HB0924sam001 98TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 5/21/2014

09800HB0924sam001 LRB098 03769 HEP 59960 a

AMENDMENT TO HOUSE BILL 924

AMENDMENT NO. ______. Amend House Bill 924 by replacing everything after the enacting clause with the following:

"ARTICLE 5.

Section 5-1. Short title. This Act may be cited as the Illinois Responsible Bidder on Public Works Projects Act. Any references in this Article to "this Act" mean this Article.

Section 5-5. Findings. The General Assembly finds that:

(a) The State of Illinois and its political subdivisions have a responsibility to award contracts for public works to educated and trained responsive bidders, including responsible bidders owned by minorities, females, and persons with disabilities, to ensure the health and welfare of the citizens of Illinois.

(b) A United States Department of Labor-approved apprenticeship program creates objective and standardized requirements for training within the construction industry.

(c) This Act is necessary for the promotion of a high worker safety standard in Illinois and is part of the State's comprehensive scheme of governmental intervention in the workplace to ensure that all of Illinois enjoys the benefits of a well-compensated and skilled labor force.

Section 5-10. Definitions. In this Act, except to the extent that any of the following words or phrases is specifically qualified by its context:

"Business owned by a person with a disability" has the meaning provided in paragraph (3) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Construction" means all work on public works involving laborers, workers, or mechanics. This includes any maintenance, repair, assembly, or disassembly work performed on equipment whether owned, leased, or rented.

"Contractor" means any individual, sole proprietor, partnership, firm, corporation, limited liability company, association, or other legal entity permitted by law to do business within this State who engages in public works as defined in this Act. "Contractor" includes a general contractor and a subcontractor.

"Department" means the Illinois Department of Labor.

"Female" has the meaning provided in paragraph (2) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Female owned business" has the meaning provided in paragraph (4) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Minority" shall have the meaning provided in paragraph (1) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Minority owned business enterprise" has the meaning provided in paragraph (3) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Person with a disability" has the meaning provided in paragraph (2.05) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Professional services" has the meaning provided in Section 30-15 of the Illinois Procurement Code, including services provided by land surveyors hired directly by a public body for design phase work. The term "professional services" does not include material testing and drilling performed by laborers, workers, or mechanics on public works projects, or services provided by land surveyors hired directly by a contractor for work on a public works project or land surveyors hired directly by a public body for work performed after the execution of the construction contract.

"Public body" means the State or any officer, board, or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement, or other district and every other political subdivision, district, or municipality of the State whether the political subdivision, municipality, or district operates under a special charter or not.

"Public works" means all fixed works constructed or demolished by any public body, or paid for wholly or in part out of public funds. "Public works" includes: all projects financed in whole or in part with bonds, grants, loans, or other funds made available by or through the State or any of its political subdivisions, including but not limited to: bonds issued under the Industrial Project Revenue Bond Act, the Industrial Building Revenue Bond Act, the Illinois Finance Authority Act, the Illinois Sports Facilities Authority Act, or the Build Illinois Bond Act; loans or other funds made available pursuant to the Build Illinois Act; loans or other funds made available from the Riverfront Development Fund under Section 10-15 of the River Edge Redevelopment Zone Act; funds from the Fund for Illinois' Future under Section 6z-47 of the State Finance Act; funds for school construction under Section 5 of the General Obligation Bond Act; funds authorized under Section 3 of the School Construction Bond Act; funds for school infrastructure under Section 6z-45 of the State Finance Act; and funds for transportation purposes under Section 4 of the General Obligation Bond Act. "Public works" also includes: (i) all projects financed in whole or in part with funds from the Department of Commerce and Economic Opportunity under the Illinois Renewable Fuels Development Program Act for which there is no project labor agreement; (ii) all work performed pursuant to a public private agreement under the Public Private Agreements for the Illiana Expressway Act or the Public-Private Agreements for the South Suburban Airport Act; and (iii) all projects undertaken under a public-private agreement under the Public-Private Partnerships for Transportation Act. "Public works" also includes all projects at leased facility property used for airport purposes under Section 35 of the Local Government Facility Lease Act. "Public works" also includes the construction of a new wind power facility by a business designated as a High Impact Business under subdivision (a)(3)(E) of Section 5.5 of the Illinois Enterprise Zone Act. "Public works" also includes any corrective action performed pursuant to Title XVI of the Environmental Protection Act for which payment from the Underground Storage Tank Fund is requested. "Public works" does not include work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds. "Public works" does not include projects undertaken by the owner at an owner-occupied single-family residence or at an owner-occupied unit of a multi-family residence.

"Responsive bidder" means a person who has submitted a bid or offer that conforms in all material respects to the invitation for bids or proposals.

Section 5-15. Responsible bidder requirement.

(a) A public body awarding a contract for a public work or otherwise undertaking any public works shall require that each responsive bidder be a responsible bidder.

(b) To be considered a responsible bidder, a responsive bidder must present satisfactory evidence to the public body awarding the public work of all of the following:

(1) The responsive bidder complies with all applicable laws concerning the bidder's entitlement to conduct business in this State.

(2) The responsive bidder complies with all applicable provisions of the Prevailing Wage Act.

(3) The responsive bidder complies with Subchapter VI of Chapter 21 of Title 42 of the United States Code (42 U.S.C. 2000e, et al.) and with Federal Executive Order No. 11246 as amended by Federal Executive Order No. 11375.

(4) The responsive bidder has a valid Federal Employer Identification Number or, if an individual, a valid Social Security number.

(5) The responsive bidder has a valid certificate of insurance showing adequate coverage in the following areas: general liability, professional liability, product liability, workers' compensation, completed operations, hazardous occupation, and automobile.

(6) The responsive bidder and each subcontractor of the responsive bidder, if any, participates in applicable apprenticeship and training programs approved by and registered with the United States Department of Labor's Bureau of Apprenticeship and Training or its successor entity.

(7) The responsive bidder has submitted a signed affidavit stating that the responsive bidder will maintain an Illinois office as the primary place of employment for persons employed in the construction authorized by the contract.

(8) The responsive bidder has an existing contractual obligation, or will agree to and be bound by such an obligation, to maximize the use of apprentices on public works projects.

Section 5-20. Exemptions. This Act does not apply to the following:

(a) Federally-funded construction projects, if the application would jeopardize the receipt or use of federal funds in support of such a project.

(b) Professional services.

(c) Public works contracts entered into by a municipality with a population of 175,000 or more, according to the 2010 federal decennial census, that established an aspirational goal to award at least 20% of the annual dollar value of all construction contracts awarded by the municipality to minority-owned business enterprises.

(d) Duly awarded contracts let pursuant to any bona fide responsible bidder ordinance enacted by a public body prior to January 1, 2014.

(e) Contracts awarded pursuant to the Illinois Procurement Code.

Section 5-25. Small public works contracts.

(a) For contracts awarded on or after July 1, 2015 through June 30, 2016 for public works of $100,000 or more, item (6) of subsection (b) of Section 5-15 of this Act shall apply. For contracts awarded on or after July 1, 2016 through June 30, 2017 for public works of $50,000 or more, item (6) of subsection (b) of Section 5-15 of this Act shall apply. For contracts awarded on or after July 1, 2017 for public works of $20,000 or more, item (6) of subsection (b) of Section 5-15 of this Act shall apply.

(b) For each small public works contract, the public body shall certify in writing that the contract is in fact for an amount below the threshold established in subsection (a) of this Section and duly qualifies as such a contract under this Section. The public body shall also certify in writing that the contract is not a subterfuge to avoid compliance with item (6) of subsection (b) of Section 5-15 of this Act.

(c) As used in this Section, "small public works contract" means a contract to perform construction work on a public works project for a public body that is: (i) in itself below the threshold amount established in subsection (a) of this Section; and (ii) not directly or indirectly a component of any existing or future public works project of the public body.

(d) Upon the filing of a complaint or the Department's own motion, the public body shall bear the burden of proof of demonstrating by clear and convincing evidence that the contract qualifies under this Section and is not a subterfuge to avoid compliance.

Section 5-30. Penalties.

(a) No public works project shall be instituted unless the public body letting the contract for public work and all contractors employed on the public works project comply with the provisions of this Act. If the Department has cause to believe that this Act has been violated, the Department, represented by the Attorney General, is empowered to sue for injunctive relief against the award of any contract or the continuation of work under any contract for public works at a time when any provision or requirement of this Act has not been met or has been violated. Any contract awarded at a time when the requirements of this Act have not been met shall be void as against public policy and the contractor is prohibited from recovering any damages for the voiding of the contract or pursuant to the terms of the contract. The contractor is limited to a claim for amounts actually paid for labor and materials supplied to the public body.

(b) If a court determines or the Department finds after a formal administrative hearing that a public body willfully and intentionally violated or failed to comply with this Act, the public body is subject to a civil penalty of not less than $5,000 nor more than $10,000 for each day that public work takes place in violation of this Act. In assessing the civil penalty, the court or Department shall consider in aggravation or mitigation the budget of the public body and whether the public body has previously been assessed penalties for violations of this Act.

(c) If a court determines or the Department finds after a formal administrative hearing that a contractor willfully and intentionally violated or failed to comply with this Act, the court or Department shall impose a civil penalty on the contractor of not less than $5,000 nor more than $10,000 for each day that public work takes place in violation of this Act.

(d) If a court determines or the Department finds after a formal administrative hearing that a public body violated Section 5-25 of this Act, then the public body shall be ineligible for the exemption provided under Section 5-25 for a period of 5 years from the date of entry of the final decision.

(e) Penalties imposed and collected under this Section shall be made payable to the Apprenticeship Participation Fund, which is created as a special fund in the State treasury, to be used by the Illinois Department of Labor for establishing and maintaining recruitment tools and programs in support of the apprenticeship applicant recruitment goals set by the Apprenticeship Participation and Contractor Access Council under Section 10-15 of the Apprenticeship Participation and Contractor Access Act.

Section 5-35. Enforcement.

(a) Any interested party may file a complaint with the Department against a public body or a contractor subject to this Act or bring a civil action directly in circuit court, but not both, if there is a reasonable belief that the public body or contractor has violated this Act. The action shall be brought no more than 3 years after the date of the last event that constitutes an alleged violation for which the action is brought. Claims filed directly in circuit court by an interested party shall be filed in the county where the alleged violation occurred, without regard to the exhaustion of remedies provided in this Act. The Attorney General may intervene in private actions on behalf of the Department if the Department certifies that the case is of general public importance. If a successful claim is brought in circuit court for violations of this Act, a successful claimant is entitled, in addition to the remedies provided for in this Act, to be awarded reasonable attorney fees and other costs of the action.

(b) If a claim has been filed directly with the Department, the Department shall enforce the provisions of this Act. The Department has the power to conduct investigations in connection with the administration and enforcement of this Act. As part of any investigation, the Department has the right to inspect documents, interview witnesses, and subpoena the attendance and testimony of witnesses and the production of books, records, and documents. If the Department determines, upon an investigation, that there has been a violation of this Act or any rules promulgated under this Act, the Department shall notify the public body or contractor of its findings and the relief sought. Absent voluntary compliance with the Department's requested relief, a formal administrative hearing shall be scheduled in accordance with the Department's rules promulgated pursuant to this Act. A final decision of the Department after a formal administrative hearing is subject to the provisions of the Administrative Review Law and is enforceable in an action brought in the name of the People of the State of Illinois by the Attorney General.

Section 5-40. Rulemaking authority. The Department may promulgate rules to implement the provisions of this Act.

Section 5-45. Home rule preemption. The responsible bidder obligation and other provisions of this Act concerning public works are exclusive powers and functions of the State. This Act is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

ARTICLE 10.

Section 10-1. Short title. This Act may be cited as the Apprenticeship Participation and Contractor Access Act. Any references in this Article to "this Act" mean this Article.

Section 10-5. Definitions. As used in this Act:

"Apprenticeship" means apprenticeship and training programs approved by and registered with the United States Department of Labor's Bureau of Apprenticeship and Training.

"Council" means the Apprenticeship Participation and Contractor Access Council.

"Department" means the Illinois Department of Labor.

"Female" has the meaning provided in paragraph (2) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Labor organization" means any organization defined as a "labor organization" under Section 2 of the National Labor Relations Act (29 U.S.C. 152) in which a majority of the organization's members are engaged in construction as defined in Section 5 of the Employee Classification Act.

"Minority" has the meaning provided in paragraph (1) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Person with a disability" has the meaning provided in paragraph (2.05) of subsection (A) of Section 2 of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act.

"Public works" has the meaning provided in Section 5-10 of the Illinois Responsible Bidder on Public Works Projects Act.

Section 10-10. Apprenticeship Participation and Contractor Access Council.

(a) To help increase the number and diversity of qualified bidders on public works projects so that participants in apprenticeship programs in the construction industry will better reflect the State's population, there is created the Apprenticeship Participation and Contractor Access Council. The Council shall consist of 14 members appointed by the Governor with the advice and consent of the Senate. In addition to the requirements of subsection (b), the membership of the Council should reflect the ethnic, cultural, and geographic diversity of the State.

(b) Seven members shall be appointed representing the interests of labor organizations in this State and 7 members shall be appointed representing the interests of the following groups of contractors: (i) minorities; (ii) females; and (iii) persons with disabilities. Of the 7 members representing contractors, at least one member shall represent an association of African-American contractors in this State, one member shall represent an association of Latino contractors in this State, one member shall represent an association of female contractors in this State, one member shall represent a group of contractors representing persons with disabilities, one member shall represent an African-American chamber of commerce, and one member shall represent a Latino chamber of commerce.

Of the 7 members appointed representing the interests of labor organizations in Illinois, 3 appointments shall be made from the geographic limits of the First Illinois Supreme Court District, of which one appointment shall be from a federation of labor organization in Chicago, of which another appointment shall be from a council of labor organization representing the building trades in Chicago and Cook County, and of which the final appointment shall be from a statewide federation of labor organizations headquartered in Cook County and Springfield; one appointment shall be made from the geographic limits of the Second Illinois Supreme Court District; one appointment shall be made from the geographic limits of the Third Illinois Supreme Court District; one appointment shall be made from the geographic limits of the Fourth Illinois Supreme Court District; and one appointment shall be made from the geographic limits of the Fifth Illinois Supreme Court District.

(c) In addition to the members listed in subsection (b), each of the following shall serve as an ex officio non-voting member of the Council to provide specialized advice and support to the Council: the Secretary of Transportation, the Executive Director of the Illinois Toll Highway Authority, the Executive Director of the Capital Development Board, and the Directors of Commerce and Economic Opportunity, Central Management Services, and Labor.

(d) For the initial appointments to the Council, 3 members representing the interests of labor organizations and 3 members representing the interests of minorities, females, and persons with disabilities shall be appointed to serve a 2-year term. Four members representing the interests of labor organizations and 4 members representing the interests of minorities, females, and persons with disabilities shall be appointed to serve a 4-year term. Thereafter, all appointments shall be for a term of 4 years.

The initial term of the Council shall commence on the first Wednesday in February 2015. Thereafter, terms shall commence on the first Wednesday in February, except in the case of an appointment to fill a vacancy.

Vacancies occurring among the members shall be filled in the same manner as the original appointment for the remainder of the unexpired term. For a vacancy occurring when the Senate is not in session, the Governor may make a temporary appointment until the next meeting of the Senate when a person shall be nominated to fill the office, and, upon confirmation by the Senate, he or she may hold office for the remainder of the term. A member is eligible for reappointment.

(e) Members representing the interests of labor organizations in this State shall annually elect a co-chairperson from their number. Members representing the interests of minorities, females, and persons with disabilities shall annually elect a co-chairperson from their number. Members may elect from the entire membership of the Council such other officers as they may determine. Members are not entitled to compensation for their services, but are entitled to reimbursement for all necessary expenses incurred in connection with the performance of their duties as members from funds appropriated for that purpose.

(f) The Council shall meet quarterly and at other such times as the co-chairpersons or any 8 voting members consider necessary at a time and location to be determined by the co-chairpersons. The Department shall provide staff assistance and support to the Council.

Section 10-15. Apprenticeship applicant recruitment goals for minorities and females.

(a) The apprenticeship applicant recruitment goals shall be established by a panel of 3 appointees. The panel shall consist of the 2 co-chairpersons of the Council. The 2 co-chairpersons shall appoint the third member of the panel. The third member of the panel may be selected at-large based on the qualifications established by the co-chairpersons of the Council and is not required to be a member of the Council. If the 2 co-chairpersons of the Council cannot agree on the third member of the panel within 30 days of their election, the Director of Labor shall appoint the third member of the panel, with the advice and consent of the Senate.

(b) The apprenticeship applicant recruitment goals shall be established by construction trade and by region. For the purpose of establishing apprenticeship applicant recruitment goals, regions shall be established by a majority vote of the Council on an annual basis. The regional apprenticeship applicant recruitment goals shall be based on historic participation rates of minorities and females in apprenticeship programs in the region, the percentage of the population in the region comprised of minorities and females, and the number of pre-apprenticeship programs in the region, as well as any other factors the Council agrees to consider by majority vote.

(c) The initial apprenticeship applicant recruitment goals shall be established no later than February 1, 2016. The goals shall be re-evaluated and reestablished on an annual basis.

(d) The Department is responsible for collecting data and monitoring compliance with the apprenticeship applicant recruitment goals established by the panel. The Department shall establish rules for collecting data and monitoring compliance of the apprenticeship applicant recruitment goals.

(e) The Department shall submit an Apprenticeship Applicant Recruitment Goals Compliance Report, by construction trade and by region, to the Governor, the President and Minority Leader of the Senate, and the Speaker and Minority Leader of the House of Representatives on or before December 1, 2016 and by December 1 annually thereafter.

(f) The Department shall publish the Apprenticeship Applicant Recruitment Goals Compliance Report and make the Report available to the public in both paper and electronic media, on the website of the Department, and by any other method which the Department deems appropriate.

Section 10-20. Real time participation tracking methods.

(a) The Council shall review tools and methods for real time tracking methods for recording and reviewing participation by minorities, females, and persons with disabilities on public works projects.

(b) Any real time tracking tool or method must have the ability to account for participation of minorities, females, and persons with disabilities on public works projects.

(c) The Council shall approve annually, by majority vote, a plan to improve real time tracking of participation by minorities, females, and persons with disabilities on public works projects.

(d) The Council shall annually submit the plan, in the form of legislation, to the Governor, the President and Minority Leader of the Senate, and the Speaker and Minority Leader of the House of Representatives on or before February 1, 2016 and every February 1, thereafter. The legislation shall be in the form of one or more substantive bills drafted by the Legislative Reference Bureau.

ARTICLE 15.

Section 15-10. The State Finance Act is amended by adding Section 5.855 as follows:

(30 ILCS 105/5.855 new)

Sec. 5.855. The Apprenticeship Participation Fund.".