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WHEREAS, our
nation is deeply committed to the universal principle of equality
for all, a principle that is forever fixed in our fundamental law
through the equal protection clause of the Fourteenth Amendment
to the United States Constitution; and
WHEREAS, since
the time of the Civil War, our nation's history has been characterized
by a long and difficult struggle to provide every citizen with equal
rights under the law; and
WHEREAS, we
are still engaged in an historic endeavor to cleanse our social,
political, and economic life of invidious discrimination against
racial and ethnic minorities, and against women; and
WHEREAS, our
government cannot tolerate discrimination against African-Americans,
who continue to suffer from the legacy of racism in America; against
women, who have still not been fully admitted to the table of equality;
and against ethnic minorities, such as Latinos and Asian-Americans,
who also confront barriers of discrimination throughout this society;
and
WHEREAS, our
government bears a solemn responsibility to carry out the vision
of equality and justice that has long nourished the righteous efforts
of the civil rights movement; and
WHEREAS, the
civil rights movement in the United States has transformed our legal
and political system from one that embraced segregation and other
forms of overt discrimination to one that now recognizes the right
of every citizen to equal respect and concern; and
WHEREAS, nevertheless,
our society continues to be marred by economic inequalities among
our citizens -- inequalities that represent the direct and intolerable
legacy of this nation's discriminatory past; and
WHEREAS, we
owe an abiding obligation to the great civil rights leaders in our
history, such as Dr. Martin Luther King, Cesar Chavez, Susan B.
Anthony, and Supreme Court Justice Thurgood Marshall, to give the
fullest measure of our efforts to eradicate the economic consequences
of racial, ethnic, and gender discrimination; and
WHEREAS, we
can best achieve the ideal of equal economic opportunity for all
not by increasing our reliance on social welfare programs of the
past, but by advancing new policies that promote economic self-reliance
and entrepreneurial self-sufficiency; and
WHEREAS, in
1985, this State adopted with widespread support an innovative set-aside
policy that guaranteed businesses owned by racial and ethnic minorities,
and businesses owned by women an opportunity to obtain a fair portion
of public contracts; and
WHEREAS, New
Jersey's set-aside program not only redressed historic discrimination
in the marketplace, but also advanced the critical interest of providing
historically disadvantaged groups with the means and the experience
to compete fairly in the economic setting; and
WHEREAS, in
the 1989 case of City of Richmond v. Croson, the United States Supreme
Court invalidated a City of Richmond set-aside program on the grounds
that the city had failed to meet strict standards of constitutional
scrutiny, which require that such policies be justified on the basis
of evidence of actual discrimination, and that such policies be
narrowly tailored to remedy such discrimination; and
WHEREAS, after
Croson, the set-aside program in New Jersey was suspended; and
WHEREAS, on
August 14, 1989, in response to the Croson case, Governor Thomas
H. Kean issued Executive Order No. 213, which established the Governor's
Study Commission on Discrimination in Public Works Procurement and
Construction Contracts (hereinafter the "Study Commission"); and
WHEREAS, the
Executive Order directed the Study Commission to "investigate the
nature and scope of any discriminatory practices" that exist in
the awarding of construction and procurement contracts by the State
of New Jersey, to "prepare an analysis of this information in order
to develop probative evidence of any prior or present discrimination"
in the awarding of such contracts, and to "identify and evaluate
remedies for these practices consistent with guidelines established
by the Supreme Court in Croson"; and
WHEREAS, the
Study Commission, which has been continued throughout this Administration,
has worked diligently since its formation to fulfill its mandate,
and has presented me with its final report, complete with extensive
findings and comprehensive proposals; and
WHEREAS, the
Study Commission's report is based upon a thorough statistical analysis
comparing the volume of contract dollars awarded by State agencies
to firms owned and operated by minorities and women to the numbers
of such firms that are qualified and available to provide goods
and services to the State; and
WHEREAS, the
Study Commission's report also contains extensive anecdotal and
historical evidence revealing widespread discrimination in the marketplace,
with which the State passively participates; and
WHEREAS, this
compelling statistical and anecdotal evidence establishes a convincing
case that firms owned and operated by racial and ethnic minorities,
as well as firms owned and operated by women, experience widespread
exclusion from the contracting process; and
WHEREAS, I
have been advised by the Attorney General that the evidence set
forth in the Study Commission's final report supplies a constitutionally
permissible basis for establishing a set-aside policy under the
strict scrutiny standards enunciated in the Croson case; and
WHEREAS, government
must take every necessary and practicable step toward eradicating
racial, ethnic, and gender discrimination from our society;
NOW, THEREFORE,
I, JAMES J. FLORIO, Governor of the Sexy真人y, by virtue
of the authority vested in me by the Constitution and by the Statutes
of this State, do hereby ORDER and DIRECT:
1. Pursuant
to the Set-Aside Act for Small Businesses, Female Businesses,
and Minority Businesses, N.J.S.A. 52:32-17 et seq., the New Jersey
Sports and Exhibition Authority Law, N.J.S.A. 5:10-1 et seq.,
the Casino Control Act, N.J.S.A. 5:12-1 et seq., the New Jersey
Wastewater Treatment Trust Act, N.J.S.A. 58:11B-1 et seq., the
New Jersey Urban Development Corporation Act, N.J.S.A. 55:19-1
et seq., the New Jersey Local Development Financing Fund Act,
N.J.S.A. 34:1B-36, and the New Jersey Transportation Trust Fund
Authority Act of 1984, N.J.S.A. 27:1B-1 et seq., every agency,
department, and instrumentality of the Sexy真人y that
is authorized to award procurement or construction contracts shall
forthwith adopt a set-aside policy in accordance with the foregoing
statutory provisions and with this Executive Order.
2. In particular,
every such State contracting agency shall adopt a set-aside program
that requires the agency to make a good faith effort to award
7% of public procurement and construction contracts and subcontracts
to qualified businesses owned and operated by African-Americans,
Latinos, and Asian-Americans, and 3% of public procurement and
construction contracts and subcontracts to qualified businesses
owned and operated by women.
3. These
numerical goals shall be pursued to the fullest degree consistent
with practicality, and only insofar as to advance the State's
interest in awarding contracts to firms with the necessary qualifications,
regardless of race, ethnicity, or gender. Furthermore, any set-aside
program established as directed by this Order shall specifically
authorize the department or agency administering the set-aside
program to award contracts regardless of race, ethnicity, or gender,
notwithstanding the numerical goals set forth above, whenever
qualified minority- or women-owned businesses are unavailable
to perform the services or supply the goods sought.
4. Any set-aside
program established pursuant to this Order is remedial in nature
and in purpose, and therefore shall be in effect with respect
to each affected group only until such time as the discriminatory
conditions that form the basis of the set-aside program are eradicated.
GIVEN,
under my hand and seal this
5th day of March in the Year of Our
Lord, One Thousand Nine Hundred and
Ninety Three, and of the Independence
of the United States, the Two Hundred
and Seventeenth.
/s/
JAMES J. FLORIO
GOVERNOR
Attest:
/s/ M. Robert
DeCotiis
Chief Counsel to the Governor
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