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State of New Jersey
Executive Order #84

Governor James J. Florio

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 State of New Jersey, 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 State of New Jersey 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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