I-26-2051_CMGC DBE Special Provisions_Attachment6_09172026.pdf

Illinois State Toll Highway Authority

ATTACHMENT #6 - SPECIAL PROVISION FOR DISADVANTAGED BUSINESS

ENTERPRISE PARTICIPATION

SPECIAL PROVISION FOR DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION

1. POLICY STATEMENT

It is the policy of the Illinois State Toll Highway Authority (“Illinois Tollway”) that qualified and bona fide

Disadvantaged Business Enterprises (DBEs), as that term is defined herein, have maximum feasible opportunities to participate fully in the performance of all contracts funded and administered by the Illinois

Tollway. The Illinois Tollway seeks to ensure non-discrimination in the award and administration of its contracts and associated subcontracts, and that it is not a passive participant in a discriminatory marketplace; to create a level playing field on which DBEs can compete fairly for Illinois Tollway CM/GC contracts; to ensure that this Special Provision is narrowly tailored in accordance with applicable law; to ensure that only firms that meet the eligibility standards are permitted to participate as DBEs; and to help to remove barriers to participation of DBEs in the Illinois Tollway contracts and associated subcontracts.

Consistent with this policy, it is the responsibility of all CM/GC Contractors who directly or indirectly work on Illinois Tollway CM/GC contracts to ensure full and fair opportunities for DBEs to compete in those contracts as well as fully comply with this Special Provision.

2. DEFINITIONS

For the purposes of this Special Provision, the following terms shall have the following meanings:

Affiliate of a person or entity means a person or entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity. In determining Affiliation, the Illinois Tollway shall consider all appropriate factors, including common ownership, common management, and contractual relationships.

Award shall mean the notice of award of the Project to the successful Apparent Best Value Proposer, contingent upon approval of the Contract by the Illinois State Toll Highway Authority Board of Directors.

Baseline Schedule shall mean a logic-based schedule for all work from commencement of the work leading up to each Completion Deadline(s). The Baseline Contract Schedule is prepared by CM/GC Contractor in accordance with the Critical Path Method (CPM) and the Contract Documents, consistent with the Proposal

Schedule and approved Revised Baseline Contract Schedule(s). The Baseline Contract Schedule is subject to approval of the Illinois Tollway. The Illinois Tollway-approved logic-based Critical Path Method schedule for all work from commencement of the work leading up to each Completion Deadline(s), to be prepared by the CM/GC Contractor consistent with and reflecting the Proposal Schedule and Illinois

Tollway-approved Revised Baseline Contract Schedule(s), and in accordance with the Contract Documents.

Broker means a person or entity that fills orders by purchasing or receiving supplies from a third-party supplier rather than out of its own existing inventory and provides no substantial service other than acting as a conduit between his or her supplier and his or her customer.

Change Order shall mean a written order to CM/GC Contractor issued by the Illinois Tollway ordering a change in the work resulting in an adjustment in the Contract price or in Completion Deadline(s). Approved work orders and resolved claims may result in a change order if such work orders and resolved claims necessitate an adjustment to the Contract price or to Completion Deadline(s).

Commercially Useful Function means responsibility for the execution of a distinct element of the work of the Contract, which is carried out by actually performing, managing, and supervising the work involved, or fulfilling responsibilities as a DBE firm or the DBE Joint Venture partner, if applicable.

Contingency Work is the anticipated work within the scope of the Project which is included in the project to cover the work of such an uncertain nature that the location or quantity could not be identified prior to awarding the Contract.

Contract shall mean the contract entered into between the Illinois Tollway and the CM/GC Contractor for design phase professional services and construction of the Project.

Disadvantaged Business Enterprise (“DBE") means a business currently certified by the Illinois Unified

Certification Program (“ILUCP”) pursuant to 49 C.F.R. Part 26, or a business currently certified by the City of Chicago, Illinois or the County of Cook, Illinois, as a Minority or Women-Owned Business (“M/WBE") pursuant to its M/WBE program for construction contracts, Art. IV, § 2-92-650, et seq, as amended, or a business currently certified by the U.S. Small Business Administration (SBA) pursuant to the Small

Business Act as an SBA 8(a) business, owned and operated by a socially and economically disadvantaged person. A DBE is considered to have current certification if the firm is listed in the directory database of the pertinent certifying agency.

DBE Joint Venture means an association of two or more persons, or any combination of types of business enterprises and persons numbering two or more, proposing to perform as a single for profit business enterprise, in which each joint venture partner contributes property, capital, efforts, skill and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the project and whose share in the capital contribution, control, management, risks, and profits of the joint venture are equal to its ownership interest which should be 51% or more of the entity. Joint ventures must have an agreement in writing specifying the terms and conditions of the relationships between the partners and their relationship, risks and responsibility under the Contract.

DBE Performance Plan means a plan demonstrating the Proposer’s commitment to meet the Contract’s construction DBE participation goals. The DBE Performance Plan shall address the methods to be employed for achieving both DBE participation goals, including CM/GC Contractor’s exercise of Good

Faith Efforts, its DBE Achievement Strategy for meeting both DBE Participation goals, and other requirements provided in Section 6.3. The DBE Performance Plan shall be subject to the approval of the

Illinois Tollway, in its sole discretion.

DBE Utilization Plan means CM/GC Contractor’s updated Initial DBE Utilization Plan. The DBE

Utilization Plan includes the list of currently certified DBEs that the CM/GC Contractor commits will be utilized, including its own participation as a DBE, if applicable, in the scopes of the work and the dollar values or the percentages of the work to be performed pursuant to this solicitation and in conformance with this Special Provision. The DBE Utilization Plan is subject to the approval of the Illinois Tollway, in its sole discretion.

Good Faith Efforts means actions undertaken by a CM/GC Contractor to achieve the Contract’s construction DBE participation goals. Upon the Illinois Tollway’s sole determination, the scope, intensity and appropriateness of these actions can reasonably be expected to fulfill both DBE participation goals.

Ineligible Status means a business that is currently listed in the Illinois Unified Certification Program

(ILUCP) but that has not submitted the required documentation for reevaluation. These firms have not been decertified. Accordingly, they will be counted for DBE goal credit on Tollway contracts.

Initial DBE Utilization Plan means CM/GC Contractor’s completed DBE Form 2026DB that will be submitted for each Phase Two Amendment.

Mobilization means preparatory work and operations necessary for the movement of personnel, equipment and incidentals to the project site for the establishment of offices, buildings and other facilities necessary for work on the project and for all other work operations which must be performed, or costs incurred when beginning work on the project.

Notice of Award shall mean when Illinois Tollway notifies the public of its intent to Award the Contract to the selected best value Proposer.

Professional Services includes the following scopes of work: design phase services, engineering services, geotechnical services, legal services, environmental services, right of way/acquisition services, and other services not characterized as part of constructions services.

Project shall mean the CM/GC project.

Proposal Guaranty shall mean the security designated in the Proposal to be furnished by the Proposer as a guarantee of good faith to enter into the Contract if the Project is awarded to such Proposer.

Proposer shall mean an individual, firm, partnership, corporation, joint venture or combination thereof that submits a proposal in response to the RFP.

Proposal shall mean those documents, including but not limited to forms, attachments, narratives, and drawings, constituting CM/GC Contractor’s response to the RFP documents, including any supplements to proposals as may have been requested by the Illinois Tollway. The Proposal consists of a Technical

Proposal, Administrative Proposal and Price Proposal.

Regular Dealer means a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a Regular Dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A firm may be a Regular Dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business if the firm both owns and operates distribution equipment for the products. Any supplementing of a Regular Dealer's distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. Packagers, manufacturer representatives, or other persons who arrange or expedite transactions are not Regular Dealers.

Revised Baseline Schedule shall mean a proposed change to the Baseline Contract Schedule, as permitted under the Contract documents for the Project.

Subcontractor or Subcontractors shall mean any person with whom CM/GC Contractor has entered into any subcontract and any other Person with whom any Subcontractor has further subcontracted any part of the work, at any tier, with the written consent of the Illinois Tollway.

Technical Proposal shall mean the technical portion of the Proposal submitted by the Proposer(s) in response to the Request for Proposals issued by Illinois Tollway.

3. CM/GC CONTRACTOR ASSURANCE

The CM/GC Contractor will assure that each of its employees and its Subcontractors’ employees associated with the Contract shall not discriminate on the basis of any protected category identified by law in the performance of the Contract. Failure by the CM/GC Contractor to carry out these requirements is a material breach of this Contract, which may entitle the Illinois Tollway to such remedies as described in Section 8.

4. DBE CONTRACT GOAL TO BE ACHIEVED BY THE CONTRACTOR

This Contract includes a DBE participation goals of zero (0) % of the Professional Services work and sixteen (16) % of the construction work. These DBE participation goals reflect the estimated availability of DBEs to perform the scopes of work of this Contract, including as a CM/GC Contractor. Consequently, in addition to the other Award criteria established for this Contract, the Illinois Tollway will execute Phase

Two Amendments to this Contract to a CM/GC Contractor who commits to meet these DBE participation goals through the submission of the Initial DBE Utilization Plan and the DBE Performance Plan which includes the DBE Achievement Strategy defined in Section 6.3. The DBE participation goals will be calculated based on the amount of construction work identified in the RFP documents. The DBE participation goals will be re-assessed by Illinois Tollway in the event the Contract is modified, or a Change

Order has been issued.

5. DBE, M/WBE and SBA 8(a) LOCATOR REFERENCES

Proposers, including the selected CM/GC Contractor should review: (a) the Illinois Unified Certification

Program (“ILUCP”) DBE Directory as a reference source for DBEs and, (b) the City of Chicago, and the

County of Cook M/WBE directories as reference sources for M/WBEs in construction certified by the City of Chicago or the County of Cook, or the Small Business Administration SBA 8(a) directory for SBA 8(a)s certified by the Small Business Administration. Only firms certified by the ILUCP, the City of Chicago, the County of Cook, or the Small Business Administration at the time the DBE Participation Letter of Intent

(LOI) Statement as described in Section 6.2 is submitted to the Illinois Tollway after Notice of Award are eligible to be considered for DBE credit under the Contract to either meet the DBE participation goals or establish the CM/GC Contractor’s Good Faith Efforts.

These directories are to be used as an informational source only. Certification does not mean that a firm is in any way prequalified to provide the products and/or services in its certification specialty. “Certification” means that the ILUCP, the City of Chicago, the County of Cook, or the Small Business Administration has determined, on the basis of information provided and the representations therein, that a business is a bona fide DBE. The ILUCP, the City of Chicago, the County of Cook or the Small Business Administration does not, as a result of listing, make any representation concerning the ability of any listed firm to perform work in the specialty listed. The Illinois Tollway does not, through its use of and referral to ILUCP DBE, the

City of Chicago, the County of Cook MBE/WBE, and the Small Business Administration SBA 8(a) lists, make any representation concerning the ability of any listed firm to perform work in its certification specialty. Proposers, including the selected CM/GC Contractor must conduct its own due diligence regarding the capabilities of certified firms to perform the work of the Contract.

6. PROPOSAL PROCEDURES

Proposers and the CM/GC Contractor shall submit the documents described below and comply with other requirements described in this Section.

6.1 Initial DBE Utilization Plan (DBE Form 2026DB)

The CM/GC Contractor shall submit an Initial DBE Utilization Plan (completed DBE Form 2026DB), with each Phase Two Amendment.

This section is applicable when a CM/GC Contractor is a DBE firm that is certified to perform a portion of the work and intends to meet all or a part of the DBE participation goals by self-performing work that meets or exceeds the Contract DBE participation goals. Additionally, if the CM/GC Contractor is a DBE Joint

Venture, each DBE Joint Venture partner must execute the attestation to DBE Form 2026DB.

The Initial DBE Utilization Plan shall:

a. Indicate that the CM/GC Contractor has obtained, at the time of each Phase Two Amendment submission, certain DBE participation commitments towards meeting the Contract DBE participation goals;

b. Identify each DBE firm known at the time of Phase Two Amendment submission and proposed for use on the Contract, and describe the corresponding scope of work and dollar amount of such identified

DBE firm;

c. Provide the name, telephone number, and email address of a responsible official of the CM/GC

Contractor authorized to receive notice of the approval or disapproval of the DBE Utilization Plan.

6.1.1 Any agreement between a Proposer and a DBE firm which prevents or restricts the DBE firm from providing subcontracting quotations to other Proposers is prohibited.

6.2 DBE Participation Letter of Intent Commitment Statement (DBE Form 2025DB)

The Initial DBE Utilization Plan must be supported with a detailed DBE Participation Letter of Intent

Commitment Statement (DBE Form 2025DB), for each DBE firm identified in the Initial DBE Utilization

Plan. Each completed DBE Form 2025DB shall be submitted by the CM/GC Contractor with each Phase

Two Amendment and shall be a precedent for execution of the Contract. DBE Form 2025DB shall be submitted to contractcompliance@getipass.com.

Due to the nature of CM/GC projects, the Illinois Tollway shall accept DBE Letters of Intent (LOIs) throughout the term of the Contract, as additional DBE firms are identified and contracted in accordance with the DBE Performance Plan. At least once a quarter, CM/GC Contractor shall submit to the Illinois

Tollway an updated DBE Utilization Plan conform to the submitted DBE LOIs.

Prior to the performance of any work by a DBE firm, CM/GC Contractor shall have submitted a DBE LOI to the Illinois Tollway, and the Illinois Tollway must have approved the utilization of such DBE firm towards the Contract DBE participation goals.

The Illinois Tollway shall monitor CM/GC Contractor’s compliance with the DBE LOIs, as reflected in the

Initial DBE Utilization Plan and the DBE Performance Plan.

In no case should a CM/GC Contractor remove, replace, or reduce the commitment to a DBE listed in the

Initial Utilization Plan, or DBE LOIs submitted and approved subsequent to execution of a Phase Two

Amendment without prior written consent of Illinois Tollway. Under no circumstances is the CM/GC

Contractor allowed to change amounts, or other documentation included in a Phase Two Amendment relating to this Special Provision.

The signatures on DBE LOIs must be original signatures. All elements of information included on Form

2025DB must be provided, including but not limited to:

6.2.1 The name and address of each DBE firm to be utilized to meet the Contract DBE participation goals;

6.2.2 A full description of the Commercially Useful Function to be performed by each DBE firm. This includes: (i) pay item numbers for DBE firms or, (ii) associated pay items for trucking services. Descriptions such as “miscellaneous” and prices such as “lump sum” are not acceptable. Contingency Work must not be included under pay items and will not be approved toward the Contract DBE participation goal until such time that those pay items have been confirmed as required work of the Contract;

6.2.3 Direct allowance items will not be approved towards DBE participation goals in the DBE

Utilization Plan;

6.2.4 Mobilization costs should be included in the total Contract cost rather than as a separate pay item on the DBE Utilization Plan;

6.2.5 If CM/GC Contractor is a DBE, mobilization may be approved towards the Contract DBE participation goals in the Initial DBE Utilization Plan;

6.2.6 The price to be paid to each DBE firm for the identified work shall specifically state the quantity

(if applicable), unit price (if applicable) and total subcontract price for the work to be completed. If partial pay items are to be performed by the DBE firm, the DBE LOI must indicate the portion of each item, a unit price (where appropriate) and the subcontract price amount;

6.2.7 A statement of commitment for each DBE Subcontractor, regardless of tier, signed by the CM/GC

Contractor, DBE Subcontractor as well as any Subcontractor that may have a direct contract with the DBE

Subcontractor. These forms demonstrate the commitment to the availability and utilization of DBE firms that will perform a Commercially Useful Function on the project; and

6.2.8 If the CM/GC Contractor is a DBE Joint Venture comprised of DBE and non-DBE firms, the DBE

LOI must also include a clear identification of the portion of the work to be performed by the DBE Joint

Venture partner(s).

A Phase Two Amendment will not be executed until the Initial DBE Utilization Plan, the accompanying

DBE LOIs for the DBE firms identified on the Initial DBE Utilization Plan and the DBE Performance Plan are approved by the Illinois Tollway. The documentation will be approved if these demonstrate that DBEs will be used to perform a Commercially Useful Function sufficient to meet the Contract DBE participation goals.

6.3 DBE Performance Plan

At the time of Proposal submission, all Proposers shall submit a DBE Performance Plan describing the methods to be employed for achieving the Contract DBE participation goals. The DBE Performance Plan must, at a minimum, ensure compliance with the Illinois Tollway’s DBE program and shall include but not limited to, the following:

a. DBE Achievement Strategy outlining the specific categories of services and work anticipated for

DBE participation on the project for firms that have not identified in the technical proposal;

b. Anticipated schedule for submission of agreements with committed DBE firms based on the

CM/GC Contractor’s Baseline Schedule and any subsequent Revised Baseline Schedule;

c. An outline of clearly articulated methods and strategies that the Proposer intends to employ to meet the Contract DBE participation goals including extensive DBE outreach by the CM/GC Contractor as well as Illinois Tollway’s Building for Success webinar series. The CM/GC Contractor must also outline business and mentoring initiatives for Subcontractors especially DBE Subcontractors done by the CM/GC

Contractor as well as Illinois Tollway initiatives including the Partnering for Growth (P4G) program, Technical Assistance and the ConstructionWorks programs;

i. Illinois Tollway requires the CM/GC Contractor to participate in the P4G program by executing at least one construction mentoring agreement with DBE firms performing work on the CM/GC project.

Additionally, the Proposer will include a statement of commitment to participate in the P4G Program with construction firms and will submit a Construction MOU for approval and an associated agreement at least

30 days before start of construction work. The CM/GC Contractor shall also provide information on the mentoring relationship and how the efforts for improving the firm’s management and operating skills and leading to an increase in capacity and the ability to remain self-sufficient competitive and profitable business enterprise.

d. A narrative describing how ongoing good faith efforts to meet the DBE goals will be conducted and detail efforts that will be undertaken by the CM/GC Contractor following execution of the CM/GC

Contract to achieve the DBE goals for the project;

e. The name, qualifications, responsibilities and contact information for the experienced dedicated

Diversity and Inclusion personnel or consultant that the Proposer will use on the project to promote and monitor the utilization of DBE firms in compliance with the Contract;

f. A detailed narrative of how the Illinois Tollway’s Diversity Department supportive services center will be utilized;

g. A description of programs that will be implemented to ensure DBE firms successfully compete for work;

h. Procedures and processes to ensure DBE firms successfully complete the work;

i. A description of how the work will be monitored to ensure DBE participation credit and compliance will be tracked and accounted for;

j. Details of how the work will be managed to ensure DBE firms receive timely and prompt payments and that they will be informed about prompt payment requirements;

k. A description of how emerging risks associated with the DBE program will be identified and addressed, including ensuring that DBE firms will be performing a Commercially Useful Function;

l. A narrative to identify how monthly updates to the DBE community regarding progress and upcoming Contract opportunities will be provided;

m. Details of how DBE participation and labor participation reports will be submitted and how records of compliance will be maintained, ensuring adherence to applicable civil rights requirements and the requirements of the Contract Documents; and

n. Processes and procedures for a DBE recovery plan should the Illinois Tollway determine the DBE goals are not being achieved.

The CM/GC Contractor shall update the DBE Performance Plan annually, or more frequently to reflect major changes to the DBE Achievement Strategy or as requested by the Illinois Tollway.

The DBE Achievement Strategy, together with a corresponding updated DBE Utilization Plan, should be updated on a regular basis, at least quarterly, as the CM/GC Contractor identifies and commits to utilize additional DBE firms to meet Contract DBE participation goals.

6.4 Counting DBE Participation

DBE commitments at the time of the each Phase Two Amendment Proposal submission (as reflected in the

Initial DBE Utilization Plan and supporting DBE LOIs), and additional DBE commitments identified after execution of a Phase Two Amendment (as reflected in the DBE Performance Plan, and updated DBE

Utilization Plan and supporting DBE LOIs) represent work expected to be performed and paid for upon satisfactory completion. The Illinois Tollway is only able to count the value of (i) actual payments, or (ii) attainments for work performed by DBE firms towards the achievement of the Contract DBE participation goals. The Illinois Tollway will count DBE participation, and CM/GC Contractor will receive credit towards meeting the DBE Contract goals, as follows:

6.4.1 The entire amount of that portion of work that the DBE is certified to perform, as indicated on the

DBEs LOIs shall be counted. The work must be performed by the DBE firm’s own forces, either as the

CM/GC Contractor or a Subcontractor. This will include the cost of supplies and materials purchased by the DBE firm for its work on the Contract, and equipment leased by the DBE firm for the work, but excludes supplies, materials and equipment the DBE firm purchases or leases from the CM/GC Contractor or the

CM/GC Contractor’s affiliate. Work that the DBE firm subcontracts to a non-DBE firm does not count towards the Contract DBE participation goals.

6.4.2 The entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant or managerial services, or for providing bonds or insurance specifically required for the performance of the Contract shall be counted; provided the fee is reasonable and not excessive as compared with fees customarily charged for similar services.

6.4.3 One hundred percent of the cost of trucking services utilized on the Contract shall be counted, provided the DBE firm is responsible for the management and supervision of the entire trucking operation for which it is responsible. At least one truck owned, operated, licensed and insured by the DBE must be used on the Contract. Credit will only be applied for trucking activity to and from the Illinois Tollway job site. Credit will be given if: (1) the DBE firm leases trucks from another DBE firm, including an owner-operator who is certified as a DBE. The lessee DBE firm that leases trucks from the lessor DBE firm receives credit for the total value of the transportation services the lessee DBE firm provides on the

Contract. (2) the DBE firm leases trucks from an owner-operator that is a non-DBE firm. The lessee DBE firm receives credit limited to the value of the reasonable fee or commission received by the DBE for trucks that are leased from a non-DBE.

6.4.4 When a DBE firm performs work as a participant in a DBE Joint Venture, only the portion of the total dollar value of the DBE Joint Venture’s Contract or subcontract equal to the distinct, clearly defined portion of the that is performed by the DBE firm with its own forces and for which it is separately at risk, shall be counted. A DBE Joint Venture may also count the dollar value of work subcontracted to DBE firms other than the DBE Joint Venture partner(s). Work performed by the forces of the non-DBE Joint Venture partner shall not be counted toward the Contract DBE participation goals. The Illinois Tollway will evaluate the DBE Joint Venture agreement, which must be submitted with the Initial DBE Utilization Plan, for conformance with this Special Provision and eligibility for credit towards meeting the Contract DBE participation goals. The agreement must describe in detail the financial contribution of each partner; the list of personnel and equipment contributed and used by each partner; the responsibilities of each partner for each aspect of the DBE Joint Venture; if applicable, the bonding capacity of each partner; if applicable, the prequalification status of each partner; the basis and distribution of all profits and losses; and any other elements deemed relevant by the Illinois Tollway.

6.4.5 One hundred percent of the cost of the materials obtained from a DBE Manufacturer, as that term is defined in 49 C.F.R. § 26.55(e) shall be counted towards the Contract DBE participation goals. Sixty percent of the cost of the materials or supplies obtained from a DBE Regular Dealer or Supplier, as those terms are defined in 49 C.F.R. § 26.55(e), shall be counted towards the DBE Contract goals. One hundred percent of the fees or transportation charges for the delivery of materials or supplies required on a job site shall be counted towards the Contract DBE participation goals only if the payment of such fees is a customary industry practice and are commensurate with fees customarily charged for similar services.

6.4.6 One hundred percent credit will be counted towards the Contract DBE participation goals for the value of fees and commissions for the procurement of materials and supplies if the DBE is not a regular dealer or manufacturer; provided such fees or commissions are determined by the Illinois Tollway, in its sole discretion, to be reasonable and not excessive as compared with fees customarily allowed for similar services. No portion of the cost of the materials or supplies themselves shall be counted towards the Contract

DBE participation goals.

6.4.7 When a DBE firm loses its DBE eligibility and certification, the following actions must be taken:

(a) When a prime contractor has made a commitment to using an ineligible DBE firm but a decertification notice is issued before the prime contractor executes a subcontract, the ineligible firm does not count toward the contract goal, and the prime contractor must be directed to meet the contract goal with an eligible DBE firm or demonstrate that it has made a good faith effort to do so.

(b) When the Tollway has made a commitment to using an ineligible DBE prime contractor, but a decertification notice is issued before the contract is awarded to the ineligible DBE firm, the ineligible DBE firm does not count toward the contract goal and the Tollway must meet the contract goal with an eligible

DBE firm.

(c) If a prime contractor executes a subcontract with a DBE firm before the firm loses its DBE eligibility and certification, the prime contractor may continue to use the firm on the contract and may continue to receive credit toward the DBE goal for the firm's work. In this case, or in a case where a prime contract has been awarded to a DBE that is later ruled ineligible, the portion of the ineligible firm's performance of the contract remaining after the notice of ineligibility is issued may count toward the contract goal.

In determining achievement of the Contract DBE participation goals, the participation of a DBE firm shall not be counted until that amount has been paid to the DBE firm.

6.5 Demonstrating Commercially Useful Function

Only expenditures to a DBE firm that is performing a Commercially Useful Function shall be counted. To determine whether a DBE firm is performing a Commercially Useful Function, the Illinois Tollway will evaluate the amount of work subcontracted, industry practices, whether the amount the DBE firm is to be paid under the Contract is commensurate with the work it is actually performing and other relevant factors.

A DBE firm performs a Commercially Useful Function when it is responsible for the execution of the work and is carrying out its responsibilities by actually performing, managing, and supervising the work involved.

6.5.1 To perform a Commercially Useful Function, the DBE firm must be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself.

6.5.2 A DBE firm does not perform a Commercially Useful Function if its role is limited to that of an extra participant in a transaction, contract, or Project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE firm is such an extra participant, the

Illinois Tollway will examine similar transactions, particularly those in which DBE firms do not participate.

6.5.3 If a DBE firm does not perform or exercise responsibility for at least 30 percent of the total cost of its Contract or subcontract with its own work force, or the DBE firm subcontracts a greater portion of the work of its Contract or subcontract than would be expected on the basis of normal industry practice for the type of work involved, the Illinois Tollway will presume that the DBE is not performing a Commercially

Useful Function. When a DBE firm is presumed not to be performing a Commercially Useful function as provided in this Special Provision, the DBE firm and the CM/GC Contractor may present evidence to rebut this presumption.

6.6 Good Faith Efforts Procedures

At the time of each Phase Two Amendment submission, the CM/GC Contractor shall submit the Initial

DBE Utilization Plan with accompanying DBE LOIs for each DBE firm identified and the DBE

Performance Plan committing to achieve the DBE goals. For additional DBE participation not identified at the time of Phase Two Amendment submission, the CM/GC Contractor shall demonstrate Good Faith

Efforts post-Award to meet or exceed the Contract DBE participation goals. These Good Faith Efforts should be the necessary and reasonable steps that could reasonably be expected to obtain sufficient DBE participation. The Illinois Tollway will consider the quality, quantity and intensity of the kinds of efforts that the CM/GC Contractor has made. Mere pro forma efforts are not Good Faith Efforts; rather, the CM/GC

Contractor is expected to make sufficient efforts that would be reasonably expected of a CM/GC Contractor actively and aggressively trying to obtain DBE participation to meet the Contract DBE participation goals.

Throughout the course of the project, the Illinois Tollway must monitor the participation and activities of the CM/GC Contractor to determine if it has made a good faith effort to secure the work commitment of

DBEs to meet the Contract DBE participation goals.

The following is a list of types of action that the Illinois Tollway will consider as part of the evaluation of the CM/GC Contractor's Good Faith Efforts to obtain DBE participation. These listed factors are not intended to be a mandatory checklist and are not intended to be exhaustive. Other factors or efforts brought to the attention of the Illinois Tollway may be relevant in appropriate cases and will be considered by the

Illinois Tollway.

6.6.1 Soliciting through all reasonable and available means (e.g., attendance at DBE networking sessions sponsored by the Illinois Tollway, one-on-one meetings, advertising and/or written notices) the interest of all DBE firms that have the capability to perform the work of the Contract. A list of certified DBEs in the trades considered to determine the Contract DBE participation goals may be provided by the Illinois

Tollway, but should not be considered exhaustive, and other firms may be available for solicitation by the

CM/GC Contractor. The CM/GC Contractor must solicit this interest within sufficient time to allow the

DBEs to respond to the solicitation, but in any event, no later than five (5) calendar days prior to the submission date of the solicitation. At least two methods of solicitation of DBEs must be used (e.g., email and website). The CM/GC Contractor must determine with certainty if the DBEs are interested by taking appropriate steps to follow-up initial solicitations.

6.6.2 Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the

Contract DBE participation goals will be achieved. This includes, where appropriate, breaking out Contract work items into economically feasible units to facilitate DBE participation, even when the CM/GC

Contractor might otherwise prefer to perform these work items with its own forces.

6.6.3 Providing interested DBEs with adequate information about the plans, specifications, and requirements of the Contract in a timely manner to assist them in responding to a solicitation.

6.6.4 Negotiating in good faith with interested DBE firms.

6.6.4.1 Making a portion of the work available to DBE Subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE Subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, e-mail address and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work.

6.6.4.2 A CM/GC Contractor using good business judgment would consider a number of factors in negotiating with Subcontractors, including DBE Subcontractors, and would take a DBE firm’s price and capabilities as well as Contract DBE participation goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a

CM/GC Contractor’s failure to meet the Contract DBE participation goals, as long as such costs are reasonable. Also, the ability or desire of a CM/GC Contractor to perform the work of a Contract with its own organization does not relieve the CM/GC Contractor of the responsibility to make Good Faith Efforts.

CM/GC Contractor or its Subcontractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable.

6.6.5 DBEs may not be rejected as being unqualified without sound reasons based on a thorough investigation of their capabilities. The CM/GC Contractor’s standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations are not legitimate causes for the rejection or non-solicitation of bids in the CM/GC Contractor’s efforts to meet the Contract goals.

6.6.6 Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the Illinois Tollway or CM/GC Contractor.

6.6.7 Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services.

6.6.8 Effectively using the services of available minority/women community organizations;

minority/women contractors’ groups; local, state, and Federal minority/women business assistance offices;

and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs.

6.6.9 A CM/GC Contractor that rejected a DBE firm based on price must provide to the Illinois Tollway all quotes received for the scope of work proposed by the DBE from all firms, including non-DBEs.

6.6.10 If the Illinois Tollway determines through its monitoring that the CM/GC Contractor is in jeopardy of not achieving the Contract DBE participation goals by the completion of the project, a request may provide additional written documentation and/or argument concerning the issue of whether an adequate good faith effort was made to meet the Contract DBE goals. The request will be forwarded to the “Illinois

State Toll Highway Authority, Procurement Department, Chief of Contract Compliance”. The Chief of

Contract Compliance may extend an opportunity to the CM/GC Contractor to meet in person in order to consider all issues of whether the CM/GC Contractor made a good faith effort to meet the Contract DBE participation goals. Such meeting shall extend the time for a decision. After the review by the Chief of

Contract Compliance, the CM/GC Contractor will be sent a written decision within ten (10) working days after receipt of the request for reconsideration or the date of the meeting, explaining the basis for finding that the CM/GC Contractor did or did not meet the goals or make adequate Good Faith Efforts to do so. A final decision by the Chief of Contract Compliance that a good faith effort was made and sufficient may lead to an approval of the DBE participation towards the goals by the CM/GC Contractor despite the possible shortfall and shall clear the Contract for Contract closeout. If a final decision that a good faith effort was not made could result in penalties and sanctions as outlined in the Contract and this Special

Provision.

7. CONTRACT COMPLIANCE

7.1 Forms to be Submitted

All work indicated for performance by an approved DBE shall be performed, managed and supervised by the DBE in accordance with the DBE Utilization Plan, the DBE Letter of Intent Participation Statement

(DBE Form 2025DB), and the DBE Performance Plan with the DBE Achievement Strategy.

To receive the first notice to proceed, the Proposer must submit for the Illinois Tollway’s review signed subcontracts with all DBEs proposed on the Initial Utilization Plan to meet the goals within twenty (20) calendar days of execution of each Phase Two Amendment. For additional DBE participation after execution of a Phase Two Amendmentto meet the Contract DBE participation goals, the CM/GC Contractor shall submit a DBE Letter of Intent (LOI) for each proposed DBE firm to Illinois Tollway for approval and the signed DBE subcontract prior to the performance of work by such DBE firm.

7.2 Changes to the DBE Utilization Plan

The CM/GC Contractor may not make changes to its contractual DBE commitments pre-Award and post-

Award, substitute a DBE Subcontractor or make any other changes to the approved Initial DBE Utilization

Plan and any updated DBE Utilization Plan without the prior written approval of the Illinois Tollway’s

Contract Compliance team. Unauthorized changes or substitutions, including performing the work designated for a Subcontractor with the CM/GC Contractor’s own forces, shall be a violation of this Special

Provision and a breach of the Contract.

If a Change Order is issued by the Illinois Tollway or Contingency Work is authorized, the CM/GC

Contractor, in Illinois Tollway’s discretion, will be required to amend its DBE Utilization Plan to reflect the recalculated DBE dollars and any percentage change in the goals. The Contract DBE participation goals may change in the Illinois Tollway’s discretion to reflect a Change Order or the authorization of

Contingency Work.

The facts supporting the request for changes to the Initial DBE Utilization Plan and any updated DBE

Utilization Plan must not have been known or reasonably could not have been known by the parties prior to entering into the subcontract with the DBE firm. The CM/GC Contractor must negotiate in good faith with the DBE Subcontractor to resolve the problem. If requested by either party, the Illinois Tollway shall facilitate such a meeting. Where there has been a mistake or disagreement about the scope of work, the

DBE Subcontractor can be substituted only where agreement cannot be reached for a reasonable price or reasonable schedule for the correct scope of work. Requests should be sent to contractcompliance@getipass.com.

Substitutions of a DBE Subcontractor shall be permitted only under the following circumstances:

7.2.1 Unavailability after receipt of reasonable notice to proceed;

7.2.2 Failure of performance;

7.2.3 Financial incapacity;

7.2.4 Refusal by the DBE Subcontractor to honor the bid or bid price or scope or schedule;

7.2.5 Material mistake of fact or law about the elements of the scope of work of a solicitation where a reasonable price cannot be agreed;

7.2.6 Failure of the DBE Subcontractor to meet insurance, licensing or bonding requirements;

7.2.7 The DBE Subcontractor's withdrawal of its bid or bid; or

7.2.8 Decertification of the Subcontractor as a DBE, other than on the basis of its exceeding firm size or personal net worth limits.

If it becomes necessary to substitute a DBE firm or otherwise revise the DBE Utilization Plan, the CM/GC

Contractor must notify the “Illinois State Toll Highway Authority, Contract Compliance team” in writing of the request to substitute a DBE or otherwise revise the DBE Utilization Plan to contractcompliance@getipass.com. The request must state specific reasons for the substitution or change.

A letter from the DBE to be substituted or affected by the change stating that it cannot perform on the subcontract or that it agrees with the change in its scope of work must be submitted with the request. Any refusal by the DBE firm to provide such a letter must be documented by the CM/GC Contractor. The Illinois

State Toll Highway Authority, Contract Compliance team will approve or deny a request for substitution or other change in the DBE Utilization Plan in writing within five (5) working days of receipt of the request.

Where the CM/GC Contractor has established the basis for the substitution to the Illinois Tollway’s satisfaction, it must make Good Faith Efforts to meet the Contract DBE participation goals by substituting a DBE Subcontractor. Documentation of a replacement DBE, or of Good Faith Efforts, must meet the requirements in Section 6.6 If the Contract DBE participation goals cannot be reached and Good Faith

Efforts have been made, the CM/GC Contractor may substitute with a non-DBE.

If the CM/GC Contractor plans to hire a Subcontractor for any scope of work that was not previously disclosed in the DBE Utilization Plan, the CM/GC Contractor must obtain the approval of the Illinois

Tollway Contract Compliance team to modify the DBE Utilization Plan and must make Good Faith Efforts to ensure that DBEs have a fair opportunity to bid on the new scope of work.

A new subcontract, DBE Letter of Intent Participation Statement (DBE Form 2025DB), for the substituted

DBE (if applicable) and an amended DBE Utilization Plan must be executed and submitted to the Illinois

State Toll Highway Authority, Contract Compliance team at contractcompliance@getipass.com within five

(5) working days of the CM/GC Contractor’s receipt of the Illinois Tollway’s approval for the substitution or other change.

7.3 The Submission of the DBE Payment Report

DBE payment reporting, in such form or format as specified by the Illinois Tollway, must be submitted as specified in the “Contract Compliance Payment Reporting Instructions” posted on the Illinois Tollway’s website.

The CM/GC Contractor shall maintain a record of payments to DBEs and all other Subcontractors and suppliers for work performed. The records shall be made available to the Illinois Tollway for inspection and copying upon request. After the performance of the final item of work or delivery of material by a DBE and final payment to the DBE by the CM/GC Contractor, but not later than thirty (30) calendar days after payment has been made by the Illinois Tollway to the CM/GC Contractor for such work or material, the

CM/GC Contractor shall submit partial and final waivers of lien via B2GNow. Not complying with this requirement may delay processing of pay estimates and/or retainage.

All active Illinois Tollway vendors, contractors, and consultants will be required to use B2GNow. Both diverse and non-diverse Subcontractor payments must be reported and confirmed monthly in the system at https://iltollway.diversitysoftware.com/.

The Illinois Tollway reserves the right to withhold payment to CM/GC Contractor to enforce these provisions and CM/GC Contractor’s contractual commitments. Final payment shall not be made pursuant to the Contract until CM/GC Contractor submits sufficient documentation demonstrating compliance with its Initial and revised DBE Utilization Plans and DBE Performance Plan.

7.4 Partnering for Growth (P4G) Program

The CM/GC Contractor is strongly encouraged to participate in the Illinois Tollway Partnering for Growth

(P4G) program. The CM/GC Contractor is encouraged to execute at least one construction mentoring agreement for work related to the Project. The CM/GC Contractor submission of an affirmative commitment to submit a MOU with a construction firm is required no later than 30 days before the start of construction. The CM/GC Contractor may submit the Construction MOU at least 30 days before the start of construction work. Following Award of the Contract, if the CM/GC Contractor elects to participate in the P4G program, the CM/GC Contractor will submit a P4G agreement to Illinois Tollway for each DBE mentee with an approved MOU. The agreement will be more detailed than the MOU submitted describing the Protégé’s participation by tasks, hours, and deliverables. It will also provide a schedule for monitoring progress, submitting interim reports, and preparing a final assessment of the Mentor and Protégé relationship on the project.

Additionally, Illinois Tollway staff will conduct periodic compliance reviews to monitor and report the

Protégé's progress. Following Illinois Tollway's approval of the agreement, a quarterly report must be submitted to Illinois Tollway to verify payments toward meeting the stated level of Protégé’s participation in the P4G Program. This report shall summarize the services and/or skills provided to Protégé, including hours and areas of involvement, managerial, technical, or financial-related assistance.

8. SANCTIONS

The Illinois Tollway will periodically review the CM/GC Contractor’s compliance with this Special Provision, DBE LOIs, DBE Utilization Plan and DBE Performance Plan. Without limitation, the CM/GC

Contractor’s failure to comply…