AACCNJ’s John Harmon Says Bills Aren’t Enough
Photo of John Harmon courtesy of African American Chamber of Commerce of New Jersey
| AC JosepH Media TRENTON — The African American Chamber of Commerce of New Jersey announced that on Monday, Sept. 23, that John E. Harmon, Sr., founder, president and CEO, gave testimony in opposition to a legislative package designed to address the findings of the New Jersey Disparity Study, A4586, A4725, A4724, A4722, before the NJ Assembly Community Development and Women’s Committee. Harmon’s testimony followed a 9:30 a.m. press conference, at the statehouse, and was convened by Assemblywoman Sumter, Chair of the Legislative Black Caucus and Chair of the Assembly Community Development and Women’s Affairs Committee and Assemblyman Wimberly, Speaker Pro Tempore and Co-Chair of the Joint Committee on Economic Justice and Equal Employment Opportunity. Members of the Legislative Black Caucus, Latino Caucus, AAPI Caucus, and business, union, and community leaders were also in attendance. “Having liquidated damages and potential claw back provisions add teeth and enforcement to the A-4586. Without an enforcement mechanism the bill is aspirational and will not do anything to advance the MWBE under utilization rate in New Jersey,” Harmon said in his statement. “For example, in New York which has the highest MWBE utilization rate in the nation (over 32%), the reason their laws and regulations for aspirational utilization of MWBE are effective is because liquidated damages and claw back remedies are included in New York’s laws and regulation. “New York’s laws are constitutional because New York’s laws have been challenged in court and have survived legal scrutiny,” he added. “After I gave testimony and returned to my seat, Chairwoman Sumpter read a statement provided by New Jersey’s Office of Legislative Services (OLS) which appeared to contradict my position on the effect of including liquidated damages as an accountability measure in the proposed bills. Harmon said her statement which sighted Croson v. Richmond, an earlier case that opposed MWBE goals clearly conflated the issue and appeared reasonable to those in the audience that may not have been well versed on the law. “However, the insertion of liquidated damages in a procurement contract is a standard practice and should not be correlated with aspirational goals,” Harmon said. “This will ensure that those who participate in public contracting will honor the provisions relating to scope of work, delivery of services and the relationship with participating parties or be subject to sanction, plain and simple.” |
| New York laws and regulations relating to liquidated damages and claws back are as follows: NY CLS Exec § 316-a – Every contracting agency shall include a provision in its state contracts expressly providing that any contractor who willfully and intentionally fails to comply with the minority and women-owned participation requirements of this article as set forth in such state contract shall be liable to the contracting agency for liquidated or other appropriate damages and shall provide for other appropriate remedies on account of such breach………………….. 5 NYCRR § 142.12(b) – Within 20 days of the State agency determination that the contractor has not acted in good faith, has failed, is failing, or is refusing to comply with goals for participation by certified minority and/or women-owned business enterprises established in the State contract, a state agency may: (1) after giving the contractor an opportunity to be heard, make a determination that the contractor has failed to meet the contract goals and assess liquidated, or such other damages as were identified in the contract; or 5 NYCC § 142.13 – Every contracting agency shall include a provision in its State contracts expressly providing that any contractor who willfully and intentionally fails to comply with the minority and women-owned participation requirements of these regulations as set forth in such State contract shall be liable to the contracting agency for liquidated or other appropriate damages, as otherwise specified in the contract, and shall provide for other appropriate remedies on account of such breach. Damages shall be calculated based on the actual cost incurred by the State agency related to the State agency’s expenses for personnel, supplies and overhead related to establishing, monitoring, and reviewing certified minority and women-owned business enterprise programmatic goals and Affirmative Action and Equal Opportunity compliance, or the amount stated in the solicitation as liquidated damages. A contracting agency that elects to proceed against a contractor for breach of contract as provided in this section shall be precluded from seeking enforcement pursuant to section 316 of the Executive Law. The contracting agency shall, however, include a summary of all enforcement actions undertaken pursuant to this section in its annual report submitted pursuant to subdivision three of section 315 of the Executive Law. “There is an egregious disparity on NJ procurement contracts awarded to minorities, from 2015 – 2020”, said Harmon. “We are requesting that our policymakers disaggregate data in disparity reporting on procurement so that the public can get more detail on the demographics excluded from public contracts.” |
| See the chart below: (0.53% for Black, 2.42% Asian, 1.29% Hispanic, 95% white males and females).Compare this data to New York’s 32.30% utilization rate for MWBEs. |
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