Full Text of HB2629 102nd General Assembly
HB2629ham002 102ND GENERAL ASSEMBLY | Rep. William Davis Filed: 4/20/2021
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| 1 | | AMENDMENT TO HOUSE BILL 2629
| 2 | | AMENDMENT NO. ______. Amend House Bill 2629 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Business Enterprise for Minorities, Women, | 5 | | and Persons with
Disabilities Act is amended by changing | 6 | | Sections 4, 7, and 8 as follows:
| 7 | | (30 ILCS 575/4) (from Ch. 127, par. 132.604)
| 8 | | (Text of Section before amendment by P.A. 101-657 )
| 9 | | (Section scheduled to be repealed on June 30, 2024)
| 10 | | Sec. 4. Award of State contracts.
| 11 | | (a) Except as provided in subsection (b), not less than | 12 | | 20% of
the total dollar amount of State contracts, as defined | 13 | | by the Secretary of
the Council and approved by the Council, | 14 | | shall be established as an aspirational goal to
be awarded to | 15 | | businesses owned by minorities,
women, and persons with | 16 | | disabilities; provided, however, that
of the total amount of |
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| 1 | | all
State contracts awarded to businesses owned by
minorities, | 2 | | women, and persons with disabilities pursuant to
this Section, | 3 | | contracts representing at least 11% shall be awarded to | 4 | | businesses owned by minorities, contracts representing at | 5 | | least 7% shall be awarded to women-owned businesses, and | 6 | | contracts representing at least 2% shall be awarded to | 7 | | businesses owned by persons with disabilities.
| 8 | | The above percentage relates to the total dollar amount of | 9 | | State
contracts during each State fiscal year, calculated by | 10 | | examining
independently each type of contract for each agency | 11 | | or public institutions of higher education which
lets such | 12 | | contracts. Only that percentage of arrangements which | 13 | | represents the participation of businesses owned by
| 14 | | minorities, women, and persons with disabilities on such | 15 | | contracts shall
be included. State contracts subject to the | 16 | | requirements of this Act shall include the requirement that | 17 | | only expenditures to businesses owned by minorities, women, | 18 | | and persons with disabilities that perform a commercially | 19 | | useful function may be counted toward the goals set forth by | 20 | | this Act. Contracts shall include a definition of | 21 | | "commercially useful function" that is consistent with 49 CFR | 22 | | 26.55(c).
| 23 | | (b) Not less
than 20% of the total dollar amount of State | 24 | | construction contracts is
established as an aspirational goal | 25 | | to be awarded to businesses owned by minorities, women, and | 26 | | persons with disabilities; provided that, contracts |
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| 1 | | representing at least 11% of the total dollar amount of State | 2 | | construction contracts shall be awarded to businesses owned by | 3 | | minorities; contracts representing at least 7% of the total | 4 | | dollar amount of State construction contracts shall be awarded | 5 | | to women-owned businesses; and contracts representing at least | 6 | | 2% of the total dollar amount of State construction contracts | 7 | | shall be awarded to businesses owned by persons with | 8 | | disabilities.
| 9 | | (c) (Blank). | 10 | | (d) Within one year after April 28, 2009 (the effective | 11 | | date of Public Act 96-8), the Department of Central Management | 12 | | Services shall conduct a social scientific study that measures | 13 | | the impact of discrimination on minority and women business | 14 | | development in Illinois. Within 18 months after April 28, 2009 | 15 | | (the effective date of Public Act 96-8), the Department shall | 16 | | issue a report of its findings and any recommendations on | 17 | | whether to adjust the goals for minority and women | 18 | | participation established in this Act. Copies of this report | 19 | | and the social scientific study shall be filed with the | 20 | | Governor and the General Assembly. | 21 | | By December 1, 2020, the Department of Central Management | 22 | | Services shall conduct a new social scientific study that | 23 | | measures the impact of discrimination on minority and women | 24 | | business development in Illinois. By June 1, 2022, the | 25 | | Department shall issue a report of its findings and any | 26 | | recommendations on whether to adjust the goals for minority |
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| 1 | | and women participation established in this Act. Copies of | 2 | | this report and the social scientific study shall be filed | 3 | | with the Governor, the Advisory Board, and the General | 4 | | Assembly. By December 1, 2022, the Department of Central | 5 | | Management Services Business Enterprise Program shall develop | 6 | | a model for social scientific disparity study sourcing for | 7 | | local governmental units to adapt and implement to address | 8 | | regional disparities in public procurement. | 9 | | (e) Except as permitted under this Act or as otherwise | 10 | | mandated by federal law or regulation, those who submit bids | 11 | | or proposals for State contracts subject to the provisions of | 12 | | this Act, whose bids or proposals are successful and include a | 13 | | utilization plan but that fail to meet the goals set forth in | 14 | | subsection (b) of this Section, shall be notified of that | 15 | | deficiency and shall be afforded a period not to exceed 10 | 16 | | calendar days from the date of notification to cure that | 17 | | deficiency in the bid or proposal. The deficiency in the bid or | 18 | | proposal may only be cured by contracting with additional | 19 | | subcontractors who are owned by minorities or women. Any | 20 | | increase in cost to
a contract for the addition of a | 21 | | subcontractor to cure a bid's deficiency shall not affect the | 22 | | bid price,
shall not be used in the request for an exemption in | 23 | | this Act, and in no case shall an identified subcontractor | 24 | | with a certification made pursuant to this Act be terminated | 25 | | from the contract without the written consent of the State | 26 | | agency or public institution of higher education entering into |
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| 1 | | the contract. | 2 | | (f) Non-construction solicitations that include Business | 3 | | Enterprise Program participation goals shall require bidders | 4 | | and offerors to include utilization plans. Utilization plans | 5 | | are due at the time of bid or offer submission. Failure to | 6 | | complete and include a utilization plan, including | 7 | | documentation demonstrating good faith effort when requesting | 8 | | a waiver, shall render the bid or offer non-responsive. | 9 | | (Source: P.A. 100-391, eff. 8-25-17; 101-170, eff. 1-1-20; | 10 | | 101-601, eff. 1-1-20.) | 11 | | (Text of Section after amendment by P.A. 101-657 ) | 12 | | (Section scheduled to be repealed on June 30, 2024)
| 13 | | Sec. 4. Award of State contracts.
| 14 | | (a) Except as provided in subsection (b), not less than | 15 | | 30% of
the total dollar amount of State contracts, as defined | 16 | | by the Secretary of
the Council and approved by the Council, | 17 | | shall be established as an aspirational goal to
be awarded to | 18 | | businesses owned by minorities,
women, and persons with | 19 | | disabilities; provided, however, that
of the total amount of | 20 | | all
State contracts awarded to businesses owned by
minorities, | 21 | | women, and persons with disabilities pursuant to
this Section, | 22 | | contracts representing at least 16% shall be awarded to | 23 | | businesses owned by minorities, contracts representing at | 24 | | least 10% shall be awarded to women-owned businesses, and | 25 | | contracts representing at least 4% shall be awarded to |
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| 1 | | businesses owned by persons with disabilities. Of the 16% of | 2 | | contracts awarded to businesses owned by minorities: (i) a | 3 | | minimum of 6% of the total dollar amount of State contracts | 4 | | must be spent with certified African American Business | 5 | | Enterprise Program vendors; and (ii) a minimum of 6% of the | 6 | | total dollar amount of State contracts must be spent with | 7 | | certified Hispanic Business Enterprise Program vendors.
| 8 | | (a-5) In addition to the aspirational goals in awarding | 9 | | State contracts set under subsection (a), the Department of | 10 | | Central Management Services shall by rule further establish | 11 | | committed diversity aspirational goals for State contracts | 12 | | awarded to businesses owned by minorities, women, and persons | 13 | | with disabilities. Such efforts shall include, but not be | 14 | | limited to, further concerted outreach efforts to businesses | 15 | | owned by minorities, women, and persons with disabilities. | 16 | | The above percentage relates to the total dollar amount of | 17 | | State
contracts during each State fiscal year, calculated by | 18 | | examining
independently each type of contract for each agency | 19 | | or public institutions of higher education which
lets such | 20 | | contracts. Only that percentage of arrangements which | 21 | | represents the participation of businesses owned by
| 22 | | minorities, women, and persons with disabilities on such | 23 | | contracts shall
be included. State contracts subject to the | 24 | | requirements of this Act shall include the requirement that | 25 | | only expenditures to businesses owned by minorities, women, | 26 | | and persons with disabilities that perform a commercially |
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| 1 | | useful function may be counted toward the goals set forth by | 2 | | this Act. Contracts shall include a definition of | 3 | | "commercially useful function" that is consistent with 49 CFR | 4 | | 26.55(c).
| 5 | | (b) Not less
than 20% of the total dollar amount of State | 6 | | construction contracts is
established as an aspirational goal | 7 | | to be awarded to businesses owned by minorities, women, and | 8 | | persons with disabilities; provided that, contracts | 9 | | representing at least 11% of the total dollar amount of State | 10 | | construction contracts shall be awarded to businesses owned by | 11 | | minorities; contracts representing at least 7% of the total | 12 | | dollar amount of State construction contracts shall be awarded | 13 | | to women-owned businesses; and contracts representing at least | 14 | | 2% of the total dollar amount of State construction contracts | 15 | | shall be awarded to businesses owned by persons with | 16 | | disabilities.
| 17 | | (c) (Blank). | 18 | | (d) Within one year after April 28, 2009 (the effective | 19 | | date of Public Act 96-8), the Department of Central Management | 20 | | Services shall conduct a social scientific study that measures | 21 | | the impact of discrimination on minority and women business | 22 | | development in Illinois. Within 18 months after April 28, 2009 | 23 | | (the effective date of Public Act 96-8), the Department shall | 24 | | issue a report of its findings and any recommendations on | 25 | | whether to adjust the goals for minority and women | 26 | | participation established in this Act. Copies of this report |
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| 1 | | and the social scientific study shall be filed with the | 2 | | Governor and the General Assembly. | 3 | | By December 1, 2020, the Department of Central Management | 4 | | Services shall conduct a new social scientific study that | 5 | | measures the impact of discrimination on minority and women | 6 | | business development in Illinois. By June 1, 2022, the | 7 | | Department shall issue a report of its findings and any | 8 | | recommendations on whether to adjust the goals for minority | 9 | | and women participation established in this Act. Copies of | 10 | | this report and the social scientific study shall be filed | 11 | | with the Governor and the General Assembly. By December 1, | 12 | | 2022, the Department of Central Management Services Business | 13 | | Enterprise Program shall develop a model for social scientific | 14 | | disparity study sourcing for local governmental units to adapt | 15 | | and implement to address regional disparities in public | 16 | | procurement. | 17 | | (e) Except as permitted under this Act or as otherwise | 18 | | mandated by federal law or regulation, those who submit bids | 19 | | or proposals for State contracts subject to the provisions of | 20 | | this Act, whose bids or proposals are successful and include a | 21 | | utilization plan but that fail to meet the goals set forth in | 22 | | subsection (b) of this Section, shall be notified of that | 23 | | deficiency and shall be afforded a period not to exceed 10 | 24 | | calendar days from the date of notification to cure that | 25 | | deficiency in the bid or proposal. The deficiency in the bid or | 26 | | proposal may only be cured by contracting with additional |
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| 1 | | subcontractors who are owned by minorities or women. Any | 2 | | increase in cost to
a contract for the addition of a | 3 | | subcontractor to cure a bid's deficiency shall not affect the | 4 | | bid price,
shall not be used in the request for an exemption in | 5 | | this Act, and in no case shall an identified subcontractor | 6 | | with a certification made pursuant to this Act be terminated | 7 | | from the contract without the written consent of the State | 8 | | agency or public institution of higher education entering into | 9 | | the contract. The Commission on Equity and Inclusion shall be | 10 | | notified of all utilization plan deficiencies on submitted | 11 | | bids or proposals for State contracts under this subsection | 12 | | (e). | 13 | | (f) Non-construction solicitations that include Business | 14 | | Enterprise Program participation goals shall require bidders | 15 | | and offerors to include utilization plans. Utilization plans | 16 | | are due at the time of bid or offer submission. Failure to | 17 | | complete and include a utilization plan, including | 18 | | documentation demonstrating good faith effort when requesting | 19 | | a waiver, shall render the bid or offer non-responsive. The | 20 | | Commission on Equity and Inclusion shall be notified of all | 21 | | bids and offers that fail to include a utilization plan as | 22 | | required under this subsection (f). | 23 | | (g) Bids or proposals for State contracts shall be | 24 | | examined to determine if the bid or proposal is responsible, | 25 | | competitive, and whether the services to be provided are | 26 | | likely to be completed based upon the pricing. If the bid or |
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| 1 | | proposal is responsible, competitive, and the services to be | 2 | | provided are likely to be completed based on the prices | 3 | | listed, then the bid is deemed responsive. If the bid or | 4 | | proposal is not responsible, competitive, and the services to | 5 | | be provided are not likely to be completed based on the prices | 6 | | listed, then the entire bid is deemed non-responsive. The | 7 | | Commission on Equity and Inclusion shall be notified of all | 8 | | non-responsive bids or proposals for State contracts under | 9 | | this subsection (g). | 10 | | (Source: P.A. 100-391, eff. 8-25-17; 101-170, eff. 1-1-20; | 11 | | 101-601, eff. 1-1-20; 101-657, Article 1, Section 1-5, eff. | 12 | | 1-1-22; 101-657, Article 40, Section 40-130, eff. 1-1-22; | 13 | | revised 4-15-21.) | 14 | | (30 ILCS 575/7) (from Ch. 127, par. 132.607) | 15 | | (Text of Section before amendment by P.A. 101-657 ) | 16 | | (Section scheduled to be repealed on June 30, 2024) | 17 | | Sec. 7. Exemptions; waivers; publication of data. | 18 | | (1) Individual contract exemptions.
The Council, at the | 19 | | written request of the affected agency,
public institution of | 20 | | higher education, or recipient of a grant or loan of State | 21 | | funds of $250,000 or more complying with Section 45 of the | 22 | | State Finance Act, may permit an individual contract or | 23 | | contract package,
(related contracts being bid or awarded | 24 | | simultaneously for the same project
or improvements) be made | 25 | | wholly or partially exempt from State contracting
goals for |
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| 1 | | businesses owned by
minorities, women, and persons with | 2 | | disabilities prior to the advertisement
for bids or | 3 | | solicitation of proposals whenever there has been a
| 4 | | determination, reduced to writing and based on the best | 5 | | information
available at the time of the determination, that | 6 | | there is an insufficient
number of businesses owned by | 7 | | minorities, women, and persons with disabilities to ensure | 8 | | adequate
competition and an expectation of reasonable prices | 9 | | on bids or proposals
solicited for the individual contract or | 10 | | contract package in question. Any such exemptions shall be | 11 | | given by
the Council to the Bureau on Apprenticeship Programs. | 12 | | (a) Written request for contract exemption. A written | 13 | | request for an individual contract exemption must include, | 14 | | but is not limited to, the following: | 15 | | (i) a list of eligible businesses owned by | 16 | | minorities, women, and persons with disabilities; | 17 | | (ii) a clear demonstration that the number of | 18 | | eligible businesses identified in subparagraph (i) | 19 | | above is insufficient to ensure adequate competition; | 20 | | (iii) the difference in cost between the contract | 21 | | proposals being offered by businesses owned by | 22 | | minorities, women, and persons with disabilities and | 23 | | the agency or public institution of higher education's | 24 | | expectations of reasonable prices on bids or proposals | 25 | | within that class; and | 26 | | (iv) a list of eligible businesses owned by |
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| 1 | | minorities, women, and persons with
disabilities that | 2 | | the contractor has used in the current and prior | 3 | | fiscal years. | 4 | | (b) Determination. The Council's determination | 5 | | concerning an individual contract exemption must consider, | 6 | | at a minimum, the following: | 7 | | (i) the justification for the requested exemption, | 8 | | including whether diligent efforts were undertaken to | 9 | | identify and solicit eligible businesses owned by | 10 | | minorities, women, and persons with disabilities; | 11 | | (ii) the total number of exemptions granted to the | 12 | | affected agency, public institution of higher | 13 | | education, or recipient of a grant or loan of State | 14 | | funds of $250,000 or more complying with Section 45 of | 15 | | the State Finance Act that have been granted by the | 16 | | Council in the current and prior fiscal years; and | 17 | | (iii) the percentage of contracts awarded by the | 18 | | agency or public institution of higher education to | 19 | | eligible businesses owned by minorities, women, and | 20 | | persons with disabilities in the current and prior | 21 | | fiscal years. | 22 | | (2) Class exemptions. | 23 | | (a) Creation. The Council, at the written request of | 24 | | the affected agency or public institution of higher | 25 | | education, may permit an entire
class of
contracts be made | 26 | | exempt from State
contracting goals for businesses owned |
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| 1 | | by minorities, women, and persons
with disabilities | 2 | | whenever there has been a determination, reduced to
| 3 | | writing and based on the best information available at the | 4 | | time of the
determination, that there is an insufficient | 5 | | number of qualified businesses owned by minorities, women, | 6 | | and persons with
disabilities to ensure adequate | 7 | | competition and an
expectation of reasonable prices on | 8 | | bids or proposals within that class. Any such exemption | 9 | | shall be given by
the Council to the Bureau on | 10 | | Apprenticeship Programs. | 11 | | (a-1) Written request for class exemption. A written | 12 | | request for a class exemption must include, but is not | 13 | | limited to, the following: | 14 | | (i) a list of eligible businesses owned by | 15 | | minorities, women, and persons with disabilities; | 16 | | (ii) a clear demonstration that the number of | 17 | | eligible businesses identified in subparagraph (i) | 18 | | above is insufficient to ensure adequate competition; | 19 | | (iii) the difference in cost between the contract | 20 | | proposals being offered by eligible businesses owned | 21 | | by minorities, women, and persons with disabilities | 22 | | and the agency or public institution of higher | 23 | | education's expectations of reasonable prices on bids | 24 | | or proposals within that class; and | 25 | | (iv) the number of class exemptions the affected | 26 | | agency or public institution
of higher education |
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| 1 | | requested in the current and prior fiscal years. | 2 | | (a-2) Determination. The Council's determination | 3 | | concerning class exemptions must consider, at a minimum, | 4 | | the following: | 5 | | (i) the justification for the requested exemption, | 6 | | including whether diligent efforts were undertaken to | 7 | | identify and solicit eligible businesses owned by | 8 | | minorities, women, and persons with disabilities; | 9 | | (ii) the total number of class exemptions granted | 10 | | to the requesting agency or public institution of | 11 | | higher education that have been granted by the Council | 12 | | in the current and prior fiscal years; and | 13 | | (iii) the percentage of contracts awarded by the | 14 | | agency or public institution of higher education to | 15 | | eligible businesses owned by minorities, women, and | 16 | | persons with disabilities the current and prior fiscal | 17 | | years. | 18 | | (b) Limitation. Any such class exemption shall not be | 19 | | permitted for a
period of more than one year at a time. | 20 | | (3) Waivers. Where a particular contract requires a | 21 | | contractor to meet
a goal established pursuant to this Act, | 22 | | the contractor shall have the right
to request a waiver from | 23 | | such requirements. The Council shall grant the
waiver where | 24 | | the contractor demonstrates that there has been made a good
| 25 | | faith effort to comply with the goals for
participation by | 26 | | businesses owned by minorities, women, and persons with
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| 1 | | disabilities. Any such waiver shall also be
transmitted in | 2 | | writing to the Bureau on Apprenticeship Programs. | 3 | | (a) Request for waiver. A contractor's request for a | 4 | | waiver under this subsection (3) must include, but is not | 5 | | limited to, the following, if available: | 6 | | (i) a list of eligible businesses owned by | 7 | | minorities, women, and persons with disabilities that | 8 | | pertain to the class of contracts in the requested | 9 | | waiver; | 10 | | (ii) a clear demonstration that the number of | 11 | | eligible businesses identified in subparagraph (i) | 12 | | above is insufficient to ensure competition; | 13 | | (iii) the difference in cost between the contract | 14 | | proposals being offered by businesses owned by | 15 | | minorities, women, and persons with disabilities and | 16 | | the agency or the public institution of higher | 17 | | education's expectations of reasonable prices on bids | 18 | | or proposals within that class; and | 19 | | (iv) a list of businesses owned by minorities, | 20 | | women, and persons with disabilities that the | 21 | | contractor has used in the current and prior fiscal | 22 | | years. | 23 | | (b) Determination. The Council's determination | 24 | | concerning waivers must include following: | 25 | | (i) the justification for the requested waiver, | 26 | | including whether the requesting contractor made a |
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| 1 | | good faith effort to identify and solicit eligible | 2 | | businesses owned by minorities, women, and persons | 3 | | with disabilities; | 4 | | (ii) the total number of waivers the contractor | 5 | | has been granted by the Council in the current and | 6 | | prior fiscal years; | 7 | | (iii) the percentage of contracts awarded by the | 8 | | agency or public institution of higher education to | 9 | | eligible businesses owned by minorities, women, and | 10 | | persons with disabilities in the current and prior | 11 | | fiscal years; and | 12 | | (iv) the contractor's use of businesses owned by | 13 | | minorities, women, and persons with disabilities in | 14 | | the current and prior fiscal years. | 15 | | (3.5) (Blank). | 16 | | (4) Conflict with other laws. In the event that any State | 17 | | contract, which
otherwise would be subject to the provisions | 18 | | of this Act, is or becomes
subject to federal laws or | 19 | | regulations which conflict with the provisions
of this Act or | 20 | | actions of the State taken pursuant hereto, the provisions
of | 21 | | the federal laws or regulations shall apply and the contract | 22 | | shall be
interpreted and enforced accordingly. | 23 | | (5) Each chief procurement officer, as defined in the | 24 | | Illinois Procurement Code, shall maintain on his or her | 25 | | official Internet website a database of the following: (i) | 26 | | waivers granted under this Section with respect to contracts |
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| 1 | | under his or her jurisdiction; (ii) a State agency or public | 2 | | institution of higher education's written request for an | 3 | | exemption of an individual contract or an entire class of | 4 | | contracts; and (iii) the Council's written determination | 5 | | granting or denying a request for an exemption of an | 6 | | individual contract or an entire class of contracts. The | 7 | | database, which shall be updated periodically as necessary, | 8 | | shall be searchable by contractor name and by contracting | 9 | | State agency. | 10 | | (6) Each chief procurement officer, as defined by the | 11 | | Illinois Procurement Code, shall maintain on its website a | 12 | | list of all firms that have been prohibited from bidding, | 13 | | offering, or entering into a contract with the State of | 14 | | Illinois as a result of violations of this Act. | 15 | | Each public notice required by law of the award of a State | 16 | | contract shall include for each bid or offer submitted for | 17 | | that contract the following: (i) the bidder's or offeror's | 18 | | name, (ii) the bid amount, (iii) the name or names of the | 19 | | certified firms identified in the bidder's or offeror's | 20 | | submitted utilization plan, and (iv) the bid's amount and | 21 | | percentage of the contract awarded to businesses owned by | 22 | | minorities, women, and persons with disabilities identified in | 23 | | the utilization plan. | 24 | | (Source: P.A. 100-391, eff. 8-25-17; 101-170, eff. 1-1-20; | 25 | | 101-601, eff. 1-1-20.) |
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| 1 | | (Text of Section after amendment by P.A. 101-657 ) | 2 | | (Section scheduled to be repealed on June 30, 2024) | 3 | | Sec. 7. Exemptions; waivers; publication of data. | 4 | | (1) Individual contract exemptions.
The Council, at the | 5 | | written request of the affected agency,
public institution of | 6 | | higher education, or recipient of a grant or loan of State | 7 | | funds of $250,000 or more complying with Section 45 of the | 8 | | State Finance Act, may permit an individual contract or | 9 | | contract package,
(related contracts being bid or awarded | 10 | | simultaneously for the same project
or improvements) be made | 11 | | wholly or partially exempt from State contracting
goals for | 12 | | businesses owned by
minorities, women, and persons with | 13 | | disabilities prior to the advertisement
for bids or | 14 | | solicitation of proposals whenever there has been a
| 15 | | determination, reduced to writing and based on the best | 16 | | information
available at the time of the determination, that | 17 | | there is an insufficient
number of businesses owned by | 18 | | minorities, women, and persons with disabilities to ensure | 19 | | adequate
competition and an expectation of reasonable prices | 20 | | on bids or proposals
solicited for the individual contract or | 21 | | contract package in question. Any such exemptions shall be | 22 | | given by
the Council to the Bureau on Apprenticeship Programs. | 23 | | (a) Written request for contract exemption. A written | 24 | | request for an individual contract exemption must include, | 25 | | but is not limited to, the following: | 26 | | (i) a list of eligible businesses owned by |
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| 1 | | minorities, women, and persons with disabilities; | 2 | | (ii) a clear demonstration that the number of | 3 | | eligible businesses identified in subparagraph (i) | 4 | | above is insufficient to ensure adequate competition; | 5 | | (iii) the difference in cost between the contract | 6 | | proposals being offered by businesses owned by | 7 | | minorities, women, and persons with disabilities and | 8 | | the agency or public institution of higher education's | 9 | | expectations of reasonable prices on bids or proposals | 10 | | within that class; and | 11 | | (iv) a list of eligible businesses owned by | 12 | | minorities, women, and persons with
disabilities that | 13 | | the contractor has used in the current and prior | 14 | | fiscal years. | 15 | | (b) Determination. The Council's determination | 16 | | concerning an individual contract exemption must consider, | 17 | | at a minimum, the following: | 18 | | (i) the justification for the requested exemption, | 19 | | including whether diligent efforts were undertaken to | 20 | | identify and solicit eligible businesses owned by | 21 | | minorities, women, and persons with disabilities; | 22 | | (ii) the total number of exemptions granted to the | 23 | | affected agency, public institution of higher | 24 | | education, or recipient of a grant or loan of State | 25 | | funds of $250,000 or more complying with Section 45 of | 26 | | the State Finance Act that have been granted by the |
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| 1 | | Council in the current and prior fiscal years; and | 2 | | (iii) the percentage of contracts awarded by the | 3 | | agency or public institution of higher education to | 4 | | eligible businesses owned by minorities, women, and | 5 | | persons with disabilities in the current and prior | 6 | | fiscal years. | 7 | | (2) Class exemptions. | 8 | | (a) Creation. The Council, at the written request of | 9 | | the affected agency or public institution of higher | 10 | | education, may permit an entire
class of
contracts be made | 11 | | exempt from State
contracting goals for businesses owned | 12 | | by minorities, women, and persons
with disabilities | 13 | | whenever there has been a determination, reduced to
| 14 | | writing and based on the best information available at the | 15 | | time of the
determination, that there is an insufficient | 16 | | number of qualified businesses owned by minorities, women, | 17 | | and persons with
disabilities to ensure adequate | 18 | | competition and an
expectation of reasonable prices on | 19 | | bids or proposals within that class. Any such exemption | 20 | | shall be given by
the Council to the Bureau on | 21 | | Apprenticeship Programs. | 22 | | (a-1) Written request for class exemption. A written | 23 | | request for a class exemption must include, but is not | 24 | | limited to, the following: | 25 | | (i) a list of eligible businesses owned by | 26 | | minorities, women, and persons with disabilities; |
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| 1 | | (ii) a clear demonstration that the number of | 2 | | eligible businesses identified in subparagraph (i) | 3 | | above is insufficient to ensure adequate competition; | 4 | | (iii) the difference in cost between the contract | 5 | | proposals being offered by eligible businesses owned | 6 | | by minorities, women, and persons with disabilities | 7 | | and the agency or public institution of higher | 8 | | education's expectations of reasonable prices on bids | 9 | | or proposals within that class; and | 10 | | (iv) the number of class exemptions the affected | 11 | | agency or public institution
of higher education | 12 | | requested in the current and prior fiscal years. | 13 | | (a-2) Determination. The Council's determination | 14 | | concerning class exemptions must consider, at a minimum, | 15 | | the following: | 16 | | (i) the justification for the requested exemption, | 17 | | including whether diligent efforts were undertaken to | 18 | | identify and solicit eligible businesses owned by | 19 | | minorities, women, and persons with disabilities; | 20 | | (ii) the total number of class exemptions granted | 21 | | to the requesting agency or public institution of | 22 | | higher education that have been granted by the Council | 23 | | in the current and prior fiscal years; and | 24 | | (iii) the percentage of contracts awarded by the | 25 | | agency or public institution of higher education to | 26 | | eligible businesses owned by minorities, women, and |
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| 1 | | persons with disabilities the current and prior fiscal | 2 | | years. | 3 | | (b) Limitation. Any such class exemption shall not be | 4 | | permitted for a
period of more than one year at a time. | 5 | | (3) Waivers. Where a particular contract requires a | 6 | | contractor to meet
a goal established pursuant to this Act, | 7 | | the contractor shall have the right
to request from the | 8 | | Council, in consultation with the Commission, a waiver from | 9 | | such requirements. The Council may grant the waiver only upon | 10 | | a demonstration by the contractor of unreasonable responses to | 11 | | the request for proposals given the class of contract. Any | 12 | | such waiver shall also be
transmitted in writing to the Bureau | 13 | | on Apprenticeship Programs. | 14 | | (a) Request for waiver. A contractor's request for a | 15 | | waiver under this subsection (3) must include, but is not | 16 | | limited to, the following, if available: | 17 | | (i) a list of eligible businesses owned by | 18 | | minorities, women, and persons with disabilities that | 19 | | pertain to the class of contracts in the requested | 20 | | waiver . Eligible businesses are only eligible if the | 21 | | business is certified for the products or work | 22 | | advertised in the solicitation ; | 23 | | (ii) (blank); | 24 | | (iii) the difference in cost between the contract | 25 | | proposals being offered by businesses owned by | 26 | | minorities, women, and persons with disabilities and |
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| 1 | | the agency or the public institution of higher | 2 | | education's expectations of reasonable prices on bids | 3 | | or proposals within that class; and | 4 | | (iv) a list of businesses owned by minorities, | 5 | | women, and persons with disabilities that the | 6 | | contractor has used in the current and prior fiscal | 7 | | years. | 8 | | (b) Determination. The Council's determination, in | 9 | | consultation with the Commission, concerning waivers must | 10 | | include following: | 11 | | (i) the justification for the requested waiver, | 12 | | including whether the requesting contractor made a | 13 | | proper demonstration of unreasonable responses to the | 14 | | request for proposals given the class of contract; | 15 | | (ii) the total number of waivers the contractor | 16 | | has been granted by the Council in the current and | 17 | | prior fiscal years; | 18 | | (iii) the percentage of contracts awarded by the | 19 | | agency or public institution of higher education to | 20 | | eligible businesses owned by minorities, women, and | 21 | | persons with disabilities in the current and prior | 22 | | fiscal years; and | 23 | | (iv) the contractor's use of businesses owned by | 24 | | minorities, women, and persons with disabilities in | 25 | | the current and prior fiscal years. | 26 | | (3.5) (Blank). |
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| 1 | | (4) Conflict with other laws. In the event that any State | 2 | | contract, which
otherwise would be subject to the provisions | 3 | | of this Act, is or becomes
subject to federal laws or | 4 | | regulations which conflict with the provisions
of this Act or | 5 | | actions of the State taken pursuant hereto, the provisions
of | 6 | | the federal laws or regulations shall apply and the contract | 7 | | shall be
interpreted and enforced accordingly. | 8 | | (5) Each chief procurement officer, as defined in the | 9 | | Illinois Procurement Code, shall maintain on his or her | 10 | | official Internet website a database of the following: (i) | 11 | | waivers granted under this Section with respect to contracts | 12 | | under his or her jurisdiction; (ii) a State agency or public | 13 | | institution of higher education's written request for an | 14 | | exemption of an individual contract or an entire class of | 15 | | contracts; and (iii) the Council's written determination | 16 | | granting or denying a request for an exemption of an | 17 | | individual contract or an entire class of contracts. The | 18 | | database, which shall be updated periodically as necessary, | 19 | | shall be searchable by contractor name and by contracting | 20 | | State agency. | 21 | | (6) Each chief procurement officer, as defined by the | 22 | | Illinois Procurement Code, shall maintain on its website a | 23 | | list of all firms that have been prohibited from bidding, | 24 | | offering, or entering into a contract with the State of | 25 | | Illinois as a result of violations of this Act. | 26 | | Each public notice required by law of the award of a State |
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| 1 | | contract shall include for each bid or offer submitted for | 2 | | that contract the following: (i) the bidder's or offeror's | 3 | | name, (ii) the bid amount, (iii) the name or names of the | 4 | | certified firms identified in the bidder's or offeror's | 5 | | submitted utilization plan, and (iv) the bid's amount and | 6 | | percentage of the contract awarded to businesses owned by | 7 | | minorities, women, and persons with disabilities identified in | 8 | | the utilization plan. | 9 | | (Source: P.A. 100-391, eff. 8-25-17; 101-170, eff. 1-1-20; | 10 | | 101-601, eff. 1-1-20; 101-657, eff. 1-1-22.)
| 11 | | (30 ILCS 575/8) (from Ch. 127, par. 132.608)
| 12 | | (Text of Section before amendment by P.A. 101-657 ) | 13 | | (Section scheduled to be repealed on June 30, 2024)
| 14 | | Sec. 8. Enforcement. | 15 | | (1) The Council shall make such findings, recommendations
| 16 | | and proposals to the Governor as are necessary and appropriate | 17 | | to enforce
this Act. If, as a result of its monitoring | 18 | | activities, the Council determines
that its goals and policies | 19 | | are not being met by any State agency or public institution of | 20 | | higher education,
the Council
may recommend any or all of the | 21 | | following actions:
| 22 | | (a) Establish enforcement procedures whereby the | 23 | | Council may recommend
to the appropriate State agency, | 24 | | public institutions of higher education, or law | 25 | | enforcement
officer that legal or
administrative remedies |
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| 1 | | be initiated for violations of contract provisions
or | 2 | | rules issued hereunder or by a contracting State agency or | 3 | | public institutions of higher education. State agencies | 4 | | and public institutions of higher education
shall be | 5 | | authorized to adopt remedies for such violations which | 6 | | shall include
(1) termination of the contract involved, | 7 | | (2) prohibition of participation
of the respondents in | 8 | | public contracts for a period not to exceed one year,
(3) | 9 | | imposition of a penalty not to exceed any profit acquired | 10 | | as a result
of violation, or (4) any combination thereof.
| 11 | | (b) If the Council concludes that a compliance plan | 12 | | submitted under Section
6 is unlikely to produce the
| 13 | | participation
goals for businesses owned by minorities, | 14 | | women, and persons with
disabilities within the then | 15 | | current fiscal year, the Council may recommend
that
the | 16 | | State agency or public institution of higher education | 17 | | revise its plan to provide
additional
opportunities
for | 18 | | participation by businesses owned by minorities, women, | 19 | | and persons with disabilities. Such recommended revisions | 20 | | may
include, but shall not be limited to, the following:
| 21 | | (i) assurances of stronger and better focused | 22 | | solicitation efforts to
obtain more businesses owned | 23 | | by minorities, women, and persons with disabilities as | 24 | | potential sources of
supply;
| 25 | | (ii) division of job or project requirements, when | 26 | | economically feasible,
into tasks or quantities to |
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| 1 | | permit participation of
businesses owned by | 2 | | minorities, women, and persons with disabilities;
| 3 | | (iii) elimination of extended experience or | 4 | | capitalization requirements,
when programmatically | 5 | | feasible, to permit participation of businesses owned | 6 | | by minorities, women, and persons with
disabilities;
| 7 | | (iv) identification of specific proposed contracts | 8 | | as particularly
attractive or appropriate for | 9 | | participation by
businesses owned by minorities, | 10 | | women, and persons with disabilities,
such | 11 | | identification to result from and be coupled with the
| 12 | | efforts of subparagraphs
(i) through (iii);
| 13 | | (v) implementation of those regulations | 14 | | established for the use of the
sheltered market | 15 | | process.
| 16 | | (2) State agencies and public institutions of higher | 17 | | education shall review a vendor's compliance with its | 18 | | utilization plan and the terms of its contract. Without | 19 | | limitation, a vendor's failure to comply with its contractual | 20 | | commitments as contained in the utilization plan; failure to | 21 | | cooperate in providing information regarding its compliance | 22 | | with its utilization plan; or the provision of false or | 23 | | misleading information or statements concerning compliance, | 24 | | certification status, or eligibility of the Business | 25 | | Enterprise Program-certified vendor, good faith efforts, or | 26 | | any other material fact or representation shall constitute a |
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| 1 | | material breach of the contract and entitle the State agency | 2 | | or public institution of higher education to declare a | 3 | | default, terminate the contract, or exercise those remedies | 4 | | provided for in the contract, at law, or in equity. | 5 | | (3) A vendor shall be in breach of the contract and may be | 6 | | subject to penalties for failure to meet contract goals | 7 | | established under this Act, unless the vendor can show that it | 8 | | made good faith efforts to meet the contract goals. | 9 | | (Source: P.A. 99-462, eff. 8-25-15; 100-391, eff. 8-25-17 .)
| 10 | | (Text of Section after amendment by P.A. 101-657 ) | 11 | | (Section scheduled to be repealed on June 30, 2024)
| 12 | | Sec. 8. Enforcement. | 13 | | (1) The Commission on Equity and Inclusion shall make such | 14 | | findings, recommendations
and proposals to the Governor as are | 15 | | necessary and appropriate to enforce
this Act. If, as a result | 16 | | of its monitoring activities, the Commission determines
that | 17 | | its goals and policies are not being met by any State agency or | 18 | | public institution of higher education,
the Commission
may | 19 | | recommend any or all of the following actions:
| 20 | | (a) Establish enforcement procedures whereby the | 21 | | Commission may recommend
to the appropriate State agency, | 22 | | public institutions of higher education, or law | 23 | | enforcement
officer that legal or
administrative remedies | 24 | | be initiated for violations of contract provisions
or | 25 | | rules issued hereunder or by a contracting State agency or |
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| 1 | | public institutions of higher education. State agencies | 2 | | and public institutions of higher education
shall be | 3 | | authorized to adopt remedies for such violations which | 4 | | shall include
(1) termination of the contract involved, | 5 | | (2) prohibition of participation
of the respondents in | 6 | | public contracts for a period not to exceed one year,
(3) | 7 | | imposition of a penalty not to exceed any profit acquired | 8 | | as a result
of violation, or (4) any combination thereof.
| 9 | | (b) If the Commission concludes that a compliance plan | 10 | | submitted under Section
6 is unlikely to produce the
| 11 | | participation
goals for businesses owned by minorities, | 12 | | women, and persons with
disabilities within the then | 13 | | current fiscal year, the Commission may recommend
that
the | 14 | | State agency or public institution of higher education | 15 | | revise its plan to provide
additional
opportunities
for | 16 | | participation by businesses owned by minorities, women, | 17 | | and persons with disabilities. Such recommended revisions | 18 | | may
include, but shall not be limited to, the following:
| 19 | | (i) assurances of stronger and better focused | 20 | | solicitation efforts to
obtain more businesses owned | 21 | | by minorities, women, and persons with disabilities as | 22 | | potential sources of
supply;
| 23 | | (ii) division of job or project requirements, when | 24 | | economically feasible,
into tasks or quantities to | 25 | | permit participation of
businesses owned by | 26 | | minorities, women, and persons with disabilities;
|
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| 1 | | (iii) elimination of extended experience or | 2 | | capitalization requirements,
when programmatically | 3 | | feasible, to permit participation of businesses owned | 4 | | by minorities, women, and persons with
disabilities;
| 5 | | (iv) identification of specific proposed contracts | 6 | | as particularly
attractive or appropriate for | 7 | | participation by
businesses owned by minorities, | 8 | | women, and persons with disabilities,
such | 9 | | identification to result from and be coupled with the
| 10 | | efforts of subparagraphs
(i) through (iii);
| 11 | | (v) implementation of those regulations | 12 | | established for the use of the
sheltered market | 13 | | process.
| 14 | | (2) State agencies and public institutions of higher | 15 | | education shall monitor review a vendor's compliance with its | 16 | | utilization plan and the terms of its contract. Without | 17 | | limitation, a vendor's failure to comply with its contractual | 18 | | commitments as contained in the utilization plan; failure to | 19 | | cooperate in providing information regarding its compliance | 20 | | with its utilization plan; or the provision of false or | 21 | | misleading information or statements concerning compliance, | 22 | | certification status, or eligibility of the Business | 23 | | Enterprise Program-certified vendor, good faith efforts, or | 24 | | any other material fact or representation shall constitute a | 25 | | material breach of the contract and entitle the State agency | 26 | | or public institution of higher education to declare a |
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| 1 | | default, terminate the contract, or exercise those remedies | 2 | | provided for in the contract, at law, or in equity. | 3 | | (3) Prior to the expiration or termination of a contract, | 4 | | State agencies and public institutions of higher education | 5 | | shall evaluate the contractor's fulfillment of the contract | 6 | | goals for participation by businesses owned by minorities, | 7 | | women, and persons with disabilities. The agency or public | 8 | | institution of higher education shall prepare a report of the | 9 | | vendor's compliance with the contract goals and file it with | 10 | | the Secretary of the Council. If the Secretary of the Council | 11 | | determines that the vendor did not fulfill the contract goals, | 12 | | the vendor shall be in breach of the contract and may be | 13 | | subject to remedies or sanctions unless the vendor can show | 14 | | that it made good faith efforts to meet the contract goals. | 15 | | Such remedies or sanctions for failing to make good faith | 16 | | efforts may include (i) disqualification of the contractor | 17 | | from doing business with the State for a period of no more than | 18 | | one year or (ii) cancellation, without any penalty to the | 19 | | State, of any contract entered into by the vendor. The | 20 | | Business Enterprise Council shall develop procedures for | 21 | | determining whether a vendor has made good faith efforts to | 22 | | meet the contract goals upon the expiration or termination of | 23 | | a contract. A vendor shall be in breach of the contract and may | 24 | | be subject to penalties for failure to meet contract goals | 25 | | established under this Act, unless the vendor can show that it | 26 | | made good faith efforts to meet the contract goals. |
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| 1 | | (Source: P.A. 100-391, eff. 8-25-17; 101-657, eff. 1-1-22.)
| 2 | | Section 95. No acceleration or delay. Where this Act makes | 3 | | changes in a statute that is represented in this Act by text | 4 | | that is not yet or no longer in effect (for example, a Section | 5 | | represented by multiple versions), the use of that text does | 6 | | not accelerate or delay the taking effect of (i) the changes | 7 | | made by this Act or (ii) provisions derived from any other | 8 | | Public Act. Removes requirement that eligible businesses are | 9 | | only eligible if the business is certified for the products or | 10 | | work advertised in the solicitation.".
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