The Attorney General of New Jersey, through the Department of Law and Public Safety, Division of Law (the “Attorney General”) serves as the legal representative and counsel for the departments, boards, offices, commissions and other instrumentalities of State government, its officers and employees, and represents the New Jersey Secure Choice Savings Program Board (the “Board”). The Board is responsible for the start-up and administration of the New Jersey Secure Choice Savings Program (the “Program”), which is a retirement savings program in the form of an automatic enrollment payroll deduction Individual Retirement Accounts (“IRA”) or Roth IRA (as defined under the Internal Revenue Code sections 408 and 408A, respectively). The legislation establishing the Program, P.L. 2019, c. 56 (the “Act”) provides that the Program shall comply with certain provisions of the Internal Revenue Code, as may be amended and supplemented from time to time (the “Code”).

 

Proposals are being sought by the Attorney General on behalf of the Board for the appointment as Special Counsel for a period of three years, in connection with the Board’s start-up and administration of the Program to ensure compliance with the Code and other applicable federal law. You are invited to submit a proposal to serve as Special Counsel.

 

1.2       The Attorney General will designate one or more attorneys from the Division of Law in the Department of Law and Public Safety who will be the sole point(s) of contact for all matters pertaining to this engagement and who will oversee and coordinate the activities of Special Counsel.

 

1.3       The firm appointed as Special Counsel must comply with all local, State and federal laws, rules and regulations applicable to the engagement and to the services to be performed thereunder.

 

1.4       Compensation for the firm appointed to serve as Special Counsel shall be negotiated based upon the provisions set forth in Sections 4.0 and 5.0.

AT A MINIMUM, RESPONDING FIRMS MUST HAVE THE FOLLOWING QUALIFICATIONS:

 

(1) Expertise in federal tax law and other applicable federal law governing IRAs and Roth IRAs.

(2) Expertise in federal tax law and other applicable federal law  affecting the development, implementation and administration of the Program, as described below.

Failure by a firm to meet these minimum requirements will result in the proposal’s immediate rejection.

3.1       General Description

 

The Board was formed pursuant to the Act to administer a retirement savings program in the form of an automatic payroll deduction IRA, for the purpose of promoting greater retirement savings for private sector employees in a convenient, low-cost, and portable manner.   In accordance with the Act, the Board shall act as trustee to the New Jersey Secure Choice Savings Program Fund (the “Fund”), which will include the individual retirement accounts of enrollees.  The Fund shall be separate and apart from all public moneys or funds of the State of New Jersey (the “State”) and shall consist of monies received from enrollees directly and through participating employers pursuant to automatic payroll deductions. 

 

The Board shall be responsible for determining the manner in which the Fund will be operated, provided that the Fund is operated so that the accounts of enrollees established under the Program meet the requirements for IRAs, as determined under the Code. The Fund shall be used exclusively for the purpose of paying benefits to the enrollees of the Program, for the cost of administration of the Program, and for investments made for the benefit of the Program. 

 

The Board is responsible for, among other things: appointing a trustee to the Fund, in accordance with section 408 of the Code; establishing the process by which interest, investment earnings, and investment losses are allocated to individual Program accounts on a pro rata basis and are computed at the interest rate on the balance of an individual’s account; and ensuring that the monies in the Fund are held and invested as certain pooled investments, with a view to achieve cost savings through efficiencies and economies of scale.

 

3.2       Applicable Laws and Regulations

 

The appointed Special Counsel must be familiar with and perform its duties in accordance with the Act and applicable regulations and federal law as they pertain to  IRAs and Roth IRAs.

In connection with the Board’s start-up and administration of the Program and operation of the Fund, Special Counsel will be expected to provide legal advice and representation concerning all aspects of the Program, including, but not limited to, the following:

 

4.1       Assist the Board in designing the Program, prepare all documents necessary to implement the Program in accordance with applicable federal laws, and operate the Fund in accordance with the Code’s provisions governing IRAs.

 

4.2       Advise on the Program’s compliance with the Code and other applicable federal laws.

 

4.3       Advise on the consequences to the Program’s compliance with the Code and applicable federal laws related to any proposed administrative, regulatory, and/or legislative changes, modifications, and additions to the Program.

 

4.4       Review proposed and enacted State legislation, Program regulations, and Program documents for compliance with the Code and applicable federal laws, rules and regulations, and provide recommended changes when needed. 

 

4.5       Prepare and issue legal opinions to the effect that the Program is in compliance with the Code and all other applicable federal laws, rules, and regulations, including, but not limited to, an opinion that the accounts of enrollees established under the Program meet the requirements for IRAs, as determined under the Code.

 

4.6       Provide training for Members and staff of the Board regarding fiduciary responsibilities under federal law.

 

4.7       Alert the Board to new developments, concerns and issues that may impact the compliance of the Program with federal law, including the Code.

 

4.8       Special Counsel must be available at the request of Board management, to review and discuss pertinent critical matters.

 

4.9       In addition, Special Counsel may be asked to address other requests on an ad hoc basis.

Proposals must respond to each of the following requests in the order indicated. Please provide the information requested below for all counsel who may perform any of the requested services.

5.1 Firm Profile and Experience

5.2 Qualifications and Experience in Area of Law

In addition, for each member of your firm that would be involved in handling the matter as Special Counsel, provide a detailed resume including information as to:

(i) Education, including advanced degrees;

(ii) Years and jurisdictions of admission to practice;

(iii) Number of years engaged in practice pertaining to federal tax compliance of retirement accounts/employee benefits;

(iv) General work experience;

(v) Up to three (3) examples that demonstrate the qualifications of these individuals relevant to the anticipated assignment; indicate in each case the role the individual had in the matter and whether or not the individual participated in the matter on behalf of your firm;

(vi) Any professional distinctions (e.g., certifications, teaching experience); and

(vii) Office location of the attorney.

5.3 Other Qualification Information

E. Outside Counsel Guidelines

 

Counsel designated as Special Counsel and retained on any specific matter shall be required to comply with the Outside Counsel Guidelines (“Guidelines”) available for review at: https://www.nj.gov/oag/law/pdf/rfqs/Revised_Outside_Counsel_Guidelines_2022.pdf. The Guidelines may be updated from time to time. Such updates will be available at https://www.njoag.gov/about/divisions-and-offices/division-of-law-home/outside-counsel/. If your firm is appointed to serve as Special Counsel to the Board, it shall abide by the Guidelines as written, as well as any updates that may be made during the term. 

 

(a)        Conflict of Interest. Section III of the Guidelines requires that counsel be free of any conflict of interest. Please note that the Board, as a public entity, is precluded by the Rules of Professional Conduct from waiving conflicts of interest. See RPC 1.7(a)(2) and RPC 1.7(b)(2). If your firm is designated as Special Counsel, you have a continuing obligation during the term to disclose to the Attorney General of New Jersey any actual or potential conflicts. Additionally, retained counsel shall not disclose any confidential information learned or received in any way as part of a retention, either during the retention or at any time after the retention has concluded. 

 

(b)        Costs. Special Counsel shall have resources sufficient to advance all costs, including the costs of any necessary experts. Billing for costs shall be done in accordance with the Guidelines.

F. Confirm that upon selection as special counsel your firm will provide the updated Ownership Disclosure, Affirmative Action Supplement with Affirmative Action Employee Information Report and the certifications required by Public Law 2005, Chapters 51 and 271, Executive Order 117 (Corzine 2005), Public Law 2012, Chapter 25 and N.J.S.A. 52:32-60.1 et seq. as further explained in Exhibit A. These forms are initially required by the RFQ and then required by law again at any retention.

G. Provide any additional information that may be relevant to the selection process, such as prior experience with or recent transactions of the same nature as the anticipated transactions, the need for other special counsel and anticipated extraordinary expenses.

5.4 Additional Requirements for all Office of the Attorney General, Division of Law Retention Agreements 

A. The Additional Requirements set forth in Exhibit A are material terms of any retention resulting from this RFQ. Your proposal must include all completed and signed required State law compliance forms set forth therein.

 

B. Additional Submission Requirements for Office of the Attorney General – Diversity Questionnaire, Exhibit B. Your proposal must include a completed Diversity Questionnaire, provided in Exhibit B.

A. The firm should must submit its proposed blended hourly rates for: (1) partners; (2) of counsel; (3) associates; (4) law clerks and law assistants; and (5) paralegals, including the percentage discount the proposed hourly rates represent from your customary hourly fee.  Please note: No fee escalators are permitted or will be considered.  Counsel fees do not include reimbursables, such as computer time, postage, telephone charges, travel, duplication, etc. Permitted expenses will be reimbursed to your firm in accordance with the Guidelines. If the fee proposals submitted by all qualified responders are in excess of those deemed reasonable by the Attorney General, lower hourly rates may be negotiated.

If the Attorney General requests best and final offers with respect to the fee proposals from all or some of the firms submitting proposals, the Attorney General shall do so via electronic mail.  The firms’ best and final offers must be in writing and may be delivered electronically.  Best and final offers will only be considered if they are lower than the originally submitted fee proposal.  If a firm does not respond to the request for a best and final offer or asserts that its last price is firm, then the firm’s originally submitted fee proposal will be considered its best and final offer. 

B. Please understand that in certain instances, the Attorney General may engage Special Counsel using blended hourly rates with a fee cap setting forth the particular services being requested.  Please note that any deviation from the specific matter fee cap established for such scope of services described in Section 4.0 of this RFQ will be considered only as the result of unforeseeable substantial changes in the structure or circumstances of the transaction as agreed upon and approved by the Attorney General or the Attorney General's designee.

C.  Proposed Blended Hourly Rates.  Firms are required to fill out chart below.  If the firm does not intend to propose a blended hourly rate for a particular title, please enter “0” for that title.

6.1      All responses to Requests for Qualifications must be submitted in their entirety through the Division of Law Online RFQ Portal. The RFQ Portal will not be operational until the RFQ question and answer period has ended.  

6.2       The Attorney General will accept questions pertaining to this RFQ from all potential bidders electronically. Questions shall be directed to Kavin K. Mistry, Deputy Director, Division of Law at the following e-mail address:

RFQQUESTIONS@LAW.NJOAG.GOV

Please note that the “subject” line of your e-mail must specifically reference this RFQ as follows: “Special Counsel RFQ for NJSCS Board.”

 

Questions will be accepted until 4:30 p.m. on 1/25/2023.

 

6.3       In the event the Attorney General determines that additional clarification to this RFQ or additional information is necessary, the Attorney General reserves the right to hold a conference call with eligible firms for the purpose of providing the same.

 

6.4       In the event that it becomes necessary to clarify or revise this RFQ, such clarification or revision will be by addendum. Any addendum to this RFQ will become part of this RFQ and part of any designation of a firm as Special Counsel as a result of this RFQ.

ALL RFQ ADDENDA WILL BE POSTED ON THE DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW’S WEBSITE AT https://www.njoag.gov/about/divisions-and-offices/division-of-law-home/outside-counsel/request-for-qualifications-for-special-counsel/.

ALL RFQ ADDENDA WILL ADDITIONALLY BE MERGED INTO THE ELECTRONIC APPLICATION TOOL BEFORE IT IS OPERATIONAL.

 

            It is the sole responsibility of the firm to be knowledgeable of all addenda related to this RFQ.

 

6.5       The Attorney General reserves the right to interview the most qualified firms responding to this RFQ prior to making a final selection.

 

6.6       The Attorney General reserves the right to reject any and all proposals received in response to this RFQ, when determined to be in the Board’s best interest, and to waive minor noncompliance in a proposal, modify or amend, with the consent of the submitting firms, any statement, and to effect any agreement deemed by the Attorney General to be in his best interest, or in the best interests of the Division of Law. The Attorney General further reserves the right to make such investigations as he deems necessary as to the qualifications of any and all firms submitting proposals in response to this RFQ. In the event that all proposals are rejected, the Attorney General reserves the right to re-solicit proposals.

 

6.7       All documents and information submitted in response to this RFQ generally shall be made available to the general public as required by applicable law.

 

6.8       Neither the State nor the Board will be responsible for any expenses in the preparation and/or presentation of the proposals and oral interviews, if any, or for the disclosure of any information or material received in connection with the solicitation, whether by negligence or otherwise.

 

6.9       Failure by a firm to meet the Minimum Qualifications set forth in Section 2.0 will result in the proposal’s immediate rejection.

7.1       All proposals will be reviewed to determine responsiveness. The Attorney General may reject non-responsive proposals without evaluation, but may waive minor non-compliance. An Evaluation Committee will evaluate responsive proposals. The Evaluation Committee will have a minimum of three (3) members and may include a representative(s) from the Board. The following evaluation criteria categories, separate or combined in some manner, and not necessarily listed in order of significance, will be used to evaluate proposals received in response to this RFQ.

 

A.  Knowledge and experience of named attorneys as applicable with:

1. State laws relevant to the Program;
2. Federal securities, tax and other laws relevant to the Program;
3. Experience with federal laws governing IRAs;

B.  Knowledge and experience of the firm with retirement accounts and similar transactions;
C.  Resources of the firm;
D.  Approach to communication with the Division of Law;
E.  Past experience of the State with the firm and/or named attorneys; and
F.  Fees.

 

7.2       Proposals will be ranked based on the above criteria.  Special Counsel will be selected by the Attorney General.  The Attorney General reserves the right to reject any and all responses to the RFQ; waive any requirements or minor informalities; modify or amend, with the consent of the submitting firms, any statement; and to effect any agreement deemed by the Attorney General to be in his best interest, or in the best interests of the State and the Board.

 

7.3       The Attorney General reserves the right, in the Attorney General’s sole discretion, to require interviews or oral presentations from the most qualified firms that submitted proposals prior to making a final determination.

 

7.4       Notification. The Division shall notify the firm selected as Special Counsel and it shall be posted on the Division of Law’s website at: 

https://www.njoag.gov/about/divisions-and-offices/division-of-law-home/outside-counsel/approved-special-counsel-lists/

8.1       No endorsement: Designation as Special Counsel does not constitute an endorsement by the State of New Jersey, the Attorney General or the Department of Law and Public Safety.

 

8.2       Effect of RFQ response: A response to this RFQ will not bind or otherwise obligate the State of New Jersey to engage the responding firm as Special Counsel.

 

8.3       Attorney General’s Authority Not Constrained: Nothing in this RFQ is intended to limit or constrain the discretion of the Attorney General in exercising any authority, duty, prerogative or power established or recognized by the State Constitution, statutes, Executive Orders, regulations, or case law.

 

8.4       Designation as Special Counsel: Selection of a firm as Special Counsel will not bind or otherwise obligate the State or the Board to retain the listed firm for legal services. Selection of a firm as Special Counsel will not guarantee any other form of employment or engagement.

A firm selected pursuant to this RFQ with the approval of the Attorney General and the Governor will be the subject of a special counsel designation pursuant to N.J.S.A. 52:17A-13.

 

9.1       Special Counsel Designation. The firm selected pursuant to this RFQ with the approval of the Attorney General and the Governor, will be the subject of a special counsel designation, pursuant to N.J.S.A. 52:17A-13. A firm may not represent the Board unless it is given a special counsel designation. A special counsel designation, however, is not a retention for a specific matter and does not entitle a firm to be retained for a specific matter. The terms and conditions set forth in this RFQ shall be the terms and conditions of the Special Counsel designation.

 

9.2       Retention Letter.  A firm may not represent the Board unless it also executes a retention letter for a specific matter or class of matters. The firm selected as Special Counsel may, from time to time, be contacted by the Division of Law to provide specific services. At that time, if the firm agrees to the retention, the firm may be required to submit updated certifications as required by Exhibit A and will receive a retention letter to countersign. The terms and conditions set forth in this RFQ shall be included in addition to the terms and conditions in the Retention Letter.

Not less frequently than annually, the Attorney General or his designee shall evaluate the firm’s performance. The evaluation will focus on responsiveness, quality of work, adequacy and appropriate utilization of resources, adherence to invoice submittal standards, and cost effectiveness. The Attorney General or his designee will advise each firm of any problem areas. If, as the result of one or more evaluations, the Attorney General determines, in his sole discretion, that the firm should be removed from the engagement as Special Counsel, the firm may be removed after written notice is provided to the firm. Other than this written notice, nothing in this RFQ creates any rights, entitlements, privileges, or presumptions in favor of a law firm that would constrain the Attorney General’s authority to remove a firm from being Special Counsel.

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Pursuant to N.J.S.A. 52:32-44 (b), for retention agreements in which the State will pay in excess of $50,600:

 

1.      Special Counsel that is a legal entity (e.g. corporation, LLC, partnership, LLC, et al.) must do one of the following:

 

          a. submit with the signed Retention Agreement a copy of its valid New Jersey Business Registration with the current entity name, address and EIN/TIN;  or

 

          b. if the business has changed its name, address or EIN/TIN since it registered, update those changed items in the Division of Revenue Business Registration System; or

 

          c. is not already registered with the New Jersey Division of Revenue, registration can be completed on line at the Division of Revenue website;

                        or

2.       Special Counsel that is a natural person and is being retained and paid in her or his individual capacity (i.e. not under the name of an LLP or LLC), fill out New Jersey FORM A REG form and return the form to the address shown on the form and await notification of its registration, and then submit that to the Division with the signed retention.  The FORM A REG is found at:

https://www.state.nj.us/treasury/revenue/pdf/rega.pdf.

No Special Counsel shall be paid unless Special Counsel has properly completed a New Jersey State W-9 and Vendor Questionnaire on file with the State.

If Special Counsel does not have a Business Registration, has not yet received back its Business Registration form from the New Jersey Division of Revenue, or has not obtained Business Registration with its current information, it will not be able to register with NJStart.  One day after the Business Registration is complete, the Special Counsel will be able to register with NJ Start.  

General Information including an explanatory video about NJStart is available at:
http://www.state.nj.us/treasury/purchase/vendor.shtml.

 
Use this link to register for or access the NJStart system: https://www.njstart.gov/bso/.

 

If Special Counsel has previously submitted a State of New Jersey W-9 and Vendor Questionnaire or has previously registered with NJStart, and has not changed its name, address or tax identification number, the firm need not register with NJStart.  The firm should notify the Division of Law that its NJ Start Registration is current.   

 
Note: If at any time Special Counsel needs to revise its W-9 for any reason, including a change in firm name, address, or tax identification number, Special Counsel shall also be required to register to use NJStart, if it has not done so, and make the revisions to the W-9 and Vendor Questionnaire in the NJStart system.

The Ownership Disclosure addresses the requirements of N.J.S.A. 52:25-24.2 for any contract or retention agreement and must be completed and submitted either with the proposal or with the signed Retention Agreement.  The Retention Agreement cannot be finalized by the Division of Law unless and until the Ownership Disclosure is properly completed and accepted.  The form can be downloaded from the Department of Treasury website under the heading Vendor Forms.  It is located at:

http://www.state.nj.us/treasury/purchase/forms/OwnershipDisclosure.pdf.

The Affirmative Action Supplement with Affirmative Action Employee Information Report addresses the requirements of N.J.S.A. 10:5-31 to -34 and N.J.A.C. 17:27.3.1 et seq., for any contract or retention agreement.

 

1.    Special Counsel that have four or fewer employees:

These requirements do not apply to sole proprietorships or other business entities with four or fewer employees and need not take one of the steps in subsections 1-3 below.  If a Special Counsel has 4 or fewer employees, Special Counsel’s execution of these Additional Terms to the Retention Agreement will confirm that Special Counsel has the number of employees entered below:

 2.    Special Counsel who have five or more employees must do one of the following:

 

        a. Complete and submit the Employee Information Report, and pay the   $150.00 fee electronically at:
https://www.state.nj.us/treasury/contract_compliance/; or

        b. Complete and submit the Employee Information Report either with the proposal or with the signed Retention Agreement.  The Retention Agreement is not completed unless and until the form is properly completed and submitted to the Division of Law, as well as to the Contract Compliance and Audit Unit within the New Jersey Department of Treasury, Division of Purchase and Property along with a $150.00 check.  The form can be downloaded from the Department of Treasury website under the heading Vendor Forms:
https://www.state.nj.us/treasury/purchase/forms.shtml;

or access the form directly at:
https://www.state.nj.us/treasury/contract_compliance/documents/pdf/forms/aa302.pdf

The instructions for the form are available at:
http://www.state.nj.us/treasury/purchase/forms/EmployeeInformationReportInstructions-aa302ins.pdf

 

or

 

        c. Present to the Division of Law a current Certificate of Employee Information Report issued by the Contract Compliance and Audit Unit within the New Jersey Department of Treasury, Division of Purchase and Property; or

        d. Present to the Division of Law a copy of its existing federally approved or sanctioned affirmative action report.

Pursuant to N.J.S.A. 52:32-58, Special Counsel must certify that neither Special Counsel, nor one of its parents, subsidiaries, and/or affiliates (as explained in N.J.S.A. 52:32-56(e)(3)) is listed on the Department of the Treasury’s List of Persons or Entities Engaging in Prohibited Investment Activities in Iran and that neither is involved in any of the investment activities set forth in N.J.S.A. 52:32-56(f). If Special Counsel is unable to so certify, Special Counsel shall provide a detailed and precise description of such activities. The form is available at:

              http://www.state.nj.us/treasury/purchase/forms/DisclosureofInvestmentActivitiesinIran.pdf.

Prior to entering any Retention Agreement retention agreement under which the State will pay more than $17,500 to the Business Entity proposed as the Special Counsel, the Business Entity shall submit the Certification and Disclosure form, certifying that no contributions prohibited by Chapter 51 have been solicited or made by the Business Entity and reporting all contributions the Business Entity made during the preceding four years to any political organization organized under 26 U.S.C. 527 of the Internal Revenue Code that also meets the definition of a continuing political committee within the meaning of N.J.S.A. 19:44A-3(n) and  N.J.A.C. 19:25-1.7.  Additional information about Chapter 51 and Executive Order 117, including a Summary and a Q&A, is available at:

https://www.state.nj.us/treasury/purchase/forms.shtml

The required form and instructions for completion and submission to the Deputy Attorney General prior to the finalization of the Retention Agreement are available on the New Jersey Division of Purchase and Property’s website under the heading “Vendor Forms Required for Contract Award” at:

https://www.state.nj.us/treasury/purchase/forms.shtml

Note:  If Special Counsel has not registered with NJStart, it will need to do so before submitting its Chapter 51 form.  NJStart registration is necessary for the review of the Certification and Disclosure. 

Note: The TIN/EIN must be identical on each of the Business Registration, NJStart registration, and Chapter 51 form.

If the Special Counsel has a currently valid Two-Year Chapter 51/Executive Order 117 Vendor Certification approval from the New Jersey Division of Purchase and Property and has not made any contribution prohibited by Chapter 51 since the approval was issued, the prior notice from the Chapter 51 Unit of the current two-year approval may be submitted to the Division of Law instead of a new form. 

Special Counsel is required, on a continuing basis, to report any contributions and solicitations Special Counsel makes during the term of the Retention Agreement, and any extension(s) thereof, at the time any such contribution or solicitation is made.  Failure to do so is a breach of the Retention Agreement. 

Special Counsel’s failure to submit the form will preclude the Division of Law’s countersignature of the Retention Agreement under which the State will pay more than $17,500 to Special Counsel.  The State Treasurer or his designee shall review the Disclosures submitted by the Special Counsel pursuant to this section, as well as any other pertinent information concerning the contributions or reports thereof by the intended Special Counsel, prior to award, or during the term of the retention agreement.  If the State Treasurer determines that any contribution or action by the Special Counsel violated Chapter 51 and EO 117 the State Treasurer shall disqualify the Special Counsel from award of such contract.  If the State Treasurer or its designees determines that any contribution or action constitutes a breach of contract that poses a conflict of interest, pursuant to Chapter 51 or EO 117, the State Treasurer shall disqualify the Special Counsel from award of such contract.

Pursuant to P.L. 2005, c.271 (“Chapter 271") every Business Entity contracting with the State is required to disclose its (and its principals’) political contributions within the immediately preceding twelve (12) month period.  No prospective Special Counsel will be precluded from being retained by virtue of the information provided in the Chapter 271 disclosure, provided the form is fully and accurately completed.  Prior to being retained, the Special Counsel anticipated to be selected will be required to submit Chapter 271 disclosures if the cost of Retention Agreement is anticipated to be in excess of $17,500.  This requirement is in addition to the requirements of Chapter 51 and EO 117.  The form is available at: 
                                                http://www.state.nj.us/treasury/purchase/forms/CertandDisc2706.pdf

Pursuant to P.L. 2022, c. 3, a person or entity seeking to enter into or renew a contract for the provision of goods or services shall certify that it is not Engaging in Prohibited Activities in Russia or Belarus as defined by P.L. 2002, c. 3, sec. 1(e).  As such, Special Counsel shall submit to the Division of Law the Disclosure of Prohibited Activities in Russia/Belarus Form.  Please complete the following certification form information.

CHECK THE APPROPRIATE CERTIFICATION

If Special Counsel is unable to so certify, Special Counsel shall provide a detailed and precise description of such activities in the space provided on the certification form. If Special Counsel has certified that it is engaged in activities prohibited by L. 2022, c. 3, then Special Counsel shall have 90 days to cease engaging in any prohibited activities, and on or before the 90th day after this certification shall provide an updated certification. If Special Counsel does not provide the updated certification or at that time cannot certify on behalf of the entity that it is not engaged in prohibited activities, the Division shall not enter into any additional retention agreements with Special Counsel, or amend, extend, or renew any retention agreements, and shall be required to terminate any retention agreements the Special Counsel holds with the State that were issued on or after the effective date of L. 2022, c. 3.

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Source Disclosure Certification-All Consulting Service to be provided in the United States

Special Counsel’s execution of these Additional Terms to the Retention Agreement will confirm that Special Counsel agrees, in accordance with Executive Order 129 (2004) and N.J.S.A. 52:34-13.2 (P.L. 2005, c. 92), that all services performed for the Retention Agreement shall be performed within the United States.

 In the event that all services performed for the Retention Agreement will NOT be performed within the United States, Special Counsel shall send the Deputy Attorney General who executes the Retention Agreement a letter that states with specificity the reasons why the services cannot be so performed.  Any such letter shall require review and approval pursuant to N.J.S.A. 52:34-14.2 prior to execution of this Retention Agreement or the delivery of the services which will not be performed within the US.  If the Letter cannot be approved, the Special Counsel cannot be retained.

A.  Breach of Requirements of Chapter 51 and Executive Order 117 (2008) (Also referred to as “Pay to Play Restrictions,” N.J.S.A. 19:44A-20.13 to -20.25, or Executive Order 134 (2004))

 In order to safeguard the integrity of State government procurement by imposing restrictions to insulate the negotiation and award of State contracts, including retention agreements, from political contributions that pose the risk of improper influence, purchase of access, or the appearance thereof, the Legislature enacted P.L. 2005, c.51 (codified at N.J.S.A. 19:44A-20.13 to -20.25) (Chapter 51), on March 22, 2005, effective retroactive to October 15, 2004, superseding the terms of Executive Order 134(2004).   In addition, on September 24, 2008, Executive Order 117 was issued and made effective on November 15, 2008 (EO 117) which set forth additional limitations on the ability of executive branch agencies to contract with business entities that have made or solicited certain contributions.

Thus, in retentions under which the State will pay more than $17,500 to Special Counsel, pursuant to the requirements of Chapter 51 and EO 117, it shall be a material breach of the terms of the Retention Agreement for Special Counsel to do any of the following during the term of the Retention Agreement:

1.     make or solicit a contribution in violation of the Chapter 51 or EO 117;

2.     knowingly conceal or misrepresent a contribution given or received;

3.    make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;

4.    make or solicit any contribution on the condition or with the agreement that it will be contributed to a campaign committee or any candidate or holder of the public office of Governor, or of Lieutenant Governor, or to any State, county or municipal party committee, or any legislative leadership committee;

5.    engage or employ a lobbyist or Special Counsel with the intent or understanding that such lobbyist or Special Counsel would make or solicit any contribution, which if made or solicited by the business entity itself, would subject that entity to the restrictions of Chapter 51 or EO117;

6.    fund contributions made by third parties, including Special Counsel’s shareholders or business partners, attorneys, family members, and employees;

7.    engage in any exchange of contributions to circumvent the intent of  the Chapter 51 or EO 117; or

8.    directly or indirectly through or by any other person or means, do any act which would subject that entity to the restrictions of  the Chapter 51 or EO 117.

 

B.  New Jersey Conflict of Interest Law

The New Jersey Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq., and Executive Order 189 (1988) prohibit certain actions by persons or entities which provide goods or services to any State Agency. Specifically: 
 
1.     No Special Counsel shall pay, offer to pay, or agree to pay, either directly or indirectly, any fee, commission, compensation, gift, gratuity, or other thing of value of any kind to any State officer or employee or special State officer or employee, as defined by N.J.S.A. 52:13D-13b. and e., in the Department of the Treasury or any other agency with which such Special Counsel transacts or offers or proposes to transact business, or to any member of the immediate family, as defined by N.J.S.A. 52:13D-13i, of any such officer or employee, or any partnership, firm, or corporation with which they are employed or associated, or in which such officer or employee has an interest within the meaning of N.J.S.A. 52:13D-13g.

2.     The solicitation of any fee, commission, compensation, gift, gratuity or other thing of value by any State officer or employee or special State officer or employee from any Special Counsel shall be reported in writing forthwith by Special Counsel to the Attorney General and the Executive Commission on Ethical Standards.

3.     No Special Counsel may, directly or indirectly, undertake any private business, commercial or entrepreneurial relationship with, whether or not pursuant to employment, contract or other agreement, express or implied, or sell any interest in such Special Counsel to, any State officer or employee or special State officer or employee having any duties or responsibilities in connection with the purchase, acquisition or sale of any property or services by or to any State agency or any instrumentality thereof, or with any person, firm or entity with which he is employed or associated or in which he has an interest within the meaning of N.J.S.A. 52:13D-13g. Any relationships subject to this provision shall be reported in writing forthwith to the Executive Commission on Ethical Standards, which may grant a waiver of this restriction upon application of the State officer or employee or special State officer or employee upon a finding that the present or proposed relationship does not present the potential, actuality or appearance of a conflict of interest.

4.     No Special Counsel shall influence, or attempt to influence or cause to be influenced, any State officer or employee or special State officer or employee in his official capacity in any manner which might tend to impair the objectivity or independence of judgment of said officer or employee.

5.     No Special Counsel shall cause or influence, or attempt to cause or influence, any State officer or employee or special State officer or employee to use, or attempt to use, his official position to secure unwarranted privileges or advantages for the Special Counsel or any other person.

6.    The provisions cited above in paragraph H(I) through H(V) shall not be construed to prohibit a State officer or employee or special State officer or employee from receiving gifts from or contracting with Special Counsel under the same terms and conditions as are offered or made available to members of the general public subject to any guidelines the Executive Commission on Ethical Standards may promulgate.

C. Obligation to Maintain Records

Special Counsel shall maintain all records for products and/or services delivered under the Retainer Agreement for a period of five (5) years from the date of final payment under the Retention Agreement unless otherwise specified in the Retention Agreement. Such records shall be made available to the State, including the New Jersey State Comptroller, for audit and review upon request.

D.    Affirmative Action and Equal Employment Requirements:

Pursuant to N.J.A.C. 17:27-3.5 Special Counsel agrees that:

1.     Special Counsel or its subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Except with respect to affectional or sexual orientation and gender identity or expression, Special Counsel will ensure that equal employment opportunity is afforded to such applicants in recruitment and employment, and that all employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Such equal employment opportunity shall include, but not be 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. Special Counsel 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;

2.     Special Counsel or its subcontractor, where applicable, will, in all solicitations or advertisements for employees placed by or on behalf of Special Counsel, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex;

3.     Special Counsel or subcontractor will send to each labor union with which it has a collective bargaining agreement, if any, a notice, to be provided by the agency contracting officer, advising the labor union of the Special Counsel's commitments under this chapter and shall post copies of the notice in conspicuous places available to employees and applicants for employment; and

4.     Special Counsel or its subcontractor, where applicable, agrees to comply with any regulations promulgated by the Treasurer pursuant to N.J.S.A.10:5-31 et seq., as amended and supplemented from time to time, and codified at N.J.A.C. 17:27-1.1 et seq. 

 

Further, pursuant to N.J.A.C. 17:27-3.7, Special Counsel agrees that:

1.     Special Counsel and its subcontractor, if any, agrees to make good faith efforts to meet targeted county employment goals established in accordance with N.J.A.C. 17:27-5.2.

2.     Special Counsel and its subcontractor, if any, agrees to inform in writing its appropriate recruitment agencies including, but not limited to, employment agencies, placement bureaus, colleges, universities, and labor unions, that it does not discriminate on the basis of age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex, and that it will discontinue the use of any recruitment agency which engages in direct or indirect discriminatory practices.

3.     Special Counsel and its subcontractor, if any, 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.

4.     In conforming with the targeted employment goals, Special Counsel and its subcontractor, if any, agrees to review all procedures relating to transfer, upgrading, downgrading and layoff to ensure that all such actions are taken without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex, consistent with the statutes and court decisions of the State of New Jersey, and applicable Federal law and applicable Federal court decisions.

E. Fee Recovery in Pro Bono Retentions Shall Inure Directly to the State

In retentions to provide legal services on a pro bono basis pursuant to Executive Order 304 (2022), Special Counsel specifically disclaims any right to obtain a fee recovery from opposing parties and agrees that any such recovery shall inure directly to the State.

A.   Chapter 271 Annual Disclosure Statement Filing Requirement

If Special Counsel receives contracts in excess of $50,000 in the aggregate from public entities located in New Jersey during a calendar year, Special Counsel is responsible to file an annual disclosure statement on political contributions with the New Jersey Election Law Enforcement Commission (ELEC), pursuant to N.J.S.A. 19:44A-20.13 (P.L. 2005, c. 271, section 3).  It is Special Counsel’s responsibility to determine if filing is necessary.  Failure to so file can result in the imposition of financing penalties by ELEC.  Additional information about this requirement, and the form to be filed, is available from ELEC at (888)313-3532 or https://www.elec.nj.gov/pay2play/form.html.

B.  Set-off for State Taxes 

Pursuant to N.J.S.A. 54:49-19 et seq. (P.L. 1995, c. 159), and notwithstanding the provision of any other law to the contrary, whenever any taxpayer, partnership or S corporation under contract to provide goods or services or construction projects to the State of New Jersey or its agencies or instrumentalities, including the legislative and judicial branches of State government, is entitled to payment for those goods or services at the same time a taxpayer, partner or shareholder of that entity is indebted for any State tax, the Director of the Division of Taxation shall seek to set off so much of that payment as shall be necessary to satisfy the indebtedness.  The amount set off shall not allow for the deduction of any expense or other deduction which might be attributable to the taxpayer, partner, or shareholder subject to set-off under this Act.
 
The Director of the Division of Taxation shall give notice of the set off to the taxpayer, partner or shareholder and provide an opportunity for a hearing within thirty (30) days of such notice under the procedures for protests established under N.J.S.A. 54:49-19.  No request for conference, protest, or subsequent appeal to the Tax Court from any protest shall stay the collection of the indebtedness.

 

 

C. Diane B. Allen Equal Pay Act

The Diane B. Allen Equal Pay Act, L. 2018, c. 9, requires State contractors providing professional services to the State or a State entity to file information about its employee pay practices with the New Jersey Department of Labor and Workforce Development.  Information about the Act and the reporting requirement is available at: 
https://www.nj.gov/labor/wageandhour/tools-resources/equal-pay/index.shtml

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