NJ bidders may need to submit a gender equity repo

Companies that bid on New Jersey state contracts would have to ensure their gender-based pay equity and job equality standards under a Democrat-backed bill that passed the state Assembly Thursday.

Assembly Bill 883 — as a part of a package of Bills aimed at combating poverty and rebuilding the state’s middle class — would require every government contract bidder to submit a gender equity report to the Division of Purchase and Property in the State Department of the Treasury.

The report would measure the extent to which men and women employees perform the same or comparable work at different rates of pay and the extent to which job titles may be predominately held by members of the same gender, according to the bill’s language.

Introduced in January, the proposed law was previously reviewed by the Assembly State and Local Government Committee and received 46-17-9 approval Thursday.

Under A883, the purchase and property division would develop a system for bidders to measure and remedy gender-based pay gaps and gender-based segregation of job titles, along with uniform reporting instructions and criteria. Bidders would also get technical assistance with the reporting, the bill said.

Bidders for emergency contracts would be exempt from the law, as would contracts paid in whole or in part by federal funds if the application of the rules would impact eligibility to receive the funds, the bill said.

Muoio and Lampitt were joined in their sponsorship by Gabriela M. Mosquera, D- Camden, John F. McKeon, D-Morris, and Mila M. Jasey, D-Essex. Muoio, Lampitt and Mosquera introduced the legislation during the last session in June, but it stalled in the Assembly State and Local Government Committee.

The proposal has drawn criticism from the New Jersey Institute for Civil Justice, which described the legislation as a “complex and intrusive legislative scheme.”

The group feels the statistics would defeat the purpose of market wages, which they say provide a measure of a particular job’s worth and encourage people to take jobs for which demand exceeds supply. The reporting requirement itself would create a “treasure trove” of data that could leave employers vulnerable to lawsuits, the group said.

The group further contends that workplace gender equality statistics reflect disparities. Education, profession, experience or hours worked are among the “countless individual, voluntary choices that add up to statistical disparities in the aggregate,” the group said.

“The reality is that the existing anti-discrimination legal framework reflects a strong social consensus against discrimination based on sex,” the NJICJ said in a statement Friday. “The attempt to further regulate employee compensation and expose employers to litigation will succeed primarily in distorting labor markets and increasing the cost and risk of hiring new employees.

Lampitt, who authored legislation requiring employers to post wage discrimination notices in the workplace, countered that the current anti-discrimination statutes aren’t focused enough on women.

“If discrimination [laws are] already on the books, then why is it still happening?” she said.

Lampitt also addressed the statistics that would be provided, noting that citizens can find out information about public entities through the state’s Open Public Records Act. She asked why the private sector’s statistics shouldn’t be publicly available as well.


Practical Recommendations for Bidders: how to protect your information.

Government contractors should be aware that the information compiled in their proposals has grown increasingly more valuable in this time of shrinking budgets and shrinking contracting opportunities. Fortunately, often customer lists, sensitive marketing information, unpatented inventions, software, formulas and recipes, techniques, processes, and other business information that provides a company with a business edge are protected by federal and in 47 states, respective state laws . Those laws are tools contractors can use to protect their trade secrets.

Every day, hundreds of government contractors submit proposals in response to various government solicitations — the culmination of a process that may involve months, if not years, of research and planning, the expenditure of significant amounts of money, and the participation of multiple individuals.  One of the risks of such a process is that a former employee may misappropriate a contractor’s proposal information, either in whole or in part by, for example, refusing to return certain data when leaving the company, distributing such information without the proper permissions to her new employer, or subsequently using such information in a competitor’s proposal.

In such instances, the contractor’s options for legal recourse usually depend upon whether the contractor’s proposal qualifies as a “trade secret”. Under the Federal Uniform Trade Secrets Act, it likely does and, thus, the contractor may sue the former employee and his new employer for misappropriation of a trade secret.

New Jersey has a fairly representative state law that prohibits use of trade secrets by a company that “has reason to know” that the material constitutes a trade secret. This is known as constructive knowledge (versus actual knowledge). In other words, even if a New Jersey company was unaware it possessed purloined trade secrets; it can still be prosecuted under New Jersey law if it should have known.  In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. A victim of trade secret theft can also seek financial compensation that measures the actual loss attributed to the theft or the profits (or “unjust enrichment”) acquired by the trade secret thief. In egregious situations, a New Jersey court can award punitive damages up to twice the amount of any award.

Both the federal law and most states define “trade secret” as:

[I]nformation, including a formula, pattern, compilation, program, device, method, technique or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Indeed, courts have repeatedly recognized that compilations of business information comprised mostly of publicly available information and limited proprietary information nonetheless qualify for trade secret protection.

Proposals are compilations of Information. Because the compilation of information may qualify as a trade secret, the key for a government contractor is demonstrating that its proposal constitutes a compilation of information within the context of the legal definition of, and the courts’ interpretations of, trade secret.

Practical Recommendations:

  • Always mark proposal documents with restrictive legends;
  • Impose restrictions on subcontractors’ or consultants’ use of trade secrets;
  • Require each employee to execute a nondisclosure agreement; and
  • Carefully check to ensure former employees do not make unauthorized disclosures of trade secrets, including proposal information.

Employed as senior director of Duane Morris Government Strategies, LLC, based in Trenton, New Jersey, Martin Milita advises clients on private public partnerships and all forms of government procurement. Prior to joining Duane Morris Government Strategies, LLC, in 2012, he served as managing partner of Holman Public Affairs, LLC, which he cofounded in 2001.


Pennsylvania Seeks Private Partner to Build CNG Stations

The Pennsylvania Department of Transportation said Monday it is seeking a private partner to build compressed natural gas fueling stations at public transit agencies statewide, promising a new technology that would replace conventional fuel with an alternative considered safer and less polluting.

The proposal, approved by the state’s recently formed public-private partnership board, calls for building stations at 37 public transit facilities, which would also provide public access to privately owned CNG-compatible cars. The partner would design, build, finance and operate the stations.

Pennsylvania Transportation Secretary Barry Schoch chairs the public-private partnership board.

PennDOT spokesman Rich Kirkpatrick said the estimated cost of the project hasn’t been determined, saying the state is seeking bids to get a better handle on how much the private sector is willing to invest. The vendor would also choose the locations, though Kirkpatrick said the state wants the stations to be as dispersed as possible.

PennDOT plans to release a request for qualifications to solicit interested parties and expects to invite proposals in early 2015. The state said a project partner could be selected in next summer.

CNG is an alternative to conventional gasoline, consisting mostly of methane drawn from natural gas wells. It emits fewer gases than other fuels and is considered safer in the event of a spill, though it also requires more room for storage compared with ordinary vehicles.

There are about 1,200 public and private CNG stations in the U.S., compared to 120,000 retail gasoline stations, according to an industry group Natural Gas Alliance. The number is expected to increase as more cars convert to natural gas technology.

As part of the public-private partnership, PennDOT will enter into a CNG supply contract with the partner and purchase agreements with each of its transit agencies. PennDOT said it would receive a portion of the fuel sales revenue and return the money to transit agencies to aid capital projects.

Pennsylvania’s seven-member public-private partnership board was created in 2012 under legislation signed by Gov. Tom Corbett designed to seek private partners on transportation projects. If the board determines a state operation would be more efficiently performed by a private business, the department can advertise a request for proposals and contract with a company to partly or fully deliver the project.

Employed as senior director of Duane Morris Government Strategies, LLC, based in Trenton, New Jersey, Martin Milita advises clients on private public partnerships and all forms of government procurement. Prior to joining Duane Morris Government Strategies, LLC, in 2012, he served as managing partner of Holman Public Affairs, LLC, which he cofounded in 2001.


9 tips to help your small business find government contract opportunities that make sense.

As a Senior Director with Duane Morris Government Strategies I am often asked by SBE, DBE and MBE/WBE clients how to find government contract opportunities that make sense.

Despite recent budget cuts, the U.S. federal marketplace remains a lucrative opportunity for small businesses. The federal government typically spends approximately a half a billion plus in contracts every year and the law requires that 23 percent of these dollars be awarded to small businesses.

Here are 9 tips if you are a SBE, DBE or MBE/WBE to help you find government contract opportunities that make sense.

  1. Familiarize yourself with the rules

Even before a contract opportunity comes you must be prepared. Familiarize yourself with what’s involved with selling to the federal government. It’s quite different than the private sector with much longer lead times and strict bidding and product requirements.

These resources can help:

  • Learn How the Federal Government Buys from Small Businesses
  • SBA’s guide to Getting Started in Government Contracting
  • Government Contracting 101 – These three on-demand, self-paced courses are part of SBA’s Government Contracting Classroom and are a quick way to get to know the landscape.
  1. Understand what the government is buying

Every agency and department has unique goals. Identifying these can help you target a niche or opportunity for your products or services. The government offers potential contractors something that no other sector does – an insight into its budgetary priorities- what the government intends to buy and how much it has to spend is all in the public domain. These budgets offer sufficient context for savvy small businesses to identify opportunities and focus their contracting sales and marketing strategy. Each federal agency or department budget is listed on the Office of Management and Budget (OMB) website.

  1. Zero in on agencies that aren’t meeting their small business goals

Each year the SBA negotiates formal goals with individual agencies to ensure that small businesses get their fair share of federal contracts. Frankly, for several consecutive years, most agencies have fallen short of their targets. Could there be an opportunity here for your business to lend its services and goods to help these agencies hit their targets next year? The Federal Procurement Data System posts scorecards for each agency that can help you make that determination.

  1. Research existing and upcoming opportunities

Once you identify agency initiatives that align with your business offerings, start tracking contract opportunities and solicitations that align with these on sites such as USAspending.gov and FedBizOpps.gov. Market intelligence firms like ONVIA (link is external) or Immix Group (link is external) also have useful blogs (link is external) that highlight upcoming opportunities as well as contracting tips).

  1. Show up

Make a point of attending agency- or industry-specific government events. These are hosted by the private sector but attract the procurement community, influencers and industry experts. Useful sites to explore for upcoming events include GovWin((link is external), GovEvents, and if you’re interested in the lucrative IT government market Digital Government Institute (link is external), ACT-IAC (link is external) and GovMark Council. All are worth checking out.

  1. Find a partner and advocate in the Small and Disadvantaged Business Utilization (“OSDBU”)

Another excellent way of getting in front of government buyers is to take advantage of the Office of the OSDBU outreach events and expos. These serve to connect business owners to government buyers. These events also offer guidance on how small businesses can break into the contracting market and take advantage of programs like the 8(a) Business Development Program—a business development tool, which helps thousands of aspiring entrepreneurs gain a foothold in contracting with financial assistance and teaming opportunities.

  1. Get help from SBA procurement reps

Another vital government resource is SBA’s local Procurement Center Representatives (PCRs). PCRs provide services that include training, counseling and business matchmaking events. Find the PCR in your area.

  1. Don’t go it alone – partner with a government mentor

Anyone embarking on new ventures can benefit from a mentor. The government operates two notable mentor programs that can help you get access to contracts. First is the GSA Mentor-Protégé Program. Open to qualified small businesses, this program helps connect small firms with more experienced ones. The program’s objective is motivating larger companies to lend their knowledge to smaller, less experienced businesses.

Another option is the SBA Mentor-Protégé Program. Open to socially and economically disadvantaged businesses that qualify for SBA’s 8(a) program, this program pairs you with a mentor who has had success in federal contracting.

  1. Additional Resources

For more tips and insights on breaking into and growing your business in the government contracting marketplace, check out these resources:

  • SBA Contracting Guide – A deep dive into getting started, available resources and more.
  • Contracting Blogs – Learn about the latest resources and programs, and get tips on how to succeed.
  • SBA Government Contracting Classroom – Self-paced online courses on all aspects of the contracting process.

SBA Audit Finds Agencies Exaggerating Success of Small Business Contracts

The Small Business Administration’s inspector general’s office released a report this week in which it said that its review of federal agencies identified $400 million in contracts given to ineligible firms that the agencies nevertheless counted when measuring their success at working with small businesses facing socio-economic disadvantages. The report’s findings mean that flawed numbers were reported to Congress and the White House, the latter of which claimed for the first time last year that the government had met its small-business contracting goals. The federal government is required under law to attempt to award 23 percent of its contracts to small businesses, three percent of which is intended for business in economically struggling areas referred to as Historically Underutilized Business (HUB) Zones and five percent of which is intended for businesses facing social and economic disadvantages. The audit identified $208 million in contracts that federal agencies incorrectly claimed was awarded to business in HUB Zones and $219 million in contracts that federal agencies incorrectly claimed was awarded to disadvantaged businesses.

Martin Milita is a Senior Director with Duane Morris Government Strategies were he advocates on behalf of SBE, DBE AND MBE/WBE clients for the procurement of public contracts and offers assistance when clients deal with the complex issues that can arise when working with the  Federal or New Jersey legislature and other national and state offices and agencies.