Full Text of HB3606 103rd General Assembly
HB3606 103RD GENERAL ASSEMBLY |
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB3606 Introduced 2/17/2023, by Rep. Curtis J. Tarver, II SYNOPSIS AS INTRODUCED: |
| 30 ILCS 575/2 | | 30 ILCS 575/3.5 new | | 30 ILCS 575/5 | from Ch. 127, par. 132.605 | 30 ILCS 575/7 | from Ch. 127, par. 132.607 | 30 ILCS 575/8 | from Ch. 127, par. 132.608 |
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Amends the Business Enterprise for Minorities, Women, and Persons
with Disabilities Act. Defines terms. Provides factors for determining whether a good faith effort has been made for purposes of granting a waiver under the Act. Provides for a uniform standard of contract goals for State agencies, public institutions of higher education, and other departments. Specifies further requirements concerning uniform contract goals. Provides that the terms of every contract entered into by a State agency or public institution of higher education for purposes of the Act shall include a provision requiring vendors who fail to comply with a utilization plan to return all funds paid to that vendor with an expectation of compliance. Provides that the Business Enterprise Council may (rather than shall) grant a waiver under specified circumstances. Provides criteria for granting a waiver. Makes conforming changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning finance.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Business Enterprise for Minorities, Women, | 5 | | and Persons with
Disabilities Act is amended by changing | 6 | | Sections 2,5, 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| 8 | | (Section scheduled to be repealed on June 30, 2024) | 9 | | Sec. 2.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 | 17 | | and South America, including Central America, and who | 18 | | maintains tribal affiliation or community attachment). | 19 | | (b) Asian (a person having origins in any of the | 20 | | original peoples of the Far East, Southeast Asia, or | 21 | | the Indian subcontinent, including, but not limited | 22 | | to, Cambodia, China, India, Japan, Korea, Malaysia, | 23 | | Pakistan, the Philippine Islands, Thailand, and |
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| 1 | | Vietnam). | 2 | | (c) Black or African American (a person having | 3 | | origins in any of the black racial groups of Africa). | 4 | | (d) Hispanic or Latino (a person of Cuban, | 5 | | Mexican, Puerto Rican, South or Central American, or | 6 | | other Spanish culture or origin, regardless of race). | 7 | | (e) Native Hawaiian or Other Pacific Islander (a | 8 | | person having origins in any of the original peoples | 9 | | of Hawaii, Guam, Samoa, or other Pacific Islands).
| 10 | | (2) "Woman" shall mean a person who is a citizen or | 11 | | lawful permanent
resident of the United States and who is | 12 | | of the female gender.
| 13 | | (2.05) "Person with a disability" means a person who | 14 | | is a citizen or
lawful resident of the United States and is | 15 | | a person qualifying as a person with a disability under | 16 | | subdivision (2.1) of this subsection (A).
| 17 | | (2.1) "Person with a disability" means a person with a | 18 | | severe physical or mental disability that:
| 19 | | (a) results from:
| 20 | | amputation,
| 21 | | arthritis,
| 22 | | autism,
| 23 | | blindness,
| 24 | | burn injury,
| 25 | | cancer,
| 26 | | cerebral palsy,
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| 1 | | Crohn's disease, | 2 | | cystic fibrosis,
| 3 | | deafness,
| 4 | | head injury,
| 5 | | heart disease,
| 6 | | hemiplegia,
| 7 | | hemophilia,
| 8 | | respiratory or pulmonary dysfunction,
| 9 | | an intellectual disability,
| 10 | | mental illness,
| 11 | | multiple sclerosis,
| 12 | | muscular dystrophy,
| 13 | | musculoskeletal disorders,
| 14 | | neurological disorders, including stroke and | 15 | | epilepsy,
| 16 | | paraplegia,
| 17 | | quadriplegia and other spinal cord conditions,
| 18 | | sickle cell anemia,
| 19 | | ulcerative colitis, | 20 | | specific learning disabilities, or
| 21 | | end stage renal failure disease; and
| 22 | | (b) substantially limits one or more of the | 23 | | person's major life activities.
| 24 | | Another disability or combination of disabilities may | 25 | | also be considered
as a severe disability for the purposes | 26 | | of item (a) of this
subdivision (2.1) if it is determined |
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| 1 | | by an evaluation of
rehabilitation potential to
cause a | 2 | | comparable degree of substantial functional limitation | 3 | | similar to
the specific list of disabilities listed in | 4 | | item (a) of this
subdivision (2.1).
| 5 | | (3) "Minority-owned business" means a business which | 6 | | is at least
51% owned by one or more minority persons, or | 7 | | in the case of a
corporation, at least 51% of the stock in | 8 | | which is owned by one or
more minority persons; and the | 9 | | management and daily business operations of
which are | 10 | | controlled by one or more of the minority individuals who | 11 | | own it.
| 12 | | (4) "Women-owned business" means a business which is | 13 | | at least
51% owned by one or more women, or, in the case of | 14 | | a corporation, at
least 51% of the stock in which is owned | 15 | | by one or more women; and the
management and daily | 16 | | business operations of which are controlled by one or
more | 17 | | of the women who own it.
| 18 | | (4.1) "Business owned by a person with a disability" | 19 | | means a business
that is at least 51% owned by one or more | 20 | | persons with a disability
and the management and daily | 21 | | business operations of which
are controlled by one or more | 22 | | of the persons with disabilities who own it. A
| 23 | | not-for-profit agency for persons with disabilities that | 24 | | is exempt from
taxation under Section 501 of the Internal | 25 | | Revenue Code of 1986 is also
considered a "business owned | 26 | | by a person with a disability".
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| 1 | | (4.2) "Council" means the Business Enterprise Council | 2 | | for Minorities, Women, and Persons with Disabilities | 3 | | created under Section 5 of this Act.
| 4 | | (4.3) "Commission" means, unless the context clearly | 5 | | indicates otherwise, the Commission on Equity and | 6 | | Inclusion created under the Commission on Equity and | 7 | | Inclusion Act. | 8 | | (4.4) "Certified vendor" means a minority-owned | 9 | | business, women-owned business, or business owned by a | 10 | | person with a disability that is certified by the Business | 11 | | Enterprise Program. | 12 | | (4.5) "Subcontractor" means a person or entity that | 13 | | enters into a contractual agreement with a prime vendor to | 14 | | provide, on behalf of the prime vendor, goods, services, | 15 | | real property, or remuneration or other monetary | 16 | | consideration that is the subject of the primary State | 17 | | contract. "Subcontractor" includes a sublessee under a | 18 | | State contract. | 19 | | (4.6) "Prime vendor" means any person or entity having | 20 | | a contract that is subject to this Act with a State agency | 21 | | or public institution of higher education. | 22 | | (5) "State contracts" means all contracts entered into | 23 | | by the State, any agency or department thereof, or any | 24 | | public institution of higher education, including | 25 | | community college districts, regardless of the source of | 26 | | the funds with which the contracts are paid, which are not |
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| 1 | | subject to federal reimbursement. "State contracts" does | 2 | | not include contracts awarded by a retirement system, | 3 | | pension fund, or investment board subject to Section | 4 | | 1-109.1 of the Illinois Pension Code. This definition | 5 | | shall control over any existing definition under this Act | 6 | | or applicable administrative rule.
| 7 | | "State construction contracts" means all State | 8 | | contracts entered
into by a State agency or public | 9 | | institution of higher education for the repair, | 10 | | remodeling,
renovation or
construction of a building or | 11 | | structure, or for the construction or
maintenance of a | 12 | | highway defined in Article 2 of the Illinois Highway
Code.
| 13 | | (6) "State agencies" shall mean all departments, | 14 | | officers, boards,
commissions, institutions and bodies | 15 | | politic and corporate of the State,
but does not include | 16 | | the Board of Trustees of the University of Illinois,
the | 17 | | Board of Trustees of Southern Illinois University,
the | 18 | | Board of Trustees
of Chicago State University, the Board | 19 | | of Trustees of Eastern Illinois
University, the Board of | 20 | | Trustees of Governors State University, the Board of
| 21 | | Trustees of Illinois State University, the Board of | 22 | | Trustees of Northeastern
Illinois
University, the Board of | 23 | | Trustees of Northern Illinois University, the Board of
| 24 | | Trustees of Western Illinois University,
municipalities or | 25 | | other local governmental units, or other State | 26 | | constitutional
officers.
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| 1 | | (7) "Public institutions of higher education" means | 2 | | the University of Illinois, Southern Illinois University, | 3 | | Chicago State University, Eastern Illinois University, | 4 | | Governors State University, Illinois State University, | 5 | | Northeastern Illinois University, Northern Illinois | 6 | | University, Western Illinois University, the public | 7 | | community colleges of the State, and any other public | 8 | | universities, colleges, and community colleges now or | 9 | | hereafter established or authorized by the General | 10 | | Assembly.
| 11 | | (8) "Certification" means a determination made by the | 12 | | Council
or by one delegated authority from the Council to | 13 | | make certifications, or by
a State agency with statutory | 14 | | authority to make such a certification, that a
business | 15 | | entity is a business owned by a
minority, woman, or person | 16 | | with a disability for whatever
purpose. A business owned | 17 | | and controlled by women shall be certified as a | 18 | | "woman-owned business". A business owned and controlled by | 19 | | women who are also minorities shall be certified as both a | 20 | | "women-owned business" and a "minority-owned business".
| 21 | | (9) "Control" means the exclusive or ultimate and sole | 22 | | control of the
business including, but not limited to, | 23 | | capital investment and all other
financial matters, | 24 | | property, acquisitions, contract negotiations, legal
| 25 | | matters, officer-director-employee selection and | 26 | | comprehensive hiring,
operating responsibilities, |
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| 1 | | cost-control matters, income and dividend
matters, | 2 | | financial transactions and rights of other shareholders or | 3 | | joint
partners. Control shall be real, substantial and | 4 | | continuing, not pro forma.
Control shall include the power | 5 | | to direct or cause the direction of the
management and | 6 | | policies of the business and to make the day-to-day as | 7 | | well
as major decisions in matters of policy, management | 8 | | and operations.
Control shall be exemplified by possessing | 9 | | the requisite knowledge and
expertise to run the | 10 | | particular business and control shall not include
simple | 11 | | majority or absentee ownership.
| 12 | | (10) "Business" means a business that has annual gross | 13 | | sales of less than $150,000,000 as evidenced by the | 14 | | federal income tax return of the business. A vendor firm | 15 | | with gross sales in excess of this cap may apply to the | 16 | | Council for certification for a particular contract if the | 17 | | vendor firm can demonstrate that the contract would have | 18 | | significant impact on businesses owned by minorities, | 19 | | women, or persons with disabilities as suppliers or | 20 | | subcontractors or in employment of minorities, women, or | 21 | | persons with disabilities. Firms with gross sales in | 22 | | excess of this cap
that are granted certification by the | 23 | | Council shall be
granted certification for the life of the | 24 | | contract,
including available renewals.
| 25 | | (11) "Utilization plan" means an attachment that is
| 26 | | made to a form and additional documentations included in |
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| 1 | | all bids or proposals and that demonstrates the bidder's | 2 | | or offeror's efforts to meet the contract-specific | 3 | | Business Enterprise Program goal. The utilization plan | 4 | | shall indicate whether the prime vendor intends to meet | 5 | | the Business Enterprise Program goal through its own | 6 | | performance, if it is a certified vendor, or through the | 7 | | use of subcontractors that are certified vendors a | 8 | | vendor's proposed utilization of vendors certified by the | 9 | | Business Enterprise Program to meet the targeted goal . The | 10 | | utilization plan shall demonstrate that the Vendor has | 11 | | either: (1) met the entire contract goal or (2) requested | 12 | | a full or partial waiver of the contract goal. If the prime | 13 | | vendor intends to use a subcontractor that is a certified | 14 | | vendor to fulfill the contract goal, a participation | 15 | | agreement executed between the prime vendor and the | 16 | | certified subcontractor must be included with the | 17 | | utilization plan and made good faith efforts towards | 18 | | meeting the goal . | 19 | | (12) "Business Enterprise Program" means the Business | 20 | | Enterprise Program of the Commission on Equity and | 21 | | Inclusion. | 22 | | (13) "Good faith effort" means actions undertaken by a | 23 | | vendor to achieve a contract specific Business Enterprise | 24 | | Program goal that, by scope, intensity, and | 25 | | appropriateness to the objective, can reasonably be | 26 | | expected to fulfill the program's requirements. |
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| 1 | | (B) When a business is owned at least 51% by any | 2 | | combination of
minority persons, women, or persons with | 3 | | disabilities,
even though none of the 3 classes alone holds at | 4 | | least a 51% interest, the
ownership
requirement for purposes | 5 | | of this Act is considered to be met. The
certification | 6 | | category for the business is that of the class holding the
| 7 | | largest ownership
interest in the business. If 2 or more | 8 | | classes have equal ownership interests,
the certification | 9 | | category shall be determined by
the business.
| 10 | | (Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22; | 11 | | 102-29, eff. 6-25-21; 102-1119, eff. 1-23-23.) | 12 | | (30 ILCS 575/3.5 new) | 13 | | Sec. 3.5. Uniform standard of contract goals. | 14 | | (a) The Business Enterprise Program shall establish | 15 | | uniform standards for calculating contract specific Business | 16 | | Enterprise Program goals for all State contracts and State | 17 | | construction contracts subject to this Act. The uniform | 18 | | standards may consider normal industry practice, the scope of | 19 | | the work to be performed under a contract, the availability of | 20 | | vendors that are able to perform the scope of the work to be | 21 | | performed under a contract, the availability of certified | 22 | | vendors that are able to perform the work to be performed under | 23 | | a contract, and the State's progress to date toward meeting | 24 | | the aspirational goals set forth in this Act. | 25 | | (b) No State agency or public institution of higher
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| 1 | | education shall maintain a policy of establishing contract | 2 | | specific goals for the participation of certified vendors
that | 3 | | is inconsistent with or less stringent than the uniform | 4 | | standards
for calculating contract specific goals established | 5 | | by the Business Enterprise Program. | 6 | | (c) Each State agency and public institution of higher
| 7 | | education subject to the requirements of this
Act shall, on an | 8 | | annual basis, submit a report to the Council
detailing its | 9 | | plan to meet the aspirational contract goals established
under | 10 | | this Act and established for that agency and institution.
| 11 | | (30 ILCS 575/5) (from Ch. 127, par. 132.605)
| 12 | | (Section scheduled to be repealed on June 30, 2024)
| 13 | | Sec. 5. Business Enterprise Council.
| 14 | | (1) To help implement, monitor, and enforce the goals of | 15 | | this Act, there
is created the Business Enterprise Council for
| 16 | | Minorities, Women, and Persons with Disabilities, hereinafter
| 17 | | referred to as the Council, composed of the Chairperson of the | 18 | | Commission on Equity and Inclusion, the Secretary of Human | 19 | | Services and
the Directors of the Department of
Human Rights, | 20 | | the Department of Commerce and Economic Opportunity, the
| 21 | | Department of Central Management Services, the Department of | 22 | | Transportation and
the
Capital Development Board, or their | 23 | | duly appointed representatives, with the Comptroller, or his | 24 | | or her designee, serving as an advisory member of the Council. | 25 | | Ten
individuals representing businesses that are |
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| 1 | | minority-owned, women-owned, or
owned by persons with | 2 | | disabilities, 2 individuals representing the business
| 3 | | community, and a representative of public institutions of | 4 | | higher education shall be appointed by the Governor. These | 5 | | members shall serve 2-year terms and shall be eligible for | 6 | | reappointment. Any vacancy occurring on
the Council shall also | 7 | | be filled by the Governor. Any member appointed to fill
a | 8 | | vacancy occurring prior to the expiration of the term for | 9 | | which his or her
predecessor was appointed shall be appointed | 10 | | for the remainder of such term.
Members of the Council shall | 11 | | serve without compensation but shall be reimbursed
for any | 12 | | ordinary and necessary expenses incurred in the performance of | 13 | | their
duties.
| 14 | | The Chairperson of the Commission shall serve
as the | 15 | | Council chairperson and shall select, subject to approval of | 16 | | the Council, a Secretary responsible for the operation of the | 17 | | program who shall
serve as the Division Manager of the | 18 | | Business
Enterprise for Minorities, Women, and Persons with | 19 | | Disabilities Division
of the Commission on Equity and | 20 | | Inclusion.
| 21 | | The Director of each State agency and the chief executive | 22 | | officer of
each public institution of higher education shall | 23 | | appoint a liaison to the Council. The liaison
shall be | 24 | | responsible for submitting to the Council any reports and
| 25 | | documents necessary under this Act.
| 26 | | (2) The Council's authority and responsibility shall be |
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| 1 | | to:
| 2 | | (a) Devise a certification procedure to assure that | 3 | | businesses taking
advantage of this Act are legitimately | 4 | | classified as businesses owned by minorities, women, or | 5 | | persons with
disabilities and a registration procedure to | 6 | | recognize, without additional evidence of Business | 7 | | Enterprise Program eligibility, the certification of | 8 | | businesses owned by minorities, women, or persons with | 9 | | disabilities certified by the City of Chicago, Cook | 10 | | County, or other jurisdictional programs with requirements | 11 | | and procedures equaling or exceeding those in this Act.
| 12 | | (b) Maintain a list of all
businesses legitimately | 13 | | classified as businesses owned by minorities, women, or | 14 | | persons with disabilities to provide to State agencies and | 15 | | public institutions of higher education.
| 16 | | (c) Review rules and regulations for the | 17 | | implementation of the program for businesses owned by | 18 | | minorities, women,
and persons with disabilities.
| 19 | | (d) Review compliance plans submitted by each State | 20 | | agency and public institution of higher education
pursuant | 21 | | to this Act.
| 22 | | (e) Make annual reports as provided in Section 8f to | 23 | | the Governor and
the General Assembly on the
status of the | 24 | | program.
| 25 | | (f) Serve as a central clearinghouse for information | 26 | | on State
contracts, including the maintenance of a list of |
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| 1 | | all pending State
contracts upon which businesses owned by | 2 | | minorities, women, and persons with disabilities may bid.
| 3 | | At the Council's discretion, maintenance of the list may | 4 | | include 24-hour
electronic access to the list along with | 5 | | the bid and application information.
| 6 | | (g) Establish a toll-free telephone number to | 7 | | facilitate information
requests concerning the | 8 | | certification process and pending contracts.
| 9 | | (h) Adopt a procedure to grant automatic certification | 10 | | to businesses holding a certification from at least one of | 11 | | the following entities: (i) the Illinois Unified | 12 | | Certification Program; (ii) the Women's Business | 13 | | Development Center in Chicago; (iii) the Chicago Minority | 14 | | Supplier Development Council; or (iv) any other similar | 15 | | entity offering such certification to businesses. | 16 | | (i) Develop and maintain a repository for | 17 | | non-certified vendors that: (i) have applied for | 18 | | certification and have been denied; (ii) have started, but | 19 | | not completed, the certification process; (iii) have | 20 | | achieved certification, but did not seek renewal; or (iv) | 21 | | are known businesses owned by minorities, women, or | 22 | | persons with disabilities. | 23 | | (3) No premium bond rate of a surety company for a bond | 24 | | required of a business owned by a minority, woman, or person
| 25 | | with a disability bidding for a State contract shall be
higher | 26 | | than the lowest rate charged by that surety company for a |
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| 1 | | similar
bond in the same classification of work that would be | 2 | | written for a business not owned by a minority, woman, or | 3 | | person with a disability.
| 4 | | (4) Any Council member who has direct financial or | 5 | | personal interest in
any measure pending before the Council | 6 | | shall disclose this fact to the
Council and refrain from | 7 | | participating in the determination upon such measure.
| 8 | | (5) The Secretary shall have the following duties and | 9 | | responsibilities:
| 10 | | (a) To be responsible for the day-to-day operation of | 11 | | the Council.
| 12 | | (b) To serve as a coordinator for all of the State's | 13 | | programs for businesses owned by minorities, women,
and | 14 | | persons with disabilities and as the information and | 15 | | referral center
for all State initiatives for businesses
| 16 | | owned by minorities, women, and persons with disabilities.
| 17 | | (c) To establish an enforcement procedure whereby the | 18 | | Council may
recommend to the appropriate State legal | 19 | | officer that the State exercise
its legal remedies which | 20 | | shall include (1) termination of the contract
involved, | 21 | | (2) prohibition of participation by the respondent in | 22 | | public
contracts for a period not to exceed 3 years, (3) | 23 | | imposition of a penalty in the amount of the discrepancy | 24 | | between the commitment contained in the utilization plan, | 25 | | as such amount may be amended over the term of the | 26 | | contract, and the qualifying payments made to the eligible |
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| 1 | | certified vendors listed in the utilization plan a penalty
| 2 | | not to exceed any profit acquired as a result of | 3 | | violation , or (4) any
combination thereof. Such procedures | 4 | | shall require prior approval by Council. All funds | 5 | | collected as penalties under this subsection shall be used | 6 | | exclusively for maintenance and further development of the | 7 | | Business Enterprise Program and encouragement of | 8 | | participation in State procurement by minorities, women, | 9 | | and persons with disabilities.
| 10 | | (d) To devise appropriate policies, regulations, and | 11 | | procedures for
including participation by businesses owned
| 12 | | by minorities, women, and persons with disabilities as | 13 | | prime contractors,
including, but not limited to: (i) | 14 | | encouraging the inclusions of qualified businesses owned | 15 | | by minorities, women, and
persons with disabilities on | 16 | | solicitation lists, (ii)
investigating the potential of | 17 | | blanket bonding programs for small
construction jobs, and | 18 | | (iii) investigating and making recommendations
concerning | 19 | | the use of the sheltered market process.
| 20 | | (e) To devise procedures for the waiver of the | 21 | | participation goals in
appropriate circumstances.
| 22 | | (f) To accept donations and, with the approval of the | 23 | | Council or the Chairperson of the Commission on Equity and | 24 | | Inclusion, grants related to the purposes of
this Act; to | 25 | | conduct seminars related to the purpose of this Act and to
| 26 | | charge reasonable registration fees; and to sell |
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| 1 | | directories, vendor lists,
and other such information to | 2 | | interested parties, except that forms
necessary to become | 3 | | eligible for the program shall be provided free of
charge | 4 | | to a business or individual applying for the Business | 5 | | Enterprise Program.
| 6 | | (Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22; | 7 | | 102-29, eff. 6-25-21; 102-558, eff. 8-20-21; 102-721, eff. | 8 | | 1-1-23 .)
| 9 | | (30 ILCS 575/7) (from Ch. 127, par. 132.607) | 10 | | (Section scheduled to be repealed on June 30, 2024) | 11 | | Sec. 7. Exemptions; waivers; publication of data. | 12 | | (1) Individual contract exemptions.
The Council, at the | 13 | | written request of the affected agency,
public institution of | 14 | | higher education, or recipient of a grant or loan of State | 15 | | funds of $250,000 or more complying with Section 45 of the | 16 | | State Finance Act, may permit an individual contract or | 17 | | contract package,
(related contracts being bid or awarded | 18 | | simultaneously for the same project
or improvements) be made | 19 | | wholly or partially exempt from State contracting
goals for | 20 | | businesses owned by
minorities, women, and persons with | 21 | | disabilities prior to the advertisement
for bids or | 22 | | solicitation of proposals whenever there has been a
| 23 | | determination, reduced to writing and based on the best | 24 | | information
available at the time of the determination, that | 25 | | there is an insufficient
number of businesses owned by |
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| 1 | | minorities, women, and persons with disabilities to ensure | 2 | | adequate
competition and an expectation of reasonable prices | 3 | | on bids or proposals
solicited for the individual contract or | 4 | | contract package in question. Any such exemptions shall be | 5 | | given by
the Council to the Bureau on Apprenticeship Programs | 6 | | and Clean Energy Jobs. | 7 | | (a) Written request for contract exemption. A written | 8 | | request for an individual contract exemption must include, | 9 | | but is not limited to, the following: | 10 | | (i) a list of eligible businesses owned by | 11 | | minorities, women, and persons with disabilities; | 12 | | (ii) a clear demonstration that the number of | 13 | | eligible businesses identified in subparagraph (i) | 14 | | above is insufficient to ensure adequate competition; | 15 | | (iii) the difference in cost between the contract | 16 | | proposals being offered by businesses owned by | 17 | | minorities, women, and persons with disabilities and | 18 | | the agency or public institution of higher education's | 19 | | expectations of reasonable prices on bids or proposals | 20 | | within that class; and | 21 | | (iv) a list of eligible businesses owned by | 22 | | minorities, women, and persons with
disabilities that | 23 | | the contractor has used in the current and prior | 24 | | fiscal years. | 25 | | (b) Determination. The Council's determination | 26 | | concerning an individual contract exemption must consider, |
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| 1 | | at a minimum, the following: | 2 | | (i) the justification for the requested exemption, | 3 | | including whether diligent efforts were undertaken to | 4 | | identify and solicit eligible businesses owned by | 5 | | minorities, women, and persons with disabilities; | 6 | | (ii) the total number of exemptions granted to the | 7 | | affected agency, public institution of higher | 8 | | education, or recipient of a grant or loan of State | 9 | | funds of $250,000 or more complying with Section 45 of | 10 | | the State Finance Act that have been granted by the | 11 | | Council in the current and prior fiscal years; and | 12 | | (iii) the percentage of contracts awarded by the | 13 | | agency or public institution of higher education to | 14 | | eligible businesses owned by minorities, women, and | 15 | | persons with disabilities in the current and prior | 16 | | fiscal years. | 17 | | (2) Class exemptions. | 18 | | (a) Creation. The Council, at the written request of | 19 | | the affected agency or public institution of higher | 20 | | education, may permit an entire
class of
contracts be made | 21 | | exempt from State
contracting goals for businesses owned | 22 | | by minorities, women, and persons
with disabilities | 23 | | whenever there has been a determination, reduced to
| 24 | | writing and based on the best information available at the | 25 | | time of the
determination, that there is an insufficient | 26 | | number of qualified businesses owned by minorities, women, |
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| 1 | | and persons with
disabilities to ensure adequate | 2 | | competition and an
expectation of reasonable prices on | 3 | | bids or proposals within that class. Any such exemption | 4 | | shall be given by
the Council to the Bureau on | 5 | | Apprenticeship Programs and Clean Energy Jobs. | 6 | | (a-1) Written request for class exemption. A written | 7 | | request for a class exemption must include, but is not | 8 | | limited to, the following: | 9 | | (i) a list of eligible businesses owned by | 10 | | minorities, women, and persons with disabilities; | 11 | | (ii) a clear demonstration that the number of | 12 | | eligible businesses identified in subparagraph (i) | 13 | | above is insufficient to ensure adequate competition; | 14 | | (iii) the difference in cost between the contract | 15 | | proposals being offered by eligible businesses owned | 16 | | by minorities, women, and persons with disabilities | 17 | | and the agency or public institution of higher | 18 | | education's expectations of reasonable prices on bids | 19 | | or proposals within that class; and | 20 | | (iv) the number of class exemptions the affected | 21 | | agency or public institution
of higher education | 22 | | requested in the current and prior fiscal years. | 23 | | (a-2) Determination. The Council's determination | 24 | | concerning class exemptions must consider, at a minimum, | 25 | | the following: | 26 | | (i) the justification for the requested exemption, |
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| 1 | | including whether diligent efforts were undertaken to | 2 | | identify and solicit eligible businesses owned by | 3 | | minorities, women, and persons with disabilities; | 4 | | (ii) the total number of class exemptions granted | 5 | | to the requesting agency or public institution of | 6 | | higher education that have been granted by the Council | 7 | | in the current and prior fiscal years; and | 8 | | (iii) the percentage of contracts awarded by the | 9 | | agency or public institution of higher education to | 10 | | eligible businesses owned by minorities, women, and | 11 | | persons with disabilities the current and prior fiscal | 12 | | years. | 13 | | (b) Limitation. Any such class exemption shall not be | 14 | | permitted for a
period of more than one year at a time. | 15 | | (3) Waivers. Where a particular contract requires a vendor | 16 | | contractor to meet
a goal established pursuant to this Act, | 17 | | the vendor contractor shall have the right
to request a waiver | 18 | | from such requirements prior to the contract award. The | 19 | | Business Enterprise Program shall evaluate a vendor's request | 20 | | for a waiver based on the vendor's documented good faith | 21 | | efforts to meet the contract-specific Business Enterprise | 22 | | Program goal. The Council may shall grant the waiver when the | 23 | | contractor demonstrates that there has been made a good faith | 24 | | effort to comply with the goals for participation by | 25 | | businesses owned by minorities, women, and persons with | 26 | | disabilities. Any such waiver may shall also be
transmitted in |
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| 1 | | writing to the Bureau on Apprenticeship Programs and Clean | 2 | | Energy Jobs. | 3 | | (a) Request for waiver. A vendor's contractor's | 4 | | request for a waiver under this subsection (3) must | 5 | | include, but is not limited to, the following , if | 6 | | available : | 7 | | (i) a list of eligible businesses owned by | 8 | | minorities, women, and persons with disabilities that | 9 | | pertain to the the class of contracts in the requested | 10 | | waiver that were contracted by the vendor scope of | 11 | | work of the contract . Eligible businesses are only | 12 | | eligible if the business is certified for the products | 13 | | or work advertised in the solicitation or bid ; | 14 | | (ii) (blank); | 15 | | (iia) a clear demonstration that the vendor | 16 | | contractor selected portions of the work to be | 17 | | performed by certified vendors to facilitate meeting | 18 | | the contract specific goal, and that certified vendors | 19 | | that have the capability to perform the work of the | 20 | | contract were eligible businesses owned by minorities, | 21 | | women, and persons with disabilities, solicited | 22 | | through all reasonable and available means eligible | 23 | | businesses, and negotiated in good faith with | 24 | | interested eligible businesses ; | 25 | | (iib) documentation demonstrating that certified | 26 | | vendors businesses owned by minorities, women, and |
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| 1 | | persons with disabilities are not rejected as being | 2 | | unqualified without sound reasons based on a thorough | 3 | | investigation of their capabilities . The certified | 4 | | vendor's standing within its industry, membership in | 5 | | specific groups, organizations, or associations, and | 6 | | political or social affiliations are not legitimate | 7 | | causes for rejecting or not contacting or negotiating | 8 | | with a certified vendor ; | 9 | | (iic) proof that the prime vendor solicited | 10 | | eligible certified vendors with: (1) sufficient time | 11 | | to respond; (2) adequate information about the scope, | 12 | | specifications, and requirements of the solicitation | 13 | | or bid, including plans, drawings, and addenda, to | 14 | | allow eligible businesses an opportunity to respond to | 15 | | the solicitation or bid; and (3) sufficient follow up | 16 | | with certified vendors; | 17 | | (iid) a clear demonstration that the prime vendor | 18 | | communicated with certified vendors; | 19 | | (iie) evidence that the prime vendor negotiated | 20 | | with certified vendors to enter into subcontracts to | 21 | | provide a commercially useful function of the contract | 22 | | for a reasonable cost; | 23 | | (iii) documentation demonstrating that the | 24 | | difference in cost between the contract proposals | 25 | | being offered by certified vendors is contract | 26 | | proposals being offered by businesses owned by |
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| 1 | | minorities, women, and persons with disabilities are | 2 | | excessive or unreasonable; and | 3 | | (iv) a list of certified vendors businesses owned | 4 | | by minorities, women, and persons with disabilities | 5 | | that the contractor has used in the current and prior | 6 | | fiscal years ; . | 7 | | (v) documentation demonstrating that the vendor | 8 | | made efforts to utilize certified vendors despite the | 9 | | ability or desire of a vendor to perform the work with | 10 | | its own operations by selecting portions of the work | 11 | | to be performed by certified vendors, which may, when | 12 | | appropriate, include breaking out portions of the work | 13 | | to be performed into economically feasible units to | 14 | | facilitate certified vendor participation; and | 15 | | (vi) documentation that the vendor used the | 16 | | services of: (1) the State; (2) organizations or | 17 | | contractors' groups representing or composed of | 18 | | minorities, women, or persons with disabilities; (3) | 19 | | local, State, or federal assistance offices | 20 | | representing or assisting minorities, women, or | 21 | | persons with disabilities; and (4) other organizations | 22 | | that provide assistance in the recruitment and | 23 | | engagement of certified vendors. | 24 | | (b) Determination. The Council's determination | 25 | | concerning waivers must include following: | 26 | | (i) the justification for the requested waiver, |
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| 1 | | including whether the requesting vendor contractor | 2 | | made a good faith effort to identify and solicit | 3 | | certified vendors based on the criteria set forth in | 4 | | this Section eligible businesses owned by minorities, | 5 | | women, and persons with disabilities ; | 6 | | (ii) the total number of waivers the vendor | 7 | | contractor has been granted by the Council in the | 8 | | current and prior fiscal years; | 9 | | (iii) (blank); and | 10 | | (iv) the vendor's contractor's use of businesses | 11 | | owned by minorities, women, and persons with | 12 | | disabilities in the current and prior fiscal years. | 13 | | (3.5) (Blank). | 14 | | (4) Conflict with other laws. In the event that any State | 15 | | contract, which
otherwise would be subject to the provisions | 16 | | of this Act, is or becomes
subject to federal laws or | 17 | | regulations which conflict with the provisions
of this Act or | 18 | | actions of the State taken pursuant hereto, the provisions
of | 19 | | the federal laws or regulations shall apply and the contract | 20 | | shall be
interpreted and enforced accordingly. | 21 | | (5) Each chief procurement officer, as defined in the | 22 | | Illinois Procurement Code, shall maintain on his or her | 23 | | official Internet website a database of the following: (i) | 24 | | waivers granted under this Section with respect to contracts | 25 | | under his or her jurisdiction; (ii) a State agency or public | 26 | | institution of higher education's written request for an |
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| 1 | | exemption of an individual contract or an entire class of | 2 | | contracts; and (iii) the Council's written determination | 3 | | granting or denying a request for an exemption of an | 4 | | individual contract or an entire class of contracts. The | 5 | | database, which shall be updated periodically as necessary, | 6 | | shall be searchable by contractor name and by contracting | 7 | | State agency. | 8 | | (6) Each chief procurement officer, as defined by the | 9 | | Illinois Procurement Code, shall maintain on its website a | 10 | | list of all vendors firms that have been prohibited from | 11 | | bidding, offering, or entering into a contract with the State | 12 | | of Illinois as a result of violations of this Act. | 13 | | Each public notice required by law of the award of a State | 14 | | contract shall include for each bid or offer submitted for | 15 | | that contract the following: (i) the bidder's or offeror's | 16 | | name, (ii) the bid amount, (iii) the name or names of the | 17 | | certified vendors firms identified in the bidder's or | 18 | | offeror's submitted utilization plan, and (iv) the bid's | 19 | | amount and percentage of the contract awarded to each | 20 | | certified vendor that is a business businesses owned by | 21 | | minorities, women, and persons with disabilities identified in | 22 | | the utilization plan. | 23 | | (Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20; | 24 | | 101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff. | 25 | | 9-15-21 .)
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| 1 | | (30 ILCS 575/8) (from Ch. 127, par. 132.608)
| 2 | | (Section scheduled to be repealed on June 30, 2024)
| 3 | | Sec. 8. Enforcement. | 4 | | (1) The Commission on Equity and Inclusion shall make such | 5 | | findings, recommendations
and proposals to the Governor as are | 6 | | necessary and appropriate to enforce
this Act. If, as a result | 7 | | of its monitoring activities, the Commission determines
that | 8 | | its goals and policies are not being met by any State agency or | 9 | | public institution of higher education,
the Commission
may | 10 | | recommend any or all of the following actions:
| 11 | | (a) Establish enforcement procedures whereby the | 12 | | Commission may recommend
to the appropriate State agency, | 13 | | public institutions of higher education, or law | 14 | | enforcement
officer that legal or
administrative remedies | 15 | | be initiated for violations of contract provisions
or | 16 | | rules issued hereunder or by a contracting State agency or | 17 | | public institutions of higher education. State agencies | 18 | | and public institutions of higher education
shall be | 19 | | authorized to adopt remedies for such violations which | 20 | | shall include
(1) termination of the contract involved, | 21 | | (2) prohibition of participation
of the respondents in | 22 | | public contracts for a period not to exceed one year,
(3) | 23 | | the assessment of a penalty in the amount of the | 24 | | discrepancy between the commitment contained in the | 25 | | utilization plan, as such amount may be amended over the | 26 | | term of the contract, and the qualifying payments made to |
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| 1 | | the certified vendors listed in the utilization plan | 2 | | imposition of a penalty not to exceed any profit acquired | 3 | | as a result
of violation , or (4) any combination thereof.
| 4 | | (b) If the Commission concludes that a compliance plan | 5 | | submitted under Section
6 is unlikely to produce the
| 6 | | participation
goals for businesses owned by minorities, | 7 | | women, and persons with
disabilities within the then | 8 | | current fiscal year, the Commission may recommend
that
the | 9 | | State agency or public institution of higher education | 10 | | revise its plan to provide
additional
opportunities
for | 11 | | participation by businesses owned by minorities, women, | 12 | | and persons with disabilities. Such recommended revisions | 13 | | may
include, but shall not be limited to, the following:
| 14 | | (i) assurances of stronger and better focused | 15 | | solicitation efforts to
obtain more businesses owned | 16 | | by minorities, women, and persons with disabilities as | 17 | | potential sources of
supply;
| 18 | | (ii) division of the scope of work job or project | 19 | | requirements , when economically feasible,
into tasks | 20 | | or quantities to permit participation of
businesses | 21 | | owned by minorities, women, and persons with | 22 | | disabilities;
| 23 | | (iii) elimination of extended experience or | 24 | | capitalization requirements,
when programmatically | 25 | | feasible, to permit participation of businesses owned | 26 | | by minorities, women, and persons with
disabilities;
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| 1 | | (iv) identification of specific proposed contracts | 2 | | as particularly
attractive or appropriate for | 3 | | participation by
businesses owned by minorities, | 4 | | women, and persons with disabilities,
such | 5 | | identification to result from and be coupled with the
| 6 | | efforts of subparagraphs
(i) through (iii);
| 7 | | (v) implementation of those regulations | 8 | | established for the use of the
sheltered market | 9 | | process.
| 10 | | (2) State agencies and public institutions of higher | 11 | | education shall monitor a vendor's compliance with its | 12 | | utilization plan and the terms of its contract. Without | 13 | | limitation, a vendor's failure to comply with its contractual | 14 | | commitments as contained in the utilization plan; failure to | 15 | | cooperate in providing information regarding its compliance | 16 | | with its utilization plan; or the provision of false or | 17 | | misleading information or statements concerning compliance, | 18 | | certification status, or eligibility of the Business | 19 | | Enterprise Program-certified vendor, good faith efforts, or | 20 | | any other material fact or representation shall constitute a | 21 | | material breach of the contract and entitle the State agency | 22 | | or public institution of higher education to declare a | 23 | | default, terminate the contract, or exercise those remedies | 24 | | provided for in the contract, at law, or in equity. | 25 | | (3) Prior to the expiration or termination of a contract, | 26 | | State agencies and public institutions of higher education |
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| 1 | | shall evaluate the contractor's fulfillment of the contract | 2 | | goals for participation by certified businesses owned by | 3 | | minorities, women, and persons with disabilities. The agency | 4 | | or public institution of higher education shall prepare a | 5 | | report of the vendor's compliance with the contract goals and | 6 | | file it with the Secretary. If the Secretary determines that | 7 | | the vendor did not fulfill the contract goals, the vendor | 8 | | shall be in breach of the contract and may be subject to | 9 | | remedies or sanctions, unless the vendor can show that it made | 10 | | good faith efforts to meet the contract goals. Such remedies | 11 | | or sanctions for failing to make good faith efforts may | 12 | | include (i) disqualification of the contractor from doing | 13 | | business with the State for a period of no more than one year , | 14 | | or (ii) cancellation, without any penalty to the State, of any | 15 | | contract entered into by the vendor , or (iii) the assessment | 16 | | of a penalty in the amount of the discrepancy between the | 17 | | commitment contained in the utilization plan, as such amount | 18 | | may be amended over the term of the contract, and the | 19 | | qualifying payments made to the certified vendors listed in | 20 | | the utilization plan . | 21 | | The Business Enterprise Program shall develop procedures | 22 | | for determining whether a vendor has made good faith efforts | 23 | | to meet the contract goals upon the expiration or termination | 24 | | of a contract , which may include, but shall not be limited to: | 25 | | (i) consideration of whether State or local action caused a | 26 | | shortfall, such as a change in the scope of work that |
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| 1 | | eliminated work to be performed by certified vendors or a | 2 | | change in specifications; (ii) whether the vendor was unable | 3 | | to obtain certified business participation without requiring | 4 | | the introduction of extra participants not performing a | 5 | | commercially useful function; or (iii) whether the vendor made | 6 | | efforts to use appropriate forums for purposes of advertising | 7 | | subcontracting opportunities suitable for certified | 8 | | businesses . | 9 | | (Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21 .)
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