103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3546

 

Introduced 2/17/2023, by Rep. Charles Meier

 

SYNOPSIS AS INTRODUCED:
 
30 ILCS 575/7  from Ch. 127, par. 132.607

    Amends the Business Enterprise for Minorities, Women, and Persons with Disabilities Act. Provides that a waiver shall be deemed granted if the Business Enterprise Council for Minorities, Women, and Persons with Disabilities does not make a determination on the waiver within 30 business days after the initial request for a waiver by the contractor. Effective immediately.


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A BILL FOR

 

HB3546LRB103 28733 HLH 55115 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 7 as follows:
 
7    (30 ILCS 575/7)  (from Ch. 127, par. 132.607)
8    (Section scheduled to be repealed on June 30, 2024)
9    Sec. 7. Exemptions; waivers; publication of data.
10    (1) Individual contract exemptions. The Council, at the
11written request of the affected agency, public institution of
12higher education, or recipient of a grant or loan of State
13funds of $250,000 or more complying with Section 45 of the
14State Finance Act, may permit an individual contract or
15contract package, (related contracts being bid or awarded
16simultaneously for the same project or improvements) be made
17wholly or partially exempt from State contracting goals for
18businesses owned by minorities, women, and persons with
19disabilities prior to the advertisement for bids or
20solicitation of proposals whenever there has been a
21determination, reduced to writing and based on the best
22information available at the time of the determination, that
23there is an insufficient number of businesses owned by

 

 

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1minorities, women, and persons with disabilities to ensure
2adequate competition and an expectation of reasonable prices
3on bids or proposals solicited for the individual contract or
4contract package in question. Any such exemptions shall be
5given by the Council to the Bureau on Apprenticeship Programs
6and Clean Energy Jobs.
7        (a) Written request for contract exemption. A written
8    request for an individual contract exemption must include,
9    but is not limited to, the following:
10            (i) a list of eligible businesses owned by
11        minorities, women, and persons with disabilities;
12            (ii) a clear demonstration that the number of
13        eligible businesses identified in subparagraph (i)
14        above is insufficient to ensure adequate competition;
15            (iii) the difference in cost between the contract
16        proposals being offered by businesses owned by
17        minorities, women, and persons with disabilities and
18        the agency or public institution of higher education's
19        expectations of reasonable prices on bids or proposals
20        within that class; and
21            (iv) a list of eligible businesses owned by
22        minorities, women, and persons with disabilities that
23        the contractor has used in the current and prior
24        fiscal years.
25        (b) Determination. The Council's determination
26    concerning an individual contract exemption must consider,

 

 

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1    at a minimum, the following:
2            (i) the justification for the requested exemption,
3        including whether diligent efforts were undertaken to
4        identify and solicit eligible businesses owned by
5        minorities, women, and persons with disabilities;
6            (ii) the total number of exemptions granted to the
7        affected agency, public institution of higher
8        education, or recipient of a grant or loan of State
9        funds of $250,000 or more complying with Section 45 of
10        the State Finance Act that have been granted by the
11        Council in the current and prior fiscal years; and
12            (iii) the percentage of contracts awarded by the
13        agency or public institution of higher education to
14        eligible businesses owned by minorities, women, and
15        persons with disabilities in the current and prior
16        fiscal years.
17    (2) Class exemptions.
18        (a) Creation. The Council, at the written request of
19    the affected agency or public institution of higher
20    education, may permit an entire class of contracts be made
21    exempt from State contracting goals for businesses owned
22    by minorities, women, and persons with disabilities
23    whenever there has been a determination, reduced to
24    writing and based on the best information available at the
25    time of the determination, that there is an insufficient
26    number of qualified businesses owned by minorities, women,

 

 

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1    and persons with disabilities to ensure adequate
2    competition and an expectation of reasonable prices on
3    bids or proposals within that class. Any such exemption
4    shall be given by the Council to the Bureau on
5    Apprenticeship Programs and Clean Energy Jobs.
6        (a-1) Written request for class exemption. A written
7    request for a class exemption must include, but is not
8    limited to, the following:
9            (i) a list of eligible businesses owned by
10        minorities, women, and persons with disabilities;
11            (ii) a clear demonstration that the number of
12        eligible businesses identified in subparagraph (i)
13        above is insufficient to ensure adequate competition;
14            (iii) the difference in cost between the contract
15        proposals being offered by eligible businesses owned
16        by minorities, women, and persons with disabilities
17        and the agency or public institution of higher
18        education's expectations of reasonable prices on bids
19        or proposals within that class; and
20            (iv) the number of class exemptions the affected
21        agency or public institution of higher education
22        requested in the current and prior fiscal years.
23        (a-2) Determination. The Council's determination
24    concerning class exemptions must consider, at a minimum,
25    the following:
26            (i) the justification for the requested exemption,

 

 

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1        including whether diligent efforts were undertaken to
2        identify and solicit eligible businesses owned by
3        minorities, women, and persons with disabilities;
4            (ii) the total number of class exemptions granted
5        to the requesting agency or public institution of
6        higher education that have been granted by the Council
7        in the current and prior fiscal years; and
8            (iii) the percentage of contracts awarded by the
9        agency or public institution of higher education to
10        eligible businesses owned by minorities, women, and
11        persons with disabilities the current and prior fiscal
12        years.
13        (b) Limitation. Any such class exemption shall not be
14    permitted for a period of more than one year at a time.
15    (3) Waivers. Where a particular contract requires a
16contractor to meet a goal established pursuant to this Act,
17the contractor shall have the right to request a waiver from
18such requirements prior to the contract award. The Council
19shall grant the waiver when the contractor demonstrates that
20there has been made a good faith effort to comply with the
21goals for participation by businesses owned by minorities,
22women, and persons with disabilities. Any such waiver shall
23also be transmitted in writing to the Bureau on Apprenticeship
24Programs and Clean Energy Jobs. A waiver shall be deemed
25granted if the Council does not make a determination on the
26waiver within 30 business days after the initial request for a

 

 

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1waiver by the contractor.
2        (a) Request for waiver. A contractor's request for a
3    waiver under this subsection (3) must include, but is not
4    limited to, the following, if available:
5            (i) a list of eligible businesses owned by
6        minorities, women, and persons with disabilities that
7        pertain to the scope of work of the contract. Eligible
8        businesses are only eligible if the business is
9        certified for the products or work advertised in the
10        solicitation;
11            (ii) (blank);
12            (iia) a clear demonstration that the contractor
13        selected portions of the work to be performed by
14        eligible businesses owned by minorities, women, and
15        persons with disabilities, solicited through all
16        reasonable and available means eligible businesses,
17        and negotiated in good faith with interested eligible
18        businesses;
19            (iib) documentation demonstrating that businesses
20        owned by minorities, women, and persons with
21        disabilities are not rejected as being unqualified
22        without sound reasons based on a thorough
23        investigation of their capabilities;
24            (iii) documentation demonstrating that the
25        contract proposals being offered by businesses owned
26        by minorities, women, and persons with disabilities

 

 

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1        are excessive or unreasonable; and
2            (iv) a list of businesses owned by minorities,
3        women, and persons with disabilities that the
4        contractor has used in the current and prior fiscal
5        years.
6        (b) Determination. The Council's determination
7    concerning waivers must include following:
8            (i) the justification for the requested waiver,
9        including whether the requesting contractor made a
10        good faith effort to identify and solicit eligible
11        businesses owned by minorities, women, and persons
12        with disabilities;
13            (ii) the total number of waivers the contractor
14        has been granted by the Council in the current and
15        prior fiscal years;
16            (iii) (blank); and
17            (iv) the contractor's use of businesses owned by
18        minorities, women, and persons with disabilities in
19        the current and prior fiscal years.
20    (3.5) (Blank).
21    (4) Conflict with other laws. In the event that any State
22contract, which otherwise would be subject to the provisions
23of this Act, is or becomes subject to federal laws or
24regulations which conflict with the provisions of this Act or
25actions of the State taken pursuant hereto, the provisions of
26the federal laws or regulations shall apply and the contract

 

 

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1shall be interpreted and enforced accordingly.
2    (5) Each chief procurement officer, as defined in the
3Illinois Procurement Code, shall maintain on his or her
4official Internet website a database of the following: (i)
5waivers granted under this Section with respect to contracts
6under his or her jurisdiction; (ii) a State agency or public
7institution of higher education's written request for an
8exemption of an individual contract or an entire class of
9contracts; and (iii) the Council's written determination
10granting or denying a request for an exemption of an
11individual contract or an entire class of contracts. The
12database, which shall be updated periodically as necessary,
13shall be searchable by contractor name and by contracting
14State agency.
15    (6) Each chief procurement officer, as defined by the
16Illinois Procurement Code, shall maintain on its website a
17list of all firms that have been prohibited from bidding,
18offering, or entering into a contract with the State of
19Illinois as a result of violations of this Act.
20    Each public notice required by law of the award of a State
21contract shall include for each bid or offer submitted for
22that contract the following: (i) the bidder's or offeror's
23name, (ii) the bid amount, (iii) the name or names of the
24certified firms identified in the bidder's or offeror's
25submitted utilization plan, and (iv) the bid's amount and
26percentage of the contract awarded to businesses owned by

 

 

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1minorities, women, and persons with disabilities identified in
2the utilization plan.
3(Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20;
4101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff.
59-15-21.)
 
6    Section 99. Effective date. This Act takes effect upon
7becoming law.