HB3606eng 103RD GENERAL ASSEMBLY

  
  
  

 


 
HB3606 EngrossedLRB103 25805 DTM 52156 b

1    AN ACT concerning finance.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Business Enterprise for Minorities, Women,
5and Persons with Disabilities Act is amended by changing
6Sections 2,5, 7, and 8 and by adding Section 3.5 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8    (Section scheduled to be repealed on June 30, 2024)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
11have 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
17        and South America, including Central America, and who
18        maintains tribal affiliation or community attachment).
19            (b) Asian (a person having origins in any of the
20        original peoples of the Far East, Southeast Asia, or
21        the Indian subcontinent, including, but not limited
22        to, Cambodia, China, India, Japan, Korea, Malaysia,
23        Pakistan, the Philippine Islands, Thailand, and

 

 

HB3606 Engrossed- 2 -LRB103 25805 DTM 52156 b

1        Vietnam).
2            (c) Black or African American (a person having
3        origins in any of the black racial groups of Africa).
4            (d) Hispanic or Latino (a person of Cuban,
5        Mexican, Puerto Rican, South or Central American, or
6        other Spanish culture or origin, regardless of race).
7            (e) Native Hawaiian or Other Pacific Islander (a
8        person having origins in any of the original peoples
9        of Hawaii, Guam, Samoa, or other Pacific Islands).
10        (2) "Woman" shall mean a person who is a citizen or
11    lawful permanent resident of the United States and who is
12    of the female gender.
13        (2.05) "Person with a disability" means a person who
14    is a citizen or lawful resident of the United States and is
15    a person qualifying as a person with a disability under
16    subdivision (2.1) of this subsection (A).
17        (2.1) "Person with a disability" means a person with a
18    severe physical or mental disability that:
19            (a) results from:
20            amputation,
21            arthritis,
22            autism,
23            blindness,
24            burn injury,
25            cancer,
26            cerebral palsy,

 

 

HB3606 Engrossed- 3 -LRB103 25805 DTM 52156 b

1            Crohn's disease,
2            cystic fibrosis,
3            deafness,
4            head injury,
5            heart disease,
6            hemiplegia,
7            hemophilia,
8            respiratory or pulmonary dysfunction,
9            an intellectual disability,
10            mental illness,
11            multiple sclerosis,
12            muscular dystrophy,
13            musculoskeletal disorders,
14            neurological disorders, including stroke and
15        epilepsy,
16            paraplegia,
17            quadriplegia and other spinal cord conditions,
18            sickle cell anemia,
19            ulcerative colitis,
20            specific learning disabilities, or
21            end stage renal failure disease; and
22            (b) substantially limits one or more of the
23        person's major life activities.
24        Another disability or combination of disabilities may
25    also be considered as a severe disability for the purposes
26    of item (a) of this subdivision (2.1) if it is determined

 

 

HB3606 Engrossed- 4 -LRB103 25805 DTM 52156 b

1    by an evaluation of rehabilitation potential to cause a
2    comparable degree of substantial functional limitation
3    similar to the specific list of disabilities listed in
4    item (a) of this subdivision (2.1).
5        (3) "Minority-owned business" means a business which
6    is at least 51% owned by one or more minority persons, or
7    in the case of a corporation, at least 51% of the stock in
8    which is owned by one or more minority persons; and the
9    management and daily business operations of which are
10    controlled by one or more of the minority individuals who
11    own it.
12        (4) "Women-owned business" means a business which is
13    at least 51% owned by one or more women, or, in the case of
14    a corporation, at least 51% of the stock in which is owned
15    by one or more women; and the management and daily
16    business operations of which are controlled by one or more
17    of the women who own it.
18        (4.1) "Business owned by a person with a disability"
19    means a business that is at least 51% owned by one or more
20    persons with a disability and the management and daily
21    business operations of which are controlled by one or more
22    of the persons with disabilities who own it. A
23    not-for-profit agency for persons with disabilities that
24    is exempt from taxation under Section 501 of the Internal
25    Revenue Code of 1986 is also considered a "business owned
26    by a person with a disability".

 

 

HB3606 Engrossed- 5 -LRB103 25805 DTM 52156 b

1        (4.2) "Council" means the Business Enterprise Council
2    for Minorities, Women, and Persons with Disabilities
3    created under Section 5 of this Act.
4        (4.3) "Commission" means, unless the context clearly
5    indicates otherwise, the Commission on Equity and
6    Inclusion created under the Commission on Equity and
7    Inclusion Act.
8        (4.4) "Certified vendor" means a minority-owned
9    business, women-owned business, or business owned by a
10    person with a disability that is certified by the Business
11    Enterprise Program.
12        (4.5) "Subcontractor" means a person or entity that
13    enters into a contractual agreement with a prime vendor to
14    provide, on behalf of the prime vendor, goods, services,
15    real property, or remuneration or other monetary
16    consideration that is the subject of the primary State
17    contract. "Subcontractor" includes a sublessee under a
18    State contract.
19        (4.6) "Prime vendor" means any person or entity having
20    a contract that is subject to this Act with a State agency
21    or public institution of higher education.
22        (5) "State contracts" means all contracts entered into
23    by the State, any agency or department thereof, or any
24    public institution of higher education, including
25    community college districts, regardless of the source of
26    the funds with which the contracts are paid, which are not

 

 

HB3606 Engrossed- 6 -LRB103 25805 DTM 52156 b

1    subject to federal reimbursement. "State contracts" does
2    not include contracts awarded by a retirement system,
3    pension fund, or investment board subject to Section
4    1-109.1 of the Illinois Pension Code. This definition
5    shall control over any existing definition under this Act
6    or applicable administrative rule.
7        "State construction contracts" means all State
8    contracts entered into by a State agency or public
9    institution of higher education for the repair,
10    remodeling, renovation or construction of a building or
11    structure, or for the construction or maintenance of a
12    highway defined in Article 2 of the Illinois Highway Code.
13        (6) "State agencies" shall mean all departments,
14    officers, boards, commissions, institutions and bodies
15    politic and corporate of the State, but does not include
16    the Board of Trustees of the University of Illinois, the
17    Board of Trustees of Southern Illinois University, the
18    Board of Trustees of Chicago State University, the Board
19    of Trustees of Eastern Illinois University, the Board of
20    Trustees of Governors State University, the Board of
21    Trustees of Illinois State University, the Board of
22    Trustees of Northeastern Illinois University, the Board of
23    Trustees of Northern Illinois University, the Board of
24    Trustees of Western Illinois University, municipalities or
25    other local governmental units, or other State
26    constitutional officers.

 

 

HB3606 Engrossed- 7 -LRB103 25805 DTM 52156 b

1        (7) "Public institutions of higher education" means
2    the University of Illinois, Southern Illinois University,
3    Chicago State University, Eastern Illinois University,
4    Governors State University, Illinois State University,
5    Northeastern Illinois University, Northern Illinois
6    University, Western Illinois University, the public
7    community colleges of the State, and any other public
8    universities, colleges, and community colleges now or
9    hereafter established or authorized by the General
10    Assembly.
11        (8) "Certification" means a determination made by the
12    Council or by one delegated authority from the Council to
13    make certifications, or by a State agency with statutory
14    authority to make such a certification, that a business
15    entity is a business owned by a minority, woman, or person
16    with a disability for whatever purpose. A business owned
17    and controlled by women shall be certified as a
18    "woman-owned business". A business owned and controlled by
19    women who are also minorities shall be certified as both a
20    "women-owned business" and a "minority-owned business".
21        (9) "Control" means the exclusive or ultimate and sole
22    control of the business including, but not limited to,
23    capital investment and all other financial matters,
24    property, acquisitions, contract negotiations, legal
25    matters, officer-director-employee selection and
26    comprehensive hiring, operating responsibilities,

 

 

HB3606 Engrossed- 8 -LRB103 25805 DTM 52156 b

1    cost-control matters, income and dividend matters,
2    financial transactions and rights of other shareholders or
3    joint partners. Control shall be real, substantial and
4    continuing, not pro forma. Control shall include the power
5    to direct or cause the direction of the management and
6    policies of the business and to make the day-to-day as
7    well as major decisions in matters of policy, management
8    and operations. Control shall be exemplified by possessing
9    the requisite knowledge and expertise to run the
10    particular business and control shall not include simple
11    majority or absentee ownership.
12        (10) "Business" means a business that has annual gross
13    sales of less than $150,000,000 as evidenced by the
14    federal income tax return of the business. A certified
15    vendor firm with gross sales in excess of this cap may
16    apply to the Council for certification for a particular
17    contract if the vendor firm can demonstrate that the
18    contract would have significant impact on businesses owned
19    by minorities, women, or persons with disabilities as
20    suppliers or subcontractors or in employment of
21    minorities, women, or persons with disabilities. Firms
22    with gross sales in excess of this cap that are granted
23    certification by the Council shall be granted
24    certification for the life of the contract, including
25    available renewals.
26        (11) "Utilization plan" means an attachment that is

 

 

HB3606 Engrossed- 9 -LRB103 25805 DTM 52156 b

1    made to a form and additional documentations included in
2    all bids or proposals and that demonstrates the bidder's
3    or offeror's efforts to meet the contract-specific
4    Business Enterprise Program goal. The utilization plan
5    shall indicate whether the prime vendor intends to meet
6    the Business Enterprise Program goal through its own
7    performance, if it is a certified vendor, or through the
8    use of subcontractors that are certified vendors a
9    vendor's proposed utilization of vendors certified by the
10    Business Enterprise Program to meet the targeted goal. The
11    utilization plan shall demonstrate that the Vendor has
12    either: (1) met the entire contract goal or (2) requested
13    a full or partial waiver of the contract goal. If the prime
14    vendor intends to use a subcontractor that is a certified
15    vendor to fulfill the contract goal, a participation
16    agreement executed between the prime vendor and the
17    certified subcontractor must be included with the
18    utilization plan and made good faith efforts towards
19    meeting the goal.
20        (12) "Business Enterprise Program" means the Business
21    Enterprise Program of the Commission on Equity and
22    Inclusion.
23        (13) "Good faith effort" means actions undertaken by a
24    vendor to achieve a contract specific Business Enterprise
25    Program goal that, by scope, intensity, and
26    appropriateness to the objective, can reasonably be

 

 

HB3606 Engrossed- 10 -LRB103 25805 DTM 52156 b

1    expected to fulfill the program's requirements.
2    (B) When a business is owned at least 51% by any
3combination of minority persons, women, or persons with
4disabilities, even though none of the 3 classes alone holds at
5least a 51% interest, the ownership requirement for purposes
6of this Act is considered to be met. The certification
7category for the business is that of the class holding the
8largest ownership interest in the business. If 2 or more
9classes have equal ownership interests, the certification
10category shall be determined by the business.
11(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
12102-29, eff. 6-25-21; 102-1119, eff. 1-23-23.)
 
13    (30 ILCS 575/3.5 new)
14    Sec. 3.5. Uniform standard of contract goals.
15    (a) The Business Enterprise Program shall establish
16uniform standards for calculating contract specific Business
17Enterprise Program goals for all State contracts and State
18construction contracts subject to this Act. The uniform
19standards may consider normal industry practice, the scope of
20the work to be performed under a contract, the availability of
21vendors that are able to perform the scope of the work to be
22performed under a contract, the availability of certified
23vendors that are able to perform the work to be performed under
24a contract, and the State's progress to date toward meeting
25the aspirational goals set forth in this Act.

 

 

HB3606 Engrossed- 11 -LRB103 25805 DTM 52156 b

1    (b) No State agency or public institution of higher
2education shall maintain a policy of establishing contract
3specific goals for the participation of certified vendors that
4is inconsistent with or less stringent than the uniform
5standards for calculating contract specific goals established
6by the Business Enterprise Program.
7    (c) Each State agency and public institution of higher
8education subject to the requirements of this Act shall, on an
9annual basis, submit a report to the Council detailing its
10plan to meet the aspirational contract goals established under
11this Act and established for that agency, institution or
12department.
 
13    (30 ILCS 575/5)  (from Ch. 127, par. 132.605)
14    (Section scheduled to be repealed on June 30, 2024)
15    Sec. 5. Business Enterprise Council.
16    (1) To help implement, monitor, and enforce the goals of
17this Act, there is created the Business Enterprise Council for
18Minorities, Women, and Persons with Disabilities, hereinafter
19referred to as the Council, composed of the Chairperson of the
20Commission on Equity and Inclusion, the Secretary of Human
21Services and the Directors of the Department of Human Rights,
22the Department of Commerce and Economic Opportunity, the
23Department of Central Management Services, the Department of
24Transportation and the Capital Development Board, or their
25duly appointed representatives, with the Comptroller, or his

 

 

HB3606 Engrossed- 12 -LRB103 25805 DTM 52156 b

1or her designee, serving as an advisory member of the Council.
2Ten individuals representing businesses that are
3minority-owned, women-owned, or owned by persons with
4disabilities, 2 individuals representing the business
5community, and a representative of public institutions of
6higher education shall be appointed by the Governor. These
7members shall serve 2-year terms and shall be eligible for
8reappointment. Any vacancy occurring on the Council shall also
9be filled by the Governor. Any member appointed to fill a
10vacancy occurring prior to the expiration of the term for
11which his or her predecessor was appointed shall be appointed
12for the remainder of such term. Members of the Council shall
13serve without compensation but shall be reimbursed for any
14ordinary and necessary expenses incurred in the performance of
15their duties.
16    The Chairperson of the Commission shall serve as the
17Council chairperson and shall select, subject to approval of
18the Council, a Secretary responsible for the operation of the
19program who shall serve as the Division Manager of the
20Business Enterprise for Minorities, Women, and Persons with
21Disabilities Division of the Commission on Equity and
22Inclusion.
23    The Director of each State agency and the chief executive
24officer of each public institution of higher education shall
25appoint a liaison to the Council. The liaison shall be
26responsible for submitting to the Council any reports and

 

 

HB3606 Engrossed- 13 -LRB103 25805 DTM 52156 b

1documents necessary under this Act.
2    (2) The Council's authority and responsibility shall be
3to:
4        (a) Devise a certification procedure to assure that
5    businesses taking advantage of this Act are legitimately
6    classified as businesses owned by minorities, women, or
7    persons with disabilities and a registration procedure to
8    recognize, without additional evidence of Business
9    Enterprise Program eligibility, the certification of
10    businesses owned by minorities, women, or persons with
11    disabilities certified by the City of Chicago, Cook
12    County, or other jurisdictional programs with requirements
13    and procedures equaling or exceeding those in this Act.
14        (b) Maintain a list of all businesses legitimately
15    classified as businesses owned by minorities, women, or
16    persons with disabilities to provide to State agencies and
17    public institutions of higher education.
18        (c) Review rules and regulations for the
19    implementation of the program for businesses owned by
20    minorities, women, and persons with disabilities.
21        (d) Review compliance plans submitted by each State
22    agency and public institution of higher education pursuant
23    to this Act.
24        (e) Make annual reports as provided in Section 8f to
25    the Governor and the General Assembly on the status of the
26    program.

 

 

HB3606 Engrossed- 14 -LRB103 25805 DTM 52156 b

1        (f) Serve as a central clearinghouse for information
2    on State contracts, including the maintenance of a list of
3    all pending State contracts upon which businesses owned by
4    minorities, women, and persons with disabilities may bid.
5    At the Council's discretion, maintenance of the list may
6    include 24-hour electronic access to the list along with
7    the bid and application information.
8        (g) Establish a toll-free telephone number to
9    facilitate information requests concerning the
10    certification process and pending contracts.
11        (h) Adopt a procedure to grant automatic certification
12    to businesses holding a certification from at least one of
13    the following entities: (i) the Illinois Unified
14    Certification Program; (ii) the Women's Business
15    Development Center in Chicago; (iii) the Chicago Minority
16    Supplier Development Council; or (iv) any other similar
17    entity offering such certification to businesses.
18        (i) Develop and maintain a repository for
19    non-certified vendors that: (i) have applied for
20    certification and have been denied; (ii) have started, but
21    not completed, the certification process; (iii) have
22    achieved certification, but did not seek renewal; or (iv)
23    are known businesses owned by minorities, women, or
24    persons with disabilities.
25    (3) No premium bond rate of a surety company for a bond
26required of a business owned by a minority, woman, or person

 

 

HB3606 Engrossed- 15 -LRB103 25805 DTM 52156 b

1with a disability bidding for a State contract shall be higher
2than the lowest rate charged by that surety company for a
3similar bond in the same classification of work that would be
4written for a business not owned by a minority, woman, or
5person with a disability.
6    (4) Any Council member who has direct financial or
7personal interest in any measure pending before the Council
8shall disclose this fact to the Council and refrain from
9participating in the determination upon such measure.
10    (5) The Secretary shall have the following duties and
11responsibilities:
12        (a) To be responsible for the day-to-day operation of
13    the Council.
14        (b) To serve as a coordinator for all of the State's
15    programs for businesses owned by minorities, women, and
16    persons with disabilities and as the information and
17    referral center for all State initiatives for businesses
18    owned by minorities, women, and persons with disabilities.
19        (c) To establish an enforcement procedure whereby the
20    Council may recommend to the appropriate State legal
21    officer that the State exercise its legal remedies which
22    shall include (1) termination of the contract involved,
23    (2) prohibition of participation by the respondent in
24    public contracts for a period not to exceed 3 years, (3)
25    imposition of damages in the amount of the discrepancy
26    between the commitment contained in the utilization plan,

 

 

HB3606 Engrossed- 16 -LRB103 25805 DTM 52156 b

1    as such amount may be amended over the term of the
2    contract, and the qualifying payments made to the eligible
3    certified vendors listed in the utilization plan a penalty
4    not to exceed any profit acquired as a result of
5    violation, or (4) any combination thereof. Such procedures
6    shall require prior approval by Council. All funds
7    collected as penalties under this subsection shall be used
8    exclusively for maintenance and further development of the
9    Business Enterprise Program and encouragement of
10    participation in State procurement by minorities, women,
11    and persons with disabilities.
12        (d) To devise appropriate policies, regulations, and
13    procedures for including participation by businesses owned
14    by minorities, women, and persons with disabilities as
15    prime contractors, including, but not limited to: (i)
16    encouraging the inclusions of qualified businesses owned
17    by minorities, women, and persons with disabilities on
18    solicitation lists, (ii) investigating the potential of
19    blanket bonding programs for small construction jobs, and
20    (iii) investigating and making recommendations concerning
21    the use of the sheltered market process.
22        (e) To devise procedures for the waiver of the
23    participation goals in appropriate circumstances.
24        (f) To accept donations and, with the approval of the
25    Council or the Chairperson of the Commission on Equity and
26    Inclusion, grants related to the purposes of this Act; to

 

 

HB3606 Engrossed- 17 -LRB103 25805 DTM 52156 b

1    conduct seminars related to the purpose of this Act and to
2    charge reasonable registration fees; and to sell
3    directories, vendor lists, and other such information to
4    interested parties, except that forms necessary to become
5    eligible for the program shall be provided free of charge
6    to a business or individual applying for the Business
7    Enterprise Program.
8(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
9102-29, eff. 6-25-21; 102-558, eff. 8-20-21; 102-721, eff.
101-1-23.)
 
11    (30 ILCS 575/7)  (from Ch. 127, par. 132.607)
12    (Section scheduled to be repealed on June 30, 2024)
13    Sec. 7. Exemptions; waivers; publication of data.
14    (1) Individual contract exemptions. The Council, at the
15written request of the affected agency, public institution of
16higher education, or recipient of a grant or loan of State
17funds of $250,000 or more complying with Section 45 of the
18State Finance Act, may permit an individual contract or
19contract package, (related contracts being bid or awarded
20simultaneously for the same project or improvements) be made
21wholly or partially exempt from State contracting goals for
22businesses owned by minorities, women, and persons with
23disabilities prior to the advertisement for bids or
24solicitation of proposals whenever there has been a
25determination, reduced to writing and based on the best

 

 

HB3606 Engrossed- 18 -LRB103 25805 DTM 52156 b

1information available at the time of the determination, that
2there is an insufficient number of businesses owned by
3minorities, women, and persons with disabilities to ensure
4adequate competition and an expectation of reasonable prices
5on bids or proposals solicited for the individual contract or
6contract package in question. Any such exemptions shall be
7given by the Council to the Bureau on Apprenticeship Programs
8and Clean Energy Jobs.
9        (a) Written request for contract exemption. A written
10    request for an individual contract exemption must include,
11    but is not limited to, the following:
12            (i) a list of eligible businesses owned by
13        minorities, women, and persons with disabilities;
14            (ii) a clear demonstration that the number of
15        eligible businesses identified in subparagraph (i)
16        above is insufficient to ensure adequate competition;
17            (iii) the difference in cost between the contract
18        proposals being offered by businesses owned by
19        minorities, women, and persons with disabilities and
20        the agency or public institution of higher education's
21        expectations of reasonable prices on bids or proposals
22        within that class; and
23            (iv) a list of eligible businesses owned by
24        minorities, women, and persons with disabilities that
25        the contractor has used in the current and prior
26        fiscal years.

 

 

HB3606 Engrossed- 19 -LRB103 25805 DTM 52156 b

1        (b) Determination. The Council's determination
2    concerning an individual contract exemption must consider,
3    at a minimum, the following:
4            (i) the justification for the requested exemption,
5        including whether diligent efforts were undertaken to
6        identify and solicit eligible businesses owned by
7        minorities, women, and persons with disabilities;
8            (ii) the total number of exemptions granted to the
9        affected agency, public institution of higher
10        education, or recipient of a grant or loan of State
11        funds of $250,000 or more complying with Section 45 of
12        the State Finance Act that have been granted by the
13        Council in the current and prior fiscal years; and
14            (iii) the percentage of contracts awarded by the
15        agency or public institution of higher education to
16        eligible businesses owned by minorities, women, and
17        persons with disabilities in the current and prior
18        fiscal years.
19    (2) Class exemptions.
20        (a) Creation. The Council, at the written request of
21    the affected agency or public institution of higher
22    education, may permit an entire class of contracts be made
23    exempt from State contracting goals for businesses owned
24    by minorities, women, and persons with disabilities
25    whenever there has been a determination, reduced to
26    writing and based on the best information available at the

 

 

HB3606 Engrossed- 20 -LRB103 25805 DTM 52156 b

1    time of the determination, that there is an insufficient
2    number of qualified businesses owned by minorities, women,
3    and persons with disabilities to ensure adequate
4    competition and an expectation of reasonable prices on
5    bids or proposals within that class. Any such exemption
6    shall be given by the Council to the Bureau on
7    Apprenticeship Programs and Clean Energy Jobs.
8        (a-1) Written request for class exemption. A written
9    request for a class exemption must include, but is not
10    limited to, the following:
11            (i) a list of eligible businesses owned by
12        minorities, women, and persons with disabilities;
13            (ii) a clear demonstration that the number of
14        eligible businesses identified in subparagraph (i)
15        above is insufficient to ensure adequate competition;
16            (iii) the difference in cost between the contract
17        proposals being offered by eligible businesses owned
18        by minorities, women, and persons with disabilities
19        and the agency or public institution of higher
20        education's expectations of reasonable prices on bids
21        or proposals within that class; and
22            (iv) the number of class exemptions the affected
23        agency or public institution of higher education
24        requested in the current and prior fiscal years.
25        (a-2) Determination. The Council's determination
26    concerning class exemptions must consider, at a minimum,

 

 

HB3606 Engrossed- 21 -LRB103 25805 DTM 52156 b

1    the following:
2            (i) the justification for the requested exemption,
3        including whether diligent efforts were undertaken to
4        identify and solicit eligible businesses owned by
5        minorities, women, and persons with disabilities;
6            (ii) the total number of class exemptions granted
7        to the requesting agency or public institution of
8        higher education that have been granted by the Council
9        in the current and prior fiscal years; and
10            (iii) the percentage of contracts awarded by the
11        agency or public institution of higher education to
12        eligible businesses owned by minorities, women, and
13        persons with disabilities the current and prior fiscal
14        years.
15        (b) Limitation. Any such class exemption shall not be
16    permitted for a period of more than one year at a time.
17    (3) Waivers. Where a particular contract requires a vendor
18contractor to meet a goal established pursuant to this Act,
19the vendor contractor shall have the right to request a waiver
20from such requirements prior to the contract award. The
21Business Enterprise Program shall evaluate a vendor's request
22for a waiver based on the vendor's documented good faith
23efforts to meet the contract-specific Business Enterprise
24Program goal. The Council may shall grant the waiver when the
25contractor demonstrates that there has been made a good faith
26effort to comply with the goals for participation by

 

 

HB3606 Engrossed- 22 -LRB103 25805 DTM 52156 b

1businesses owned by minorities, women, and persons with
2disabilities. Any such waiver may shall also be transmitted in
3writing to the Bureau on Apprenticeship Programs and Clean
4Energy Jobs.
5        (a) Request for waiver. A vendor's contractor's
6    request for a waiver under this subsection (3) must
7    include, but is not limited to, the following, if
8    available:
9            (i) a list of eligible businesses owned by
10        minorities, women, and persons with disabilities that
11        pertain to the the class of contracts in the requested
12        waiver that were contacted by the vendor scope of work
13        of the contract. Eligible businesses are only eligible
14        if the business is certified for the products or work
15        advertised in the solicitation or bid;
16            (ii) (blank);
17            (iia) a clear demonstration that the vendor
18        contractor selected portions of the work to be
19        performed by certified vendors to facilitate meeting
20        the contract specific goal, and that certified vendors
21        that have the capability to perform the work of the
22        contract were eligible businesses owned by minorities,
23        women, and persons with disabilities, solicited
24        through all reasonable and available means eligible
25        businesses, and negotiated in good faith with
26        interested eligible businesses;

 

 

HB3606 Engrossed- 23 -LRB103 25805 DTM 52156 b

1            (iib) documentation demonstrating that certified
2        vendors businesses owned by minorities, women, and
3        persons with disabilities are not rejected as being
4        unqualified without sound reasons based on a thorough
5        investigation of their capabilities. The certified
6        vendor's standing within its industry, membership in
7        specific groups, organizations, or associations, and
8        political or social affiliations are not legitimate
9        causes for rejecting or not contacting or negotiating
10        with a certified vendor;
11            (iic) proof that the prime vendor solicited
12        eligible certified vendors with: (1) sufficient time
13        to respond; (2) adequate information about the scope,
14        specifications, and requirements of the solicitation
15        or bid, including plans, drawings, and addenda, to
16        allow eligible businesses an opportunity to respond to
17        the solicitation or bid; and (3) sufficient follow up
18        with certified vendors;
19            (iid) a clear demonstration that the prime vendor
20        communicated with certified vendors;
21            (iie) evidence that the prime vendor negotiated
22        with certified vendors to enter into subcontracts to
23        provide a commercially useful function of the contract
24        for a reasonable cost;
25            (iii) documentation demonstrating that the
26        difference in cost between the contract proposals

 

 

HB3606 Engrossed- 24 -LRB103 25805 DTM 52156 b

1        being offered by certified vendors is contract
2        proposals being offered by businesses owned by
3        minorities, women, and persons with disabilities are
4        excessive or unreasonable; and
5            (iv) a list of certified vendors businesses owned
6        by minorities, women, and persons with disabilities
7        that the contractor has used in the current and prior
8        fiscal years; .
9            (v) documentation demonstrating that the vendor
10        made efforts to utilize certified vendors despite the
11        ability or desire of a vendor to perform the work with
12        its own operations by selecting portions of the work
13        to be performed by certified vendors, which may, when
14        appropriate, include breaking out portions of the work
15        to be performed into economically feasible units to
16        facilitate certified vendor participation; and
17            (vi) documentation that the vendor used the
18        services of: (1) the State; (2) organizations or
19        contractors' groups representing or composed of
20        minorities, women, or persons with disabilities; (3)
21        local, State, or federal assistance offices
22        representing or assisting minorities, women, or
23        persons with disabilities; and (4) other organizations
24        that provide assistance in the recruitment and
25        engagement of certified vendors.
26        (b) Determination. The Council's determination

 

 

HB3606 Engrossed- 25 -LRB103 25805 DTM 52156 b

1    concerning waivers must include following:
2            (i) the justification for the requested waiver,
3        including whether the requesting vendor contractor
4        made a good faith effort to identify and solicit
5        certified vendors based on the criteria set forth in
6        this Section eligible businesses owned by minorities,
7        women, and persons with disabilities;
8            (ii) the total number of waivers the vendor
9        contractor has been granted by the Council in the
10        current and prior fiscal years;
11            (iii) (blank); and
12            (iv) the vendor's contractor's use of businesses
13        owned by minorities, women, and persons with
14        disabilities in the current and prior fiscal years.
15    (3.5) (Blank).
16    (4) Conflict with other laws. In the event that any State
17contract, which otherwise would be subject to the provisions
18of this Act, is or becomes subject to federal laws or
19regulations which conflict with the provisions of this Act or
20actions of the State taken pursuant hereto, the provisions of
21the federal laws or regulations shall apply and the contract
22shall be interpreted and enforced accordingly.
23    (5) Each chief procurement officer, as defined in the
24Illinois Procurement Code, shall maintain on his or her
25official Internet website a database of the following: (i)
26waivers granted under this Section with respect to contracts

 

 

HB3606 Engrossed- 26 -LRB103 25805 DTM 52156 b

1under his or her jurisdiction; (ii) a State agency or public
2institution of higher education's written request for an
3exemption of an individual contract or an entire class of
4contracts; and (iii) the Council's written determination
5granting or denying a request for an exemption of an
6individual contract or an entire class of contracts. The
7database, which shall be updated periodically as necessary,
8shall be searchable by contractor name and by contracting
9State agency.
10    (6) Each chief procurement officer, as defined by the
11Illinois Procurement Code, shall maintain on its website a
12list of all vendors firms that have been prohibited from
13bidding, offering, or entering into a contract with the State
14of Illinois as a result of violations of this Act.
15    Each public notice required by law of the award of a State
16contract shall include for each bid or offer submitted for
17that contract the following: (i) the bidder's or offeror's
18name, (ii) the bid amount, (iii) the name or names of the
19certified vendors firms identified in the bidder's or
20offeror's submitted utilization plan, and (iv) the bid's
21amount and percentage of the contract awarded to each
22certified vendor that is a business businesses owned by
23minorities, women, and persons with disabilities identified in
24the utilization plan.
25(Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20;
26101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff.

 

 

HB3606 Engrossed- 27 -LRB103 25805 DTM 52156 b

19-15-21.)
 
2    (30 ILCS 575/8)  (from Ch. 127, par. 132.608)
3    (Section scheduled to be repealed on June 30, 2024)
4    Sec. 8. Enforcement.
5    (1) The Commission on Equity and Inclusion shall make such
6findings, recommendations and proposals to the Governor as are
7necessary and appropriate to enforce this Act. If, as a result
8of its monitoring activities, the Commission determines that
9its goals and policies are not being met by any State agency or
10public institution of higher education, the Commission may
11recommend any or all of the following actions:
12        (a) Establish enforcement procedures whereby the
13    Commission may recommend to the appropriate State agency,
14    public institutions of higher education, or law
15    enforcement officer that legal or administrative remedies
16    be initiated for violations of contract provisions or
17    rules issued hereunder or by a contracting State agency or
18    public institutions of higher education. State agencies
19    and public institutions of higher education shall be
20    authorized to adopt remedies for such violations which
21    shall include (1) termination of the contract involved,
22    (2) prohibition of participation of the respondents in
23    public contracts for a period not to exceed one year, (3)
24    the assessment of damages in the amount of the discrepancy
25    between the commitment contained in the utilization plan,

 

 

HB3606 Engrossed- 28 -LRB103 25805 DTM 52156 b

1    as such amount may be amended over the term of the
2    contract, and the qualifying payments made to the
3    certified vendors listed in the utilization plan
4    imposition of a penalty not to exceed any profit acquired
5    as a result of violation, or (4) any combination thereof.
6        (b) If the Commission concludes that a compliance plan
7    submitted under Section 6 is unlikely to produce the
8    participation goals for businesses owned by minorities,
9    women, and persons with disabilities within the then
10    current fiscal year, the Commission may recommend that the
11    State agency or public institution of higher education
12    revise its plan to provide additional opportunities for
13    participation by businesses owned by minorities, women,
14    and persons with disabilities. Such recommended revisions
15    may include, but shall not be limited to, the following:
16            (i) assurances of stronger and better focused
17        solicitation efforts to obtain more businesses owned
18        by minorities, women, and persons with disabilities as
19        potential sources of supply;
20            (ii) division of the scope of work job or project
21        requirements, when economically feasible, into tasks
22        or quantities to permit participation of businesses
23        owned by minorities, women, and persons with
24        disabilities;
25            (iii) elimination of extended experience or
26        capitalization requirements, when programmatically

 

 

HB3606 Engrossed- 29 -LRB103 25805 DTM 52156 b

1        feasible, to permit participation of businesses owned
2        by minorities, women, and persons with disabilities;
3            (iv) identification of specific proposed contracts
4        as particularly attractive or appropriate for
5        participation by businesses owned by minorities,
6        women, and persons with disabilities, such
7        identification to result from and be coupled with the
8        efforts of subparagraphs (i) through (iii);
9            (v) implementation of those regulations
10        established for the use of the sheltered market
11        process.
12    (2) State agencies and public institutions of higher
13education shall monitor a vendor's compliance with its
14utilization plan and the terms of its contract. Without
15limitation, a vendor's failure to comply with its contractual
16commitments as contained in the utilization plan; failure to
17cooperate in providing information regarding its compliance
18with its utilization plan; or the provision of false or
19misleading information or statements concerning compliance,
20certification status, or eligibility of the Business
21Enterprise Program-certified vendor, good faith efforts, or
22any other material fact or representation shall constitute a
23material breach of the contract and entitle the State agency
24or public institution of higher education to declare a
25default, terminate the contract, or exercise those remedies
26provided for in the contract, at law, or in equity.

 

 

HB3606 Engrossed- 30 -LRB103 25805 DTM 52156 b

1    (3) Prior to the expiration or termination of a contract,
2State agencies and public institutions of higher education
3shall evaluate the contractor's fulfillment of the contract
4goals for participation by certified businesses owned by
5minorities, women, and persons with disabilities. The agency
6or public institution of higher education shall prepare a
7report of the vendor's compliance with the contract goals and
8file it with the Secretary. If the Secretary determines that
9the vendor did not fulfill the contract goals, the vendor
10shall be in breach of the contract and may be subject to
11remedies or sanctions, unless the vendor can show that it made
12good faith efforts to meet the contract goals. Such remedies
13or sanctions for failing to make good faith efforts may
14include (i) disqualification of the contractor from doing
15business with the State for a period of no more than one year,
16or (ii) cancellation, without any penalty to the State, of any
17contract entered into by the vendor, or (iii) the assessment
18of damages in the amount of the discrepancy between the
19commitment contained in the utilization plan, as such amount
20may be amended over the term of the contract, and the
21qualifying payments made to the certified vendors listed in
22the utilization plan.
23    The Business Enterprise Program shall develop procedures
24for determining whether a vendor has made good faith efforts
25to meet the contract goals upon the expiration or termination
26of a contract, which may include, but shall not be limited to

 

 

HB3606 Engrossed- 31 -LRB103 25805 DTM 52156 b

1consideration of: (i) whether State or local action caused a
2shortfall, such as a change in the scope of work that
3eliminated work to be performed by certified vendors or a
4change in specifications; (ii) whether the vendor was unable
5to obtain certified business participation without requiring
6the introduction of extra participants not performing a
7commercially useful function; or (iii) whether the vendor made
8efforts to use appropriate forums for purposes of advertising
9subcontracting opportunities suitable for certified
10businesses.
11(Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21.)