SB0630sam001 99TH GENERAL ASSEMBLY

Sen. Kimberly A. Lightford

Filed: 4/4/2016

09900SB0630sam001 LRB099 03336 AXK 44884 a

AMENDMENT TO SENATE BILL 630

AMENDMENT NO. ______. Amend Senate Bill 630 by replacing everything after the enacting clause with the following:

"Section 5. The Toll Highway Act is amended by adding Sections 16.5 and 16.10 as follows:

(605 ILCS 10/16.5 new)

Sec. 16.5. Prequalification of minority-owned and female-owned contractors. The Authority shall, within 30 days after the effective date of this amendatory Act of the 99th General Assembly, establish a committee to review rules for prequalification of contractors under the Illinois Procurement Code. The purpose of the review is to determine whether the rules for prequalification operate as a barrier to minority-owned and female-owned contractors becoming prequalified to bid on or make proposals for Authority contracts. The committee shall, in addition to Authority staff, be comprised of membership representing the construction industry and minority-owned and female-owned contractors. The committee shall complete its work and make recommendations for any changes to the rules for prequalification to the Board of Directors of the Authority within 180 days after the effective date of this amendatory Act of the 99th General Assembly.

(605 ILCS 10/16.10 new)

Sec. 16.10. Target market program.

(a) In order to remedy particular incidents and patterns of egregious race or gender discrimination, the chief procurement officer, in consultation with the Authority, shall have the power to implement a target market program incorporating the following terms:

(1) Each fiscal year, the Authority shall review any and all evidence of discrimination related to construction projects. Evidence of discrimination may include, but is not limited to:

(A) the determination of the Authority's utilization of minority-owned and female-owned firms in its prime contracts and associated subcontracts;

(B) the availability of minority-owned and female-owned firms in the Authority's geographic market areas and specific construction industry markets;

(C) any disparities between the utilization of minority-owned and female-owned firms in the Authority's markets and the utilization of those firms in the Authority's prime contracts and subcontracts in those markets;

(D) any disparities between the utilization of minority-owned and female-owned firms in the overall construction markets in which the Authority purchases and the utilization of those firms in the overall construction economy in which the Authority operates;

(E) evidence of discrimination in the rates at which minority-owned and female-owned firms in the Authority's markets form businesses compared to similar non-minority-owned and non-female-owned firms in the Authority's markets and in the dollars earned by those businesses; and

(F) quantitative and qualitative anecdotal evidence of discrimination.

If, after reviewing this evidence, the Authority finds, and the chief procurement officer concurs, that the Authority has a strong basis in evidence that it has a compelling interest in remedying the identified discrimination against a specific group, race, or gender, and that the only remedy for the discrimination is a narrowly tailored target market, the chief procurement officer, in consultation with the Authority, has the power to establish and implement a target market program tailored to address the specific findings of egregious discrimination made by the Authority, after a public hearing at which minority groups, female groups, general contractor groups, community organizations, and other interested parties have the opportunity to provide comments.

(2) In January of each year, the Authority and the chief procurement officer shall report jointly to the General Assembly the results of the evidentiary inquiries or studies that establish the Authority's compelling interest in remedying egregious discrimination based upon strong evidence of the need for a narrowly tailored target market to remedy the discrimination and public hearings under this Section, and shall report the actions to be taken to address the findings, including the establishment and implementation of any target market initiatives.

(3) The chief procurement officer shall work with the officers and divisions of the Authority to determine the appropriate designation of contracts as target market contracts. The chief procurement officer, in consultation with the Authority, shall determine appropriate contract formation and bidding procedures for target market contracts, including, but not limited to, the dividing of procurements into contract award units in order to facilitate offers or bids from minority-owned businesses and female-owned businesses and the removal of bid bond requirements for minority-owned businesses and female-owned businesses. Minority-owned businesses and female-owned businesses shall remain eligible to seek the procurement award of contracts that have not been designated as target market contracts.

(4) The chief procurement officer may make participation in the target market program dependent upon submission to stricter compliance audits than are generally applicable. No contract shall be eligible for inclusion in the target market program unless the Authority determines that there are at least 3 minority-owned businesses or female-owned businesses interested in participating in that type of contract. The Authority, with the concurrence of the chief procurement officer, may develop guidelines to regulate the level of participation of individual minority-owned businesses and female-owned businesses in the target market program in order to prevent the domination of the target market program by a small number of those entities. The Authority may require minority-owned businesses and female-owned businesses to participate in training programs offered by the Authority or other State agencies as a condition precedent to participation in the target market program.

(5) Participation in the target market program shall be limited to minority-owned businesses and female-owned businesses and joint ventures consisting exclusively of minority-owned businesses, female-owned businesses, or both, that are certified as disadvantaged businesses under the Business Enterprise for Minorities, Females, and Persons with Disabilities Act. A firm awarded a target market contract may subcontract up to 50% of the dollar value of the target market contract to subcontractors who are not minority-owned businesses or female-owned businesses.

(6) The Authority may include in the target market program contracts that are funded by the federal government to the extent allowed by federal law and may vary the standards of eligibility of the target market program to the extent necessary to comply with federal funding requirements.

(7) If no satisfactory bid or response is received with respect to a contract that has been designated as part of the target market program, the chief procurement officer, in consultation with the Authority, may delete that contract from the target market program. The chief procurement officer, in consultation with the Authority, may designate and set aside for the target market program additional contracts corresponding in approximate value to a contract that was deleted from the target market program, in keeping with the narrowly tailored process used for selecting contracts suitable for the program and to the extent feasible.

(b) The chief procurement officer, in consultation with the Authority, shall adopt rules as he or she deems necessary to administer the target market program.

(c) If any part, sentence, or clause of this Section is for any reason held invalid or to be unconstitutional, that decision shall not affect the validity of the remaining portions of this Section. ".