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Public Act 097-0260


 

Public Act 0260 97TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 097-0260
 
SB1270 EnrolledLRB097 07929 PJG 48046 b

    AN ACT concerning finance.
 
    WHEREAS, Generation after generation of Illinois' citizens
has served our nation and the State of Illinois by serving in
America's armed forces, often at great sacrifice; and military
service by their citizenry is fundamental to the continuing
freedom that America and the State of Illinois enjoy; and
    WHEREAS, Accordingly, honoring the service of Illinois'
military veterans, past, present, and future, must be a
primary, cornerstone commitment of Illinois; and
    WHEREAS, Inasmuch as the State of Illinois acknowledges the
past and ongoing commitment of Illinois' military veterans, it
is the intent of this Act to (i) foster economic opportunities
for Illinois' military veterans by encouraging the
establishment of service-disabled veteran-owned small
businesses (SDVOSB) and veteran-owned small businesses (VOSB)
and (ii) establish an annual, ongoing, percentage goal for all
State agencies' award of goods and services contracts and
construction-related State spending that shall be set aside for
competitive bidding by verified Illinois SDVOSB and VOSB; and
    WHEREAS, It is further intended that appropriate
administrative procedures for the verification of SDVOSB,
VOSB, bid solicitations, awards, and all matters pertaining
thereto shall be established and implemented by the Department
of Central Management Services; therefore
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Procurement Code is amended by
changing Section 45-57 as follows:
 
    (30 ILCS 500/45-57)
    Sec. 45-57. Veterans Disabled veterans.
    (a) Set-aside goal. It is the goal of the State to promote
and encourage the continued economic development of small
businesses owned and controlled by qualified service disabled
veterans and that qualified service-disabled service disabled
veteran-owned small businesses (referred to as SDVOSB SDVOB)
and veteran-owned small businesses (referred to as VOSB)
participate in the State's procurement process as both prime
contractors and subcontractors. Not less than 3% of the total
dollar amount of State contracts, as defined by the Director of
Central Management Services, shall be established as a goal to
be awarded to SDVOSB and VOSB. A Task Force shall be
established, appointed by the Directors or Secretaries of, and
made up of representatives of, the Illinois Department of
Veterans' Affairs, the Illinois Department of Transportation,
the Department of Central Management Services, the Business
Enterprise Program, and the Business Enterprise Council. The
Department of Central Management Services shall provide
administrative support to the Task Force. The purpose of this
Task Force shall be to determine the appropriate percentage
goal for award each fiscal year of the State's total
expenditures for contracts awarded under this Code to SDVOB.
That portion of a contract under which the contractor
subcontracts with a SDVOSB or VOSB SDVOB may be counted toward
the goal of this subsection. The Department of Central
Management Services shall adopt rules to implement compliance
with this subsection by all State agencies. In making that
determination the Task Force shall consult with statewide
veterans' service organizations and the business community,
including businesses owned by qualified disabled veterans. The
Task Force shall submit its report to the General Assembly
concerning its recommendations regarding the appropriate
percentage goal for award each fiscal year of the State's total
expenditures for contracts awarded under this Code to qualified
service disabled veterans no later than 90 days after the
effective date of this amendatory Act of the 96th General
Assembly.
    (b) Fiscal year reports. By Once the appropriate goal is
established, then by each September 1, each chief procurement
officer shall report to the Department of Central Management
Services on all of the following for the immediately preceding
fiscal year, and by each March October 1 the Department of
Central Management Services shall compile and report that
information to the General Assembly:
        (1) The total number of VOSB, and the number of SDVOSB,
    SDVOB who submitted bids a bid for contracts a contract
    under this Code.
        (2) The total number of VOSB, and the number of SDVOSB,
    SDVOB who entered into contracts with the State under this
    Code and the total value of those contracts.
    (c) Yearly review and recommendations. Each year, each
chief procurement officer shall review the progress of all
State agencies under its jurisdiction in meeting the goal
described in subsection (a), with input from statewide
veterans' service organizations and from the business
community, including businesses owned by qualified disabled
veterans, and shall make recommendations to be included in the
Department of Central Management Services' report to the
General Assembly regarding continuation, increases, or
decreases of the percentage goal. The recommendations shall be
based upon the number of businesses that are owned by qualified
disabled veterans and on the continued need to encourage and
promote businesses owned by qualified disabled veterans.
    (d) Governor's recommendations. To assist the State in
reaching the goal described in subsection (a), the Governor
shall recommend to the General Assembly changes in programs to
assist businesses owned by qualified disabled veterans.
    (e) Definitions. As used in this Section:
    "Armed forces of the United States" means the United States
Army, Navy, Air Force, Marine Corps, Coast Guard, or service in
active duty as defined under 38 U.S.C. Section 101. Service in
the Merchant Marine that constitutes active duty under Section
401 of federal Public Act 95-202 shall also be considered
service in the armed forces for purposes of this Section.
    " Business" means a business that has average annual gross
sales over the 3 most recent calendar years of less than
$31,000,000 as evidenced by the federal income tax returns of
the business.
    "Certification" means a determination made by the Illinois
Department of Veterans' Affairs and the Department of Central
Management Services that a business entity is a qualified
service-disabled veteran-owned small business or a qualified
veteran-owned small business for whatever purpose. A SDVOSB or
VOSB owned and controlled by females, minorities, or persons
with disabilities, as those terms are defined in Section 2 of
the Business Enterprise for Minorities, Females, and Persons
with Disabilities Act, shall select and designate whether that
business is to be certified as a "female-owned business",
"minority-owned business", or "business owned by a person with
a disability", as defined in Section 2 of the Business
Enterprise for Minorities, Females, and Persons with
Disabilities Act, or as a qualified SDVOSB or qualified VOSB
under this Section.
    "Control" means the exclusive, ultimate, majority, or sole
control of the business, including but not limited to capital
investment and all other financial matters, property,
acquisitions, contract negotiations, legal matters,
officer-director-employee selection and comprehensive hiring,
operation responsibilities, cost-control matters, income and
dividend matters, financial transactions, and rights of other
shareholders or joint partners. Control shall be real,
substantial, and continuing, not pro forma. Control shall
include the power to direct or cause the direction of the
management and policies of the business and to make the
day-to-day as well as major decisions in matters of policy,
management, and operations. Control shall be exemplified by
possessing the requisite knowledge and expertise to run the
particular business, and control shall not include simple
majority or absentee ownership.
    "Qualified service-disabled service disabled veteran"
means a veteran who has been found to have 10% or more a
service-connected disability by the United States Department
of Veterans Affairs or the United States Department of Defense.
    "Qualified service-disabled veteran-owned small business"
or "SDVOSB" means a small business (i) that is at least 51%
owned by one or more qualified service-disabled veterans living
in Illinois or, in the case of a corporation, at least 51% of
the stock of which is owned by one or more qualified
service-disabled veterans living in Illinois; (ii) that has its
home office in Illinois; and (iii) for which items (i) and (ii)
are factually verified annually by the Department of Central
Management Services.
    "Qualified veteran-owned small business" or "VOSB" means a
small business (i) that is at least 51% owned by one or more
qualified veterans living in Illinois or, in the case of a
corporation, at least 51% of the stock of which is owned by one
or more qualified veterans living in Illinois; (ii) that has
its home office in Illinois; and (iii) for which items (i) and
(ii) are factually verified annually by the Department of
Central Management Services.
    "Qualified disabled veteran-owned business" means a
business entity that is at least 51% owned by one or more
qualified disabled veterans, or in the case of a corporation,
at least 51% of the stock of which is owned by one or more
qualified disabled veterans; and the management and daily
business operations of which are controlled by one or more of
the qualified disabled veterans who own it.
    "Service-connected disability" means a disability incurred
in the line of duty in the active military, naval, or air
service as described in 38 U.S.C. 101(16).
    "Small business" means a business that has annual gross
sales of less than $75,000,000 as evidenced by the federal
income tax return of the business. A firm with gross sales in
excess of this cap may apply to the Department of Central
Management Services for certification for a particular
contract if the firm can demonstrate that the contract would
have significant impact on SDVOSB or VOSB as suppliers or
subcontractors or in employment of veterans or
service-disabled veterans.
    "State agency" has the same meaning as in Section 2 of the
Business Enterprise for Minorities, Females, and Persons with
Disabilities Act.
    "Time of hostilities with a foreign country" means any
period of time in the past, present, or future during which a
declaration of war by the United States Congress has been or is
in effect or during which an emergency condition has been or is
in effect that is recognized by the issuance of a Presidential
proclamation or a Presidential executive order and in which the
armed forces expeditionary medal or other campaign service
medals are awarded according to Presidential executive order.
    "Veteran" means a person who (i) has been a member of the
armed forces of the United States or, while a citizen of the
United States, was a member of the armed forces of allies of
the United States in time of hostilities with a foreign country
and (ii) has served under one or more of the following
conditions: (a) the veteran served a total of at least 6
months; (b) the veteran served for the duration of hostilities
regardless of the length of the engagement; (c) the veteran was
discharged on the basis of hardship; or (d) the veteran was
released from active duty because of a service connected
disability and was discharged under honorable conditions.
served in the active military, naval, or air service and who
was discharged or released from his or her service under
conditions other than dishonorable.
    (f) Certification program. The Illinois Department of
Veterans' Affairs and the Department of Central Management
Services Business Enterprise Program shall work together to
devise a certification procedure to assure that businesses
taking advantage of this Section Act are legitimately
classified as qualified service-disabled service disabled
veteran-owned small businesses or qualified veteran-owned
small businesses.
    (g) Penalties.
        (1) Administrative penalties. The Department of
    Central Management Services shall suspend any person who
    commits a violation of Section 17-10.3 or subsection (d) of
    Section 33E-6 of the Criminal Code of 1961 relating to this
    Section from bidding on, or participating as a contractor,
    subcontractor, or supplier in, any State contract or
    project for a period of not less than 3 years, and, if the
    person is certified as a service-disabled veteran-owned
    small business or a veteran-owned small business, then the
    Department shall revoke the business's certification for a
    period of not less than 3 years. An additional or
    subsequent violation shall extend the periods of
    suspension and revocation for a period of not less than 5
    years. The suspension and revocation shall apply to the
    principals of the business and any subsequent business
    formed or financed by, or affiliated with, those
    principals.
        (2) Reports of violations. Each State agency shall
    report any alleged violation of Section 17-10.3 or
    subsection (d) of Section 33E-6 of the Criminal Code of
    1961 relating to this Section to the Department of Central
    Management Services. The Department of Central Management
    Services shall subsequently report all such alleged
    violations to the Attorney General, who shall determine
    whether to bring a civil action against any person for the
    violation.
        (3) List of suspended persons. The Department of
    Central Management Services shall monitor the status of all
    reported violations of Section 17-10.3 or subsection (d) of
    Section 33E-6 of the Criminal Code of 1961 relating to this
    Section and shall maintain and make available to all State
    agencies a central listing of all persons that committed
    violations resulting in suspension.
        (4) Use of suspended persons. During the period of a
    person's suspension under paragraph (1) of this
    subsection, a State agency shall not enter into any
    contract with that person or with any contractor using the
    services of that person as a subcontractor.
        (5) Duty to check list. Each State agency shall check
    the central listing provided by the Department of Central
    Management Services under paragraph (3) of this subsection
    to verify that a person being awarded a contract by that
    State agency, or to be used as a subcontractor or supplier
    on a contract being awarded by that State agency, is not
    under suspension pursuant to paragraph (1) of this
    subsection.
(Source: P.A. 96-96, eff. 1-1-10.)
 
    Section 10. The Criminal Code of 1961 is amended by
changing Sections 17-10.3, 33E-2, and 33E-6 as follows:
 
    (720 ILCS 5/17-10.3)
    (This Section may contain text from a Public Act with a
delayed effective date)
    Sec. 17-10.3. Deception relating to certification of
disadvantaged business enterprises.
    (a) Fraudulently obtaining or retaining certification. A
person who, in the course of business, fraudulently obtains or
retains certification as a minority owned business, or female
owned business, service-disabled veteran-owned small business,
or veteran-owned small business commits a Class 2 felony.
    (b) Willfully making a false statement. A person who, in
the course of business, willfully makes a false statement
whether by affidavit, report or other representation, to an
official or employee of a State agency or the Minority and
Female Business Enterprise Council for the purpose of
influencing the certification or denial of certification of any
business entity as a minority owned business, or female owned
business, service-disabled veteran-owned small business, or
veteran-owned small business commits a Class 2 felony.
    (c) Willfully obstructing or impeding an official or
employee of any agency in his or her investigation. Any person
who, in the course of business, willfully obstructs or impedes
an official or employee of any State agency or the Minority and
Female Business Enterprise Council who is investigating the
qualifications of a business entity which has requested
certification as a minority owned business, or a female owned
business, service-disabled veteran-owned small business, or
veteran-owned small business commits a Class 2 felony.
    (d) Fraudulently obtaining public moneys reserved for
disadvantaged business enterprises. Any person who, in the
course of business, fraudulently obtains public moneys
reserved for, or allocated or available to, minority owned
businesses, or female owned businesses, service-disabled
veteran-owned small businesses, or veteran-owned small
businesses commits a Class 2 felony.
    (e) Definitions. As used in this Article, "minority owned
business", "female owned business", "State agency" with
respect to minority owned businesses and female owned
businesses, and "certification" with respect to minority owned
businesses and female owned businesses shall have the meanings
ascribed to them in Section 2 of the Business Enterprise for
Minorities, Females, and Persons with Disabilities Act. As used
in this Article, "service-disabled veteran-owned small
business", "veteran-owned small business", "State agency" with
respect to service-disabled veteran-owned small businesses and
veteran-owned small businesses, and "certification" with
respect to service-disabled veteran-owned small businesses and
veteran-owned small businesses have the same meanings as in
Section 45-57 of the Illinois Procurement Code.
(Source: P.A. 96-1551, eff. 7-1-11.)
 
    (720 ILCS 5/33E-2)  (from Ch. 38, par. 33E-2)
    Sec. 33E-2. Definitions. In this Act:
    (a) "Public contract" means any contract for goods,
services or construction let to any person with or without bid
by any unit of State or local government.
    (b) "Unit of State or local government" means the State,
any unit of state government or agency thereof, any county or
municipal government or committee or agency thereof, or any
other entity which is funded by or expends tax dollars or the
proceeds of publicly guaranteed bonds.
    (c) "Change order" means a change in a contract term other
than as specifically provided for in the contract which
authorizes or necessitates any increase or decrease in the cost
of the contract or the time to completion.
    (d) "Person" means any individual, firm, partnership,
corporation, joint venture or other entity, but does not
include a unit of State or local government.
    (e) "Person employed by any unit of State or local
government" means any employee of a unit of State or local
government and any person defined in subsection (d) who is
authorized by such unit of State or local government to act on
its behalf in relation to any public contract.
    (f) "Sheltered market" has the meaning ascribed to it in
Section 8b of the Business Enterprise for Minorities, Females,
and Persons with Disabilities Act; except that, with respect to
State contracts set aside for award to service-disabled
veteran-owned small businesses and veteran-owned small
businesses pursuant to Section 45-57 of the Illinois
Procurement Code, "sheltered market" means procurements
pursuant to that Section.
    (g) "Kickback" means any money, fee, commission, credit,
gift, gratuity, thing of value, or compensation of any kind
which is provided, directly or indirectly, to any prime
contractor, prime contractor employee, subcontractor, or
subcontractor employee for the purpose of improperly obtaining
or rewarding favorable treatment in connection with a prime
contract or in connection with a subcontract relating to a
prime contract.
    (h) "Prime contractor" means any person who has entered
into a public contract.
    (i) "Prime contractor employee" means any officer,
partner, employee, or agent of a prime contractor.
    (i-5) "Stringing" means knowingly structuring a contract
or job order to avoid the contract or job order being subject
to competitive bidding requirements.
    (j) "Subcontract" means a contract or contractual action
entered into by a prime contractor or subcontractor for the
purpose of obtaining goods or services of any kind under a
prime contract.
    (k) "Subcontractor" (1) means any person, other than the
prime contractor, who offers to furnish or furnishes any goods
or services of any kind under a prime contract or a subcontract
entered into in connection with such prime contract; and (2)
includes any person who offers to furnish or furnishes goods or
services to the prime contractor or a higher tier
subcontractor.
    (l) "Subcontractor employee" means any officer, partner,
employee, or agent of a subcontractor.
(Source: P.A. 92-16, eff. 6-28-01.)
 
    (720 ILCS 5/33E-6)  (from Ch. 38, par. 33E-6)
    Sec. 33E-6. Interference with contract submission and
award by public official. (a) Any person who is an official of
or employed by any unit of State or local government who
knowingly conveys, either directly or indirectly, outside of
the publicly available official invitation to bid, pre-bid
conference, solicitation for contracts procedure or such
procedure used in any sheltered market procurement adopted
pursuant to law or ordinance by that unit of government, to any
person any information concerning the specifications for such
contract or the identity of any particular potential
subcontractors, when inclusion of such information concerning
the specifications or contractors in the bid or offer would
influence the likelihood of acceptance of such bid or offer,
commits a Class 4 felony. It shall not constitute a violation
of this subsection to convey information intended to clarify
plans or specifications regarding a public contract where such
disclosure of information is also made generally available to
the public.
    (b) Any person who is an official of or employed by any
unit of State or local government who, either directly or
indirectly, knowingly informs a bidder or offeror that the bid
or offer will be accepted or executed only if specified
individuals are included as subcontractors commits a Class 3
felony.
    (c) It shall not constitute a violation of subsection (a)
of this Section where any person who is an official of or
employed by any unit of State or local government follows
procedures established (i) by federal, State or local minority
or female owned business enterprise programs or (ii) pursuant
to Section 45-57 of the Illinois Procurement Code.
    (d) Any bidder or offeror who is the recipient of
communications from the unit of government which he reasonably
believes to be proscribed by subsections (a) or (b), and fails
to inform either the Attorney General or the State's Attorney
for the county in which the unit of government is located,
commits a Class A misdemeanor.
    (e) Any public official who knowingly awards a contract
based on criteria which were not publicly disseminated via the
invitation to bid, when such invitation to bid is required by
law or ordinance, the pre-bid conference, or any solicitation
for contracts procedure or such procedure used in any sheltered
market procurement procedure adopted pursuant to statute or
ordinance, commits a Class 3 felony.
    (f) It shall not constitute a violation of subsection (a)
for any person who is an official of or employed by any unit of
State or local government to provide to any person a copy of
the transcript or other summary of any pre-bid conference where
such transcript or summary is also made generally available to
the public.
(Source: P.A. 86-150.)
 
    Section 99. Effective date. This Act takes effect July 1,
2011.

Effective Date: 8/5/2011