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1 | AN ACT concerning finance. | ||||||
2 | Be it enacted by the People of the State of Illinois, | ||||||
3 | represented in the General Assembly: | ||||||
4 | Section 5. The Business Enterprise for Minorities, Women, | ||||||
5 | and Persons with Disabilities Act is amended by changing | ||||||
6 | Sections 2, 5, and 8 and by adding Section 3.5 as follows: | ||||||
7 | (30 ILCS 575/2) | ||||||
8 | (Section scheduled to be repealed on June 30, 2029) | ||||||
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 | ||||||
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 |
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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, |
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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 |
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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". |
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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 |
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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. |
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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, |
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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 with gross sales in excess of this cap may apply to | ||||||
16 | the Council for certification for a particular contract if | ||||||
17 | the vendor can demonstrate that the contract would have | ||||||
18 | significant impact on businesses owned by minorities, | ||||||
19 | women, or persons with disabilities as suppliers or | ||||||
20 | subcontractors or in employment of minorities, women, or | ||||||
21 | persons with disabilities. Firms with gross sales in | ||||||
22 | excess of this cap that are granted certification by the | ||||||
23 | Council shall be granted certification for the life of the | ||||||
24 | contract, including available renewals. | ||||||
25 | (11) "Utilization plan" means an attachment that is | ||||||
26 | made to all bids or proposals and that demonstrates the |
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1 | bidder's or offeror's efforts to meet the | ||||||
2 | contract-specific Business Enterprise Program goal. The | ||||||
3 | utilization plan shall indicate whether the prime vendor | ||||||
4 | intends to meet the Business Enterprise Program goal | ||||||
5 | through its own performance, if it is a certified vendor, | ||||||
6 | or through the use of subcontractors that are certified | ||||||
7 | vendors. The utilization plan shall demonstrate that the | ||||||
8 | Vendor has either: (1) met the entire contract goal or (2) | ||||||
9 | requested a full or partial waiver of the contract goal. | ||||||
10 | If the prime vendor intends to use a subcontractor that is | ||||||
11 | a certified vendor to fulfill the contract goal, a | ||||||
12 | participation agreement executed between the prime vendor | ||||||
13 | and the certified subcontractor must be included with the | ||||||
14 | utilization plan. | ||||||
15 | (12) "Business Enterprise Program" means the Business | ||||||
16 | Enterprise Program of the Commission on Equity and | ||||||
17 | Inclusion. | ||||||
18 | (13) "Good faith effort" means actions undertaken by a | ||||||
19 | vendor to achieve a contract specific Business Enterprise | ||||||
20 | Program goal that, by scope, intensity, and | ||||||
21 | appropriateness to the objective, can reasonably be | ||||||
22 | expected to fulfill the program's requirements. | ||||||
23 | (14) "Goal" means the participation levels of | ||||||
24 | certified vendors on State contracts. | ||||||
25 | (B) When a business is owned at least 51% by any | ||||||
26 | combination of minority persons, women, or persons with |
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1 | disabilities, even though none of the 3 classes alone holds at | ||||||
2 | least a 51% interest, the ownership requirement for purposes | ||||||
3 | of this Act is considered to be met. The certification | ||||||
4 | category for the business is that of the class holding the | ||||||
5 | largest ownership interest in the business. If 2 or more | ||||||
6 | classes have equal ownership interests, the certification | ||||||
7 | category shall be determined by the business. | ||||||
8 | (Source: P.A. 102-29, eff. 6-25-21; 102-1119, eff. 1-23-23; | ||||||
9 | 103-570, eff. 1-1-24.) | ||||||
10 | (30 ILCS 575/3.5 new) | ||||||
11 | Sec. 3.5. Uniform standard of contract goals. | ||||||
12 | (a) The Business Enterprise Program may establish uniform | ||||||
13 | standards for calculating contract specific Business | ||||||
14 | Enterprise Program goals for all State contracts and State | ||||||
15 | construction contracts subject to this Act. In establishing | ||||||
16 | those standards, the Business Enterprise Program may consider | ||||||
17 | normal industry practice, the scope of the work to be | ||||||
18 | performed under a contract, the availability of vendors that | ||||||
19 | are able to perform the scope of the work to be performed under | ||||||
20 | a contract, the availability of certified vendors that are | ||||||
21 | able to perform the work to be performed under a contract, and | ||||||
22 | the State's progress to date toward meeting the aspirational | ||||||
23 | goals set forth in this Act. | ||||||
24 | (b) Each State agency that is subject to this Act and each | ||||||
25 | public institution of higher education that is subject to this |
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1 | Act may, in accordance with the provisions of this Act, set | ||||||
2 | goals concerning participation in State contracts, including | ||||||
3 | State construction contracts, to which the State agency or | ||||||
4 | public institution of higher education is party. Goals | ||||||
5 | involving State contracts above the small purchase threshold, | ||||||
6 | as defined in Section 20-20 of the Illinois Procurement Code, | ||||||
7 | may be submitted to the Business Enterprise Program for | ||||||
8 | approval, denial, or modification. | ||||||
9 | (c) As used in this Section, the terms "State contract" | ||||||
10 | and "State construction contract" do not include grants from | ||||||
11 | State agencies to grantees for capital improvements or | ||||||
12 | operational expenses. | ||||||
13 | (30 ILCS 575/5) (from Ch. 127, par. 132.605) | ||||||
14 | (Section scheduled to be repealed on June 30, 2029) | ||||||
15 | Sec. 5. Business Enterprise Council. | ||||||
16 | (1) To help implement, monitor, and enforce the goals of | ||||||
17 | this Act, there is created the Business Enterprise Council for | ||||||
18 | Minorities, Women, and Persons with Disabilities, hereinafter | ||||||
19 | referred to as the Council, composed of the Chairperson of the | ||||||
20 | Commission on Equity and Inclusion, the Secretary of Human | ||||||
21 | Services and the Directors of the Department of Human Rights, | ||||||
22 | the Department of Commerce and Economic Opportunity, the | ||||||
23 | Department of Central Management Services, the Department of | ||||||
24 | Transportation and the Capital Development Board, or their | ||||||
25 | duly appointed representatives, with the Comptroller, or his |
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1 | or her designee, serving as an advisory member of the Council. | ||||||
2 | Ten individuals representing businesses that are | ||||||
3 | minority-owned, women-owned, or owned by persons with | ||||||
4 | disabilities, 2 individuals representing the business | ||||||
5 | community, and a representative of public institutions of | ||||||
6 | higher education shall be appointed by the Governor. These | ||||||
7 | members shall serve 2-year terms and shall be eligible for | ||||||
8 | reappointment. Any vacancy occurring on the Council shall also | ||||||
9 | be filled by the Governor. Any member appointed to fill a | ||||||
10 | vacancy occurring prior to the expiration of the term for | ||||||
11 | which his or her predecessor was appointed shall be appointed | ||||||
12 | for the remainder of such term. Members of the Council shall | ||||||
13 | serve without compensation but shall be reimbursed for any | ||||||
14 | ordinary and necessary expenses incurred in the performance of | ||||||
15 | their duties. | ||||||
16 | The Chairperson of the Commission shall serve as the | ||||||
17 | Council chairperson and shall select, subject to approval of | ||||||
18 | the Council, a Secretary responsible for the operation of the | ||||||
19 | program who shall serve as the Division Manager of the | ||||||
20 | Business Enterprise for Minorities, Women, and Persons with | ||||||
21 | Disabilities Division of the Commission on Equity and | ||||||
22 | Inclusion. | ||||||
23 | The Director of each State agency and the chief executive | ||||||
24 | officer of each public institution of higher education shall | ||||||
25 | appoint a liaison to the Council. The liaison shall be | ||||||
26 | responsible for submitting to the Council any reports and |
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1 | documents necessary under this Act. | ||||||
2 | (2) The Council's authority and responsibility shall be | ||||||
3 | to: | ||||||
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. |
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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 | ||||||
26 | required of a business owned by a minority, woman, or person |
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1 | with a disability bidding for a State contract shall be higher | ||||||
2 | than the lowest rate charged by that surety company for a | ||||||
3 | similar bond in the same classification of work that would be | ||||||
4 | written for a business not owned by a minority, woman, or | ||||||
5 | person with a disability. | ||||||
6 | (4) Any Council member who has direct financial or | ||||||
7 | personal interest in any measure pending before the Council | ||||||
8 | shall disclose this fact to the Council and refrain from | ||||||
9 | participating in the determination upon such measure. | ||||||
10 | (5) The Secretary shall have the following duties and | ||||||
11 | responsibilities: | ||||||
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 | State public contracts for a period not to exceed 3 years, | ||||||
25 | (3) imposition of a penalty in the amount of the | ||||||
26 | discrepancy between the commitment contained in the |
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1 | utilization plan, as such amount may be amended over the | ||||||
2 | term of the contract, and the qualifying payments made to | ||||||
3 | the eligible certified vendors listed in the utilization | ||||||
4 | plan a penalty not to exceed any profit acquired as a | ||||||
5 | result of violation , or (4) any combination thereof. Such | ||||||
6 | procedures shall require prior approval by Council. All | ||||||
7 | funds collected as penalties under this subsection shall | ||||||
8 | be used exclusively for maintenance and further | ||||||
9 | development of the Business Enterprise Program and | ||||||
10 | encouragement of participation in State procurement by | ||||||
11 | minorities, women, 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 |
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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; | ||||||
9 | 102-29, eff. 6-25-21; 102-558, eff. 8-20-21; 102-721, eff. | ||||||
10 | 1-1-23 .) | ||||||
11 | (30 ILCS 575/8) (from Ch. 127, par. 132.608) | ||||||
12 | (Section scheduled to be repealed on June 30, 2029) | ||||||
13 | Sec. 8. Enforcement. | ||||||
14 | (1) The Commission on Equity and Inclusion shall make such | ||||||
15 | findings, recommendations and proposals to the Governor as are | ||||||
16 | necessary and appropriate to enforce this Act. If, as a result | ||||||
17 | of its monitoring activities, the Commission determines that | ||||||
18 | its goals and policies are not being met by any State agency or | ||||||
19 | public institution of higher education, the Commission may | ||||||
20 | recommend any or all of the following actions: | ||||||
21 | (a) Establish enforcement procedures whereby the | ||||||
22 | Commission may recommend to the appropriate State agency, | ||||||
23 | public institutions of higher education, or law | ||||||
24 | enforcement officer that legal or administrative remedies | ||||||
25 | be initiated for violations of contract provisions or |
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1 | rules issued hereunder or by a contracting State agency or | ||||||
2 | public institutions of higher education. State agencies | ||||||
3 | and public institutions of higher education shall be | ||||||
4 | authorized to adopt remedies for such violations which | ||||||
5 | shall include (1) termination of the contract involved, | ||||||
6 | (2) prohibition of participation of the respondents in | ||||||
7 | public contracts for a period not to exceed one year, (3) | ||||||
8 | the assessment of a penalty in the amount of the | ||||||
9 | discrepancy between the commitment contained in the | ||||||
10 | utilization plan, as such amount may be amended over the | ||||||
11 | term of the contract, and the qualifying payments made to | ||||||
12 | the certified vendors listed in the utilization plan | ||||||
13 | imposition of a penalty not to exceed any profit acquired | ||||||
14 | as a result of violation , or (4) any combination thereof. | ||||||
15 | (b) If the Commission concludes that a compliance plan | ||||||
16 | submitted under Section 6 is unlikely to produce the | ||||||
17 | participation goals for businesses owned by minorities, | ||||||
18 | women, and persons with disabilities within the then | ||||||
19 | current fiscal year, the Commission may recommend that the | ||||||
20 | State agency or public institution of higher education | ||||||
21 | revise its plan to provide additional opportunities for | ||||||
22 | participation by businesses owned by minorities, women, | ||||||
23 | and persons with disabilities. Such recommended revisions | ||||||
24 | may include, but shall not be limited to, the following: | ||||||
25 | (i) assurances of stronger and better focused | ||||||
26 | solicitation efforts to obtain more businesses owned |
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1 | by minorities, women, and persons with disabilities as | ||||||
2 | potential sources of supply; | ||||||
3 | (ii) division of the scope of work job or project | ||||||
4 | requirements , when economically feasible, into tasks | ||||||
5 | or quantities to permit participation of businesses | ||||||
6 | owned by minorities, women, and persons with | ||||||
7 | disabilities; | ||||||
8 | (iii) elimination of extended experience or | ||||||
9 | capitalization requirements, when programmatically | ||||||
10 | feasible, to permit participation of businesses owned | ||||||
11 | by minorities, women, and persons with disabilities; | ||||||
12 | (iv) identification of specific proposed contracts | ||||||
13 | as particularly attractive or appropriate for | ||||||
14 | participation by businesses owned by minorities, | ||||||
15 | women, and persons with disabilities, such | ||||||
16 | identification to result from and be coupled with the | ||||||
17 | efforts of subparagraphs (i) through (iii); | ||||||
18 | (v) implementation of those regulations | ||||||
19 | established for the use of the sheltered market | ||||||
20 | process. | ||||||
21 | (2) State agencies and public institutions of higher | ||||||
22 | education shall monitor a vendor's compliance with its | ||||||
23 | utilization plan and the terms of its contract. Without | ||||||
24 | limitation, a vendor's failure to comply with its contractual | ||||||
25 | commitments as contained in the utilization plan; failure to | ||||||
26 | cooperate in providing information regarding its compliance |
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1 | with its utilization plan; or the provision of false or | ||||||
2 | misleading information or statements concerning compliance, | ||||||
3 | certification status, or eligibility of the Business | ||||||
4 | Enterprise Program-certified vendor, good faith efforts, or | ||||||
5 | any other material fact or representation shall constitute a | ||||||
6 | material breach of the contract and entitle the State agency | ||||||
7 | or public institution of higher education to declare a | ||||||
8 | default, terminate the contract, or exercise those remedies | ||||||
9 | provided for in the contract, at law, or in equity. | ||||||
10 | (3) Prior to the expiration or termination of a contract, | ||||||
11 | State agencies and public institutions of higher education | ||||||
12 | shall evaluate the contractor's fulfillment of the contract | ||||||
13 | goals for participation by certified businesses owned by | ||||||
14 | minorities, women, and persons with disabilities. The agency | ||||||
15 | or public institution of higher education shall prepare a | ||||||
16 | report of the vendor's compliance with the contract goals and | ||||||
17 | file it with the Secretary. If the Secretary determines that | ||||||
18 | the vendor did not fulfill the contract goals, the vendor | ||||||
19 | shall be in breach of the contract and may be subject to | ||||||
20 | remedies or sanctions, unless the vendor can show that it made | ||||||
21 | good faith efforts to meet the contract goals. Such remedies | ||||||
22 | or sanctions for failing to make good faith efforts may | ||||||
23 | include (i) disqualification of the contractor from doing | ||||||
24 | business with the State for a period of no more than one year , | ||||||
25 | or (ii) cancellation, without any penalty to the State, of any | ||||||
26 | contract entered into by the vendor , or (iii) the assessment |
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1 | of a penalty in the amount of the discrepancy between the | ||||||
2 | commitment contained in the utilization plan, as such amount | ||||||
3 | may be amended over the term of the contract, and the | ||||||
4 | qualifying payments made to the certified vendors listed in | ||||||
5 | the utilization plan . The Business Enterprise Program shall | ||||||
6 | develop procedures for determining whether a vendor has made | ||||||
7 | good faith efforts to meet the contract goals upon the | ||||||
8 | expiration or termination of a contract. | ||||||
9 | (Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21 .) |