Section 6.830  Target Market Remedial Actions

a)         Narrow Tailoring (See Northern Contracting, Inc. v. Illinois Department of Transportation, 473 F.3d 715 (7^th Cir. 2007))

The procurement of contracts by the CPO to complete transportation construction projects undertaken by the Department is adversely affected by the presence of discrimination.  In addition to goal-oriented remedial programs, target market remedial actions will be implemented to eliminate the effects of discrimination in the performance of transportation construction projects.  The target market remedial measures selected to remedy egregious discrimination will be narrowly tailored to the evidence relied on to support the action.  The selection will specify whether, and to what extent, the remedial measure is subject to geographic market areas and/or construction market areas based on the evidence.  In addition, the selection will establish specific, definite duration limitations based on the evidence.  Target market remedial measures may include, but are not limited to, the following actions selected on the basis of the evidence as the most narrowly appropriate to remedy the identified discrimination:

1)         Contract Formation Actions

A)        The Department, in consultation with the CPO, may designate specific contract work as reserved for performance solely by minority-owned businesses, female-owned businesses or Disadvantaged Business Enterprises, as determined by the funding sources for the contract.  This action removes some or all discretion from the bidding contractors or consultants as to the work to be performed by eligible minority, female or disadvantaged participants in the context of existing goal-oriented remedial programs.  The contract and procurement documents will be drafted and advertised to require the contractor or consultant to make a good faith effort (see, e.g., 49 CFR 26.53) to have the identified reserved work performed by eligible minority, female or disadvantaged business participants. 

B)        The Department, in consultation with the CPO, may implement contract formation and bidding procedures designed to encourage and facilitate bidding and offers by minority-owned, female-owned and disadvantaged businesses.  This action includes, but is not limited to, dividing procurements into units conducive to eligible business participation, scheduling contract lettings at alternative locations conducive to eligible business participation, providing for bidding documentation and submission procedures conducive to eligible business participation and removal of bid bond requirements to induce eligible business participation.  (See Section 2705-600(2) of the Law.)

2)         Contract Goal Actions

The Department, in consultation with the CPO, may advertise contracts for award or selection with separate minority-owned and female-owned business participation goals in the context of existing goal-oriented remedial programs.  This action may provide for either minority-owned or female-owned business utilization goals, or both, applicable to a particular contract or contracts.

3)         Contract Incentive Actions

The Department, in consultation with the CPO, may establish incentives for achievement of minority-owned, female-owned or Disadvantaged Business Enterprises goals advertised in contracts for award in the context of existing goal-oriented remedial programs.  This action may provide for an incentive advertised as applicable to eligible bidders making the highest commitment to eligible business participation that would reduce the price bid for purposes of price comparison and determination of the lowest bid price for purposes of award.

4)         Contract Set-Aside Actions

The Department, in consultation with the CPO, may advertise contracts for award or selection set-aside for minority-owned, female-owned or disadvantaged business enterprises exclusively.  This action establishes a sheltered procurement process open only to eligible businesses determined to be responsible contractors in accordance with this Part.

b)         Minimum Participation Availability

No contract will be eligible for inclusion in any target market action unless the Department, in consultation with the CPO, determines that there are at least 3 eligible businesses interested in participating in the contract.  The determination will be based on the DBE certifications and other attendant factors.  (See Section 2705-600(3) of the Law.)

(Source:  Amended at 37 Ill. Reg. 5764, effective April 19, 2013)