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

HB3220ham001 102ND GENERAL ASSEMBLY

Rep. Curtis J. Tarver, II

Filed: 3/2/2022

 

 


 

 


 
10200HB3220ham001LRB102 15164 RJF 37099 a

1
AMENDMENT TO HOUSE BILL 3220

2    AMENDMENT NO. ______. Amend House Bill 3220 by replacing
3everything after the enacting clause with the following:
 
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8    (Section scheduled to be repealed on June 30, 2024)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

 

 

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1        and South America, including Central America, and who
2        maintains tribal affiliation or community attachment).
3            (b) Asian (a person having origins in any of the
4        original peoples of the Far East, Southeast Asia, or
5        the Indian subcontinent, including, but not limited
6        to, Cambodia, China, India, Japan, Korea, Malaysia,
7        Pakistan, the Philippine Islands, Thailand, and
8        Vietnam).
9            (c) Black or African American (a person having
10        origins in any of the black racial groups of Africa).
11            (d) Hispanic or Latino (a person of Cuban,
12        Mexican, Puerto Rican, South or Central American, or
13        other Spanish culture or origin, regardless of race).
14            (e) Native Hawaiian or Other Pacific Islander (a
15        person having origins in any of the original peoples
16        of Hawaii, Guam, Samoa, or other Pacific Islands).
17        (2) "Woman" shall mean a person who is a citizen or
18    lawful permanent resident of the United States and who is
19    of the female gender.
20        (2.05) "Person with a disability" means a person who
21    is a citizen or lawful resident of the United States and is
22    a person qualifying as a person with a disability under
23    subdivision (2.1) of this subsection (A).
24        (2.1) "Person with a disability" means a person with a
25    severe physical or mental disability that:
26            (a) results from:

 

 

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1            amputation,
2            arthritis,
3            autism,
4            blindness,
5            burn injury,
6            cancer,
7            cerebral palsy,
8            Crohn's disease,
9            cystic fibrosis,
10            deafness,
11            head injury,
12            heart disease,
13            hemiplegia,
14            hemophilia,
15            respiratory or pulmonary dysfunction,
16            an intellectual disability,
17            mental illness,
18            multiple sclerosis,
19            muscular dystrophy,
20            musculoskeletal disorders,
21            neurological disorders, including stroke and
22        epilepsy,
23            paraplegia,
24            quadriplegia and other spinal cord conditions,
25            sickle cell anemia,
26            ulcerative colitis,

 

 

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1            specific learning disabilities, or
2            end stage renal failure disease; and
3            (b) substantially limits one or more of the
4        person's major life activities.
5        Another disability or combination of disabilities may
6    also be considered as a severe disability for the purposes
7    of item (a) of this subdivision (2.1) if it is determined
8    by an evaluation of rehabilitation potential to cause a
9    comparable degree of substantial functional limitation
10    similar to the specific list of disabilities listed in
11    item (a) of this subdivision (2.1).
12        (3) "Minority-owned business" means a business which
13    is at least 51% owned by one or more minority persons, or
14    in the case of a corporation, at least 51% of the stock in
15    which is owned by one or more minority persons; and the
16    management and daily business operations of which are
17    controlled by one or more of the minority individuals who
18    own it.
19        (4) "Women-owned business" means a business which is
20    at least 51% owned by one or more women, or, in the case of
21    a corporation, at least 51% of the stock in which is owned
22    by one or more women; and the management and daily
23    business operations of which are controlled by one or more
24    of the women who own it.
25        (4.1) "Business owned by a person with a disability"
26    means a business that is at least 51% owned by one or more

 

 

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1    persons with a disability and the management and daily
2    business operations of which are controlled by one or more
3    of the persons with disabilities who own it. A
4    not-for-profit agency for persons with disabilities that
5    is exempt from taxation under Section 501 of the Internal
6    Revenue Code of 1986 is also considered a "business owned
7    by a person with a disability".
8        (4.2) "Council" means the Business Enterprise Council
9    for Minorities, Women, and Persons with Disabilities
10    created under Section 5 of this Act.
11        (4.3) "Commission" means, unless the context clearly
12    indicates otherwise, the Commission on Equity and
13    Inclusion created under the Commission on Equity and
14    Inclusion Act.
15        (4.4) "Certified vendor" means a minority-owned
16    business, women-owned business, or business owned by a
17    person with a disability that is certified by the Business
18    Enterprise Program.
19        (4.5) "Subcontractor" means a person or entity that
20    enters into a contractual agreement with a prime vendor to
21    provide, on behalf of the prime vendor, goods, services,
22    real property, or remuneration or other monetary
23    consideration that is the subject of the primary State
24    contract. "Subcontractor" includes a sublessee under a
25    State contract.
26        (4.6) "Prime vendor" means any person or entity having

 

 

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

 

 

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1    Trustees of Governors State University, the Board of
2    Trustees of Illinois State University, the Board of
3    Trustees of Northeastern Illinois University, the Board of
4    Trustees of Northern Illinois University, the Board of
5    Trustees of Western Illinois University, municipalities or
6    other local governmental units, or other State
7    constitutional officers.
8        (7) "Public institutions of higher education" means
9    the University of Illinois, Southern Illinois University,
10    Chicago State University, Eastern Illinois University,
11    Governors State University, Illinois State University,
12    Northeastern Illinois University, Northern Illinois
13    University, Western Illinois University, the public
14    community colleges of the State, and any other public
15    universities, colleges, and community colleges now or
16    hereafter established or authorized by the General
17    Assembly.
18        (8) "Certification" means a determination made by the
19    Council or by one delegated authority from the Council to
20    make certifications, or by a State agency with statutory
21    authority to make such a certification, that a business
22    entity is a business owned by a minority, woman, or person
23    with a disability for whatever purpose. A business owned
24    and controlled by women shall be certified as a
25    "woman-owned business". A business owned and controlled by
26    women who are also minorities shall be certified as both a

 

 

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1    "women-owned business" and a "minority-owned business".
2        (9) "Control" means the exclusive or ultimate and sole
3    control of the business including, but not limited to,
4    capital investment and all other financial matters,
5    property, acquisitions, contract negotiations, legal
6    matters, officer-director-employee selection and
7    comprehensive hiring, operating responsibilities,
8    cost-control matters, income and dividend matters,
9    financial transactions and rights of other shareholders or
10    joint partners. Control shall be real, substantial and
11    continuing, not pro forma. Control shall include the power
12    to direct or cause the direction of the management and
13    policies of the business and to make the day-to-day as
14    well as major decisions in matters of policy, management
15    and operations. Control shall be exemplified by possessing
16    the requisite knowledge and expertise to run the
17    particular business and control shall not include simple
18    majority or absentee ownership.
19        (10) "Business" means a business that has annual gross
20    sales of less than $75,000,000 as evidenced by the federal
21    income tax return of the business. A vendor firm with
22    gross sales in excess of this cap may apply to the Council
23    for certification for a particular contract if the vendor
24    firm can demonstrate that the contract would have
25    significant impact on businesses owned by minorities,
26    women, or persons with disabilities as suppliers or

 

 

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

 

 

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1    vendor to achieve a contract specific Business Enterprise
2    Program goal that, by scope, intensity, and
3    appropriateness to the objective, can reasonably be
4    expected to fulfill the program's requirements.
5    (B) When a business is owned at least 51% by any
6combination of minority persons, women, or persons with
7disabilities, even though none of the 3 classes alone holds at
8least a 51% interest, the ownership requirement for purposes
9of this Act is considered to be met. The certification
10category for the business is that of the class holding the
11largest ownership interest in the business. If 2 or more
12classes have equal ownership interests, the certification
13category shall be determined by the business.
14(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
15102-29, eff. 6-25-21.)
 
16    (30 ILCS 575/3.5 new)
17    Sec. 3.5. Uniform standard of contract goals.
18    (a) The Business Enterprise Program shall establish
19uniform standards for calculating contract specific Business
20Enterprise Program goals for all State contracts and State
21construction contracts subject to this Act. The uniform
22standards may consider normal industry practice, the scope of
23the work to be performed under a contract, the availability of
24vendors that are able to perform the scope of the work to be
25performed under a contract, the availability of certified

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    the Council.
2        (b) To serve as a coordinator for all of the State's
3    programs for businesses owned by minorities, women, and
4    persons with disabilities and as the information and
5    referral center for all State initiatives for businesses
6    owned by minorities, women, and persons with disabilities.
7        (c) To establish an enforcement procedure whereby the
8    Council may recommend to the appropriate State legal
9    officer that the State exercise its legal remedies which
10    shall include (1) termination of the contract involved,
11    (2) prohibition of participation by the respondent in
12    State public contracts for a period not to exceed 3 years,
13    (3) imposition of a penalty in the amount of the
14    discrepancy between the commitment contained in the
15    utilization plan, as such amount may be amended over the
16    term of the contract, and the qualifying payments made to
17    the eligible certified vendors listed in the utilization
18    plan a penalty not to exceed any profit acquired as a
19    result of violation, or (4) any combination thereof. Such
20    procedures shall require prior approval by Council. All
21    funds collected as penalties under this subsection shall
22    be used exclusively for maintenance and further
23    development of the Business Enterprise Program and
24    encouragement of participation in State procurement by
25    minorities, women, and persons with disabilities.
26        (d) To devise appropriate policies, regulations, and

 

 

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1    procedures for including participation by businesses owned
2    by minorities, women, and persons with disabilities as
3    prime contractors, including, but not limited to: (i)
4    encouraging the inclusions of qualified businesses owned
5    by minorities, women, and persons with disabilities on
6    solicitation lists, (ii) investigating the potential of
7    blanket bonding programs for small construction jobs, and
8    (iii) investigating and making recommendations concerning
9    the use of the sheltered market process.
10        (e) To devise procedures for the waiver of the
11    participation goals in appropriate circumstances.
12        (f) To accept donations and, with the approval of the
13    Council or the Chairperson of the Commission on Equity and
14    Inclusion, grants related to the purposes of this Act; to
15    conduct seminars related to the purpose of this Act and to
16    charge reasonable registration fees; and to sell
17    directories, vendor lists, and other such information to
18    interested parties, except that forms necessary to become
19    eligible for the program shall be provided free of charge
20    to a business or individual applying for the Business
21    Enterprise Program.
22(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
23102-29, eff. 6-25-21; 102-558, eff. 8-20-21.)
 
24    (30 ILCS 575/7)  (from Ch. 127, par. 132.607)
25    (Section scheduled to be repealed on June 30, 2024)

 

 

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1    Sec. 7. Exemptions; waivers; publication of data.
2    (1) Individual contract exemptions. The Council, at the
3written request of the affected agency, public institution of
4higher education, or recipient of a grant or loan of State
5funds of $250,000 or more complying with Section 45 of the
6State Finance Act, may permit an individual contract or
7contract package, (related contracts being bid or awarded
8simultaneously for the same project or improvements) be made
9wholly or partially exempt from State contracting goals for
10businesses owned by minorities, women, and persons with
11disabilities prior to the advertisement for bids or
12solicitation of proposals whenever there has been a
13determination, reduced to writing and based on the best
14information available at the time of the determination, that
15there is an insufficient number of businesses owned by
16minorities, women, and persons with disabilities to ensure
17adequate competition and an expectation of reasonable prices
18on bids or proposals solicited for the individual contract or
19contract package in question. Any such exemptions shall be
20given by the Council to the Bureau on Apprenticeship Programs
21and Clean Energy Jobs.
22        (a) Written request for contract exemption. A written
23    request for an individual contract exemption must include,
24    but is not 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 businesses owned by
6        minorities, women, and persons with disabilities and
7        the agency or public institution of higher education's
8        expectations of reasonable prices on bids or proposals
9        within that class; and
10            (iv) a list of eligible businesses owned by
11        minorities, women, and persons with disabilities that
12        the contractor has used in the current and prior
13        fiscal years.
14        (b) Determination. The Council's determination
15    concerning an individual contract exemption must consider,
16    at a minimum, the following:
17            (i) the justification for the requested exemption,
18        including whether diligent efforts were undertaken to
19        identify and solicit eligible businesses owned by
20        minorities, women, and persons with disabilities;
21            (ii) the total number of exemptions granted to the
22        affected agency, public institution of higher
23        education, or recipient of a grant or loan of State
24        funds of $250,000 or more complying with Section 45 of
25        the State Finance Act that have been granted by the
26        Council in the current and prior fiscal years; and

 

 

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

 

 

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1        eligible businesses identified in subparagraph (i)
2        above is insufficient to ensure adequate competition;
3            (iii) the difference in cost between the contract
4        proposals being offered by eligible businesses owned
5        by minorities, women, and persons with disabilities
6        and the agency or public institution of higher
7        education's expectations of reasonable prices on bids
8        or proposals within that class; and
9            (iv) the number of class exemptions the affected
10        agency or public institution of higher education
11        requested in the current and prior fiscal years.
12        (a-2) Determination. The Council's determination
13    concerning class exemptions must consider, at a minimum,
14    the following:
15            (i) the justification for the requested exemption,
16        including whether diligent efforts were undertaken to
17        identify and solicit eligible businesses owned by
18        minorities, women, and persons with disabilities;
19            (ii) the total number of class exemptions granted
20        to the requesting agency or public institution of
21        higher education that have been granted by the Council
22        in the current and prior fiscal years; and
23            (iii) the percentage of contracts awarded by the
24        agency or public institution of higher education to
25        eligible businesses owned by minorities, women, and
26        persons with disabilities the current and prior fiscal

 

 

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1        years.
2        (b) Limitation. Any such class exemption shall not be
3    permitted for a period of more than one year at a time.
4    (3) Waivers. Where a particular contract requires a vendor
5contractor to meet a goal established pursuant to this Act,
6the vendor contractor shall have the right to request a waiver
7from such requirements prior to the contract award. The
8Business Enterprise Program shall evaluate a vendor's request
9for a waiver based on the vendor's documented good faith
10efforts to meet the contract-specific Business Enterprise
11Program goal. The Council may shall grant the waiver when the
12contractor demonstrates that there has been made a good faith
13effort to comply with the goals for participation by
14businesses owned by minorities, women, and persons with
15disabilities. Any such waiver may shall also be transmitted in
16writing to the Bureau on Apprenticeship Programs and Clean
17Energy Jobs.
18        (a) Request for waiver. A vendor's contractor's
19    request for a waiver under this subsection (3) must
20    include, but is not limited to, the following, if
21    available:
22            (i) a list of eligible businesses owned by
23        minorities, women, and persons with disabilities that
24        pertain to the the class of contracts in the requested
25        waiver that were contracted by the vendor scope of
26        work of the contract. Eligible businesses are only

 

 

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

 

 

10200HB3220ham001- 23 -LRB102 15164 RJF 37099 a

1        specifications, and requirements of the solicitation
2        or bid, including plans, drawings, and addenda, to
3        allow eligible businesses an opportunity to respond to
4        the solicitation or bid; and (3) sufficient follow up
5        with certified vendors;
6            (iid) a clear demonstration that the prime vendor
7        communicated with certified vendors;
8            (iie) evidence that the prime vendor negotiated
9        with certified vendors to enter into subcontracts to
10        provide a commercially useful function of the contract
11        for a reasonable cost;
12            (iii) documentation demonstrating that the
13        difference in cost between the contract proposals
14        being offered by certified vendors is contract
15        proposals being offered by businesses owned by
16        minorities, women, and persons with disabilities are
17        excessive or unreasonable; and
18            (iv) a list of certified vendors businesses owned
19        by minorities, women, and persons with disabilities
20        that the contractor has used in the current and prior
21        fiscal years; .
22            (v) documentation demonstrating that the vendor
23        made efforts to utilize certified vendors despite the
24        ability or desire of a vendor to perform the work with
25        its own operations by selecting portions of the work
26        to be performed by certified vendors, which may, when

 

 

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1        appropriate, include breaking out portions of the work
2        to be performed into economically feasible units to
3        facilitate certified vendor participation; and
4            (vi) documentation that the vendor used the
5        services of: (1) the State; (2) organizations or
6        contractors' groups representing or composed of
7        minorities, women, or persons with disabilities; (3)
8        local, State, or federal assistance offices
9        representing or assisting minorities, women, or
10        persons with disabilities; and (4) other organizations
11        that provide assistance in the recruitment and
12        engagement of certified vendors.
13        (b) Determination. The Council's determination
14    concerning waivers must include following:
15            (i) the justification for the requested waiver,
16        including whether the requesting vendor contractor
17        made a good faith effort to identify and solicit
18        certified vendors based on the criteria set forth in
19        this Section eligible businesses owned by minorities,
20        women, and persons with disabilities;
21            (ii) the total number of waivers the vendor
22        contractor has been granted by the Council in the
23        current and prior fiscal years;
24            (iii) (blank); and
25            (iv) the vendor's contractor's use of businesses
26        owned by minorities, women, and persons with

 

 

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1        disabilities in the current and prior fiscal years.
2    (3.5) (Blank).
3    (4) Conflict with other laws. In the event that any State
4contract, which otherwise would be subject to the provisions
5of this Act, is or becomes subject to federal laws or
6regulations which conflict with the provisions of this Act or
7actions of the State taken pursuant hereto, the provisions of
8the federal laws or regulations shall apply and the contract
9shall be interpreted and enforced accordingly.
10    (5) Each chief procurement officer, as defined in the
11Illinois Procurement Code, shall maintain on his or her
12official Internet website a database of the following: (i)
13waivers granted under this Section with respect to contracts
14under his or her jurisdiction; (ii) a State agency or public
15institution of higher education's written request for an
16exemption of an individual contract or an entire class of
17contracts; and (iii) the Council's written determination
18granting or denying a request for an exemption of an
19individual contract or an entire class of contracts. The
20database, which shall be updated periodically as necessary,
21shall be searchable by contractor name and by contracting
22State agency.
23    (6) Each chief procurement officer, as defined by the
24Illinois Procurement Code, shall maintain on its website a
25list of all vendors firms that have been prohibited from
26bidding, offering, or entering into a contract with the State

 

 

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1of Illinois as a result of violations of this Act.
2    Each public notice required by law of the award of a State
3contract shall include for each bid or offer submitted for
4that contract the following: (i) the bidder's or offeror's
5name, (ii) the bid amount, (iii) the name or names of the
6certified vendors firms identified in the bidder's or
7offeror's submitted utilization plan, and (iv) the bid's
8amount and percentage of the contract awarded to each
9certified vendor that is a business businesses owned by
10minorities, women, and persons with disabilities identified in
11the utilization plan.
12(Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20;
13101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff.
149-15-21.)
 
15    (30 ILCS 575/8)  (from Ch. 127, par. 132.608)
16    (Section scheduled to be repealed on June 30, 2024)
17    Sec. 8. Enforcement.
18    (1) The Commission on Equity and Inclusion shall make such
19findings, recommendations and proposals to the Governor as are
20necessary and appropriate to enforce this Act. If, as a result
21of its monitoring activities, the Commission determines that
22its goals and policies are not being met by any State agency or
23public institution of higher education, the Commission may
24recommend any or all of the following actions:
25        (a) Establish enforcement procedures whereby the

 

 

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1    Commission may recommend to the appropriate State agency,
2    public institutions of higher education, or law
3    enforcement officer that legal or administrative remedies
4    be initiated for violations of contract provisions or
5    rules issued hereunder or by a contracting State agency or
6    public institutions of higher education. State agencies
7    and public institutions of higher education shall be
8    authorized to adopt remedies for such violations which
9    shall include (1) termination of the contract involved,
10    (2) prohibition of participation of the respondents in
11    public contracts for a period not to exceed one year, (3)
12    the assessment of a penalty in the amount of the
13    discrepancy between the commitment contained in the
14    utilization plan, as such amount may be amended over the
15    term of the contract, and the qualifying payments made to
16    the certified vendors listed in the utilization plan
17    imposition of a penalty not to exceed any profit acquired
18    as a result of violation, or (4) any combination thereof.
19        (b) If the Commission concludes that a compliance plan
20    submitted under Section 6 is unlikely to produce the
21    participation goals for businesses owned by minorities,
22    women, and persons with disabilities within the then
23    current fiscal year, the Commission may recommend that the
24    State agency or public institution of higher education
25    revise its plan to provide additional opportunities for
26    participation by businesses owned by minorities, women,

 

 

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1    and persons with disabilities. Such recommended revisions
2    may include, but shall not be limited to, the following:
3            (i) assurances of stronger and better focused
4        solicitation efforts to obtain more businesses owned
5        by minorities, women, and persons with disabilities as
6        potential sources of supply;
7            (ii) division of the scope of work job or project
8        requirements, when economically feasible, into tasks
9        or quantities to permit participation of businesses
10        owned by minorities, women, and persons with
11        disabilities;
12            (iii) elimination of extended experience or
13        capitalization requirements, when programmatically
14        feasible, to permit participation of businesses owned
15        by minorities, women, and persons with disabilities;
16            (iv) identification of specific proposed contracts
17        as particularly attractive or appropriate for
18        participation by businesses owned by minorities,
19        women, and persons with disabilities, such
20        identification to result from and be coupled with the
21        efforts of subparagraphs (i) through (iii);
22            (v) implementation of those regulations
23        established for the use of the sheltered market
24        process.
25    (2) State agencies and public institutions of higher
26education shall monitor a vendor's compliance with its

 

 

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1utilization plan and the terms of its contract. Without
2limitation, a vendor's failure to comply with its contractual
3commitments as contained in the utilization plan; failure to
4cooperate in providing information regarding its compliance
5with its utilization plan; or the provision of false or
6misleading information or statements concerning compliance,
7certification status, or eligibility of the Business
8Enterprise Program-certified vendor, good faith efforts, or
9any other material fact or representation shall constitute a
10material breach of the contract and entitle the State agency
11or public institution of higher education to declare a
12default, terminate the contract, or exercise those remedies
13provided for in the contract, at law, or in equity.
14    (3) Prior to the expiration or termination of a contract,
15State agencies and public institutions of higher education
16shall evaluate the contractor's fulfillment of the contract
17goals for participation by certified businesses owned by
18minorities, women, and persons with disabilities. The agency
19or public institution of higher education shall prepare a
20report of the vendor's compliance with the contract goals and
21file it with the Secretary. If the Secretary determines that
22the vendor did not fulfill the contract goals, the vendor
23shall be in breach of the contract and may be subject to
24remedies or sanctions, unless the vendor can show that it made
25good faith efforts to meet the contract goals. Such remedies
26or sanctions for failing to make good faith efforts may

 

 

10200HB3220ham001- 30 -LRB102 15164 RJF 37099 a

1include (i) disqualification of the contractor from doing
2business with the State for a period of no more than one year,
3or (ii) cancellation, without any penalty to the State, of any
4contract entered into by the vendor, or (iii) the assessment
5of a penalty in the amount of the discrepancy between the
6commitment contained in the utilization plan, as such amount
7may be amended over the term of the contract, and the
8qualifying payments made to the certified vendors listed in
9the utilization plan.
10    The Business Enterprise Program shall develop procedures
11for determining whether a vendor has made good faith efforts
12to meet the contract goals upon the expiration or termination
13of a contract, which may include, but shall not be limited to:
14(i) consideration of whether State or local action caused a
15shortfall, such as a change in the scope of work that
16eliminated work to be performed by certified vendors or a
17change in specifications; (ii) whether the vendor was unable
18to obtain certified business participation without requiring
19the introduction of extra participants not performing a
20commercially useful function; or (iii) whether the vendor made
21efforts to use appropriate forums for purposes of advertising
22subcontracting opportunities suitable for certified
23businesses.
24(Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21.)".