Full Text of SB3893 101st General Assembly
SB3893sam001 101ST GENERAL ASSEMBLY | Sen. Ram Villivalam Filed: 5/27/2020
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| 1 | | AMENDMENT TO SENATE BILL 3893
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3893 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Business Enterprise for Minorities, Women, | 5 | | and Persons with
Disabilities Act is amended by changing | 6 | | Section 2 as follows:
| 7 | | (30 ILCS 575/2)
| 8 | | (Section scheduled to be repealed on June 30, 2024) | 9 | | Sec. 2. Definitions.
| 10 | | (A) For the purpose of this Act, the following
terms shall | 11 | | have the following definitions:
| 12 | | (1) "Minority person" shall mean a person who is a | 13 | | citizen or lawful
permanent resident of the United States | 14 | | and who is any of the following:
| 15 | | (a) American Indian or Alaska Native (a person | 16 | | having origins in any of the original peoples of North |
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| 1 | | and South America, including Central America, and who | 2 | | maintains tribal affiliation or community attachment). | 3 | | (b) Asian (a person having origins in any of the | 4 | | original peoples of the Far East, Southeast Asia, or | 5 | | the Indian subcontinent, including, but not limited | 6 | | to, Cambodia, China, India, Japan, Korea, Malaysia, | 7 | | Pakistan, the Philippine Islands, Thailand, and | 8 | | Vietnam). | 9 | | (c) Black or African American (a person having | 10 | | origins in any of the black racial groups of Africa). | 11 | | (d) Hispanic or Latino (a person of Cuban, Mexican, | 12 | | Puerto Rican, South or Central American, or other | 13 | | Spanish culture or origin, regardless of race). | 14 | | (e) Native Hawaiian or Other Pacific Islander (a | 15 | | person having origins in any of the original peoples of | 16 | | Hawaii, Guam, Samoa, or other Pacific Islands).
| 17 | | (f) A person who qualifies as a socially | 18 | | disadvantaged person. | 19 | | (g) A person who qualifies as an economically | 20 | | disadvantaged person. | 21 | | (2) "Woman" shall mean a person who is a citizen or | 22 | | lawful permanent
resident of the United States and who is | 23 | | of the female gender.
| 24 | | (2.05) "Person with a disability" means a person who is | 25 | | a citizen or
lawful resident of the United States and is a | 26 | | person qualifying as a person with a disability under |
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| 1 | | subdivision (2.1) of this subsection (A).
| 2 | | (2.1) "Person with a disability" means a person with a | 3 | | severe physical or mental disability that:
| 4 | | (a) results from:
| 5 | | amputation,
| 6 | | arthritis,
| 7 | | autism,
| 8 | | blindness,
| 9 | | burn injury,
| 10 | | cancer,
| 11 | | cerebral palsy,
| 12 | | Crohn's disease, | 13 | | cystic fibrosis,
| 14 | | deafness,
| 15 | | head injury,
| 16 | | heart disease,
| 17 | | hemiplegia,
| 18 | | hemophilia,
| 19 | | respiratory or pulmonary dysfunction,
| 20 | | an intellectual disability,
| 21 | | mental illness,
| 22 | | multiple sclerosis,
| 23 | | muscular dystrophy,
| 24 | | musculoskeletal disorders,
| 25 | | neurological disorders, including stroke and | 26 | | epilepsy,
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| 1 | | paraplegia,
| 2 | | quadriplegia and other spinal cord conditions,
| 3 | | sickle cell anemia,
| 4 | | ulcerative colitis, | 5 | | specific learning disabilities, or
| 6 | | end stage renal failure disease; and
| 7 | | (b) substantially limits one or more of the | 8 | | person's major life activities.
| 9 | | Another disability or combination of disabilities may | 10 | | also be considered
as a severe disability for the purposes | 11 | | of item (a) of this
subdivision (2.1) if it is determined | 12 | | by an evaluation of
rehabilitation potential to
cause a | 13 | | comparable degree of substantial functional limitation | 14 | | similar to
the specific list of disabilities listed in item | 15 | | (a) of this
subdivision (2.1).
| 16 | | (3) "Minority-owned business" means a business which | 17 | | is at least
51% owned by one or more minority persons, or | 18 | | in the case of a
corporation, at least 51% of the stock in | 19 | | which is owned by one or
more minority persons; and the | 20 | | management and daily business operations of
which are | 21 | | controlled by one or more of the minority individuals who | 22 | | own it.
| 23 | | (4) "Women-owned business" means a business which is at | 24 | | least
51% owned by one or more women, or, in the case of a | 25 | | corporation, at
least 51% of the stock in which is owned by | 26 | | one or more women; and the
management and daily business |
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| 1 | | operations of which are controlled by one or
more of the | 2 | | women who own it.
| 3 | | (4.1) "Business owned by a person with a disability" | 4 | | means a business
that is at least 51% owned by one or more | 5 | | persons with a disability
and the management and daily | 6 | | business operations of which
are controlled by one or more | 7 | | of the persons with disabilities who own it. A
| 8 | | not-for-profit agency for persons with disabilities that | 9 | | is exempt from
taxation under Section 501 of the Internal | 10 | | Revenue Code of 1986 is also
considered a "business owned | 11 | | by a person with a disability".
| 12 | | (4.2) "Council" means the Business Enterprise Council | 13 | | for Minorities, Women, and Persons with Disabilities | 14 | | created under Section 5 of this Act.
| 15 | | (5) "State contracts" means all contracts entered into | 16 | | by the State, any agency or department thereof, or any | 17 | | public institution of higher education, including | 18 | | community college districts, regardless of the source of | 19 | | the funds with which the contracts are paid, which are not | 20 | | subject to federal reimbursement. "State contracts" does | 21 | | not include contracts awarded by a retirement system, | 22 | | pension fund, or investment board subject to Section | 23 | | 1-109.1 of the Illinois Pension Code. This definition shall | 24 | | control over any existing definition under this Act or | 25 | | applicable administrative rule.
| 26 | | "State construction contracts" means all State |
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| 1 | | contracts entered
into by a State agency or public | 2 | | institution of higher education for the repair, | 3 | | remodeling,
renovation or
construction of a building or | 4 | | structure, or for the construction or
maintenance of a | 5 | | highway defined in Article 2 of the Illinois Highway
Code.
| 6 | | (6) "State agencies" shall mean all departments, | 7 | | officers, boards,
commissions, institutions and bodies | 8 | | politic and corporate of the State,
but does not include | 9 | | the Board of Trustees of the University of Illinois,
the | 10 | | Board of Trustees of Southern Illinois University,
the | 11 | | Board of Trustees
of Chicago State University, the Board of | 12 | | Trustees of Eastern Illinois
University, the Board of | 13 | | Trustees of Governors State University, the Board of
| 14 | | Trustees of Illinois State University, the Board of | 15 | | Trustees of Northeastern
Illinois
University, the Board of | 16 | | Trustees of Northern Illinois University, the Board of
| 17 | | Trustees of Western Illinois University,
municipalities or | 18 | | other local governmental units, or other State | 19 | | constitutional
officers.
| 20 | | (7) "Public institutions of higher education" means | 21 | | the University of Illinois, Southern Illinois University, | 22 | | Chicago State University, Eastern Illinois University, | 23 | | Governors State University, Illinois State University, | 24 | | Northeastern Illinois University, Northern Illinois | 25 | | University, Western Illinois University, the public | 26 | | community colleges of the State, and any other public |
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| 1 | | universities, colleges, and community colleges now or | 2 | | hereafter established or authorized by the General | 3 | | Assembly.
| 4 | | (8) "Certification" means a determination made by the | 5 | | Council
or by one delegated authority from the Council to | 6 | | make certifications, or by
a State agency with statutory | 7 | | authority to make such a certification, that a
business | 8 | | entity is a business owned by a
minority, woman, or person | 9 | | with a disability for whatever
purpose. A business owned | 10 | | and controlled by women shall be certified as a | 11 | | "woman-owned business". A business owned and controlled by | 12 | | women who are also minorities shall be certified as both a | 13 | | "women-owned business" and a "minority-owned business".
| 14 | | (9) "Control" means the exclusive or ultimate and sole | 15 | | control of the
business including, but not limited to, | 16 | | capital investment and all other
financial matters, | 17 | | property, acquisitions, contract negotiations, legal
| 18 | | matters, officer-director-employee selection and | 19 | | comprehensive hiring,
operating responsibilities, | 20 | | cost-control matters, income and dividend
matters, | 21 | | financial transactions and rights of other shareholders or | 22 | | joint
partners. Control shall be real, substantial and | 23 | | continuing, not pro forma.
Control shall include the power | 24 | | to direct or cause the direction of the
management and | 25 | | policies of the business and to make the day-to-day as well
| 26 | | as major decisions in matters of policy, management and |
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| 1 | | operations.
Control shall be exemplified by possessing the | 2 | | requisite knowledge and
expertise to run the particular | 3 | | business and control shall not include
simple majority or | 4 | | absentee ownership.
| 5 | | (10) "Business" means a business that has annual gross | 6 | | sales of less than $75,000,000 as evidenced by the federal | 7 | | income tax return of the business. A firm with gross sales | 8 | | in excess of this cap may apply to the Council for | 9 | | certification for a particular contract if the firm can | 10 | | demonstrate that the contract would have significant | 11 | | impact on businesses owned by minorities, women, or persons | 12 | | with disabilities as suppliers or subcontractors or in | 13 | | employment of minorities, women, or persons with | 14 | | disabilities.
| 15 | | (11) "Utilization plan" means a form and additional | 16 | | documentations included in all bids or proposals that | 17 | | demonstrates a vendor's proposed utilization of vendors | 18 | | certified by the Business Enterprise Program to meet the | 19 | | targeted goal. The utilization plan shall demonstrate that | 20 | | the Vendor has either: (1) met the entire contract goal or | 21 | | (2) requested a full or partial waiver and made good faith | 22 | | efforts towards meeting the goal. | 23 | | (12) "Business Enterprise Program" means the Business | 24 | | Enterprise Program of the Department of Central Management | 25 | | Services. | 26 | | (13) "Socially disadvantaged person" means a person |
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| 1 | | individually certified by the Council as having been | 2 | | subjected to racial or ethnic prejudice or cultural bias | 3 | | within American society because of his or her identity as a | 4 | | member of a group and without regard to his or her | 5 | | individual qualities. | 6 | | (a) Social disadvantage must include the | 7 | | following: | 8 | | (i) at least one objective distinguishing | 9 | | feature that has contributed to social | 10 | | disadvantage, such as race, ethnic origin, gender, | 11 | | disability, long-term residence in an environment | 12 | | isolated from the mainstream of American society, | 13 | | or other similar causes not common to individuals | 14 | | who are not socially disadvantaged; | 15 | | (ii) personal experiences of substantial and | 16 | | chronic social disadvantage in American society; | 17 | | and | 18 | | (iii) negative impact on entry into or | 19 | | advancement in the business world because of the | 20 | | disadvantage. The Council shall consider any | 21 | | relevant evidence in assessing this element, and | 22 | | in every case, as provided under subparagraph (b), | 23 | | the Council shall consider education, employment, | 24 | | and business history, when applicable, to | 25 | | determine whether the totality of circumstances | 26 | | shows disadvantage in entering into or advancing |
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| 1 | | in the business world. | 2 | | (b) In determining whether a person qualifies as a | 3 | | socially disadvantaged person, the Council shall | 4 | | further consider the following: | 5 | | (i) Education. Such factors as denial of equal | 6 | | access to institutions of higher education and | 7 | | vocational training, exclusion from social and | 8 | | professional association with students or | 9 | | teachers, denial of educational honors rightfully | 10 | | earned, and social patterns or pressures which | 11 | | discouraged the individual from pursuing a | 12 | | professional or business education. | 13 | | (ii) Employment. Such factors as unequal | 14 | | treatment in hiring, promotions and other aspects | 15 | | of professional advancement, pay and fringe | 16 | | benefits, and other terms and conditions of | 17 | | employment; retaliatory or discriminatory behavior | 18 | | by an employer or labor union; and social patterns | 19 | | or pressures which have channeled the individual | 20 | | into non-professional or non-business fields. | 21 | | (iii) Business history. Such factors as | 22 | | unequal access to credit or capital, acquisition | 23 | | of credit or capital under commercially | 24 | | unfavorable circumstances, unequal treatment in | 25 | | opportunities for government contracts or other | 26 | | work, unequal treatment by potential customers and |
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| 1 | | business associates, and exclusion from business | 2 | | or professional organizations. | 3 | | (14) "Economically disadvantaged person" means a | 4 | | socially
disadvantaged person whose ability to compete in | 5 | | the free enterprise system has been impaired due to | 6 | | diminished capital and credit opportunities as compared to | 7 | | others in the same or similar line of business who are not | 8 | | socially disadvantaged. | 9 | | (a) Each individual claiming economic disadvantage | 10 | | must describe the conditions which are the basis for | 11 | | the claim in a narrative statement, and must submit | 12 | | personal financial information. If that individual is | 13 | | married, he or she must also submit separate financial | 14 | | information for his or her spouse,
unless the | 15 | | individual and the spouse are legally separated. | 16 | | (b) In considering diminished capital and credit | 17 | | opportunities, the Council shall examine factors | 18 | | relating to the personal financial condition of any | 19 | | individual claiming disadvantaged status, including | 20 | | personal income for the preceding 2 years (including | 21 | | bonuses and the value of company stock given in lieu of | 22 | | cash), personal net worth, and the fair market value of | 23 | | all assets, whether encumbered or not. The Council | 24 | | shall also consider the financial condition of the | 25 | | applicant compared to the financial profiles of small | 26 | | businesses in the same primary industry |
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| 1 | | classification, or, if not available, in similar lines | 2 | | of business, which are not owned and controlled by | 3 | | socially and economically
disadvantaged persons in | 4 | | evaluating the individual's access to credit and | 5 | | capital. The financial profiles that the Council will | 6 | | compare shall include total assets, net sales, pre-tax | 7 | | profit, sales or working capital ratio, and net worth. | 8 | | (c) Asset transfers within 2 years. | 9 | | (i) Except as set forth in item (ii) of this | 10 | | subparagraph (c), the Council shall attribute to | 11 | | an individual claiming disadvantaged status any | 12 | | assets which that individual has transferred to an | 13 | | immediate family member, or to a trust, a | 14 | | beneficiary of which is an immediate family | 15 | | member, for less than fair market value, within 2 | 16 | | years prior to a concern's application for | 17 | | participation in the Business Enterprise Program, | 18 | | unless the individual claiming disadvantaged | 19 | | status can demonstrate that the transfer is to or | 20 | | on behalf of an immediate family member for that | 21 | | individual's education, medical expenses, or some | 22 | | other form of essential support. | 23 | | (ii) The Council shall not attribute to an | 24 | | individual claiming disadvantaged status any | 25 | | assets transferred by that individual to an | 26 | | immediate family member that are consistent with |
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| 1 | | the customary recognition of special occasions, | 2 | | such as birthdays, graduations, anniversaries, and | 3 | | retirements. | 4 | | (iii) In determining an individual's access to | 5 | | capital and credit, the Council may consider any | 6 | | assets that the individual transferred within the | 7 | | 2-year period described by item (i) of this | 8 | | subparagraph (c) that are not considered in | 9 | | evaluating the individual's assets and net worth, | 10 | | such as transfers to charities. | 11 | | (B) When a business is owned at least 51% by any | 12 | | combination of
minority persons, women, or persons with | 13 | | disabilities,
even though none of the 3 classes alone holds at | 14 | | least a 51% interest, the
ownership
requirement for purposes of | 15 | | this Act is considered to be met. The
certification category | 16 | | for the business is that of the class holding the
largest | 17 | | ownership
interest in the business. If 2 or more classes have | 18 | | equal ownership interests,
the certification category shall be | 19 | | determined by
the business.
| 20 | | (Source: P.A. 100-391, eff. 8-25-17; 101-601, eff. 1-1-20.)
| 21 | | Section 99. Effective date. This Act takes effect January | 22 | | 1, 2022.".
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