Full Text of HB3220 102nd General Assembly
HB3220ham001 102ND GENERAL ASSEMBLY | Rep. Curtis J. Tarver, II Filed: 3/2/2022
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| 1 | | AMENDMENT TO HOUSE BILL 3220
| 2 | | AMENDMENT NO. ______. Amend House Bill 3220 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 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| 8 | | (Section scheduled to be repealed on June 30, 2024) | 9 | | Sec. 2.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 | 11 | | have the following definitions:
| 12 | | (1) "Minority person" shall mean a person who is a | 13 | | citizen or lawful
permanent resident of the United States | 14 | | and who is any of the following:
| 15 | | (a) American Indian or Alaska Native (a person | 16 | | having origins in any of the original peoples of North |
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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 | 6 | | combination of
minority persons, women, or persons with | 7 | | disabilities,
even though none of the 3 classes alone holds at | 8 | | least a 51% interest, the
ownership
requirement for purposes | 9 | | of this Act is considered to be met. The
certification | 10 | | category for the business is that of the class holding the
| 11 | | largest ownership
interest in the business. If 2 or more | 12 | | classes have equal ownership interests,
the certification | 13 | | category shall be determined by
the business.
| 14 | | (Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22; | 15 | | 102-29, 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 | 19 | | uniform standards for calculating contract specific Business | 20 | | Enterprise Program goals for all State contracts and State | 21 | | construction contracts subject to this Act. The uniform | 22 | | standards may consider normal industry practice, the scope of | 23 | | the work to be performed under a contract, the availability of | 24 | | vendors that are able to perform the scope of the work to be | 25 | | performed under a contract, the availability of certified |
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| 1 | | vendors that are able to perform the work to be performed under | 2 | | a contract, and the State's progress to date toward meeting | 3 | | the aspirational goals set forth in this Act. | 4 | | (b) No State agency or public institution of higher
| 5 | | education shall maintain a policy of establishing contract | 6 | | specific goals for the participation of certified vendors
that | 7 | | is inconsistent with or less stringent than the uniform | 8 | | standards
for calculating contract specific goals established | 9 | | by the Business Enterprise Program. | 10 | | (c) Each State agency and public institution of higher
| 11 | | education subject to the requirements of this
Act shall, on an | 12 | | annual basis, submit a report to the Council
detailing its | 13 | | plan to meet the aspirational contract goals established
under | 14 | | this 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 | 19 | | this Act, there
is created the Business Enterprise Council for
| 20 | | Minorities, Women, and Persons with Disabilities, hereinafter
| 21 | | referred to as the Council, composed of the Chairperson of the | 22 | | Commission on Equity and Inclusion, the Secretary of Human | 23 | | Services and
the Directors of the Department of
Human Rights, | 24 | | the Department of Commerce and Economic Opportunity, the
| 25 | | Department of Central Management Services, the Department of |
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| 1 | | Transportation and
the
Capital Development Board, or their | 2 | | duly appointed representatives, with the Comptroller, or his | 3 | | or her designee, serving as an advisory member of the Council. | 4 | | Ten
individuals representing businesses that are | 5 | | minority-owned, women-owned, or
owned by persons with | 6 | | disabilities, 2 individuals representing the business
| 7 | | community, and a representative of public institutions of | 8 | | higher education shall be appointed by the Governor. These | 9 | | members shall serve 2-year terms and shall be eligible for | 10 | | reappointment. Any vacancy occurring on
the Council shall also | 11 | | be filled by the Governor. Any member appointed to fill
a | 12 | | vacancy occurring prior to the expiration of the term for | 13 | | which his or her
predecessor was appointed shall be appointed | 14 | | for the remainder of such term.
Members of the Council shall | 15 | | serve without compensation but shall be reimbursed
for any | 16 | | ordinary and necessary expenses incurred in the performance of | 17 | | their
duties.
| 18 | | The Chairperson of the Commission shall serve
as the | 19 | | Council chairperson and shall select, subject to approval of | 20 | | the Council, a Secretary responsible for the operation of the | 21 | | program who shall
serve as the Division Manager of the | 22 | | Business
Enterprise for Minorities, Women, and Persons with | 23 | | Disabilities Division
of the Commission on Equity and | 24 | | Inclusion.
| 25 | | The Director of each State agency and the chief executive | 26 | | officer of
each public institution of higher education shall |
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| 1 | | appoint a liaison to the Council. The liaison
shall be | 2 | | responsible for submitting to the Council any reports and
| 3 | | documents necessary under this Act.
| 4 | | (2) The Council's authority and responsibility shall be | 5 | | to:
| 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 | 14 | | required of a business owned by a minority, woman, or person
| 15 | | with a disability bidding for a State contract shall be
higher | 16 | | than the lowest rate charged by that surety company for a | 17 | | similar
bond in the same classification of work that would be | 18 | | written for a business not owned by a minority, woman, or | 19 | | person with a disability.
| 20 | | (4) Any Council member who has direct financial or | 21 | | personal interest in
any measure pending before the Council | 22 | | shall disclose this fact to the
Council and refrain from | 23 | | participating in the determination upon such measure.
| 24 | | (5) The Secretary shall have the following duties and | 25 | | responsibilities:
| 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; | 23 | | 102-29, 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 | 3 | | written request of the affected agency,
public institution of | 4 | | higher education, or recipient of a grant or loan of State | 5 | | funds of $250,000 or more complying with Section 45 of the | 6 | | State Finance Act, may permit an individual contract or | 7 | | contract package,
(related contracts being bid or awarded | 8 | | simultaneously for the same project
or improvements) be made | 9 | | wholly or partially exempt from State contracting
goals for | 10 | | businesses owned by
minorities, women, and persons with | 11 | | disabilities prior to the advertisement
for bids or | 12 | | solicitation of proposals whenever there has been a
| 13 | | determination, reduced to writing and based on the best | 14 | | information
available at the time of the determination, that | 15 | | there is an insufficient
number of businesses owned by | 16 | | minorities, women, and persons with disabilities to ensure | 17 | | adequate
competition and an expectation of reasonable prices | 18 | | on bids or proposals
solicited for the individual contract or | 19 | | contract package in question. Any such exemptions shall be | 20 | | given by
the Council to the Bureau on Apprenticeship Programs | 21 | | and 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 | 5 | | contractor to meet
a goal established pursuant to this Act, | 6 | | the vendor contractor shall have the right
to request a waiver | 7 | | from such requirements prior to the contract award. The | 8 | | Business Enterprise Program shall evaluate a vendor's request | 9 | | for a waiver based on the vendor's documented good faith | 10 | | efforts to meet the contract-specific Business Enterprise | 11 | | Program goal. The Council may shall grant the waiver when the | 12 | | contractor demonstrates that there has been made a good faith | 13 | | effort to comply with the goals for participation by | 14 | | businesses owned by minorities, women, and persons with | 15 | | disabilities. Any such waiver may shall also be
transmitted in | 16 | | writing to the Bureau on Apprenticeship Programs and Clean | 17 | | Energy 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, |
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| 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 | 4 | | contract, which
otherwise would be subject to the provisions | 5 | | of this Act, is or becomes
subject to federal laws or | 6 | | regulations which conflict with the provisions
of this Act or | 7 | | actions of the State taken pursuant hereto, the provisions
of | 8 | | the federal laws or regulations shall apply and the contract | 9 | | shall be
interpreted and enforced accordingly. | 10 | | (5) Each chief procurement officer, as defined in the | 11 | | Illinois Procurement Code, shall maintain on his or her | 12 | | official Internet website a database of the following: (i) | 13 | | waivers granted under this Section with respect to contracts | 14 | | under his or her jurisdiction; (ii) a State agency or public | 15 | | institution of higher education's written request for an | 16 | | exemption of an individual contract or an entire class of | 17 | | contracts; and (iii) the Council's written determination | 18 | | granting or denying a request for an exemption of an | 19 | | individual contract or an entire class of contracts. The | 20 | | database, which shall be updated periodically as necessary, | 21 | | shall be searchable by contractor name and by contracting | 22 | | State agency. | 23 | | (6) Each chief procurement officer, as defined by the | 24 | | Illinois Procurement Code, shall maintain on its website a | 25 | | list of all vendors firms that have been prohibited from | 26 | | bidding, offering, or entering into a contract with the State |
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| 1 | | of Illinois as a result of violations of this Act. | 2 | | Each public notice required by law of the award of a State | 3 | | contract shall include for each bid or offer submitted for | 4 | | that contract the following: (i) the bidder's or offeror's | 5 | | name, (ii) the bid amount, (iii) the name or names of the | 6 | | certified vendors firms identified in the bidder's or | 7 | | offeror's submitted utilization plan, and (iv) the bid's | 8 | | amount and percentage of the contract awarded to each | 9 | | certified vendor that is a business businesses owned by | 10 | | minorities, women, and persons with disabilities identified in | 11 | | the utilization plan. | 12 | | (Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20; | 13 | | 101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff. | 14 | | 9-15-21 .)
| 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 | 19 | | findings, recommendations
and proposals to the Governor as are | 20 | | necessary and appropriate to enforce
this Act. If, as a result | 21 | | of its monitoring activities, the Commission determines
that | 22 | | its goals and policies are not being met by any State agency or | 23 | | public institution of higher education,
the Commission
may | 24 | | recommend 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 | 26 | | education shall monitor a vendor's compliance with its |
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| 1 | | utilization plan and the terms of its contract. Without | 2 | | limitation, a vendor's failure to comply with its contractual | 3 | | commitments as contained in the utilization plan; failure to | 4 | | cooperate in providing information regarding its compliance | 5 | | with its utilization plan; or the provision of false or | 6 | | misleading information or statements concerning compliance, | 7 | | certification status, or eligibility of the Business | 8 | | Enterprise Program-certified vendor, good faith efforts, or | 9 | | any other material fact or representation shall constitute a | 10 | | material breach of the contract and entitle the State agency | 11 | | or public institution of higher education to declare a | 12 | | default, terminate the contract, or exercise those remedies | 13 | | provided for in the contract, at law, or in equity. | 14 | | (3) Prior to the expiration or termination of a contract, | 15 | | State agencies and public institutions of higher education | 16 | | shall evaluate the contractor's fulfillment of the contract | 17 | | goals for participation by certified businesses owned by | 18 | | minorities, women, and persons with disabilities. The agency | 19 | | or public institution of higher education shall prepare a | 20 | | report of the vendor's compliance with the contract goals and | 21 | | file it with the Secretary. If the Secretary determines that | 22 | | the vendor did not fulfill the contract goals, the vendor | 23 | | shall be in breach of the contract and may be subject to | 24 | | remedies or sanctions, unless the vendor can show that it made | 25 | | good faith efforts to meet the contract goals. Such remedies | 26 | | or sanctions for failing to make good faith efforts may |
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| 1 | | include (i) disqualification of the contractor from doing | 2 | | business with the State for a period of no more than one year , | 3 | | or (ii) cancellation, without any penalty to the State, of any | 4 | | contract entered into by the vendor , or (iii) the assessment | 5 | | of a penalty in the amount of the discrepancy between the | 6 | | commitment contained in the utilization plan, as such amount | 7 | | may be amended over the term of the contract, and the | 8 | | qualifying payments made to the certified vendors listed in | 9 | | the utilization plan . | 10 | | The Business Enterprise Program shall develop procedures | 11 | | for determining whether a vendor has made good faith efforts | 12 | | to meet the contract goals upon the expiration or termination | 13 | | of a contract , which may include, but shall not be limited to: | 14 | | (i) consideration of whether State or local action caused a | 15 | | shortfall, such as a change in the scope of work that | 16 | | eliminated work to be performed by certified vendors or a | 17 | | change in specifications; (ii) whether the vendor was unable | 18 | | to obtain certified business participation without requiring | 19 | | the introduction of extra participants not performing a | 20 | | commercially useful function; or (iii) whether the vendor made | 21 | | efforts to use appropriate forums for purposes of advertising | 22 | | subcontracting opportunities suitable for certified | 23 | | businesses . | 24 | | (Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21 .)".
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