
corporation for profit and only the principals owning more than
10% of the stock are subject to the restrictions of P.L. 2005,
c.51. Therefore, in your case a corporation owning 1% of the stock
would not be subject to the reporting requirements of P.L. 2005
c.51. Please reference the response to question No. 59 on the
Division of Purchase and Property EO 134 website pages.
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Question # 104. | I represent a limited liability partnership
that has a lease agreement with a state agency with a value in
excess of $17,500. The lease was signed prior to October 15, 2004,
and is still in effect. Can persons that own/control 10% or more
of this partnership contribute to current gubernatorial campaigns,
and state or county political parties? |
Answer: Lease agreements signed prior to October
15, 2005 are not subject to EO 134(P.L. 2005, c.51), for the duration
of the lease and for the duration of any extensions provided for
pursuant to the terms of the lease. Accordingly, partnership principals
are not prohibited by EO 134 (P.L. 2005, c.51) from making such
contributions. Please note that, extensions of the lease pursuant
to mutual agreements and/or amendments which are not provided
for in the original lease may be subject to EO 134/C.51. See also
question No. 46 on the Division of Purchase and Property EO 134
website pages. |
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Question # 105. | I represent several entities which are
limited liability companies and limited liability partnerships
that have contracts with a value above $17,500 with the State.
Persons who own and/or control 10% or more of these entities are
subject to the restrictions and reporting requirements in P.L.2005
Chapter 51. Because business entity is defined to include natural
persons who own or control 10% or more of the profits or assets
of a business entity, and because, "if a business entity is a
natural person, that person's spouse or child, residing therewith,
are also included in this definition," are the spouses and at-home
children of 10% owners of subject limited liability companies
and limited liability partnerships subject to Chapter 51?
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Answer: No. A limited liability company and
a limited liability partnership, as a vendor, is not considered
a natural person. Therefore, the spouse and children of principals
of such entities (a LLC & LLP), are not subject to P.L. 2005,
c.51. |
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Question # 106. | Does EO 134 apply to
Federal Social Services Block Grant funding received through DYFS?
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Answer: If this funding is a true grant as outlined
in question No. 3 on the Division of Purchase and Property EO
134 website pages, this grant is not subject to EO 134 (P.L. 2005,
c.51). Please note this funding could be construed differently if the procurement transaction designated as a "grant" is, in fact, a contract for goods or services or if the State has a substantial role in the funded activity. In that instance, the restrictions of EO 134 would apply. See also the response to question No. 78 on the Division of Purchase and Property EO 134 website pages. |
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Question # 107. | Our agency receives electricity and
natural gas from a BPU regulated utility company. Billing
for these services are based on tariffs established by the BPU.
Is it necessary to have these utility companies complete the EO
134 forms? |
Answer: No. Utility companies are outside the
scope of P.L. 2005, Chapter 51(EO 134). |
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Question # 108. | Our firm will be merging to form a
new firm with two additional principals. Since December 2004 our
firm has been a state vendor, under a contract with a State agency.
Our contract will end at the end of this month. My question is,
if one of our firm's new partners has made a contribution to a
state party committee, county party committee or candidate for
Governor in the past year, would the new firm be eligible to receive
a state contract? |
Answer: In order to be awarded
a State contract award after the expiration of the current contract,
the new firm will have to supply Chapter 51 (EO 134) compliance
documentation. As such, each owner of more than 10% of the firm
(Principals) will have to provide a Certification and Disclosure
form. If one or more of the Principals is unable to provide a
Certification, or discloses a disqualifying contribution, your
firm would not be eligible for the contract award. |
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Question # 109. | Under federal law, pharmaceutical manufacturers
are required to enter into an agreement with the Center for Medicare
and Medicaid (CMS) to provide rebates for their drug products
paid for by Medicaid. Manufacturers that do not sign an agreement
with CMS are not eligible for Medicaid coverage of their product
(s). Since the State Medicaid rebate agreements are required under
federal law, is it correct to assume that the pharmaceutical manufacturers
that execute Medicaid rebate agreements are not prohibited from
making political contributions under E.O. 134 (Chapter 51)? |
Answer: The State Medicaid rebate
agreements do not constitute contract awards, and therefore (1)
are not subject to Chapter 51 (EO 134), and (2) do not trigger
the restrictions of Chapter 51. |
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Question # 110. | The State has a similar form agreement
to the Medicaid rebate agreement concerning the PAAD and Senior
Gold programs. Signature of the New Jersey drug rebate agreement
is mandated in order for the drugs produced by a manufacturer
to be eligible for State funding when dispensed to PAAD or Senior
Gold beneficiaries. The provision of drugs in these two programs
are not subject to the public bidding provisions. Is it correct
to assume that the pharmaceutical manufacturers that enter into
rebate agreements with the Department of Health and Senior Services
are not prohibited from making political contributions under E.O.
134 (Chapter 51)? |
Answer: The State rebate agreements under the
referenced programs do not constitute contract awards, and therefore
(1) are not subject to Chapter 51 (EO 134), and (2) do not trigger
the restrictions of Chapter 51. |
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Question # 111. | If a manufacturer is prohibited
from making certain political contributions under Chapter 51 (EO
134), does the prohibition apply to a PAC or continuing political
committee formed by a pharmaceutical manufacturer? |
Answer: A continuing political committee
formed by and under the control of a manufacturer would be considered
part of the business entity of the manufacturer. Accordingly,
the restrictions applicable to the manufacturer would be applicable
to the committee, and contributions by the committee would be
attributable to and required to be reported by the manufacturer.
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Question # 112. | With respect to Executive
Order 134 (Chapter 51 of Public Laws of 2005), may an individual
whose corporation, limited liability corporation or limited partnership
has a contract with the State of New Jersey exceeding $17,500.00
make a contribution to the following committees in either an individual
or corporate capacity: 1. Senate Democratic Majority; 2. Democratic
Legislative Leadership Action Committee; 3. Republican Legislative
Leadership Action Committee. |
Answer: Contributions to the Senate
Democratic Majority Committee, Democratic Legislative Leadership
Action Committee and the Republican Legislative Leadership Action
Committee are not encompassed by P.L. 2005, Chapter 51, as those
committees are outside of the scope of the statute's designation
of "political party committee" and are not "continuing
political committees" under applicable law. |
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Question # 113. | State, county, and municipal
agencies and authorities advertise, obtain membership, sponsor
and or attend a specific trade association's events or publications.
The fees paid for these advertisements, memberships, sponsorships,
and attendance fees respectively, often exceed $17,500. We recognize
that the Department has previously responded that Executive Order
134/Chapter 51 "applies to the purchase of services, materials,
supplies and equipment, and the acquisition, sale or lease of
land or buildings." Are the fees paid for advertisements,
memberships, sponsorships and attendance fees of the trade association
equivalent to entering into an "agreement or contract"
or considered a "transaction" for the purposes of P.L.
2005, Chapter 51? |
Answer: Fees paid to a trade association
for memberships and/or sponsorships are not considered contracts
to procure goods or services; in addition, fees paid to place
advertising in media of general or trade circulation (as contrasted
with fees for advertising and related services) would not be considered
contracts to procure goods or services; neither are the foregoing
considered contracts for the sale/lease of land. Therefore, these
types of fees would not trigger P.L. 2005, Chapter 51 and are
outside the scope of the law. |
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Question # 114. | If fees paid to a trade association
for advertisements, memberships, and/or sponsorships are outside
the scope of P.L. 2005, Chapter 51, is it correct to assume that
the trade association would not be precluded from making political
contributions to Gubernatorial candidates or county or State political
party committees or legislative leadership committees? |
Answer: A trade association's contributions
to gubernatorial Candidates or county or State political party
committees would affect its eligibility for contract awards within
the scope of P.L. 2005, Chapter 51. |
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Question # 115. | Can you tell me if contributions
to a State college or university are prohibited under Ch 51. |
Answer: Chapter 51 applies only
to contributions to a State or county political party committee,
contributions to election committees of gubernatorial candidates
and contributions to "continuing political committees" - which
are sometimes referred to as Political Action Committees or PACs.
Contributions to State colleges or universities are outside the scope of Chapter 51. However, contributions to the political committees within the scope of Chapter 51 will affect a vendor's eligibility for contracts with State colleges and universities. |
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Question # 116. | A vendor is a publicly traded
company, and is owned in part by one or more financial firms,
each of which owns more than 10% of the shares of the vendor.
Is the vendor required to obtain Certification and Disclosure
forms from the financial firms? |
Answer: Publicly traded companies
are not required to obtain Chapter 51 Certification and Disclosure
forms from holders of more than 10% of their shares, where the
holders of such shares are mutual funds, financial advisors, or
other institutional investors that own the shares for the benefit
of investors. Financial firms that hold
such shares for their own account are required to submit Certification
and Disclosure forms. |
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Question # 117 | I have read newspaper accounts
that indicate giving to a state party, by a greater than 10% owner,
is not covered by EO 134 (and the subsequent legislation) if the
contribution is directed specifically to the federal account,
is this accurate? |
Answer: The New Jersey Election
Law Enforcement Commission (ELEC) has issued an Advisory Opinion
stating that contributions to the federal account of a New Jersey
State political party committee are outside of the jurisdiction
of ELEC, so long as the funds in the "federal account" are used
exclusively for federal election purposes and are not spent on
State candidates or elections. Accordingly, such a contributions would not be a "contribution reportable by the recipient under the New Jersey Campaign Contributions and Expenditures Reporting Act," and are therefore outside of the scope of Chapter 51 (formerly EO 134). See the ELEC Advisory Opinion at http://www.elec.state.nj.us/pdffiles/AO/ao032006.pdf . |
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Question # 118 | If a vendor has made an inadvertent
contribution, it has been refunded, although beyond the 30 day
limit that reverses disqualification, what is the exact time the
vendor is not eligible for State contract awards? |
Answer: Your question raises
two separate issues.
First, Chapter 51 states that an inadvertent contribution may be returned to the contributor, and eligibility for State contract award restored, if the refund is obtained within thirty days of the contribution. A refund obtained more than thirty days after the date of the contribution will not restore the eligibility of the vendor. Second, the period of ineligibility depends upon the timing of the contribution, and the committee to which the contribution was made. As a general rule, there is an eighteen (18) month period during which the contributor is not eligible for State contract award. Where the contribution is made to a candidate committee or election fund of a sitting Governor, or to the State or county political party committee of the party which nominated the sitting Governor, and the contribution is made during the Governor's term of office, the contributor is ineligible for State contract award for 18 months or during the remainder of the Governor's term of office, whichever is longer. Finally, where the contribution is made to a candidate committee
or election fund of a sitting Governor, or to the State or county
political party committee of the party which nominated the sitting
Governor, and the contribution is made during the last eighteen
months of the Governor's term of office, the period of ineligibility
could extend through the next gubernatorial term if the sitting
Governor is elected to a second term of office. |
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Question # 119 | For State term contracts issued by the
Division of Purchase and Property, does the $17,500 transaction
threshold amount established by the governing statute pertain
to each individual purchase made by each term contract user or
to the aggregate purchases made by all term contract users combined?
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Answer: Amplifying the State’s answer to Question #8 above, which addressed Delegated Purchasing Authority (DPA) purchases made directly by State agencies, for State term contracts awarded by DPP’s Purchase Bureau, the $17,500 transaction threshold applies to the aggregate purchases made, or expected to be made, by all users of the individual State contract. |
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Question # 120 | Can Agencies submit disclosure certification
forms as a scanned attachment (.pdf) via email? |
Answer: Not at this time, however, we
are considering electronic systems for future compliance.
***As of July 1, 2007, submissions can be sent for review to CD134@treas.state.nj.us *** |
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Question # 1 |
Do all potential vendors have to send in the new EO 117 certification form with their bids? |
Answer: No, the new EO 117 certification will need to be submitted along with the Chapter 51 (formerly E.O. 134) certification by the intended awardee only. | |
Question # 2 |
Is the two-year certification process still in place? |
Answer: No, we have temporarily suspended the two-year certification process until we release a new, combined Chapter 51/EO 117 certification form. |
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