What are the responsibilities of a public body regarding filing an ordinance regarding the Prevailing Wage?
The Act applies to all pubic bodies, including the State and every County, city, town village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district or municipality of the state whether such political subdivision, district or municipality or district operates under a special charter or not and each must file an ordinance/resolution independent of any other public body.
Where are public bodies to send ordinances/resolutions?
A certified copy should be sent to the following agencies:
Secretary of State
111 E. Monroe
Springfield, IL 62756-0001
Illinois Department of Labor
900 S. Spring Street
Springfield, IL 62704-2725
What are the notification requirements of a municipality regarding a project that falls within the scope of the Prevailing Wage Act?
Section 4. (a-1) of the Act sets forth the requirement that the Public Body or other entity awarding the contract shall cause to be inserted into the project specification and the contract a stipulation that not less than the prevailing rate shall be paid to all laborers, workers and mechanics performing work under the contract. Section 4. (a-2) provides for the same requirements where the contract is awarded without public bid. Section 4. (c) sets forth the bonding requirements under the Act, and Section 4. (d) requires the Public Body to notify the contractor of a revised rate established by the Department.
A Public Body does not comply with the requirements of the Act by providing a general statement to the effect that the contractor must comply with all applicable laws or stating that the project is subject to the Prevailing Wage Act if applicable. The statement required by the Public Body under the Act must be a statement that states specifically the project is or is not subject to the provisions of the Prevailing Wage Act.
What if a Public body fails to properly notify a contractor regarding a public works project subject to the Prevailing Wage Act?
If a Public Body fails to provide proper written notification to a contractor that is subject to the Prevailing Wage Act, Section 4. (a-3) holds a Public Body financially responsible for any interest, penalties or fines assessed by the Department.
What makes a project subject to the Act?
All fixed works constructed by any public body or paid in whole or in part with public funds, including all projects funded or financed in whole or in part with bonds, grants, loans or other funds made available by or through the State or any of its political subdivisions, or undertaken by an institution supported in whole or in part by public funds. Landscape or modifications to real estate are included within the definition of fixed work. A public works does not have to have a final use for the public.
Are project costs paid for in whole or in part out of Tax Incremental Financing (TIF) or other non-enumerated funding sources covered under the Prevailing Wage Act?
Project costs for construction, which are financed in whole or in part through financing arrangements arising out of Tax Incremental Financing are deemed projects paid for in part out of public funds no matter whether the financing is provided directly from TIF funds or only to the extent the specific project provides for reimbursement of costs associated with the construction to the extent the tax increment is generated by the property. The project is covered whether it is undertaken by a “public body” or simply funded in whole or in part through TIF dollars. The Department’s position on enforcement has been reviewed in light of the Supreme Court’s holding in IDOL v. E.R.H. Enterprises, Inc., 378 Ill. Dec. 402, 4 N.E. 3d 1 (2014), which recognized that “funds of any kind or character belonging to or in the custody of any public agency” fall within the scope of the funding arrangements covered by the Prevailing Wage Act, as well as the Act’s text, structure, and the legislative history of the 2010 amendments, which modified the definition of “public woks” to include projects paid in whole or in part out of financing arrangements “including but not limited to” those specifically enumerated. The 2010 amendments modified the prior language which had appeared to limit the scope of funding arrangements to those specifically enumerated. The 2010 legislative changes clarified that the specific references in the statute were examples of the type of funding arrangements covered under the Prevailing Wage Act. While the decision in Town of Normal v. Hafner, 395 Ill. App.3d 589 (4th Dist. 2009) addressed TIF financing, this decision did not involve the 2010 amendments to the Prevailing Wage Act. All of the above, including other subsequent court cases interpreting the 2010 amendments, support the Department’s position as to its enforcement policy with respect to non-enumerated funding sources, namely that the list of enumerated funding sources is not exhaustive and includes projects involving Tax Incremental Financing.