Originally published in the Daily Herald, August 31, 2020. 

A state regulator's ruling the Illinois tollway acted illegally and mishandled two unsuccessful bids for construction projects was "unfair" and unreasonable, an attorney for the agency argued at a state Senate Transportation Committee hearing Thursday.

The pushback puts the tollway at odds with Illinois Chief Procurement Officer for General Services Ellen Daley, who in July found the agency didn't properly notify Walsh Construction Co. and Lorig Construction Co. their bids fell short on two separate construction projects worth more than $70 million.

Daley's conclusions that the agency had undermined "the integrity of the procurement process" prompted state Sen. Laura Murphy of Des Plaines to request a Senate hearing after the Daily Herald reported on the issue.

Tollway attorney Kathleen Pasulka-Brown said at the hearing the two contractors lost the bids because they failed to meet diversity goals and were given plenty of notice.

"(Daley's) determination was unfair, and it's also inconsistent with her finding the tollway did not act in bad faith," Pasulka-Brown said. "Finding the tollway did not act in bad faith should have let her conclude the tollway did not engage in an illegal act."

Walsh and Lorig, who were the low bidders, filed protests in March saying the lack of notification meant they lost out on a chance for reconsideration, and Daley sided with them.

"Neither the procurement system in general nor (diversity) inclusion efforts in particular are well-served by keeping bidders ignorant when they fail to measure up," she wrote in her report.

Tollway Executive Director Jose Alvarez noted he and Chairman Will Evans are the agency's first minority top leaders and the entity is prioritizing diversity in-house and with contractors.

"At a time when the entire nation is coalescing around the notion we should all look to do more to increase diverse economic participation in the economy, and our agency is continuing to invest billions in the local economy -- it is being challenged for these efforts," Alvarez said.

So far this year, 30% of $545 million in construction projects were awarded to minority firms, and one reason is because of hiring a group of procurement experts, Alvarez explained. A number of those new procurement managers were previous colleagues from his job at the Chicago Housing Authority, the Daily Herald has reported.

The industry supports diversity goals but they need to be "data driven," and tollway objectives changed from between 17% and 23% to a flat 35% overnight, Sturino said.

Transportation Committee Chairman Ram Villivalam told Alvarez he "applauded the efforts you have led to not only meet but exceed diversity goals. (But) I am asking you to be very open to discussions around transparency and stability. It's important during the pandemic to explore ways to provide stability for companies in the private sector that include essential workers," he noted.

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