103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB2906

 

Introduced 2/16/2023, by Rep. Kevin John Olickal

 

SYNOPSIS AS INTRODUCED:
 
30 ILCS 575/2

    Amends the Business Enterprise for Minorities, Women, and Persons with Disabilities Act. Provides that certain economically disadvantaged persons, among other specified individuals, are considered minority persons under the Act. Provides additional requirements concerning qualification as a socially disadvantaged person. Defines "economically disadvantaged person". Provides requirements concerning qualification as an economically disadvantaged person. Makes other changes. Effective January 1, 2023.


LRB103 29428 DTM 55819 b

 

 

A BILL FOR

 

HB2906LRB103 29428 DTM 55819 b

1    AN ACT concerning finance.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Business Enterprise for Minorities, Women,
5and Persons with Disabilities Act is amended by changing
6Section 2 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8    (Section scheduled to be repealed on June 30, 2024)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
11have 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            (f) A person who qualifies as a socially
11        disadvantaged person.
12            (g) A person who qualifies as an economically
13        disadvantaged person.
14        (2) "Woman" shall mean a person who is a citizen or
15    lawful permanent resident of the United States and who is
16    of the female gender.
17        (2.05) "Person with a disability" means a person who
18    is a citizen or lawful resident of the United States and is
19    a person qualifying as a person with a disability under
20    subdivision (2.1) of this subsection (A).
21        (2.1) "Person with a disability" means a person with a
22    severe physical or mental disability that:
23            (a) results from:
24            amputation,
25            arthritis,
26            autism,

 

 

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1            blindness,
2            burn injury,
3            cancer,
4            cerebral palsy,
5            Crohn's disease,
6            cystic fibrosis,
7            deafness,
8            head injury,
9            heart disease,
10            hemiplegia,
11            hemophilia,
12            respiratory or pulmonary dysfunction,
13            an intellectual disability,
14            mental illness,
15            multiple sclerosis,
16            muscular dystrophy,
17            musculoskeletal disorders,
18            neurological disorders, including stroke and
19        epilepsy,
20            paraplegia,
21            quadriplegia and other spinal cord conditions,
22            sickle cell anemia,
23            ulcerative colitis,
24            specific learning disabilities, or
25            end stage renal failure disease; and
26            (b) substantially limits one or more of the

 

 

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1        person's major life activities.
2        Another disability or combination of disabilities may
3    also be considered as a severe disability for the purposes
4    of item (a) of this subdivision (2.1) if it is determined
5    by an evaluation of rehabilitation potential to cause a
6    comparable degree of substantial functional limitation
7    similar to the specific list of disabilities listed in
8    item (a) of this subdivision (2.1).
9        (3) "Minority-owned business" means a business which
10    is at least 51% owned by one or more minority persons, or
11    in the case of a corporation, at least 51% of the stock in
12    which is owned by one or more minority persons; and the
13    management and daily business operations of which are
14    controlled by one or more of the minority individuals who
15    own it.
16        (4) "Women-owned business" means a business which is
17    at least 51% owned by one or more women, or, in the case of
18    a corporation, at least 51% of the stock in which is owned
19    by one or more women; and the management and daily
20    business operations of which are controlled by one or more
21    of the women who own it.
22        (4.1) "Business owned by a person with a disability"
23    means a business that is at least 51% owned by one or more
24    persons with a disability and the management and daily
25    business operations of which are controlled by one or more
26    of the persons with disabilities who own it. A

 

 

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1    not-for-profit agency for persons with disabilities that
2    is exempt from taxation under Section 501 of the Internal
3    Revenue Code of 1986 is also considered a "business owned
4    by a person with a disability".
5        (4.2) "Council" means the Business Enterprise Council
6    for Minorities, Women, and Persons with Disabilities
7    created under Section 5 of this Act.
8        (4.3) "Commission" means, unless the context clearly
9    indicates otherwise, the Commission on Equity and
10    Inclusion created under the Commission on Equity and
11    Inclusion Act.
12        (5) "State contracts" means all contracts entered into
13    by the State, any agency or department thereof, or any
14    public institution of higher education, including
15    community college districts, regardless of the source of
16    the funds with which the contracts are paid, which are not
17    subject to federal reimbursement. "State contracts" does
18    not include contracts awarded by a retirement system,
19    pension fund, or investment board subject to Section
20    1-109.1 of the Illinois Pension Code. This definition
21    shall control over any existing definition under this Act
22    or applicable administrative rule.
23        "State construction contracts" means all State
24    contracts entered into by a State agency or public
25    institution of higher education for the repair,
26    remodeling, renovation or construction of a building or

 

 

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1    structure, or for the construction or maintenance of a
2    highway defined in Article 2 of the Illinois Highway Code.
3        (6) "State agencies" shall mean all departments,
4    officers, boards, commissions, institutions and bodies
5    politic and corporate of the State, but does not include
6    the Board of Trustees of the University of Illinois, the
7    Board of Trustees of Southern Illinois University, the
8    Board of Trustees of Chicago State University, the Board
9    of Trustees of Eastern Illinois University, the Board of
10    Trustees of Governors State University, the Board of
11    Trustees of Illinois State University, the Board of
12    Trustees of Northeastern Illinois University, the Board of
13    Trustees of Northern Illinois University, the Board of
14    Trustees of Western Illinois University, municipalities or
15    other local governmental units, or other State
16    constitutional officers.
17        (7) "Public institutions of higher education" means
18    the University of Illinois, Southern Illinois University,
19    Chicago State University, Eastern Illinois University,
20    Governors State University, Illinois State University,
21    Northeastern Illinois University, Northern Illinois
22    University, Western Illinois University, the public
23    community colleges of the State, and any other public
24    universities, colleges, and community colleges now or
25    hereafter established or authorized by the General
26    Assembly.

 

 

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1        (8) "Certification" means a determination made by the
2    Council or by one delegated authority from the Council to
3    make certifications, or by a State agency with statutory
4    authority to make such a certification, that a business
5    entity is a business owned by a minority, woman, or person
6    with a disability for whatever purpose. A business owned
7    and controlled by women shall be certified as a
8    "woman-owned business". A business owned and controlled by
9    women who are also minorities shall be certified as both a
10    "women-owned business" and a "minority-owned business".
11        (9) "Control" means the exclusive or ultimate and sole
12    control of the business including, but not limited to,
13    capital investment and all other financial matters,
14    property, acquisitions, contract negotiations, legal
15    matters, officer-director-employee selection and
16    comprehensive hiring, operating responsibilities,
17    cost-control matters, income and dividend matters,
18    financial transactions and rights of other shareholders or
19    joint partners. Control shall be real, substantial and
20    continuing, not pro forma. Control shall include the power
21    to direct or cause the direction of the management and
22    policies of the business and to make the day-to-day as
23    well as major decisions in matters of policy, management
24    and operations. Control shall be exemplified by possessing
25    the requisite knowledge and expertise to run the
26    particular business and control shall not include simple

 

 

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1    majority or absentee ownership.
2        (10) "Business" means a business that has annual gross
3    sales of less than $150,000,000 as evidenced by the
4    federal income tax return of the business. A firm with
5    gross sales in excess of this cap may apply to the Council
6    for certification for a particular contract if the firm
7    can demonstrate that the contract would have significant
8    impact on businesses owned by minorities, women, or
9    persons with disabilities as suppliers or subcontractors
10    or in employment of minorities, women, or persons with
11    disabilities. Firms with gross sales in excess of this cap
12    that are granted certification by the Council shall be
13    granted certification for the life of the contract,
14    including available renewals.
15        (11) "Utilization plan" means a form and additional
16    documentations included in all bids or proposals that
17    demonstrates a vendor's proposed utilization of vendors
18    certified by the Business Enterprise Program to meet the
19    targeted goal. The utilization plan shall demonstrate that
20    the Vendor has either: (1) met the entire contract goal or
21    (2) requested a full or partial waiver and made good faith
22    efforts towards meeting the goal.
23        (12) "Business Enterprise Program" means the Business
24    Enterprise Program of the Commission on Equity and
25    Inclusion.
26        (13) "Socially disadvantaged person" means a person

 

 

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1    individually certified by the Council as having been
2    subjected to racial or ethnic prejudice or cultural bias
3    within American society because of his or her identity as
4    a member of a group and without regard to his or her
5    individual qualities.
6            (a) Social disadvantage must include the
7        following:
8                (i) at least one objective distinguishing
9            feature that has contributed to social
10            disadvantage, such as race, ethnic origin, gender,
11            disability, long-term residence in an environment
12            isolated from the mainstream of American society,
13            or other similar causes not common to individuals
14            who are not socially disadvantaged;
15                (ii) personal experiences of substantial and
16            chronic social disadvantage in American society;
17            and
18                (iii) negative impact on entry into or
19            advancement in the business world because of the
20            disadvantage. The Business Enterprise Program will
21            consider any relevant evidence in assessing this
22            element, and in every case, as provided under
23            subparagraph (b), the Business Enterprise Program
24            will consider education, employment, and business
25            history, when applicable, to determine whether the
26            totality of circumstances shows disadvantage in

 

 

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1            entering into or advancing in the business world.
2            (b) In determining whether a person qualifies as a
3        socially disadvantaged person, the Business Enterprise
4        Program will further consider the following:
5                (i) Education. Such factors as denial of equal
6            access to institutions of higher education and
7            vocational training, exclusion from social and
8            professional association with students or
9            teachers, denial of educational honors rightfully
10            earned, and social patterns or pressures which
11            discouraged the individual from pursuing a
12            professional or business education.
13                (ii) Employment. Such factors as unequal
14            treatment in hiring, promotions and other aspects
15            of professional advancement, pay and fringe
16            benefits, and other terms and conditions of
17            employment; retaliatory or discriminatory behavior
18            by an employer or labor union; and social patterns
19            or pressures which have channeled the individual
20            into non-professional or non-business fields.
21                (iii) Business history. Such factors as
22            unequal access to credit or capital, acquisition
23            of credit or capital under commercially
24            unfavorable circumstances, unequal treatment in
25            opportunities for government contracts or other
26            work, unequal treatment by potential customers and

 

 

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1            business associates, and exclusion from business
2            or professional organizations.
3        (14) "Economically disadvantaged person" means a
4    socially disadvantaged person whose ability to compete in
5    the free enterprise system has been impaired due to
6    diminished capital and credit opportunities as compared to
7    others in the same or similar line of business who are not
8    socially disadvantaged.
9            (a) Each individual claiming economic disadvantage
10        must describe the conditions which are the basis for
11        the claim in a narrative statement, and must submit
12        personal financial information. If that individual is
13        married, he or she must also submit separate financial
14        information for his or her spouse, unless the
15        individual and the spouse are legally separated.
16            (b) In considering diminished capital and credit
17        opportunities, the Business Enterprise Program will
18        examine factors relating to the personal financial
19        condition of any individual claiming disadvantaged
20        status, including personal income for the preceding 2
21        years (including bonuses and the value of company
22        stock given in lieu of cash), personal net worth, and
23        the fair market value of all assets, whether
24        encumbered or not. The Business Enterprise Program
25        will also consider the financial condition of the
26        applicant compared to the financial profiles of small

 

 

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1        businesses in the same primary industry
2        classification, or, if not available, in similar lines
3        of business, which are not owned and controlled by
4        socially and economically disadvantaged persons in
5        evaluating the individual's access to credit and
6        capital. The financial profiles that the Business
7        Enterprise Program will compare shall include total
8        assets, net sales, pre-tax profit, sales or working
9        capital ratio, and net worth.
10            (c) Asset transfers within 2 years.
11                (i) Except as set forth in item (ii) of this
12            subparagraph (c), the Business Enterprise Program
13            will attribute to an individual claiming
14            disadvantaged status any assets which that
15            individual has transferred to an immediate family
16            member, or to a trust, a beneficiary of which is an
17            immediate family member, for less than fair market
18            value, within 2 years prior to a concern's
19            application for participation in the Business
20            Enterprise Program, unless the individual claiming
21            disadvantaged status can demonstrate that the
22            transfer is to or on behalf of an immediate family
23            member for that individual's education, medical
24            expenses, or some other form of essential support.
25                (ii) The Business Enterprise Program will not
26            attribute to an individual claiming disadvantaged

 

 

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1            status any assets transferred by that individual
2            to an immediate family member that are consistent
3            with the customary recognition of special
4            occasions, such as birthdays, graduations,
5            anniversaries, and retirements.
6                (iii) In determining an individual's access to
7            capital and credit, the Business Enterprise
8            Program may consider any assets that the
9            individual transferred within the 2-year period
10            described by item (i) of this subparagraph (c)
11            that are not considered in evaluating the
12            individual's assets and net worth, such as
13            transfers to charities.
14    (B) When a business is owned at least 51% by any
15combination of minority persons, women, or persons with
16disabilities, even though none of the 3 classes alone holds at
17least a 51% interest, the ownership requirement for purposes
18of this Act is considered to be met. The certification
19category for the business is that of the class holding the
20largest ownership interest in the business. If 2 or more
21classes have equal ownership interests, the certification
22category shall be determined by the business.
23(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
24102-29, eff. 6-25-21; 102-1119, eff. 1-23-23.)
 
25    Section 99. Effective date. This Act takes effect January
261, 2023.