Full Text of HB3864 103rd General Assembly
HB3864 103RD GENERAL ASSEMBLY |
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB3864 Introduced 2/17/2023, by Rep. Hoan Huynh SYNOPSIS AS INTRODUCED: |
| 30 ILCS 575/2 | | 30 ILCS 575/4 | from Ch. 127, par. 132.604 | 30 ILCS 575/7 | from Ch. 127, par. 132.607 | 30 ILCS 575/8 | from Ch. 127, par. 132.608 | 30 ILCS 575/8f | |
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Amends the Business Enterprise for Minorities, Women, and Persons with Disabilities Act. Provides that not less than 40% of the total dollar amount of State contracts shall be established as an aspirational goal to be awarded to businesses owned by minorities. Provides that of the total amount of all State contracts awarded to businesses owned by minorities, contracts representing at least 20% shall be awarded to businesses owned by black or African American persons. Removes provisions allowing for a waiver from contract goals established under the Act. Requires the return of specified funds for failing to accomplish contract goals established under the Act. Makes conforming changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning government.
| 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, 4, 7, 8, and 8f 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| 8 | | (Section scheduled to be repealed on June 30, 2024) | 9 | | Sec. 2.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 | | (5) "State contracts" means all contracts entered into | 9 | | by the State, any agency or department thereof, or any | 10 | | public institution of higher education, including | 11 | | community college districts, regardless of the source of | 12 | | the funds with which the contracts are paid, which are not | 13 | | subject to federal reimbursement. "State contracts" does | 14 | | not include contracts awarded by a retirement system, | 15 | | pension fund, or investment board subject to Section | 16 | | 1-109.1 of the Illinois Pension Code. This definition | 17 | | shall control over any existing definition under this Act | 18 | | or applicable administrative rule.
| 19 | | "State construction contracts" means all State | 20 | | contracts entered
into by a State agency or public | 21 | | institution of higher education for the repair, | 22 | | remodeling,
renovation or
construction of a building or | 23 | | structure, or for the construction or
maintenance of a | 24 | | highway defined in Article 2 of the Illinois Highway
Code.
| 25 | | (6) "State agencies" shall mean all departments, | 26 | | officers, boards,
commissions, institutions and bodies |
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| 1 | | politic and corporate of the State,
but does not include | 2 | | the Board of Trustees of the University of Illinois,
the | 3 | | Board of Trustees of Southern Illinois University,
the | 4 | | Board of Trustees
of Chicago State University, the Board | 5 | | of Trustees of Eastern Illinois
University, the Board of | 6 | | Trustees of Governors State University, the Board of
| 7 | | Trustees of Illinois State University, the Board of | 8 | | Trustees of Northeastern
Illinois
University, the Board of | 9 | | Trustees of Northern Illinois University, the Board of
| 10 | | Trustees of Western Illinois University,
municipalities or | 11 | | other local governmental units, or other State | 12 | | constitutional
officers.
| 13 | | (7) "Public institutions of higher education" means | 14 | | the University of Illinois, Southern Illinois University, | 15 | | Chicago State University, Eastern Illinois University, | 16 | | Governors State University, Illinois State University, | 17 | | Northeastern Illinois University, Northern Illinois | 18 | | University, Western Illinois University, the public | 19 | | community colleges of the State, and any other public | 20 | | universities, colleges, and community colleges now or | 21 | | hereafter established or authorized by the General | 22 | | Assembly.
| 23 | | (8) "Certification" means a determination made by the | 24 | | Council
or by one delegated authority from the Council to | 25 | | make certifications, or by
a State agency with statutory | 26 | | authority to make such a certification, that a
business |
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| 1 | | entity is a business owned by a
minority, woman, or person | 2 | | with a disability for whatever
purpose. A business owned | 3 | | and controlled by women shall be certified as a | 4 | | "woman-owned business". A business owned and controlled by | 5 | | women who are also minorities shall be certified as both a | 6 | | "women-owned business" and a "minority-owned business".
| 7 | | (9) "Control" means the exclusive or ultimate and sole | 8 | | control of the
business including, but not limited to, | 9 | | capital investment and all other
financial matters, | 10 | | property, acquisitions, contract negotiations, legal
| 11 | | matters, officer-director-employee selection and | 12 | | comprehensive hiring,
operating responsibilities, | 13 | | cost-control matters, income and dividend
matters, | 14 | | financial transactions and rights of other shareholders or | 15 | | joint
partners. Control shall be real, substantial and | 16 | | continuing, not pro forma.
Control shall include the power | 17 | | to direct or cause the direction of the
management and | 18 | | policies of the business and to make the day-to-day as | 19 | | well
as major decisions in matters of policy, management | 20 | | and operations.
Control shall be exemplified by possessing | 21 | | the requisite knowledge and
expertise to run the | 22 | | particular business and control shall not include
simple | 23 | | majority or absentee ownership.
| 24 | | (10) "Business" means a business that has annual gross | 25 | | sales of less than $150,000,000 as evidenced by the | 26 | | federal income tax return of the business. A firm with |
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| 1 | | gross sales in excess of this cap may apply to the Council | 2 | | for certification for a particular contract if the firm | 3 | | can demonstrate that the contract would have significant | 4 | | impact on businesses owned by minorities, women, or | 5 | | persons with disabilities as suppliers or subcontractors | 6 | | or in employment of minorities, women, or persons with | 7 | | disabilities. Firms with gross sales in excess of this cap
| 8 | | that are granted certification by the Council shall be
| 9 | | granted certification for the life of the contract,
| 10 | | including available renewals.
| 11 | | (11) "Utilization plan" means a form and additional | 12 | | documentations included in all bids or proposals that | 13 | | demonstrates a vendor's proposed utilization of vendors | 14 | | certified by the Business Enterprise Program to meet the | 15 | | targeted goal. The utilization plan shall demonstrate that | 16 | | the Vendor has either: (1) met the entire contract goal or | 17 | | (2) requested a full or partial waiver and made good faith | 18 | | efforts towards meeting the goal . | 19 | | (12) "Business Enterprise Program" means the Business | 20 | | Enterprise Program of the Commission on Equity and | 21 | | Inclusion. | 22 | | (B) When a business is owned at least 51% by any | 23 | | combination of
minority persons, women, or persons with | 24 | | disabilities,
even though none of the 3 classes alone holds at | 25 | | least a 51% interest, the
ownership
requirement for purposes | 26 | | of this Act is considered to be met. The
certification |
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| 1 | | category for the business is that of the class holding the
| 2 | | largest ownership
interest in the business. If 2 or more | 3 | | classes have equal ownership interests,
the certification | 4 | | category shall be determined by
the business.
| 5 | | (Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22; | 6 | | 102-29, eff. 6-25-21; 102-1119, eff. 1-23-23.)
| 7 | | (30 ILCS 575/4) (from Ch. 127, par. 132.604)
| 8 | | (Section scheduled to be repealed on June 30, 2024)
| 9 | | Sec. 4. Award of State contracts.
| 10 | | (a) Except as provided in subsection (b), not less than | 11 | | 30% of
the total dollar amount of State contracts, as defined | 12 | | by the Secretary of
the Council and approved by the Council, | 13 | | shall be established as an aspirational goal to
be awarded to | 14 | | businesses owned by minorities,
women , and persons with | 15 | | disabilities; provided, however, that
of the total amount of | 16 | | all
State contracts awarded to businesses owned by
minorities , | 17 | | women , and persons with disabilities pursuant to
this Section, | 18 | | contracts representing at least 16% shall be awarded to | 19 | | businesses owned by minorities, contracts representing at | 20 | | least 10% shall be awarded to women-owned businesses , and | 21 | | contracts representing at least 10% 4% shall be awarded to | 22 | | businesses owned by persons with disabilities.
| 23 | | Additionally, not less than 40% of the total dollar amount
| 24 | | of State contracts shall be established as an aspirational
| 25 | | goal to be awarded to businesses owned by minorities;
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| 1 | | provided, however, that of the total amount of all State
| 2 | | contracts awarded to businesses owned by minorities, contracts
| 3 | | representing at least 20% shall be awarded to businesses owned
| 4 | | by black or African American persons. | 5 | | (a-5) In addition to the aspirational goals in awarding | 6 | | State contracts set under subsection (a), the Commission shall | 7 | | by rule further establish targeted efforts to encourage the | 8 | | participation of businesses owned by minorities, women, and | 9 | | persons with disabilities on State contracts. Such efforts | 10 | | shall include, but not be limited to, further concerted | 11 | | outreach efforts to businesses owned by minorities, women, and | 12 | | persons with disabilities. | 13 | | The above percentage relates to the total dollar amount of | 14 | | State
contracts during each State fiscal year, calculated by | 15 | | examining
independently each type of contract for each agency | 16 | | or public institutions of higher education which
lets such | 17 | | contracts. Only that percentage of arrangements which | 18 | | represents the participation of businesses owned by
| 19 | | minorities, women, and persons with disabilities on such | 20 | | contracts shall
be included. State contracts subject to the | 21 | | requirements of this Act shall include the requirement that | 22 | | only expenditures to businesses owned by minorities, women, | 23 | | and persons with disabilities that perform a commercially | 24 | | useful function may be counted toward the goals set forth by | 25 | | this Act. Contracts shall include a definition of | 26 | | "commercially useful function" that is consistent with 49 CFR |
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| 1 | | 26.55(c).
| 2 | | (b) Not less
than 20% of the total dollar amount of State | 3 | | construction contracts is
established as an aspirational goal | 4 | | to be awarded to businesses owned by minorities, women, and | 5 | | persons with disabilities; provided that, contracts | 6 | | representing at least 11% of the total dollar amount of State | 7 | | construction contracts shall be awarded to businesses owned by | 8 | | minorities; contracts representing at least 7% of the total | 9 | | dollar amount of State construction contracts shall be awarded | 10 | | to women-owned businesses; and contracts representing at least | 11 | | 2% of the total dollar amount of State construction contracts | 12 | | shall be awarded to businesses owned by persons with | 13 | | disabilities.
| 14 | | (c) (Blank). | 15 | | (c-5) All goals established under this Section shall be | 16 | | contingent upon the results of the most recent disparity study | 17 | | conducted by the State. | 18 | | (d) Within one year after April 28, 2009 (the effective | 19 | | date of Public Act 96-8), the Department of Central Management | 20 | | Services shall conduct a social scientific study that measures | 21 | | the impact of discrimination on minority and women business | 22 | | development in Illinois. Within 18 months after April 28, 2009 | 23 | | (the effective date of Public Act 96-8), the Department shall | 24 | | issue a report of its findings and any recommendations on | 25 | | whether to adjust the goals for minority and women | 26 | | participation established in this Act. Copies of this report |
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| 1 | | and the social scientific study shall be filed with the | 2 | | Governor and the General Assembly. | 3 | | By December 1, 2020, the Department of Central Management | 4 | | Services shall conduct a new social scientific study that | 5 | | measures the impact of discrimination on minority and women | 6 | | business development in Illinois. By June 1, 2022, the | 7 | | Department shall issue a report of its findings and any | 8 | | recommendations on whether to adjust the goals for minority | 9 | | and women participation established in this Act. Copies of | 10 | | this report and the social scientific study shall be filed | 11 | | with the Governor and the General Assembly. By December 1, | 12 | | 2022, the Commission on Equity and Inclusion Business | 13 | | Enterprise Program shall develop a model for social scientific | 14 | | disparity study sourcing for local governmental units to adapt | 15 | | and implement to address regional disparities in public | 16 | | procurement. | 17 | | (e) All State contract solicitations that include Business | 18 | | Enterprise Program participation goals shall require bidders | 19 | | or offerors to include utilization plans. Utilization plans | 20 | | are due at the time of bid or offer submission. Failure to | 21 | | complete and include a utilization plan, including | 22 | | documentation demonstrating good faith efforts when requesting | 23 | | a waiver, shall render the bid or offer non-responsive. | 24 | | Except as permitted under this Act or as otherwise
| 25 | | mandated by federal regulation, a bidder or offeror whose bid | 26 | | or offer is accepted and who included in that bid a completed |
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| 1 | | utilization plan but who fails to meet the goals set forth in | 2 | | the
plan shall be notified of the deficiency by the
| 3 | | contracting agency or public institution of higher education
| 4 | | and shall be given a period of 10 calendar days to cure the | 5 | | deficiency by contracting with additional
subcontractors who | 6 | | are certified by the Business Enterprise
Program or by | 7 | | increasing the work to be performed by
previously identified | 8 | | vendors certified by the Business
Enterprise Program. | 9 | | Deficiencies that may be cured include: (i) scrivener's | 10 | | errors, such as transposed numbers; (ii) information
submitted | 11 | | in an incorrect form or format; (iii) mistakes resulting from | 12 | | failure to follow instructions or to identify and
adequately | 13 | | document good faith efforts taken to comply with the | 14 | | utilization plan; or (iv) a proposal to use a
firm whose | 15 | | Business Enterprise Program certification has lapsed or is
not | 16 | | yet recognized. Cure is
not authorized if the bidder or | 17 | | offeror submits a blank
utilization plan, a utilization plan | 18 | | that shows lack of
reasonable effort to complete the form on | 19 | | time, or a
utilization plan that states the contract will be
| 20 | | self-performed, by a non-certified vendor, without showing
| 21 | | good faith efforts or a request for a waiver. All cure activity
| 22 | | shall address the deficiencies identified by the purchasing
| 23 | | agency and shall require clear documentation, including that
| 24 | | of good faith efforts, to address those deficiencies. Any
| 25 | | increase in cost to a contract for the addition of a
| 26 | | subcontractor to cure a bid's deficiency shall not affect the
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| 1 | | bid price and shall not be used in the request for an exemption
| 2 | | under this Act, and, in no case, shall an identified
| 3 | | subcontractor with a Business Enterprise Program certification
| 4 | | made under this Act be terminated from a contract without
the | 5 | | written consent of the State agency or public institution
of | 6 | | higher education entering into the contract. The purchasing
| 7 | | agency or public institution of higher education shall make
| 8 | | the determination whether the cure is adequate. | 9 | | Vendors certified with the Business Enterprise
Program at | 10 | | the time and date submittals are due and who do not submit
a | 11 | | utilization plan or have utilization plan deficiencies shall | 12 | | have 10 business days
to submit a utilization plan or to | 13 | | correct the utilization plan deficiencies. | 14 | | (f) (Blank). | 15 | | (g) (Blank). | 16 | | (h) State agencies and public institutions of higher | 17 | | education shall notify the Commission on Equity and Inclusion | 18 | | of all non-responsive bids or proposals for State contracts. | 19 | | (Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20; | 20 | | 101-657, Article 1, Section 1-5, eff. 1-1-22; 101-657, Article | 21 | | 40, Section 40-130, eff. 1-1-22; 102-29, eff. 6-25-21; | 22 | | 102-558, eff. 8-20-21; 102-1119, eff. 1-23-23.)
| 23 | | (30 ILCS 575/7) (from Ch. 127, par. 132.607) | 24 | | (Section scheduled to be repealed on June 30, 2024) | 25 | | Sec. 7. Exemptions; waivers; publication of data. |
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| 1 | | (1) Individual contract exemptions.
The Council, at the | 2 | | written request of the affected agency,
public institution of | 3 | | higher education, or recipient of a grant or loan of State | 4 | | funds of $250,000 or more complying with Section 45 of the | 5 | | State Finance Act, may permit an individual contract or | 6 | | contract package,
(related contracts being bid or awarded | 7 | | simultaneously for the same project
or improvements) be made | 8 | | wholly or partially exempt from State contracting
goals for | 9 | | businesses owned by
minorities, women, and persons with | 10 | | disabilities prior to the advertisement
for bids or | 11 | | solicitation of proposals whenever there has been a
| 12 | | determination, reduced to writing and based on the best | 13 | | information
available at the time of the determination, that | 14 | | there is an insufficient
number of businesses owned by | 15 | | minorities, women, and persons with disabilities to ensure | 16 | | adequate
competition and an expectation of reasonable prices | 17 | | on bids or proposals
solicited for the individual contract or | 18 | | contract package in question. Any such exemptions shall be | 19 | | given by
the Council to the Bureau on Apprenticeship Programs | 20 | | and Clean Energy Jobs. | 21 | | (a) Written request for contract exemption. A written | 22 | | request for an individual contract exemption must include, | 23 | | but is not 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 businesses owned by | 5 | | minorities, women, and persons with disabilities and | 6 | | the agency or public institution of higher education's | 7 | | expectations of reasonable prices on bids or proposals | 8 | | within that class; and | 9 | | (iv) a list of eligible businesses owned by | 10 | | minorities, women, and persons with
disabilities that | 11 | | the contractor has used in the current and prior | 12 | | fiscal years. | 13 | | (b) Determination. The Council's determination | 14 | | concerning an individual contract exemption must consider, | 15 | | at a minimum, the following: | 16 | | (i) the justification for the requested exemption, | 17 | | including whether diligent efforts were undertaken to | 18 | | identify and solicit eligible businesses owned by | 19 | | minorities, women, and persons with disabilities; | 20 | | (ii) the total number of exemptions granted to the | 21 | | affected agency, public institution of higher | 22 | | education, or recipient of a grant or loan of State | 23 | | funds of $250,000 or more complying with Section 45 of | 24 | | the State Finance Act that have been granted by the | 25 | | Council in the current and prior fiscal years; and | 26 | | (iii) the percentage of contracts awarded by the |
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| 1 | | agency or public institution of higher education to | 2 | | eligible businesses owned by minorities, women, and | 3 | | persons with disabilities in the current and prior | 4 | | fiscal years. | 5 | | (2) Class exemptions. | 6 | | (a) Creation. The Council, at the written request of | 7 | | the affected agency or public institution of higher | 8 | | education, may permit an entire
class of
contracts be made | 9 | | exempt from State
contracting goals for businesses owned | 10 | | by minorities, women, and persons
with disabilities | 11 | | whenever there has been a determination, reduced to
| 12 | | writing and based on the best information available at the | 13 | | time of the
determination, that there is an insufficient | 14 | | number of qualified businesses owned by minorities, women, | 15 | | and persons with
disabilities to ensure adequate | 16 | | competition and an
expectation of reasonable prices on | 17 | | bids or proposals within that class. Any such exemption | 18 | | shall be given by
the Council to the Bureau on | 19 | | Apprenticeship Programs and Clean Energy Jobs. | 20 | | (a-1) Written request for class exemption. A written | 21 | | request for a class exemption must include, but is not | 22 | | limited to, the following: | 23 | | (i) a list of eligible businesses owned by | 24 | | minorities, women, and persons with disabilities; | 25 | | (ii) a clear demonstration that the number of | 26 | | eligible businesses identified in subparagraph (i) |
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| 1 | | above is insufficient to ensure adequate competition; | 2 | | (iii) the difference in cost between the contract | 3 | | proposals being offered by eligible businesses owned | 4 | | by minorities, women, and persons with disabilities | 5 | | and the agency or public institution of higher | 6 | | education's expectations of reasonable prices on bids | 7 | | or proposals within that class; and | 8 | | (iv) the number of class exemptions the affected | 9 | | agency or public institution
of higher education | 10 | | requested in the current and prior fiscal years. | 11 | | (a-2) Determination. The Council's determination | 12 | | concerning class exemptions must consider, at a minimum, | 13 | | the following: | 14 | | (i) the justification for the requested exemption, | 15 | | including whether diligent efforts were undertaken to | 16 | | identify and solicit eligible businesses owned by | 17 | | minorities, women, and persons with disabilities; | 18 | | (ii) the total number of class exemptions granted | 19 | | to the requesting agency or public institution of | 20 | | higher education that have been granted by the Council | 21 | | in the current and prior fiscal years; and | 22 | | (iii) the percentage of contracts awarded by the | 23 | | agency or public institution of higher education to | 24 | | eligible businesses owned by minorities, women, and | 25 | | persons with disabilities the current and prior fiscal | 26 | | years. |
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| 1 | | (b) Limitation. Any such class exemption shall not be | 2 | | permitted for a
period of more than one year at a time. | 3 | | (3) (Blank). Waivers. Where a particular contract requires | 4 | | a contractor to meet
a goal established pursuant to this Act, | 5 | | the contractor shall have the right
to request a waiver from | 6 | | such requirements prior to the contract award. The Council | 7 | | shall grant the waiver when the contractor demonstrates that | 8 | | there has been made a good faith effort to comply with the | 9 | | goals for participation by businesses owned by minorities, | 10 | | women, and persons with disabilities. Any such waiver shall | 11 | | also be
transmitted in writing to the Bureau on Apprenticeship | 12 | | Programs and Clean Energy Jobs. | 13 | | (a) Request for waiver. A contractor's request for a | 14 | | waiver under this subsection (3) must include, but is not | 15 | | limited to, the following, if available: | 16 | | (i) a list of eligible businesses owned by | 17 | | minorities, women, and persons with disabilities that | 18 | | pertain to the scope of work of the contract. Eligible | 19 | | businesses are only eligible if the business is | 20 | | certified for the products or work advertised in the | 21 | | solicitation; | 22 | | (ii) (blank); | 23 | | (iia) a clear demonstration that the contractor | 24 | | selected portions of the work to be performed by | 25 | | eligible businesses owned by minorities, women, and | 26 | | persons with disabilities, solicited through all |
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| 1 | | reasonable and available means eligible businesses, | 2 | | and negotiated in good faith with interested eligible | 3 | | businesses; | 4 | | (iib) documentation demonstrating that businesses | 5 | | owned by minorities, women, and persons with | 6 | | disabilities are not rejected as being unqualified | 7 | | without sound reasons based on a thorough | 8 | | investigation of their capabilities; | 9 | | (iii) documentation demonstrating that the | 10 | | contract proposals being offered by businesses owned | 11 | | by minorities, women, and persons with disabilities | 12 | | are excessive or unreasonable; an d | 13 | | (iv) a list of businesses owned by minorities, | 14 | | women, and persons with disabilities that the | 15 | | contractor has used in the current and prior fiscal | 16 | | years. | 17 | | (b) Determination. The Council's determination | 18 | | concerning waivers must include following: | 19 | | (i) the justification for the requested waiver, | 20 | | including whether the requesting contractor made a | 21 | | good faith effort to identify and solicit eligible | 22 | | businesses owned by minorities, women, and persons | 23 | | with disabilities; | 24 | | (ii) the total number of waivers the contractor | 25 | | has been granted by the Council in the current and | 26 | | prior fiscal years; |
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| 1 | | (iii) (blank); and | 2 | | (iv) the contractor's use of businesses owned by | 3 | | minorities, women, and persons with disabilities in | 4 | | the current and prior fiscal years. | 5 | | (3.5) (Blank). | 6 | | (4) Conflict with other laws. In the event that any State | 7 | | contract, which
otherwise would be subject to the provisions | 8 | | of this Act, is or becomes
subject to federal laws or | 9 | | regulations which conflict with the provisions
of this Act or | 10 | | actions of the State taken pursuant hereto, the provisions
of | 11 | | the federal laws or regulations shall apply and the contract | 12 | | shall be
interpreted and enforced accordingly. | 13 | | (5) Each chief procurement officer, as defined in the | 14 | | Illinois Procurement Code, shall maintain on his or her | 15 | | official Internet website a database of the following: (i) | 16 | | waivers granted under this Section with respect to contracts | 17 | | under his or her jurisdiction; (ii) a State agency or public | 18 | | institution of higher education's written request for an | 19 | | exemption of an individual contract or an entire class of | 20 | | contracts; and (iii) the Council's written determination | 21 | | granting or denying a request for an exemption of an | 22 | | individual contract or an entire class of contracts. The | 23 | | database, which shall be updated periodically as necessary, | 24 | | shall be searchable by contractor name and by contracting | 25 | | State agency. | 26 | | (6) Each chief procurement officer, as defined by the |
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| 1 | | Illinois Procurement Code, shall maintain on its website a | 2 | | list of all firms that have been prohibited from bidding, | 3 | | offering, or entering into a contract with the State of | 4 | | Illinois as a result of violations of this Act. | 5 | | Each public notice required by law of the award of a State | 6 | | contract shall include for each bid or offer submitted for | 7 | | that contract the following: (i) the bidder's or offeror's | 8 | | name, (ii) the bid amount, (iii) the name or names of the | 9 | | certified firms identified in the bidder's or offeror's | 10 | | submitted utilization plan, and (iv) the bid's amount and | 11 | | percentage of the contract awarded to businesses owned by | 12 | | minorities, women, and persons with disabilities identified in | 13 | | the utilization plan. | 14 | | (Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20; | 15 | | 101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff. | 16 | | 9-15-21 .)
| 17 | | (30 ILCS 575/8) (from Ch. 127, par. 132.608)
| 18 | | (Section scheduled to be repealed on June 30, 2024)
| 19 | | Sec. 8. Enforcement. | 20 | | (1) The Commission on Equity and Inclusion shall make such | 21 | | findings, recommendations
and proposals to the Governor as are | 22 | | necessary and appropriate to enforce
this Act. If, as a result | 23 | | of its monitoring activities, the Commission determines
that | 24 | | its goals and policies are not being met by any State agency or | 25 | | public institution of higher education,
the Commission
may |
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| 1 | | recommend any or all of the following actions:
| 2 | | (a) Establish enforcement procedures whereby the | 3 | | Commission may recommend
to the appropriate State agency, | 4 | | public institutions of higher education, or law | 5 | | enforcement
officer that legal or
administrative remedies | 6 | | be initiated for violations of contract provisions
or | 7 | | rules issued hereunder or by a contracting State agency or | 8 | | public institutions of higher education. State agencies | 9 | | and public institutions of higher education
shall be | 10 | | authorized to adopt remedies for such violations which | 11 | | shall include
(1) termination of the contract involved, | 12 | | (2) prohibition of participation
of the respondents in | 13 | | public contracts for a period not to exceed one year,
(3) | 14 | | imposition of a penalty not to exceed any profit acquired | 15 | | as a result
of violation, or (4) any combination thereof.
| 16 | | (b) If the Commission concludes that a compliance plan | 17 | | submitted under Section
6 is unlikely to produce the
| 18 | | participation
goals for businesses owned by minorities, | 19 | | women, and persons with
disabilities within the then | 20 | | current fiscal year, the Commission may recommend
that
the | 21 | | State agency or public institution of higher education | 22 | | revise its plan to provide
additional
opportunities
for | 23 | | participation by businesses owned by minorities, women, | 24 | | and persons with disabilities. Such recommended revisions | 25 | | may
include, but shall not be limited to, the following:
| 26 | | (i) assurances of stronger and better focused |
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| 1 | | solicitation efforts to
obtain more businesses owned | 2 | | by minorities, women, and persons with disabilities as | 3 | | potential sources of
supply;
| 4 | | (ii) division of job or project requirements, when | 5 | | economically feasible,
into tasks or quantities to | 6 | | permit participation of
businesses owned by | 7 | | minorities, women, and persons with disabilities;
| 8 | | (iii) elimination of extended experience or | 9 | | capitalization requirements,
when programmatically | 10 | | feasible, to permit participation of businesses owned | 11 | | by minorities, women, and persons with
disabilities;
| 12 | | (iv) identification of specific proposed contracts | 13 | | as particularly
attractive or appropriate for | 14 | | participation by
businesses owned by minorities, | 15 | | women, and persons with disabilities,
such | 16 | | identification to result from and be coupled with the
| 17 | | efforts of subparagraphs
(i) through (iii);
| 18 | | (v) implementation of those regulations | 19 | | established for the use of the
sheltered market | 20 | | process.
| 21 | | (2) State agencies and public institutions of higher | 22 | | education shall monitor a vendor's compliance with its | 23 | | utilization plan and the terms of its contract. Without | 24 | | limitation, a vendor's failure to comply with its contractual | 25 | | commitments as contained in the utilization plan; failure to | 26 | | cooperate in providing information regarding its compliance |
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| 1 | | with its utilization plan; or the provision of false or | 2 | | misleading information or statements concerning compliance, | 3 | | certification status, or eligibility of the Business | 4 | | Enterprise Program-certified vendor, good faith efforts, or | 5 | | any other material fact or representation shall constitute a | 6 | | material breach of the contract and entitle the State agency | 7 | | or public institution of higher education to declare a | 8 | | default, terminate the contract, or exercise those remedies | 9 | | provided for in the contract, at law, or in equity. | 10 | | (3) Prior to the expiration or termination of a contract, | 11 | | State agencies and public institutions of higher education | 12 | | shall evaluate the contractor's fulfillment of the contract | 13 | | goals for participation by businesses owned by minorities, | 14 | | women, and persons with disabilities. The agency or public | 15 | | institution of higher education shall prepare a report of the | 16 | | vendor's compliance with the contract goals and file it with | 17 | | the Secretary. If the Secretary determines that the vendor did | 18 | | not fulfill the contract goals, the vendor shall be in breach | 19 | | of the contract and may be subject to remedies or sanctions, | 20 | | unless the vendor can show that it made good faith efforts to | 21 | | meet the contract goals. Any vendor failing to meet the
| 22 | | contract goals established under this Act shall return all
| 23 | | funds which were allocated for, but not awarded to, black or
| 24 | | African American owned businesses. The vendor shall have 60 | 25 | | days after
completion of any project to return such funds. | 26 | | Such remedies or sanctions for failing to make good faith |
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| 1 | | efforts may include (i) disqualification of the contractor | 2 | | from doing business with the State for a period of no more than | 3 | | one year or (ii) cancellation, without any penalty to the | 4 | | State, of any contract entered into by the vendor. The | 5 | | Business Enterprise Program shall develop procedures for | 6 | | determining whether a vendor has made good faith efforts to | 7 | | meet the contract goals upon the expiration or termination of | 8 | | a contract. | 9 | | (Source: P.A. 101-657, eff. 1-1-22; 102-29, eff. 6-25-21 .)
| 10 | | (30 ILCS 575/8f)
| 11 | | (Section scheduled to be repealed on June 30, 2024)
| 12 | | Sec. 8f. Annual report. The Council shall file no later | 13 | | than March 1
of each year, an annual report that shall detail | 14 | | the level of achievement
toward the
goals specified in this | 15 | | Act over the 3 most recent fiscal years. The annual
report | 16 | | shall include, but need not be limited to the following:
| 17 | | (1) a summary detailing expenditures subject to the | 18 | | goals, the
actual goals specified, and the goals attained | 19 | | by each State agency and public institution of higher | 20 | | education;
| 21 | | (2) a summary of the number of contracts awarded and | 22 | | the average contract
amount by each State agency and | 23 | | public institution of higher education;
| 24 | | (3) an analysis of the level of overall goal | 25 | | achievement concerning
purchases
from minority-owned |
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| 1 | | businesses, women-owned businesses, and businesses owned | 2 | | by
persons with disabilities;
| 3 | | (4) an analysis of the number of businesses owned by | 4 | | minorities, women,
and persons with disabilities that are | 5 | | certified under the program as well as
the number of those | 6 | | businesses that received State procurement contracts; and
| 7 | | (5) a summary of the number of contracts awarded to | 8 | | businesses with annual
gross sales of less than | 9 | | $1,000,000; of $1,000,000 or more, but less than
| 10 | | $5,000,000; of
$5,000,000 or more, but less than | 11 | | $10,000,000; and of $10,000,000 or more ; .
| 12 | | (6) the total procurement budget of the State and the | 13 | | percentage of the State budget spent on procurement; and | 14 | | (7) the amount of revenue procured by black or African | 15 | | American owned businesses through State contracts. | 16 | | (Source: P.A. 99-462, eff. 8-25-15; 100-391, eff. 8-25-17 .)
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