Full Text of HB1409 103rd General Assembly
HB1409ham001 103RD GENERAL ASSEMBLY | Rep. William "Will" Davis Filed: 3/3/2023
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| 1 | | AMENDMENT TO HOUSE BILL 1409
| 2 | | AMENDMENT NO. ______. Amend House Bill 1409 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Business Enterprise for Minorities, Women, | 5 | | and Persons with
Disabilities Act is amended by changing | 6 | | Sections 4 and 4f as follows:
| 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| 8 | | (Section scheduled to be repealed on June 30, 2024)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, |
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| 1 | | women, and persons with disabilities pursuant to
this Section, | 2 | | contracts representing at least 16% shall be awarded to | 3 | | businesses owned by minorities, contracts representing at | 4 | | least 10% shall be awarded to women-owned businesses, and | 5 | | contracts representing at least 4% shall be awarded to | 6 | | businesses owned by persons with disabilities.
| 7 | | (a-5) In addition to the aspirational goals in awarding | 8 | | State contracts set under subsection (a), the Commission shall | 9 | | by rule further establish targeted efforts to encourage the | 10 | | participation of businesses owned by minorities, women, and | 11 | | persons with disabilities on State contracts. Such efforts | 12 | | shall include, but not be limited to, further concerted | 13 | | outreach efforts to businesses owned by minorities, women, and | 14 | | persons with disabilities. | 15 | | The above percentage relates to the total dollar amount of | 16 | | State
contracts during each State fiscal year, calculated by | 17 | | examining
independently each type of contract for each agency | 18 | | or public institutions of higher education which
lets such | 19 | | contracts. Only that percentage of arrangements which | 20 | | represents the participation of businesses owned by
| 21 | | minorities, women, and persons with disabilities on such | 22 | | contracts shall
be included. State contracts subject to the | 23 | | requirements of this Act shall include the requirement that | 24 | | only expenditures to businesses owned by minorities, women, | 25 | | and persons with disabilities that perform a commercially | 26 | | useful function may be counted toward the goals set forth by |
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| 1 | | this Act. Contracts shall include a definition of | 2 | | "commercially useful function" that is consistent with 49 CFR | 3 | | 26.55(c).
| 4 | | (b) Not less
than 20% of the total dollar amount of State | 5 | | construction contracts is
established as an aspirational goal | 6 | | to be awarded to businesses owned by minorities, women, and | 7 | | persons with disabilities; provided that, contracts | 8 | | representing at least 11% of the total dollar amount of State | 9 | | construction contracts shall be awarded to businesses owned by | 10 | | minorities; contracts representing at least 7% of the total | 11 | | dollar amount of State construction contracts shall be awarded | 12 | | to women-owned businesses; and contracts representing at least | 13 | | 2% of the total dollar amount of State construction contracts | 14 | | shall be awarded to businesses owned by persons with | 15 | | disabilities.
| 16 | | (c) (Blank). | 17 | | (c-5) All goals established under this Section shall be | 18 | | contingent upon the results of the most recent disparity study | 19 | | conducted by the State. | 20 | | (d) Within one year after April 28, 2009 (the effective | 21 | | date of Public Act 96-8), the Department of Central Management | 22 | | Services shall conduct a social scientific study that measures | 23 | | the impact of discrimination on minority and women business | 24 | | development in Illinois. Within 18 months after April 28, 2009 | 25 | | (the effective date of Public Act 96-8), the Department shall | 26 | | issue a report of its findings and any recommendations on |
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| 1 | | whether to adjust the goals for minority and women | 2 | | participation established in this Act. Copies of this report | 3 | | and the social scientific study shall be filed with the | 4 | | Governor and the General Assembly. | 5 | | By December 1, 2020, the Department of Central Management | 6 | | Services shall conduct a new social scientific study that | 7 | | measures the impact of discrimination on minority and women | 8 | | business development in Illinois. By June 1, 2022, the | 9 | | Department shall issue a report of its findings and any | 10 | | recommendations on whether to adjust the goals for minority | 11 | | and women participation established in this Act. Copies of | 12 | | this report and the social scientific study shall be filed | 13 | | with the Governor and the General Assembly. By December 1, | 14 | | 2022, the Commission on Equity and Inclusion Business | 15 | | Enterprise Program shall develop a model for social scientific | 16 | | disparity study sourcing for local governmental units to adapt | 17 | | and implement to address regional disparities in public | 18 | | procurement. | 19 | | (e) All State contract solicitations that include Business | 20 | | Enterprise Program participation goals shall require bidders | 21 | | or offerors to include utilization plans. Utilization plans | 22 | | are due at the time of bid or offer submission. Failure to | 23 | | complete and include a utilization plan, including | 24 | | documentation demonstrating good faith efforts when requesting | 25 | | a waiver, shall render the bid or offer non-responsive. | 26 | | Except as permitted under this Act or as otherwise
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| 1 | | mandated by federal regulation, a bidder or offeror whose bid | 2 | | or offer is accepted and who included in that bid a completed | 3 | | utilization plan but who fails to meet the goals set forth in | 4 | | the
plan shall be notified of the deficiency by the
| 5 | | contracting agency or public institution of higher education
| 6 | | and shall be given a period of 10 calendar days to cure the | 7 | | deficiency by contracting with additional
subcontractors who | 8 | | are certified by the Business Enterprise
Program or by | 9 | | increasing the work to be performed by
previously identified | 10 | | vendors certified by the Business
Enterprise Program. | 11 | | Deficiencies that may be cured include: (i) scrivener's | 12 | | errors, such as transposed numbers; (ii) information
submitted | 13 | | in an incorrect form or format; (iii) mistakes resulting from | 14 | | failure to follow instructions or to identify and
adequately | 15 | | document good faith efforts taken to comply with the | 16 | | utilization plan; or (iv) a proposal to use a
firm whose | 17 | | Business Enterprise Program certification has lapsed or is
not | 18 | | yet recognized. Cure is
not authorized if the bidder or | 19 | | offeror submits a blank
utilization plan, a utilization plan | 20 | | that shows lack of
reasonable effort to complete the form on | 21 | | time, or a
utilization plan that states the contract will be
| 22 | | self-performed, by a non-certified vendor, without showing
| 23 | | good faith efforts or a request for a waiver. All cure activity
| 24 | | shall address the deficiencies identified by the purchasing
| 25 | | agency and shall require clear documentation, including that
| 26 | | of good faith efforts, to address those deficiencies. Any
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| 1 | | increase in cost to a contract for the addition of a
| 2 | | subcontractor to cure a bid's deficiency shall not affect the
| 3 | | bid price and shall not be used in the request for an exemption
| 4 | | under this Act, and, in no case, shall an identified
| 5 | | subcontractor with a Business Enterprise Program certification
| 6 | | made under this Act be terminated from a contract without
the | 7 | | written consent of the State agency or public institution
of | 8 | | higher education entering into the contract. The purchasing
| 9 | | agency or public institution of higher education shall make
| 10 | | the determination whether the cure is adequate. | 11 | | Vendors certified with the Business Enterprise
Program at | 12 | | the time and date submittals are due and who do not submit
a | 13 | | utilization plan or have utilization plan deficiencies shall | 14 | | have 10 business days
to submit a utilization plan or to | 15 | | correct the utilization plan deficiencies. | 16 | | (f) (Blank). | 17 | | (g) (Blank). | 18 | | (h) State agencies and public institutions of higher | 19 | | education shall notify the Commission on Equity and Inclusion | 20 | | of all non-responsive bids or proposals for State contracts. | 21 | | (i) All goals established under this Section apply to | 22 | | architectural, engineering, and land surveying contracts under | 23 | | the Architectural, Engineering, and Land Surveying | 24 | | Qualifications Based Selection Act. | 25 | | (Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20; | 26 | | 101-657, Article 1, Section 1-5, eff. 1-1-22; 101-657, Article |
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| 1 | | 40, Section 40-130, eff. 1-1-22; 102-29, eff. 6-25-21; | 2 | | 102-558, eff. 8-20-21; 102-1119, eff. 1-23-23.)
| 3 | | (30 ILCS 575/4f) | 4 | | (Section scheduled to be repealed on June 30, 2024) | 5 | | Sec. 4f. Award of State contracts. | 6 | | (1) It is hereby declared to be the public policy of the | 7 | | State of Illinois to promote and encourage each State agency | 8 | | and public institution of higher education to use businesses | 9 | | owned by minorities, women, and persons with disabilities in | 10 | | the area of goods and services, including, but not limited to, | 11 | | insurance services, investment management services, | 12 | | information technology services, accounting | 13 | | services, architectural and engineering services, and legal | 14 | | services. Furthermore, each State agency and public | 15 | | institution of higher education shall utilize such firms to | 16 | | the greatest extent feasible within the bounds of financial | 17 | | and fiduciary prudence, and take affirmative steps to remove | 18 | | any barriers to the full participation of such firms in the | 19 | | procurement and contracting opportunities afforded. | 20 | | (a) When a State agency or public institution of | 21 | | higher education, other than a community college, awards a | 22 | | contract for insurance services, for each State agency or | 23 | | public institution of higher education, it shall be the | 24 | | aspirational goal to use insurance brokers owned by | 25 | | minorities, women, and persons with disabilities as |
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| 1 | | defined by this Act, for not less than 20% of the total | 2 | | annual premiums or fees; provided that, contracts | 3 | | representing at least 11% of the total annual premiums or | 4 | | fees shall be awarded to businesses owned by minorities; | 5 | | contracts representing at least 7% of the total annual | 6 | | premiums or fees shall be awarded to women-owned | 7 | | businesses; and contracts representing at least 2% of the | 8 | | total annual premiums or fees shall be awarded to | 9 | | businesses owned by persons with disabilities. | 10 | | (b) When a State agency or public institution of | 11 | | higher education, other than a community college, awards a | 12 | | contract for investment services, for each State agency or | 13 | | public institution of higher education, it shall be the | 14 | | aspirational goal to use emerging investment managers | 15 | | owned by minorities, women, and persons with disabilities | 16 | | as defined by this Act, for not less than 20% of the total | 17 | | funds under management; provided that, contracts | 18 | | representing at least 11% of the total funds under | 19 | | management shall be awarded to businesses owned by | 20 | | minorities; contracts representing at least 7% of the | 21 | | total funds under management shall be awarded to | 22 | | women-owned businesses; and contracts representing at | 23 | | least 2% of the total funds under management shall be | 24 | | awarded to businesses owned by persons with disabilities. | 25 | | Furthermore, it is the aspirational goal that not less | 26 | | than 20% of the direct asset managers of the State funds be |
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| 1 | | minorities, women, and persons with disabilities. | 2 | | (c) When a State agency or public institution of | 3 | | higher education, other than a community college, awards | 4 | | contracts for information technology services, accounting | 5 | | services, architectural and engineering services, and legal | 6 | | services, for each State agency and public institution of | 7 | | higher education, it shall be the aspirational goal to use | 8 | | such firms owned by minorities, women, and persons with | 9 | | disabilities as defined by this Act and lawyers who are | 10 | | minorities, women, and persons with disabilities as | 11 | | defined by this Act, for not less than 20% of the total | 12 | | dollar amount of State contracts; provided that, contracts | 13 | | representing at least 11% of the total dollar amount of | 14 | | State contracts shall be awarded to businesses owned by | 15 | | minorities or minority lawyers; contracts representing at | 16 | | least 7% of the total dollar amount of State contracts | 17 | | shall be awarded to women-owned businesses or women who | 18 | | are lawyers; and contracts representing at least 2% of the | 19 | | total dollar amount of State contracts shall be awarded to | 20 | | businesses owned by persons with disabilities or persons | 21 | | with disabilities who are lawyers. | 22 | | (d) When a community college awards a contract for | 23 | | insurance services, investment services, information | 24 | | technology services, accounting services, architectural | 25 | | and engineering services, and legal services, it shall be | 26 | | the aspirational goal of each community college to use |
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| 1 | | businesses owned by minorities, women, and persons with | 2 | | disabilities as defined in this Act for not less than 20% | 3 | | of the total amount spent on contracts for these services | 4 | | collectively; provided that, contracts representing at | 5 | | least 11% of the total amount spent on contracts for these | 6 | | services shall be awarded to businesses owned by | 7 | | minorities; contracts representing at least 7% of the | 8 | | total amount spent on contracts for these services shall | 9 | | be awarded to women-owned businesses; and contracts | 10 | | representing at least 2% of the total amount spent on | 11 | | contracts for these services shall be awarded to | 12 | | businesses owned by persons with disabilities. When a | 13 | | community college awards contracts for investment | 14 | | services, contracts awarded to investment managers who are | 15 | | not emerging investment managers as defined in this Act | 16 | | shall not be considered businesses owned by minorities, | 17 | | women, or persons with disabilities for the purposes of | 18 | | this Section. | 19 | | (2) As used in this Section: | 20 | | "Accounting services" means the measurement, | 21 | | processing and communication of financial information | 22 | | about economic entities including, but is not limited to, | 23 | | financial accounting, management accounting, auditing, | 24 | | cost containment and auditing services, taxation and | 25 | | accounting information systems. | 26 | | "Architectural and engineering services" means |
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| 1 | | professional services of an architectural or engineering | 2 | | nature, or incidental services, that members of the | 3 | | architectural and engineering professions, and individuals | 4 | | in their employ, may logically or justifiably perform, | 5 | | including studies, investigations, surveying and mapping, | 6 | | tests, evaluations, consultations, comprehensive | 7 | | planning, program management, conceptual designs, plans | 8 | | and specifications, value engineering, construction phase | 9 | | services, soils engineering, drawing reviews, preparation | 10 | | of operating and maintenance manuals, and other related | 11 | | services. | 12 | | "Emerging investment manager" means an investment | 13 | | manager or claims consultant having assets under | 14 | | management below $10 billion or otherwise adjudicating | 15 | | claims. | 16 | | "Information technology services" means, but is not | 17 | | limited to, specialized technology-oriented solutions by | 18 | | combining the processes and functions of software, | 19 | | hardware, networks, telecommunications, web designers, | 20 | | cloud developing resellers, and electronics. | 21 | | "Insurance broker" means an insurance brokerage firm, | 22 | | claims administrator, or both, that procures, places all | 23 | | lines of insurance, or administers claims with annual | 24 | | premiums or fees of at least $5,000,000 but not more than | 25 | | $10,000,000. | 26 | | "Legal services" means work performed by a lawyer |
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| 1 | | including, but not limited to, contracts in anticipation | 2 | | of litigation, enforcement actions, or investigations. | 3 | | (3) Each State agency and public institution of higher | 4 | | education shall adopt policies that identify its plan and | 5 | | implementation procedures for increasing the use of service | 6 | | firms owned by minorities, women, and persons with | 7 | | disabilities. All plan and implementation procedures for | 8 | | increasing the use of service firms owned by minorities, | 9 | | women, and persons with disabilities must be submitted to and | 10 | | approved by the Commission on Equity and Inclusion on an | 11 | | annual basis. | 12 | | (4) Except as provided in subsection (5), the Council | 13 | | shall file no later than March 1 of each year an annual report | 14 | | to the Governor, the Bureau on Apprenticeship Programs and | 15 | | Clean Energy Jobs, and the General Assembly. The report filed | 16 | | with the General Assembly shall be filed as required in | 17 | | Section 3.1 of the General Assembly Organization Act. This | 18 | | report shall: (i) identify the service firms used by each | 19 | | State agency and public institution of higher education, (ii) | 20 | | identify the actions it has undertaken to increase the use of | 21 | | service firms owned by minorities, women, and persons with | 22 | | disabilities, including encouraging non-minority-owned firms | 23 | | to use other service firms owned by minorities, women, and | 24 | | persons with disabilities as subcontractors when the | 25 | | opportunities arise, (iii) state any recommendations made by | 26 | | the Council to each State agency and public institution of |
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| 1 | | higher education to increase participation by the use of | 2 | | service firms owned by minorities, women, and persons with | 3 | | disabilities, and (iv) include the following: | 4 | | (A) For insurance services: the names of the insurance | 5 | | brokers or claims consultants used, the total of risk | 6 | | managed by each State agency and public institution of | 7 | | higher education by insurance brokers, the total | 8 | | commissions, fees paid, or both, the lines or insurance | 9 | | policies placed, and the amount of premiums placed; and | 10 | | the percentage of the risk managed by insurance brokers, | 11 | | the percentage of total commission, fees paid, or both, | 12 | | the lines or insurance policies placed, and the amount of | 13 | | premiums placed with each by the insurance brokers owned | 14 | | by minorities, women, and persons with disabilities by | 15 | | each State agency and public institution of higher | 16 | | education. | 17 | | (B) For investment management services: the names of | 18 | | the investment managers used, the total funds under | 19 | | management of investment managers; the total commissions, | 20 | | fees paid, or both; the total and percentage of funds | 21 | | under management of emerging investment managers owned by | 22 | | minorities, women, and persons with disabilities, | 23 | | including the total and percentage of total commissions, | 24 | | fees paid, or both by each State agency and public | 25 | | institution of higher education. | 26 | | (C) The names of service firms, the percentage and |
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| 1 | | total dollar amount paid for professional services by | 2 | | category by each State agency and public institution of | 3 | | higher education. | 4 | | (D) The names of service firms, the percentage and | 5 | | total dollar amount paid for services by category to firms | 6 | | owned by minorities, women, and persons with disabilities | 7 | | by each State agency and public institution of higher | 8 | | education. | 9 | | (E) The total number of contracts awarded for services | 10 | | by category and the total number of contracts awarded to | 11 | | firms owned by minorities, women, and persons with | 12 | | disabilities by each State agency and public institution | 13 | | of higher education. | 14 | | (5) For community college districts, the Business | 15 | | Enterprise Council shall only report the following information | 16 | | for each community college district: (i) the name of the | 17 | | community colleges in the district, (ii) the name and contact | 18 | | information of a person at each community college appointed to | 19 | | be the single point of contact for vendors owned by | 20 | | minorities, women, or persons with disabilities, (iii) the | 21 | | policy of the community college district concerning certified | 22 | | vendors, (iv) the certifications recognized by the community | 23 | | college district for determining whether a business is owned | 24 | | or controlled by a minority, woman, or person with a | 25 | | disability, (v) outreach efforts conducted by the community | 26 | | college district to increase the use of certified vendors, |
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| 1 | | (vi) the total expenditures by the community college district | 2 | | in the prior fiscal year in the divisions of work specified in | 3 | | paragraphs (a), (b), and (c) of subsection (1) of this Section | 4 | | and the amount paid to certified vendors in those divisions of | 5 | | work, and (vii) the total number of contracts entered into for | 6 | | the divisions of work specified in paragraphs (a), (b), and | 7 | | (c) of subsection (1) of this Section and the total number of | 8 | | contracts awarded to certified vendors providing these | 9 | | services to the community college district. The Business | 10 | | Enterprise Council shall not make any utilization reports | 11 | | under this Act for community college districts for Fiscal Year | 12 | | 2015 and Fiscal Year 2016, but shall make the report required | 13 | | by this subsection for Fiscal Year 2017 and for each fiscal | 14 | | year thereafter. The Business Enterprise Council shall report | 15 | | the information in items (i), (ii), (iii), and (iv) of this | 16 | | subsection beginning in September of 2016. The Business | 17 | | Enterprise Council may collect the data needed to make its | 18 | | report from the Illinois Community College Board. | 19 | | (6) The status of the utilization of services shall be | 20 | | discussed at each of the regularly scheduled Business | 21 | | Enterprise Council meetings. Time shall be allotted for the | 22 | | Council to receive, review, and discuss the progress of the | 23 | | use of service firms owned by minorities, women, and persons | 24 | | with disabilities by each State agency and public institution | 25 | | of higher education; and any evidence regarding past or | 26 | | present racial, ethnic, or gender-based discrimination which |
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| 1 | | directly impacts a State agency or public institution of | 2 | | higher education contracting with such firms. If after | 3 | | reviewing such evidence the Council finds that there is or has | 4 | | been such discrimination against a specific group, race or | 5 | | sex, the Council shall establish sheltered markets or adjust | 6 | | existing sheltered markets tailored to address the Council's | 7 | | specific findings for the divisions of work specified in | 8 | | paragraphs (a), (b), and (c) of subsection (1) of this | 9 | | Section.
| 10 | | (Source: P.A. 101-170, eff. 1-1-20; 101-657, Article 5, | 11 | | Section 5-10, eff. 7-1-21 (See Section 25 of P.A. 102-29 for | 12 | | effective date of P.A. 101-657, Article 5, Section 5-10); | 13 | | 101-657, Article 40, Section 40-130, eff. 1-1-22; 102-29, eff. | 14 | | 6-25-21; 102-662, eff. 9-15-21 .)".
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