Illinois General Assembly - Full Text of HB3220
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Full Text of HB3220  102nd General Assembly

HB3220eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB3220 EngrossedLRB102 15164 RJF 20519 b

1    AN ACT concerning government.
 
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8    (Section scheduled to be repealed on June 30, 2024)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

 

 

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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 $75,000,000 as evidenced by the federal
14    income tax return of the business. A vendor firm with
15    gross sales in excess of this cap may apply to the Council
16    for certification for a particular contract if the vendor
17    firm 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.
22        (11) "Utilization plan" means an attachment that is
23    made to a form and additional documentations included in
24    all bids or proposals and that demonstrates the bidder's
25    or offeror's efforts to meet the contract-specific
26    Business Enterprise Program goal. The utilization plan

 

 

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1    shall indicate whether the prime vendor intends to meet
2    the Business Enterprise Program goal through its own
3    performance, if it is a certified vendor, or through the
4    use of subcontractors that are certified vendors. a
5    vendor's proposed utilization of vendors certified by the
6    Business Enterprise Program to meet the targeted goal. The
7    utilization plan shall demonstrate that the Vendor has
8    either: (1) met the entire contract goal or (2) requested
9    a full or partial waiver of the contract goal. If the prime
10    vendor intends to use a subcontractor that is a certified
11    vendor to fulfill the contract goal, a participation
12    agreement executed between the prime vendor and the
13    certified subcontractor must be included with the
14    utilization plan and made good faith efforts towards
15    meeting the goal.
16        (12) "Business Enterprise Program" means the Business
17    Enterprise Program of the Commission on Equity and
18    Inclusion.
19        (13) "Good faith effort" means actions undertaken by a
20    vendor to achieve a contract specific Business Enterprise
21    Program goal that, by scope, intensity, and
22    appropriateness to the objective, can reasonably be
23    expected to fulfill the program's requirements.
24    (B) When a business is owned at least 51% by any
25combination of minority persons, women, or persons with
26disabilities, even though none of the 3 classes alone holds at

 

 

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1least a 51% interest, the ownership requirement for purposes
2of this Act is considered to be met. The certification
3category for the business is that of the class holding the
4largest ownership interest in the business. If 2 or more
5classes have equal ownership interests, the certification
6category shall be determined by the business.
7(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
8102-29, eff. 6-25-21.)
 
9    (30 ILCS 575/3.5 new)
10    Sec. 3.5. Uniform standard of contract goals.
11    (a) The Business Enterprise Program shall establish
12uniform standards for calculating contract specific Business
13Enterprise Program goals for all State contracts and State
14construction contracts subject to this Act. The uniform
15standards may consider normal industry practice, the scope of
16the work to be performed under a contract, the availability of
17vendors that are able to perform the scope of the work to be
18performed under a contract, the availability of certified
19vendors that are able to perform the work to be performed under
20a contract, and the State's progress to date toward meeting
21the aspirational goals set forth in this Act.
22    (b) No State agency or public institution of higher
23education shall maintain a policy of establishing contract
24specific goals for the participation of certified vendors that
25is inconsistent with or less stringent than the uniform

 

 

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1standards for calculating contract specific goals established
2by the Business Enterprise Program.
3    (c) Each State agency and public institution of higher
4education subject to the requirements of this Act shall, on an
5annual basis, submit a report to the Council detailing its
6plan to meet the aspirational contract goals established under
7this Act and established for that agency and institution.
 
8    (30 ILCS 575/5)  (from Ch. 127, par. 132.605)
9    (Section scheduled to be repealed on June 30, 2024)
10    Sec. 5. Business Enterprise Council.
11    (1) To help implement, monitor, and enforce the goals of
12this Act, there is created the Business Enterprise Council for
13Minorities, Women, and Persons with Disabilities, hereinafter
14referred to as the Council, composed of the Chairperson of the
15Commission on Equity and Inclusion, the Secretary of Human
16Services and the Directors of the Department of Human Rights,
17the Department of Commerce and Economic Opportunity, the
18Department of Central Management Services, the Department of
19Transportation and the Capital Development Board, or their
20duly appointed representatives, with the Comptroller, or his
21or her designee, serving as an advisory member of the Council.
22Ten individuals representing businesses that are
23minority-owned, women-owned, or owned by persons with
24disabilities, 2 individuals representing the business
25community, and a representative of public institutions of

 

 

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1higher education shall be appointed by the Governor. These
2members shall serve 2-year terms and shall be eligible for
3reappointment. Any vacancy occurring on the Council shall also
4be filled by the Governor. Any member appointed to fill a
5vacancy occurring prior to the expiration of the term for
6which his or her predecessor was appointed shall be appointed
7for the remainder of such term. Members of the Council shall
8serve without compensation but shall be reimbursed for any
9ordinary and necessary expenses incurred in the performance of
10their duties.
11    The Chairperson of the Commission shall serve as the
12Council chairperson and shall select, subject to approval of
13the Council, a Secretary responsible for the operation of the
14program who shall serve as the Division Manager of the
15Business Enterprise for Minorities, Women, and Persons with
16Disabilities Division of the Commission on Equity and
17Inclusion.
18    The Director of each State agency and the chief executive
19officer of each public institution of higher education shall
20appoint a liaison to the Council. The liaison shall be
21responsible for submitting to the Council any reports and
22documents necessary under this Act.
23    (2) The Council's authority and responsibility shall be
24to:
25        (a) Devise a certification procedure to assure that
26    businesses taking advantage of this Act are legitimately

 

 

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1    classified as businesses owned by minorities, women, or
2    persons with disabilities and a registration procedure to
3    recognize, without additional evidence of Business
4    Enterprise Program eligibility, the certification of
5    businesses owned by minorities, women, or persons with
6    disabilities certified by the City of Chicago, Cook
7    County, or other jurisdictional programs with requirements
8    and procedures equaling or exceeding those in this Act.
9        (b) Maintain a list of all businesses legitimately
10    classified as businesses owned by minorities, women, or
11    persons with disabilities to provide to State agencies and
12    public institutions of higher education.
13        (c) Review rules and regulations for the
14    implementation of the program for businesses owned by
15    minorities, women, and persons with disabilities.
16        (d) Review compliance plans submitted by each State
17    agency and public institution of higher education pursuant
18    to this Act.
19        (e) Make annual reports as provided in Section 8f to
20    the Governor and the General Assembly on the status of the
21    program.
22        (f) Serve as a central clearinghouse for information
23    on State contracts, including the maintenance of a list of
24    all pending State contracts upon which businesses owned by
25    minorities, women, and persons with disabilities may bid.
26    At the Council's discretion, maintenance of the list may

 

 

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1    include 24-hour electronic access to the list along with
2    the bid and application information.
3        (g) Establish a toll-free telephone number to
4    facilitate information requests concerning the
5    certification process and pending contracts.
6    (3) No premium bond rate of a surety company for a bond
7required of a business owned by a minority, woman, or person
8with a disability bidding for a State contract shall be higher
9than the lowest rate charged by that surety company for a
10similar bond in the same classification of work that would be
11written for a business not owned by a minority, woman, or
12person with a disability.
13    (4) Any Council member who has direct financial or
14personal interest in any measure pending before the Council
15shall disclose this fact to the Council and refrain from
16participating in the determination upon such measure.
17    (5) The Secretary shall have the following duties and
18responsibilities:
19        (a) To be responsible for the day-to-day operation of
20    the Council.
21        (b) To serve as a coordinator for all of the State's
22    programs for businesses owned by minorities, women, and
23    persons with disabilities and as the information and
24    referral center for all State initiatives for businesses
25    owned by minorities, women, and persons with disabilities.
26        (c) To establish an enforcement procedure whereby the

 

 

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1    Council may recommend to the appropriate State legal
2    officer that the State exercise its legal remedies which
3    shall include (1) termination of the contract involved,
4    (2) prohibition of participation by the respondent in
5    State public contracts for a period not to exceed 3 years,
6    (3) imposition of a penalty in the amount of the
7    discrepancy between the commitment contained in the
8    utilization plan, as such amount may be amended over the
9    term of the contract, and the qualifying payments made to
10    the eligible certified vendors listed in the utilization
11    plan a penalty not to exceed any profit acquired as a
12    result of violation, or (4) any combination thereof. Such
13    procedures shall require prior approval by Council. All
14    funds collected as penalties under this subsection shall
15    be used exclusively for maintenance and further
16    development of the Business Enterprise Program and
17    encouragement of participation in State procurement by
18    minorities, women, and persons with disabilities.
19        (d) To devise appropriate policies, regulations, and
20    procedures for including participation by businesses owned
21    by minorities, women, and persons with disabilities as
22    prime contractors, including, but not limited to: (i)
23    encouraging the inclusions of qualified businesses owned
24    by minorities, women, and persons with disabilities on
25    solicitation lists, (ii) investigating the potential of
26    blanket bonding programs for small construction jobs, and

 

 

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1    (iii) investigating and making recommendations concerning
2    the use of the sheltered market process.
3        (e) To devise procedures for the waiver of the
4    participation goals in appropriate circumstances.
5        (f) To accept donations and, with the approval of the
6    Council or the Chairperson of the Commission on Equity and
7    Inclusion, grants related to the purposes of this Act; to
8    conduct seminars related to the purpose of this Act and to
9    charge reasonable registration fees; and to sell
10    directories, vendor lists, and other such information to
11    interested parties, except that forms necessary to become
12    eligible for the program shall be provided free of charge
13    to a business or individual applying for the Business
14    Enterprise Program.
15(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
16102-29, eff. 6-25-21; 102-558, eff. 8-20-21.)
 
17    (30 ILCS 575/7)  (from Ch. 127, par. 132.607)
18    (Section scheduled to be repealed on June 30, 2024)
19    Sec. 7. Exemptions; waivers; publication of data.
20    (1) Individual contract exemptions. The Council, at the
21written request of the affected agency, public institution of
22higher education, or recipient of a grant or loan of State
23funds of $250,000 or more complying with Section 45 of the
24State Finance Act, may permit an individual contract or
25contract package, (related contracts being bid or awarded

 

 

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

 

 

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

 

 

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1    the affected agency or public institution of higher
2    education, may permit an entire class of contracts be made
3    exempt from State contracting goals for businesses owned
4    by minorities, women, and persons with disabilities
5    whenever there has been a determination, reduced to
6    writing and based on the best information available at the
7    time of the determination, that there is an insufficient
8    number of qualified businesses owned by minorities, women,
9    and persons with disabilities to ensure adequate
10    competition and an expectation of reasonable prices on
11    bids or proposals within that class. Any such exemption
12    shall be given by the Council to the Bureau on
13    Apprenticeship Programs and Clean Energy Jobs.
14        (a-1) Written request for class exemption. A written
15    request for a class exemption must include, but is not
16    limited to, the following:
17            (i) a list of eligible businesses owned by
18        minorities, women, and persons with disabilities;
19            (ii) a clear demonstration that the number of
20        eligible businesses identified in subparagraph (i)
21        above is insufficient to ensure adequate competition;
22            (iii) the difference in cost between the contract
23        proposals being offered by eligible businesses owned
24        by minorities, women, and persons with disabilities
25        and the agency or public institution of higher
26        education's expectations of reasonable prices on bids

 

 

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

 

 

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1Business Enterprise Program shall evaluate a vendor's request
2for a waiver based on the vendor's documented good faith
3efforts to meet the contract-specific Business Enterprise
4Program goal. The Council may shall grant the waiver when the
5contractor demonstrates that there has been made a good faith
6effort to comply with the goals for participation by
7businesses owned by minorities, women, and persons with
8disabilities. Any such waiver may shall also be transmitted in
9writing to the Bureau on Apprenticeship Programs and Clean
10Energy Jobs.
11        (a) Request for waiver. A vendor's contractor's
12    request for a waiver under this subsection (3) must
13    include, but is not limited to, the following, if
14    available:
15            (i) a list of eligible businesses owned by
16        minorities, women, and persons with disabilities that
17        pertain to the the class of contracts in the requested
18        waiver that were contracted by the vendor scope of
19        work of the contract. Eligible businesses are only
20        eligible if the business is certified for the products
21        or work advertised in the solicitation or bid;
22            (ii) (blank);
23            (iia) a clear demonstration that the vendor
24        contractor selected portions of the work to be
25        performed by certified vendors to facilitate meeting
26        the contract specific goal, and that certified vendors

 

 

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

 

 

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1            (iie) evidence that the prime vendor negotiated
2        with certified vendors to enter into subcontracts to
3        provide a commercially useful function of the contract
4        for a reasonable cost;
5            (iii) documentation demonstrating that the
6        difference in cost between the contract proposals
7        being offered by certified vendors is contract
8        proposals being offered by businesses owned by
9        minorities, women, and persons with disabilities are
10        excessive or unreasonable; and
11            (iv) a list of certified vendors businesses owned
12        by minorities, women, and persons with disabilities
13        that the contractor has used in the current and prior
14        fiscal years; .
15            (v) documentation demonstrating that the vendor
16        made efforts to utilize certified vendors despite the
17        ability or desire of a vendor to perform the work with
18        its own operations by selecting portions of the work
19        to be performed by certified vendors, which may, when
20        appropriate, include breaking out portions of the work
21        to be performed into economically feasible units to
22        facilitate certified vendor participation; and
23            (vi) documentation that the vendor used the
24        services of: (1) the State; (2) organizations or
25        contractors' groups representing or composed of
26        minorities, women, or persons with disabilities; (3)

 

 

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1        local, State, or federal assistance offices
2        representing or assisting minorities, women, or
3        persons with disabilities; and (4) other organizations
4        that provide assistance in the recruitment and
5        engagement of certified vendors.
6        (b) Determination. The Council's determination
7    concerning waivers must include following:
8            (i) the justification for the requested waiver,
9        including whether the requesting vendor contractor
10        made a good faith effort to identify and solicit
11        certified vendors based on the criteria set forth in
12        this Section eligible businesses owned by minorities,
13        women, and persons with disabilities;
14            (ii) the total number of waivers the vendor
15        contractor has been granted by the Council in the
16        current and prior fiscal years;
17            (iii) (blank); and
18            (iv) the vendor's contractor's use of businesses
19        owned by minorities, women, and persons with
20        disabilities in the current and prior fiscal years.
21    (3.5) (Blank).
22    (4) Conflict with other laws. In the event that any State
23contract, which otherwise would be subject to the provisions
24of this Act, is or becomes subject to federal laws or
25regulations which conflict with the provisions of this Act or
26actions of the State taken pursuant hereto, the provisions of

 

 

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1the federal laws or regulations shall apply and the contract
2shall be interpreted and enforced accordingly.
3    (5) Each chief procurement officer, as defined in the
4Illinois Procurement Code, shall maintain on his or her
5official Internet website a database of the following: (i)
6waivers granted under this Section with respect to contracts
7under his or her jurisdiction; (ii) a State agency or public
8institution of higher education's written request for an
9exemption of an individual contract or an entire class of
10contracts; and (iii) the Council's written determination
11granting or denying a request for an exemption of an
12individual contract or an entire class of contracts. The
13database, which shall be updated periodically as necessary,
14shall be searchable by contractor name and by contracting
15State agency.
16    (6) Each chief procurement officer, as defined by the
17Illinois Procurement Code, shall maintain on its website a
18list of all vendors firms that have been prohibited from
19bidding, offering, or entering into a contract with the State
20of Illinois as a result of violations of this Act.
21    Each public notice required by law of the award of a State
22contract shall include for each bid or offer submitted for
23that contract the following: (i) the bidder's or offeror's
24name, (ii) the bid amount, (iii) the name or names of the
25certified vendors firms identified in the bidder's or
26offeror's submitted utilization plan, and (iv) the bid's

 

 

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1amount and percentage of the contract awarded to each
2certified vendor that is a business businesses owned by
3minorities, women, and persons with disabilities identified in
4the utilization plan.
5(Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20;
6101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff.
79-15-21.)
 
8    (30 ILCS 575/8)  (from Ch. 127, par. 132.608)
9    (Section scheduled to be repealed on June 30, 2024)
10    Sec. 8. Enforcement.
11    (1) The Commission on Equity and Inclusion shall make such
12findings, recommendations and proposals to the Governor as are
13necessary and appropriate to enforce this Act. If, as a result
14of its monitoring activities, the Commission determines that
15its goals and policies are not being met by any State agency or
16public institution of higher education, the Commission may
17recommend any or all of the following actions:
18        (a) Establish enforcement procedures whereby the
19    Commission may recommend to the appropriate State agency,
20    public institutions of higher education, or law
21    enforcement officer that legal or administrative remedies
22    be initiated for violations of contract provisions or
23    rules issued hereunder or by a contracting State agency or
24    public institutions of higher education. State agencies
25    and public institutions of higher education shall be

 

 

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

 

 

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1        requirements, when economically feasible, into tasks
2        or quantities to permit participation of businesses
3        owned by minorities, women, and persons with
4        disabilities;
5            (iii) elimination of extended experience or
6        capitalization requirements, when programmatically
7        feasible, to permit participation of businesses owned
8        by minorities, women, and persons with disabilities;
9            (iv) identification of specific proposed contracts
10        as particularly attractive or appropriate for
11        participation by businesses owned by minorities,
12        women, and persons with disabilities, such
13        identification to result from and be coupled with the
14        efforts of subparagraphs (i) through (iii);
15            (v) implementation of those regulations
16        established for the use of the sheltered market
17        process.
18    (2) State agencies and public institutions of higher
19education shall monitor a vendor's compliance with its
20utilization plan and the terms of its contract. Without
21limitation, a vendor's failure to comply with its contractual
22commitments as contained in the utilization plan; failure to
23cooperate in providing information regarding its compliance
24with its utilization plan; or the provision of false or
25misleading information or statements concerning compliance,
26certification status, or eligibility of the Business

 

 

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

 

 

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1qualifying payments made to the certified vendors listed in
2the utilization plan.
3    The Business Enterprise Program shall develop procedures
4for determining whether a vendor has made good faith efforts
5to meet the contract goals upon the expiration or termination
6of a contract, which may include, but shall not be limited to:
7(i) consideration of whether State or local action caused a
8shortfall, such as a change in the scope of work that
9eliminated work to be performed by certified vendors or a
10change in specifications; (ii) whether the vendor was unable
11to obtain certified business participation without requiring
12the introduction of extra participants not performing a
13commercially useful function; or (iii) whether the vendor made
14efforts to use appropriate forums for purposes of advertising
15subcontracting opportunities suitable for certified
16businesses.
17(Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21.)